300R92012
     PROCEEDINGS
           VOLUME II
      INTERNATIONAL
    CONFERENCE ON
    ENVIRONMENTAL
      ENFORCEMENT
          September 22-25,1992
             Budapest, Hungary
I
55
\
LU
CD
        COMMISSION
        OF THE EUROPEAN
        COMMUNITIES
             Ministry of Housing,
             Physical Planning,
             and Environment (VROM)
             The Netherlands

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           INTERNATIONAL CONFERENCE ON

             ENVIRONMENTAL ENFORCEMENT


               CONFERENCE PROCEEDINGS

                          VOLUME II
                   September 22 -25, 1992

                      Budapest, Hungary
Editors:

Mr. Jo Gerardu
Ms. Cheryl Wasserman


Executive Planning Committee:

Mrs. Jacqueline Alois! de Larderel, UNEP-IE/PAC
Mr. Laurens Jan Brinkhorst, EEC
Dr. Kalman Gyorgyi, Hungary
Dr. Peter Hardi, REC
Dr. Jan Mikolas, CSFR
Dr. Karoly Misley, Hungary
Dr. Maciej Nowicki, Poland
Mr. Herbert Tate Jr., USA
Mr. Pieter Verkerk, the Netherlands
Sponsors:

Environmental Protection Agency, United States
European Economic Community, Brussels
Ministry of Housing, Physical Planning and Environment, the Netherlands

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These Proceedings, Volume II, contain materials presented at the
 second International Conference on Environmental Enforcement,
September 22-25, 1992 in Budapest, Hungary. It includes opening
     and closing speeches, additional  papers, summaries of
discussions, the Conference evaluations and a list of participants.
    Volume  I of these Proceedings was distributed during the
Conference  and contains papers prepared by speakers, panelists
                   and several participants.

 Copyright 1992 by the Conference sponsors: the United States
  Environmental Protection Agency, the Netherlands'  Ministry of
 Housing, Physical Planning and Environment, and the European
Economic Community.  No part of this book may be reproduced in
  any form or by any means without the prior permission of the
   author(s) and attribution to the Proceedings of the second
   International Conference on Environmental Enforcement, Jo
   Gerardu, VROM and Cheryl Wasserman US EPA, editors,
  September 22-25, 1992 in Budapest, Hungary. Use of these
    materials is strongly encouraged for training and further
                      dissemination.
    Opinions expressed are those of the authors, and do not
     necessarily represent the views of their organizations.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
      CONTENTS: VOLUME II



PREFACE 	 7

CONFERENCE PURPOSE AND GOALS	9

CONFERENCE THEMES  	11

OPENING SPEECHES	13

1.    Mr. S. Keresztes, Minister of Environment, Hungary	13
2.    Mr. G. Demszky, Mayor of the City of Budapest	17
3.    Mr. H. Alders,  Minister of Environment, Netherlands	21
4.    Mr. H. Tate Jr., Assistant Administrator, US EPA 	25
5.    Mr. L Brinkhorst, Director General for Environment, Nuclear Safety and
      Civil Protection, Commission of the European Communities 	29

ADDITIONAL CONFERENCE PAPERS	31

 Theme #1: Context for Enforcement
      Moderator: H.  Kesselaar

6.    Upgrading of Environmental Laws in France as Part of the Requirements by
      the EEC, P. Kromarek  	31
7.    Some Factors Influencing Environmental Enforcement in the CSFR, £. Kruzikova  .... 37
 Theme #2: Designing Enforceable Environmental Requirements
       Moderator: S. Fulton

 6.     Designing Enforceable Environmental Requirements,  T. Smith  	39
 Theme #3: Developing an Effective Compliance Monitoring Capability (e.g. Inspection Capability)
       Moderator: M. Bierman - Beukema toe Water

       No additional papers

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                                INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 Theme #4:  Developing Authorities and Legal Enforcement Capabilities to Respond to Violations
       Moderator: L. Kramer

 9.     Combatting  Environmental Crime in an International Context, Y.  van der Meer	59
 10.    The Development of the Police's Enforcement Position in the Field of
       Environment, M. Horstman  	                             63
 11.    Environmental Enforcement by Municipalities in The Netherlands, P. Dordregier '. '. '. '. '. 67


 Theme #5:  Economic Development and Ownership Issues
       Moderator: I. Tokes

 7.     Environmental Enforcement in Greece, M. Vassilopoulos 	73
 8.     The Role of Industry: Empowerment and Environmental Protection, J. Plaut 	77
 9.     Environmental Problems in the Hungarian Privatization, /. Mandoki	89
 10.    NGO's Role in Environmental Enforcement in Ownership Transformations
       in Poland 1990  - 1992, Opportunities and Problems, W. Stodulski	91


 Theme #6: Applications to a Particular Environmental Problem: Solid and Hazardous Waste
       Moderator: O. Caisou

4.     The Basel Convention on the Control of Transboundary Movements of Hazardous
       Wastes and  Their Disposal, /. Rummel-Bulska	        99
5.     Transition and Implementation of Waste Management Policies in  Central and
       Eastern Europe, S. Wassersug	                 107
6.     The Enforcement Experience in Catalunya on Industrial Waste, F. Relea and
       C. Martin	                                 ^2/
7.     Specific Details  Regarding Hazardous Waste Transport and Disposal, L Mara   	  145
8.     The Role of Interpol in Environmental Enforcement, S. Klem	  149


Theme #7: Public Disclosure and Citizens' Role in Enforcement
       Moderator: P. Keough

7.     Citizens'  Role of Enforcement of Environmental Law in Europe, M. Fuhr	  151
8.     Public Disclosure and Its Impact on  Compliance, N. Blackburn	  159
9.     Public Disclosure and Citizens' Role in Enforcement, E. Popov	  163
10.     Enforcement of EEC Environmental  Legislation: the Role of  Citizens and Citizens'
       Groups, E. Klatte	             169
11.    The Role of the  Russian Public in Environmental Enforcement,  M. Brinchuk  	  197
12.    The New Ecological Legislation of Russia, R. Bogolepov  	        199

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
SUMMARIES OF THEME DISCUSSIONS  	201

1.     Context for Enforcement, Summary of Theme #1 Discussion, F. Uijting	201
2.     Designing Enforceable Environmental Requirements, Summary of Theme #2 Discussion,
      M. Mulkey  	207
3.     Developing an Effective Compliance Monitoring Capability (e.g. Inspection Capability),
      Summary of Theme #3 Discussion, M. ten Hove 	213
4.     Developing Authorities and Legal Enforcement Capabilities to Respond to Violations,
      Summary of Theme #4 Discussion, A. DeLong	217
5.     Economic Development and Ownership Issues, Summary of Theme #5 Discussion,
      G. Bandi 	221
6.     Applications to a Particular Environmental Problem: Solid and Hazardous Waste, Summary
      of Theme #6 Discussion, F. Uijting   	227
7.     Public Disclosure and Citizens' role in Enforcement, Summary of Theme  #7 Discussion,
      A. DeLong	231


CLOSING REMARKS	235

CONFERENCE EVALUATION	247

LIST OF PARTICIPANTS  	255

MEMBERS OF THE EXECUTIVE PLANNING COMMITTEE	269

ACKNOWLEDGEMENTS  	271

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
      PREFACE

      These Proceedings, Volume II, contain additional materials developed following the second
International Conference on Environmental Enforcement held September 22-25, 1992 in
Budapest, Hungary. Volume II of the  Conference Proceedings contains papers that were not
available at the time Volume I  was printed. In addition, the full text of the opening and closing
speeches, summaries of the discussions on the Conference themes, results of the participant
evaluations and a list of all actual participants. Volume I of these Proceedings contains papers
presented at the  Conference by speakers, panelists and participants and was distributed during
the Conference.  Both Volumes of the Proceedings will be widely disseminated to country
environmental officials and NGO's throughout the world.

      The Budapest Conference is part of an ongoing effort to  develop effective approaches in
different settings to achieve widespread compliance with our very important environmental
program requirements. Speakers  with substantial experience in  different aspects of compliance
with and enforcement of environmental laws were  selected.

      On behalf of the Executive Planning  Committee,  we look back on a successful
Conference.
       The Conference Staff
       15 December 1992

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
      CONFERENCE PURPOSE AND GOALS

      The International Conference on Environmental Enforcement held September 22-25, 1992
in Budapest, Hungary responded to the growing recognition of the importance of environmental
concerns both domestically and on a global scale. The heightened interest in environmental
enforcement -- broadly defined as the range of actions governments and others may take to
encourage and compel compliance with environmental requirements - stems from a desire to
ensure that environmental requirements, expressed in policies, laws and permits, lead to real
improvements in environmental quality. Efforts to achieve widespread compliance and
enforcement of requirements also provide an element of fairness to the regulatory process, instill
credibility to government institutions, and prevent short term economic competition among  regions
and between facilities from undermining longer term economic and environmental goals.

      The Conference focused on the development and enhancement of domestic environmental
enforcement approaches1  in Central and East European countries. The public and governmental
leaders  in these countries have strongly expressed the  need for economic growth in harmony with
concerns for public health and a quality environment. As the exchange should be broadly useful
to other nations, representatives from other regions around the globe were also participating in
the Conference. Planning  of the Conference was guided by an Executive Planning Committee.
The Committee included the three sponsors as well  as  the Environmental Ministries of Poland,
the Czech and Slovak Federal Republic, and Hungary,  the Regional Environmental Center in
Budapest, the United Nations Environment Programme IE/PAC, and Hungary's Public Prosecutor.

       Sharing experiences and strategies among nations for developing sound  domestic
compliance and enforcement approaches has already proven valuable as attested by  responses
to the first International Enforcement Workshop held  in  Utrecht, the  Netherlands, in May 1990.
Despite differences in culture and legal systems, the experience of participants at both the 1990
Workshop and the 1992 Conference has been that environmental enforcement theory and
practice has basic elements which seem to transcend these differences among nations and
peoples. It is not only possible but essential that nations seek to learn from  each other what
works and does not work  to achieve widespread compliance with environmental requirements in
different settings.  Gaining compliance is an evolutionary process, and no nation  has developed an
approach which cannot benefit from continuing  improvement. The Conference explored different
approaches, sharing experiences within a general framework, but did  not promote any single
model for achieving compliance with environmental requirements. Conference participants
considered the least resource-intensive approaches to achieving compliance success  and
explored integrated  as well as single program focused compliance and enforcement activities.
              1 Consideration of issues related to enforcement of requirements and agreements
          that are global and transboundary in nature will be limited to a discussion of
          commitments of individual countries as they are adopted as domestic laws or
          requirements.

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10                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
      The structure and content of the Conference was designed to provide a pragmatic
exchange with open appraisals of advantages and disadvantages of different approaches,
opportunities for practical follow-up and ongoing resource materials for those interested in
enhancing environmental compliance and enforcement. The Conference seeked to build
institutional relationships to establish responsibility, provide opportunities for leadership, and
support  networks of experts among governmental, public, and private entities necessary to
effectively achieve environmental compliance. The Conference served policy-makers from both
within government and outside of government. Within government, the Conference had
representation from national, regional and local governmental units, as appropriate to
environmental  enforcement and implementation responsibilities in each country, as well as current
and potential leaders in both legal and technical aspects of environmental programs at the mid to
senior management levels. It also involved selected non-governmental organizations (NGO's) and
industry representatives.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              11
      CONFERENCE THEMES

      The Conference addressed the following themes over a four day period:

      Theme #1:   Context for Enforcement.

      An introduction  to the importance of compliance and enforcement concerns, a general
framework for designing effective environmental compliance and enforcement approaches and
alternative approaches within that framework including designing enforceable requirements,
setting priorities, compliance promotion, compliance monitoring, enforcement response to
violations, establishing clear roles and responsibilities, and evaluation of and accountability for
success.

      Also addressed were the implications of membership in the European Economic
Community and community of nations for environmental compliance and enforcement and the
current status of enforcement in Central and Eastern Europe.

      Theme #2:   Designing Enforceable Environmental Requirements.

       An assessment of the importance of ensuring the enforceability of environmental laws  and
requirements as they are developed with examples of problems that have been encountered
because of poorly designed requirements,  and alternative approaches to enhance the likelihood
that requirements will be enforceable when established.

       Theme #3:   Developing an Effective Compliance Monitoring Capability (e.g. Inspection
                   Capability).

       An exploration of different organizational approaches and strategies for monitoring
compliance, focusing on inspection capabilities, including whether and how to develop an
inspectorate and whether to inspect on a single or multi-program basis.

       Theme #4:    Developing Authorities and Legal Enforcement Capabilities to Respond  to
                    Violations.

       An exploration  of different authorities and approaches to legal enforcement within different
legal settings and what is necessary to employ and develop those authorities effectively.

       Theme #5:    Economic Development and Ownership Issues.

       An exploration  of the economics and realities of enforcement in three settings:
    1) different approaches towards enforcement at government owned and operated
       installations;
    2) approaches to  enforcement when faced with economic hardship, and

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   3)  how to address the new opportunities for enhanced compliance presented by privatization
       of industry and changes in ownership.

       Theme #6:    Applications to a Particular Environmental Problem: Solid and Hazardous
                    Waste.

       An integrating session that combined all elements of the compliance and enforcement
framework, exploring different approaches to compliance and enforcement in different countries
and settings. This theme explored more fully the potential of pollution prevention as a tool to
enhance compliance and as an enforcement response. This  discussion covered the total problem
of controlling waste including controlling domestically, the transport of hazardous waste from other
nations.

       Theme #7:    Public Disclosure and Citizens' Role in  Enforcement.

       An  exploration of the role of public disclosure, citizens and others in the enforcement
process and their implications for achieving more widespread compliance.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              13
      OPENING SPEECHES
MR. SANDOR K. KERESZTES, Minister of Environment and Regional Policy, Hungary
Ladies and Gentlemen,

       It is my special honor to welcome you on behalf of the Hungarian  Government  to this
Conference aimed at a useful  and important exchange of views on environmental enforcement.
The  fact  that governmental and other experts  involved in this  particular matter as well as
representatives of industry, NGO's, international organizations and other institutions are attending
from about 30 countries of the  world clearly demonstrates that in our changing  life environmental
protection is given a high priority.

       This Conference will usefully  contribute  to  the efforts  of the developed  countries  in
assisting others, especially those of the Central  and East European Region, as a  result of the
professional and financial support given generously  by the US and the Dutch Government and
the  Commission  of  the  European Communities. All  important implications  of  environmental
enforcement will be discussed here, in  an open, fair and hopefully fruitful manner.

       As for my country, the  traditional Hungarian  law  and the  various recent debates on  a
renewal of environmental law does show certain  contradictions.  Public hearings for example, as
important tools of legal practice are  not in use  in  the Hungarian law in general  and even  in
environmental protection fields they have been practised to a relatively limited extent in the case
of ElA's.  The latter should however significantly be  broadened  thereby fulfilling our obligations
undertaken by having signed various international  conventions.

       I would also emphasize that Hungary is to adopt and enact the relevant  Directives and
other environmental provisions  of the  European Communities within the next few years.  This is
our main direction in environmental legislation whilst we remain open to any useful information on
the legal and administrative practice followed in other countries.

       We are recently preparing a  new Act on the protection  of the environment  hopefully
coming into force in 1993. That Act will be based on the concept of prevention and the principles
of sustainable  development. Its drafting  has been assisted by  a  detailed  proposal of scientific
value prepared by an independent team  of the Central European University, Budapest. We also
have been and are taking into account the opinion  of the local government and NGO's and
groups concerned about the environment when drafting the Act.

       It is clearly reflected in  that draft Act that the establishment and operation of a  market
economy is only possible in a manner not failing to improve  the state of the  environment as well.

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This is in harmony with the Hungarian Constitution in which the rights for a health of highest level
and for a healthy environment have been stipulated as well as the assertion of those rights.

       All these are meant as state  obligations and preferences  to be realized by integrating
environmental priorities in the tax,  credit, price and customs  system as well as by improving our
capabilities  to  monitor environmental compliance  and by further  developing  our related  insti-
tutions.

Ladies and gentlemen,

       Having a look at  the  recently  existing  Hungarian law, theoretically enforceable environ-
mental requirements in themselves do not seem to be enough to achieve compliance. The  social
and economic interests in the period of the previous political  regime did not prefer environmental
protection and the recent desires to achieve a better living standard in a new, market economy
have been appearing as a strong  one that again does not show a preference towards environ-
mental interests.

       On the other hand, the enforcement of environmental  interests has not become a juridical
practice under the Hungarian Civil Code although various legal instruments still  in force on the
protection of the environment would provide such a possibility.

       The same can be mentioned in relation to environmental enforcement under the Criminal
Code where the uncertainties concerning responsibility for  compensation and damage can be
regarded as the main sources of failures.

       Consequently,  administrative tools have been used  in a vast majority of cases  where
environmental pollution appears as a problem to be settled.  This will hopefully undergo changes
as a result of the transition process for two basic reasons. First, according to the  new law on the
local governments those bodies have the responsibility  for  the  protection of the built and the
natural environment as well. Statutory  responsibility of the local authorities that were operating in
the previous regime almost completely under a central conduct has significantly  been changed:
although  two-thirds of the 130 kinds of  first  instance sphere  of  authority has remained with
authorities  of central subordination, one-third have relied upon  the local governments. Second,
since the reconsideration  of the  administrative decisions will  be  made  in the future not by
authorities of higher level but in a judicial way it can be predicted that the environment approach
will be much stronger in the judiciary practice and  as a  result  of  that the  positions of environ-
mental protection will also become stronger in the hierarchy of social interests. A  responsibility of
the State however  in environmental matters has to be given first priority. A legal framework of the
tasks should  be established by the  State  in  a way  integrating environmental concerns  in
economic  and social planning and  decision-making at all  levels. To that  end the  new Hungarian
environmental protection  Act  will not only place  an  emphasis on environmental  impact assess-
ment  as  a  tool of prevention, but also, my  Government  does  and will  create as  favorable
conditions as possible for investments  that can contribute to an economic growth and an improve-
ment of the  environment as well. I presume, all these are  and will be in harmony with the various
deliberations on this Conference.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                               15
      I  am  especially  pleased  to see that also citizens'  role and public disclosure are on the
agenda since in this respect we  have taken the initial steps by now. Another similarly crucial point
is privatization and its environmental implications, a well-known problem. I am convinced that this
Conference can help the countries in transition in such respects also.

Ladies and Gentlemen,

      With these ideas in mind I welcome again the sponsors, participants and organizers of this
important Conference and allow me to wish you a fruitful, really successful work.

Thank you.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              17
MR. GABOR DEMSZKY, Mayor of the City of Budapest
Ladies and gentlemen,

       I would like to welcome the participants of the Conference. As Mayor of Budapest it is a
great pleasure to me that our city is the host of such an internationally renowned event, especially
if the  topic of discussion  bears  as  crucial  significance to all  of us  as in  the case of this
Conference.

       Environmental protection is not only an  issue of utmost  importance, it is a  field where
problem solving depends on an ongoing international exchange of information and the provision
of assistance.

       The democratic reforms  in Central-Eastern Europe  changed the political map of Europe
with unexpected speed. The restructuring of the economic systems in the countries of the region
has also begun, resulting in large-scale openness towards Western markets. While the socialist
economy  was worshipping quantitative  data  on production, no  expected  quality of  life was a
principal. The present half-way-house to a true market economy is dominated by certain attributes
of infant capitalism together with  certain left - overs of the communist hangover. Neither one is
sensitive  to environmental hazards. While in Western  countries environmentalists  have been
taking a stand for  decades now, in Eastern Europe environmental protection were dispersed and
not able to foster environment prone thinking because of the general anti-democratic nature of the
state and  communism busy preventing the consolidation of a civil society. Therefore, environ-
mental protection movements have yet to be organized at a national level to achieve their goals.
With a relatively weak environmentalist movement and government officials inexperienced in the
field  there is always danger that Western  investments bring technologies to the area that are
extremely destructive to the environment, even though it is a basic human right of the  residents to
live in a healthy, clean environment.

       It is our wish and common interest that the development of the former Socialist countries
bring with  it change for the better in environmental conditions. This requires strict legal measures
for the protection  of  the environment and the consistent enforcement of regulations on local,
national and international levels at well. As phrased by the Congress on Environmental Protection
in  Rio, cities and  local governments  must play a key role  in most urgent problems  of environ-
mental protection.  This is especially true because cities have access to accurate information. This
is where the needs of society for  economic development and a cleaner environment are felt. This
level has the means to solve problems closest to where they arise and when they arise with  the
cooperation of society.

       This problem solving process  using a prevention-oriented approach is  a  part of the  so-
called Third Generation of Local Environmental Management,  under which both  natural  and
 human conditions  and  processes are understood, planned and managed in an integrated way.

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       In the third generation  approach decisions would  factor the  carrying capacities of the
 ecosystem to prevent severe damage that  may cause a break down in the system. The efficient
 use of  resources would be supported and  the methods of recycling the waste by-products of the
 system would be developed. A  flexible and  more  adaptable  infrastructure  is required that  is
 designed to reduce resource demands and  to develop recycling.

       The democratically elected Municipality  of Budapest will be celebrating its second birthday
 in the next few days. By now the legal framework of  our operation is more or less structured and
 we became aware of our obligations. We now also  have some  experience about the difficulties
 caused by  the  unreasonable distribution of competencies  and responsibilities  in  dealing with
 environmental problems. Please allow me  to  say a few words  about the special situation and
 difficulties of Budapest.

       At the  turn of the century Budapest  was one  of the  most dynamically developing cities of
 the continent. Today the city is impoverished and run down, we  must face problems that should
 have been dealt with decades ago. Still now we have to  set down  our priorities and  ways to
 protect our environment.

       The condition of Budapest's  environment is now nearing a critical stage in spite  of some
 recent developments in certain areas.  Air and noise pollution in the city has reached unprece-
 dented  figures.  The dumping of  communal waste after  1995 is unresolved. The protection of
 existing and  potential green areas  is a daily  struggle as  housing construction, investment and
 enterprises try to  expand over the  still untouched areas. In the inside districts the aged public
 utility works are  nearly incapable of serving  rising demands, these districts concentrate one-fifth of
 the city's population and one-fourth  of the industry.  Intra-Hungarian and trans-European transit
 traffic crosses the center of the city of  Budapest and the transportation network of the  entire
 country causes large-scale pollution  in the capital city.

       In principal it is  only natural that  all members of healthy democratic society  should feel
 responsible for their environment. In such an ideal situation all people  would  force themselves to
 refrain from damaging the environment. Unfortunately, this is only an ideal. Modern society  itself
 performs certain activities that by nature cause ham to the environment.  On the  other hand
 environmental awareness is not at a high enough level. Developing an awareness is a process
 that will take may generations to complete, using all powers and resources of education. The role
 of self-organizing social  movements  is quite significant in that the actions of their volunteers draw
 attention to environmental problems and thus aid the development of a so-called eco-morality.

      An important question in Central-Eastern  Europe today is building civil initiatives into the
formal power structure  in a way so that they retain their independence and active capabilities in
spite of the  centralizing efforts of the ruling powers.  The  large-scale independence of Budapest
district governments is aimed at raising the  level  of autonomy - which is a laudable goal from the
point  of  view of democracy. This independence, however, is  that which  hinders the healthy
working mechanisms of the  capital city. There are always  certain responsibilities in the  life of  a
metropolis where the decentralization of authorities impedes the normal operation of the city.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                               19
      The municipal system of Budapest is a two-level system. The relationship between the city
and the individual  districts  is such that  Municipality of Budapest is only considered the "twenty-
third local government" of  the city.  Most of  the  environmental problems in the  city cannot be
solved at the district  level, at the  same  time the  municipality does not  have  the necessary
authority.  This two-level  municipal system creates a special situation,  neither the districts with
their shrinking range of authority nor  the city with her non-existent authority are able to develop or
protect a  healthy,  human environment.  At the same time the central  government organs do not
have access to the specifications necessary to assume responsibility in this field.

       The city of  Budapest has plenty  of duties in order to create a healthy environment for the
citizens but law  does not provide all authorities promised enabling the  Municipality to serve the
demands  of the  city. The laws on local  governments proclaimed has the protection of the built-in
and natural environment is the responsibility of the  Municipality of Budapest,  delegating by the
same taken the authority necessary to do the job to the districts.

       The  environment  inspectorates operated by the central government and the definition of
the local  governments' rights  was aimed at  regulating activities threatening local environmental
protection. Although the  district local governments have the right  to define higher air cleanness
and noise reduction standards in the protected  areas they do not have  the  power to enforce
these. Local governments  may only take action  in the case of service-originated environmental
damage,  even though it is clear that the population suffers mostly not from these, but from the
damage resulting of transportation  and industrial activities, for which  the central government
organs are responsible.

       The  protection  of green areas which do much to improve  the quality of life in the city is
also divided. The  municipality has authority over larger parks, avenues  and cemeteries while the
districts  have  authority  over  other parks and  public  squares.  Green areas  with  significant
conditioning effect,  however  are not regulated by local  authorities as these  are registered as
national defence  areas  or are connected to transportation areas. The situation is  made even
worse by the fact that licences for establishments on larger green areas and public squares are
given by the local authorities in the area and the Municipality has no say in the  matter. In addition
to this limited budget  of the districts makes it necessary that the  districts try to finance develop-
ment by  "selling"  existing  and potential green areas. The most "fashionable" trade agreement is
that the investor promises development in exchange for the chosen  green area that the  district
would be unable to accomplish (such as parking garages).

       Protection  against rodents is  also a district responsibility even  though this would require  a
 city-wide coordinated  efforts  as any actions on  the  part of individual districts at different times
would be ineffective.

       The municipality  has no say  in  the licensing of construction that may cause  problems in
 the entire city's environment, this is the  authority  of the  district. In an industrial area even  a
 nuclear reactor  can be built upon the district's decision. At the same  time investments that would
 serve the whole  city  might be torpedoed or impeded by the  district, such as construction of  a
 waste-burning plant, waste-water cleaning works or new waste-holding areas.

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20                               INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       The city is in  no better position with the  possibility of planning and preventive environ-
mental protection. The general settlement plan of the city is approved by the Municipal Congress
while the detailed plan  by  the  district representative  bodies.  In principal the detailed  plan  is
developed  from the  general one but in actuality there are many differences. The districts, as
individual local governments may work out their own plans according to their own conception  of
the district.

       The setting-up of enterprises or firms is licensed by the districts or the inspectorates and it
may happen that the  possible environmental damage is caused in another district, in which case
the Municipality has no way  to take action,  having no second-degree  authority to revise decisions
of the district or the inspectorates.

       The problems  listed illustrate the difficulties the  local governments face when taking care
of responsibilities described  by law, which cause friction between the  municipal governments and
the central  government organs. It is the duty of state government to  describe the  responsibilities
of the municipal  system  and to provide the conditions of operation.  It  is  our  hope that the
environmental  protection law no being prepared will clarify the duties  of the  local government,
give special authority to the  Municipality of Budapest and give the local governments a change to
ensure a healthy human environment for the inhabitants of Budapest.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              21
MR. HANS ALDERS, Minister for Housing, Physical Planning and Environment, the Netherlands
Ladies and Gentlemen,

       First of all,  I want to thank the Hungarian minister for the Environment for hosting this
Conference. He and his staff did a great job in making it possible to organize this important event.

       It is a great pleasure and honor for me, as the Netherlands Minister for the Environment
and  one  of  the three co-organizers, to welcome  all  of  you   to this  Second International
Enforcement  Conference. The first one took place in  May 1990 in the Netherlands, and it is my
belief that it  was a great  success.  I hope and believe that  Budapest 1992 will be  even more
successful.

       Environmental  policy in  the nineteen-eighties got a higher  priority in most countries.
Especially in the  United  States and the Netherlands,  and  now  also  within  the European
Community. Last weekend the EEC-ministers for the Environment met in Glasgow, Scotland, and
Enforcement was  one of the themes that  were dealt with. In  the Netherlands enforcement
became a real  theme with the implementation  of  the  National  Environmental Policy Plan in
1989/1990.

       We are  all together here  because  we  think  enforcement is important,  it  even is
indispensable for a good environmental policy. But why is enforcement that important? Because
the quality of the environment as a whole depends substantially upon an effective enforcement-
policy. Uneven implementation of the environmental policy undermines the credibility of legislation
and  of  government,  and  adversely  affects the   environmental  situation.  Compliance  and
enforcement need to  be taken into  account in the earliest possible stage of the development of
environmental legislation. That is what we are working for in the Netherlands and, as I hope, soon
also in the EEC.

       Let me tell you something about the  enforcement policy in the Netherlands. You will get
more detailed information from Mrs. Bierman tomorrow, but let me show you the headlines.
 Enforcement in the Netherlands is not only implemented  by the central  government,  but also by
provincial and local governments. We have various instruments to implement and carry out the
 policy plans. Information, taxes and  levies, subsidies,  legislation and other regulations.
 But regulation by  itself  is  not  enough.  If  they  are not complied with,  all  the  government's
 conservation efforts are in vain.  Environmental policy and regulations would be paper tigers, the
 governments environmental policy  will lose  its credibility and,  worst of  all,  the  environmental
 pollution will absolutely not diminish. It is therefore essential that the government, at all levels, will
 monitor compliance  and,  where   necessary, take  timely  and   appropriate  steps  to  enforce
 environmental regulations.

       Who  in the Netherlands have enforcements jobs? In the first place, the police  (local forces
 and general  police branches) do a competent job of detecting environmental violations. The public

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 22                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 Prosecutor is the exclusive authority to  bring these  cases to court. On the other hand, the
 administrative authorities are responsible  for compliance monitoring and administrative and' civil
 enforcement.  In the  Netherlands, this authority is not only responsible for monitoring, but is also
 entitled to enforce that law.  The municipalities are responsible for the enforcement of nearly all of
 the 400.000 business in the country. The provinces deal with  about 3.000 biq plants  includina
 landfills.                                                                 » r    -         a

       We stimulate close and structural cooperation among the municipalities and the provinces.
 To realise this, we are building an enforcement structure with all participants, that has been laid
 down in a letter to Parliament. Main features are:
 -   all participants marching  together;
 -   realizing an integrated, multi-media approach;
 -   administration and police/Public Prosecutors marching together, not two separate circuits;
    municipal cooperatives.

       Information and sharing  the  know-how play an important role in the enforcement area in
 the Netherlands. They have  proven to produce results, it really works! If you want to be convinced
 of that,  please have a look at our stands in these conference rooms.

       Enforcement not only is a matter of national interest. On the contrary, most enforcement
 problems  we have in the Netherlands are  caused by the fact that there are so many differences
 between the environmental  policies in the European countries.  Enforcement of  waste transports
 for example is only possible if we have one  definition of waste. At this  moment, real waste still
 can be defined as "Wirtschaftsgut".

       For this reason, we  in the Netherlands, not  only the Environmental Inspectorate of my
 Ministry, but also other enforcement agencies, have a lot of contacts with similar organisations in
 other countries.  In this way we  want to  stimulate an  international cooperation in the field of
 enforcement. These  contacts are growing now that more and  more statutes are adopted  about
 internationally marketing substances, the  international transports of waste etc. All  these statutes
 have to be enforced! Contacts are increasing between  neighboring countries, but also within the
 EEC and with some Central- and Eastern European countries, the United  States, Interpol etc.

      Within the framework of the European Community, the Netherlands' government stimulates
 the attention  of the  European  Community  members  for giving  higher priority to compliance
 monitoring and enforcement. In  the EEC-Environmental Council Meeting of last December,  the
 need  for  further  development  of  compliance  and enforcement  was  stressed.  The Council
 acknowledged the need for  enforceability of  environmental legislation.  It  agreed that it would be
desirable  as a first step to establish a network of representatives  of national authorities and  the
 EEC commission in the field of enforcement. In  1992 the establishment  of such a network has
been started.

      Enforcement is also one of the themes in the Memorandum of Understanding, we have
with  different Central  and eastern  European  countries.  The  development  of  integrated
environmental control has priority for most  of these countries and support from the Netherlands is
often requested.  We therefore decided that one of the criteria for environmental  cooperation with

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              23
these countries  is  the  strengthening of the environmental management  activities, including
enforcement.

      International enforcement is  important for the  Netherlands, not only because we have so
many contacts  and our country  is so vulnerable for global environmental  pollution. It is also
important  because the acceptance of environmental regulations for both the citizens and the
companies will be higher when they know they will be in every country regulated and enforced in
the same  way. And it will also mean  that trade distortions between countries can be prevented,
for every plant or business the same rules are applying. Many kinds of pollution can only be dealt
with if we have international cooperation in the  field of environment,  I  already mentioned the
waste transports.

      And last but not  least, international cooperation is very  useful  because we can all learn
from each other. We can exchange experiences and knowledge. This conference's goal is not to
produce an enforcement blue print for all countries involved. It's goal to identify some principles
every participating country or organization agrees with.

      We had a good conference in  Rio de Janeiro  about the relation between environment and
development, about sustainable development. But now, we have to put these results in practice.
In my view, this cannot  only mean new  ideas,  it  will also mean good  enforcement of everything
we have  to do. We  need  a good and strong  enforcement structure  if we want to make  the
UNCED conference a real success. Therefore, we need good agreements, identical principles.

Ladies and gentlemen,

       I hope this Conference will have that result. We paved the way two years ago in  the
Netherlands. Budapest will  give us the possibility to further that work.  Undoubtedly, many ideas
will be presented these days. It is my hope that the good ones will be really put into practice. The
Netherlands will go on,  by  taking initiatives.  But we do not want to lose the contacts with all of
you. We will give you the support you need,  and help you where ever it is possible.  I wish you a
very successful Conference and a good time  in this beautiful city of Budapest.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              25
MR.  HERBERT  H.  TATE  Jr,    Assistant  Administrator for  Enforcement,  United  States
Environmental Protection Agency
Good Morning Ladies and Gentlemen, Mr. Chairman.
Thank you for your gracious Introduction.

       I would  like  to offer a  special note of appreciation to Minister Keresztes and  to Mayor
Demszky for their warm  and gracious hospitality.  I would also like to thank my fellow sponsors
Minister Alders and  Mr. Brinkhorst,  represented today by Mr. Beck. I want to reserve  particular
thanks to my co-chair from the Netherlands,  Pieter Verkerk. Pieter as co-chair for the first two
International  Enforcement Conferences epitomizes his  country's  long tradition  of environmental
leadership.

       Today we have come together at this Second International Conference on Environmental
Enforcement to continue the work begun  two  years ago in Utrecht, the Netherlands. Despite the
diversity of  our national origins, we have  come  together with one common  resolve:  a shared
commitment  to establishing environmental protection and the recognition of  the importance  of
enforcement towards that commitment. Understanding  the growing convergence of international
trade with environmental protection has presented  us with a significant opportunity for bridging the
divide between economic development  and environmental values. In   1992,  there  were two
particular international agreements which  underscore this point. Through Agenda 21  of the United
Nations's Conference in the Environment and Development held in Rio, this past June, the  world
community recognized the importance of developing compliance and enforcement programs with
environmental  program  implementation and institution building.  Second, the North American Free
Trade Agreement (NAFTA), called by Administrator William Reilly "the greenest Trade Agreement
ever ...", explicitly  called for economic  development  to  take  place   in an environmentally
sustainable manner recognizing that enforcement  of environmental laws  and regulations was the
guarantor for this development.

       Strong  enforcement while  deterring  non-compliant behavior also  has  the   effect  of
 encouraging active management  for environmental protection.  Our  experience  in the  United
 States is illustrative of this point. President Bush at the beginning of his Administration in 1989
 promised to make  "polluters pay ..." and pay they have. The President's enforcement program
 has achieved in the areas of penalties, criminal case referrals and successful prosecutions more
 than all the other previous Administrations combined in the preceding 18 years. In the  past three
 years alone, under the direction of Administrator Reilly, EPA has  collected more civil and criminal
 fines  and penalties, an  amount  exceeding  $200 million dollars, than the  Agency  had ever
 collected in the past eighteen years. This past year alone we anticipate  an additional 100  million
 in civil and criminal fines and penalties to be issued against environmental polluters. Also, EPA,
 along with  the Department of Justice, in the  past three years has referred  and successfully
 prosecuted over 50% of all criminal  cases ever prosecuted in the Agency's entire 21 year history,
 with a significant number of  individual offenders, including  company  presidents and  other high
 level corporate officials, receiving jail sentences.

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        In addition to criminal prosecutions, fines and penalties, enforcement has been used to
 require industry to correct its own non-compliance through enforcement settlements. Preliminary
 reports for this past year alone indicate that regulated industries in the United States have spent
 or will  spend over 200 million dollars to correct environmental violations or engage in pollution
 prevention projects as a direct result of enforcement settlements.

        Finally, in the area of cleaning up  old and  long-standing hazardous waste  sites  EPA's
 "enforcement first"  program, under the Superfund  Hazardous Waste Cleanup  Statute  has
 recovered from private companies and individuals over $1  billion dollars per year, for each of the
 past  four years  to  clean up old long-standing hazardous waste  sites which  are now being
 completed at the rate of one site per week.

       The result of this aggressive and vigorous enforcement program is industry's recognition of
 the great potential economic  liability as well as individual personal liability for poor environmental
 practices. These direct costs resulting from civil or criminal penalties, the  costs necessary to
 remediate a site  or  a plant or facility,  as well as the indirect  costs associated  with lengthy
 litigation, all are causing industries to develop new and improved ways to manage their methods
 of  operation  and  handling  their  waste.  Industry is  becoming  "encouraged" toward  active
 management  for  environmental  protection  and waste minimization. The  concept that "good
 business" and "good environment" are compatible  is  beginning to take hold with our business
 community.  Although in the  past our program  of  enforcement was strictly a  "Command and
 Control" regulatory-deterrent  approach, we are  now  moving  toward an approach of comple-
 menting our enforcement  program with more market-based incentives and voluntary approaches
 to  provide industry  with  incentives  to go  beyond  mere  compliance so they  may engage in
 pollution prevention and waste minimization programs to a greater degree. These approaches are
 finding acceptance with industry without compromising  our vigorous  enforcement efforts. But we
 must  remember that incentives are not meaningful incentives without deterrence through effective
 enforcement.

      Given the current worldwide decline in many country's economies, the challenge facing all
 nations  is striking an  effective balance between deterrence and incentives in their environmental
 protection programs. Our goal should be  to develop a strategy which clearly will "make polluters
 pay" but one that will also reward good corporate citizenship and enlist the substantial  resources
 of private industry to help leverage the  staggering  costs  associated  with providing meaningful
 environmental protection.

      There is no single ideal enforcement mode.  Rather, enforcement will  generally reflect the
economic  conditions  and culture of a society. Indeed, environmental enforcement may pose
unique challenges for nations which  are in  the process of  transforming their economic systems.
Whatever the specific circumstances, enforcement will be an essential component.

      I  think  you  will find that the themes we have struck for continuing to improve the  U S
program have applicability to countries both which  are developing  environmental  enforcement
programs as well as for those  countries with mature programs.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              27
      Nations with limited financial and technological resources will discover that the adoption of
clearer and more "enforceable" regulations and permits  will reduce enforcement  costs and
increase their effectiveness toward regulation. Investigatory techniques such as strategic targeting
through inspections and enforcement response as well as multi-media approaches to enforcement
will  help  countries  to  leverage  limited  environmental  resources  for  maximum,   efficient
environmental  results, risk reduction and deterrence. Creative enforcement settlements calling for
corrective technology changes, cleanup and remedial action, or pollution prevention and reduction
projects can reach beyond the deterrence created by fines  and penalties to  require industry and
companies to invest in sustainable development for their nation's future.

      The  U.S.  is committed  to  sharing  our  own experiences, and  also to  respecting and
exploring the many approaches each nation may take to  achieve compliance. During the next
several  days, we will  mutually work  to  develop  effective environmental enforcement and
environmental  assessment capabilities, and in the process, to improve our own programs.

      We have a lot to do ... now let's get to work.

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28                           INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             29
MR. LAURENS JAN BRINKHORST, Director General for Environment, Nuclear Safety and Civil
Protection, Commission of the European Communities

This speech was presented by Mr. Hans Beck, EEC-representative in Budapest
Mr. Chairman, Ministers, ladies and gentlemen,

       It is an honour and a pleasure for me to conclude the list of distinguished speakers and
welcome you to this conference. You might imagine that the last weeks have not been easy and
smooth for EEC institutions and for their political agents.
       Therefore,  we  from  the EEC  Commission are  all  glad on the outcome of France's
referendum which hopefully will bring the EEC closer to European union and  allow us to set up
systems on this European  continent  which are  adapted to the political,  economic  and social
constraints of the  21st  century. The  European economic community has  successfully started,
some  35 years ago, to replace national egotism by constructive, progressive  cooperation and
integration. This undertaking has never limited itself to free trade and  economic joint venture.
From its beginnings, it rather tried to  go beyond nationalism and create a  community of states,
regions and citizens. The success which the EEC had, made other states apply for membership
doubling the number  of member states. Among  the  new members were  not  only prosperous
countries; as regards some of them the EEC was told that they would soon become  communist
and should therefore better be kept outside than integrated. As you know, the  EEC did not follow
that advice. Today all signals indicate that their integration is on a good way.

       Since the EEC is more than a free trade area it does not satisfy itself with the promotion of
 economic  objectives.  One  of the areas, where the EEC has  been active  and which do  not
 concern free trade, has been the environment, where policy was developed during the last 20
 years. The EEC and all its member states reached the conclusion that environmental measures
 were necessary at community level in order to protect, preserve and improve the quality of the
 environment,  and  while in  the beginning of the EEC environmental  policy implementation and
 enforcement were left almost entirely to member states, it soon  turned and that compliance with
 community environmental standards required EEC monitoring.
       This  explains  why  the EEC  Commission decided  to actively  support this  present
 conference. We firmly believe that environmental  rules need adequate enforcement. We  firmly
 believe that  an economic community which is on its way towards a  more political union needs
 environmental standards to make economic growth sustainable.  We firmly believe that where the
 EEC enters into economic  relation with other states, care must be taken that economic activities
 do not destroy or adversely affect the environment in these states.

        A French poet, La Fontaine, told us some time ago that a hungry stomach has no ears. If
 we look around, we often find that individuals, economic agents  or even governments sometimes
 believe  that  economic  development  should rank first  and  that  one  should forget  about
 environmental standards and their enforcement.  Until a decent economic development has been
 reached, the EEC commission is  not of this opinion.  It has  just suggested a fifth environmental

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30                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
action programme which makes the integration of environmental requirements into other policies
a top priority for the years to come. The commission, indeed, is of the opinion that sustainable
economic growth may only be reached by such an integration of environmental  requirements into
economic considerations. And the difficult state of the environment in parts of central and eastern
Europe is less due to the fact that there were no environmental rules and standards, but rather to
insufficient integration into economic requirements and to insufficient enforcement.

      I hope that this conference promotes mutual understanding, leads to better enforcement of
environmental rules and thus to a better state of the environment. Good luck to all participants.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              31


UPGRADING ENVIRONMENTAL LAWS IN FRANCE ACCORDING TO THE REQUIREMENTS
OF THE EEC

P. KROMAREK

Director of Environment, Elf Aquitaine, Tour Elf Cedex 45, 92078 Paris, France


1.    INTRODUCTION

      The  EC  directives set forth obligations to the  member States to  be met through their
governments. These governments must enact regulations for their citizens in order to provide, for
example, the protection  of bird  species  within a designated area, or to  guarantee that waste
disposal will not cause harm  to the environment,  or  to ensure that waste producers will observe
the applicable environmental  requirements. Governments must also establish  mandatory limits on
maximum  concentrations of  pollutants  emitted into the water or the air.  They must  appoint
qualified  authorities to  oversee  the practical application of the rules.  They  must establish
administrative procedures, measurements, analysis methods, etc...

      The  enforcement  of EC measures takes place through German, English, French, Dutch
and the other countries' regulations. These national regulations must be followed by the people to
whom they  apply. The means of enforcement are therefore different from country to country, with
some similar characteristics.


2      EFFECT OF EC LEGISLATION ON NATIONAL REGULATIONS

       From a legal point  of view,  it is  quite obvious that EC legislation  has  had  an important
effect on national regulations:

1.     When no national legislation  is applicable - when  an EC directive regulates an issue which
       is not regulated internally by  a member State - the relevant regulations must be created. In
       France, for example,  it was necessary to establish rules  about the  prevention  of major
       industrial accidents  in order to implement the strict EC directive on accident prevention.
       Also many countries such as Greece, Spain, Portugal, and even Germany and Britain had
       to establish a procedure for environmental  impact statements.
       When a directive is  passed and member States already have relevant  legislation, the case
       is more complicated. It has been  pointed out  several times that it is much more difficult to
       change existing legislation and practices than to introduce new EC legislation  where no
       national laws have been adopted.

2.     The  implementation of the directive on environmental impact assessments illustrates this
       situation very well.  When  the  EC  decided  to  propose  to the Council a directive on
       environmental impact assessment, France already had  a decree on  this  subject.  The
       French system obviously served as a model for the  community directive. The final version
       of the  directive was adopted in 1985 and  the general  opinion was that it corresponded in
       many ways to the French  regulations. However,  some elements of the directive were not
       fully transcribed  into  the  French decree, such as the  requirement for a trans-border
       consultation when projects submitted to an impact study could have an impact on another
       country.   The requirement of submitting a written non-technical summary of each study
       was not applied in France. Other  small differences appeared after an in-depth examination
       and  comparison of the two regulations.

3.     Another  example of  a problem  with compliance  is the  directive  on free  access to
       environmental information, which  was adopted  in June  1990.  The French law  on  free

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32                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


       access to administrative documents passed in 1977 contains many points which are in line
       with  the requirements of the  EC  directive.  It makes  information  from  government
       authorities - including environmental  information  - available to the public.  But the French
       meaning of  "free access"  to  information  depends on  the nature  of  "administrative
       documents". The Courts and a specific legal body called  the "Commission  of Access to
       Administrative Documents" interpret  the meaning of "documents". If information held by
       government authorities is not  recognized as having  the required  characteristics  of a
       document,  it is  not covered  by the free access  regulation.  On  the other  hand,  the
       directives give  a wide margin  for  the administrative authorities to  refuse  information
       requests on the  grounds of  confidentiality for business reasons. The French meaning of
       confidentiality is  not clearly  defined  and  is often subjected  to  legal interpretation.  This
       ambiguity makes the implementation of the directive uncertain  and difficult.

4.     I would  like to emphasize this problem of wording in the EC  environmental regulations. It
       often causes problems in implementation because the  member states  often do not have
       the corresponding tool -  the appropriate legal institution - or do not know the concepts.
       One of the  more glaring examples is the problem of liability. The concept of responsibility
       varies from state to state. Liability based on fault  is of course established in every country.
       Liability  for risk,  or even objective liability, is recognized in certain states. The proposed
       directive  on  liability related to waste  introduced a concept  of  liability  without fault. Facing
       opposition  from  the  industries,  ranging  from  waste  producers  to  waste-elimination
       industries and insurance companies,  and also responding to objections from the European
       Parliament, the Commission  has established numerous exceptions to this  proposal. Even
       with these exceptions, if the directive were  to be adopted, the  inclusion  of  this form  of
       liability will pose  serious problems to most of the states. One can imagine that the same
       difficulties will arise in applying the directive on liability  for  defective  products, because of
       the differences between liability and substantiating facts.

5.     The same problems  of interpretation occur for the "best  available technologies" (B.A.T.)
       mentioned in several directives but left undefined.  Does the word "available"  include
       economic aspects? Does it refer to specific legal procedures, such as patents? What does
       "best"  mean? In  relation to what is  it evaluated? A  certain consensus has existed  until
       now, but  in fact the interpretation of these concepts varies from state to state.

       Since the B.A.T. is a condition imposed by  the directive on the granting of authorizations, it
       is the  administrations responsible for these  authorizations  which, de facto,  define these
       technologies. There  are many more  examples. Only through  the coordination  among the
       administrations can  there be  a common concept, if  the ministries concerned  do not
       themselves  decide on the  best available technology. But it is  clear that a definition of the
       concept   interferes  with  adaptation  to  technological  progress. If  the  best available
       technologies are defined for each industry,  the companies will  make it their goal to acquire
       these prescribed  technologies and make the best use of them, but they have no incentive
       to seek superior technologies or to use new technologies which might be more efficient.

6.     All these problems of interpretation are difficult to solve especially with 12 states having
       different  legal, technical and  economic practices. However, help  can  be given before the
       legislative process, during the drafting of the  regulations. This point  will be  discussed  in
       later sessions of this  conference. Still, I must  emphasize  now the  importance  of an
       exchange between the Commission officials, especially the General Directorate XI, and the
       economic and industrial parties concerned. Such an  exchange has  already taken  place,
       but - without going into too much detail - it  needs a great deal of improvement. It needs to
       be more extensive and take place on a more regular basis. For example, the problems of
       practical  implementation must be discussed, also the  difficulties of interpretation of terms,
       and thus the legal transposition once the regulations are drafted.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                               33


 7.     Another enforcement difficulty arises when a state  is reluctant to comply  with a  Court
       decision. Some member states like  Belgium have been found guilty twice before they
       obeyed a court decision.  It happened once in France with the directive on bird protection.
       The Court handed down  its  decision in 1988 (Case 252185), but  some  of the corrective
       measures  have not yet been  carried out. The lack of EC policy governing the compliance
       with Court decisions  is obviously an obstacle to the proper execution of these  decisions.
       Only the legal and political  conscience of  the individual governments  compels them to
       comply with the courts and take the  necessary measures. But in some cases, there is a
       psychological effect which must be  mentioned, although it is not an excuse for breaking
       the law. The directive on the protection of  wild birds requires governments to designate
       protected areas for bird habitats and ban certain  activities which can endanger the  life or
       reproduction of the birds. Certain forms of hunting are completely banned. The concept of
       "traditional hunting", meaning an ancestral way of hunting involving only certain  categories
       of birds in specified regions, is not included in the directive. On one of  the  points of
       criticism of the Court, hunters in  France consider that this concept justifies the practice in
       the southern region of capturing certain birds, and that  this type of hunting is so limited
       that it  does  not jeopardize the survival  of the species.  No solution has yet been found for
       this conflict. This  is a good example of how national or regional culture and  mentality play
       a role  in the successful enforcement of  European  Community environmental legislation.

 8.    The environmental legislation of the  European Community has had considerable impact on
       the French legislation on environmental protection, especially from a strictly legal point of
       view.  It is  quite  obvious  in the light of  three recent Court  of  Justice  decisions  in
       Luxembourg.  A  brief summary of the  legal framework  in  France is needed in order to
       understand  the case. Following  the  standard European model, a law is adopted by the
       Parliament. It becomes  more  precisely  defined through  a series  of implementation
       measures taken by the government and the administrative  branch. "Decrees" are passed
       by the government, and "orders" are given by one or several ministries or by a prefect (the
       head of the local or regional government). Both decrees and orders specify  the rights and
       duties of the  citizens or the parties  involved. Memos  are issued by the ministries  or  the
       prefects to advise their administration how to implement  the decrees and orders. They are
       not usually legally binding for third parties.
       In the  matter of  environmental protection,  the main legal  framework  is provided  by five
       major acts concerning:

       (1) Industrial installations which can cause environmental damage, 19 July 1976,
       (2) Water management, 16 December 1964, modified 3 January 1992,
       (3) Prevention and treatment of waste,  15 July 1976, modified 13 July 1992,
       (4) the Nature Protection Act, 16 July 1976  and
        (5) the Chemical  Law,  12 July 1977.

       There are specific decrees for the application of  each of these laws, and memos advising
       the administrative bodies how to apply  them.
        When the air quality directives were adopted, in  1979 for SO2, 1982 for  NOX and 1983 for
        lead   , these  directives  had to  be  transcribed  into  French law. The  Act on industrial
        installations provided the necessary legal and administrative framework to comply with the
        regulations, but  it established no limits for  SO2 or lead  in the  air.  This  oversight was
        perpetuated through the memos. The Commission issued infringement procedures against
        France - as  it  also did against Germany  for the  same  reason - arguing that ministry
        memos are not legally binding and should  not be used. The Court decided in favor of the
        Commission.  The obligation  of member states to set maximum limits of emissions into the
        air "is established in order  to protect the public  health". The directives "aim to define the
        rights and  obligations of individual  citizens". In order to exercise their rights, the  citizens
        must  have knowledge of  them.  "The steps taken on  the national  level must therefore
        create precise, clear and transparent situations".  Since  a ministry memo does not  have a

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                                 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       legally binding  effect, the legal  situation it  creates does  not meet the defined criteria
       (Cases C13/90, C14/90, C64/90,  1 October 1991).
       France  was  therefore made to replace the contested ministry  memos  with  decrees
       Germany faced the same problem after being found guilty on 30 May 1991  (Cases 54/89
       and 361/88).

 9.     So far we  have discussed  cases in which a member state is faced with  EC legislation
       more  strict  than its own  national  legislation. But what about the opposite? Can a member
       state  be forced  to  give up  a high protection level if  the Community  standard is less
       stringent? The EC is a common, single interior market without borders among 12 states
       and  no trade  restriction is admitted.  Therefore,  there  must  not be  any  product
       specifications or requirements which might hinder the  free movement of goods within the
       fcO. When  France decided on environmental grounds  to oblige waste oil producers to
       recycle the  oil or burn  it only  in very specific cases, this was not considered  to be contrary
       to the waste oil directive that made no distinction between the  treatments of waste oil  At
       the same time France  forbade the exporting of waste oil, arguing that oil burning might not
       be done elsewhere in  an environmentally-friendly way. The  Luxembourg  court considered
       this ban to  be a violation of the  principle of  free movement of goods (Case 240/83  AD
       BHU,  7 July 1985, p531).
       Environmental requirements have priority over the  principle of free movement of goods
       under certain  circumstances.  This was  shown in  the Danish case on beverage packaging
       (Case 302/86, commission of Denmark, 20 September 1988, p4607). The court  decision
       had officially recognized  that environmental protection is a matter of  general interest an
       imperative  requirement", and must be considered as having the same priority as  freedom
       of movement.
       The European Single Act confirmed this opinion by  introducing the  principle that  member
       states may  adopt more protective measures than required by the EC but that they must
       respect the  Treaty. This refers to the general principles of  the Treaty of Rome  and the
       Single Act.  Consequently,  stronger regulations  in the member  states   must  not  be
       discriminatory against any other member state or disproportionate to  their goal
       For rules concerning industrial installations and  not products,  there  is no  known Court
       case. The same principles must  obviously apply, but the free movement of  goods would
       be  less  affected  by  stronger environmental rules  than  the   free competition  among
       companies,  which is also a basic principle of the EC. Demonstrating a violation of this
       principle  is  much  more difficult than proving  an  obstacle to commerce, which probably
       explains  why there is  no litigation on record. The  French legislation  on major industrial
       accidents is very strict and goes  beyond the  EC directive's requirements, but it  remains
       uncertain whether the situation leads to an imbalance of competition.

10.     Let us now take  a look at the  practical impact  of the EC regulations on the environment  It
       is clear that  the consequences have been felt in terms of actions and policies
       The directives have not changed the French  administrative framework, nor have they led
       to  the  creation of  new authorities, unlike what happened in countries which did  not yet
       have  advanced  environmental regulations. But the directives  have  led to changes of
      administrative  procedures in relation  to  impact studies,  hazard  studies,  and freedom of
      information.  These changes have  been  more  or less far-reaching depending on whether
      the French regulations already complied  with the corresponding EC requirements
      The EC directives have  had  a greater  effect on  the extent of the controls required of
      administrative authorities  and  industrial users.  These requirements involve the  monitoring
      of emissions and the analysis of  environmental quality.  It goes  without saying that these
      obligations have  led to  better  information on the immediate environment by requiring that
      more parameters be analyzed than  before, more frequently than before. The quality of
      bathing water  has become better known,  and subsequently improved, due to directive
      76/160 on bathing water quality.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              35


      Similarly,  by obliging the states to draft quality improvement plans for air  and water, by
      reducing emissions of dangerous  substances  into water or air, through plans to eliminate
      wastes, by determining  reinforced  protection areas for  certain wildlife species,  or for
      regions with more  heavily-polluted air than elsewhere, the various  directives have  also
      contributed to an awareness of the necessity of global environmental management in  time
      and in space, on a longer term basis.


3     CONCLUSION

      In conclusion, it must be stressed that enforcement  of EC environmental  laws is not an
exercise for its own sake.  It goes beyond complying with  limit values, staying  within maximum
concentrations and  so on - it is a  means to protect the environment as a  common interest, while
protecting individual rights.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             37


SOME FACTORS INFLUENCING ENVIRONMENTAL ENFORCEMENT IN THE CSFR

E. KRUZIKOVA

Executive director, Institute of Environmental Policy, U dvou srpu 2, 150 00 Prague, CSFR


1      ENVIRONMENTAL LEGISLATION AND ITS QUALITY

       The quality of environmental legislation significantly  influence's environmental legislation,
particularly from the  point of view of its realistic character, respectively its enforceability. From this
perspective it is important to take into account:
       -   the way  how the  legislation  sets down  rights and  obligations  in  this  field  and
          environmental standards  (limits), quality  objectives,  etc.,  which  instruments  and
          mechanisms of environmental enforcement the legislation provides.

       1.  Since changes in November 1989 and since establishment of environmental authorities
          in  1990 Czechoslovakia has prepared  and approved a new environmental legislation in
          all fields except for water management.
          New act on the environment setting main principles of environmental protection, basic
          rights and obligation was approved.
          From  one point of view the solution to enact new environmental legislation gave us an
          advantage to take into account new trends in  economic, social and political life of the
          country. It also allowed  us to make an effort to  incorporate  as much  as  possible EC
          environmental requirements into new  acts and regulations, from another point of  view
          the legislation was prepared in hurry and in some aspect,  especially  in  emission
          standards and dead-lines for their accomplishment, it is too ambitious and non realistic.
       2. New  environmental legislation provides  all  instruments and  mechanism  of
          environmental enforcement that are known in modern systems:
          a. polluter pays principle expressed mainly in  the  system  of charges and fees for
             pollution and for use of natural resources;
          b. some environmental aspects were incorporated into new taxes  system that will be
             in force from January 1, 1993;
          c. new  legislation  empowers environmental  authorities to impose  fines  and other
             sanction for violation of environmental legislation;
          d. it  is  possible  to  sue for environmental damage  in  civil  and   criminal  judicial
             procedure;
          e. as one of the first Central and East European countries  Czechoslovakia approved
             legislation for environmental impact assessment (Act on the Environment - federal,
             Czech National Council's Act on EIA).
          f.  environmentalists succeeded to include environmental aspects into privatisation act
             during  amendment  procedure - how the Act on  the  large - scale privatisation
             contains one new section  ( 6a ) requiring environmental audits to be carried out as
             a part of privatisation process;

        In the form of Czech government resolution the Czech republic also basically solved the
 issue of environmental liability for past damage and their cleaning-up. Regarding the new
 Czechoslovak environmental legislation  it is necessary to  say that Czechoslovakia made a big
 step towards better  environmental  protection system.  As the only  country of  CEE countries
 Czechoslovakia succeeded to create  new and  relatively well  coordinated  and  clear set of
 environmental acts and regulation. We also  created a new structure of environmental authorities
 on all levels of State Administration, including quite powerful Inspection  (Czech and Slovak).
        As mentioned under 1.1. we did not manage to accomplish enforceability of this legislation
 sometimes.  Not only in the sphere of limits and dead-lines there  are lacks. Also  charged and
 fines should be higher to properly stimulate ecological behaviour of polluters.

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       There are some problems with environmental damage and ecological damage (defined as
 the loss of ecological functions of  ecosystems in  the Act on the Environment). It is  not easy to
 express what is  an environmental damage, to distinguish different extent of the damage (mainly in
 criminal procedure) and  to  express and "count" ecological damage. The  experience  of  other
 countries and of the EC would be highly helpful in this field.
       On the lower level (mainly districts and communities) professional skills  are not sufficient
 for powers that were given to environmental  authorities at these levels.
       These shortly described problems show that the environmental enforcement is  not always
 easy. The  main  reason  of this situation  is that before and during  drafting  the now legislation
 practically no environmental enforcement system and policy existed.
       New  acts were  being  prepared  often without even proper  economic  analysis  and
 assessment of economic  consequences of new legislation.


 2      PUBLIC PARTICIPATION

       1.  Prerequisite  for public  participation environmental awareness based  on  access to
          information about  the  state  of  the environment,  its  reasons  and consequences.
          Information makes people aware  of the  current situation and enables  general public to
          be a partner of state bodies, to support or to push, challenge state actions.
       2.  Czechoslovak  legislation gives citizens right to in time, true, objective information about
          environment (Fundamental list  of Rights and Duties, Act on the Environment, Act on
          Air, Act on Nature Conversation).
          Unfortunately  no  mechanism  and  exact  way how  to implement this right, how to
          provide information, when and whom, were set dow by the legislation.
       3.  Acts on EIA  are the first Czechoslovak acts  giving general public the  right to take part
          in environmental decision-making.
          We  will see after  one  year at least how  this instruments works and what are the
          problems.
       4.  It  is not easy now to involve the general public into environmental decision-making.
          Environmental  protection does not belong among priorities  of citizens, today. Since the
          beginning  of  1990  the  importance  of  this   issue in the  awareness of people  has
          significantly decreased.
       5.  In comparison  with pre-revolution" time environmental NGO's are not well  organized,
          they are scattered and  not very  willing to cooperate with each other. However, new
          environmental  non-governmental institution are being created. Hopefully they will begin
          to play some role in environmental policy. Especially those  that  are  oriented  towards
          transition of the society to sustainability.


3      CONCLUSIONS

       1.  It  is necessary to examine the efficiency of new environmental legislation, problems of
         its enforcement;  to find lacks, insufficiencies laying  inside  and  also  outside
         environmental legislation.
      2. On the basis of results we must establish  an efficient enforcement system and policy,
         realistic and enforceable, based  on broad  participation  of state  authorities, judicial
         institutions, business and general public.

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 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              39


 DESIGNING ENFORCEABLE ENVIRONMENTAL REQUIREMENTS - EEC

 TURNER T. SMITH, JR., Hunton & Williams, 106  Ave. Louise, 1050 Brussels, Belgium


       SUMMARY

       This paper distinguishes two issues -- first, the  problem of designing EEC requirements
 that member states can  properly implement, and ensuring that they do so  (ie., the question of
 enforceability against  member states), and second, the problem of designing provisions directly
 applicable to the regulated community (ie., the question  of enforceability against the regulated
 community). It  notes  the commonly  held  view that an implementation and enforcement  deficit
 exists with EC environmental regulation in each case.
       After a  brief discussion  of European regulatory  style  and the European debate over
 binding legal requirements in a field  regarded  as involving  scientific  and technical policy, the
 paper  turns to  the two issues noted  above. In discussing the first, it sets out the  institutional
 reasons for difficulty in achieving full implementation by member states,  as well as some solutions
 being considered.  It then illustrates the principles  and elements of enforceable  regulation as set
 out in the main  speaker's paper in the context of each question.


 1      INTRODUCTION

       Over the last 20 years, the  EEC has developed  a considerable body  of environmental
 regulation.(l) Yet that corpus has been widely  criticized - by the EC Commission,(2) by former
 members of the  Commission,(3)  by  the EC  Parliament,(4) and  by  commentators(S) --
 because  it has not been, and  in some cases cannot be, effectively implemented and enforced.
       It  is important  at the outset to distinguish  two separate, but interrelated, questions. The
 first is  the enforceability of  EC law vis-a-vis EC member states. The second is its enforceability
 vis-a-vis the regulated community.
       Much of  EC environmental law is  promulgated  as "directives" - a  form  of Community
 legislation that  in general must be implemented  at the member state  level  before it can  apply
 directly to the  regulated community(6).  Without  adequate implementing provisions in member
 state law to fill out the regulatory framework, and to translate it into detailed  rules, standards,
 permits  and  other requirements  directly  applicable   to the  regulated  community,  effective
 enforcement against that community  cannot normally  be ensured.  Of course, some member
 states  themselves  face analogous issues due to their own governmental structure, and in  these
 cases  the directly  applicable  provisions must be  promulgated,  in turn,  by  Lander, provinces, or
 other regional entities, or by local governments such as municipalities.
       In short,  designing enforceable environmental requirements in a hierarchial system like the
 EC, requires (a) designing clear and unambiguous primary requirements (here EC requirements)
the proper implementation  of which  can be assured  at lower governmental levels, and (b)
designing enforceable  secondary requirements directly  applicable  to  the  regulated community,
whatever level  they emanate  from. These issues are  related,  since  each  involves the art of
drafting binding  legal requirements addressed to third parties,  involving emotionally laden matters
and public risk decisions, resting on complex scientific and technical premises, and costing  many
millions to carry out. Yet they are fundamentally different as well. The first involves chiefly issues
of institutional design and structure at the governmental level  that go to the heart  of the political
system involved. The second, at  least as to EC environment law that is mainly applied directly to
the regulated community by member state enforcement agencies  (the design  and practices of
which are beyond the scope of this paper), chiefly involves  regulatory draftsmanship.

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40                               INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2     SOME IMPORTANT CONTEXTUAL MATTERS

      Environmental  requirements  are  always set in a  particular cultural, political  and legal
context.  Before proceeding  further,  and  especially  because the  principle  speaker's paper
proceeds from the American regulatory context, it may be useful to take note of the EC regulatory
context, and how it differs from the American.

2.1    Regulatory Style in the EC

      Regulation in Europe is generally regarded as a "technical" or "political," and not a "legal"
issue, though this attitude appears to be changing slowly.  European government and industry, on
the whole, have not  in the past looked  to legal counsel to  assist in  handling  environmental
matters. They have relied, instead, primarily on technical staff.
      The Community regulatory process, furthermore, is largely nonadversarial and is the result
of a slow, non-public, complex law-making structure designed to  achieve  political  consensus
among the member  states. There is  a  close industry-government relationship. Industry, in  the
form of  its national  and   European-wide trade  associations, operates  through  contacts  with
national  authorities,  through "expert" advisory  committees at the  Commission,  and  through
lobbying  of the Commission, Parliament and COREPER.  Proposed  directives are made publicly
available and  are commented  on by  Parliamentary committees, but there is  no  free-wheeling,
open political process similar to that found in the  U.S.  Congress. Nor is there a structured, open
administrative  process for promulgating directives or implementing  regulations,  such  as  the
American notice and comment rulemaking process.
      The  rise of the "green"  movement  in  Europe  and  the  manner  in   which it  affects
environmental   regulation is also of  importance.  The European  "green" movement  has had
success  in organizing political  parties, but it otherwise remains largely a local, grass-roots effort.
Neither it nor environmental groups generally in  Europe have,  on the whole, organized effectively
yet at the EC or, in many cases, at national levels. To date, environmental groups do not have as
sophisticated a grasp of the technical, scientific, and economic factors that play a crucial role in
the details of environmental regulation as do  their U.S. counterparts, and  they have  not  lobbied
nor litigated nearly as  broadly or effectively.
      By way  of contrast,  one can note that in the United States, law  and lawyers have been
central to the development  of environmental policy, and coordinated efforts  at  the national, federal
level have led  the  way. American regulation  relies heavily  on generic,  federal administrative
"notice  and comment" rulemaking to  achieve specificity and  uniformity,  and  to  gather  the
technical, scientific and  economic  data  that form the  premises for continental-scope public
decision  making. Those  administrative  rulemaking proceedings  provide  public,  formal, and
structured opportunities for citizens and industry  to participate in  the development of regulation
through comments, public  hearings and  sometimes judicial challenges to rules. Federal judicial
review has played an important role,  at the behest of both citizens  and industry, in forcing the
executive branch to implement federal environmental statutes promptly and properly, and to justify
its discretionary policy choices.
      The "political" aspects of the American environmental regulatory process take the  form of
lobbying  directed at  the Congress,  as  well  as less  formal efforts  to lobby the administrative
agencies that  establish, implement and  enforce  regulations.  In the  U.S., there are no  "green"
political parties as such; the struggle goes on within the confines of the existing party structures,
but  both  parties endorse  environmental  goals. Strong,  sophisticated,  and  well-funded
environmental groups at the national level have  prodded both industry and  government, and have
lobbied and litigated with great effect.
       In  short, in the United  States, contending interests use legal processes in  the judicial
arena and before administrative  agencies to influence the formulation and  execution of policy.
This is particularly true of citizen environmental groups who, with some frequency, use citizen suit
provisions in federal environmental legislation as a means  of influencing environmental policy and
ensuring its implementation and enforcement.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              41
2.2   The Question of Binding Legal Requirements

      The premise for this panel seems to be that binding legal requirements should exist -- the
main issue examined is how to draft and implement those requirements so that they can be easily
obeyed and effectively enforced.
      In Europe, however, the premise itself is likely to be challenged.  First, as to enforcement
against member states, the discussion below will show that the present system of EC governance
is  in many regards structured to enable member states to limit the scope and depth of EC legal
requirements that are enacted, and thus that become legally binding on them.
      Second, and  perhaps  more  fundamentally,  much  of  industry  and  some government
officials  (e.g.,  in the  U.K.  and  the  Netherlands)  remain wedded to  "voluntary"  action  and
consensual "contract" or "covenant" approaches. Any form of legislation is stronger if it solicits
input  from and the support of the  public and the regulated  community,  and these techniques
accomplish both in the case of industry. The stakes in the  environmental area (and the incentives
to avoid control costs or to engage in  "free riding" while others bear those costs) are now high
enough, however, that if environmental regulation is to do the job that needs doing, voluntary
efforts or covenants  alone are  unlikely to  suffice(7).  Further, the private sector needs,  and
generally prefers, legal certainty in the rules applicable to it and to its investments.(8)
      Finally, there is a tradition in some quarters in  Europe that environmental regulation is a
matter of policy,  and as  noted  above, scientific  and  technical policy to boot.(9) Lawyers and
law are thought not to be required,  or at best are  to be suffered only at the point where matters
must go to  court, a point  to be avoided at all costs if possible. On this view, it is  the  expert
government administrators -- sometimes given great discretion by the European legislation  -- who
should apply policy case-by-case, frequently guided by informal administrative "rules of thumb" or
"guidelines" as opposed to formal, detailed,  legally  binding  rules.(10)  It is  interesting to note
that this same tradition held strong sway at the state level  in the United  States in  the 1960's and
is still alive in many states today. But for the same reasons that voluntary efforts and covenants
alone will  not  suffice,  "policy" alone  is inadequate. Written, legally binding,  and  enforceable
requirements are essential. And if enforceable legal requirements are to be had,  lawyers, and an
efficient legal enforcement process manned by knowledgeable judges, are essential.


3      PROPER  IMPLEMENTATION OF EC LEGISLATION
       AT THE MEMBER STATE LEVEL - THE INSTITUTIONAL ISSUES

3.1    The Problem

       Much  EC legislation,  as  noted above,  takes  the  form  of  directives  and must be
implemented at the member state level. Even EC  regulations, which  are directly applicable to the
regulated community,  frequently  depend on further implementation by the member states.(11)
 In either case, where such "secondary" level implementation is required, its proper adoption and
implementation  is a  prerequisite to effective  enforcement  against the regulated community.
(12)
       By the Commission's own account, there are deficiencies in even the simplest aspects of
formal  compliance by member  states.(13) The deficiencies  multiply  when  the more  subtle
 aspects  of compliance  (e.g.,  involving the  effectiveness of implementation)  are considered.
 (14)
       The  most fundamental reason  for the implementation deficit is  obvious, and  cuts to the
 institutional heart of the Community. The Community has not developed  the institutional powers in
 the Community institutions to ensure vigorous implementation of what  is enacted, nor has their
 been the political will  by member  states, acting in  the Council, to  enact sufficiently precise
 legislation that member states can be easily held accountable for its effective implementation. The
 current debate over Maastricht and subsidiarity, and the cloud created by the Danish vote and the
 French vote,  indicate  that this situation may well not soon change.(15) This section discusses

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 42                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


 the institutional problems; the next section discusses the precision  of the drafting of the EC
 legislation itself.
       The structural deficiencies in  EC  institutional arrangements  are  legion.  First  the  EC's
 legislative body - the Council - as presently structured in the Treaty of Rome is not'sufficiently
 independent of the member states that it has the political will to draft legislation that will insure full
 member  state  implementation.(16)  Indeed, the  legislative  process  in the Council frequently
 tends toward the  "lowest common  denominator,"(17) and has in  the past resulted  in subtle
 loopholes such as that described below pertaining to the  Fresh Water Fish Directive.(18) The
 problem seems mainly to be a lack of will, not a lack of power.
       Second,  there is no formal,  rigorous or systematic process for gathering public input on the
 scientific,  technical  and economic information necessary to underpin sound and  enforceable
 environmental regulation,  nor any  requirement that the legal and factual basis  for the legislation
 as finally adopted be formally  set out and justified, so that these bases can be easily tested and
 challenged.  Thus,  while  public  awareness,  concern  and  indignation  over environmental
 degradation and inadequate implementation and enforcement of environmental  laws  is growing
 public participation in the law-making,  law-applying and law-enforcing effort is weak in  Europe'
 There is, in  general, a lack of formal  procedural rights that enable  the public to participate in
 these processes and that enable it to hold  member state  executive and legislative branches
 accountable before the courts for adequate implementation and enforcement of the laws.
       Third, the EC's judiciary - the European Court of Justice -- is not presently structured so
 as to facilitate implementation of EC law  by member states. The Treaty  does not grant broad
 public access to initiate  litigation to force member state compliance, and the Court does not have
 adequate  remedial  powers to  compel full  and  faithful  compliance once its  jurisdiction  is
 invoked.(19)  Further, "standing" rules in the member state courts do not, on  the whole,  allow
 a  broad spectrum of interested persons to initiate litigation to challenge member state legislative
 or executive branch inaction or inadequate implementation or enforcement.(20)
       Fourth, the  EC  lacks an  adequate Executive Branch. The  Commission  itself is  small
 compared to the size of the implementation and enforcement task,  has no offices  or resident
 officers in all the member states, and  has inadequate investigative  and  enforcement powers.
 Directorate General XI does not have the staff, the funding, or the powers to investigate member
 state implementation and  enforcement systematically and  comprehensively.(21) It  must rely
 largely on a complaint process in which it reacts to issues  brought before it by others,(22) and
 then  can  enforce  only through the  lengthy  and cumbersome Article 169 process.(23)  The
 Commission has the power to propose legislation directly applicable in  member states  by using a
 regulation  rather than a directive, but  in  the  past it has  seldom proposed legislation in this
 manner.(24)  The  Commission itself  also  has  no  power to  directly enforce  member  state
 legislative requirements  on the regulated community when the member state fails to  do so. The
 Council can delegate to  it the power to promulgate regulations without further Council action  (as it
 has  done in the food area), but has not generally done so (except in  the case of provisions for
 "adaptation to technical and scientific progress"  in existing directives) in  the environmental area.
       Beyond  these  structural governmental issues,  other institutional factors contribute.  The
 Parliament is  of  the view that member states  actively seek  to  use Community  laws to  favor
 national   producers and  to prefer economic  or social  development  over  environmental
 consideration.(25)
       Public interest  environmental groups, which  seldom litigate for the  reasons noted earlier,
 tend not even to make good use of the  publicity tools  that are available to  them,  because those
groups are politically (and frequently  locally) oriented, and are  usually technically and legally
 unsophisticated.  Further, they frequently lack key information, since in most European countries
executive  branches and  industry make a cult of secrecy and there are few effective legal rights of
public access to  government or industry information.(26)
      Many industries and government entities are not yet imbued with a compliance ethic in the
area of environmental protection, and this lack can be particularly pronounced in certain countries
and  in the case of government-owned  businesses or governmental facilities (which  remain  of
course, prevalent in Europe).

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              43


       Finally, there is a significant problem involved in ensuring adequate implementation where
the member state itself is a federation, or for other reasons has inadequate control or power to
ensure that its constituent parts live up to  its EC treaty  obligations.(27)

3.2    Solutions

       The problems  outlined above (that is,  the  problems of a  higher level of government
instructing a lower,  and making it stick) are endemic  to any hierarchical  system of government,
although they  are most pronounced in a  confederal or federal system. Their resolution is central
to the  development of effective  and enforceable environmental regulation. Before turning to how
best to ensure that legislation by a higher level of government is in fact properly implemented and
enforced by a lower, it is useful to  reflect on which sorts of things  are best done at  the higher
level  and which  at the lower.(28)  To  the  extent that this  question  can be answered, the
conclusions may offer guidance  in the current  "subsidiarity" debate within the EC.

3.2.1   Who Should  Do What -- The American Federal  Experience

       There  is experience  to  be brought to bear on  this question  in  the specific  context of
environmental regulation. Americans have struggled since the  days of the founding fathers with
the relationship between levels  of government.  As Woodrow Wilson once said:  "The question of
the relation of the states to the Federal Government cannot indeed be settled by the  opinion of
any  one generation, because it  is a question  of growth, and  every successive  stage of our
political and economic development gives it a  new aspect, makes it a new question."(29)
       Further, federal/state issues  have been  central to  American environmental law since  its
inception. And environmental  law has been an important proving ground for new ideas  in the field
of federal/state relations. When  the  U.S. Clean  Air and Water  Acts  were  first  enacted, for
example, they contained  a complex  balancing of  functions between  state   and federal
governments, a cooperative relationship that was then  referred to as a "new federalism."(30)
       Over the years a consensus has developed in the U.S. on certain aspects of federalism in
environmental regulation. First, if situations can be found where both the costs and  benefits of an
issue are national (i.e., federal)  in scope, there is little question that federal decision-making is in
order.  Likewise, if situations exist  where the costs and the benefits are both local or statewide in
scope  and fall within  the  same geographic area, again, there  is little question. It is  where the
costs are all borne,  or are largely borne, by a  small group of people in one area while the benefits
are nationwide or accrue to people in another area, or vice versa, that the real problems lie. In
such  cases -- which  are  the majority of cases --  the  problem is to determine which level of
government should decide,  why,  and using  what principles. Beyond the question of matching
costs and benefits with the proper decisional  body, there are also considerations of decisional or
implementation efficiency, market-place efficiency, avoidance of forum shopping, and  assuring  a
level economic playing field.
       It is generally thought  in  the U.S. that  the federal government should handle (a) interstate
pollution (where, for example, it is argued that the benefits of "acid rain" control  accrue to people
in the  Northeast while the costs are borne by people in the Mid-West), (b) areas with  economies
of scale, such as training and research and development, and (c) cases where national uniformity
or preemption is  needed for various reasons,  as in  the  following  cases: first, so as to avoid
burdens on commerce (for example, in regulating widely distributed products such as chemicals
or automobiles); second, so  as to strive for  uniform  health standards (to ensure  that a citizen
breathing air  in Omaha will be  protected to the same extent as one  breathing air in  Boston or
Seattle(31), (with  states  retaining the right to profit from the  natural assimilative capacities of
their  individual geographic  position for  discharge levels  below these  levels  and  relating  to
environmental (e.g., aquatic life) rather than  public health  matters);  third,  so  as to  avoid
competition for new industry among states by lowered  environmental standards (normally attained
through use of uniform, minimum technology-based requirements); and finally,  so as to preempt
parochial vetoes of projects where important  national  (i.e., federal) interests are involved but the
costs are locally borne, as with hazardous waste disposal and nuclear power facilities.

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44                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


       There is also consensus about many aspects of the proper state role. First, obviously, that
it is a residual role under the U.S. Constitution (the states technically remain sovereign except to
the extent  of powers  surrendered in  the U.S. Constitution), that occupies whatever ground  the
federal  government does not.(32) Second, that  for  efficiency reasons  and because they  are
closer  to the messy details of the real world,  the states should be the primary implementers and
enforcers in most of the regulatory schemes (such  as  the Clean Air and Water Acts, although  not
in  areas of  product  regulation like  the  regulatory   scheme  for  production and marketing  of
chemicals in  TSCA). Third, that the states are important laboratories for experimentation. Fourth,
that  decision-making  should,  in  general,  be decentralized  in  the  interests  of efficiency  and
increased political accountability. Finally, that the states should - and in fact do under most of  the
environmental statutes  - always have  the  right to  regulate more stringently, except  where
preempted  by an overriding federal interest of the sort  noted above.(33)
       It may be useful to compare the American  consensus with the developing EC debate on
subsidiarity. The EC began by attempting to "harmonize" member state provisions. It then shifted,
with the advent of the single internal market,  to reliance on "essential EC requirements" coupled
with  mutual recognition of member state actions.  The Danish vote  has  now prompted a much
more direct debate on the justification for EC level action, as part of the debate on  the role of
"subsidiarity." The Single European Act, of course,  is  quite explicit on the  question of subsidiarity,
providing the following language in Article 130r, para. 4. of the Treaty:
       The Community shall take action relating to the environment to the extent to which
       the objectives referred to in paragraph 1  can be attained better at  Community level
       than at the level of the individual Member States.
It added in  Article 130t:
       The protection measures adopted  in  common  pursuant  to Article 130s  shall not
       prevent any Member  State from maintaining or  introducing more stringent protective
       measures compatible with this Treaty.

       Other relevant provisions  are Article  100(a),  para. 3, which calls for  a "high level of
protection"  for Article 100a  measures "concerning health,  safety, environmental protection  and
consumer protection," and Article 100a, para. 4, which allows for more  stringent member state
environmental measures, after notice  to the Commission, if these measures do not constitute "a
means of arbitrary discrimination or a disguised restriction on trade."
       The current D.G. XI Commissioner, Van Miert, recently identified three key justifications for
EC level environmental regulation --  first,  the  transfrontier and  even global character of most
environmental phenomena;  second,  the  need  to avoid barriers  to  trade  and  distortions  of
competition; and third,  that the Treaty of Rome calls for the improvement in the quality of life of
EC citizens, which  "implies  a  minimum level   of  environmental protection  throughout  the
Community  and applies, in  [his] opinion, to  drinking  water,   to bathing  water and  also  to  the
conservation  of nature."(34)
       Van Miert's three principles are found  in the American consensus, but the latter includes
other areas as well. Further, the U.S. principle  on  a  minimum level of protection is strongest as
applied to  public  health   driven  standards  and to  the scientific premises behind other
environmental standards (e.g., the water quality  criteria necessary to  protect  aquatic  life  are
federally set, at  least  initially),  but the value judgements as  to  resource  use and levels of
protection (e.g.,  the  uses to which water bodies  are to be put  and the aquatic species to be
protected) are to a large extent left to the states (which, e.g., set water quality standards based
on their choice of water body uses and federal water quality criteria for those uses).
       Dealing  with  these   matters  requires  struggling  with  generic  structural  and  functional
problems. The particular constitutional,  historical and cultural  context is,  of course, crucial.  But
many of the analytical insights involving *he proper  division of authority and responsibility between
higher  and lower levels of government derived from one context -- for example,  the American or
the EC -- may be useful to those who are debating these or similar choices in other political and
legal systems.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              45


3.2.2  Ensuring Implementation and Enforcement -- The American Experience

      Moving beyond the basic policy issues of who should be doing what, one can also look to
the American  example for  insights  into  mechanisms for assuring implementation by the lower
level of  government. Many  of these mechanisms  are of statutory, not Constitutional,  origin, but
the Constitutional power of the U.S. federal government and its de facto ascendancy has enabled
their adoption.
      In the  United  States, the  implementation  of  federal legislation  at  the  state  level is
encouraged through  a series  of  institutional  and legislative  devices  lacking  in  Community
legislation.  First, there  is a  well staffed, trained  and funded environmental agency at the federal
level in  the United  States (the Environmental Protection Agency  or "EPA"). There  is also a great
deal of  publicly available monitoring data and other information, as well as effective freedom of
information legislation  at the federal and state levels.
      Second, EPA must normally  approve a state's implementing program in detail  before the
state  can qualify  to implement the applicable  federal  legislation. It reviews  not just the state
agency's formal powers and implementing  rules, but also the adequacy  of its organization,
staffing  and funding, and such matters as the adequacy of the enforcement process and penalty
and fine levels provided under state law. EPA may withdraw a state's right to implement many of
the federal  regulatory  programs  if it judges the actual implementation to  be inadequate.  EPA
normally has  direct prior approval authority over specific  state implementing actions,  such  as
issuance  of  state-implemented  regulations,  standards and  individual  permits,  before those
measures can go  into effect under federal law (although  they  sometimes can and do  go  into
effect under state law without regard to EPA approval  at the federal level).  In the  absence of an
EPA-approved state implementing  program, or  of  EPA-approved state regulations, standards or
permits, EPA is normally  required itself  to promulgate  directly  applicable  federal  provisions.
Should  EPA fail to  act in supervising (or superseding) state implementation where  it has a duty to
do so, it may be sued in federal court by citizens and environmental groups  and forced to  act.
Lastly, EPA frequently threatens to withhold federal funding (on  which many state environmental
programs depend)  if state implementation is deemed inadequate.
      Enforcement in America is vigorous, and takes a number of forms. Nearly all of the major
American environmental regulatory  statutes require some form of publicly available  self-monitoring
and reporting. This system  automatically  highlights  lapses  in compliance  and  the need  for
enforcement. EPA  has broad powers to inspect, sample and investigate, which it can  use against
both the states and their subordinate entities and against the regulated community. These can be
invoked anywhere  within the territorial limits of the United States, by federal officials,  and can be
enforced in independent federal courts throughout the country.
      When EPA  deems state enforcement to be inadequate, it normally has the  authority to
override the  state's  failure  to enforce.  In  so doing, it  has the  power  to  itself  issue  an
administrative order against  the violator or,  in some cases,  to  assess civil penalties on  an
administrative basis and to enforce  its action in either  case in federal court. Alternatively, it may
take a  violation directly into  federal court for  injunctive relief, and civil and  criminal penalties.
Should  EPA fail  to enforce (or to  do  so diligently),  citizens  and environmental groups  can
themselves  normally prosecute the regulated party in a civil action in federal court to  correct the
violations or have civil penalties assessed.

3.2.3 Ensuring Implementation and Enforcement - Community Solutions

      The Community institutions have  at their disposal virtually none of the mechanisms noted
above.  As  noted   earlier,  DG XI  has  inadequate  resources  and  investigative  powers  for
enforcement of  EC legislative  duties against  member states, and  its enforcement remedies
against  member states are  cumbersome  and, in the end, toothless. At the level of  enforcement of
specific standards,  requirements or permit conditions against an individual regulated facility, the
Community can play virtually no role. Such enforcement is left up to the member states.
      The  Commission  has  used  a number  of  techniques to enhance  member state
implementation and enforcement,  many  of which  have been mentioned above. It has begun to

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 46                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


 propose more  specific  and  precise  legislation,  to  propose  more  implementing  "daughter"
 directives,  to  use directly applicable regulations more often, and to consider use of rules  for
 "industry categories"  and specific "priority wastestreams." It has encouraged  complaints  and
 increased  its  filing of Article  169 proceedings.  It has developed the  Freedom of Information
 Directive to put more  information in the hands of citizens. It has  nurtured the development of the
 "direct effect"  doctrine to provide better judicial remedies. It has begun  to include interest group
 "standing"  provisions  in draft  legislation (e.g., the draft Directive on Civil Liability for Damage
 Caused By Waste). It has attempted to  enter into a dialogue with member state bureaucracies on
 implementation,  and to promote new legislation requiring  more effective member state reporting
 on implementation and  establishing  a decentralized  member-state level  public  "complaints"
 mechanism, with the Commission intervening only if proper or timely resolution  is not achieved by
 the  member  state.(35)  It  has seen  the  creation of  the  European Environment Agency,
 although that  body has  no enforcement powers  and as  yet has neither home nor head.(36)
 One recent Commissioner has even proposed the creation of a "Green" police force. Finally, the
 Commission has seen the development of the Maastricht provisions set out in note (15) that, if
 adopted as Treaty amendments, may help the situation.
       Recently, the Commission has begun to speak out bluntly.  Its Eight Annual Report to the
 Parliament  on implementation of EC law  is  a clear departure from  prior practice  in  this
 regard.(37) That  Report's new Annex  C  details the Commission's efforts and frustrations, and
 has  led to the commentary in  the two Parliamentary  Reports previously mentioned.  Thus, the
 issue is now very much on the public agenda.
       Having  encountered such great difficulties in trying  to develop an effective "command and
 control" regulatory system in the directives issued to date, however, the  Commission is now also
 engaged in a series  of moves to bypass  these problems  (and the  national legislation and
 bureaucracies  causing them). It is considering the use of fiscal and economic measures in lieu of
 administratively driven control requirements. It is designing an Eco-Audit  Regulation to  provide, in
 effect, a comprehensive,  universal  substitute for the  self-monitoring and  reporting provisions that
 are  lacking in  many  existing  directives  (as  well, perhaps, as de  facto new  standards  of
 environmental  performance beyond current legal requirements). These eco-audits would have to
 be verified  by independent outside auditors and there would  be public disclosure  of  certain
 information. It  is  also drafting a highly significant directive on Integrated  Pollution Control that, in
 addition to  providing a uniform and comprehensive EC-level permit requirement and process, will
 require  public  notice  and input during that process,  new standards  of environmental  control
 (beyond those adopted  in existing directives)  to  be  imposed  case-by-case, and compliance
 monitoring with the results being publically available.
       The Parliament has been active  in analysis of the reasons for the implementation deficit in
 EC environmental  law, and  the  two  Parliamentary Reports noted  earlier  (note  (4)) contain
 extensive views on this subject and suggestions for a multitude of actions in response.
       For  all  the  reasons noted above,  however,  the  problems  with  implementation and
 enforcement of EC environmental law at the member state  level are deep seated. They are not
 likely to be solved with a magic wand that creates  an "EPA" of Europe or a "Green" police force.
 Their existence,  like the existence of  U.S.  federal/state  problems,  teaches many lessons for
 others striving for effective implementation and enforcement of environmental laws.


4      PROPER  IMPLEMENTATION OF EC  LEGISLATION AT THE MEMBER STATE LEVEL -
       - DESIGNING ENFORCEABLE REQUIREMENTS

       In addition to the institutional difficulties noted above, and to  a considerable extent  as a
 result  of them,  the way in which  EC  environmental  legislation itself is  drafted  frequently
contributes to  inadequate member  state  implements'ic'  ;38)  These drafting  difficulties
 illustrate many of the points made in the main speaker's paper.
       The comprehensibility  of EC  environmental  regulation (ignoring the special  translation
difficulties  frequently introduced by, e.g.,  the "Euro-English" used in  translations)  is  one  of  its
strong points. Perhaps because it is drafted by the technical  staff at the Commission  and deals in

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              47


"statutory" generality as  to many  issues, it tends to be  simpler and  less  confusing then the
complex, detailed and  frequently overlapping and contradictory U.S. legislation drafted by U.S.
Congressional staff. Where political compromises  introduce ambiguity or  confusion,  as they
inevitably do, the result is normally less disastrous than with  U.S.  legislation. This being said,
however, there are many problems.
       Many  directives, particularly  earlier ones, use  only vague, general language to  impose
duties on member states, and lack the clear  and specific criteria necessary for judging adequacy
of implementation.(39) The  Parliament's Report on Implementation  contains  a good
discussion of this point  at 8-9, and supplies many examples.
       Important examples exist that go  to the heart of the Community's water and air regulatory
programs. In the water  program,  the  Dangerous Substances Directive(40) required  member
states  to  "establish programmes" to regulate  List  II  (Grey List)  substances,  required "prior
authorization" provisions and "quality objectives for water," with "emission standards ...  based on
the quality objectives."(41) The quality objectives in turn were "to be laid down in accordance
with  Council Directives,  where  they exist."(42) The programs  "shall set  deadlines for their
implementation," "[summaries ... and the results of their implementation" were to be submitted  to
the Commission, and the Commission,  together with the Member  States, was to "arrange  for
regular comparisons  of the  programs in  order to ensure sufficient  coordination  in their
implementation."(43)
       This  language could  have  been  usefully supplemented by  details on  the  major policy
issues  that  must inevitably  be  dealt with in  designing  the complex  water quality regulatory
program called for (e.g., what basis to use to set quality  objectives where they  had  not been set
in Community legislation; what  mathematical  modelling  techniques to  use to determine total
allowable loads for each pollutant, to allocate those loads to individual dischargers, and to set the
resulting permit limits; whether and on what conceptual basis mixing  zones were to be used; and
how  the available assimilative capacity was to be allocated as between (i) existing users, and (ii)
existing and future  users).(44)  Nonetheless, the  basic  objective was  quite  clear, has  been
since 1976,  and could  have been  implemented.(45) Had it been, it would have constituted the
bedrock of the EC water quality program, since it would have covered virtually all discharges and
would have  required some form of permit program with water quality based permit  limits.  It was
especially important that it be implemented, since all List  I (Black List) substances remain List II
substances  until  the  EC has  gotten  around to establishing specific  "best  technical  means
available" (BTMA) limit  values and quality objectives for them, which it has been exceedingly slow
in doing.
       It  was not,  however,  properly  implemented.(46) Indeed,  the  Commission has now
moved against  all 12 member states under Article  169  for  failing to implement it.(47) Further,
there has been  a general failure to develop the implementing plans and the necessary water
quality  objectives required by various of the other water  quality directives and  by the daughter
directives.(48)
       While implementation has failed for a number of reasons (among them probably being the
early split, as to  the preferred basis for regulation, between U.K. preference for quality standards
and  Continental  preference for technology-based limits(49)), several things  can be said about
the drafting  of the  provisions themselves, beyond their  general  vagueness  which has already
been noted.  There  are no deadlines for member  state development of quality standards or
implementing plans, for the issuance of  "prior authorization" permits, and  for the prohibition of
discharges not in compliance with such authorizations (this being only implicit in any case), or for
submission of the required plan summaries and  results of implementation. Further, there was no
review  and approval required by the Commission of the adequacy of the quality standards, the
implementing plans or the individual "prior authorizations."
       In short, the  "guts" of the program, and  the "guts" of the tools necessary for the  EC to
check on and control it, were omitted from the legislation. The result was a foregone conclusion.
      The same general story exists for the necessary implementing programs for nonattainment
areas under the  air  quality legislation. Similar problems have  persisted, to a large extent brought
on by the Commission's  own slowness  in following up with daughter directives, with limit value
and quality objective regulation of List I  (Black List) water pollutants, with BATNEEC regulation of

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48                               INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


industrial plants(SO), and  with detailed technical regulation  of  specific on-site  or  off-site waste
treatment, storage and disposal facilities(51).
      Turning now to the specific prerequisites  for enforceable environmental regulation set out
in the main speaker's paper, there are a number of examples  where Community environmental
legislation is so unclear that it would be difficult for a member state to know how to implement it
when it tried to do so. For example, the Dangerous Substances Directive, the backbone of the EC
water pollution legislation, provides for "limit values" for the  most dangerous List I ("Black List")
polluting substances. The basis on which the standards are to be set, however, lists both ambient
quality and technology  based criteria, with no intelligible indication  as  to  relative weight to be
given to each, or how to resolve the conceptual incompatibility between the two. It says that the
limit values are  to  be set "mainly"  on the  basis of the  ambient types of factors,  "taking into
account"  the  technology-based  standard of  "best  technical  means  available"  (BTMA).(52)
Another example of clarity difficulties is the  "non-deterioration"  provision of that same Directive,
which says:
      The application of the measures taken pursuant to this Directive may on no account
      lead, either directly or indirectly, to increased pollution of the  waters referred  to in
      Article 1.(53)
But the Directive's definition of "pollution" is quite subjective,  and the Directive clearly  provides for
authorization of  discharges from  new sources.(54)  Similar  problems exist with the analogous
"standstill  principle"  in the air quality directives.(55)
      In  other cases, the EC Directives have failed  in  implementation  because they  did not
precisely define their scope  of application. The best  example may be the Fresh  Water Fish
Directive, which "applies to those waters designated by the Member States  as needing protection
or  improvement  in  order  to  support fish  life."(56)  This  Directive, as  well  as  the  Shellfish
Directive(57),  appear to  provide  Member  States great latitude in determining which water
bodies to  designate and thus  which water bodies and  polluting sources must be regulated. The
Bathing  Water and  Abstraction of  Drinking Water Directives, while somewhat more specific, also
allow great  latitude.(58)  The result  has  been  significant  under-designation  by  Member
States(59),  and  it  is only  in  1988  that the  European  Court  of  Justice has stepped  in  to
condemn  Italy for failing to designate a sufficient number of  waters under the French Water Fish
Directive(60).
      Other issues of scope  arise, for example, in the Dangerous Substances  Directive, where
nothing  is said  as to  whether the  "discharges"  to  be covered  by the  "prior  authorization"
requirement are limited  to point sources only,  or include rainfall runoff or non-point sources, nor
whether "owners," "operators," or some other category of discharger is to be regulated.(61)
      Examples  of failure to state the required standard of  conduct also exist. The contradictory
instructions in the Dangerous  Substances Directive for the substantive test for setting List I limit
values was mentioned  earlier. Another example that goes  to the heart of the  EC  air pollution
control program  is  the  provision,  in  the  Framework Directive on Air Pollution From Industrial
Plants, that new  and modified  Annex I facilities are to be issued the required authorization only
where, inter alia, "the  use of the plant will  not cause significant  air  pollution."(62) The term
"significant" is not  defined. The remainder of the substantive tests  spelled out in article 4 are
equally non-specific and arguably overlapping.(63)
      Many EC  environmental directives,  particularly  those on air  and water pollution, specify
such technical aspects for monitoring compliance as analytical methodology and averaging times
(although,  as is generally true with U.S. environmental law,  they give inadequate attention to the
legal effect of the  precision and  bias of the  methods  in setting numerical standards or permit
conditions  and in  enforcement of such  numerical  limits).  Failure  to  specify  other  necessary
aspects,  however,  such  as  the  number of  required  air quality monitoring  stations and  how
geographic representativeness of air quality modelling is to be assured, has lead to  difficulties in
ensuring adequate  member state implementation.(64)  Further,  in some cases  (e.g., under the
Framework  Directive  on  Air Pollution from  Industrial Plants), compliance   monitoring
methodologies  have been left up to the  member  states  altogether.(65)  Finally,  the 1975
Framework Directive on  Waste,  applicable until the  recent amendments  take effect in  1993,
contains no monitoring requirements.(66)

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                               49


       Implementation problems caused by the lack of deadlines  for member state compliance
with  the List  II  water  quality objectives  implementation  program requirements  have been
discussed above. It is interesting to note, however, that there has also been non-compliance with
the analogous implementation  plan requirements for air  emission sources  in  defined  non-
attainment  areas, despite  the existence there  of explicit member  state deadlines  and reporting
requirements.
       To date, the EC has had  no comprehensive permitting requirement through which self-
monitoring and reporting requirements were required to be placed in all permits. The spotty permit
and  prior authorization  requirements that  have been adopted  have  generally not contained
specific requirements that permits  contain  such  self-monitoring   and reporting  requirements.
Member state  legislation and practice, while imposing such requirements in some cases, does not
do so  in all member  states and the level of self-monitoring and reporting in Europe in general is
not high. The Commission has had no legal tools available to it to force member states to include
such provisions in permits.
       The criteria of adoption  in accord with correct procedure is much less important in the
context of  EC environmental regulation than  it is in the U.S.,  since few if any formal procedural
requirements exist (other than those determining who can act, in what order, and on what basis in
promulgating  EC legislation), and there  are highly restrictive standing requirements  that limit
judicial challenges by the public  in any  case. Notwithstanding,  however, there  is one  clear
illustration  of this point in EC regulation, and that pertains  to the  choice  of legislative basis  for
promulgation of a directive, with the resulting  consequences  in  terms of legislative path and voting
basis  in the Council. Here, there has been  recent litigation by  the Commission as to both the
Titanium Dioxide Directive and the  1991  Amendments  to  the Framework Directive for Waste,
where in each case the Council changed the legal basis chosen by the Commission from Article
100a of the Treaty to Article 130s. The European Court of Justice annulled the Titanium  Dioxide
Directive and the challenge  to the  Waste  Framework  Directive  Amendments  is  still pending.
(67)
       Standing  behind these specific deficiencies in the way EC legislation is drafted may lurk a
more  fundamental and systemic problem. The European penchant for regarding  environmental
regulation as a matter of scientific and technical policy, rather than a legal matter, has been noted
earlier. EC environmental legislation  appears in the past to have been developed chiefly by the
programmatic offices at DG XI, and it is not  clear  that they  have always obtained the kind  of
early,  continuous, and "hands-on" drafting assistance from their  legal staff that  yields  sharply
chiseled,  easily  enforceable legislation. Technical folk write  legislation designed mainly  to
communicate  with other technical folk of good will. Thus, they tend to see little  need for careful
and precise definitions  of scope;  clear and precise standards  and criteria; specific "approval",
permit, or other implementing mechanisms; or detailed  self-monitoring and remedial provisions.
       Lawyers,  on the other hand,  are trained to consider all the problems and "worst cases"
that may arise in a situation, and  to write documents, whether they be contracts or legislation, to
anticipate and clearly resolve them. Further, enforcement  lawyers will always assume that  the
person to whom the  legislation is addressed will do everything  in his power to avoid compliance if
it suits him. They will thus attempt to phrase the legislation so that there  is no alternative but to
comply, and to comply exactly as the drafter desires.
       Sadly,  human nature  proves the lawyer right  more often than not. While unnecessary
legalisms should be  avoided in drafting legislation, there  is  no substitute  for  a  close  working
relationship between lawyer and  technical  person at every stage of the  drafting process if
enforceable legislation is to result.
 5     ENFORCEMENT OF EC LEGISLATION AGAINST THE REGULATED COMMUNITY

       Turning now to enforcement against the regulated community, the first thing to note is the
 gaps  in the  Community's  environmental  legislative  scheme.  Where there is no  law,  there
 obviously can be no enforcement.

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       There are important substantive gaps in the basic EC legislation. There is, for example, no
 legislation dealing directly with wetlands, volatile  organic compounds  (efforts are now underway
 here),  underground storage tanks, and until recently, municipal sewage. Further,  as noted above,
 where the EC has enacted framework legislation, it has frequently not promulgated many of the
 subsequent implementing ("daughter") directives  contemplated by the framework directive and
 essential to  its adequate implementation. Thus, limit values for List I (Black List) water pollutants,
 BATNEEC air emission standards for  industrial  plants, and  technical requirements for waste
 storage and treatment facilities like landfills, incinerators, surface impoundments,  and waste piles
 have either been slowly and sparsely enacted (e.g., List  I limit  values), are  only now being
 developed (e.g., landfill  and hazardous waste incinerator requirements and BATNEEC limits), or
 have not yet been addressed at all (e.g.. surface impoundment requirements).
       Turning now again to the specific elements of enforceable regulation outlined by the main
 speaker, examples  illustrating the operation  of each can be found. Many of the examples cited
 above in the context of  member state implementation  apply equally in  the case of compliance by
 and  enforcement against the regulated community.  Likewise, some  of the examples  cited below
 hinder enforceability against member states as well.
       Lack of clarity  can cause real difficulties for regulated community compliance, and thus for
 the  enforceability of  the provisions.  For example,  the  Framework  Directive  on  Waste,  as
 amended, excludes from the scope of the directive "waste waters, with the exception of waste in
 liquid form."(68) The  meaning  is not obvious.  Further, in  a number  of ways noted below, the
 core concepts of "waste" and "hazardous waste" in the European Community waste directives,
 while more  straight-forward  than those employed  in  U.S. regulation,  create severe  compliance
 difficulties.
       The precise definition  of the scope of EC  environmental legislation  is one area in which
 considerable improvement could be made. For example, EC legislation typically relies on lists of
 substances  and  facilities for determining its applicability.  It is commonly thought that the use of
 lists  provides the regulated community with  certainty, but this  is by no means always true. For
 example, in  the "Sevaso" directive, the regulatory scheme is applicable to facilities listed in Annex
 I.(69) But Annex II extends  coverage, notwithstanding the Annex I list,  to installations  other
 than those in Annex  I.  The  language used is confusing, both  in the title and the text. The title
 says "Storage Other  Than of  Substances Listed  in  Annex III Associated With an Installation
 Referred To in  Annex  I."  It  is  not  clear on  the  face of  this  language whether all Annex III
 substances  stored  at non-Annex I facilities  are covered  (i.e.,  because they  are  Annex III
 substances not associated with an installation referred to in Annex I), or whether the scope is the
 storage of all substances except  Annex III substances at Annex I facilities. The  language in the
text is  equally opaque, although an analysis of the logic of the relationship between Annex  I and
Annex II indicates that the first meaning rather than the second must have been  intended. Thus,
while application of the Sevaso directive appears to  turn on the use of a rather small list of types
 of major industrial facilities, in fact it reaches the  storage,  in the relevant quantities, of Annex III
substances  "at  any place, installation,  premises,  building  or area of land,  isolated or within an
 establishment, being a site used for the purpose of storage."(70)
       A major area of difficulty for the regulated community in determining the scope of sources
covered by  EC environmental legislation concerns the still developing definitions of "waste" and
 "hazardous  waste"  in EC waste  legislation.(71)  These core  concepts lie at the threshold of
compliance with  al[ of  the various pieces of EC Waste legislation. Quick, easy classification under
them is thus crucial, but does not  look likely as things now stand.
       First, the  definition  of  "waste"  turns  essentially on the  term "discard", which  is  itself
undefined. Second, while the Commission is to base the  regulatory definition of both terms on
lists  that it is now developing (the European Waste Catalogue), the precision of this approach
may be  more  apparent than  real.(72) Some of the categories  being  considered in  current
drafts of the European  Waste  Catalogue are clearly not  self-defining --  virtually every specific
industry  category  has  residual categories such as  "manufacturing  not otherwise specified."
 Further, some of the categories themselves are quite  open-ended - e.g.,  draft Category 16.10.1
("small  amounts  of  hazardous  waste  (separate collected  fractions)  from trade,  commercial,
manufacturing and institutions"), which is a subcategory of 16.10 ("mixed bulky wastes from trade,

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commercial, manufacturing  and installations"), itself  a subcategory of 16  (Municipal wastes and
similar commercial, industrial and institutional wastes).
       Third, the tests to be used to determine when a waste is "hazardous" have been borrowed
from the directives for the  classification, packaging and labeling  of dangerous substances and
preparations. The elaborate testing  procedures used for determining the  hazardousness of new
chemicals before they are put on the market, however, are ill suited at best for the repetitive use
and  rapid resolution necessary when testing the multitude of  various mixtures that constitute
commercial and  industrial wastes.  Further, it is not at all clear that the Commission will in fact use
(or has the time to  use under the schedule set out in  the  relevant  directives) these tests  to
determine which of the listed wastes should  be classified  as "hazardous wastes" in its European
Waste Catalogue. Nor is it clear whether the regulated community will itself  have  to use  these
tests  to classify its own  wastes if the lists  are  not sufficiently clear and precise  to govern  all
cases, as they almost certainly will not be. If the  regulated community must use these tests, they
will have  to be  greatly simplified  and specific  rules  for  their application in  the waste context
carefully elaborated.
       Fourth, when  the Commission publishes its list, it will in any case  have to clarify whether
thresholds for contaminants apply to the waste categories, and what those thresholds are for the
various relevant contaminants, how mixtures are  to be  treated,  and  a number of other very
practical, but absolutely essential, details.
       Other areas  of  definitional  difficulty in the waste program include  the  scope of such key
terms  in Annex  II A of the Framework  Directive on Waste as discharge to a "water body" and
"temporary storage, pending collection"; the  difference in  Annexes II A and B between disposal
category D-10, "Incineration on land," and  recovery category R-9, "Use  principally  as a fuel  or
other  means  to generate  energy"(73);  and the technical  distinction  between  the  concepts  of
"liquid" and "solid" in the draft Landfill Directive.
       There are a number of cases where the failure of EC environmental legislation causes the
regulated community  to lack a  clear  standard of conduct.  The term "BTMA"  in the  water
legislation has never been defined adequately in practice  and few daughter directives have been
adopted for specific List I pollutants setting  BTMA. The same is true for BATNEEC under the  air
legislation. Thus, there have  been  few, if any,  effective guidelines at the EC level as to  which
types  of technologies qualify as BTMA or BATNEEC for various industry  categories (at least,  as
to BATNEEC, until recently), why they do so, how relevant technical and economic feasibility is to
be considered,  how these concepts are  defined,  what  specific pollutant  emissions  can  be
achieved  by the relevant technology, and thus what permit limits are  appropriate.  Further, such
details as how startup/shutdown and malfunctions are to be dealt with are  nowhere stated.
       The  same sort of difficulty has  existed  with the  Framework  Directive on Waste,  which
established some  limited procedural  requirements,  but which did  not spell out any substantive
standards at all for  various methods of waste  treatment, storage or disposal. Only now  is the
Commission drafting  landfill  and hazardous waste incineration directives that set substantive
standards.
       Finally, the Commission's draft Eco-Auditing Regulation, in Annex I.B, requires many areas
to be  audited, such as "energy management, savings and choice," "raw  materials  management,
savings, choice and  transportation; water  management  and savings,"  "selection  of production
processes," and "product  planning (design, packaging,  transportation, use  and disposal),"  for
which no substantive legal standards now exist  or are set  out in  the proposed directive, and  for
most  of which  (e.g., "selection of  production  processes") no commonly agreed environmental
standards of any sort, legal or otherwise, exist.(74) And  such  techniques as product  life cycle
analysis,  that might  be  thought  relevant  to   categories like  "product  planning," are  highly
developmental, subjective, value-laden, and thus  problematic.
       Questions regarding measuring compliance,  deadlines for compliance,  and self-monitoring
and reporting are sometimes  covered in permits issued  under member  state law.  Because EC
environmental legislation frequently ignores them (except  as to analytical  methods and averaging
times), the enforceability of EC law in these regards turns on the  happenstance of  member state
implementation.

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 52                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       The impact of incorrect procedural  adoption on the enforceability  of EC environmental
 requirements on the regulated community may be most apparent, other than in the cases of the
 Titanium Dioxide judgement and the shadow it casts over the crucial Waste Amendments, where
 a member state  has incorrectly  implemented EC law and  the "direct effect"  doctrine  or  the
 principle of the Frankovitch judgement can be successfully invoked  by a  regulated entity or a
 member of the public. For a discussion  of these matters  and references to  other sources on
 them, see Deskbook at 7-8.
 6      CONCLUSION

       EC  environmental legislation  offers  ample illustrations of  the  propositions in the main
 speaker's paper. It also illustrates the critical role played by institutional capability in design  of
 enforceable regulation.  Solutions, especially on the institutional front, are likely to prove  difficult,
 but lessons can be learned, in any case,  by all.


       REFERENCES

 1  For a discussion  of the  EC's governmental institutions and of the environmental  regulatory
   system, as well as a compilation of the main pieces of legislation, see European Community
   Environmental Law Deskbook. Environmental Law Institute, 1992, T.  Smith, Jr.  & R. Hunter.
 2  Eighth  Annual Report to the European Parliament on  Commission  Monitoring  of the
   Application of Community Law -  1990, Annex C, Monitoring of the Application  by Member
   States of Environmental Directives, O.J.C. 33811 (Dec. 31, 1991) [hereinafter Commission's
   Environmental Implementation Report].
 3  Clinton  Davis Hits Lack of Enforcement as  Contributing  to "Democratic Deficit" [Current
   Report] 12 Int'l Envt.  Rep.  (BNA) 579 (Dec.  13,  1989)  (Mr. Clinton Davis is a  former EC
   environmental commissioner).
 4  Report of the Committee on the Environment,  Public Health and Consumer Protection  on the
   Implementation of European Community Environmental Legislation, PE 152.  144/fin.  (J.
   Vernier, rapporteur, Jan. 6, 1992) [hereinafter Parliament's Report on Implementation].
   Report of the Committee on  Legal Affairs and Citizens' Rights on the Eighth Annual Report to
   the European Parliament on  Commission Monitoring of the Application of Community Law -
   1990,  PE 155. 131/fin. (J.M. Bandres Molet, rapporteur, Mar. 27, 1992) [hereinafter
   Parliament's Report on The Commission's Environmental Implementation Report].
 5  J.  Reitzes, The Inconsistent  Implementation  of the Environmental Laws of  the European
   Community, 22 Envtl. L. Rep. 10523-28 (1992).  Several important studies  have been
   compiled on member state implementation of EC environmental legislation. N. Haigh,  Manual
   of  Environmental Policy;  the  EC and Britain,  Longman, 1992 (hereinafter Haigh);  European
   Community  Environment  Policy in Practice,  Graham & Trotman, 1986 (comprised of, in
   separate volumes  and by separate authors, a comparative study, and national  reports on 'the
   Netherlands, France and the Federal Republic of Germany).
6  For a general discussion of the  nature of, and enactment procedure for, directives, see
   Deskbook  at 5-6.  For a view that the process leads to enforcement problems' see
   Parliament's Report on Implementation  at 11, para.  A.  Under the "direct effect" doctrine
   directives can sometimes   have important  implications  for private parties, even if not
   implemented, or not implemented properly, at the member state level. See  Deskbook at 6-9.
7  For a discussion of  voluntary action,  and its limits, see ENDS Report 211, 21 (Aug. 1992)
   (Voluntary action on the environment:  Environmental care in the Netherlands).  It should be
   noted that it is the position  of the Dutch government that  it will  use covenants  in place of
   regulations only where in its view, covenants are a more effective tool.  See also, Parliament's
   Report on Implementation at  16, para. C 2.

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8  For a discussion of how an environmental regulatory system can be made compatible with the
   needs of private investors, see The Point of View of the Private Investor  - The Impact of
   Environmental Laws on Privatization Transactions: Due Diligence and Other Means of Coping
   with Environmental Risks, Conference on  "Privatization, Foreign  Direct Investment, and
   Environmental Liability in Central and Eastern Europe", Warsaw. (May 19-21, 1992).  It must
   be noted,  of course, that the regulated community, particularly in Europe, may acquiesce in
   regulatory  ambiguity if  it believes that later clarification will yield a better result, or at least that
   present  clarification would yield a bad result.  Further, it  can be argued that  foreign investors
   may prefer more clarity and certainty then domestic investors, since  the former  may feel that
   they are at a disadvantage  vis a vis the latter in securing  favorable decisions under an
   ambiguous regulatory provision.
9  See Commission's Environmental Implementation Report, Annex C at 220, para.  91.
10 Several of the Commission's Article  169 enforcement proceedings against member states
   have turned  on the need for implementing EC environmental legislation by legally binding
   rules, not administrative  guidelines.  Commission's  Environmental  Implementation  Report,
   Annex  C at 207, paras. 21-23.  See also,  Parliament's Report on  Implementation at 16, para.
   C 1.
11 For example, the proposed EC Eco-Audit regulation will require member state accreditation of
   the external auditors,  and the proposed Shipment  of Waste  Regulation will  require case-by-
   case shipment approval by member state competent authorities.
12 Commission's Environmental  Implementation Report, Annex C  at 208, para. 26, and 221, para
   95.
13 Id. at 206-7.
14 jd. at 207-9.
15 The Treaty on Political Union, agreed to by the EC member states at the December 9 and 10,
   1991 Maastricht Summit, is now going through the ratification process.  If approved,  it would
   substantially  expand the  EC's legislative  competence in the  areas  of social, consumer and
   environmental protection,  and  would  give important new powers to the Parliament  and the
   Court of Justice. Changes immediately relevant to environmental law include:
   •   Legislation removing  non-tariff barriers to trade:  Presently, the  EC uses  its
       "harmonization" power extensively for environmental measures that may affect trade in the
       internal  market.  These  environmental measures  are adopted  by majority voting  in the
       Council, and the Parliament's role is largely advisory.  The Treaty on Political Union, with
       its  new "conciliation procedure" for the adoption of legislation, would give the Parliament a
       greater ability to force  amendments to proposed legislation on the  Council and
       Commission.
    •   Environmental protection legislation:  Voting in the  Council on  environmental measures
       (which are  not  harmonization measures) is currently required to  be unanimous. The
       Treaty would  reduce that requirement to majority voting, after two readings  in the
       Parliament, thereby making it easier for more stringent  environmental measures to be
       adopted.
       In addition,  EC environmental powers  would be expanded to include the  express authority
       to adopt environmental legislation (a)  of "a fiscal nature," (b) affecting land use planning
       and water resource management, and (c) "significantly affecting"  a member  state's energy
       policy.  This purports to be  a significant expansion in practice of EC  competence  into
       areas previously thought to be  the exclusive domain of member states.  However, these
       particular measures would have to be adopted unanimously in the Council.
    •  Judiciary: The Court of Justice, at present, has no  power to penalize member states for
       failing to implement EC directives. The Treaty will give the Court of Justice the power to
       fine member states that, after being condemned for not implementing EC law, fail to
       correct the situation.
    These  changes to the legislative powers and process, by giving the  Parliament a greater role
    and by reducing the  voting  requirements in the Council, could result in a greater volume of
    more extensive environmental legislation.   By giving the Court of Justice the authority to
    penalize member states, the Treaty would increase the importance  of the expanding body of

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 54                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


    EC  environmental law.  Member states would be compelled, under pain of fine for the first
    time, to implement EC law.
 16 It can be argued, of course, that the member states acting in Council are simply implementing
    the public will, but where the issue involves legislation to force them to act, or to act in specific
    ways, there seems to be an inherent conflict of interest with  their natural desire to retain
    discretion for  their  national  bureaucracies.  Likewise, they have little incentive to legislate
    systems that show up their own  inadequate implementation or enforcement.
 17 The Single  European Act has,  by  giving Parliament a  larger role, resulted  in a situation  in
    which the Parliament  and the Commission, when  aligned  together on matters  being
    considered under Article 100a,  can sometimes outmaneuver laggard member states  in the
    Council.
 18 Directive 78/659 on the  quality of fresh waters  needing protection or improvement in order  to
    support fish life, O.J.L 222/1 (Aug. 14,  1978) [hereinafter Fresh Water Fish Directive].
 19 In a recent case,  however, the European Court  of Justice has created a new right of action by
    private  parties to sue member states  for damages suffered  as  a result of a member state's
    failure to properly implement EC law where that law bestows  rights upon such parties.  Joined
    Cases C-6/90 and  C-9/10, Francovich v.  Republigue  italienne  and  Bonifaci v.  Republique
    italienne (Nov- 19, 1991)-  The Francovich judgement could create significant new pressure on
    member states for proper implementation. And if the Maastricht  Treaty takes effect, the Court
    will have the power to fine  member states for non-compliance.
 20 There may be other disincentives to public interest group litigation, such as the UK rule that
    the losing party bears the winner's litigation costs and counsel fees.
 21  Cf.,  Commission's Environmental Implementation Report, Annex C at 205-9  (documenting
    these problems in some  detail); Parliament's Report on Implementation at 11-12
 22 jd. at 208, para. 32.
 23 See the Commission's  Environmental Implementation  Report,  Annex C at 221, para. 94;
    Parliament's Report on Implementation at 11, para. B.  For a description of this process, see
    Deskbook at 10-11; Commission's Environmental Implementation Report, Annex C at 205-6
    paras. 7-13.
 24 The  Commission is now  turning to use of regulations more frequently, as the recently adopted
    Eco-label Regulation, and its  proposed Eco-Audit and Shipment of Waste Regulations
    indicate.  As  noted earlier,  however, even regulations frequently require some form of
    implementation at member state  level.
 25  Parliament's Report on Implementation at 13.
 26  The  EC has recently adopted a Directive on the  Freedom of Access to Information on the
    Environment, but this legislation  contains numerous loopholes.  Directives 90/313 on freedom
    of access to information on the environment, O.J.L  158/56 (June 23,  1990) [hereinafter the
    FOI Directive].  See  Deskbook at 15.
 27  E.g., Commission's Environmental Implementation Report, Annex C at 207, para. 20 (the case
    of Belgium) and 210, para. 40 (the case of Germany); Parliament's Report on Implementation
    at 15, para. A.
 28 The  discussion below focusses chiefly on which subject matters are best dealt with at  each
    level, and why. These questions frequently turn on whether  one is dealing with the question
   of legislating (or  legislating further,  or adopting implementing administrative regulations or
   other legally binding measures), the question  of case-by-case implementation (as through
   permits or other forms of approval), or the questions of enforcing or adjudicating.
29 Woodrow Wilson,  Constitutional Government In The United States 173(1908).
30 The  basic framework, involving legislation  addressed  in many  respects to the  states and
   requiring state  implementation, is remarkably similar to  that of an EC directive.  The normal
   U.S. federal legislation  is  applicable nationwide, is directly effective  against the regulated
   community, and resembles an EC regulation.  The two acts  in question creatively combined
   both  methods of legislating, depending on the parts of the program in question.
31 There are difficulties  here.  The U.S. has decided that citizens  should be equally protected
   even though the costs of doing  so will vary geographically.   Third world nations, and  even
   some European ones, may see  the economic/environmental  risk  calculus differently than the

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   U.S., or be prepared to see different levels of protection at different geographic areas within
   their borders.  Further, it is not necessarily true  that the same ambient standards will  protect
   individuals in different  geographic locations to the same  extent, when  sources of  risk  from
   other routes of exposure to the pollutant in question, or other catalyzing or contributing risk
   factors, are considered.  Taking these matters into account, however, gets complicated.
32 Thus, there  are important constitutional limits to federal action.  In short, states cannot be
   forced to legislate or to regulate -- such direct coercion is  prohibited.  But indirect coercion is
   allowed  -- e.g., the threat of direct federal regulation where state response is inadequate, and
   the threat of withholding federal funds.
33 Several  other aspects of the federal/state issue may be worth noting.  First, the mechanics of
   funding have proven  to have a decisive impact on the balance of federal/state power. Federal
   funds have facilitated much of what state environmental agencies have been able to  do, but
   potential  withdrawal of funds has also been effectively used as  a club by EPA. Second, as
   implementation of federal environmental law has been delegated to the states, pressure is put
   on  state administrative law.   Federal administrative law,  whatever its problems, is  a  fairly
   coherent and well-developed body  of law.  The same cannot be said, however, for much of
   state administrative  law.  State administrative  law may provide no right of intervention, of
   judicial review,  or of  other fundamental  procedural protections taken for granted under federal
   law.  When one considers that environmental  licensing  allocates rights to use the limited
   assimilative  capacity of valuable air  and water resources, without which  many forms of highly
   profitable economic activity cannot proceed, the possibilities for abuse and  arbitrary decision-
   making at the  state level are apparent.  Third, many Americans  say they view federalism as a
   question of principle, particularly when they wrap themselves in  a states' rights mantle. Note,
   however, that they tend to change sides on the federalism  issue, depending upon where their
   individual interests lie.  Industry is normally in favor of state-level regulation (which it believes
   will generally be more lax than federal regulation, for a host of reasons),  except  ~ for example
   - where a uniform manifest system  would avoid the need to deal with fifty different  manifests
   as hazardous  waste is shipped interstate.  And environmental groups normally favor strong
   federal power.   But in  siting nuclear power plants or hazardous waste facilities, they  support
   local or state veto rights.
34 Europe  Environment, No. 392 at 19  (July 28, 1992). The Commission and the COREPER are
   to prepare a report on the subsidiarity doctrine by October.  jd. at 7.
35 Commission's  Environmental Implementation Report,  Annex  C at 221-22, paras. 96-100;
   Deskbook at 15.
36 On the other hand, the Agency will  have information gathering  powers that may prove useful
   to the Commission, given the documented lack of cooperation by member states in this regard
   to date.  See Commission's Environmental Implementation Report, Annex C at 221, para. 93.
37 See supra note (2).
38 E.g., The Commission's Environmental Implementation Report, Annex C at  217,  para. 77;
   Parliament's  Report on Implementation at 6, 8-9; c.f.,  Parliament's Report  on the
   Commission's Environmental Implementation Report at 16-17.
39 Ambiguity in EC legislative language is  particularly difficult, since no legislative history exists.
   The closest thing may  be the Commission's Explanatory Memoranda, which the Council  is not
   bound by, and the minutes of the Council Meetings, which may be hard to obtain and which
   have no  standing in court.

40 Directive 76/464 on pollution caused by certain dangerous substances discharged into the
   aquatic environment of the Community, O.J.L 129/23 (May 18,  1976) [hereinafter Dangerous
   Substances Directive].
41 ki art. 7, paras. 1-3.
42 kl. art. 7, para. 3.
43 Jd. art. 7, paras. 5-7.
44 One simple solution, of course, would be for the Council to routinely give the Commission the
   authority to itself adopt the  more detailed  implementing legislation that broad statutory
   language, usually all one can usefully get out of a legislative body in any case,  needs  in  order

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   to be effectively  implemented and  enforced, whether with regard to subordinate  levels of
   government or the regulated community.  The U.S. EPA  has this power in virtually all cases.
   The Community  has used a similar  legislative technique in  the area of food  regulation,
   delegating to the Commission, acting  through a Technical Committee of member state
   experts, the ability to enact further implementing legislation without intervention by the Council
   except in case of deadlock. It has not used this technique widely in environmental legislation.
   In the U.S.,  formal administrative procedures for public input during  the EPA rulemaking
   process and  the easy availability of rigorous judicial review provide safeguards to substitute
   for the lack of political control in this form of subordinate administrative "lawmaking." Absent
   such  safeguards in the  EC context, use of this technique, while perhaps efficient, would be
   problematic, although the use of the Technical Committee (with  resort to the Council) retains
   some semblance of political control.
45 The U.S. statutory language establishing the basic federal water quality regulatory program
   has more detail than the Dangerous Substances Directive, but still lacks explicit treatment of
   many of these key matters. It has also had a checkered history of implementation.
46 See the pointed  comments by the  Commission in the Commission's Environmental
   Implementation Report, Annex C at 217-18, paras. 77, 78, 80.
47 Deskbook at 22.
48 See The Commission's Environmental Implementation Report, Annex C at 217-18, para. 80.
49 See Haigh  at 3.8 to 3.10 and his subsequent discussion in the context of specific directives.
50 For the history of EC efforts here, see Deskbook at 18-19.
51 See Deskbook at 18-19,  21-22, 24-26; The Commission's Environmental Implementation
   Report, Annex C at 216, para. 73, 219, para. 85.
52 Dangerous Substances Directive, art. 6, para 1(b).   A similar problem exists  with  the
   substantive test for BATNEEC under the air pollution directives.  Deskbook at 18.
53 Dangerous  Substances Directive, art. 9.
54 Id. art. 1, para, c, art. 3, para. 3.
55 See Deskbook at 17, n. 134.
56 Fresh Water Fish Directive, art. 1, para. 1.
57 Directive 79/923 on the quality required for shellfish waters, O.J.L 281/47 (Nov. 10, 1979)
   [hereinafter Shellfish Directive].
58 Directive 76/160 concerning the quality of bathing water, O.J.L 31/1 (Feb. 5, 1976) [hereinafter
   Bathing Water Directive];  Directive 75/440 concerning the quality required of  surface water
   intended for the abstraction of drinking water in the Member States,  O.J.L 194/26  (July  25,
   1975) [hereinafter Abstraction of Drinking Water Directive], as amended by Directive 79/869
   O.J.L 271/44  (Oct.  29, 1979).
59 Parliament's Report on Implementation  at 8; Haigh at 4.10-1 to 4.10-3.
60 Commission v. Italy, Case 322/86,  1988 E.C.R. 3995.
61 Deskbook at 21, n. 194.
62 Directive 84/360 on the combating of air pollution from industrial  plants, O.J.L 188/20  (July  16,
   1984) [hereinafter  the Framework Directive on  Air Pollution From Industrial  Plants],  art. 4,
   para.  2.
63 See Deskbook at 18, n's. 145-47.
64 Commission's Environmental Implementation Report, Annex C at 216, para. 73.
65 Deskbook at 18, n. 145.
66 Id at  24.
67 See Deskbook at 5, n. 12, and 5-14, passim, for a discussion of the two methods of enacting
   legislation, their consequences, and the litigation.
68 Directive 75/442 on Waste, O.J.L 194/26 (July 25, 1975),  as amended by Directive 91/156,
   O.J.L 78/32 (Mar. 26, 1991)  [hereinafter Framework Directive  on  Waste and Waste
   Amendments respectively], art. 2, para. 1(b)(iv).
69 Directive 82/501 on the major accident  hazards of certain industrial  activities, O.J.L 230/1
   (Aug.  5, 1982) [hereinafter Sevaso Directive], as amended by Directive 87/216, O.J.L 85/36
   (Mar.  28, 1987), and Directive 88/610, O.J.L 336/14 (Dec.  7, 1988).
70 Jd Annex II.  See  also, Parliament's Report on Implementation at 8.

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71 E.g., Waste Amendments, art. 1, para, (a); Directive 91/689 on hazardous waste, O.J.L 337/10
   (Dec. 12,  1991)  [hereinafter Hazardous Waste Directive],  art. 1, para. 4.  The fact  that the
   Framework Directive on Waste has used a definition of waste that turns on national definitions
   has made easy, pan-European compliance difficult for industry.  See Deskbook at 24, n. 240;
   c.f.,  Parliament's Report  on Implementation at 8. While the Waste Amendments were
   intended to  cure these problems, the older legislation continues  in effect until the Waste
   Amendments are promulgated, those Amendments are under challenge in the European Court
   of Justice  on "Titanium Dioxide" grounds, and the new  definitions have the problems laid out
   in the text in any case.
72 See, e.g.,  Parliament's Report on Implementation at 8.
73 Not  to mention the distinction between  "incineratable packaging" which  constitutes
   "recoverable" packaging (a "good thing"), and packaging that is classified as "non-recoverable"
   (a "bad thing") because its incineration constitutes  "final disposal" (i.e. insufficient heat being
   recovered).  While  technical distinctions are set  out  between the two in Annex II to the
   Commission's proposed Packaging Waste Directive, real difficulties remain when  something
   as simple  and obvious as the varying heat value of residues in the packaging is considered.
74 Further, even if clear, developed environmental standards did exist on matters like selection of
   a plant's  basic  production process (separate from  the already existing environmental
   legislation that must be complied with in  any case), there  would likely be little consensus on
   their relationship to the mandates of consumer choice (dictated  by  the principle of consumer
   sovereignty) and of economic efficiency in production and distribution (dictated by the  use of a
   free  market).

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              59


COMBATTING ENVIRONMENTAL CRIME IN AN INTERNATIONAL CONTEXT

Y.A. VAN DER MEER

National Criminal Intelligence  Service, P.O. Box 20304, 2500 EH  The Hague, The Netherlands


1     THE DEVELOPMENT OF ENVIRONMENTAL CRIME

      The  phenomenon of environmental crime has  been assuming greater  proportions  since
1985. One of the reasons  for this is the  growing "waste mountain" within  Europe.  Europe
produces too much waste  material  and there are too few possibilities for  processing it.  In most
cases the NIMBY (not in my  backyard) principle applies when incinerators  and  waste dumps are
being established. Because governments  are introducing stricter regulations with regard to the
processing  of waste, it is also becoming more  expensive to have this waste processed. In the
Netherlands, for example,  dumping fees have trebled in  recent years. (To  give an idea of the
extent of the waste problem, an annex  has been attached containing figures on the import into,
export from and transit of chemical waste through the Netherlands).
      Criminal  studies conducted in the Netherlands reveal that the pressing waste problem is a
breeding ground for  the  sharp growth in environmental crime.  "Environmental crime"  can  be
defined  as  "a type of  crime  involving a conscious violation of  the environmental standards laid
down in environmental law". Environmental offenses are usually committed  for economic reasons,
with  an  excess of  waste that nobody wants, finding its way onto the  illegal circuit  for a
considerable sum of money.


2     INTERNATIONALISATION OF ENVIRONMENTAL CRIME

      Legal inquiries  in recent years  have often focused  on international types of environmental
crime.  Recent studies  by  the National Criminal  Intelligence Service reveal that environmental
crime is assuming an increasingly international character.
      Types of international  environmental crime include:

             "Waste  tourism". This involves the illegal transportation of  waste material across
             borders  within  Europe. These  waste transport routes are often part of large-scale
             international environmental crime. Such transport lines are difficult to detect.

      When the internal  borders  fall  away in 1993, the external  borders  will become very
important for the illegal transport of waste. Once a shipment of waste has  crossed an  external
border,  it is of course also  inside Europe. There is then the risk that such illegal shipments can be
dispersed,  without  being checked,  throughout Europe  and  other  countries and  ultimately
disappear somewhere illegally or be dumped.
      This then gives  rise to a second derived form of environmental crime (also existing as an
independent phenomenon), namely:

      -   The  illegal  dumping of  waste at  random sites in Europe and  other countries.  Dutch
          studies have revealed that waste material from the  Netherlands  is  already finding  its
          way to dumping sites in  Belgium,  France, the United Kingdom,  Yugoslavia, the Soviet
          Union, Poland, and Rumania.

       For the environmental criminal operating  at an international  level it is profitable to collect
waste  material  in one country and  dump  it illegally in  another,  whether or  not under false
 pretences.
       One  problem  when dealing with this type of  illegal operation is  that  it is  not  easy to
 exchange information internationally.  The tackling of this crime is hampered  by differences in

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 legislation  and enforcement practices. The risk of being caught for illegal  dumping  is therefore
 slight, and the economic advantage for the suspect is considerable.
       It has been shown that environmental crime conducted on an international scale is most
 profitable, and also that the combatting of such crime gives rise to problems.
 Illegal operations carried out  in  different countries  are less  conspicuous  than  if they  were
 conducted in a restricted  (national) area.  It is for this reason that there is such a slight risk of
 getting caught.  The  inevitable  consequence  is  that  professional environmental  criminals will
 increasingly do their best to look within Europe for illegal dumping sites where unwanted  waste
 can be deposited. This means that almost all  European  countries will face the risk of  having to
 contend with this  type of crime.
       It therefore seems essential  to  coordinate the fight against  international environmental
 crime.
3      THE CURRENT SITUATION

       The  combatting of international environmental crime  makes  use of ad-hoc cooperation
structures and treaties. This type of international cooperation is sufficient for simple offenses, but
becomes much  more  difficult  if  we are  dealing  with professional  criminals who  operate
internationally.
       In 1989 the National Criminal  Intelligence  Service conducted  a study examining  whether
and to what extent illegally operating dealers and transporters were also involved in other types of
crime. The study  investigated  116  businesses and examined the criminal  records  of  the
management of  these firms.  It was found  that of the 263 managerial  personnel  (directors,
managers,  board members) one quarter had committed other offenses. Their criminal records
included  the following types of crime:  fraud, theft, breaches of the firearms  regulations, and illicit
drug trafficking.
Recent studies of environmental crime also reveal  that persons involved in  more "traditional"
types of crime, such as illicit drug trafficking, also turn to environmental crime.
       The above warrants yet again the conclusion that we are dealing here with a serious type
of crime  which the more professional criminal  has taken control of. Analyses show that  the
involvement of  professional  criminals  in  environmental  crime requires  a  thorough legal
investigation.
       In order to be able to tackle  this type of  environmental crime, an extensive  preliminary
investigation in  an international context is often required. Experience shows that, in particular, the
gathering of relevant information  gives rise to problems because:

          The information is often spread over different sources;
       -   A central contact point is not usually available;
       -   There is no uniform international definition of the term "environmental crime";
          Professional (environmental) criminals usually  arrange  a legal facade for their illegal
          activities.

       In addition to information from judicial bodies, information from  other government bodies is
also relevant to the tackling of the environmental crime problem, nationally and internationally.
There  needs to be, for instance, a continuing examination of the extent to which permits and
exemptions are issued.
       Almost every European country has a  government apparatus charged with monitoring the
observance of environmental regulations. Nevertheless, the exchange of information
encounters problems here too because of the complexity of the systems in question, ignorance of
these systems, as well as a lack  of  contact points.
       After a preliminary (pro-active)  investigation  is completed, a  decision  may be made to
proceed to  a criminal investigation. Here the cooperation  of legal authorities in other countries is
essential. An often long and difficult course has to be followed before such agreements  can be
reached.

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4      DESIRED SITUATION

       As outlined above,  the  already  present  internationalisation of environmental crime  is
expected to continue. The waste issue is  a growing problem, and for  this reason there will
continue to be a market for illegal practices.
       There seems to be an increasing need within Europe and other counties for harmonisation
and coordination in the fight against international types of environmental crime.
       It would seem desirable for the cooperation and harmonisation to occur at two levels:

       -   Firstly, it is important to gather coordinated information about and for  the purposes of
          investigation operations;
       -   Secondly,  it  is  also  important to collect  information  from  government  bodies  in  a
          coordinated fashion.  As  mentioned above, almost every (European)  country has  a
          supervisory  apparatus  that is  responsible  for monitoring the  observance  of
          environmental regulations.  In order to  combat international  environmental crime, this
          information needs to be combined at an international level.
      ANNEX

      Information from the  Ministry of Housing, Physical  Planning and Environment (Source:
General Directorate for the Environment, annual figures on chemical and toxic waste 1990, June
1991),  shows that 195,000  tonnes of  chemical or other toxic waste were exported  from  the
Netherlands in 1990  and 200,000 tonnes of waste were imported. The quantity of toxic waste
which passed through the Netherlands amounted to 38,000 tonnes.
The  number of  shipments of waste  increased by  55%  in comparison with 1989. This is three
times greater than in  1987.
      The large-scale  transporting of  waste  gives rise to  monitoring problems  and  provides
criminals with opportunities to engage in illegal activities.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             63


DEVELOPMENT OF  THE  POLICE'S  ENFORCEMENT POSITION  IN  THE FIELD  OF
ENVIRONMENT

M.J. HORSTMAN

Environmental Police Duties, P.O. Box 117, 3970 AC Driebergen, The Netherlands


1     HISTORICAL OVERVIEW

      Various environmental  laws were passed in a short period of time in the seventies. The
way in which  the legislation should be enforced was regulated, but very little attention was paid to
this matter in the early years. This had certain consequences,  of course. A number of scandals
involving chemical waste  revealed the shortcomings of the control mechanisms. In addition, the
ways  in  which the laws were enforced, were very complicated.  Every government body (national,
provincial  and municipal)  had its  own responsibility in the chain and this led to coordination
difficulties.
2     DEVELOPMENT  OF  THE POLICE'S ENFORCEMENT POSITION  IN  THE FIELD OF
      ENVIRONMENT

      The regular police, as well as special detective services and  civil servants, play a role in
the enforcement of penal provisions of environmental legislation.
      Enforcement of criminal  law in the Netherlands has traditionally  been an  area for the
regular police. An increase of legislation and the workload, caused  the police to give priority to
relatively serious crimes.
      Most offenses against environmental legislation were given a low priority, on the one  hand
through  a lack of knowledge with the police and on the other hand, through the low degree of
social moral indignation.
      Especially  because of this, a number of ministries and  other  administrative bodies at
various  levels felt the strong need for their own enforcement  departments with an emphasis on
administrative rather than criminal enforcement.
      In past few years social  environmental awareness  had grown strongly.  Offenses against
environmental values have come to be regarded more  and more as infringements of an essential
code of  behaviour and therefore  as criminal behaviour.  At the same time, a growing importance of
penal enforcement has been  observed. These developments  have  influenced  the police in the
serve that  they have started  a  strong reorientation on task,  role and  position  of the police in
relation to environmental enforcement.
      In 1987 the minister of the environment took the standpoint that: the enforcement, in the
sense of detecting offenses  against environmental  legislation,  belongs with  the police.  This
general  enforcement duty  should not  be diminished  any further through the  founding of new
special detective services for environmental affairs.
      Arguments for the role of  the police
      -   the police are  available and on patrol 24 hours a day;
      -   the police are specialists in conducting investigations;
      -   the police work falls under the authority of the public prosecutor;
          the police are  objective and independent; and
          the police are familiar  with their  locations and have  access  to  a great  deal of
          information.

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 64                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


 3      ACTUAL DEVELOPMENTS

       In 1990 the Coordinating Police Council - an umbrella organization of all police services -
 drew up a policy plan for the police environmental duties and called this "to enforce or to lose". In
 this report, the police environmental duties were described as follows:

       -   detective duties, which  are divided  according to the following  forms of environmental
          crime;
       -   minor environmental  offenses, such as littering, noise nuisance, tinkering in the street;
          lesser  environmental crimes: for example incidental discharges,  illegal  dumping  of
          crude  waste, illegal spreading  of  manure  on the  land,  illegal  car demolishing
          businesses;
       -   severe, organized environmental  crime: for example illegal commercial processing  of
          (chemical) waste, or  crimes which cause severe damage to the environment;
       -   supporting the administration: assisting  the administrative bodies, detection  (eye and
          ear  function),  advising on  permits (enforceability),  registering  and passing  on
          environmental complaints;
          internal environmental care: from the exemplary function of the police itself to  a change
          in  the  culture and mentality of policemen, the environmental  aspect will have to be
          integrated.
       This policy plan is not only directed at the development of the enforcement duties  but also
 at:
       -   demarcation of duties in this field in  relation to  other organizations which are involved
          in the enforcement;
       -   attunement - and cooperation  -  with other organizations (administration, Ministry  of
          Justice, special detective services, monitoring officials);
       -   the consequences for  the Dutch police manpower with regard to,  equipment  and
          financing,  including training;
       -   the development of activity plans.
       This all will be needed to substantiate the necessary conditions for the  implementation  of
 the environmental duties within the police.  Following  this, a  re-structuring  of  the  environmental
 care takes  place. In  this way regional environmental bureaus within the police  organization have
 been founded in most police regions with  financial support from the ministries of Internal Affairs
 and  Justice.  From these bureaus activities are planned  to stimulate broad  acceptance of the
 environmental duties within  the  police.
       The concrete  effort of the police in this field of lesser and severe environmental crimes has
 lead to a considerable number of criminal investigations that have been solved.
       Apart from the above the  police is also actively involved  in monitoring projects in close
 cooperation with  the administrative authorities. These projects may vary from checking certain
 businesses  to  dealing  with environmentally  unsound  situations  (problems   with  manure, car
wrecks, discharges onto water). Evaluations of these monitoring projects have  brought to  light
that it is most effective to involve the police in compliance monitoring visits to businesses.
       In cooperation with the Ministries of Internal  Affairs and Justice, mayor developments have
 been put in motion with  respect to  the conditions under which the police environmental duties are
to  be shaped, especially where training, information  and automation and internal  environmental
care are concerned.
       In 1990 the  "Task  Field Environmental  Crime"  was  founded by  the  National  Criminal
 Intelligence Service (CRI), at the  Forensic Laboratory the main department of Environment  was
founded which, in close cooperation with  the  Environmental Assistance team  of  the Ministry  of
 Housing, Physical Planning and Environment, professionally support the police  in tackling severe,
environmental crime cases in particular.
       The Task  Field Environmental  Crime Intelligence Service (CRI) focuses on the  following
activities:
          investigative expertise;
       -   crime analysis;

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                               65


       -   environmental accountancy;
       -   international mediating function;
       -   joining information flows at a national level;
       -   understanding developments in environmental crime; and
       -   recognition of the relationships with other types of crime.
       One of the activities which calls for priority as well is the application of means of detection
which  are being  used for other types of professional  crime. This has led to pilot  projects now
being in force with the Regional Criminal  Intelligence Services.
       In relation to the often international  character of environmental crime - just think of the
illegal  cross border shipping of waste - the Netherlands have asked for more attention on tackling
international  environmental crime  at the TREVI-III conference (this is the  EEC conference on
police  matters).
       At the 8th Symposium  on  International  Fraud  held in  Lyons in June  1992,  a
recommendation  was accepted in which a working party was established to identify the various
problems that arise in connection with environmental crime.
       In developing the police environmental duties, the police run into a number of obstacles.
The sheer size, the quality and the inaccessibility of the legislation  form  barriers against forceful
enforcement by the police. The administrative context - just think of the problems that are related
to administrative permissiveness and the enforceability of permits  -  also greatly influences the
enforcement possibilities of the police.
       Summing  up it may be concluded  that  infrastructurally a fair number of activities  have
been started. The intention behind these activities is, of course, the improvement of the  quality of
environmental enforcement and the priority it gets.
       The regional chiefs of police held an environmental conference on December 2nd and 3rd
 1991.  In the conclusive statement of this conference, the chiefs of police articulated a number of
policy intentions to ensure that the effort  of the police on a strategic as well as
operational level, will  be intensified.
       -   It  is intended that, in relation to social effects on environmental enforcement, which will
           have to be further worded, the efforts will be doubled in 1995. In  effect this means 4%
           of the police budget.
           In  1996 almost all police officers will have had environmental training.
       -   In  1995  internal environmental care systems  will be operational  in  all  police
           organizations.
       -   The police will offer its expertise more emphatically to other organizations in order  to
           contribute to the enforceability of legislation and the resulting permits.
       -   The activities that have been  put in  motion in the field of information and coordination
           and attunement with other parties involved in enforcement, will  be  developed  in an
           accelerated manner.
       At this very moment we are charting  the information which will  be necessary for the
 execution  of the police  environmental  duties. We  are  also  investigating  in what way police
 information may be  given  to  other  partners in  the enforcement  network. In  accordance with
 privacy legislation, the police are ruled  by  the Police Register Act as well.  This means that the
 exchange of information is bound by strict rules.
       -   The police want to give more content to its director's function in the area of detection
           as far as special detectives and their services are concerned.  I have stated earlier that
           for several special laws, separate special detective  services have  been founded.  Since
           the police  have a general  investigative competence, attunement will  have  to  take
           place.
        In  order  to realize  these and  other  policy intentions,  the CPB founded  a special
 deliberation  structure.  The heads of the  regional environmental  bureaus  meet periodically  to
 exchange information and to learn from  one another's experiences. The CPB also  participates in
 many external national committees.

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 4     INFORMATION ON THE ROLE OF THE COORDINATING POLICE COUNCIL AND THE
       POLICE IN RELATION TO THE ENFORCEMENT OF ENVIRONMENTAL LEGISLATION

       The police organization in general and the police environmental duties.
       The Dutch police is currently working on  a unique reorganization. 148 autonomous units of
 the municipal police and the national police will merge to torm 25 regional bodies and a unit for
 nationwide services. The  operation  is meant to take place within a period of about  2 years  In
 April  1993 the new police  organization is to be operational.
       The regional organization is governed by the regional council, which consists of the police
 manager (the mayor of the largest municipality), the chief public prosecutor and the other mayors
 of the region. This body determines the allocation of personnel, the budget,  the annual account
 and the  policy plan. The  daily control and management of the regional police  force  lie with the
 regional  chief of police.
       The authority over  the police  has been arranged as  follows. Where  the enforcement of the
 public order is concerned,  the  authority lies  with  the  mayor; with regard  to  criminal law
 enforcement  of the legal order, the public prosecutor is the competent authority.
       The mayor, the public prosecutor and the chief of police of the municipality in which the
 police unit is stationed, confer at so-called "triangular deliberations", which are to be held on a
 regular basis. This will automatically  mean  setting priorities for the police.
       The organization  consists of geographical units and functional units such  as  criminal
 investigation, executive support, facilities and policy support units.
       The employees who work at  the geographical units  are entrusted with the so-called  basic
 police duties with general job specifications. Enforcement  of environmental legislation is part of
 this  job  specification.  At the  criminal  investigation  and  executive support  units  there are
 specializations  (in the field  of environment) for  fighting complex environmental crimes and for
 supporting the basic police units.
       The future police  unit of  national  services  will comprise the national  duties such as
 compliance monitoring  and detection on the motorways and through  waterways and supportive
 services  (technology, environmental  flights  in  relation  to  environmental  duties criminal
 investigation expertise, logistics).
       The chiefs of the 25 regional services and the chief of the police unit of  national services
 together  make up the Coordinating Police Council (CPB).
       The CPB has the following goals:
       -   developing and  propagating the views on all matters that are relevant for the police
       -   acting as point of address for all  matters that concern the police
       -   promoting the own professionality and up-to-date  picture of the police
       -   advising authorities and controlling services regarding the police
       Each chief of  police serves a certain port-folio. One of these is the police environmental
duty, which is now held by the chief-commissioner of the Rotterdam Police Region.
       For information about the organization and the  activities of the police  in the Netherlands
please contact:

       Marja J.  Horstman LL.M.            Robin Linthorst
       Environmental Police Duties        European Relations
       P.O. Box 117, 3970 AC Driebergen  P.O. Box 219
       The Netherlands,                  2501 CE  The Hague, The Netherlands
       Phone : (31 34 38) 358 30          Phone : (31 70)  310 34 6
       Fax : (31 3438)21590          Fax   : (31 70) 310 34 72

                   Yvonne van der Meer LL.M.
                   National Criminal Intelligence Service (CRI)
                   P.O. Box 20304
                   2500 EH The Hague, The Netherlands
                   Phone : (31 70) 376 93 40
                   Fax   : (31 70) 376 87 54

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ENVIRONMENTAL ENFORCEMENT BY MUNICIPALITIES IN THE NETHERLANDS

P. DORDREGTER

Director of the Association of Netherlands Municipalities, VNG, P.O. Box 30435,
2500 GK The Hague, The Netherlands.


      ENFORCEMENT: Collaboration and persistence


1     GENERAL REVIEW OF THE ENFORCEMENT SYSTEM IN THE NETHERLANDS

      Enforcement is the  ultimate test of environmental  policy - in fact, of every  area of policy.
Enforcement  involves forcing the regulated society to conform to the rules. The fact that there are
various means for doing this will be discussed a little later.  Above all, enforcement is the final link in
the policy cycle, and  thereby the prelude to the first policy-making link.
      Confronted with the regulated society, and thus the practical situation, the new policy-making
requirements imposed by  everyday  practice  become clear.  I should mention  now  that the
effectiveness of the instruments used certainly forms part of this feedback, which has the character
of an evaluation. Enforceability and public acceptance are important assessment criteria in this test.
       In the  Netherlands, municipal authorities bear primary responsibility for environmental policy.
These authorities are responsible for  supervising the  vast majority of the country's companies;
400,000  in all. This enormous number of companies includes  many organisations which place  a
limited burden on the environment. As an example, I can cite the  combined residential and office
buildings, or which  50,000  are  subject to  licensing requirements.  Provincial authorities are
responsible for about another 3,000 companies, either  because of the  complexity of the  industrial
processes used or because of their high external impact.
       The Netherlands covers an area of some 35,000 km2, has a population  of 15 million, and  is
divided  into  12 provinces  and  649 municipalities. The provincial authorities, and the municipal
authorities in  particular, have an  open administration in which a large number of tasks are carried out
within an integrated policy framework. The municipal tasks may  be strictly autonomous duties, such
as responsibility for drains and  sewers, or duties  imposed by national legislation, which can  allow
municipalities a greater or lesser margin for independent policy-making.
       The entire territory of the Netherlands is also divided into water authorities. These are directly
elected,  functional regional  organisations, which  bear responsibility for water management and
purification of waste  water.
       Naturally, the municipalities not only concern themselves with  the companies within their
boundaries, but also  ensure that everyone in their  territory complies with the relevant environmental
regulations. They supervise  moped noise levels, for instance, and discharges of chemical wastes
into sewers (cleaning agents, paint remains, medicines etc.) or the street (from lubricants when
engine  oil  is changed, to  dog  dirt etc.); they also monitor  the composition and presentation  of
domestic refuse (compulsory separation of organic wastes, building and demolition wastes, domestic
chemical wastes etc.).
       In view of the enormous number of potential polluters and actual  transgressions, formal
 enforcement can never cover the entire population in full.  Priorities must be set, and a mix  of
 instruments must be applied.
       Municipal authorities  are not the only enforcers: a multitude of  different organisations may
 concern themselves with the same company. In addition to the  general environmental licenses
 issued by local authorities under the Nuisance Act, many of the 400,000 companies are required  to
 hold special  licenses under other  legislation. The  water quality  inspector may,  for instance, call on
 certain companies  to conduct checks of  water quality  control. In addition to  the general
 administrative bodies, the police and the public prosecutor have  their own powers of investigation for
 the enforcement of criminal law and  could,  in  principle,  operate  independently  of  municipal
 administrative enforcement activities.

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        Environmental policy is made at different levels. Legislation and the relevant standards and
 directives provide the framework within which other tiers of government must operate The aim is
 allow the greatest possible amount of local policy-making freedom, in order to ensure a customised
 approach.  Naturally, the margins of freedom vary from one area of policy to another.
        Unlike many other countries, central government in the Netherlands does not,  barring a
 handful of exceptions  (e.g. for  nuclear power), perform first-line supervision of compliance with
 legislation. Central government inspectors supervise the ways in  which other tiers of government
 perform their duties. Controls aimed at certain branches  of industry can cut across  municipal
 priorities in  extremely  aggravating ways.  Coordination of the actions  of different government
 agencies is urgently needed. For a company, it is incomprehensible and exceedingly annoying to
 have a succession of different enforcers moving in.


 2      POSITION OF MUNICIPAL AUTHORITIES IN ENVIRONMENTAL POLICY IS NOT SELF-
        EVIDENT

       The fact that municipal authorities have an important environmental task has not always been
 self-evident.  Despite their statutory duties, municipal authorities have allowed many companies to
 operate without licenses and have certainly not conducted  enough  inspections. For more than a
 century, these authorities  have been able to avail themselves of the Nuisance Act, which affords
 them responsibility for controlling local disturbances by companies.
 When real environmental policy was developed, the government did not opt to extend the  Nuisance
 Act, but introduced new legislation, with stringent rules, for each new approach laboriously agreed
 in Parliament. Consequently, each compartment was regulated separately in law and, moreover  the
 provinces were made responsible for the majority of the new tasks,  rather than the municipalities
 Responsibility for purification of waste water and the  relevant installations was actually withdrawn
 from the municipalities by  law.
       With each  new piece of  legislation, new financial resources were generated to fund  its
 implementation.  In an  era of stringent  austerity  measures,  this  became  increasingly difficult
 (municipal authorities receive about 75% of their income from central government). Licensing also
 became increasingly expensive, due to the tighter requirements imposed in response to increasingly
 complex processes and  the use of more hazardous substances.
       For a time,  municipal authorities were unpopular with the environmental movement and with
 many politicians, as they were felt to be too close to local industry to be able to take  an independent
 view in the field of tension between  economic and environmental interests. Gradually  the idea
 gained ground that environmental policy needs to be as close to the public as possible, and must be
 formulated  in direct correlation with  other areas of policy.  In fact,  it was precisely  the political
 approach, rather than the technocratic one, which proved to be the most effective.
       Relationships between  municipal and central government, originally confrontational and
 marked by scepticism, has now changed into a partnership: tasks are undertaken jointly, using the
 strengths of both partners. Research established the number of officials required at each level for the
 different municipal environmental tasks,  and the costs. The studies showed that a population  of
 70,000 is the  minimum needed to  carry a proper official apparatus. Collaboration between municipal
 authorities is therefore essential. Central government  made financial  resources  available on a
 structural basis,  issuing  instructions that  within five  years, all  companies  falling  under the
 responsibility  of the municipalities should be properly licensed and should be inspected with the
 proper frequency. To encourage collaboration, a 25% bonus was offered over and above the basic
 amount in case of collaboration. At national level, the operation was led by a steering group in which
 the Environment Department, the inspectorate and the Association  of Netherlands Municipalities
 (VNG) worked together.
      The  National Environmental Policy  Plan  Plus (NEPP-Plus)  has since  been  published,
operationalising national policy in  a large number of action programmes. To clarify what is expected
of municipal authorities in the execution of this plan, all the objectives have been translated to the
municipal level, assigning priorities and the relevant official action. This document is known as the
 Framework Plan of Approach and is  the  pride of the  Department and my own organisation  All

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              69


municipal authorities use the Framework Plan to define their own situation and to prioritise action.
With the help of the Framework Plan, they have all prepared their own environmental policy plans,
interpreting the points for action in terms of their own situation. This document serves as a basis for
discussions with industry and environmental organisations and is included in the regional talks of the
municipal authorities working in partnership. Local communities now know what they can expect of
their municipal authorities.


3      REGULATION SYSTEM

       Before  continuing with the theme  of  enforcement, I  must first  explain the  regulations
themselves. In a large number of branches of  industry, licenses are no longer required. Instead,
these branches are subject to General Terms and Conditions. Individual companies themselves must
ensure that they comply with the requirements. Plans to form, expand or change a business must
be  reported to the local authority. The municipal authorities do still  conduct inspections to check
compliance with the General Terms and Conditions.
       The repeal of licensing requirements was a result of central government deregulation efforts.
The branches  concerned consist of small, fairly uncomplicated businesses of a homogenous nature:
butchers, bakeries, LPG stations, etc.
       The NEPP-Plus laid down a large number of target reductions in emissions, which must be
realised within a specific period. The plan also names the branches of industry which must make a
particular contribution to the reductions,  known as the  policy target groups. Target reductions are
agreed with industry for individual  substances and are laid down in a declaration of intent, which is
then elaborated in a covenant. The three tiers of government hold joint talks with representatives of
the branch of industry concerned, and each sign the covenants. A covenant has already been
concluded with the basic metals industry and one with the graphical  industry is almost complete.
       Covenants  are a national 'bubble': they  show  total national volumes of  pollution levels
considered admissible for emissions of a specific substance. This makes clear what is expected of
a branch of industry. The municipal authority is given some indication of the standards which can be
imposed in a license. The distribution of pollution control measures will have to be considered within
the branch of industry itself. Clearly, this will demand a considerable amount of consultation. Industry
feels that covenants should, in fact,  serve as a package of standard conditions and that therefore,
there should be no scope for further development by a municipal authority. The municipal authorities
adhere to the  target group policy, because this  means that environmental policy is internalised in a
branch of industry and is developed  in a corporate environmental plan by the individual  companies.
This plan serves as the basis for negotiations with the local authority. However, municipal authorities
explicitly want a considerable margin of policy freedom in order to tailor final licenses to the situation
required locally.  In the enforcement situation, that could lead to problems in future.
       The licensing and enforcement situation  is complex, as I have already shown. There is every
reason for concerted action. Different parties  in society must help to create a desired situation
through coordinated  action:  a system of countervailing  power. Strictly formal enforcement, on the
basis of administrative and  criminal law, is  only one  option within a wide spectrum of different
instruments.  An orchestra does not always want to use  only its heaviest instruments, like the
kettledrums and tubas: the same applies in government.
 4     CONDITIONS FOR ENFORCEMENT

       A  number  of conditions must be  met in order to realise effective implementation of
 environmental policy, and thereby, its enforcement. Firstly, a municipal authority must clearly define
 what it wants and  must make this visible  in a proper document.  Secondly, the policy must be
 discussed as far as possible with the different target groups, in an open procedure.
       The partners must be told what has and has not happened  to their contribution, and why.
 Where possible, the partners' requirements must be satisfied. This can mean adaptation of the policy
 itself, or changes in the phases of execution. Standards and figures often seem extremely hard and

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 fast, with a scientific basis, but on closer inspection, are ultimately a political compromise.

        Operating  in this way can sharply increase public  support  for policy. General  public
 information must complete the process. The public, too, must be able to see how any compromises
 are reached and must be shown that high environmental returns have,  nevertheless always taken
 priority. In the negotiations with industry, the creation of a basis for sound control must be agreed-
 this could be a corporate environmental  plan, but also a certain method of supplying information'
 together with the appropriate monitoring system.
        I have depicted support for policy as a fairly harmonious process: in reality, of course  this is
 not always the case.  A government  organisation  needs partners in order to pursue its 'policy
 certainly in industry, where economic gain can quickly gain the upper hand. It can be made clear to
 banks and insurance companies that the government will not only bring licenses up to date but that
 enforcement action will follow. Experience shows that the RABO  Bank is by far the best enforcer if
 a guarantee is needed  for a company loan. Trade unions have an interest in ensuring high standards
 of environmental hygiene in companies,  both for the health of their members and for the continuity
 of the company. Finally, the public can be asked to keep a watch and to inform local authorities or
 the police if environmental transgressions  are suspected, or to institute civil proceedings themselves
        Publicity is needed to let the public know the municipality's environmental plans It can also
 be used to promote desirable environmental conduct. Some directors of municipal environmental
 services use publicity as  a weapon to make reluctant companies  conform more quickly to licensing
 requirements. Press announcements of targeted campaigns  in a  certain area or branch of industry
 markedly improve collaboration from the companies concerned. In any  action against a company
 the presence of the press, tipped off in advance, can make it clear to other potential transgressors
 in the same branch that the steps are being taken in earnest.


 5      PRIORITIES ARE UNAVOIDABLE

       I have already mentioned the enormous number of potential enforcement situations and the
 fact that it is impossible  to pay the same level  of attention to all of them,  everywhere  A set  of
 priorities will  have to be  drawn up for inspections, based on the potential burden which different
 companies can place on the environment. In other companies, unannounced random checks must
 be introduced. The enormous amount of work involved makes  it obvious that butchers and bakers
 could mostly be left to their own devices and that  one should rely on external tip-offs in these cases
 Self-regulation should be encouraged as far as possible. I have  already described how this could be
 done.
       It must in any event be made clear to everyone that action will  be taken if violations are
 discovered. An obvious step would be to require restoration of the former situation, for instance  in
 the case of discharges  into the soil by compulsory cleaning,  or compulsory replanting, in the case
 of unlawful felling of trees. If no appropriate response is made to the detection of a violation action
 must be systematically pursued,  in escalating stages. Ultimately,  criminal  proceedings may be
 necessary. Naturally, these will be required where criminal activities are involved, and the closure  of
 the company will be the obvious step. But Dutch law does not  make matters easy for enforcers  If
 a municipal authority announces a company closure, the company concerned can appeal to the
 Council of State. If the company has been operating for a long time without a  license or in violation
 of  license terms, the Council will tend to overturn the closure decision. Tolerance of a violation  is
 then interpreted in the  transgressor's favour: which  is a rather remarkable situation. After all  a
 company should comply with the law, but it is  not the company, but the supervisory authority which
 is held liable for such compliance.  These roles urgently need reversal. A company which operates
without a license, or in contravention of license terms, should be charged for the economic benefits
it has illegally enjoyed.  This would have a considerable effect as a preventive measure.
      Enforcement is a difficult task, and it  requires training. It  is certainly not always an  easy
matter to identify the regulation which has been  contravened from among the multitude of central
government, provincial,  municipal and water board regulations  which simultaneously apply to one
and the  same company. The method of action and of gathering  evidence also requires precision  It

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                               71
can cost officials a fair amount of difficulty to act in a company which confronts them with large
amounts of counter-knowledge. The  right attitude  also  has to  be taught.  To assist  municipal
authorities in this area, the Association of Netherlands Municipalities (VNG) has published a Guide
for Supervision and Action on Environmental Legislation, describing the successive phases.
6      COLLABORATION IS ESSENTIAL

       Inter-municipal collaboration is  essential in  order  to  formulate and implement  effective
environmental policies. The whole of the Netherlands is, by now, covered by partnership areas. In
the first instance, these involve joint use of sufficient official capacity. In time, collaboration grows
towards a regional environmental service and a policy-making body. Ultimately, the absorption of
these regions by genuine regional administrative bodies, which are directly elected, is inevitable.
       Enforcement involves a variety of different administrative organisations: municipal authorities,
provincial  authorities,  inspectorates, the police force and the public prosecutor. The Environment
Department encourages the  formation of enforcement regions.
       We already have tripartite consultation between Mayors, in their capacity as heads of  the
police force, their local Chiefs of Police and the public prosecutors for the districts concerned, in
which public order and investigation are discussed in general terms. In some cases, the municipal
Alderman  responsible for Environmental Affairs will  take part in the talks, in order to coordinate
enforcement of environmental policy.
       A major reorganisation of the police force is  currently  on its way in  the Netherlands. The
country is  divided into 23 police regions, which are  far larger than the environmental  regions.
Separate enforcement regions, corresponding to the environmental  regions, will now operate within
the police  regions. The enforcement regions will reach agreements  on priorities,  methods of action,
where  more than  one local authority  is involved, publicity and coordination of the  action to  be
pursued. In many cases, persuasion is tried first when violations are discovered,  followed by official
action, with criminal proceedings as a last  resort, or  as additional action.  However, where  existing
organisations are involved, the inspectorates and environmental organisations do tend take the view
that matters have gone beyond the information and persuasion stage!
If necessary, the different stages of the enforcement process must be organised and followed in
ways which ensure that procedural errors or  inaccuracies in one phase cannot jeopardise  the
success of a later  one. The  use  of standard procedures wherever possible,  and the creation of a
joint computerised data base, can be a great help here.
       Environmental  offenses do not always involve malicious intent. This is why information is so
important. Many contraventions are inadvertent. Here again, information or a different organisation
of the process should  be used reduce the margin of error as far as possible. Where there is lack of
interest, information will not be enough and corrective  action  will be needed, with or without a degree
of publicity. In the case of criminal offenses, a mix of instruments should be used, including criminal
proceedings. Sometimes the possibilities for official and criminal enforcement  overlap. For instance,
the judiciary can require significant improvements in environmental  quality as part of a settlement.
       Generally speaking,  criminal law is not yet  adequately  geared to handle environmental
offenses. The penalties are usually exceptionally light and as a result, limitation periods are short.
In the Netherlands, many environmental offenses are still not covered by the Economic Offenses  Act
and  even when they are,  do not  rank very  high.  Consequently,  the  instruments for  tackling
environmental offenses and the accompanying  penalties are equally weak.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                               73


ENVIRONMENTAL ENFORCEMENT IN GREECE

M. VASSILOPOULOS

Greek Permanent Representative  with  the European  Economic  Community, Avenue  de
Cortenberg 71,  1040 Brussels, Belgium


       PLATO' S LAWS H 845

       Water is easily polluted by the use of any  kind of drug.  It therefore needs the protection of
a law, as follows: Whoever willingly (or: purposely) pollutes water shall de obliged, in addition to
paying  an indemnity,  to  purify  the  spring  or  receptacle of the  water  whatever  method  of
purification is prescribed by ordinance, at all times and to everyone.


       The country is located in the northeastern part of the Mediterranean Sea. The coastline of
continental Greece is 7,078 purring, including  Peloponnese, while that  of the islands is 7,942 km.
This  makes a total of 15,020.9  km (National Statistical  Service, 1970). Greece has  an area of
132,000 sq.km and population of 9.7 million (population density of 73 inhabitants/sq.km). Although
the average population  is relatively low, 58%  of  the people, the greater part of those involved in
economic activities are concentrated in urban  areas.
       The largest urban centers  are located  near gulfs (e.g. Athens, Thessaloniki, Patras, Volos,
Iraklion).  Due  to  the high  urban/industrial  waste  load  in  those  areas the  pollution  of  the
environment has become a major problem.
       Due to the mountainous  nature of Greece there  is a strong  competition among industry,
agriculture and tourism for land in coastal areas. Those pressures have resulted in environmental
degradation such as water and pollution.
       Because of lack of adequate  space  in  Greece, there is  a  strong  competition  among
industry,  agriculture,  and tourism for land in flat areas especially  near the coasts.  The above
antagonism leads to an irreversible environmental  deterioration, which, also  affects the  natural
resources and represents  a  serious problem for the future development of the country.  Only a
 limited degree of planning and resource management has taken place in the last two decades.
       Tourism has become a major economic activity.
       Between 1962 and 1982 the  number of foreign tourist arrivals in Greece increased by
 890% to more than  5 million. Internal tourism has also increased significantly. 90% of all tourism
 activities occur in the coastal areas, resulting  in additional environmental degradation.
       Industrial activities have also increased with  high rates. Almost 80% of the  Greek industry
 is located in  the  coastal zone  (all 4 existing refineries, 3 out of  4 fertilizer plants  and all the
 metallurgical industries), especially in the Greater Athens and Thessaloniki areas.
       Agriculture also contributes to the pollution  of the coastal  areas though fertilizers  and
 pesticides.  In 1985  2188 x  1000 tons  of fertilizers and 2800 tons  of pesticides  were added  to
 agriculture soil. Solid waste especially in tourist areas is another problem.
        It must be noted that Greece  is one of the few countries  which  have included  in their
 constitution an article on environmental protection.  In article 24  it is stated that protection of the
 natural and cultural  environment  constitutes an obligation of the state and the state is responsible
 for taking special  preventative or enforcement measures towards its conversation. Articles 21, 22
 and  106 deal with  the  protection ow workers,  public health, urban  development and physical
 planning.
        The application  of these constitutional orders was  made  possible  by the introduction and
 adoption by the Parliament of  law 360/1976 on environmental and physical  planning.  Certain
 articles  of this law have been subsequently revised by law 1032/1980.
        According to the law  360/1976 the policy for physical planning  and  environment is shaped
 and  monitored by a National Council (NCPPE)  chaired by the Prime Minister and composed by

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  74                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


  the  Ministers of  National Economy, Finance, Agriculture, Sciences  and Cultures,  industry and
  Energy Social Affairs, Public Works, Physical Planning and Environment and Mercantile Marine
        in  order to strengthen the implementation  and control procedures, a new Ministry for the
  Environment, Physical Planning and Public Works was  created by  law 1032 in 1980  From a
  small number of administrators in 1972 the new Ministry has now more than 250 employees and
  regional representation in all prefectures of the country. This Ministry is the main executive body
  carrying out the environmental policy and general enforcement of the Government
        In  addition there  are  administrative  units in almost every  Ministry which  have  been
  assigned  respons.bi.ty on environmental protection,  such as the Ministry of Agriculture  (forest
  wild life,  pesticides),  the  Ministry  of  Mercantile  Marine (pollution  by  oil and other harmful
  substances  from ships and land based  sources),  the  Ministry  of  the Interior (solid wastes
  municipa  waste water). Also  the Ministry of transport has established throughout  the country
  Technical  Inspection Centers for conducting periodical mechanical and emission tests on all types'
  of vehicles  and  the  Ministry of National  Economy  formulates and coordinates the finances
  concerning environmental  policy at national and regional  levels-as it  does for individual sectoral
  policy TinsncGS.
 nroH  ,',n ST' tfl! inst'tutional and legislative provisions for environmental management are being
 gradually strengthened. The  intent is for increased capacity  to develop  and implement more
 consistent policies and programmes for environmental protection.
 r   i» T^ use.of.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              75


      To promote regional development in  Greece in the  early 80's, the establishment of  any
industry in the area of Attica around Athens was prohibited. Establishing industries outside  this
area was encouraged by tax and customs exemptions. Since 1982 a serious of laws have come
into force dividing the country into 4 development areas with different incentives.
      Law 1892/90 supports industry's anti-pollution investments by giving incentives to:
      a.  Enterprises  making  productive investments which  contribute  inter  alia to  energy
          conservation, reduction of environmental pollution and the quality of life.
      b.  Enterprises which are related  to the repair, restoration and conversion  of houses or
          buildings (focusing on creating hotels and  enterprises carrying  out investments  (for
          business settlements)under the preceding section in other areas which are entitled to a
          further 5% investment grant,  provided that said traditional houses  or  buildings  are
          located in significant traditional settlements.
      c.  Enterprises relocating industries from large urban  areas (e.g. Athens) to other rural
          settlements with respect  to decentralization.

      The given incentives vary from 40% (in Athens)  to 50% (near the borders) of the cost.
      The prefectorial services are charged  with the control of the proper application of laws  and
permits.
      By the fundamental law 1650/86 the installation of environmental quality control units
(KEPE)  in any prefecture has been regulated. The prefect can nominate functionaries from the
prefecture  personnel  including  representatives from  the  Ministry  of the  Environment.
Representatives  of the  local  authorities can also participate. The units have  all the necessary
rights for proper  supervision by entering premises, sampling, suggesting measures or sanctions.
      Administration fines after prefectorial decision can  be imposed up to  10  mil.  Greek drs. or
44.000  ECU.  In severe  cases  (e.g.  accidental  spill  with victims) the  Minister has the right to
increase the fines up  to 6 mill. ECU. Also temporary or  permanent withdrawal of  a  permit  is
possible together with fines up to 6.000 ECU per day of illegal work.
      The penal code  is applied  for violations  of environmental  legislation. Complaints  can de
made by those who are affected by actions that cause  environmental damage.
      For violation of the environmental legislation, imprisonment for up to 2 years  and penalties
can be applied.
      The Administrative tools for  enforcement are:
          Administrative penalty payments (for each) violation or for each day the company does
          not comply after issuance of administrative order);
          Partial or complete closure of a plant;
      -   Administrative coercion;
          Revoking the permit.

      Criminal tools are:
          Imprisonment;
          Fine;
          Closing  of the factory/company for at most one year.

      Air pollution problems, especially  the smog formation ("Nephos"), are severe in Athens,
where 70%,  of the economic activity and almost 40% of the  population is concentrated.
      The  main pollution  source  are the velrcles which  are responsible for 75% or  the  air
pollution in the City.
      Industry contributes about 20% and domestic sources 5%.
      During recent  years, severe  air  pollution episodes have taken  place  (there were  ten
episodes during  1987).
During the air pollution episodes measures for  strict  reduction of industrial activities and traffic
have been taken in accordance  with the existing emergency plan.
      Photochemical smoke episodes that take place are  comparable  to  the  Los  Angeles
situation.

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 76                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


       Sulphur Dioxide air pollution in Athens is under control due to the restriction  of fuel oil use
 in central heating  in the  Greater Athens area and the reduction (to  0.2%)  of the Sulphur content
 in Diesel for traffic and central heating.
       The  reduction of lead content in petrol from 0.84 to 0.15 gr/l. has resulted in decrease in
 lead concentration in the air. The ambient lead concentration of 0.8  ug per cubed meter of air, is
 within the guideline annual mean of 0.5-1.0 mg/cubed meters, set by the WHO.
       Because of high  taxation, the majority of the  cars were old and small.  According  to  L.
 Patas private  communication, one third of the  imported cars, registered in Athens in 1986,  were
 second hand. The EC derived regulations with stricter car emission standards and lower taxes
 stimulated massive  car  purchases and resulted in lower emissions.Additional  incentives  were
 given for the  replacement of aged petrol  vehicles  with new "clean"  ones with 3  way catalytic
 convenors.  These incentives which are in the  form of  a 50% to 60% discount on the special
 Consumption tax were put into effect as of January 1991. The rate of scrappage of aged cars and
 replacement with new clean  ones has increased dramatically.
       In  order to improve  further the  industrial  development,  industrial  estates  have  been
 established  as a mean of decongesting the capital and major cities.
       Industrial estates  and for small  and  medium enterprises  industrial  parks, are  areas
 especially organized for the establishment and operation of modern manufacturing plants.
      Today 21 industrial estates and 2 industrial parks are in operation.
      Legislation  provides for the setting  up of industrial estates in  all the 52 prefectures of the
 country.
      The  main interest for setting up a  unit in  an industrial  estate  is likely to come from the
 following:
      -   all kinds of manufacturing and small craft industry units,
          ship building and repair units
      -   units processing, storing and trading agricultural  products,
      -   common waste water treatment units.

      Law  1982/90 includes incentives for  enterprises willing to be established in the area of the
 industrial estates and industrial parks.
      In the EEC  context the progress in  implementing directives applicable to the environment,
 has an average of 85%  success (dated 31-12-91) which is quite good,  though the delays in Italy
 and Greece  (with 59% & 76% respectively) continue to give cause for concern.
      Substantial  improvement has to be expected after the establishment of  the network  on
 environmental.  Enforcement authorities from the  EEC  member countries, based  on  a Ministerial
 decision during the informal Ministers meeting in October 1991.
      The  latest development towards the improvement  of environmental  law enforcement in
 Greece is the  decision of the highest Administrative Court of Justice to create a special section
dealing with environmental violations from the  administration or the  general  public. Last but not
 least the  Attorney of Athens  announced a campaign in  which he, with experts from the Ministry of
the Environment,  will check enterprises  operating  in the Greater  Athens  area, whether  they
comply to the of waste disposal and atmospheric pollution  as well as investigate the existence of
the mandatory environmental permits issued by the relevant Greek administration.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             77


THE ROLE OF INDUSTRY: EMPOWERMENT & ENVIRONMENTAL PROTECTION

JONATHAN PLAUT

Director, Worldwide Environmental Programs, Allied-Signal Inc., P.O. Box 1013,
Morristown, NJ 07962, United States of America.


1     SUMMARY

The  focus of  this  paper is industrial  environmental  management  and  the  ownership or
empowerment which leads to  good environmental management.


2     BASIC COMPONENTS

      The basic components of managing for environmental assurance are all of the following:
      •   A policy that states the values of the institution, clearly and forthrightly  as  well as
          assuring  that the  operations  of the  institution will  be in compliance  with all
          environmental  regulations,  and  that  all environmental  risks  will  be managed
          appropriately;
      •   A risk  management philosophy  that emphasizes the importance of  managing for
          environmental assurance;
      •   A plan that sets forth environmental objectives for the future and delineates the manner
          in which implementation will be  achieved;
      •   An  organization design and  management process that  reinforces and facilitates the
          implementation of the plans for environmental risk management;
          Procedures and practices  that  guide the organization  on how to  operate so that the
          standards established in the objectives will be met;
      •   A communication  and  reporting  system  that  (1) provides timely  information to
          management on the institution's performance  in managing its environmental risks and
          complying  with environmental laws, regulations, and (2)  effectively communicates the
          philosophy, needs and aims of management to all members of the organization;
      •   A control system that monitors  and audits performance of the organization against the
          standards and objectives established for environmental assurance;  and
      •   A system  of review that provides for a fresh look  at all activities of the  institution and
          encourages revision and up-dates  to reflect changing conditions in their operations or
          in the environment, as well as changes in the institution's  understanding of their risks.

      These components when  carried into  an environmental management process will lead to
an effective environmental management  system in which these basic  elements  are  covered:
Policy, Program, Standards,  Professional Expertise, Disclosure, Training and Inspections  in an
integrated program of environmental, health and safety.


3     STAKEHOLDERS

      Companies serve  many interest. It is  useful to think  of those  interests as  stakeholders-
literally  those  who  hold a  stake  in the  company's  activities  and  future.  Environmental
Management works best when the stakeholders feel ownership and  empowerment to protect long
range interest and good  environmental management of the  company, including the interests of
the communities in which the companies operate.

      Stockholders: The stockholders represented  by the Board of Directors are  the owners of
      the company.  Through  shares publicly or privately traded  they invest their  funds in  trade

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78                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


      for dividends (income) and the hope for growth  in the value of the shares  (investment).
      Thus, the shareholders have a stake in the profitability and long term good  health of the
      company, including its good name engendered by its environmental conduct. They are due
      regular reports and the fidelity of the management to pursue their interests, since they are
      in fact the holders of the private property right in the company.

      Employees: Employees require training  and  supervision.  Their performance should be
      measured to assure safe operations and quality product or service, and competitive profit
      on a continuing basis.  It is the obligation of the company to provide the information as to
      hazards and protective work processes and equipment to keep the employees safe. But it
      is the obligation of the employees to watch out for their own safety  and the safety of their
      work mates. Employees have an interest in the  stability and well being of the  company,
      including a  vested stake in the future of the organization.  In many ways the employees
      and the stockholders have similar interests as stakeholders. Indeed, in many companies
      the  employees are an important part of  the  stockholder family,  and management
      encourages that stakeholding by employees to encourage a feeling  of responsibility  for the
      company.

      Management:  Of  course, management  is  composed  of employees at  the top  of  the
      organization. But  management -  the chief executive and  officers  of a company - have
      great stake  in the  affairs of the company. While they are paid the most, their pay and even
      their careers are usually most at risk if the business does not go well or the reputation of
      the  concern falters.  Environmental liability  and  care  for  safety   of the employees  or
      community is a great responsibility of top management. It has generally been found to be
      useful to include  oversight  at top  management and  the  Board  level of environmental,
      health and safety activities to  assure responsible action.

      The  Government: In the United  States, environmental,  health  and  safety regulations
      appear at every level. Laws and regulations must  be obeyed and leadership companies try
      to do  that in a manner that will give it competitive advantage (e.g. in  product design, in
      packaging, in plant safety, in  disposal, in quality product, in cost abatement). Government
      regulates and  controls actions  which  are  not  in  the  public interest and  endanger it.
      Leadership  companies learn  not to be  in conflict with the government, but in partnership
      with its aims, to its (the company's) advantage.

      The Community: Perhaps the interest group whose stake in company affairs became most
      obvious in the last few decades of the twentieth century is the community. Simply put, the
      community neighbouring or harbouring the factory or industrial plant has as obvious stake
      in the unit. This first became obvious, of course,  because the work force  (the employees
      and, to a lesser extent, the management) in the  plant comes from  the community. Thus,
      economic reality dictates an  interest in  the plant's well being. But reality also increasingly
      dictates that the community also be interested in  the surrounding environment. As wastes
      are  transported greater distances or  products carry with  them health  or environmental
      concerns, the  definition of community  has broadened to include local,  regional  and even
      international  interests. Rene  duBois  said, "think  globally,  act locally,"  and  a cogent
      argument can be made that the community of interest is best viewed from both a local and
      an international perspective.

      Non-Governmental Organizations:  Many  assessors of  the environmental degradation in
      Eastern Europe feel that the  greatest shortcoming in those Communist countries was not
      be form of government, but the absence of free press and effective forms of environmental
      conservation. NGO's advocate environmental  positions. This idea of public advocacy for
      the  environment reached its  zenith, perhaps  in the  1980's, when the  United Nations
      adopted an advocacy  stance in its world report, Our  Common Future, and the  United
      States when the head of a leading  environmental  organization (William Reilly) became the

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              79


      EPA Administrator.  Companies  recognize  the  strength of the  responsible  NGO and
      encouraged dialogue as a part of empowerment.  There are strong dissenters who say that
      the  most vocal and  radial environmental NGO's  are irresponsible and playing at an elitist
      game of  encouraging minimal  economic activity to the great  disadvantage  of the large
      majority of  the world's people  who  need  economic growth  and prosperity, but to many
      others that is simply an extreme.

      The  media: Perhaps  the  most  influential  outside  force on the  industrial organization,
      whether  stakeholder  or  not,  is the  media  -  television  and newspapers  particulary.
      Environment issues are played  out in a fish bowl,  with daily events often  overtaking
      reasoned and deliberate  decision  making. While  industry and  academia  call  for the
      application  of good science, including  analytic  assessment of exposure and harm, the
      media's need for a daily story will overcome the  ability for scientific certainty to evolve, or
      the  patience  of  the community or government to be  very  deliberate. Thus,  industry
      management will often have to act under the glare of the public spotlight to show prudence
      and protect its good name and  shareholders,  before sufficient  evidence is in. Whether or
      not  the media is a  stakeholder  in the  environmental concern itself,  it does represent the
      public interest and must be taken very seriously by the industrial organization.

      The Academic and  Professional Community: Perhaps  one more stakeholder group should
      be  mentioned. Universities and colleges  do  environmental and  health  research, teach
      environmental, health  and  safety management, and join with professional societies to set
      standards of professional conduct. They are the propagators and the beneficiaries of the
      development of environmental  science  and  technology,  and investigation into the vexing
      problems we place under the rubric of environmental concerns  is often their role. They are
      also propagators of  environmental literacy, as in the  programs at Tufts University which my
      company supported as a sponsor.

      What makes this system of multiple  stakeholders work in my judgment  - that was  missing
in Central  and Eastern Europe - is a sense of ownership or empowerment relative to the problem.
The  rights and obligations of property encourage  in  investors that sense  of ownership  and
obligation,  as long as they  are properly monitored and regulated by the other stakeholders.
4     PRINCIPLES

      Companies  have their own  internal principles of  conduct  for environmental, health and
safety standards of behaviour. Here is one from my company which has been in evolution for
twenty years.
      The key elements in carrying out this code of conduct or policy in Allied Signal are:
          obeying the law and having our higher standards of conduct, worldwide (one policy);
      -   promoting disclosure of problems so they can be fixed (open communication);
      -   adopting  proactive programs, like safety management, waste  reduction and  formal
          review, that is environmental auditing (preventative action); and
      -   adopting a system to bind every employee to the  policy and measure performance to
          assure the policy is being carried out (quality assurance).

      While there still is much to be accomplished, such proactive environmental, health and
safety programs have  become the ethic of  management of many of the largest multinational
companies. The chemical industries  of  the  U.S., Canada,  Europe, Australia and Japan have
joined together  in association to sponsor and live by a code of conduct they call "Responsible
Care". As a matter of continuity, it is interesting to note that  my company,  Allied-Signal  (with the
policy presented above),  is  a Responsible Care company. The overall Responsible Care Code
says:

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80                        INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


     iiied

     Signal



             Health,  Safety  and


         Environmental  Policy



 It is the worldwide policy of Allied-Signal Inc. to design, manufacture and distribute ail its
 products ana to handle and dispose of all materials without creating unacceotable health
 safety or environmental risks.  The corporation will:

   •   Establisn and maintain programs to assure that laws and reoulations aooncable to its
      products ana operations are known ana obeyed:

   •   Adopt its own standards where laws or regulations may not exist or oe adeauately
      protective:

   •   Conserve resources and energy, minimize the use of hazardous materials and
      reduce wastes: and

   •   Stop the manufacture  or distribution of any product or cease any operation if  the
      health, safety or environmental risks or costs are unacceptable.
 To carry out this policy, the corporation will:

   1.  Identify and control any health, safety or  environmental hazards related to its
     operations and products;

   2. Safeguard employees, customers and the public from injuries or health hazards.
     protect  the corporation's assets and continuity of operations, and  protect the
     environment by conducting programs for  safety and loss  prevention,  product
     safety and integrity, occupational health, and pollution prevention and control, and
     by formally reviewing the effectiveness of such programs:

   3. Conduct  and support scientific research on the health, safety and environmental
     effects of materials and products handled and sold by the corporation; and

   4. Share promptly with employees, the public, suppliers, customers, government
     agencies, the scientific community and others significant health, safety or environmen-
     tal hazards of its products and operations.

 Every employee is expected to adhere to the spirit as well as the letter of this policy.
 Managers have a special obligation to keep informed about health, safety and environmen-
 tal risks and standards, so that they can operate safe and environmentally sound facilities,
 produce quality products and  advise higher management promptly of any adverse situation
 which comes to their attention.
            Alan Belzer                       Larry Bossidy
            President                         Chairman of the Board
            and Chief Operating Officer             and Chief Executive Officer

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          81
                            Guiding Principles for


                     RESPONSIBLE

                                CARE

                     A Public Commitment

                     As a member of the Chemical Manufacturers
                       Association, this company is commuted to
                       support a continuing effort to improve the
                        industry s responsible management  of
                        chemicals. We pledge to manage our
                        business according to these principles:

            • To recognize and respond to community concerns about chemicali
            and our operations.

            • To develop and produce chemicals that can be manufactured.
            transported, used and disposed of safety.

            • To make health, safety and environmental considerations a pri-
            ority in our planning for all existing and new products and
             • To report promptly to officials, employee customers and the
             public, information on chemical-related health or environmental
             hazards and to recommend protective i
             • To counsel customers on the safe use, transportation and disposal

             of chemical product*.

             • To operate our plant* and faculties in a manner that protects the
             environment ami. the health and safety of our employees and the

             public.

             • To extend knowledge by conducting or supporting research on the
             htmtth, t-**y w* «""H™nmgntal effect* of our product*, procwsi*

             and waste material*.


             • To work with other* to resolve problein. created by paat handling
             and disposal of hazardous substances.


             • To participate with government and others in creating responsible
             law*, regulation* and standard* to safeguard the community,

             workplace and environment.


             • To promote the principle* and practice* of Reaponaible Care by
             sharing experiences and offering assistance to others who produce,
             handle, use, transport or dispose of chemicals.

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  82
                                  INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
'" "^ °^ * "** °f   "^ C°ndUCt' bUt 3 SP6CifiC ^iBS Of  Specific
  nrP^r'h H                                                '             C ^BS O Specc
  prescribed guidelines on subjects like waste reduction, emergency preparedness and response
  process safety and product safety to which the companies pledge processes of improvement and
  against which they measure performance.
        Further in example, the International Chamber of Commerce  (ICC) has  promulgated a
  universally respected code on environmental auditing. All of these point to  need for developing
  and embracing global standards of environmental conduct, which can be tailored and adapted to
  local needs and conditions to meet the interests of all the stakeholders
        Perhaps  one  final example  of such  a  code  - the  ICC  Charter for  Sustainable
  Development, subtitled the Principles  for Environmental Management - is exemplary of indusW
  self empowerment.  About 1,000  of  the  most  important international compare? have  now
  embraced it  It  is the most all encompassing industry action to  meet stakeholders' needs  and
  environmen a concerns in a free market, and reflects the optimism and empowerment for good
  environmental management one cannot help but sense exists for continued progress.


 5  ACQUISITIONS

       When  investing in a  new  project,  a company  responsible for its  workers  and  the
 environment will investigate a number of factors, including:
       •   type of operation(s)/employees/location
           history
       •   process and materials
       •   plant site details
       •   past and present chemicals
           storage
       •   wastes and where discharged/spills/air emissions
       •   PCBs
           permits
       •   on and off-site waste sites utilized
       •   soil, groundwater, surface water studies
       •   employee safety and health data
       •   medical support/workers compensation cases
       •    boiler/facility inspection reports
       •    identification of environment agency
       •   litigation before environmental agency
          visitation

       Detailed questionnaires utilized by companies in acquisitions  demonstrate  the care  and
diligence that potential ownership and responsibility for assets and problems will  generate.


6     TECHNOLOGY COOPERATION

       It is  fair to say that the co-issues of technology transfer as a means of meeting  local needs
and  sustainable  development  and safety requirements instituted and  maintained at the local
workplace are  well understood. While they do not need to be, they are often competing priorities
At least neither should be advocated and advanced without due regard to be other
      Without proper safety,  health  and  environmental  programs  and  safeguards  properly
maintained  at  the  local level,  technology transfers can  and probably  will become  dangerous
where hazardous  materials  or conditions are present, as  evidence at Bhopal. The responsibility
for such safety lies with the transferor and the receiver of the technology, and  the governments
of the host country.  Adequate and continued training,  maintenance and inspection  may  be
r GCjUlrGQ.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                            83


      Without movement of  new technology to  lesser developed regions,  however, the world
picture will remain that of the "haves" (the rich North) and the "havenots"(the poorer South).
      The multinational  national companies and their environmental management often bridge
this gap.  After all, many MNC's have an ethic or practice  taking  their standards  with them
wherever  they go. It is a clear responsibility of the transferor organization  to assure  that in the
transfer of technology appropriate safety precautions have been assessed and are in  place. It is
an important responsibility that  in many cases  may require continued auditing and  perhaps
retraining, as well as financial support.


7     MEASUREMENT

      Where a  company or  organization  is empowered with  the responsibility for its short and
long  term will  being, it will  measure its  environmental status  and progress to continuously
improve, if it is to remain commercially competitive and viable.
      There are many useful indicators of the level and, more importantly, trend of health, safety
and environmental performance. Measurement is indispensable  to risk assessment and hazard
control.  Furthermore,  measuring performance not  only tells the organization  the  status  of
operations and identifies deficiencies to correct,  but gives the positive signal to the  employees
that  management  cares  and  they  should  care  about  such performance. Ownership  or
empowerment requires protection of the asset. Measurement and response to indicators is the
good environmental practice  of the empowered.  Here are a few of the indicators for illustrative
purposes, and how they can be most effectively used.
      Total case incident rates  (TCIR) using one of a number of standard formulas (e.g. No. of
cases X Total Hours Worked/200,000)  allows the organization  to  show trends in overall accidents
and occupational illness on  the job and to compare similar operations and operators against
peers or  even best in class. Charting lost work day case  incident rates (LWCIR) will similarly
allow analysis of performance and trends. The U.S.  National Safety Council estimated 20,000 of
cost for the average lost workday case, so considerable cost  avoidance is  possible by lessening
the rate of those more  serious cases. Of course, analysis and investigation of each  accident or
occupational illness  will  identify systemic  problems and  result in  better safety  and  health
performance and a safer and more productive workplace.

Workers Compensation or Social Costs


                 Workers'  Compensation
                         Cases and $/Csse
                  10000 _,
                   3000
                          1M7  1*M  1M9  1MO  1M1
                Drivers                     Challenge
           Healthy Workforce      Continued Improvement of
           Rise in Case Costs        Case  Management

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                           INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                               Safety of Employees

                                    Fiyurg  i


                                    SLOUL

                        SAFETY t LOSS PREYEJfTIOH PERFORMANCE

                             Moimt or
              DIVISION  A
              DIVISION  B
              DIVISION  C
              DIVISION  D
              DIVISION  E
              DIVISION  F
                TOTAL
                              ram CUB*
          TO  I  OW.
         3.0« I 3.35
                                     4.73
                           3.52

              3.54
              2.39
                                     1.15
                                     3.01
                                     3.12
                         ion
                       umisns OOTT
                         :>eiBaei uni
                                                    nu
                                                    TO

                                                    "**«
                                                   1.34
                                                   0.43
(3.541
                                                         1.31
                                                         3.08
                                  1.60
                                                         0.43
                                                         0.49
                                  2.89
                                                         1.95
                                                       o»-)««tiY.i
                Global Safety Performance

                  2 ^A
                                                          o
1M7  1tM
                                           1MO   1991
          Wortcar ProtoctkNi
          Co«t Avoldanc*
          Quality/Productivity
                   ChaiUnoa
               Raach for "Bast In Class"

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                                                     85
      Annual workers compensation in the U.S.  or social costs elsewhere are in the millions of
dollars for many concerns. They result from injury or occupational illness, or other causes such as
labor  unrest or plant closings, or even fraud. Reduction in accidents will improve safety and at
least partially decrease these costs.
Hazardous Waste Reduction
                                        Toxic Emissions
                            Pounds
                           (MHIlOfW)
                                        1«tl   1989
                                   Drivers
                              Right to Know
                              Voluntary Reduction
                              Freedom from Regulation
                              COST
      Challenge
World-wide Reduction
       One of  the most productive monitoring programs management can pursue in improving
 environmental performance is reviewing facility and then in the aggregate reduction in hazardous
 emissions and toxic waste. Not only will the reduction  of toxic  materials probably result in a
 diminution of control procedures required in costs, because the transportation of hazardous waste
 is very expensive and  there may be future potential liability problems connected with its disposal
 no matter what the safeguards, since state of the art changes.

        By requiring the operations  to establish targets of reduction (similar to targets of safety
 improvement) and identifying projects and action steps to accomplish the targeted reductions,  the
 management assures progress will be made (and communications its interest in such progress by
 measuring  and requiring reporting  through such a measurement system).  The waste and toxic
 reduction prescriptions in legislation, such as  in SARA or the clean Air Act, and as carried out in
 the EPA 33-50 program build on and stimulate these internal industrial  programs.
  Loss Prevention
                                                                     PROPERTY L088
                                                               (OOOOMTTHM
                                «t7

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 86
                                  INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
        Losses at facilities from fire, explosion, machinery breakdown, storms, power failures etc
 are extremely expensive for operations, because not only do they result in costly damage and in
 lost productivity, but down  time  to the operations  and thus expensive business interruption  In
 some cases  the reputation of the company  as a reliable supplier or as the operation of  the
 company as  a reliable supplier or as the operator of safe facilities may be at risk.  Again  the
 monitoring of performance by  capturing all losses facility by facility and then aggregating them will
 provide the basis for improvement. That improvement should include standardizing around good
 practice and training for good operation,  as well as working with outside insurance inspectors so
 they can  reinforce the  company procedures and  programs.  An  exception  analysis of all
 deficiencies identified and not corrected  as a  result of internal or external inspections should be
 monitored and diligently followed, to assure safe operations, lessening of losses and reduction of
 future liability.

 Life Cycle Analysis
                                   Product Life Cycle
                            Drivers
                         Market Competition
                         Regulatory Pressure
                         Customer Focus
    Challenge
Strategic Evaluation by
Business Units to Create
a Competitive Edge
       Analyses of new and existing products or processes for identification of risk and potential
liabilities, and resultant modification or institution of greater control is more difficult to measure. A
three tier system  of  review.from  product design  inception  to  pre-marketing  and bench scale
production  to final production, with each step  being more detailed as  full production  and sales
eventuate will result in that greater control. To be effective,  analysis should include detailed,
check-off of environmental, health and safety factors including hazard identification and control, in
design, manufacture, transportation, sale and disposal, across the life cycle as some would say'.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                                                   87
Environmental Auditing
                                      HS&E Audit Ratings
                        •B"or
100

 90

 eo

 40

 20

  0
                                                                  O
                                                                       Goal
                                    1999
                                              1990
                                                       1991
                                                                 1992
     Drivers
 Safe Operations
 Legal Liabilities
 Outside Reporting
                                                       Challenge
                                                  All Plants "B" or Better
       A system of environmental measurement and review, which  checks  on  all  processes, is
 environmental, health  and safety  auditing. Like a financial audit, environmental auditing relies on
 a regular system of spot measurement and verification of conduct and performance, as measured
 against government standards, company guidance and standards and local practice. It should be
 carried out by professional environmental  auditors, who are technically trained and experienced
 who may be within the company,  with written findings of deficiencies  which have to  be addressed
 by the operations within a specific period of time to avoid future liability. The  assigning of a value
 to each audit which may include air, water and land  pollution factors, occupational health and
 medical practice, employee safety and process safety, emergency preparedness and response
 and product safety and  integrity, will allow comparison of  performance from year to  year and
 between facilities, the chart shows such a comparison, in one system on an A-B-C-D basis, with
 D being  seriously  out of compliance,  C  complying, B  an acceptable  level  of  assurance of
 performance, and  a total quality  approach. The Allied-Signal environmental  auditing system and
 the environmental management process in which it operates is described in the UNEP Journal
 article of October/November/December 1988.
 Proactive Programming
                                       New Directions
                        EMctancy
                                                        Voluntary mulatto*


                                                            MariuMForcM

                                                            DMlgn tor Prevention
                                 Part
                                                                        Fulur*

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                                INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       This  last chart depicts, a  causation to the lessons of this paper  While the tools  of
measurement  shown, an  others  that can  be devised,  will provide  a lot  of  information  for
management and the employees to improve the quality of the health, safety  and environmental
process, without proactive programs beyond what regulations require,  the organization will find
itself running hard just to keep up  with regulatory requirements and liability issues To get ahead
of the curve,  or to put it another way  to be a "B" to  "A" performer with  full environmental
assurance,  the  organization must  design and implement its  own  programs  of  proactive
environmental  management,  beyond  what the  law requires. Environmental auditing was such a
program for the companies  that adopted it in the  1970's  an 80's. Voluntary waste  reduction
initiatives are such  programs in the 90's. Other such programs are described, for  example in the
World  Resources Institute  publication about company practices entitled, "Beyond Compliance"
and  the ICC  book,  "The  greening of Enterprise: From  ideas  To Action," detailing  company
programs under the ICC Charter. The point is that with such  proactive programming engendered
by ownership  and  responsibility,  the  organization's return on good environmental  health  and
safety management will be better managed and more productive processes, people and products
as well as  avoidance  of  compliance issues  and cost avoidance. Ownership  and  economic
competitiveness  provide the  incentive for  good  environmental management and  sustainable
development. This is the  increasingly understood message in the global marketplace

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              89


ENVIRONMENTAL PROBLEMS IN THE HUNGARIAN PRIVATIZATION

ISTVAN MANDOKI

Officer-in-Charge, State Property Agency, P.O.  Box 708, 1399 Budapest, Hungary


      The Hungarian State Property Agency is responsible  for  Privatization  in  Hungary.  In
addition  to  the  procedure of selling  companies  we  have  to  decide  what to  do about
environmental damages.
      Solving  environmental problems is one  of the main objects of the State Property Agency.
this decision is  not absolutely voluntary as it was partly forced upon us by foreign investors, but
now we can claim that the SPA is very eager  to solve environmental problems in the process of
privatizing state-owned companies.

      There are disclosed and  undisclosed problems, and the second is the more significant.

      In the case of known problems, there can be  an environmental audit, the question  then is
only whether the audit is  accurate or not. This situation causes  a smaller problem, as both the
seller  and the purchaser know what they want  to sell or buy. they can agree on a purchase  price
that includes the price of  the cleaning, or they can agree on a warranty structure that achieves
the same goal.

      If the pollution is on the surface,  it is fairly easy to  conduct a  good audit of it. It is the
same  if the company causes  noise  or water pollution. Everybody knows what the  pollution
activity is and what its effect is.

      Real problems start when  nobody knows what is the  nature  or the dimension  of the
environmental  problem. In this case  the environmental problem  can jeopardise even the  most
promising  transaction, as  the investor is not willing to undertake burdens resulting from the time
before its activity.

      It is not easy to make a contract and  to agree who will  pay the  cost when neither the
buyer nor the seller  knows what the cost of the clean up will be. In most cases the SPA is ready
to do  its best to solve environmental problems  partly or sometimes totally at the cost of the seller
but the SPA can not undertake unlimited liability. The SPA's primary duty is to sell companies
and to generate income for the state and not to solve all the environmental problems.

      Aid is needed if we want to solve all the environmental problems:  The help of the domestic
government and the help  of international organizations. Today the SPA  can handle the problems
of environmental pollution only  if the company still has a positive value after taking  the pollution
into account.

      Which are the areas where domestic governments can help?
          to give preferences for investors in areas of environmental disabilities.
          to give preferences for investors undertaking fixing of damages.
          to give preferences  for  investors introducing technologies  that do  not  harm    the
          environment or  manufacturing such goods.

      Which are the areas where international  assistance is needed?
          to give financial support to   discover the problems
                                    to conduct an audit
                                    to clean up
      -   to coordinate efforts across  borders

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90                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
      There  is a  third  worry  for foreign investors  in connection with  their deals. This is the
question of future environmental legislation. As it is more strict throughout Europe they have fears
that the same will happen in Hungary. Even  a different way of applying the same law can be very
confusing.

      If  the  environmental  law  changes or if the standards of the environmental  regulations
change it could affect the profitability of an  investment very considerably. This is an area where
the SPA can not give any guarantee, we can only suggest making new laws as  soon as possible
to reduce uncertainly in Hungarian privatization.

      The first step  was  taken  by a new Act on  Privatisation  which states that if a State
Company  wants  to  be transformed  into  a commercial  company it  must to include  in  its
transformation plan a program for solving its  environmental problems.

      To  summarize our experiences, I  can say that the SPA tries to do its best in solving the
environmental  problems of  its  companies.  Where  help  is needed  is in  environmental auditing,
which is often not  sufficiently accurate. The  other area where help is needed is the problem of
companies with negative value (whether or not the  reason is environmental pollution)  where is
SPA's only answer may be liquidation.

      I apologize  for not  providing you with interesting  case  studies, but the details of our
transactions are confidential.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              91


NGO'S ROLE IN  ENVIRONMENTAL ENFORCEMENT IN OWNERSHIP TRANSFORMATIONS
IN POLAND 1990 - 1992, OPPORTUNITIES AND PROBLEMS

WOJCIECH STODULSKI

Institute for Sustainable Development, ul. Kryzwickiego 9, 02078 Warsaw, Poland


      SUMMARY

      This  paper presents  conclusions  from  the surveys on  the environmental  context  of
ownership transformations carried out in Institute for Sustainable Development in 1992.


1     INTRODUCTION

      The environment in Poland and in other East and Central European countries is highly
polluted.  Economies  of that  countries are being transformed  into market oriented base.  That
means deep changes in ownership changes, creation of property rights for many people, freedom
for policy-making  and  business  doing   individuals;  simultaneously this  means  growing up
responsibilities of  new owners for the economic and environmental status of former state-owned
enterprises.
       Restructuring  and privatisation are extremely strong tools of market-oriented transfor-
mations  - they give  into  hands of  policy-makers and  representatives  of  administration great
opportunities to stop environmental  degradation and to perform the environmental recovery of
high contaminated sites and areas.
       In  introducing the  economic   reforms  and  privatisation processes  have been engaged
institutions.organizations and  individuals  followed  by their own  interest. They  are also under
pressure of current situations and economic and social conditions. Ecological aims are  very often
postponed and treated as second-rate.


2      PRIVATIZATION IN POLAND

       The persons involved  in privatisation procedures perpetually solve the  same dilemma:
"Which way  should be divided scanty funds among different aims?, What is more  important:
economic short-term effectiveness  or ecological healthy sustainable long-term development?".
       They represent different point of view on aims and methods of restructuring of economy;
there are also distinctions in their political standpoints  and in  professional skills or experiences
themselves.  It  is quite difficult to  focus  all  these people on the  single  target:  proecological
recovery  of the  economy  performed  through restructuring,  privatisation and liquidations
non-effective state enterprises. It is needed for that:
       -   foreign financial and organizational support,
       -   highly qualified people,
       -   new technologies and management,
       -   clear internal industrial policy,
          transparent environmental policy principles,
       -   flexible and educated administration,
       -   fair business-doing investors,
       -   active  self-governments,  non-governmental  ecological organizations, public opinion,
          mass media.

       Poland has two years experience in introducing and performing  of  privatisation  and
liquidations into economy. We assume that it is  higher time to try to make first assessment of the
environ-  mental results of ownership transformation undertakings. Our goal was also to estimate

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 92                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


 effectiveness  of  current  legal and  economic  system  as a  tool for enforcing  environmental
 restructuring of Polish economy.
       It was interested for  us to fix level of environmental consciousness  of  policy-makers,
 representatives of administration,  investors, representatives of self-governments,  NGO-s, mass
 media and  the way and the extent articulation of its in practical undertakings  in the course of
 ownership transformation processes.
       We have tried in the paper to identify :
       -   placement of non-governmental ecological  organizations  in  concentration of public
          opinion on reaching ecological recovery aims in the privatisation processes,
       -   main targets to be  achieved by the organizations,
       -   necessary conditions to be met so as the activities could finish with success.

       Our considerations have been performed on a base of experiences that we  have gathered
 in the course of surveying real situations and conditions of  ownership transformation processes in
 Poland in 1991 -  1992.
       Institute for  Sustainable  Development  is  the one  and  only  of  167 non-governmental
 ecological organizations in Poland  which has started regular monitoring of environmental context
 of privatisation and liquidation of former state-owned enterprises.
       We have not only  allowed for catching  spectacular ecological positive or negative cases
 but  first of all  for  disclosure of weak  points  of  the  organizational,  institutional  and legal
 environment for privatisation  processes which  have badly  resulted in  ecological recovery of the
 economy.
       The  financial and economic  concerns  of privatized  or liquidated  former state-owned
 enterprises  have been  included  in  our  scope  of  interest.   Nobody can   imagine  successful
 ecological recovery  of the enterprises without  financial sources. One of the strategic aims of
 privatisation is appealing of external financial sources to improve effectiveness of production by
 using advanced technologies and  higher organizational methods. But  that means introducing of
 clean technologies and energy or natural sources saving methods.
       It is assumed that foreign investors would be able to come up to expectations of the Polish
 government  in  the field of pure economic development as well to contribute  to  environmental
 improvement within new and old sources of pollution.
      We want to focus on methodological and organizational context  of our surveys  rather than
 on the results of the  research. We try to describe the sources of information used and to
 assess them from point of view of work of non-governmental ecological  organisations.

       In the  course of our  surveys  on  the  environmental  impact  of  privatisation  we  try by
 occasion to  answer some additional questions :
      -  what is the  role  of  non-governmental  ecological  organizations in  supporting  of
         ownership changes ?
      -  to what extent the non-governmental ecological organizations are ready to be engaged
         into supervising of environmental impact of ownership changes ?
      -  are  there in  reality conditions that  the  opinion  of non-governmental  ecological
         organizations may  be taken into consideration by decision-makers and  policy-makers
         in privatisation and  liquidation processes ?
      -  what kind of conditions should  be  met  so  as  representatives of non-governmental
         ecological  organizations could take part  in policy-, decision- or opinion-making bodies ?
      -  is it possible that any information on  single privatisation or liquidation cases might be
         revealed to representatives of non-governmental  ecological organization to prepare and
         present opinion on  the environmental impact to administration?
      -  is there any cooperation between self-governments,  NGO-s and a public  to prevent
         negative ecological results of ownership transformations ?

      Those and many other question were discussed in the  course of our surveys.  Not all
questions have been answered; some were only partly cleared up.

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 3     ROLE OF NGO'S IN THE PRIVATIZATION PROCESS

       There  are some restrictions for activities of non-governmental ecological organizations in
 the field of monitoring of  restructuring,  privatisation and  liquidation processes in Poland. The
 restriction have resulted from external:
          disturbances in  access to  information  on environmental  status of single privatized or
          liquidated former state-owned enterprises
          documentation on either economic or environmental issues is confidential in the course
          of  negotiations  and afterwards,  - lack of  up-to-dated  information  about current
          environmental status of enterprises either on new sources of emissions or  on old
          contaminations,  resulted from passed economic activities,
       -   difficulties in  gathering information   on current ecological status of transformed
          enterprises resulted from very speed and complicated splitting real assets and changes
          in property rights take-overs; administration is not able to catch up with transfers of
          environmental liabilities from former state-owned  enterprises to new owners,
       -   inflexibility of administration in passing over information needed to make  right decisions
          in adequate time to privatize or liquidate state-owned enterprise, - using lower priority
          for ecological criteria in decision on privatisation or liquidation, and internal reasons :
       -   the surveys are very time-consuming and expensive,
       -   the surveys  require highly experienced specialists with deep professional knowledge in
          economy, legal system, consciousness of environmental  effects  of business activities,
          legal and technology context of  the environmental protection,
       -   the surveys  require long and very intensive engagement of people involved  (that is not
          always the case  within non-profitable ecological organizations),
       -   the surveys require public  relations skills, particularly in contacts with representatives
          of administration and world of business,
       -   it is difficult to  set up  an interdisciplinary team of professionals to be able  to get
          adequate information  on ecological  concerns in restructuring, privatisation or
          liquidations and to assess them objectively.

       The  external and  internal restrictions create serious  obstacles for non-governmental,
 non-profit ecological organizations to be involved in  opinion-making  processes in  advisory
 capacity  on  administrative decisions. Some  of  the restrictions are  objective  ones -  lack of
 up-to-dated  information and  obstacles  to get those information  from primary sources,  other
 restrictions are subjective ones - unwillingness of administration to admit the  representatives of
 non-governmental ecological organizations to take part in decision-making processes.
       However, there  is a field of interest which is available  to activities of  non-governmental
 ecological organizations :  assessment of  adequacy  of current  economic and environmental law
 provisions to the needs of  effective execution  of environmental commitments and  environmental
 liabilities  in transition period to market  economy.
       Now we try to present and explain  our point of view on the topic. It has resulted from our
 experiences gathered in the course of surveys on the environmental context of privatisation and
 liquidation processes in Poland in 1990-1992.


4      POSSIBILITIES FOR NGO'S IN POLANO

       Scope of interest has been tailored to the current possibilities and requirements :

 1.     Compliance  with  fair  ecological  behaviour  of  new  owners  of  former  state-owned
       enterprises :
       -   rational using of natural resources,
       -   compliance with current emission standards,
       -   conducting of  identifications  of sources of  emissions  and  measurement  of their
          intensity,

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       -   keeping in proper status the facilities of environmental infrastructure,
          using of clean technologies,
          maintaining of protection zone around  enterprises,
       -   environmental recovery of degraded sites and industrial areas,
          improvement the environmental security of products.

2.     Addressing of ecological criteria in privatisation and liquidation decision-making :
       -   preparatory phase of privatisation/liquidation procedure,
          negotiation phase - environmental part of contract/agreement provisions,
       -   transition phase after signature of contract/agreement,
          follow up phase when the  new owner has started his business activity.

3.     Environmental liabilities transfer in the course of restructuring (splitting,  acquisitions and
       mergers) and privatisation or liquidations of enterprises :
       -   collections of outstanding and ongoing environmental fees and fines,
          compliance with current environmental standards,
       -   environmental recovery and environmental clean-up of old contaminations.

4.     Involvement of central and  regional  (voivodship)  environmental  administration  in  priva-
       tisation and liquidation decision making :
          cooperation  of the Ministry of  Ownership  Transformations with  the  Ministry  of
          Environmental  Protection, Natural  Resources and Forestry and the State Inspectorate
          of Environmental  Protection,
       -   cooperation of  regional level administration in preparing and conducting of privatisation
          and liquidation  decisions.

5.     Economic and financial development of privatized or liquidated enterprises in the course of
       transformation processes.

6.     Legal base of conducted transformation procedures.

7.     Procedures used in reality in  the course of restructuring and ownership transformations by
       founding bodies and the representatives  of  State Treasury with  special emphasis  on
       environmental concerns.

8.     Compliance of the procedures used with environmental guidelines presented in :
       -   the National  Environmental Policy by  the Ministry of Environmental Protection, Natural
          Resources and Forestry,
          the State  Industrial Policy by the Ministry of Industry and Trade.
 9.     Environmental context in  the sector restructuring programmes prepared mutually by the
       Ministry of Ownership Transformations  and the Ministry of Industry and Trade.

 10.    Environmental context of  contracts signed by the  Ministry of Ownership Transformations
       and the foreign investors.

 11.    Role of non-governmental ecological organizations in opinion making  on privatisation and
       liquidation issues.

 12.    Opportunities  and threatens  resulted from  ownership transformations of  former
       state-owned enterprises to the environment in Poland.
       Directly after beginning of the surveys we have understood that primarily  fixed scope of
       work  has to  be shortened because of problems with getting  up proper information. The
       preliminary recommendations were as follow :

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      -   get  knowledge on  legal framework of privatisation and liquidation of enterprises and
          corporate restructuring,
      -   survey legal base of procedures used by administration,
      -   research  the organizational and institutional  environment of  privatisation  and
          liquidation,
      -   realize that environmental context  of privatization and liquidation  is hardly recognized
          because  the environmental  criteria are  of  second  priority  for  majority of  people
          involved,
          understand that the access to environmental information in single cases is limited and
          depends on current local situation there is a psychological barrier by the administration
          not to reveal any information in the course of transformation procedure,
      -   there  are objective  causes for not to get the environmental information on voivodship
          level - lack of fund  to collect information and to maintain computer information  system,
      -   fix substitute sources of information on environmental status of enterprises transformed
          - direct contact with enterprises,
      -   research single  cases  only as  illustrations  of broader  problems  of  environmental
          context  of  transformations -  not as spectacular environmentally  positive or  negative
          undertakings,
      -   use rather  personally direct contacts with  the representatives of administration  or with
          managers in  enterprises; it gives you occasion  to explain  aims of the research and to
          limit doubts not to reveal information,
      -   prepare short lecture on transferring environmental liabilities and the environmental
          impact of  ownership transformation to be ready to explanation and discussion on the
          topic.

      Our  opinion  on  information  sources accessible  to non-govern-   mental ecological
organisations is  as follow :
1.     It is possible to get reliable information on environmental status of transformed enterprises
      from local environmental administration or in enterprises themselves.  The closest possible
      cooperation is  condition for that.
2.    The very valuable source of information on legal  and procedural transformation framework
      are the Ministry of Ownership Transformations and other central and regional (voivodships)
      founding  bodies. But it is only general information  referred to common principles used in
      single paths of privatisation or liquidation.
3.    The best source of information available  to  a public are  newspapers  referred  to legal,
      economic and  common issues.
       In  a press were discussed general  conceptions  and conditions  of  ownership  transfor-
       mations,legal  and organizational procedural  principles, spectacular cases of privatisation
      and liquidation, economic and legal obstacles and results of transformations.

       In  newspapers  were  published  privatisation prospectus  on  economic,  technical and
organizational  status of enterprises  referred to  capital privatisation; there have  been    also
published announcements on bidding procedures for sales or lending of real  estates or land using
of former state-owned enterprises.
4.    Some difficulties arose with  getting  contact  with consulting  firms which  generally were
       unwilling  to reveal any information referred to started  or finished privatisation procedures.
      Our intention was to assess to what extent the environmental  criteria  have  been taken into
       consideration  by advisory teams.
5.    Another problem deserving our attention was to  specify role  of banks and other financial
       institutions  in  supporting (if any)  of proecological restructuring undertakings  of privatized
      former  state-owned  enterprises. The  problem is open to further  surveys  because it has
       passed short time since the majority of privatisation procedures have been finished.
6.     All legal  acts and laws referred to regulations of privatisation, liquidation  or  restructuring
       procedures were scrutinized by us to  identify weak points in enforcement environmental
       compliance with procedures used in practice.

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7.    We tried to get into the work other non-governmental ecological organizations.  Generally
      our intention felt not because of lack of interest, but lack of time and financial support. The
      organizations were not helpful to us as a source of information.  Also the question:  "How
      should  the  environmentally accepted pattern  of  privatised contract look like?" was not
      answered by them.

      The sine qua non condition to be involved into opinion-making processes on environmental
issues of privatisation and liquidation of former state-owned enterprises is acquiring of reliable,
complete and up-to-dated information, generally speaking on :
      -   planned privatisation /liquidation  undertakings,
      -   environmental status of enterprises before, in the course and after finishing procedure.

      What  a  role  can  play  non-governmental  ecological organizations  in ownership
transformation processes in Central and Eastern Europe :
          they can assess projects of  regulations for privatisation/liquidation procedures from
          point of view of compliance with  law on environmental  protection,
          they can  monitor  activities  of  privatized  companies in  the field  of environmental
          protection,  for  example  they  can  track  performing  of  environmental  restructuring
          programmes prepared and accepted in the  course of negotiations between the Ministry
          of Ownership Transformation or other founding bodies  and investors.
      -   they can advise how  to  avoid  negative (if any)  ecological impact  of privatisation or
          liquidation undertakings,
          they can co-operate with self-governments on local or  regional level :
          a) in execution of environmental  law,
          b) in balancing of social and environmental  context of privatisation and liquidation,
          c) in tracking environmentally undesirable undertakings,
          d)  in  enforcement of principle of sustainable development in business activity of new
             private companies.
      -   they may  serve as linking  bodies  between  administration, world of business  and a
          public in animation of people  and institution around the environmental  context of
          ownership transformations.

      We  can  propose  some organisation measures to  make  possible  involving of
non-governmental  ecological  organizations  in  opinionmaking  processes of  privatisation or
liquidation :
      -   admit the  representatives of the NGO-s to take part in meetings and discussions of
          advisory bodies for ownership transformations,
      -   reveal environmental information to  representatives  of NGO-s for example environ-
          mental clauses of contracts with investors or environmental part of sector restructuring
          programmes,
      -   provide  projects of acts  and  law provisions to  make possible to  assess  them from
          environmental point of view,
          make possible to present opinion to decision-making  bodies  on environmental impact
          of ownership transformation processes.
      -   set  up on the central, regional or local level official bodies to make possible  to change
          opinion  between administration, world of business, self-governments, mass-media, a
          public and NGO-s  on  social,  economic  and environmental  impacts  of   ownership
          changes,
      -   organize briefings for newspaper on environmental impact of ownership  changes and
          on environmental profile of polish and foreign investors.

      The NGO-s should  be more active in  the  field of monitoring of environmental impact of
ownership transformation of former state-owned enterprises. They should focus their efforts
on tracking of activities of  administration and  investors in the field of compliance with principles
presented in  the  National  Environmental  Policy (prepared by the Ministry  of Environmental

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Protection,  Natural Resources and Forestry in 1991) and the State Industrial Policy (prepared by
the Ministry of Industry and Trade in June  1992). We suggest  besides that in the field of interest
of professionally experienced environmentalists should be :
          compliance with environmental law,
          environmental clean-up of old contaminations,
      -   fair environmental behaviour from part of investors, new owners of former state-owned
          enterprises.  Indispensable for  that  is  close  co-operation  with  administration,
          businessmen, self-governments, individuals: lawyers, economists, engineers and s.o. It
          is also  necessary to co-operate with foreign NGO-s in other countries of the region and
          the NGO-s in high developed countries in Western Europe  and the United States to get
          information on environmental profile of active investors in Central and Eastern Europe.
          In  situation of great financial,  technological, organizational  prevailing  of  western
          investing firms, the environmental impact of investment undertakings depends  more on
          their fair  attitude  towards the  environment,  than on  our  legal  environmental or
          administrative regulations and execution measures.


5      REQUIREMENTS FOR COOPERATION

       In the course of our research programme we have expressed some requirements towards
administration;  that may  have been significant for NGO-s in other countries to make their work
more effective in transition period to market economy.
       Firstly,  we  hope the  restructuring,  privatisation and liquidation  processes could be
performed  in more decentralized manner. But  decreasing  in  central administration  involvement
simultaneously means increasing responsibility  of local authorities, self-governments and a  local
societies in managing of ownership transformation  in compliance with principles of sustainable
development. Broader involvement of a  public into  supervising and  monitoring of ownership
transformation  processes may create sustainable assurance  against violation of  environmental
law or fair  behaviour towards the environment. We do not expect that it can be executed without
any obstacles caused by  distrust  from  part  of  administration. The  NGO-s  should prepare
themselves to be reliable partner irresponsible co-operation  with administration, self-governments
and businessmen.
       Secondly,  the administration should be more open to take into consideration opinion of the
representatives of NGO-s on environmental impact of ownership transformations. Independent
individuals scientists, professionals and experienced environmentalists can  be  in  any cases more
objective and more sensitive for local or regional environmental problems than administration. The
mutual  contacts should have to be more systematic. They  have to  be  preceded  by  changing of
adequate information to make possible working out independent opinion  on the topic.
       Thirdly,  the administration should enforce the least possible requirements in the ownership
transformations procedures :
       -   any  privatisation or liquidation process could not  have finished until the environmental
           liabilities had been satisfied,
           it  can   be  impossible to  start  any  privatisation or liquidation processes of  former
           state-owned  enterprises  that rated  to the  greatest polluters without  performing  of
           ecological review,
           all legal successors of former state-owned enterprises under ownership transformation
           should be precisely fixed to make possible execution of environmental liabilities,
       -   introducing in the  environmental law and  in other  legal  regulations any provisions to
           make  ownership transformation  processes harmless to the  environment,  Fourthly,
           administration should reveal any  information on  environmental status of privatized or
           liquidated former state-owned enterprises to a public and to NGO-s to make possible
           to work out an independent opinion.

        It seems to be to much, but our requirements create safety system  for the environment in
the transition period to market economy. It is minimum to make effective control by a public over

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transformation processes and to prevent possible negative (if any) impact on the environment in
the future.

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THE BASEL CONVENTION ON THE CONTROL OF  TRANSBOUNDARY MOVEMENTS  OF
HAZARDOUS WASTES AND THEIR DISPOSAL

IWONA RUMMEL-BULSKA AND PIERRE PORTAS

UNEP/ISBC, Case Postale 59, 1292 Chambesy-Geneva, Switserland


      SUMMARY

      The  Basel Convention comprises realistic measures  to reduce  and strictly  control  the
movement of hazardous wastes, reduce their generation, ensure that such wastes are disposed
of in an environmentally sound  manner, and protect the  global environment from the possible
harmful effects of movements and disposal of hazardous wastes.
      The  generation and movements  of hazardous wastes originate in activities  in  individual
countries.   National  capability to  reduce the quantity and  manage  hazardous wastes  in an
environmentally sound manner should be developed as a priority.  The development of national
technical and legal  infrastructure,  including legislation  and regulation,  also needs to be
undertaken. Training,  education and public awareness are important elements in the development
of countries' capability.  Where there is a lack of resources and expertise,  technical assistance
should be provided through bilateral and multilateral funding.
      The  arena of  international  environmental law is dynamic, and the Basel Convention is
designed to  keep pace with  change and to allow for future amendments  and strengthening of its
provisions. The Basel Convention is still evolving.  The elements of a Protocol to the  Convention
on  Liability and  Compensation were identified by a UNEP working group during 1990-91, and
mechanism for the  implementation  of the Convention will be considered by the Conference  of the
Parties to the  Basel  Convention.   Draft technical  guidelines for the environmentally sound
management of hazardous wastes  will be submitted to the Conference for adoption.  Draft model
national legislation  on hazardous waste management and disposal has been developed and will
be also presented to the Contracting Parties meeting.


1      INTRODUCTION

       The generation, storage, treatment, transport, recovery and disposal of hazardous wastes
pose a real problem  to society  and represent a serious danger for man and the environment.
There  is great concern for the future if this issue is not properly addressed; it will  necessitate
vigorous actions  by governments, business  and  industry,  by people  and  international
organizations for decades to come.
       No one knows the true sum of man's toxic throwaways.  In  the last 30 years, billions of
tons of hazardous wastes have been dumped or land-filled in or on the  land,  some in the sea and
vast amounts still move across frontiers unregistered.
       Uncontrolled  or  inefficient  surveillance  of transboundary movements and disposal  of
hazardous wastes result too often in long term exposure of the population to their hazards.  Illegal
traffic of these wastes can and often  had adverse effects, both acute  and long term,  on human
health and the environment with related detrimental consequences on the quality of life.
       The potential damaging effects of hazardous wastes has led  the world  community to take
measures  to manage these  wastes in  an  environmentally sound  manner  and to aim towards
minimizing  their production  and  preventing  their  generation.    In  this  context, health and
environmental factors have started to play a  major part in the selection of appropriate  hazardous
wastes management practices.
       In response to the growing  recognition of the health and environ-mental risks associated
with hazardous wastes,  governments have  brought  into force a series of laws to  control  the
generation, handling, storage, treatment, transport, disposal and recovery  of these wastes.

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2     BASEL CONVENTION

      The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes
and their Disposal was adopted unanimously on 22 March 1989 by the 116 States participating in
the Conference of Plenipotentiaries, which was convened by the Executive Director of the United
Nations  Environment Programme (UNEP) and  held in Basel  at the invitation of the Government of
Switzerland. The Final Act of the Basel Conference was signed by 105 States and the European
Economic Community (EEC).
      The Basel Convention  is the result  of six  sessions of  the Ad Hoc  Working  Group
(Budapest, 27-29 October 1987, (organizational meeting)); Geneva 1-5 February 1988;  Caracas,
6-10  June 1988; Geneva, 7-16  November 1988; Luxembourg, 30 January - 3 January 1989; and
Basel, 13-17 March  1989), in  which experts from  96 States and representatives  of over 50
organizations participated.    Informal  negotiations  conducted by  the  Executive  Director with
governments, organizations and industry also played  an important part  in  the success of  the
preparatory process.  53 States and the European Economic Community  have  signed the Basel
Convention and as of July 1992, 25 countries ratified or acceded to the Convention which entered
into force on 5 May 1992.  The following are the  countries which  ratified  or acceded to  the
Convention:
      Argentina       Australia        China           Czech &  Slovak F.R.
      El Salvador      Estonia         Finland          France
      Hungary        India           Jordan          Latvia
      Liechtenstein     Maldives        Mexico          Nigeria
      Norway         Panama         Poland          Romania
      Saudi Arabia     Sweden         Switzerland      Syria
      Uruguay
      THE PROVISIONS OF THE CONVENTION

      a.  The generation of hazardous wastes as well as their trans-boundary movements shall
         be  reduced to a minimum. The wastes should be disposed of as close as possible to
         their source of generation.

      b.  Every State has the sovereign  right to ban  the  import of  hazardous wastes.  The
         parties to the  Convention shall not allow any transboundary  movement of hazardous
         wastes to a State that has prohibited their import.  Transboundary movements shall
         also be prohibited  if the  exporting State  has reason to believe that the wastes in
         question shall not be managed in an environmentally sound manner.

      c.  A party shall not  permit  hazardous  wastes to  be exported  to a non-party  or to be
         imported  from a non-Party, unless it is  in accordance with a bilateral, multilateral or
         regional agreement, the provisions of which are no less environ-mentally sound than
         those  of the Basel Convention.

      d.  The State of export shall not allow a transboundary move-ment of hazardous wastes to
         commence until it has received the written consent, based on  prior detailed information
         of the State of import, as well as of any State of transit.

      e.  When  a  transboundary movement  of  hazardous wastes which is  carried  out  in
         accordance with the  Convention  cannot be completed in an environmentally sound
         manner, the State of export has the duty to ensure  the re-importation of the wastes.

      f.  Transboundary movements  of  hazardous  wastes which do  not conform  to  the
         provisions of the Convention are deemed to be illegal traffic.  The Convention states
         that "illegal traffic in hazardous wastes is criminal".  The State  responsible for  an illegal

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         movement of  hazardous wastes has  the  obligation to ensure their environmentally
         sound disposal, by re-importing the wastes or otherwise.  Every party shall introduce
         national legislation to prevent and punish illegal traffic in hazardous wastes.

      The wastes covered by the Convention are defined  in its Annexes which include a list of
categories of wastes to be controlled (47 categories)  and a list of  hazardous characteristics.
Hazardous  wastes  subject to  transboundary  movement must be  packaged,  labelled  and
transported in conformity with generally recognized international  rules  and standards.  Since  the
authorities of many  countries,  especially developing ones, frequently do not have the trained
specialists and  technical know-how to  assess  information concerning hazardous wastes  and
handle it efficiently,  the  Convention calls for international  co-operation involving, among other
things, the training of technicians, the exchange of information, and the transfer of technology.
      The  Convention provides  for the  establishment of  a Secretariat, the main functions of
which shall be to process and disseminate information provided to it by the parties, to ensure  co-
operation between parties, and to provide assistance to them in implementing the Convention.
4     IMPLEMENTATION OF THE RESOLUTION ADOPTED IN BASEL (1989)

      The Interim Secretariat for the  Basel Convention (ISBC) which was established by UNEP
in November 1989 in Geneva finalized in 1992 the implementation of the  Resolutions included in
the  Final Act of the Conference of Plenipotentiaries which adopted the Basel Convention.
      The Ad hoc Working Group which was established by the Executive Director of UNEP in
order to implement  Resolution 1  to consider the  necessity of establishing mechanisms for  the
implementation of the Basel Convention, recommended the establishment and terms of reference
of an open-ended Ad hoc Committee to meet between the meetings of the Contracting Parties.
      In  pursuance of  Resolutions  2,  5 and 7,  UNEP  has taken requisite  action  for  the
harmonization of procedures provided  for in the Basel Convention and other relevant international
instruments. As a result  of the cooperation with other organizations, the  General Conference of
the  International  Atomic Energy Agency (IAEA) adopted by its resolutions GC (XXXIV) Res. 530
(1990) a code of practice on the International Transboundary Movement of Radioactive Waste.
Also, several  resolutions were adopted within  the framework  of the International Maritime
Organization regarding the control and prevention  of dumping of hazardous and other wastes at
sea as well as in respect to the rules and regulations related to the transport of hazardous wastes
by sea.
      As  for the implementation of  Resolution 3  on Liability and Compensation, the  Ad hoc
Working Group  of Legal  and Technical Experts which had two meetings was able  to finalize its
work in  March 1992 by developing  elements which  might be included in a Protocol on  Liability
and  Compensation  for damage resulting from the transboundary movement and disposal  of
hazardous wastes and other wastes.
      In  accordance with  Resolution   8  of  the  Basel Convention,  the  Executive Director
established a  Technical Working  Group  to  prepare  draft technical guidelines for the
environmentally sound management of wastes subject to the  Basel Convention.  The Technical
Working Group met  twice in Geneva (in February and May 1992).  A third meeting is scheduled
to take place in Geneva in September 1992. The work undertaken, and recommendations made
by the Group will be  submitted for considerations by the parties at their first meeting  and eventual
adoption.
      The main  purpose of the technical  guidelines is to:
      a.  provide information on the controls expected to  be exercised  at  national level by
          governments  of  countries  which  are  parties to  the  Basel Convention over  the
          management of wastes, and in particular  hazardous wastes, produced within national
          territories;
      b.  provide guidance to Competent Authorities designated  by the parties  to the Basel
          Convention in  making  a decision whether  to  consent  or reject  a proposed

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          transboundary movement of wastes subject to the Basel Convention into or out of their
          country.


5      ENFORCEMENT IN THE CONVENTION

       The Convention obligates  parties to  manage hazardous wastes in an  environmentally
sound  way.  This means  that the  States party to the Convention shall aim towards activities for
the reduction and minimization of all risks of harm caused by hazardous wastes to health and the
environment. Such activities should include, inter alia:
       •   steps to reduce or avoid the generation of hazardous wastes;
          steps to ensure proper recovery of such wastes;
       •   steps  to reduce  to  a minimum  or eliminate  the export/import of  hazardous wastes.
          This entails the planning of environmentally sound disposal facilities,  located as close
          as practicable to the source of generation, and the identification of the  generators;
       •   identification of the type of wastes subject to the Basel Convention and the total annual
          volumes by type  acceptable for import, if any, and the corresponding environmentally
          sound disposal facilities to be used;
       •   identification of all conditions  required for  granting of consent to  exporters/importers
          desiring to move hazardous wastes through the territory of a transit country;
       •   identification of the adequate and most effective  process by which  to  optimize the
          environmentally sound disposal of wastes;
       •   elaboration of contingency  plans including risks analysis and emergency responses in
          case of accidents;
       •   steps  required  to  rehabilitate  polluted landfilled areas  or  to redress  ecological
          deterioration due to improper disposal  of wastes;
          steps  needed  to  comply  with recognized international  transport rules, regulations,
          standards  or code of practice;
       •   steps to monitor pre-and-post disposal operations and effects;
          steps  to develop  liability  and  compensation measures  for damages resulting  from
          transboundary movements and/or disposal of hazardous wastes;
          timetable for implementation of the various and interrelated elements of a strategy for
          waste  management.
6     ENFORCEMENT MEASURES

      The importance of enforcement measures is particularly evident in the case  of the Basel
Convention.
      A number  of  articles  in  the  Convention obligate  Parties  to  take appropriate legal,
administrative and other measures to implement and enforce its provisions, including  measures to
prevent  and punish conduct in contravention of the Convention as well as  monitoring  of measures
taken.  Examples are given below:
      Article 4 (General Obligations), paragraph  13  requests Parties to review periodically the
      possibilities  for the reduction of the amount  and/or  the  pollution  potential of hazardous
      wap*es which are subject to transboundary movements.

      Article 10 (International  co-operation) obligates  Parties to  co-operate  in monitoring the
      effects of the management of hazardous wastes on human health and the environment.

      Article 13 (Transmission of information) states that Parties shall inform each other, through
      the Secretariat, of:
      a.  changes regarding the designation of competent authorities and/or focal points;
      b.  changes in their national definition of hazardous wastes;

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       c.  decisions made by them not to consent totally or partially to the import of hazardous
          wastes or other wastes for disposal within the area under their national jurisdiction;
       d.  decisions taken  by them to limit or ban  the  export of hazardous  wastes or other
          wastes.
       The Parties shall also submit an annual report, through the Secretariat, to the Conference
       of the Parties.  The report shall contain information on:
       •   The  amount of hazardous wastes  and other wastes exported,  their category,
          characteristics, destination, any transit country and  disposal method  as stated on the
          response to notification.
       •   The  amount of hazardous wastes  and other wastes imported,  their category,
          characteristics, origin, and disposal methods.
       •   Disposals which did not proceed as intended.
       •   Efforts to  achieve  a reduction of the amount of hazardous wastes or other wastes
          subject to transboundary movements.
       •   Measures adopted  by them in implementation of this Convention.
       •   Available qualified  statistics  which  have  been compiled by them on  the  effects  on
          human health and the environment of the generation, transportation and disposal of
          hazardous wastes or other wastes.
       •   Bilateral, multilateral and regional  agreements and arrangements entered into pursuant
          to Article 11 to this Convention.
       •   Accidents occurring during  the transboundary movement and  disposal of hazardous
          wastes and other wastes and on the measures undertaken to deal with them.
       •   Disposal options operated within the area of their national jurisdiction.
       •   Measures  undertaken for the  development  of technologies for the reduction  and/or
          elimination of production of hazardous wastes and other wastes.

       Article 15 (Conference of the Parties) states that the Conference of the Parties shall keep
       under continuous review  and evaluation  the effective  implementation of the Convention.
       Also, this article obligates the Conference of Parties to undertake three years after its entry
       into force, and at least every six years thereafter, an evaluation of  its effectiveness and, if
       deemed  necessary, to consider the adoption of a complete or partial ban of transboundary
       movements of hazardous wastes  in  light of the latest scientific, environmental, technical
       and economic information.

       At  the   international  level  the  Convention  contains various  provisions  related  to
 enforcement.   A number of these outline the procedures  in some detail, spelling  out  the
 responsibilities of the Party States towards  each other (i.e. duty to re-import).  The Convention
 Secretariat has the function of co-ordinating these efforts and checking performance  through
 annual reporting by parties and other information provided to it.
       At  the  national  level some provisions  of  the  Convention  provide  a framework  for
 enforcement and delegate the elaboration of concrete measures to Party  States.   Measures also
 have to be adopted which  are not explicitly spelled out  in the Convention.  In both cases relevant
 measures have to be  adopted  by national legislation, and  government  authorities have to be
 established to  assume the responsibility of carrying out enforcement measures.  The  role of
 industry in this context also needs to be examined.
       The Basel Convention has entered into force  in a limping way as the majority of the main
 generators have not yet ratified or acceded to the  Convention.  Although, these countries  are
 adamant to become party  to  the  Convention as soon  as  practicable,  enforcement  of  the
 provisions  of the treaty  remains  a difficult task without their presence and full participation.
 However, practical achievements in this field can be accounted for.
       In order to provide assistance to  the States  to comply with obligations of the Basel
 Convention, which  requests the  parties to  take  appropriate legal,  administrative and other
 measures to implement and  enforce the  provisions  of the Convention, the Interim Secretariat for
 the Basel Convention has prepared a Model Law on the Control of Transboundary Movements of
 Hazardous Wastes and other Wastes and their Disposal.

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        Such  model  law  focuses on  both  control  of  transboundary  movements  and  the
  management of hazardous  wastes.   This model  law which  is being  used by  a number of
  countries, provides for elements to be included in national legislations in  order to implement  and
  enforce the Convention provisions, including measures to punish offenders.
        The work undertaken by the Basel Convention Secretariat,  and funded in  great part by
  UNEP, in addition to voluntary contributions received from States, has greatly helped providing a
  frame  for enforcement of the Convention in particular through  the  implementation  of  the
  Resolutions of the Final Act.
        As mentioned earlier, the implementation of the Resolutions provides a foundation upon
 which parties can effectively comply with the provisions  of the Convention.
        In  this regard,  the following  Resolutions  are of importance  for  the  development of
 enforcement mechanisms:

 Resolution 1 - Mechanism for the implementation of the Convention

       The Ad hoc Working Group of legal and technical experts set up by the Executive Director
 of  UNEP  recommended the establishment of  an  open-ended Ad  hoc Committee to  meet as
 necessary in order to present to the Conference of Parties  proposals and recommendations  The
 proposed functions of the Ad hoc Committee are to:
       a.  Collect, through the Secretariat,  information from  parties and other sources on  the
           operation of the  Convention to provide the basis  for the evaluation of its effectiveness
       b.  Identify factors which might inhibit countries from becoming parties to the Convention
       c.  Examine the practical implementation of the Convention.
       d.  Identify the specific needs of  different  regions  and  sub-regions  for  training  and
           technology transfers regarding the sound  management of hazardous waste and  the
           minimization  and the elimination  where possible  of their generation including clean
           production  techniques.   Taking into account  existing structures, particularly UNEP, to
           consider  the establishment, as a  model in a region where the need is greatest of a
           centre for the training and transfer of technology;  such a  centre of excellence should
           take into  account the work on cleaner production and also  draw on the work of existing
           institutions, particularly the Basel Convention Secretariat.
       e.  Review the technical guidelines for the environmentally sound management of wastes
           subject to this Convention, prepared by the technical working group established  by
           Resolution  8 of the Basel Final Act, which  might be  required to continue  its task after
          the first meeting  of the Conference of the Contracting Parties.
       f.   Harmonize  non-technical and administrative  aspects such as  notification,  movement
          documents and corresponding procedures for transboundary movement as a matter of
          priority.
       g.  Co-ordinate assistance to parties which may be in breach to  enable  them to comply
          with their obligations under the Convention.
       h.  Examine  reports received from global, regional, sub-regional  and other sources to
          monitor and assess all forms of illegal traffic of hazardous wastes, as well as the report
          of  the Secretariat  of the Basel  Convention on  the  implementation  of Article  16,
          paragraph 1(i) to assist parties upon  request on their identification of cases of illeaal
          traffic.
       This Ad hoc Committee shall have the power to establish any other sub-groups to  facilitate
the performance  of its functions.

Resolution 3 - Liability and Compensation

       The set of elements developed by the Ad hoc Working  Group will be recommended by the
Executive  Director of  UNEP  to  the  first  meeting  of the  Contracting  Parties to the  Basel
Convention for consideration  with  a view  to  adopting, in accordance  with Article  12 of the
Convention, a protocol setting out appropriate rules and procedures on the field of liability and
compensation for damage resulting from transboundary movement of hazardous wastes

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      These elements provide for a  comprehensive regime to ensure  adequate and  prompt
compensation  from damage  from  the transboun-dary  movement and  disposal  of hazardous
wastes and  other wastes,  promote  the protection of human health  and the  environment, and to
enable the restoration of the environment.
      At the request of the Ad hoc  Working Group the ISBC  elaborated draft  articles of  a
Protocol on  the  financing, operation and management  of an  International  Fund for immediate
response and for compensation which will be considered by the first meeting  of the Conference of
Parties.

Resolution  8 - Technical  Guidelines

       The  Secretariat for the Basel  Convention prepared a draft Framework document at the
request of the Technical  Working  Group  set up by the Executive  Director.   The Framework
document provides principles and elements for  consideration by the parties to comply with the
obligations of the Convention to manage wastes subject to this Convention in an environmentally
sound way.                                                                .
       Although  the Basel Convention  provides for very stringent control mechanisms, dubious or
illegal traffic in  hazardous wastes continue.   Developing countries,  Eastern/Central  European
countries and the Russian Federation are particularly vulnerable to such abuses. There are many
recorded  cases  of hazardous wastes  destined  for recovery which  end  up being  dumped.
Shortcomings in controls on the transport  of wastes or discrepancies in the definition  of wastes
lead  to many suspicious  movements.  Customs documents do  not  always correspond to the
"product"  transported.  Illegal  storage of hazardous wastes is often  reported as interim storage
which becomes  later on a disposal  operation.   In addition,  criminal acts  still  occur  when
 hazardous wastes are illegally shipped into another country without  the consent of that country.


 7     CONCLUDING REMARKS

       With the  Basel Convention, the world community has the opportunity, for the first time, to
 implement a truly global legal instrument dealing with the control of transboundary movements of
 hazardous wastes and their  disposal.
       The Organization for Economic Co-operation and Development (OECD) estimates that in
 1984, on  average,  a consignment  of hazardous wastes crossed  an OECD frontier  every  5
 minutes all year round. Over two  million tonnes of those wastes are estimated to  cross national
 frontiers of OECD European  countries annually  on  the way to legal disposal sites.  This figure
 represents  8 to  10% of all such wastes generated in these countries.
       Other movements, which are illegal, are motivated by the possibility of important gams in
 transferring the  problem to where controls or standards are less strict or because the vastness of
 the territory and the scant resources at the disposal  of the importing country makes any attempt
 at serious surveillance impossible.
       Such criminal  acts prompted strong reactions by governments,  international  organizations
 and  non-governmented groups.
        In addition, faced with the increasingly  higher costs of  safely treating or disposing of
 hazardous  wastes in  countries where they are produced, many companies prefer to get rid of the
 problem at a lower cost by transporting them to  another State.
       Taking into account  the fact that the quantity  of wastes of  all kinds  is increasing, that the
 rapid pace of industrialization will necessitate careful attention to hazardous wastes prevention
 and management for decades to come, and that with the development of new chemical products,
 new sources of hazardous wastes are created, much remains to be done to properly address this
 complex challenge.
        In exceptional cases and until the  appropriate technology and adequate infrastructure are
 available, or if adequate  storage or treatment is not possible in the generating country, it may be
 safer for human health and the environment to export hazardous  wastes to a country capable of
 eliminating them in an environmentally sound manner.

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       Increased international co-operation is necessary to assist developing countries to manage
and treat the wastes they generate  in an environmentally sound way.
       The Basel Convention will contribute substantially to improving the situation world-wide by
reducing transboundary movements  and  by promoting environmentally sound management of
hazardous  wastes.  The parties to the Convention will  co-operate actively with  each other to
implement the Convention and, in particular, will assist developing countries in the development
of sound management practices and adoption of cleaner production methods.
       It is  therefore  of great importance  that the  provisions  of  the Basel Convention be
implemented as soon as possible, effectively and efficiently, and in a spirit of solidarity to be able
to truly contribute  to  solving problems world-wide  and  to render accessible  practicable and
environmentally acceptable options to deal with hazardous wastes

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TRANSITION AND IMPLEMENTATION OF WASTE MANAGEMENT POLICIES  IN CENTRAL
AND EASTERN EUROPE

STEPHEN R. WASSERSUG

Program Manager, Regional Environmental Center, Miklos ter 1, 1035 Budapest, Hungary


      SUMMARY1

      Significant economic and environmental transition is  taking place in the former Socialist
Countries  of Central  and Eastern  Europe.  Environmental consequences are  evident,  but
remedies are complex. This paper focuses on the problems of improper waste management and
provides information on developing and implementing a successful waste management strategy
for those countries in transition. While the problems are somewhat unique to the region because
of recent past history, many policy and technical remedies experienced by Western countries may
be  appropriate  and are discussed.  In particular,  significant attention is given  to developing
strategies  which  emphasize   implementation. Implementation  measures include compliance,
enforcement, legislation,  broad public participation and  education measures.  Pressure exists to
act quickly on various waste problems. Although available information is limited, inaction is not an
option. Waste management decisions have a significant  impact upon the vital economic transition
of that  Region, and  must be  considered  jointly.  Expectations  should be  reasonable,  yet
comprehensive. Programs  for each  Nation must consider  current and  future needs.  Various
options are presented.


1     INTRODUCTION TO THE REGION

      This meeting provides  an excellent opportunity to share experiences since new WASTE
MANAGEMENT policies  are quickly evolving in Eastern Europe. Enforcement requirements will
play a vital role in successful  environmental transition. Implementing waste management  policies
and programs is  impossible  without considering compliance and enforcement provisions. On
paper, Governments can adopt many environmental waste management initiatives.  But to  be
successful,  waste management  programs MUST be embraced with practical and
comprehensive  approaches,  and must  receive  Government and community wide
endorsement, and  financial  support. Regional  countries  have  already  experienced
disappointment  in  meeting sound waste management objectives; not necessarily because of a
lack of laws, but  partly because the proper elements to implement and  enforce  the  laws were
lacking. Further, in the Regional  countries, industrialization  focused  almost entirely on output -
number of products, often without regard to quality  or environment. Waste generation  per unit of
GDP resulted in high waste volume. For example, the  U.S. volume based on GDP2 was about
20% of Hungary's; Germany's (former West) about 10% of Hungary's;  and  Austria's less than
10% of Hungary's waste/GDP. Industry was inefficient, and most remain inefficient.  Significant
restructuring is necessary to solve the problem and must be an available option in development
of an enforcement policy for waste management. However,  the countries in the region are also
quite different. For example, in the former Yugoslavia, waste problems are unique and priorities
are naturally different because of the war and other changes. Some areas face the need to deal
with wastes from war reconstruction. Other  emerging countries  of Yugoslavia (e.g.  Croatia,
Slovenia), are faced with building an entire environmental infrastructure, and contending with new
             1  The views expressed are solely those of the  author, and do not necessarily
          express the views of the Regional Environmental Center.

             2 World Resources Institute, P. 325

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 borders that suddenly restrict wastes and allow for almost no disposal options. This presentation
 provides options and experiences for implementing effective waste management programs, while
 recognizing that the  former Socialist countries face a variety of problems, and require a variety of
 options.


 2     POLICY CONSIDERATIONS DURING TRANSITION

       Waste management  is increasingly  at  the  heart of environmental-economic  policy
 discussions. Three important goals are integral in policy discussions.

       1. a successful transition to a market economy;
       2. cost-effective environmental Improvement; and
       3. prevention of new and  costly environmental problems

       To meet the three goals, here are five waste management objectives that should be met
 by the Regional countries.

       1. the need  to deal with  problems from  improper historic waste practices,  and the
          related past liabilities that  remain - who  will absorb these costs?
       2. the need  to  plan for environmentally sound and cost-effective options for currently
          produced wastes;
       3. the need to develop legislative certainty to successfully  manage new wastes and to
          define future costs;
       4. the need to encourage state-of-the-art waste management facilities;
       5. the need to encourage  waste prevention or recycling alternatives in conjunction with
          promoting  the necessary Legislative and Economic tools, and discouraging alternatives
          which undermine those  practices.

       At this  time, waste management issues are controversial and sometimes confrontational.
 Should this  facility or technology  be approved, and  on this site? Do we need it? Why? What
 effective alternatives do we  have? What  alternatives  meet short  term  objectives,  yet  are
 compatible with long  term needs?  Can we assure  the safety and health of people affected by our
 decisions? Is the information adequate to decide these questions? If  not, do we wait to make the
 decision? If  I enforce against this violator, what impact or consequences will occur? What is really
 known about a particular waste, and its  effects? Extreme  pressure either now, or soon will exist,
 to make important waste management  decisions, to answer these  and other questions. Often!
 those  decisions  will  have  economic and  compliance  consequences.  Unfortunately,  required
 information  is limited,  data  is often  unreliable,  and the  pressures  for achieving 'economic
 development and environmental results overwhelming.


 3      EARLY WESTERN EXPERIENCES

       Waste problems of the Region are not so different from  those of Western countries. Only
 in  the  past  15 years have Western governments begun to systematically address the waste
 problems. Early  environmental remedies included end-of-the-pipe  technology. Such remedies
 often discouraged facilities from developing non-waste producing technologies. Examples include:
waste streams were  often collected and concentrated,  only to return  to the environment at other
 locations, and transferred to other  medium (e.g. air to water to soil);  recycling was sometimes a
sham,  designed  to find inexpensive remedies for  the facility;  poor  recycling and  treatment
practices, improper handling and storage of wastes, and faulty  landfills and incinerators resulted
in  significant risks. The  impact of poor waste management practices became  widespread and
many people lost faith in the regulatory  process designed to protect them. The industrial sector
was blamed  both for  causing the problem, and for failing  to develop  prompt reliable solutions. It

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would be too simple to say the problem was merely lax enforcement.  It was also the case where
adequate  policy  considerations, adequate  information, and technological understanding were
lacking. With  limited resources in  regulatory agencies to  adequately investigate problems, and
with a  lack of adequate information, cost ineffective options were chosen. The full cost of these
mistakes has been  extremely high in terms of health, environment, and  financial remediation.
Past experiences provide a valuable learning opportunity,  and effort must be made  to
share this information quickly.


4      INFORMATION IS CRITICAL

       Today, we have information which enables better decision-making by  managers.  Science
and technology allow us to discover pollutants at very low levels in soil  and  groundwater; often,
below  our ability to  explain the effects. Research has given us a better understanding of  health
and  environmental  impact.  Today,  there are far more  technological  options to  solve
problems. However,  new technology may embrace  significant problems as well.  It is
necessary that we carefully evaluate the apparent environmental solutions to determine if
there are hidden future waste problems.

       Compliance  and  enforcement  require a  comprehensive information  process;  from
generation of waste to  ultimate disposal; from  cradle  to grave. While information in the Regional
countries  may be lacking, decisions must be made. Information on waste quantities, qualities,
sources,  etc.  must  be gathered  to  develop  an effective  waste  management strategy.
Recognition of data problems  exists, but severe understaffing of Ministries  in the Regional
countries does not provide the timely opportunity to gather, and assimilate the information needed
to develop a strategy. Adequate trained staff are vital for effective implementation.


5     WHY ENFORCEMENT?

5.1    Introduction of Guiding Principles

       - Solutions to waste  problems are  often costly, and therefore  do not lead  to voluntary
       compliance.  This means  that good  strategic  planning  and implementation  principles
       become even more important. The Integrity of Government Is enhanced where there is
       successful Implementation. Unsuccessful implementation leads to loss of credibility for
       everyone, especially,  government and industry. To be successful, compliance programs
       must  be based on sound principles and benefits. Compliance  in  waste management
       can often have hidden benefits which result in unforeseen economic savings to the facility.
       When  the  enforcement pressure becomes  significant, the facility  seeks  alternatives.
       Process  changes are sometimes chosen as a compliance  method, resulting  in waste
       stream  elimination and beneficial  product  loss  reduction.  This  choice can  enhance
       company competitiveness and profits.

       All Regional countries are developing some forms of waste management legislation. Some
 are further along than others. Many countries arg receiving direct legal assistance in development
 of this legislation.  In one country, a new waste  law has emerged, but it  may be difficult to
 implement for the following  reasons: massive recycling requirements without an existing  private
 sector to process materials and develop markets may impede progress;  industry in the country is
 still very  much  government owned,  thereby insulated  from  market  pressures  and possibly
 compliance and enforcement;  experience with environmental implementation is limited, and the
 Government  commitment is  questionable  given  economic  pressures. These factors  may
 undermine emerging citizen  trust  in new Governments if implementation is not effective. But  it is
 an  example  of  one  country  which has  forged  ahead  and  established an important waste
 management effort. It is clear that what  is critical  to this effort,  is an  education program for

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 citizens and facilities,  and resources and  programs to encourage  development  of safe waste
 disposal facilities.  Indeed, predictability and enforceability of waste management laws may be as
 important as the content. Again, it is necessary that the information learned from these efforts be
 shared quickly. Success can breed success in  the Regional countries, and  it is in everyone's
 interest to identify problems and solutions early.

       Current economic conditions  will make enforcement of waste laws difficult. However there
 are thirteen enforcement related  areas which  are  identified for consideration.  Addressing'these
 areas and recognizing their potential impact early on in the process, should make implementation
 of waste management strategies more effective.

 5.2    Penalties

       The  current limited penalty  and  fine structure available  to  enforcers in the  Regional
 countries  needs to be  changed. However,  even then,  fines and shutdowns  may conflict  with
 sensitive national priorities such as  market reform.  Therefore,  regulations for waste management
 must be fair and practical. Penalties must have impact containing clear financial disincentives for
 non-compliance, and punitive measures for wilful violations. There  is no greater disincentive  than
jail terms for wilful violators;  especially when top  management is responsible and is punished. At
the same time, economic incentives to comply, and  strict but flexible standards are necessary.

5.3    Enforcement Fairness

       Any  enforcement program  must treat  both domestic  and  foreign  investors equally.
Effective options are important, and fair competition will  encourage new  investors.  Necessary
adjustments can be defined as discussed  under 5.3 Compliance Schedules.

5.4    Compliance Schedules

       One helpful  tool  used by the West, especially for  economically strapped facilities, is to
establish compliance schedules. These schedules consider:
       a.  that practical  barriers be taken into consideration to achieve environmental objectives,
          and an agreed upon plan of action, with interim milestones, be developed.
       b.  that when developing a schedule, considerations  include: facilities  unique  problems
          and priorities be evaluated; risks of further non-compliance  be weighed; low cost or low
          technology  methods  be applied  in  the  interim to the  highest risk  areas; a
          comprehensive plan and  reporting schedule with both self-audits and  inspections'be
          developed; and schedules consider controls which eliminate or reduce waste streams.
          Longer term  environmental and cost-effective  options are important if waste streams
          can be eliminated or reduced.
      c. that communities affected be involved early and  often in this decision, with information
         provided freely.
      d. that measurement of success - what constitutes compliance from  non-compliance-be
         carefully identified  in the schedule. This should include specific standards of reduction,
         minimization of waste, effluent standards, schedules for equipment installation, etc  with
         penalties for unexcused failure.
      e. that for  the  regulator,  it is  resource  intensive   to  periodically  review  progress.
         Nevertheless, compliance, or at least major environmental  improvements are often the
         result if  reviews  are adequate. When the  information is routinely provided to  the
         community, an important trust begins to build between diverse interest groups. After all,
         everyone has  something at stake.

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5.5   Harmonization of Laws and Enforcement

      In this developing period, those countries in the Region  behind  in implementation will be
vulnerable to improper  waste disposal practices. Many facilities needing to dispose of wastes will
seek out opportunists  wishing to make fast money.  This  serious situation  can have  increasing
long term devastating  effects for countries that lag  behind as regulations in Western countries,
and in the Region tighten-up. Actually, unimplementable or non-comprehensive laws and policies
in the Countries  of the Region  provides an opportunity for harmonization  of  laws  and policies
which result in the implementation of regional cost effective solutions to waste management; both
between and within the countries.

5.6   Privatization

      Only  a  small  percentage of  the  waste generating  manufacturing  sector  has been
privatized. The privatizing difficulty is confronted with several enforcement waste related issues.
Without sufficient environmental  information and appropriate laws, how can the potential investor
define its liability? How can  the investor be offered waste disposal  options  if  there  are no
available options or strategies demonstrating that one will  soon  exist? How can the States define
their national waste strategy,  when  many active waste generating facilities might close due to
market  forces?  How does  one  adequately calculate the  current waste stream disposal  needs
when the problem is  so dynamic?  If new facilities for disposal are constructed  (e.g. landfills,
incinerators), how  can they encourage prevention  and minimization in this era of uncertainty,
instead of excess capacity for importing waste? The questions are difficult, but the Environmental
Ministries with Western assistance are attempting to confront them, develop interim solutions, and
secure  necessary  implementation and compliance.  Of course, international lending  institutions
also have a responsibility when providing  loans to confront these questions; not only to provide
for the  economic development, but also  the  long term  environmental  interests as well.  Those
interests play an important role in the long term health  of the economy. As these  issues are
resolved, the enforcement process for waste management will become more clear.

5.7    Permit Process Approach

       An effective Permit Process is critical to monitor performance of operating waste disposal
 and  other  facilities  having  significant  waste  streams.  Public  involvement, environmental
 assessment review, and excellent technological skills are required by  the responsible regulatory
 agency. States must consider that high salaries may be necessary to retain this type of staff. The
 assessment should review all aspects including those relating to the  facility, off-sight potential
 impacts,  and  waste  transportation  related  issues.  Modern hazardous waste  operations are
 complex  engineering  and  scientific  facilities. Reviews  of the facility plans, process, safety
 systems, report procedures, adequacy of trained operators, analytical facilities, waste controls, etc
 are critical. Experienced people with  specific skills and qualifications are required by government
 to ensure that  the process is  permitted  correctly,  audits  and inspections are conducted,  and
 expertise is available  for compliance-enforcement issues. If this part of the waste management
 scheme is  not addressed in facility planning, failure to implement effective options might result.
 These  requirements  must be  met  regardless of  whether one  considers waste treatment or
 storage, incinerators,  landfills, site remediation, or redesign  of existing  facilities. When developing
 appropriate  permit requirements, consider that permit fees could  be levied upon the investor to
 support the regulatory process. A strong enforcement agency is also a good investment for the
 waste facility. The broader the environmental enforcement nation-wide, the more potential for both
 pollution prevention and disposal at the well permitted facility.

 5.8    Private Sector  Involvement

        In the West, some  of the success for hazardous waste management depends upon the
 existence of a private sector that makes its profits from handling and managing  wastes.  They

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have  an economic incentive to dispose of wastes  as economically and  practically  as possible.
Often, as enforcement of these regulations grows,  so do the respectable businesses; important
options in the waste  management  strategy. The bad actors drop out of the business;  either
through enforcement,  or loss of business. They cannot compete legitimately. In the countries of
the Region, the State  probably manages over 90%  of the hazardous wastes because industry is
not yet privatized. Companies were,  and generally still are insulated from market pressures. They
may receive state subsidies and are  therefore insulated from real environmental enforcement that
serves as a disincentive NOT to  pollute. Further, communication between facility management
and environmental personnel  regarding compliance has  been quite weak. These two important
elements, privatization and communication, are necessary for compliance success.  This issue has
also been difficult in the United States when  dealing with Federal Facilities, which are owned by
the Government. But waste laws cannot shield these major facilities from compliance. Figure 1
depicts  the importance that four pressures  (market, consumer,  political, legislation) have upon
business. The  benefits of compliance are extremely positive, non-compliance is quite negative to
business. Successful regulatory implementation is required to make this process happen.
  Figure 1.

              Market Pressures

   Consumer      41
   Pressure
   Political
   Pressure
Compliance Plus
 Proactive Response
 Legal Compliance
 Passive Response
    Legislation     j
                Issues
Non-Compliance
Hostile Response
 Competitive Advantage
 New Opportunities
 Increased Efficiency
                                                                   Motivation
 Status Quo or
" Lost Position

      Market Share
          Image
                                                                  Competitive Position
5.9   Achieving Voluntary Compliance

      Voluntary compliance makes  up a  significant  part  of  achieving environmental goals.
Voluntary action is rare when compliance costs are high, benefits of compliance are not known,
incentives to  comply are  lacking, and when a strong regulatory program is absent.  Facilities in
the Region will  soon compete  with  others for delivering products  at competitive  prices.  Why
should one industry add costs  if the competitor does  not? Clearly, Ministries cannot enforce
against  all facilities not  in compliance. By  carefully selecting  targets and educating,  voluntary
compliance can be significantly enhanced. Economic incentives and recognition to facilities doing
a good job will also enhance the voluntary process. Currently, in the absence of laws or with the
impracticality  of enforcing outmoded laws of the former Socialist countries, there is the hope that
EC, US,  or other advanced standards might become self-promoting or voluntary by  responsible
facilities privatizing.

5.10  Pressure from the Private Sector

      Private interests have identified waste disposal market  potential in the  Region. Western
needs have created a desire to construct landfills and incinerators in the Regional countries. This
              PA Consulting Group Brochure p 3

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may be both good and bad news.  This could help solve existing and historical waste problems
using best available  technologies.  However, the need for  hard  currency and jobs are obvious
and subtle pressures exist upon decision-makers to allow  facilities. These  facilities would often
include excess capacity provisions  for disposal of waste from  outside the region and to provide
for growing needs for the new developers. Co-generation  of energy is sometimes offered as a
way to improve  the  financial opportunity for the investor.  The  excess  capacity provided by a
state-of-the-art facility may be  especially  important to potential Western  investors  wishing  to
reduce potential liabilities caused  by  future mishandling,  the accompanying  negative publicity
that it might cause, and  reduce  insurance costs. Existing  outdated waste  facilities that are  not
viable, and cannot be  upgraded justifiably in a cost-effective manner will close more quickly;
especially when  compliance  is required enhancing market system forces. However, it is not that
simple. There is a dilemma.  What options to select, and  what is the process for making that
choice?  Will  the  new facilities  solve problems in the short  term, but  merely  delay waste
prevention alternatives  from facilities? Carefully  planned approaches,  citizen  input,  and a
nationwide strategic plan with broad regional considerations, will provide the necessary steps for
implementing a process of decision-making.

5.11  Personnel Requirements

      The regulatory implementor  in the waste management field must be technologically and
legally astute  to understand  all the subtle  environmental relationships. As a matter of education
in waste management,  working terms for reduce, reuse, recycle,  reclamation, recovery, etc. must
be  understood before  one can consider the proper implementation  option.  A good  regulatory
program is synonymous with good people. Training and  educating  does  not end at the  staff
level. All players in the process need  to be educated, including  Lawmakers, Judges, the Press,
etc. Solving the  air pollution problem by capturing a waste which will then  contaminate soil and
groundwater  is not a solution. This requires that  staff from  different Ministries work together
under a common strategy, or set of principles.

5.12  Integrated Regulatory Principles

      A  waste management strategy is designed to improve safety and environmental quality; to
meet both short and long term goals. The strategy must incorporate all related complementary
programs for pesticides policy; toxic chemicals control; hazard materials transport; water  and air
pollution control; solid waste management; and accident prevention and response. The more one
tightens  any one policy, the more  impact on waste and ultimately on problems at disposal sites
with complications in the enforcement  process. Strategies in each  country  should reflect the
differences of infrastructure, timing, and  priorities. While  strict enforcement requirements  are
important, flexibility to  select the optimal environmental option is necessary to promote  holistic
(integrated) waste management approaches best for  the  whole environment. Decisionmakers
from different Ministries  and Local Governments  must work  together to  address issues which
may undermine a  national waste management strategy.

5.13  Critical  Public  Involvement

       Unfortunately, there  is no  easy answer  to  implementing  sound waste  management
practices. Different people have quite different views of the issues. Public opposition to most any
facility can be anticipated, as some of you already know. The public  generally trusts neither the
government,  nor the facility or its owner. While  the Regional countries wish to solve their waste
problems, the problems are often not well defined.  Citizens do not believe that there is  an
existing  program  to ensure  compliance and availability  of  public information is limited, even
today. Access to environmental information has become an important element in the  West over
time. Passage of the Environmental Protection  and Community  Right to Know Act in the United
States, has revealed to the public  all facility waste  streams, and resulted in substantial voluntary
reductions. These reduction  amounts  may total amounts  as significant as those that resulted

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                                INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 from many other U.S. pieces of environmental legislation. Government regulators who failed to
 provide information  sometimes learned  the hard way why it was  necessary. Many regulators
 exhibit scars from not addressing public involvement and information access in  creating waste
 management strategies. To repeat: building trust with the citizenry and all Government levels
 requires creation of a proper short and long term strategy focusing on waste prevention, that has
 early and frequent citizen input in the design  and recommendations. Providing excess capacity
 where  there may be no need for such capacity only further alarms citizens, and may encourage
 waste production and not prevention, if not carefully addressed. Therefore, the strategy must be
 supported  with excellent waste generation documentation (present and future).  Information
 gathered by facilities  and Governments to define  environmental  impact,  should be routinely
 required and freely available to the public. Informed citizenry would result in pressure upon
 facilities to act where reliable data warrants such action. Informed citizenry will serve  to
 fortify the Environmental Ministries, increased resources for all levels of Government agencies to
 implement  the necessary  compliance,  and a much  improved  strategy overall.   Lastly,
 communications  between all  the diverse  interest  groups should  take place  frequently  and
 informally in developing  the plan and individual compliance strategies, not wait until it reaches
 the stage of last resort - often the courtroom. Figure 2 demonstrates the importance and aspects
 affecting environmental awareness, impact  upon business, legislation, and enforcement.
Figure 2.3
Social/Culture
Economy/Industry /
Political/ p^l — 	 -. £
Legal *• NATIONAL
_^-+ ATTITUDES
Ueography ^ \
S \
Education/ ^
Understanding ENVIRONi;
AWAREN
Media CONGER
hxposureN. 4 \
N. / Politic
4^ / Prpss
ISSUESl
S 4
Scientific,/ |
Knowledge i
r n
| 1 Informal
i j Enforcement
1 Market
^ Pressure | 	
/^ ^
1ENTAL ' [
ESS/ Consumer . , 	 ! 	 L
N Pressure ^[BUSINESS
al /* II I
ure .^ l| v-
^ ^^^ 1 1 Forrr
	 1 1 Enfo
LEGISLATION 41 	 'i
	 J
J
3
al
rcement
5.14 Direct Citizen Impact

     An excellent example of citizen involvement in enforcement in  Eastern Europe is best
summed up in the article from The Wall Street Journal of April 8, 1992.

     The headline:   ENVIRONMENTAL  GROUPS IN EASTERN  EUROPE  FLEX THEIR
     MUSCLES - THREAT OF  A CLASS-ACTION SUIT IN HUNGARY SHOWS THE RISE
     OF A NEW SORT OF POLITICS.
        ' PA Consulting Group Brochure, P. 12

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             115


     In this example, which is common in the West, some environmentalists are learning how
to apply pressure through lawyers and scientists against neglected  environmental problems;
to recover  damages from past contamination of lead and other heavy metals in soil, and
groundwater affecting nearby  residents. Although the current laws and costs to litigate in the
region will probably not support many such actions, only a few well publicized activities like
this will send concern to those who might be less scrupulous. This action by a well informed
and involved  environmental organization  will not  discourage the responsible investor.  In fact,
as mentioned the responsible investor is waiting for appropriate enforceable regulations and
an  aware  citizenry. Moreover,  strong regulations  open  markets for  pollution  control
manufacturers and the talented technicians of the region. Most importantly, such suits from
citizens or Government, involving  old waste sites, will make present  company managing
directors and investors  take notice of their responsibility. For the manager, he does not want
to be cited for neglect nor be a cause for health and environmental  impact in his community,
upon his neighbour. For the  investor, he must  consider the future. Failure to eliminate the
waste stream or prevent  pollution  to the  maximum  extent practicable,  only  subjects the
company  to  future  liability  situations.  Obtaining development investments, and  buying
environmental impairment  liability insurance has become a  nightmare  worldwide. Perhaps,
even more significant is the  fact that responsible international companies pay a significant
amount of money for good public relations and advertising. They  do not  wish to see their
product, or company reputation undermined by lack of attention to requirements.

     In summary, there is no single waste management blueprint for the region or for
any  one  country. In  that  context,  any environmental  policy, especially  waste  and
enforcement, must focus on manageable,  high  priority, cost-effective  approaches. Thirteen
issues have been identified for your consideration. Figures 3 and 3a provide a comprehensive
summary or checklist  of other  short  and  long-term factors  that potentially impact the
development and implementation a successful waste management strategy in this transitional
period. This does not imply that all must be addressed immediately for success. Merely, that
they  be recognized,  and that each Country consider those most important at the time of their
strategic planning process.


 6    CURRENT ORGANIZATIONAL ISSUES

 6.1   Import Pressures

      Waste  management  strategies  of  the  Regional  Countries must  consider  international
 implications. Waste  fears  in  the region  mount  when reports in the press reveal that waste
 shipments from the West are arriving in the Region. Strong enforcement  measures in one part
 of Europe must be matched with similar  measures in the Region. Recent new waste laws and
 their implementation in the West will cause increases in Western disposal costs.  Boundaries
 are  now  more  accessible here,  and  the necessary legislative  structure to protect  the
 environment is either not in place, too difficult to enforce, or too few resources are available
 for implementation.  It is feared that some of the Western waste shipments may be designed
 to take advantage  of the economic situation  here creating  opportunities  for needed  hard
 currency.  If  the illegal  risk taking reveal  minimal  chance for prosecution,  or penalties well
 below profit  potential,  the opportunity for  unscrupulous waste handlers is  obvious. Pressure
 will continue to mount to transport waste to the Region as:  Western waste disposal options
 are  reduced; markets for recyclable  materials are  diminished; public  opposition  mounts
 against disposal  options  in the West; fewer options mean more cost for disposal; the most
 concentrated and toxic wastes remain because of limited disposal  alternatives; and,  rigorous
 time consuming permit procedures slow development of new important options in the West.
 Without laws or programs to adequately prevent, or effectively deal with such  waste  imports,
 there is little wonder why the Region is attractive. Regional Local Governments are also under

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pressure  to  make decisions which  may  undermine  national  policies, and could  cause
international  problems. Therefore,  harmonizing waste management  laws  and  procedures
within and between countries, and at all Government levels, is crucial.
 Figure 3. Framework for Waste Management

 COMPLIANCE CONSIDERATIONS
 -   effective waste programs depends on a variety of actions and measures, not a single
     regulatory or technical approach
 -   successful  programs must be both cooperative and coercive and rely on the regulator, waste
     generator, disposal company and others for information and support
 -   implementation and enforcement must be practical and educational, within current or
     prospective limits of government capability
 -   compliance of waste management laws is only effective if the Company Management takes
     notice; especially if their  personal liability or reputation is at stake
 -   enforcement approaches, priorities, monitoring, and infrastructure development requires a
     cradle to grave approach from the generation to ultimate disposal
 -   where it makes sense  take immediate and appropriate actions to move forward the waste
     management strategy; consider interim facilities to  provide temporary solutions
 -   commence a comprehensive training process to include investigative/enforcement techniques
     (field citations, administrative, and judicial action)
 -    combine the carrot and stick; while legislating and enforcing, support viable treatment or
     storage  alternatives, waste exchanges, information transfer, and programs that enhance waste
     minimization
 -    correspondingly place minimization controls and incentives to minimize waste under air and
     Water Pollution laws as a way to impact waste  reduction
 -    establish an award scheme for waste abatement, clean technologies, and products to those
     waste generators who  lead by example and advertise the success stories
 -    apply  interim measures to include a real reduction in risk, measure the success and make
     information  freely available
 -    establish a  practical implementation procedure for National border disputes
 -    assure that interim  waste management approaches consider firm deadlines, allow for later
     recovery of segregated wastes, does not eliminate  further site use, and has appropriate
    record-keeping and strict operational controls
 -   develop  mechanisms for  imaginative implementation of laws; (e.g. can current EC policies for
    environment and  economic competitive advantage, affecting Associate Member States be
    used to further environmental objectives

 RESOURCE DEVELOPMENT CONSIDERATIONS
 -   build measures gradually as capabilities and resources increase, with more progressive
    strategies developed and implementation

 ECONOMIC CONSIDERATIONS
    find economic incentives  to encourage preventers, discourage polluters and influence
    competitiveness
    promote  Best Available Technology without excessive cost
    establish a co-operative waste exchange with a suitable industry or association; someone's
    waste  may be another's raw material; monitor the option closely
    provide an incentive system where  retrofit of older equipment attracts a subsidy
    require separation of potentially hazardous wastes to avoid incineration and land disposal; in
    conjunction, consider imposition of costs/fees (deposit refund system) for the packaqinq (e a
    cans, batteries, vehicles
    exchange experiences in  the region; it will lead to a more coherent implementation of
    programs; establish a scientific/policy exchange that will meet and exchange
    views/experiences
    obtain  all appropriate quality assured information, and environmental data to set cost-effective
    priorities  for legal  and enforcement options

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     Recent  experiences  in  Bulgaria  and  Rumania,  and  previous  ones  in  Poland are
examples of  the  pressures to  import waste  into the Regional countries. The  countries are
attempting to respond.  For example, this past June the Government of Rumania proclaimed in
a policy  decision document a  number  of prescriptive requirements  relating to waste  import
requirements. Whether or  not  the Governments  have the necessary  resources to routinely
monitor and enforce all the  provisions is critical.
 Figure 3a  Framework for Waste Management

 INFORMATION CONSIDERATIONS
 -   learn about the local situation; past damages, exchange all available data, understand
     industrial processes, and obtain inventories of chemicals used, manufactured, or imported
     survey generators and disposal outlets; quantify and identify wastes
     prepare (training) parliamentarians and the court to face the waste management challenges

 PUBLIC AWARENESS CONSIDERATIONS
     public support is critical; invest in  awareness raising and training
 -   promptly respond to complaints by citizens and provide follow-up; trust enhances the
     opportunity to implement plans
 -   develop fact sheets for involved constituencies about wastes, technology, issues,
     requirements, minimization, import/export, etc
     develop model curbside pick-up programs for limited marketable solid wastes to create
     recycling markets
     Inform the public early and ensure its participation in the decision making process to
     encourage implementation of appropriate waste management decisions

 PLANNING CONSIDERATIONS
     encourage and promote treatment of communal waste for regional areas; leads to results
     that are easier to enforce and manage and are more cost effective
     build waste management and existing prevention considerations into development planning
     understand regional and global interdependence of waste issues leading to a holistic and
     integrated environmental (air, water, waste) approach towards solutions
     define potential/actual high risk facilities; develop specific strategies

 TECHNICAL CONSIDERATIONS
     begin to eliminate co-disposal of non-solid wastes
     consider solidification of selected  wastes prior to landfill disposal
 -   consider off-site treatment of some chemical wastes (e.g. electroplating, textiles)
     limit co-incineration of combustible oily wastes, pesticides or similar materials in cement
     kilns and only under controlled conditions
 -   export special wastes (e.g. Polychlorinated Biphenyls) to specially designed incinerators
     following all requirements and monitor results
 -   consider entombment of non-treatable toxics
     secure storage of special materials currently not readily disposable which have high risk
     potential (e.g. batteries)
     provide and allow for alternative solutions
     give adequate attention to small business facilities who may have acute problems with
     potential high risk impact;  includes storage of chemicals
6.2  Support from Outside the Region

     Western industrialized countries recognize that there is a burden on them to provide the
legal  structure  to prevent exploitation  of waste  shipments  to the  region. The European
Community's Waste Directive  promotes  the  principles of  self-sufficiency and  proximity  in
waste disposal, requiring management of the wastes near the point  of generation. This EC
effort is also supported by a hazardous waste Transport Directive to deal with requirements  of

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international transport and associated risks. Much  international  focus  has come from The
Basel Convention  on  the  Control  of  Transboundary  Movements of Hazardous Wastes.
Disposal requires prior informed consent before waste can be shipped to a receiving country.
If  countries can  provide  proper treatment,  transport is restricted.   However,  monitoring
compliance and enforcement by  both  the  sender  and  recipient countries  is  crucial. This
process is  only a  first step;  more  needs to  be done, including extending  the scope and
application  of agreements to  achieve more comprehensive  actions to  control  waste.  Some
countries, like Bulgaria, used the Basel Convention as the basis to draft its Waste Law.

6.3  International Assistance

     Western Governments are  supportive in determining the extent of  the waste problem in
this region, and providing solutions.  Recent strategies from the European  Community include
studies  on waste  management in  Poland, Hungary,  and  the CSFR.  Application  of the
proximity principle,  and clean  technology options are also part of the overall strategy.  When
these efforts are completed, important information relative to developing waste  management
strategies  for the  region will  be  available. USEPA has  provided direct support to  review
specific soil contamination problems caused by past  waste management  practices. Risk
assessment reports have been  completed which will serve as model approaches for similar
problems.  Similarly,  visits to  cities  experiencing waste  management  problems have  been
made and  guidance  given to  establish  appropriate cost-effective manageable  strategies.
Lastly, through  the efforts of  the  Regional Environmental Center in Budapest,  a number of
grants have been awarded to  support waste management project initiatives. Other activities of
the Center include: support in the development of  both  framework and waste  management
legislation  through  a  legislative task force:  support  for  relative workshops  on  waste
management bringing together the diverse constituency groups, and undertaking projects for
different constituency groups  to serve  as models  for solutions.   The Center's information
network and  resources  serve as  an important  clearinghouse  to provide support within the
region, and identifies available resources  where solutions and contacts may be appropriate.
Another important  initiative that  may  affect  waste management and enforcement  efforts
includes an extensive  program by  the EBRD  to review all legislation  in the Region and
determine areas and problems related to harmonization.

     Sixty-seven Contracting  Parties to  the London  Dumping Convention  supported a Global
Waste Survey.  Although primarily dealing with eliminating  the  disposal of  wastes at sea,
information was gathered in  a broader  context to  eliminate  and minimize  waste.  Goals
included: manual  of sound  waste  management practices  and clean technologies;  waste
profiles by  country; development of several management plans; and promotion of international
cooperation on  waste. While  the  U.N. International Maritime Organization is responsible for
this effort, other international  organizations and States are supporting this and  similar efforts.
A compendium providing  a clearinghouse of  all these  opportunities will  soon  be available.
Other institutes have compiled excellent industrial waste minimization or training manuals as
noted in the  references. One new  draft  waste assessment procedure is also found  in the
Reference  List.

     One very  useful output  of the  Global  Waste Survey is the graphical summary from a
questionnaire to 153 countries.  Results from  80  questionnaires reveal some interesting
findings about  the waste  problem in the Regional countries  compared  to  others. Findings
included: existence of waste management regulations but lack of enforcement; the perceived
seriousness of the  problem; exports  from the region  are not a problem but imports are;  lack of
effective recycling facilities  is apparent;  and inadequate  information  to  quantify  waste
production  exists.

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7    SOLID WASTE RESPONSIBILITIES

7.1   Observations

     Most  of  the  previous  issues and  policies  discussed refer  to  the broad  solid  and
hazardous  waste management questions. Some  issues may apply more to  the  hazardous
waste situation; e.g. transport, uncertainty of quantities, and risk. However, given the fact that
waste definitions are still not completely clarified,  and waste disposal in landfills is often co-
mingled (hazardous and  solid), it is difficult to separate issues by definition alone. However,
household  and office waste problems, sometimes defined as solid waste,  are  significant.
Landfills in most communities are at or near capacity. They are generally unhned, waste is co-
disposed as mentioned, and groundwater contamination is  frequent. Major recycling facilities
are virtually non-existent, and waste streams are  increasing. Personal  experiences over two
years reveal new  packaging changes in the Regional countries, large increases  of  plastics
and other  heretofore non-existent waste.  Discussions  with soft drink manufacturers confirm
that the demand for such packaging of 2 liter plastics is overwhelming supportive, if judged by
purchase  demand.  Since Western markets are generally saturated for new  packaging, and
reductions  are planned resulting from  public  pressure, new  paper, can, and plastic
opportunities are contemplated for this Region. Good habits ingrained in the culture, such as
returning glass or paper are being lost to lightweight non-returnable  plastics.

     Specific observations over the past two years include:

     -  soft drinks  are  now more often sold in  cans and  plastic  containers, with  costs for
        such  products  continuously decreasing  as packaging  plants  are successfully
        established here
     -  fewer returnable bottles for water, beer etc.  are evident, fewer  places to return them,
         and fewer people returning bottles evidenced by shorter lines
     -   evolution of fast food restaurants and their resulting packaging  wastes
     -   frequent new packaging displays in markets
     -   more plastic shopping bags available at check-out counters

     Are  these indicators of success or failure? Westernization has  occurred, but with  an
 accompanying environmental downside. To the consumer of the Region, attractive consumer
 goods are  important,   and convenience  becomes increasingly   important.   Designing
 environmental programs must  consider  these values.  Recycling was  part of  the culture
 because  of  resource limitations. Problems of  waste management cannot be solved outside
 the context of society, culture, and experience of the people.
     As one soft drink plastic supplier said to me: "it is far easier to carry shopping bags long
 distances  up many  stairs with  lightweight plastic.  It  is much more  difficult and costly here to
 design collection programs for separables (separate curbside collection), and apartment size
 does not  leave much room for separation  and storage." Financial resources are limited  for
 separate collection systems. However, without such recycling efforts imposed by Government,
 the necessary private  recycling  facilities will not be built and  markets for recyclable by-
 products will not materialize. Investors are not now guaranteed source and quantity necessary
 to satisfy the investment for recycling facilities.

 7.2  Serious Effects from Improper Waste Disposal

      Solid waste  problems of today  in the Regional countries may lead  to more  serious and
 costly  consequences. Battery disposal is but one example that continues to concern many in
 the region. Without options or  obvious solutions, disposal  is  haphazard. Few  safe  recycling
 disposal  options exist in the Region,  and some, like  Metallochemia in Hungary, proved to be a
 major  environmental hazard. However, interim implementable  and  enforceable solutions must
 be found. Even designating a secure site for containment, with a financial incentive for people
 to bring their batteries to the location, would allow for a simple viable option.  However, interim
 options require education to insure that people do not feel  cheated because final solutions are

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 not provided. Not only will the interim option help save the environment in the long term but
 the people will learn about the value of recycling potentially  hazardous wastes  and their
 potential impact if not handled properly. With storage of batteries concentrated at a place by
 regulatory requirement, properly monitored and permitted, future ultimate solutions become
 more cost-effective to a potential investor. The investor is guaranteed both a source of supply
 to  recycle and a predictable  quantity. This equation  is important for those recycling  any
 materials, and for  both  the  recycler  and  source of  the final  recycled  materials  Legal
 requirements with effective efforts, balanced by early education,  insures that the  equation will
 be implemented.


 8   HISTORICALLY CONTAMINATED SITES

 8.1  Background

     Many of  us are aware  of the experiences in  the  West dealing  with  abandoned  waste
 sites. Contamination over many years resulted in massive environmental impact  Major costly
 programs like  Superfund  in  the  United States evolved to  identify,  evaluate, and implement
 solutions to eliminate the wastes, and reduce the environmental  impact and risk. What began
 as a  limited  effort,  expecting  to solve  the  problems in  a  short  time,  resulted  in an
 underestimating of the problem, cost, solutions,  and time required for remediation.  Countries
 of this region are now awakening to a similar discovery. Problems caused by old abandoned
 facilities,  mining, former military bases, municipal landfills are some of the thousands coming
 to public attention.  While  some countries have preliminary estimates of site numbers, it is too
 soon to evaluate the full extent of the magnitude  of this waste problem.

 8.2  Information Availability

     There are differing reasons why sites are now drawing public attention. These include-
 information  revealing contamination of water supplies; re-privatization  of  land to original
 owners as restitution  with accompanying knowledge of environmental  problems and required
 clean-up; information from environmental impact assessments required by privatization and by
 investors; and  old audit  or  other information  now  becoming available  from  facilities or
 individuals. Data is more  freely available.  Regional countries  have an  important interest in
 taking  action, for  environmental, health, and economic reasons. Further,  it is critical that in
 developing strategies for the  historically created problems, we do not neglect the potential for
 new sites developing from  existing poorly operating  facilities.  This  includes facilities and
 landfills,  the  potential random  dumping from lack  of  properly operating disposal sites, and
 improper storage of wastes or products.

 8.3  Enforcement

     Where does  enforcement and compliance  fit  into  this process?  With  regard to  the
 historical  abandoned  sites,  determining  liability  is  a difficult  issue.  These facilities  were
 generally  owned by the Countries of the Region,  or  Government  agencies,  creating  insulation
 from a neneral  enforcement process. However, as these sites are privatized, liabilities will be
 established for both  the  old  waste and  potential  new waste  problems.  To establish  the
 liabilities,  it is extremely important that evaluations  of the environmental problems  be made
 both on the site of the facility, as well as effects caused off-site (e.g. groundwater). In this
way, any additional contamination caused by the  new owner is clearly defined, liability can be
assessed, and  necessary  compliance and enforcement remedies undertaken. Sometimes it
may be in the  interest of the States to have the investor assume liability for remediation for
past historical waste problems, with a reduction in cost for the asset sale as an incentive. This
is being done in some countries.  In this case, an opportunity is provided for the Ministries to
obtain  resources for the clean-up when  resources  are otherwise  unavailable.  However, to
assure that proper clean-up  is attained,  a compliance  schedule (as  mentioned previously)
should  be developed and carefully monitored. Of course, even where there is no agreement

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to clean-up past problems, intensive monitoring and comprehensive permitting of the facility
will prevent future waste problems.

8.4  Experiences

     In developing strategies for identification, assessment, containment and remediation, a
great deal  can  be learned from Western experiences.  Costly mistakes were  made in both
policy and technical areas in the West. But there are many successes as well in  reduction of
risks. Developing successful compliance agreements, appropriate technology,  and adequate
risk  levels are some of the important  areas ripe for technology. However, it is not  a simple
matter to transfer information or technology.   Demands  for clean-up, sociological/historical
conditions, cultural values, and resource availability are quite different  in countries worldwide.
The  waste sites are also different, although many fall into  similar categories. Therefore, while
fully  understanding the procedures used by different countries, carefully tailored  approaches
are  important.  It is important to establish a program that: carefully identifies  the problems;
defines the risks; assigns National priorities;  implements efforts to reduce immediate and
major risks first; defines resource needs; establishes a legal/policy process; and continuously
evaluates efforts making necessary programmatic modifications.  As stated previously,  Local
Governments, citizen groups (NGOs)4 and residents impacted by sites MUST  be involved
continuously  in the  process to receive  Government support, and to reach a successful
outcome. Site reclamation may have a significant cost, but for some sites the highest cost is
to do nothing.  Financial costs are  often recoverable when formerly unusable property can be
sold, groundwater is fit to drink reducing  risks to health, or surface  water  is restored to
industrial process water quality or recreation use.
The Waste site clean-up  program can be  incorporated into  a  major legislative  effort,  or
individual cases can be handled. There are merits to a combination of approaches, especially
in the  beginning  where  gathering experience  and  the  need for flexibility are  important.
However, in  any case a comprehensive Nationwide strategy  is important to ensure that all
relative  Ministries are working  together,  Local Governments  and citizens are involved and
informed,  investors  understand  their requirements,  and  to measure  successes,  define
problems, and  incorporate modifications. At the Regional Environmental Center, we  have had
the  opportunity  to provide some support for limited site evaluation, and outline a model  site
and National approach.


9   HUNGARY - PROBLEMS AND PROGRAMS

     Background information on the  Hungarian Waste  program is provided to show relative
 problems, and initiatives to affect waste management strategies. Problems appear typical to
those  experienced by  other countries  of the  region.  The list5  provides an  orientation  for
 priority setting for compliance purposes.

     -   For municipal waste, a complete database does not exist.
     -   Current  databases  are based  on  incomplete  information, and  necessary
         improvements are under way.
     -   About  2600 waste dumps exist in Hungary with 58  percent failing to conform with
         public health and environmental regulations.
      -   Only 52 percent of households is linked to systematic waste collection, with figures
         varying between areas of  the country.
      -   The  quantity of wastes  produced  compared  to international levels is high while
         utilization (recycling ratio)  is low.
      -   The introduction of low waste producing technologies  is just beginning
      -   Only 3 % of total material use is recycled.

            4 NGOs = Non-Governmental Organizations

             5 Ministry of the Environment, State of the Environment pp 11, 12

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 122                            INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


     -  3.2 million  of the total 5 million tons of  hazardous wastes produced annually  are
        stored on-site.
     -  Of the remaining hazardous wastes, 2/3 are disposed of in lagoons or landfills.
     -  Disposal for the other 1/3 is unknown except that only 10 % is treated to accepted
        standards.
     -  Municipal waste dumping is common, but capacity is being exhausted, and 60 % of
        the dump sites do not satisfy environmental protection specifications.
     -  Recent  calculations demonstrate  that  a significant  portion of  the  hazardous
        (dangerous) wastes are probably generated from untreated waste water; a significant
        portion going into public sewers; 146 million cubic meters is produced.

     On site historical contamination of wastes is not fully understood. This  is similar to some
 situations  in the  West.  For  some  cases, like  BVK,  in  Kazincbarcika or  Metallochemia in
 Budapest  as  mentioned,  contaminated  soil and  groundwater  is  evident  and significant
 amounts of wastes and products are unaccounted  for. Studies are under way for some sites,
 with priorities set for state owned companies under privatization, and former  Soviet Bases.
     New  environmental  waste management laws are  in draft  to "modernize  waste
 management policy", but have been delayed in passage and therefore implementation. Older
 and less effective laws  are in force. Many view this period as an opportunity to avoid some
 major mistakes of the West.  A holistic  environmental  approach is being considered to avoid
 transference of environmental problems between media. If done properly, the result will be a
 more cost-effective approach for both the long and short term for Government  and  industry.
 The laws may  be designed to force pollution prevention and cleaner technologies, as opposed
 to end-of-pipe  control in this reconstruction period. However, a market economy must develop
 quickly and economic  incentives are  vital.  As in many countries  of  the region,  a legal
 restructuring may be  necessary  in  Hungary  to  insure  successful  implementation; that
 compliance and enforcement measures will  result. How  does  one build a system from  the
 ground up to  assure success? Some of the Western  countries  would love  to have  this
 opportunity considering  the often incredible  complex  environmental laws and implementing
 process. However, in the countries of the Region, the process is complicated by the economic
 conditions, urgent demands to resolve and  prevent new problems,  and outright conflicting
 values.

 9.1  Hungarian Environmental Strategy  (Waste Management Priorities)

     In December 1991, the Ministry for Environment and  Regional Policy in Hungary  issued
 a  strategic  plan  outline entitled:  THE  SHORT  AND  MEDIUM TERM  ENVIRONMENT
 PROTECTION  PLAN OF THE GOVERNMENT. The objectives and tasks of this plan provide
 a needed and ambitious effort to address many of the issues presented in this paper.
     Those principles related to waste and enforcement include:
     -   PRINCIPLE OF ENFORCEMENT - prioritized the use of resources by risk;
     -   PRINCIPLE OF THE PREVENTION - reduce pollution at the source;
     -   PRINCIPLE OF PARTNERSHIP - governments and market participants'
     -   PRINCIPLE OF "THE POLLUTER PAYS"-  all  polluters bear  the  responsibility  for
                                              damage
     To achieve the  elements of the  action program, some enforcement planned  related steps
 include:
     -   modifying present fines with system for use and load on the environment
     -   implementing cost-effective  system for  both  development and  environmental
        improvement
     -   strong enforcement
     -   economic incentives for waste reduction  and recycling

     Some other  observations regarding the Hungarian plan would include considerations for:
compliance  schedules;  taxes  on packaging  for  environmental reinvestment;  immediate
dissuasive penalties; strict monitoring  and  some  elimination of  untreatable  waste  imports;
training and implementation of an investigative environmental team;  holistic environmental

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     INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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 124                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


 assessments and application in privatization; low-waste low-cost technology implementation to
 reduce immediate risks; privatization agreements including low waste incentives; a complete
 national waste profile for priority setting and public awareness; waste disposal storage options
 for  potentially high  risk wastes  with  strong  compliance  incentives;  public  participation
 opportunities and  free  open  access  to  information;  opportunity for  direct  citizen  suit-
 appropriate criminal actions against  responsible officials; publicizing waste violators (toxicity
 and volume); performance goals and accountability of  government officials  to  monitor and
 enforce  when  appropriate; establish labs  with strong quality control procedures;  training of
 local officials of environmental objectives and responsibilities; regular and  frequent information
 transfer  for clearinghouse and assessment/audit purposes; demonstrate success with strategy
 selection. Overall the plan is ambitious. It is a good start, and needs to be followed closely
 and evaluated frequently. Implementation  through appropriate legislation and a  compliance
 process  is  necessary.  What is critical, is  that  some  early  successes are necessary  in
 developing case studies  which would have model application. Past history reveals that in the
 late 70s  and 80s, recycling companies and some local NGOs designed initiatives for selective
 collection of wastes, but the program had  major setbacks because of lack of citizen interest.
 Those experiences must be analyzed, and  new methods employed.

 9.2  Hungary WASTE Management Planning

     In May  1992, a  report was completed on Hazardous Waste Management in Hungary6
 For the hazardous waste management issues, are exposed, recommendations are made, and
 a proposed strategy is developed. Enforcement is a continuous theme in  the study, identified
 as  a requirement for successful  implementation. The concept of  integrated  environmental
 approaches and industrial restructuring  is  emphasized. Figure 4 which  was taken from the
 study is a diagram depicting many of the concepts required for successful  waste management
 implementation. While enforcement was  mentioned in  this diagram, minor changes as noted
 were made to denote  some additional enforcement mechanisms.


 10   CONCLUSION

     In conclusion, options and potential problems have  been presented  for consideration to
 make a successful transition to a waste management program. While there may be problems
 with any option, this does not mean that inaction is acceptable or excusable with regard to
 waste  management and enforcement. But we must be realistic about our goals, as we  learn
 more.   Expectations  should  be reasonable,  but  provide some  elements  requiring a high
 degree of challenge and effort. Pick targets  of opportunity carefully, where we can achieve
 success  and reduce or prevent risks; sometimes called the worst-first approach. Work closely
with  facilities  to educate   and  train  about  environmental  laws,  and environmental
 responsibilities. Use compliance schedules and adjustment periods,  but continuously monitor
the facilities with trained  staff, and consistently apply standards in practice.  Most importantly,
 inform and work with the  communities and groups of citizens; those potentially impacted, and
those interested. Include them in the process early, and continuously  to gain their insight and
support. Select  facility role models who have achieved success and publicize their efforts, just
as  you target  violators  and  publicize prosecutions.  Review your efforts  continuously to
determine whether  they  contributed  to  the  extent  intended to  improve the environment.
Convince political leaders that environmental  costs are consistent with the Nation's priorities,
especially economic development. Local data can be quite convincing, especially if the Waste
Strategy  is carefully constructed to meet  the most critical  environmental and economic needs
             KMPG Fides

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                            125


of that Nation. Further, obtain information showing that environment is a growth sector which
can be stimulated through compliance  and enforcement, or recycling incentives.  Convince
local leaders that worsening environmental conditions are clearly economic liabilities.


     REFERENCES

     Government of  Rumania - Decision  - Concerning the  Import Regime for Wastes  and
Residues of any Kind as well as other Hazardous Materials for the Population Health and for
the  Environment, June 20, 1992.
     International Maritime Organization, Global  Waste Survey,  IMO Headquarters 4 Albert
Embankment London, SE1 7SR..
     KMPG Fides, Hazardous Waste  Management in Hungary, Summary, Study prepared for
the  Republic of Hungary, May, 1992.
     Ministry for Environment and Regional Policy,  Republic  of Hungary, The  Short  and
Medium Term Environment Protection Plan of The environment, 1991- Budapest, December
1991.
     Ministry for Environment and  Regional Policy,   Republic of  Hungary, State of the
Environment, January 1992.
     PA Consulting  Group,  Gaining a  Clean  Advantage  Creating Business Opportunity by
Addressing Environmental Issues, Royston, England.
     World Resources  Institute,  World  Resources  1990-1991, A  Report by  the World
Resources Institute, New York, Oxford 1990.
     OTHER INFORMATION

     Bell,  R., USEPA, Waste and  Enforcement Activities in  Central and  Eastern Europe,
unpublished comments.
     Bernstorff,  A.,  Puckett, J.,  Poland: The Waste  Invasion,  Greenpeace  International,
November 1990.
     Center for Hazardous  Materials Research, (Industrial Waste Minimization  Manual
University of  Pittsburgh Applied Research Center, Includes  fact sheets for many types of
waste disposal problems and requirements), September, 1991.
     Commission of the  European Communities;  Call for Tenders for Contracts  Relating to
the Environment (Waste Management) - Waste 92,  May 20, 1992.
     Waste Management and Research Journal of the International Solid Wastes and Public
Cleaning Association,  ISWA ISSN 0734-242X, Adapting  Hazardous Waste Management to
the Needs of Developing Countries, September 10-13, 1989  Vol  8, No  2, 1990, Academic
Press p89-90.
     United Nations Environmental  Program,  Hazardous Waste  Policies and  Strategies,  A
Training Manual, Technical Report Series No. 10, 1991

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             127


THE ENFORCEMENT EXPERIENCE IN CATALUNYA ON INDUSTRIAL WASTES

FERRAN G. RELEA1 and CARLES G. MARTIN2

1 Director Junta de Residus, Generalitat de Catalunya
2 Data Base Manager,  Junta de Residus, Generalitat de Catalunya

Passeig de Gracia 94, 08008 Barcelona, Spain


      SUMMARY

      A general view of the industrial waste situation  in Catalunya is given. Some statistical data
on generation and management of waste, as well as how is organised the control system are  also
provided. The enforcement organization, namely inspection, analysis, penalty application are  also
illustrated with  some statistical data.


1     INDUSTRIAL WASTE SITUATION IN CATALUNYA

1.1   Administrative framework

      Catalunya is the Northeastern Region of Spain, having 32000 Km2 and 6000000 people,
being also  the most industrialized of the  country. Environmental concern and industrial pollution
have moved the  Regional Government (Generalitat de Catalunya) to  create a Cabinet Department
only on  environment (the single case in Spain).
       Industrial  waste concern  moved the Catalan Parliament to approve an Industrial Wastes
Act in 1983, creating a specific autonomous administrative body, Junta de  Residus. The Spanish
countrywide Act came in  1986. New modifications  on  the  Catalan  law  were enacted by  the
Parliament in  1991. Junta de Residus, nowadays attached to the  Department of  Environment,
whose President is the Cabinet  Minister on Environment, has the overall responsibility to enforce
the Industrial Waste Act.
      The Junta de Residus has a Council of member that dictates its policy. Those members
ares representatives of the Regional Government (8),  of the Catalan municipalities (6), of the
trade unions (2)  and of industries (2).
       The Junta de Residus objectives are:
       -   Control all industrial wastes flows occurring in Catalunya.
       -   Let  the permits for transportation agents.
       -   Verify the yearly declaration on waste made by generators.
          Keep  alive all data bases on industrial waste managed in Catalunya.
          Prevent wild dumping of wastes.
       -   Promote  incentives for waste  reduction,  process modifications  and waste  quality
          improvements through technical and economical instruments.
       -   Promote direct or indirectly waste management facilities through waste management
          planning.
       -   Clean and  enforce to clean old  dirty sites. Generally  speaking, Junta de Residus, by
          law, has the double objective of promotion and prevention.

 1.2    Sizing the problem

 1.2.1  Definition and classification of waste

       Industrial wastes are  classified in two basic categories, according  to Catalan regulations
 (4.10.84 Regulation). In Spain the situation  is very similar.

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128                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


       a)     Inert industrial wastes and domestic type wastes (included in the same group). A
             specific list is included in the regulation.
       b)     Special industrial wastes.
       EEC Directive on  industrial  wastes is  adopted to identify hazardous  wastes.  Notwith-
standing a battery of tests is used to classify a waste as non special, even if a substance of EEC
list is present.
       Basic features of those tests are:
       a)     Flash point over 23oC.
       b)     Corrosivity.
       c)     Reactivity.
       d)     Explosive.
       e)     Non carcinogenic  (content less than 0,1% of IARC lists).
       f)     Toxicity.
       g)     Leacheability and  toxicity of leachates.

1.2.2  Some  statistical data

       Through the  yearly self-report system, Junta de Residus has a fair knowledge of what is
produced  in  Catalunya.  This declaration  includes waste  production, raw  materials used  and
products made by each industrial activity.
       Since  1984, the strategy  in waste generation self-reporting has been to request directly the
document to  an  increasing number of industries, as seen  in figure 1 and 2. Every request has
been selected according to the following criteria.
       a)     Industrial sectors  potentially  producers of special wastes, with bigger members  of
             employees.
       b)     Progressively  include  smaller  companies  of  those sectors and new  sectors
             apparently non-producers of special wastes.
       c)     Final target will be all industrial activities.

       The wastes declared, according to the present regulated classification, are shown in fig.  3.
The  waste generation  ratios (tonnes waste/year per worker)  have been during those years, the
following as showed in  fig. 4a, 4b and 4c.
       According to those figures, and by industrial  sectors, the  results have been  the  ones
displayed  in fig. 5. The distribution of  final destinations has been the one showed in fig. 6a, 6b
and 6c. Data  on treatment facilities show a great shortage of capacity, specially related to thermal
treatments. Figure  7  gives  the  general numbers. Taking  into account the generation  figures,
shortage is evident.
2     THE FRAMEWORK FOR ENFORCEMENT

2.1    Basic features of the control system in Catalunya.

2.1.1  Waste flow control

      Waste generators have to declare every year the waste produced, the way how they have
managed them as well  as their final destinations.
      A trip-ticket system has been implemented  for waste flows  in Catalunya. An agreement
sheet between generator and  the treatment facility is also established.
      All  participants  in  the waste cycle  have  to be registered  officially. All  documents
(trip-tickets,  agreement sheets,  transportation permits) are only delivered to  those registered,
each  document  is preceded  and Junta de Residus  knows to whom  it has been delivered.  A
cross-checking  system  of  trip-tickets  and  generators declarations has   been computer-
implemented.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              129
      The inspection team has to  let the  permit for a waste towards its destination or treating
system.
      A sampling and analysis procedure  through  its own control laboratory is being used and
some agreed laboratories are  being used as cooperative teams too. Moreover, mobile analytical
labs are used by the inspectors. Quick tests and special samplers, some of them designed by our
own team, are usually performed.
      The Inspection  team works  often with the  cooperation of a specialized  Brigade of the
Regional Police (Mossos d'Esquadra)  or National Police (Guardia Civil) for specific investigations.
(For example following  up of  truck, illegal  operation  of  treatment  facilities, controlling  wild
dumping, following up of illegal importation of wastes, etc.)

2.1.2 Waste treatment facilities

      The permitting procedure includes a technical evaluation by  Junta de Residus  technical
experts, a public communication through the official Gazette and a final decision through Junta
de Residus Council.
      The permits for waste treatment facilities contain a caution to be delivered by the  promoter
to the Public Administration, and civil responsibility insurance to cover third-part harms.
      A manual of  Reference  is also established through  the permit.  It  includes  running
procedures, identification systems, self record-keeping conditions and features to be checked by
inspectors during  their visits.
      Some regulations  are being  periodically implemented and/or revised, that relates to waste
acceptability in the facilities (e.g. wastes  banned  in landfills),  analytical identification  tests on
procedural conditions.
      For  facilities  specifically promoted   by  Public  Administration the  permitting procedure
requires  an independent  environmental impact statement  (reference to the  modification of the
2/91 Law and  its working  out) whose conclusions are  compulsory for  the Junta de  Residus
Council in order to avoid  non-defense  to those affected.

2.2   Violations

      Present  status  in  industrial  waste  management  enforcement  is  based  in  two sets  of
penalties for law violations: administrative penalties and criminal judicial enforcement.

2.2.1  Administrative penalties

      The administrative penalties  include  a wide range of monetary penalties and the obligation
of soil and  landscape reclamation if needed. Penalties until 200 million pesetas (2 million dollars)
are foreseen.
      The law allows the temporal  or final  closure of the industrial activity or plant as well as the
removal of the licences for an activity.
      It is also  established the possibility  of a enforcement penalty for those  cases in  which  a
enforcement time is dictated. Those enforcement  penalties cannot be bigger than 1/3 of the
maximum penalty for the  violation.

2.2.2 Criminal judicial enforcement

      The Spanish Constitution,  in  its article  45, sets  that  environmental  violations  can be
prosecuted criminally.
      The Penal Law, in developing this  article, sets monetary penalties and the possibility  of
imprisonment if the violation is judicially considered as "environmental violation".
      That  way  is a parallel  instrument of the  administrative one.  It is the judge's  privilege  to
decide if the facts are a criminal or administrative violation.
      The Penal  Law is being revised actually and in the future  the  monetary  and  personal
penalties against violations will be increased.

-------
130                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


3     THE PRACTICAL IMPLEMENTATION OF ENFORCEMENT

3.1    Public resources

      Junta de Residus has 50 people, normally divided in promotion and enforcement activities.
Twelve  people are involved in the  trip-ticket  system,  self reporting control  and data  base
maintenance. Six  full time  and two part time high technical staff are devoted to inspection. Ten
analysts  (6  of them, chemists) work  on  waste analysis and testing  in  our  own  labs. Mobile
sampling and  quick testing  are routinely used. The 1991  Junta de  Residus'  budget was  60
millions dollars, 12% of which is directly spent on enforcement.

3.2    Control  of activities.

      An overall amount of 750.000 tones of industrial wastes has been  controlled by the
trip-tickets system during 1991 in Catalunya,  showing a 22% increase in relation to 1990 data.
      Our data base has registered 11000 agreement sheets between generators and treatment
plants.
      The number of trip-tickets used  during the last three years,  1989-91. which are included in
our data base are:

NUMBER OF TRIP TICKETS
YEAR
1989
40.000
1990
95.000
1991
115.000
3.3    Enforcement activity

       More than 300  cases have been  revised by the technical services  in  1991. Technical
services have performed 600 visits to waste  generators, to treatment plants  and to wild dumps.
More than  18000 analytical  tests have been performed by our laboratories. Some agreements
with external laboratories are established for more sophisticated analysis (dioxines, etc.).

3.4    Administrative procedures against violators

       Junta  de  Residus enforcement activities are  either  directly  promoted  or induced  by
request. The  number of procedures has increased steadily since 1985. In figure 8 it is shown the
number of requested actions, administrative procedures, penalties as well as the economic
size of monetary penalties.
       It should be  pointed that the size of sanctions until the 2/1991 Act were much  lower than
those showed in 2.2.1.
4      FUTURE PROSPECTS

       The experience during the last 8  years gives us the feeling that although a lot has been
done, it is only since 2 years ago that industry and waste agents have realised the need of a real
change of attitude.
       The enforcement system that we have designed is rather involving and hard to have it fully
implemented.
       It is highly important the availability of the computer data base to be able to have a real
cross checking of the  information reported.
       We think that the trip-ticket system based on a public administration delivery is a powerful
tool to make wastes appear.
       High technical  level inspection is of great importance although is quite expensive.

-------
INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             131


      A better coordination with other inspectorates is highly desirable. This is a project that our
Department of Environment has decided already to promote.
      A new and growing  difficulty  for  a  better waste management  enforcement  is  the
classification and definition of wastes, as well as the dicotony waste-by-product.
      In the Catalan  regulations, by-products  and wastes are included (no exemption  is legally
accepted), and only the sophistication or complexity of administrative procedures are different.
      The legal  difference between  domestic waste  and  industrial waste  (and the different
authorities that rule their management) give opportunities to potential violators  to "hide" some
special wastes in the  municipally ruled domestic wastes. And, for this reason, a unique control
authority is highly desirable.
      How to deal with  packaging wastes is also a challenge. Our regulations shall be revised to
establish clean responsibilities.
      Irrespective to all that has been  said above, a clear conclusion can be extracted from our
experience.
      Some success is only  possible if the  technical  and  professional  qualifications of the
inspectorate are high  enough, meaning by that a good knowledge of the problems of industry,
technical and organizational, as well as  a big dose of environmental "common sense".
      It is not a question of the compliance of a figure (a concentration level, a % of efficiency,
etc.) but a real understanding  of the overall process industry waste-neighbourhood-environment.
      How  to incentivate those professionals  and  how to  involve  them  in  the  overall
environmental strategy are the clue of an efficient work.

-------
132
INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                                            133





























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134
INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT





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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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-------
136
INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       c
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                 YEAR 85
                 YEAR 86
                 YEAR 87
                 YEAR 88 —'
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                 YEAR 90
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                                                        YEAR 86  ~~
                                                        YEAR 87
                                                        YEAR 88
                                                        YEAR 89
                                                         YEAR 90
                                                         YEAR 86
                                                         YEAR 87
                                                         YEAR 88 —
                                                         YEAR 89
                                                         YEAR 90
                                                   -0

                                                   Q

-------
INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                     137
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-------

L
INDUSTRIAL
iROUP CODI
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32


WASTES SELF-REPORTED


ACTIVITY DESCRIPTION
OIL REFINING
IRON WORKS
METALLURGICAL
NON METALLIC MINERAL PRODUCTS
CHEMICAL AND PETROCHEMICAL COMMOD
INORGANIC CHEMICAL COMMODITIES
RAW PLASTICS
FERTILIZERS
PEST CONTROL CHEMICALS
PHARMACEUTICAL COMMODITIES
OTHER CHEMICALS
METAL FOUNDRIES
NON FERRIC FOUNDRIES
METALWORKING
METAL SURFACE TREATMENT
CABLE AND WIRING
BATTERY MANUFACTURING
ELECTRONIC COMPOUNDS
OTHER METALLIC INDUSTRIES
FOOD
TEXTILE AND CLOTHING
TEXTILE FINISHING
LEATHER AND TANNING INDUSTRY
WOOD AND CORK
PAPER PULP INDUSTRY
PAPER AND CARDBOARD MANUFACTURING
PAPER AND CARDBOARD TRANSFORMATIO
PRINTING AND EDITING
RUBBER-PLASTIC TRANSFORMATION
OTHER INDUSTRIES
OTHER PHARMACEUTICAL SPECIALITIES
PRODUCT RECOVERY
TOTAL OF REPORTER TONS
GtASSJRED BY INDUSTRIAL ACTiViTY OROUP


YEAR 85
11400
102800
4000
83000
34700
70300
19300
700
400
14400
39300
1 1 8000
9000
6000
38300
2800
200
800
85500
52600
30800
9500
4000
0
154600
21000
28000
3500
7700
2600
10800
14000
980000
YEAR 86
10800
98500
9900
43100
29800
69300
26700
600
400
56600
57300
89300
12200
5700
41500
4100
200
600
1 06000
60700
33500
45600
14100
1600
66800
59800
54700
3000
54000
1300
13100
9200
1080000
QUANTITY Ton/vear
YEAR 87
7300
6800
9400
51800
27700
71100
29900
600
600
59100
57400
1 1 5900
9000
16200
51500
6500
200
800
293500
1 51 000
31200
19100
17000
1300
62500
34800
40600
3500
16800
1100
11200
9700
1215000
YEAR 88|
16600
1 33700
9400
143200
26100
95700
42300
300
900
70600
65200
79700
13400
24300
52200
7500
100
4500
346500
199200
58800
25000
32600
53200
132000
36600
47800
9800
32100
42900
10800
37000
1850000


YEAR 89
7000
1 1 0400
9200
182000
20700
89400
39600
200
1700
52900
77500
31700
11300
22300
31000
7300
100
1700
348500
242700
68800
61700
41700
65300
146500
26900
47100
29000
54900
233100
24600
98200
2185000
YEAR 90
9500
103200
7900
213000
18200
82400
46800
200
1000
69800
88100
44200
11000
17200
30600
8600
100
2100
295400
255200
57000
32800
54800
52600
140500
29600
50200
30900
40900
319000
23600
113600
2250000
FIGURE-5
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-------
TREATMENT SYSTEM
TO SOIL OR UNKNOWN DESTINATION
WASTE WATER AND LIQUID TREATMENT PLANTS
INCINERATION
LANDFILLING
OTHER
FINAL  SELF-REPORTED  WASTE  TREATMENT SYSTEM (IN %)
RECYCLING
                                             YEAR 85
                                                18.71
                                                26.26
                                                 6.96
                                                 0.48
                                                15.85
                                                22.88
                                                      YEAR 86
                                                          19.75
                                                          21.20
                                                           6.76
                                                           1.36
                                                          14.79
                                                          24.92
         YEAR 87
                                                                    25.45
                                                                    14.84
                                                                     7.06
                                                                     1.52
                                                                    13.83
                                                                    23.22
YEAR 88
                                                                              24.06
                                                                              15.10
                                                                               4.19
                                                                               1.11
                                                                              14.30
                                                                              25.48
YEAR 89
                                                                                        19.08
                                                                                        13.02
                                                                                        4.65
                                                                                        2.47
                                                                                       27.32
                                                                                       21.66
YEAR 90
                                                                                                 21.65
                                                                                                 10.71
                                                                                                  4.90
                                                                                                  1.99
                                                                                                 32.39
                                                                                                 21.05
                                          TREATMENT SYSTEM
          YEAR 85
                        YEAR 86
                                      YEAR 87
          YEAR 88
                        YEAR 89
                                      YEAR 90
RECYCLING
                                                       TO SOIL OR UNKNOWN DESTINATION
                                                    II WASTE WATER AND LIQUID TREATMENT PLANTS
                                                       INCINERATION
                                                       LANDFILLING
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                                           FIGURE-6A
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140
INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT















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-------
OTHER
TOTAL OF TONS
FINAL SELF-REPORTED WASTE DESTINATION
TREATMENT SYSTEM
AUTHORIZED PLANTS
IN SITU TREATMENT
RECYCLERS
MUNICIPAL SERVICES
STORAGE
SEWERAGE
DELIVERY TO SERVICE COMPANIES
DESTINATION NON SPECIFIED
 YEAR 90
TON/YEAR
   601000
   565000
                                                         255000
   114000
                                                          32000
    65000
   385000
    46000
                                                         187000
  2250000



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142
                         INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
             FIGURE 7. AVAIABLE  INDUSTRIAL WASTE TREATMENT
                       CAPACITIES  IN CATALUNYA.
               TREATMENT SYSTEM
CAPACITY TON/YEAR
            PHYSICOCHEMICAL  (LIQUIDS)

            PHISICOCHEMICAL  (SOLID)

            SOLVENT RECOVERY

            INCINERATION

            LANDFILLING  (VOLUME  IN m3)
                        MONO LANDFILLS

                        MULTI PURPOSE
    20.000

    16.000

    30.000

       500*


 1.000.000 m3

 3.000.000 m3
           * ROGHLY 3000 TON/YEAR  LEFT IN FACILITIES ON
             GENERATORS.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                                             143
g
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I

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144                          INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT

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 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                            145


 SPECIFIC DETAILS REGARDING HAZARDOUS WASTE TRANSPORT AND DISPOSAL

 LILIANA MARA

 Director, Strategy  and Water Policies Directorate, Ministry of  Environment,  12  B-dul Libertatii,
 Bucharest, Rumania.


 1      INTRODUCTION

       The human activity is directly generating pollutants having different degrees of toxiousness
 for environment and for society implicitly.
       For economic and technological reasons, the ideal to achieve a closed revaluation cycle
 and reintegration into the circuit of the pollutants is still far from obtaining a real finality, although
 in the future, this will be the only way out of the present ecological deadlock.


 2      ELEMENTS OF THE LEGAL SYSTEM FOR ENVIRONMENTAL  MANAGEMENT AND
       ENVIRONMENTAL ENFORCEMENT

       For the  purpose of  ensuring  the  compatibility between the economic activity and the
 environment protection in Rumania, the legal and institutional system was created  before 1989 for
 protecting and improving the quality of the environment, including the ecosystems and  the whole
 natural biologic resource.
       The principal  Romanian  environmental law  dates from  1973 (Law no. 9). It provides a
 conceptual framework for  environmental  regulation,  including principles and  duties  for the
 protection and improvement of all environmental media. These principles were developed  through
 special laws, such as:
             The Law on Water no.8/1974;
             The  Law on the disposal of wastes and recovery of materials, made in  1975 and
             up-dated in 1988;
             The Law on the protection of forest, 1987;
             The Law on the installations for the protection of the environment, 1986.

      The inventory covers also the following areas:  hunting  and fishing, pesticides,  nuclear
 activities, hygiene and health standards, air, water and soil quality, levels for noise, construction,
 permits and authorizations for the environmental protection and water management.  Neverthe-
 less, despite the intentions set out in the  law, structural inadequate, including particulary  political
 and soft budget constraints,  rendered the laws largely ineffective.
      A government decision in 1991 began the  process of  organizing an overall  system of
 environmental management by establishing the present Ministry of Environment (no.264/1991).
 The ministry has began the process of drafting a new general environmental law and new law
 management. In  the future,  the  Moe should be involved on reviewing  all  legislation which may
 have an impact on the environment.
3     HAZARDOUS WASTES TREATMENT AND DISPOSAL

      The effect of the hazardous wastes may be  insidious, of wide spectrum and  persistent.
Rumania as a country of considerable industrial potential; that operated at full capacity  until 1990,
has annually produced important quantities of wastes and industrial residues, to which there are
added municipal wastes, those wastes derived from  livestock farms, as well as untreated waste
wasters discharged from industrial enterprises or towns.
      It  is estimated  that  annually, over  75 mill,  tons of  various residues  or  wastes were
deposited on the soil, out of which a great amount (about 22 mill.t) is represented by the ashes

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146                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
from coal-using thermal stations,  sludge  deriving from waste water treatment plants (about 15
mill.t/year), municipal wastes (over 2 mill.t/year) and so on.
       Until now, from the point of view of the collection-separation-transport-disposal-revaluation
process, the problem of wastes and  residues has not been  approached in a unitary way, showing
great shortcomings, although there was, ever since 1979, a Decree of the State Council regarding
collection, handing in, management  and revaluation  of wastes and other raw material resources,
more often than not it was not observed.
       The collection and  transport  stage shown and still shows great shortcomings, due to the
shortage of adequate equipment and technologies. This generates a diffused pollution, difficult to
trace or, if it is noticeable,  hard to control and eliminate.
       The separation stage was  nearly lacking, therefore, the town stockpiles, for  instance, are
mostly mixed ones, including at the  same time both  street domestic wastes and treatment sludge
and  industrial sludges.
       As far as the disposal stage,  the existing data bring  into relief over 1900 areas with waste
deposits, out of which 696 belong to the communal  administration, 660 to agriculture, 315 to the
mining and oil production, 44 to the chemical industry, 33 to the metallurgical industry, 12 to the
building materials industry and the other sectors.
       The surface affected by wastes and residues is about 18 thousand ha., out of which 11,9
thousand  ha. arable land. Out of  these, about 2700 ha. agricultural lands are covered  with ash
from electric and thermal stations  and about 2000 ha. are occupied by sterile deriving from metal
treatment.
       Besides the  great occupied surface, the deposition lands were not always  correctly
selected,  taking  into  account the  waste characteristics   and  the  risks they  may generate.
Moreover,  the deposits are some times only scarcely developed, not ensuring protection of all
environmental factors.
       It should be mentioned that disposal of industrial wastes in stockpiles, pits, ponds lagoons
is not  always arranged and controlled, certain enterprises not giving importance to the noxious
generated  into environment. Therefore,  nearby  these deposits the underground waters, surface
waters, soil and air are frequently polluted, and the landscape is modified.
       The town  dumps  are  generally located in  areas  which offer  only  a relatively  natural
protection as to the effects of the deposited materials; they are  not equipped with the necessary
developments  as well as  with  bottom  waterproofing, enclosing,  infiltration  and exfiltration
drainage.
       In  the view  of reducing  waste quantities  that  would  need unpolluted and controlled
disposal some technologies have been promoted and they  are at present available for the turning
to good account the energy and the useful compounds of wastes, Thus, municipal waste and pig
and cow  slurry digesting  has become a  current practice which allows to obtain  a quantity of
digestion has equivalent to over 530.000 t.c.c. annually.
       But the waste and  residue reserves  that  can be  evaluated  are  much  higher.  The
calculations carried out for the industrial area of the city of Bucharest together with  its outskirts
have  indicated that the  metallic compounds  recovery from waste  waters and  galvanization
sludges may lead  to the annually  recycling of the following quantities of metals: 32 t copper, 23 t
zinc, 8 t cadmium, 8 t nickel, 50 t  chromium.  Moreover the quantity of heavy metals recovered
annually from  waste waters  and galvanization sludges  in the industrial  area of  Brasov city
amounts to: 11 t copper, 5 t cadmium, 9 t zinc, 3 t nickel, 10 t chromium.
       The phosphogypsum,  slag and ash deposits as well as  untreated waste waters from the
manufacture of pulp and  paper also represent  important secondary raw  material sources which
are  waiting to be  put in value. For  this purpose rather reduces financial efforts are needed, but
which  Rumania cannot undertake  in this transition period.
       The ministry  of Environment of Rumania, in its  present structure, has been founded in
1991.  One of its  main lines  of actions  in  the field  of waste management  was that of correctly
estimating what has been produced up to now and of assessing  the ways of doing away or
evaluating the existing waste quantities. Until the end of this action, Rumania could not accept the
idea of waste imports,  especially those belonging  to the  category  of highly dangerous wastes,
whose elimination requires great  financial efforts. However the paradox  took place.  Taking

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             147


advantage of the fact that there are no strict regulations in the field and under the mask of certain
unusable products but whose guarantee term was not specified, great quantities of toxic wastes
were  brought into the  country  by  fraudulent means  and then  deposited under  precarious
conditions in densely populated areas.
       Rumania is at present making efforts in solving this problem. But personally I think that we
shall be able  only to apply an old Romanian proverb saying "catch  the blind pluck his eyes" while
our country will be left with severe damages both at internal and at external level.
       Recently,  in order to avoid  such situations,  the  Governmental  Decision  no.340/1992
regarding  the  importing  regime any  kind of wastes and residues  as  well as  other health  and
environmental hazardous goods, has been passed.

       The structural changes taken place  in the Romanian society call  for structural changes
also in the outlook regarding the organization of the environmental protection activity and implicitly
of the wastes management as  part  and parcel of this  activity. Therefore, the  ministry of
environment and the  environmental monitoring and protection territorial agencies were organized,
while with  the support of the World Bank the Strategy on  Environmental Protection was drawn up;
this Strategy has  a chapter concerning waste management. We are far from attaining our aims,
sometimes due to financial means, sometimes due to a poor  ecological consciousness, but there
is something that we know for sure: we live in an Europe in which  ecology has  no boundary  and
we must unite our efforts lest we should be faced with an ecological disaster.

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148                          INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT

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 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             149


 THE ROLE OF INTERPOL IN ENVIRONMENTAL ENFORCEMENT

 S0REN KLEM, transcript of a contribution to the Conference.

 I.C.P.O. Interpol, General Secretariat, 50, Quay Achille Lignon, 69006, Lyon, France


       My name is S0ren Klem, I'm working  in the  I.C.P.O.  Interpol General Secretariat in Lyon
 France,  in the Economic Crime Group.  Apart from a  large number of different kinds of fraud I also
 deal with the field of environmental crime.
       The illegal transboundery movements of hazardous wastes is of special interest to Interpol
 for many reasons:
       First and foremost because  the crime  is international  and this  is, as you  know, what
 Interpol  is dealing with. Another reason is that traffic in hazardous waste  is normally organized
 crime  and associated with violations in other fields of law, such as fraud, breach of trust, bribery,
 document forgery etc.  Furthermore, the  criminals  are  very often experienced  and previously
 known to the police for other offenses such as for instant trafficking in drugs and different kinds  of
 frauds.

       So far, only a few  number of cases on environmental crime have  been reported to the
 General  Secretariat from the Interpol member countries. However,  all of these cases are in fact
 dealing  with  traffic in hazardous waste  and dangerous substances.  Now, to get some  more
 information and  a more global  picture about this specific  kind crime, we recently sent out  a
 questionnaire  to  all the 158 member countries and  the result of  this  study was  published last
 week.
       It is obvious, that if this problem  is to be dealt with effectively, the enforcement agencies  in
 the involved  countries  will have to collect,  process and  exchange  as much  information as
 possible. In this connection Interpol can play  an important role  as  the central point and  platform
 for this information exchange and case  coordination.

       Let me briefly give some reasons for this:
       •   All the countries represented at this conference are either members of Interpol or will
          be members in the near future.
       •   The service Interpol can offer in  the fight against international environmental crime is:
             Firstly, rapid and safe exchange of information through our independent and world-
             wide telecommunication network.
          -  Secondly, a highly performing Criminal  Information System.
          -  Thirdly,  legal and police and  translation expertise  and excellent  meeting and
             conference facilities.

       When we receive information on for instant traffic  in hazardous waste we will immediately
 respond  to the involved  countries  if elements  in the message are known to the files  of The
 General  Secretariat and of course if this information is not already  known to the countries. This
 response is sent out immediately and as a rule at least within 24 hours. Furthermore, If we see  a
 pattern or a trend of  criminality  we will send out a diffusion to inform  and warn  the countries
 against f.g. a group of criminals or a special kind of  MODUS OPERAND I. This message can be
 diffused all over the world within seconds.
       We can also invite investigators for member countries to join together in working groups in
 the auspices of Interpol  - either on a case to case basis or on a permanent basis. We  already
 have a number of these working groups going on  in  other field of crime. Apart from the  working
groups our department hosts each year a  conference on International fraud and the subject of
environmental crime was  in fact the  main topic on the agenda on our latest conference  in June
this year.

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150                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


      Recognizing the seriousness of environmental crime, Interpol will in the future give priority
to this subject and especially the hazardous waste traffic. It is our intention to include the subject
of environmental crime in our future fraud conferences.
      Finally, I  think you should know that Interpol can in  fact,  through  the  national central
bureaus, cooperate with any government  agency concerned  with  combating criminal offenses,
including environmental enforcement agencies.
      So I  hope that  Interpol  in the future  will  play  an important role  in the  fight  against
international environmental crime and I am  looking forward to cooperating with you in this respect.
Just promise me, that you will go through your local national Interpol bureau.
      If you  have any questions  you are welcome to  contact  me  at any  time during this
conference.

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 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             151


 CITIZENS' ROLE IN THE ENFORCEMENT OF ENVIRONMENTAL LAW IN EUROPE

 MARTIN FUHR

 Oko-lnstitute, Bunsenstrasse 14, 6100 Darmstadt, Germany


       SUMMARY

       Given  the  interrelationships of social  forces equally manifest in both East and West,
 environmental protection goals can only  then  be  realized  if  not only the  authorities and industry
 are involved in  their implementation,  but  also citizen  action  groups  and  environmental
 associations. The paper describes  the preconditions requisite to successful  citizen participation,
 and compares these  with existing practices  in  EC  Member States. From  the  thus  identified
 deficits, concrete demands for an extension of  participation and litigation rights are derived.


 1      INTRODUCTION

       Contrary to the widely held conviction, public approval procedures are  not an invention of
 modern environmental law but an achievement of the French Revolution  dating back almost two
 hundred years1. Napoleon introduced  this procedure in the occupied  european territories2. In the
 national industrial codes the procedure survived as legislation to the present time. In the  last thirty
 years, however, various laws have developed from the industrial code3, all  of which include  a
 (slightly modified) version of the public ('formal') approval procedure.
       Public participation with its inherent democratic elements can therefore be described as  a
 relic of the French Revolution and can be regarded as an intruder in a state and administrative
 structure  dominated  by authoritarian principles. The practice  of  secrecy   within government
 authorities has changed very little to the present day4.
       In  order to  illustrate the  importance of public participation,  I  would  like to preface my
 comments with two quotations. The first was made by  the  Prussian king Frederick William III in  a
 cabinet order of 4 February 18045:
       "If one were to completely deny (access by) a specific and respectable  type of public, one
       would have  no  means of exposing the negligence or disloyalty of civil servants;  on the
       contrary,  the public is the surest counter both for  the  government  itself and for  the
       community to carelessness or  dishonest intentions  on the part of authorities, and for this
       reason deserves to be heard."

       The second quotation is from a leading  article in the business section of the conservative
 Frankfurter  Allgemeine  Zeitung  on  legal  status  under the  German  Bundes-lmmissionsschutz-
 gesetz (Federal Emission Control Act)6:
       "The law also makes provision  for local residents to file objections, basically because the
       past has shown that authorities concerned  with the  'economic  power' of their district tend
       where possible to connive with profit-seeking companies."

       Here we have the main reason  for public participation  in a nutshell, namely as a check on
the work of the authorities. Their  legally defined task is to protect the environment and the health
of  the population.  Experience has shown,  however, that whenever authorities deal with industry in
private, these interests are put aside7.
       The participation of the public  in the implementation  environmental law not only serves
improved environmental protection; it also  realizes elementary principles of the Rule of Law, i.e.:
       -   access to justice for affected third parties;
       -   the separation and balancing of powers (Executive, Legislative, Judiciary);
          the principle of democracy.

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152                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2      POINT OF DEPARTURE

2.1     In the foreseeable future, economic reasons will make it impossible to place a cost on the
       utilization of natural resources that corresponds to the real social costs. Regulatory powers
       exercising the sovereign powers of the State are therefore indispensable.

2.2    To statutorily  enshrine environmental protection obligations will not  by  itself  lead  to  any
       effective  progress  if  this is not also  accompanied by  the  creation of the framework
       conditions  for  their implementation. This  means  not only the establishment of
       administrations, but the administration  must also  receive instruments that empower them
       to really enforce these obligations.

2.3    This  implies  that  government  authorities must  not be  burdened  with  tasks  that  are
       impossible  for them to fulfil  for structural  reasons.  Thus it cannot be  the  task of
       government authorities to detect "clean  technologies"  in  order to  bring industry to an
       "integrated  pollution control"8. These are  tasks for development laboratories and  not for
       administrative officials.

2.4    The absence  of public participation  leads to a disequilibrium in the triangular relationship
       polluter  - state - affected party. This disequilibrium is ultimately always  at the cost of the
       environmental and affected third parties. If it is left alone, no administrative body has the
       clout to  hold sway over industry and the associated.
                                      State Authority


                            Polluter               Third parties
           Figure 1. Enforcement Triangle

 2.5    Therefore those who  are  affected by  environmentally harmful activities must also be
       allowed an active role in  the implementation of environmental  law. These  include  both
       individual citizens in their role as consumers, employees and as users of natural goods,
       and the  corresponding representative bodies (consumer and environmental  associations,
       trade unions, local and regional "grassroof-groups, but also municipalities).

 2.6    Timely and comprehensive public participation is ultimately also in the interests of industry
       and administration. Uncomfortable facts are  sooner or later usually uncovered, regardless
       of attempts to conceal them. This then creates a particular "finding-out" effect, which can
       cause sustained damage to  public  confidence. And  industrial firms are often  particularly
       dependent on a good public reputation.


 3     ELEMENTS OF EFFECTIVE PUBLIC PARTICIPATION

       Effective  public participation in  the  implementation  of environmental law requires three
 preconditions:

       1.     Transparency of all environmentally relevant information;
       2.     Participation in decision-making procedures;
       3.     Effective legal remedies against environmentally harmful activities.

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 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             153


 3.1    Transparency: Disclosure of all environmentally relevant information

        Comprehensive knowledge and information is essential for the individual's ability to play
 his or  her full potential  role in practice. This requires the disclosure  of positive information, but
 also a  clear statement of informational deficits, so-called  "negative information"9.
        The EC-Council  has adopted on 7 June 1990 a Directive on the freedom of  access to
 information  on  the  environment10.  This   Directive  awards  an  individual  right  of  access  to
 information  held by the  authorities11. This right  exists in  a number  of EC  and  non-EC
 countries12.
        The freedom of access to information  is an important step, but there  are still a number of
 deficits:
        -   It is  limited to the  information  held by the  authority; there  is no obligation for the
           authority to collect the relevant information.
        -   There is no right of  access to information kept by the industry itself comparable to the
           US "Right-to-know Act"; as a result it is only an indirect right of information - the direct
           line between citizens and the polluter/producer is not opened.
        -   It remains  unclear what  information can be  held  back as industrial and commercial
           secrets13; here a  negative definition of data that may in no event enjoy the status of
           secrets would be necessary14.
        -   The practical  conditions of access  to information are  unclear, e.g. whether there is a
           right to obtain copies of documents.
        -   A further  point is that it  would be  worth considering whether,  in the age of  data
           processing, other  forms  of  data  transfer, e.g.  results  of ambient air  quality
           measurements on diskette, should be made a  part of the legal claim to information.

 3.2    Participation: Comprehensive participation of citizens, associations and municipalities

        Besides the informational basis,  a further precondition  is that of equal opportunities in the
 decision-making procedure. From the legal point of view, this  demand follows from the  principles
 of non-discrimination  and fair trial.
       Here the participation of the public must fulfil the following criteria:
       1.      Timeliness
       2.      Comprehensiveness and  equal weight
       3.      Participation must also extend to the post-licence control of environmentally harmful
              activities.

       These points must be enshrined  in corresponding procedural codes.

 3.2.1  Timeliness

       Participation must set in a procedural stage in which no central preliminary decisions have
 already been taken, because otherwise the  participation is degraded to  a  mere "alibi event".
       The EIA  Directive does  contain the principle  of  timeliness. However, it is  unclear what
 consequences arise from a violation of this principle.

 3.2.2  Comprehensiveness and equal weight

      The participation procedure must allow  all ecological and social effects to be a subject of
discussion  between  the  involved parties. The procedure  is degraded if certain  questions  are
excluded for formal reasons,  such as the question of alternative solutions or the societal need for
a project.
      Affected parties must be  allowed to present their position in a well-founded manner by
means of bringing in experts. This necessitates a suitable regulation of how the associated costs
are to be covered.
      In most European  countries, neither of these points have been realized.

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154                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
3.2.3   Participation in the control phase

       Under the law as it currently stands, public participation ends as soon as the project has
been  licensed. This leads to mistrust on the part of the third parties, who - often quite rightly -
fear that environmental regulations will be violated during the later operations.
       Public  participation must therefore include the  "post-licence" control phase, thereby also
closing the circle to a timely participation in new decisions. This requires the establishment of a
sustained communication procedure between the involved actors15.

3.2.4   Participation in product control

       In the EC countries citizen  participation  is limited to licensing and planning procedures  for
industrial and infrastructure  projects (e.g.  industrial  plants,  highways,  urban  planning). The
environmental  impacts caused by  products and substances are not subject  to  a participation
procedure. Even  in the  cases  where products are  subject to governmental authorization and
control procedures (e.g. new chemicals, pesticides), there are no participation or litigation rights
for third parties  (e.g. environmental or  consumer  organisations)  such as contained in the US-
American "Federal Insecticides,  Fungicide and  Rodenticide Act" (FIFRA).

3.2.5  Participation in sub-statutory legislation

       Important prior decisions for the implementation  of environmental  regulations are taken
through the issuance of decrees, ordinances, orders, bye-laws or other sub-statutory norms.
       The  public  is only involved  in the drawing  up of these regulations in a few very limited
cases. None of the EC countries provide for the possibility of judicial review.

3.3   Access to justice

       Without the  possibility of judicial review of breaches of environmental law, participation
rights remain a paper tiger. The interrelationship of forces in the enforcement triangle will only be
significantly shifted if third parties can also enforce their claims in the courts.
        In the EC Member States exist a variety of mixtures of administrative and judicial review in
 relation to  environmentally  relevant decisions of  administrative  authorities.  All  Member  States
 nowadays -  at least since  the statutory  changes in  the  Netherlands following  the  "Benthem"
 case  - have  some system of administrative and judicial review of decisions. However, the form
 and  the importance of  each may be  quite  different;  e.g. concerning the  access  of common
 interest groups  and members of  the  general public to these  institutions  for  purposes  of
 environmental protection, and  in  some States also  concerning the  effectiveness  of existing
 procedures and remedies and the  rules of apportioning the  costs.
        To provide for a  right of action against  administrative authorities  alone would, however, be
 insufficient in view of the fact that  the environment is often  adversely affected not so much by the
 positive decisions of an  authority but rather by its failure to act against infringements of the law.
 Therefore citizens should be enabled to also  bring an action  directly against polluters and other
 persons who  cause harm to the  environment.  In  order to avoid the confusing effect of parallel
 proceedings  against administration and polluter,  and  respect national priority  rules as  far as
 possible, this direct way of  action should be limited to cases  where the authority has refused or
 failed to act.
        Effective interim  relief is often crucial to the successful defence  of environmental interests
 in court. Therefore, Member States' legislation  should ensure  that a plaintiff in these cases  can
 attain  quickly  and without  great difficulty a  court  ruling which  suspends  the effect of
 environmentally  relevant administrative decisions  or an  injunction which  effectively  stops
 environmentally harmful activities.  Deficits can be observed in a number of EC Member  States,
 especially in France and Belgium.
         For actions in the interest of the environment, the problem of costs is a decisive factor. In
 principle,  costs,  including  lawyers'  and experts' fees, should not  provide  a  barrier  for  the

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 commencement or continuation,  of such  proceedings. Therefore it should be ensured that the
 plaintiff, if he succeeds, will recover all costs reasonably incurred, hereby removing any discretion
 that the complaints authority or the court may have under national law, and providing for the case
 that the losing party is unable to pay. At present, this has not been realized in any Member State.
        Furthermore the reduction  of the plaintiff's cost risk is warranted by the consideration that
 there  is  an overriding  public interest in  the  correct implementation  of  environmental  law.
 Therefore, any  initiative which aims  in this  direction  should be encouraged and public funds
 should not be spared in limiting the financial risk for private persons, which may be excessive e.g.
 in cases where a company as party to the proceedings makes full use of the available legal and
 technical expertise. Thus it is necessary to exempt the plaintiff from court fees and other parties'
 costs as long as the action was brought in  good faith and on the basis of an arguable case.


 4     PRACTICAL CONDITIONS: NETWORKING BETWEEN NGO'S

       This short overview had shown that the public already has - if only to a  limited extent -
 possibilities of influencing environmentally  relevant decisions. These  possibilities should be made
 use of, and at the same time claim should  made to further improvements.
       For the  practical work, a well-functioning infrastructure on the side  of the affected third
 parties is of high importance. Experience shows that the intervention of the  public influences the
 results of the administrative procedures,  especially in those cases where  well organized local
 groups or associations use their participation rights. In  quite a number of cases it was possible to
 achieve stricter  air pollution limit values,  improved safety measures  or  even the reduction  of
 hazardous waste streams.
       A prerequirement to  such  success  is the existence of a structure  of communication  and
 flow of information. In order to exert  influence successfully  it is decisive for the  environmental
 organizations to elaborate well-founded proposals aiming at implementation  and present them  to
 the protagonists mentioned above. This requires a multidisciplinary argumentation  referring to the
 problem in  question  and showing practical possibilities of  action,  both  being  presented in a
 conveyable form.
       In the field of licensing procedures for industrial plants the German "National Coordination
 Bureau  for Licensing  Procedures"  could  serve as a  model16.  Moreover, a  Europe-wide
 information exchange in the field of waste  policy was agreed at the conference "Environmentally
 sound waste  management? -  Current legal  situation  and  practical  experience in Europe"17.
 C.E.P.A., a non-governmental research  institute from Barcelona, has taken  the responsibility for
 this further cooperation18.
       Founded  in 1990, the "Environmental Law Network International" (ELNI) has the task  of
 organizing  the exchange between  environmental lawyers siding with environmental
 associations19. The network further also  aims to  facilitate  concerted  juristic action regarding
 specific problems.
 Beside  the  "European  Environmental  Bureau" (EEB) further networks have  been  set  up  in
 Brussels as well; the "Climate Action Network" and the  "Biotechnology Clearinghouse" of  "Friends
 of the Earth" have  been established.  And the ecologically minded  transport associations have
delegated a  common  representative  to Brussels  who  will  be  in charge  of coordinating  the
activities from there.
       To secure that  participation rights can  be used effectively  in the struggle for environmental
concerns further development or those  networks is crucial both on the national and international
levels.
5     EFFECTIVE INSTRUMENTS: MAKING ENVIRONMENTAL PROTECTION DYNAMIC

      The broad participation of the public in a fair procedure is the conditio sine qua non in
environmental law. But that is not the end of the matter by a long way: public participation is - to
use mathematical terminology - a "necessary'  but not "sufficient" condition for this field of law. A

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high  level of protection  is also indispensable as a prior aim which must be defined in  directly
enforceable basis obligations on the part of the operator.
       It  cannot  be the function of public participation merely to "fill in the loopholes". In fact in
many procedures it has taken  over this role, but this  is not a satisfactory long-term solution,  not
only  because it is asking too much but also because  it blurs the real responsibilities. It is for  the
operator  to identify the problems and  hazards involved; if he does not do so to a sufficient extent,
the authorities must coerce him.
       In addition, the conditions  must be provided for effective implementation of the law. This
means in particular that the legal structures of the relevant provisions must be designed such that
they necessitate a minimum of enforcement effort for the authorities.
Self-executing statutes  (e.g.  in  the  form of decrees) are preferable  rather  than  complicated
individual decisions (i.e.  in the form of supplementary orders).
       It  is of central  importance  that licences permitting environmental pollution are only issued
for a limited period. The temporal limitation opens the possibility of taking a new decision on  the
basis  of  up-to-date  technological and  toxicological  developments. The  main  advantage   as
compared to the instrument of the supplementary order is that the burden of justification lies with
the polluter. He  must  - if he wants to  receive a  new licence - determine the relevant current data
(including the state of the art). The work of the authority is limited  to checking these documents
and  taking a decision  in the course of a new public procedure.
       Finally the sub-legal definitions in decrees and administrative  regulations are of great
importance.  If, as is  the  case with the German TA-Luft (Technical Instruction - Air), risks  and
hazards  are simply "defined out of existence", there is a  danger that the protective aim of the law
will only  be applicable in theory.
       REFERENCES


 1.     Cf. here and later Fuhr, Sanierung von Industrieanlagen, Dusseldorf 1989, P. 14 et seq.

 2.     In the later German  Reich, where it was incorporated  in the Preussische  Allgemeine
       Gewerbeordnung (Prussian General Industrial Code) of 1845 and the Reichsgewerbe-
       ordnung (Imperial Industrial Code) of 1869.

 3.     E.g. the Atomgesetz (Nuclear Act), Abfallgesetz  (Waste Act) and Bundes-lmmissions-
       schutzgesetz (Federal Emission Control Act).

 4.     Cf. Gurlit, Verwaltungsoffentlichkeit im Umweltrecht, Dusseldorf 1989, and Fuhr, op cit., p.
       76 et seq.

 5.     Cabinet orders had the character of laws, quoted from Schwan, Aktenoffentlichkeit, p. 1.

 6.      Frankfurter Allgemeine  Zeitung, 6 December 1989, op.  283,  p. 17, Fernando Wassner:
       Wenn die Furcht zur Gefahr wird.

 7.     For the way in which authorities circumvent the legally prescribed right of public
        participation cf.  Fuhr, op.cit., p. 82 et seq.

 8.     In Germany the obligation in the Bundes-lmmissionsschutzgesetz (Federal Emission
        Control Act) to  minimize industrial waste is in fact  implemented - or better:  not implemen-
        ted - in that way.

 9.     This is,  for instance, stipulated in Annex III  No. 7 of the EC EIA Directive,  according to
        which "technical gaps and missing knowledge" must also  be declared.

  10.    OJ No L 158/56, 23.6.1990 (90/313/EEC).

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 11.    And  entitles every person  who considers that his request for information has been
       unreasonably refused,  ignored,  or inadequately  answered by a public authority  to seed
       judicial or  administrative review of the decision  in accordance with the relevant national
       legal system.

 12.    Cf. the country reports in: Winter, Offentlichkeit von Umweltinformation, Baden-Baden
 13.    Art. 3 para 2 of the Access to Information Directive (90/313/EEC).

 14.    Such provisions are part of the  Directives on the use of genetically modified organisms cf
       Art. 19 para 4 of the Directives 90/21 9EEC and 90/220/EEC.

 15.    The public participation  model "OKOM-Park" developed by the  OKO-lnstitute for the
       District Council of Birkenfeld (Rhineland-Palatinate/Germany) contains such  a procedure
       (Sailer, M./Fuhr, M., Modell der Burgerbeteiligung bei Ansiedlung von Gewerbebetrieben
       im  Rahmen des OKOM-Park-Konzeptes, Darmstadt 1992).

 16.    Cf. Wollny, ELNI-Newsletter 1/91, p. 21  et seq.;  part of the coordination  work is a
       Newsletter (in  German)  obtainable from the above mentioned address of the OKO-
       lnstitute.

 17.    31  May - 1 June 1991 in  Frankfurt/Main;  the proceedings of the conference are available
       from the ELNI Coordination Bureau.

 18.    CEPA, carrer Jacint Verdaguer, 48, SP 48.08750 Molins de Rei, Spain,  Fax +34-3-
       6800773.

1 9.   Cf.  ELNI-Newsletter 1/91 , p. 4 and ELNI-Newsletter 2/92, p. 36; the Newsletter is available
      from the ELNI Coordination Bureau, c/o Oko-lnstitute, Bunsenstr. 14, D-6100 Darmstadt
      Germany.                                                                       '

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  PUBLIC DISCLOSURE AND ITS IMPACT ON COMPLIANCE

  NIGEL BLACKBURN

  Director of the International Chamber of Commerce, 38 Cours Albert 1er, 75008, Paris, France


       As a representative of world-wide organization at an international Conference, I will first try
  to set the Question of public information on environment in a world-level perspective.'
       At Government  level,  world-wide  action  can be  said  to  have begun with the  1972
  Stockholm Conference.  This  gave rise to the creation  of UNEP and  numerous international
  programmes on  a plethora of subjects. The Stockholm declaration only contained  some  fairly
  general  Phraseology on  information, none of which was  specifically addressed to the business
  community.
       The next  milestone is  usually  said to be  the 1987  report of the World Commission  on
  Environment and Development ("Brundtland Commission"). This led to a series of regional follow-
  up conferences, the one generally regarded as the most valuable took place in Bergen Norway
  in  May  1990 -  curiously enough, at exactly the same  time  as the first conference  in  this
 enforcement  series. The  Bergen  Conference, which covered  the  UNECE  area  (Western and
  Eastern  Europe,  plus the USA and Canada) concluded with two notable elements of "soft  law"
 One  was the  traditional ministerial declaration  to which only 35 the governments involved were
 party. The other was  the  historically unique "Joint Agenda  for Action" approved both by
 governments and the five non-governmental interests which had negotiating rights for the first part
 of  the conference, i.e.  business, environmental groups, labour,  science  and youth.  Both
 documents contain extensive references to  public disclosure of environmental information.
       Shortly after Bergen, the European  Community adopted a Directive on freedom of access
 to information  on  the environment, which will come into force in the 12 Member States at the end
 01  i y y^.
       Bergen led directly to  the United Nations  Conference on Environment and  Development
 (UNCED) in Rio in June 1992. For the purposes of this Conference, note simply that UNCED has
 produced much more soft law on disclosure of environmental information - and this  soft law is
 subscribed to  by virtually every  country and at the level of the head of state or government
 Principle 10 of the keynote Rio declaration for example reads as follows:

       "Environmental issues are  best  handled with the participation of all  concerned
       citizens, at the relevant level.  At the national level, each  individual shall have
       appropriate access to information concerning the environment that is held by public
       authorities,  including  information on hazardous  materials and  activities in their
       communities,  and the  opportunity  to participate  in decision-making  processes.
       States shall facilitate and encourage public  awareness and participation by making
       information  widely available.  Effective  access  to  judicial  and  administrative
       proceedings, including redress and remedy, shall be provided."

       Many references  to information  appear  in  the 500-page  "Agenda 21".  They  cannot be
detailed today but they  all help  to  set  the scene - for business  and other non-governmental
interests - in approaching the specifics of the Budapest Conference. The ICC has taken a positive
view of the Brundtland Report, Bergen, and UNCED. Accordingly we aim to be  circulating  a
positive view  on  provision  of information  around  our  network  -  7,500 corporations and
associations in over 100 countries - and to  the business world at large.  It has in fact been  doing
so since   1974, when it first  issued its "Environmental Guidelines for World  Industry"  Three
current initiatives should specifically  be noted by  this audience:

      1.   The  Business  Charter for Sustainable Development Although launched only 18
          months  ago, the business charter has  become the  benchmark code for  corporate
          environmental  management.  Over  1,000 corporations  and business  organizations in

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          some 50 countries have already expressed their support for it in writing, including for
          example around 60  out of the top 100  in the fortune 500  list of leading  industrial
          companies. The  charter  is  endorsed  by  over 40  international  organizations and
          numerous  government leaders, including  Prime Minister Lubbers of the Netherlands,
          William Reilly of the U.S.  EPA, and Laurens-Jan  Brinkhorst of the EC's DG XI. The
          Charter comprises  16 principles,  of which the final  one covering compliance and
          reporting reads as follows:

          "Compliance and reporting
          To measure environmental performance; to conduct  regular environmental
          audits and assessments of compliance with company requirements, legal
          requirements  and these principles; and periodically to provide appropriate
          information  to  the  Board  of Directors,  shareholders,  employees,  the
          authorities and the public."

          The  Charter  is incidently published in 24 languages,  including German, Hungarian,
          Polish and Russian;

       2.  Position Paper on Environmental Auditing The expression "Environmental Auditing"
          has been  widely but loosely  used for a decade or more. In  1988 the  ICC decided to
          define  the term, and to encourage use of this definition and a concise supporting
          elaboration and model methodology. One  firm principle is that audits are an internal
          management tool, and audit reports should be used accordingly and not regarded as a
          vehicle of public information.  The  position paper,  which drew extensively   on
          experience, has also become an international benchmark and  was a key reference in
          the EC's recent eco-audit initiative.

       3.  Position  Paper on Environmental  Labelling Schemes/Code  on  Environmental
          Advertising  The power  of  the consumer in leading or encouraging the business
          community to apply high  environmental standards is very considerable, but  is also
          dependent on satisfactory information.  As guidance in this  area, in 1990 we  issued the
          first (and apparently the only)  international position paper  on how environmental
          labelling schemes could  be  organized and operated,  assuming that the government
          and public  opinion  want such  a scheme.  We followed this  up with a code  on
          environmental advertising (i.e. advertising using environmental claims) at end 1991.

       Our  positive  attitude on information  is also seen, albeit less directly,  in the series of nine
 position  papers or "business briefs" prepared  for  UNCED,  covering  economics and   the
 environment, toxic  chemicals,  hazardous wastes,  energy  and  the  atmosphere, biodiversity,
 forests, technology transfer, biotechnology,  and education.
       Right now we are assessing  our  priorities in  the light of UNCED's outcome. One priority
 will  however be  preparation  of a position paper  on what we tentatively  call  "Environmental
 Performance Reports"  which are precisely corporate information to be put in the public domain.
 The phraseology  is still  being  worked  out, and  will  benefit  from  input from this  valuable
 conference. In will  certainly encourage corporations to report  regularly  - for example in annual
 reports - and in an objective  and quantified manner on exactly what they are doing to minimize
 the  adverse environmental  consequences  on their activities processes  and products. It will  very
 likely take  a view on the value of external consultants in this regard. Note that parties within the
 business community  - for example banks, investment or holding companies, the insurance
 community, maybe a company's clients and sub-contractors - can have a keen  interest in such
 information'. Moreover, there  is now much discussion, and some consensus, on  placing more
 reliance  on economic  instruments  for improved environmental management rather than undue
 reliance  on traditional "command and control". Tradeable pollution permits are one example which
  can presumably only work with sound disclosure procedures. A subject for your third conference.

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       Perhaps  it is  necessary to  state that  the  Business Charter, the environmental auditing
 paper and  our other existing  and planned  initiatives in this  area all  take  compliance  with
 regulations for granted. A key point is to engage the competitive  forces within business, including
 "peer group  pressure", to show by how  much  the company  is managing  to exceed the legal
 requirements.

 Reasonable use of disclosure - drawing for example on the experience of the U.S. and Sweden  -
 is clearly going to be a necessary aspect of compliance with environmental regulations throughout
 the world. This perhaps applies to:
              The mass of medium and smaller enterprises without extensive in-house expertise
              and usually without a  prestigious external image to  maintain;
              Countries  in  Eastern Europe and   elsewhere  with socialist planned  economy
              systems, which  meant of course that the government functioned as both regulator
              and operator/vested interest  with results that  are well  known.

      The ICC would incidentally stress that the same conditions  of disclosure  should apply to
state-owned facilities  as  to  private corporations.  To  conclude, we believe that the effective
protection of the environment is best achieved by an appropriate combination of  legislation/regu-
lations and  of policies  established voluntarily  by business. The  self-regulatory instruments
mentioned earlier are  partly intended to help regulators prioritize  their efforts. UNCED has spelt
out the  necessity of  co-operation, dialogue,  and  trust  on  the  basis of  sound  information
disclosure.  The  business community  represented  by  the ICC  is willing to carry  forward  its
responsibilities in this spirit.

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  PUBLIC DISCLOSURE AND CITIZENS' ROLE IN ENFORCEMENT: RESULTS AND MISTAKES
  IN BULGARIA

  EVGUENI POPOV

  Institute of Ecology, Bulgarian Academy of Sciences, 2 Yuri Gagarin Street, 1113 Sofia, Bulgaria


       SUMMARY

       The  creation and strengthening of democratic traditions in  Central and Eastern Europe
 countries is a complicated  and continuous process,  considering all  the spheres of public life as
 well as the field of environmental protection.
       One of the most manifested forms of social discontent against the former regime was the
 environmental protest. Both the direct danger for mental health in a number of cases and the fact
 it was one of the little possible legal and organized forms of protest account for this protest.
       To understand the present behaviour of people and their rights according to the existing
 legislation including the ones in the  field of environment,  it is necessary to  know the history of
 environmental movement in Bulgaria.


 1     SITUATION IN BULGARIA

       Establishment of the first Society for protection of nature in  189 an its activity resulted in
 the formation  of the first preserve - "Parangalitsa"  in 1933, as well as the first National park
 "Vitosha" in  1934. These facts just confirm the existence of certain traditions and once again point
 out that the processes in Central  and  Eastern  Europe  to a  great extent are  brouqht  to a
 reestablishment of these traditions.
       The  primary non-governmental organization  in Bulgaria during  communist  rule was
 Ecoglasnost. This organization was  started in 1989 mainly by intellectuals.  The  group gives
 attention to  a broad range of issues including  environmental  issues and human rights  It also
 contributed to the overthrow of the  communist regime.  Ecoglasnost was one of the key forces
 which founded the present ruling organization, the Union of Democratic Forces (UDF)
       The role  and significance of  ECOGLASNOST in the society in 1989 and 1990 created
 such a phenomena that people wanted to join this organization instead of establishing new ones
 This is one  of the most characteristic features of the environmental movement in Bulgaria -  an
 existence of a strong environmental NGO.  It might be said, that the development of environmental
 NGO's in Central and Eastern Europe is in broad scope: the one pole is held by Bulgaria and the
 other  one - by Hungary with approximately 500 NGO's. The presence of a strong environmental
 NGO  enables an easier formation of public opinion towards  a number of  problems This  of
 course,  presumes a continuous period  of internal discussion within  the NGO for working  out a
 final decision.  When there are a great number of  environmental  NGO's, the coordination in
 forming a common public opinion becomes considerably difficult. Anyway the coordination among
 the NGO's in Central and East European countries is a tangible problem, this often hampers the
 citizens' participation in the enforcement  process.
   .   M°st  of Centra1  and  East European environmental NGO's passed the romantic period of
 their development, when all the activities were  based on  the  enthusiasm of the organization's
 members, this  was  connected  with  the  beginning  of  the first crisis  in  the  organization   Its
 overcoming required transition from destructive approach (protests, human chains, polluters' shut-
 down  actions, etc.)  to a constructive  one  (a participation in expert  groups, working  out of  own
 statements  and  analyses,   etc.). This is  certainly not  an  easy process because  it requires
t^surir         in the management of tne organization's affairs. This is the only possible  way

      A growing number of Bulgarian NGO's are demonstrating interest in expanding the existina
system of protected areas and lending their support to the enhanced management of the system

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      The public  in Bulgaria  is very sensitive  towards  the  problem of the former damages
caused  to the environment and man as a result of pollution. It  is considered as one of  the
greatest crimes of the  former  regime. Some suites  are brought at the moment against former
party leaders on different charges. An interesting fact is that the first case which was finished was
against the culprits for the damages caused by Chernobyl accident in  Bulgaria. The Government
delayed deliberately the information for the accident from  the  population. The motivation was to
prevent confusion and  chaos.  Because nobody took action  against the damages, the Bulgarian
population was exposed to one of the biggest portions of radiation in Europe. Grigor Stoichkov -
former member of the Political  Bureau of the Communist Party and chairman of the Commission
natural calamity and big industrial accidents at that time and  prof. Shindarov - chief toxicologist of
the state were condemned on this case. This is a good example for public disclosure in Bulgaria.
2      ENVIRONMENTAL LEGISLATION

       Before  the  analysis of  environmental legislation and the citizens' rights and obligations,
public participation and citizens' role  in enforcement process according to  this legislation, it is
important to emphasize on one specific characteristic of Bulgarian legal reform compared to other
Central and East European  countries. This reform started in Bulgaria with the enforcement of a
new Constitution. After that  Environmental Law, Local Administration and Local Self-government
Law and Law  on Statistics and Public Information were adopted. What is important for the public
disclosure  and citizens' role in enforcement is the fact that these laws were passed before the
enforcement of the basic economic laws.
       In October  1991,  the Bulgarian Parliament passed a new, comprehensive environmental
law, the Law  of Environmental Protection.  This act  supplanted the Law of  Nature  Protection in
 1967 and  replaced the Law of Protection of Air, Waters and Soils from Pollution in 1963. The
 1991 law introduced pollution  charges within permissible limits and made Environmental Impact
Assessments   an  obligatory  procedure.  The  new law incorporates  International  Union of
Conservation  of Nature (IUCN) criteria for designation of protected areas and specifies minimum
staffing requirements for  protected areas based on their size.
       Finally, the legislative reform for the environment in Bulgaria also includes changes in the
 new Constitution,  as well as in the  Land-Use Law, the Law on Statistics and Public Information,
 and in the Accounting  Law.  There are proposed amendments to the Environmental Law that were
 proposed in January  1992 on behalf  of the Council of the  Ministers presently awaiting action in
 the Parliament.
       There  in no doubt that 1991 Environmental Law necessitates amendments and addenda,
 specifically as regards the chapters on information, assessment of the impact on the environment,
 responsibility. Our contemporary reality requires at least to  allot greater attention  also to the role
 and place in  environmental protection activity of non-governmental organization and movements,
 including that of every citizen whose rights in this field are guaranteed by the Constitution of
 Republic of Bulgaria proper (1).
        Active  involvement of  the citizens in working out of the new laws is  not  yet a regular
 process. This is absolutely  valid also  for the environmental  legislation. Work on the amendments
 of the Environmental  law when public participation was symbolic illustrates  that fact. Citizens'
 involvement in development of regulations to implement the  law do not exist  yet as practice.
        Procedure  of public participation  in the discussion of Environmental Impact Assessment
 (EIA) is treated by the  law very generally. In  section 20 is just mentioned that "all  concerned
 physical and  juridical persons shall have the right to participate in the consideration of  the results
 of EIA,...". Neither the law nor the expected amendments do not provide  for the  existing three
 ways of public participation in EIA procedure (3):
        -   when the company that is proposing the project first determines that it must conduct an
           EIA, it  must conduct public hearings to determine what types of environmental impacts
           of  the project are of public  concern and should be reviewed;

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        -  when the company has prepared a draft of its EIA, the company must allow the public
           to submit written comments on the report and must also conduct public hearings to
           receive oral comments on the draft report;
        -  after the  final EIA has been  written  and before the government agency must take
           action  based on the assessment, the public has an opportunity to  have one final input
           into the decision-making process.


  3      INTERNATIONAL COOPERATION

        Another important  point for  public participation in enforcement  process is that for  the
  people  from Western  countries is  important to see how  democratic structures similar  to  the
  Western ones are built to continue their support  (financial and moral) for the changes in Central
  and  Eastern Europe. One of these Western  democratic mechanisms  is interrelation  between
  governmental agencies and private consulting companies, NGO, etc. Unfortunately this is not the
  situation in Bulgaria and in my view in other central and East European countries. Our ministries
  are trying to do as  much as possible of the professional work on their own instead  mainly to
  coordinate  and control the activities. This is  fully valid also for the field of environment This
  tendency is  reflected mainly in the international projects while the bureaucrats are trying to keep
  their positions and staff and finally the old structures. This type of officers are very far from  the
  understanding that their basic functions are planning, allotting, coordination  and control  i e  to
  manage the budget  money  provided for the given activity. They think that they must complete  the
 whole  work on their own. This  leads the particular ministry to isolation  and  minimizing the
 participation  of independent experts,  private  consulting  companies,  NGO's  and citizens
 Contracting of private consulting companies is a very important element of development  of the
 private sector. Very often  the governmental declarations for support of the democratic process
 and private sector contradict with the real practice.
        Unfortunately official  agencies of the western  countries  support  sometimes  these
 tendencies  unintentionally,  because  it is rather  easier  to collaborate  with the  existing
 governmental institutions  in Central  and  Eastern Europe. Creation of new private independent
 institutions is an extremely  important element for the  enforcement process in  our countries This
 is rather difficult but number of international projects require that.
       Another  problem dealing with  public participation is the fact that in Central  an  East
 European countries do  not exist tradition of private citizen's  initiative official support Usually the
 state officials are  asking  what organization stands behind the initiative. They feel much more
 comfortable when they have  relations with organizations. But  mechanism  for citizen's initiative
 support do not exist yet.


 4     ENVIRONMENTAL MANAGEMENT

       A system of environmental management demands not only  technical  and administrative
 competence, but an acceptance by the people of the legitimacy of the process  by which decisions
 are reached. The Ministry of Environment  appears to  be restricted in its outreach by the current
 organizational structure  (there are only two people working  in the public relations department)
 limited funding and, perhaps most important, by  the lack of real traditions of public involvement in
 environmental decisionmaking  through regular dissemination of information In  spite of its explicit
 inclusion in the draft environmental legislation, the   issue of increased  public  participation  in
 environmental policymaking is still a new and, understandably,  somewhat foreign concept
       Of course some  good experience exists  also.  For example, Environment  Strategy Study
w ?!/ i3"!1 3 J°'nt rep°rt °f the Government °f Bulgaria, the United States Government and the
World Bank was completed on November 26, 1991. The Strategy was discussed in January 1992
with  big participation  of the public.  Similar but not  so successful  was  the  discussion of the
Bulgarian National  Report for UN Conference in Rio de Janeiro.

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166                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


      Another  example  of public involvement in  enforcement process  is an  18-month  long
community-based demonstration project  in Troyan,  Bulgaria beginning in  January  1992 and
funded  by U.S.  Environmental  Protection Agency.  Guided  by the  Institute for  Sustainable
Communities  (ISC), citizen committees are identifying, analyzing and ranking the environmental
problems facing their community and developing appropriate clean-up strategies (2).
      Shift  from national to local  control offers  an opportunity to institutionalize a  national
program to assist communities in addressing their environmental. Citizens can identify the  most
serious  problems facing the community, select clean-up strategies which  are the most appropriate
to meet  their  local needs,  and financed  these  projects  tailored  to  their  specific  financial
capabilities.  These  solutions  should be based upon  meeting national  environmental standards
while implementing unique community or regional  level solutions.
      The following six  principles should be  considered  in designing an  effective nationwide
program to assist Abshtinas address their environmental problems:

      PRINCIPLE # 1: A municipal-based environmental assistance program should be founded
      upon broad public participation  in environmental decision-making. Citizen participation is a
      fundamental tenant of a democratic society  and is critical to  build consensus and obtain
      support  for environmental solutions.  In addition, public  participation encourages public
      commitment to environmental enforcement and the economic implications of responsible
      environmental  decision-making.  While effective environmental  management  demands
      technical  and administrative  competence,  it  can only be accomplished  through  a
      fundamental acceptance by people of the legitimacy of the process by with (environmental)
      decisions are reached.
       Public  involvement  should be solicited  during the  following phases  of  a  community
       program: problem identification, problem  prioritization, proposed environmental solutions,
       prior to  seeking  public approval for financing and monitoring   performance of  clean-up
       strategies. A  community-based  environmental action  program should   also  provide
       opportunities for  NGO's and industries to constructively participate in the development of
       environmental policy formulation and  implementation. Citizen advisory committees offer a
       viable model for soliciting and incorporating active public participation.
        Effective public participation means effective  public education on the  present threats to
        health,  ecology  and  well-being.  Further, citizens need to  be  educated  that effective
        solutions are contingent upon both individual responsibility and collective action.

        PRINCIPLE # 2:  Communities and citizens  should have  access  to information about their
        environmental problems.

        PRINCIPLE # 3: Environmental  priority  setting should be  a  fundamental first step in
        developing long-term environmental solutions.

        PRINCIPLE # 4:  NGO's should play a critical  role in educating and involving the public to
        help to  raise the  public's environmental awareness. NGO's  can also provide independent
        information  on problems and solutions and serve as watchdog  for  compliance with
        environmental laws.

        PRINCIPLE # 5:  Environmental clean-up strategies should emphasize  the implementation
        of low-cost and cost-effective solutions for improved environmental protection.

        PRINCIPLE #  6:  Municipalities  need  adequate  funding  to  implement  cost-effective
        environmental solutions.

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      REFERENCES

      1. Bojanov,  S.,  Bulgarian  Nature Protection  Legislation,  Paper prepared for  the
         International Workshop Institutional  Design for Environmental  Protection in Bulgaria,
         Shtarkelovo Gnezdo, Bulgaria, September 5-7, 1992.

      2. Markowitz,  P., Environmental  Protection  and  Sustainable Development at the Local
         Level: Empowering  Bulgarian  Abshtinas,  Paper  prepared  for the International
         Workshop Institutional Design for Environmental Protection in  Bulgaria, Shtarkelovo
         Gnezdo, Bulgaria, September 5-7, 1992.

      3. Bowman,  M.,  Law as a tool  for citizen involvement  in  Environmental  Protection,
         Working paper of Environmental Law Institute, 1991.

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  INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             169


  ENFORCEMENT OF EC ENVIRONMENTAL LEGISLATION:  THE ROLE OF CITIZENS AND
  CITIZENS GROUPS

  ERNST R. KLATTE

  Directorate-General  Environment,  Nuclear Safety and  Civil  Protection,  Commission  of  the
  European Communities, Rue de la Loi 200, B-1049 Brussels, Belgium.


        SUMMARY

        EC environmental policy dates back to the early 70s. Despite the lack of an explicit legal
  basis for environment policy in the Treaty  of Rome (1957), about 200 legal instruments  (Direc-
  bves, Regulations and Decisions) in the field of the environment have since been adopted by  the
  Council of Ministers.  A clear success story  one would say. However, this formal record contrasts
  sharply with the marked lack of implementation and enforcement of EC environmental legislation
  by the Twelve Member States.
        This paper will examine the importance of the role of citizens and citizens' groups in  the
  enforcement of  EC environmental legislation. In this context, particular attention will be paid to  the
  right of complaint to the Commission, the right to petition the European Parliament as well as to
  Directive i 90/31 3/EEC on the freedom of access to information on  the environment' Finally it  will
  look at the possibility for NGO's to participate in EC decision-making on environmental protection
  as well as at the (im)possibility to have standing in the European Court of Justice.


  1      ENFORCEMENT OF EC ENVIRONMENTAL LEGISLATION

  1.1     Scope of the problem

 MQQ^ III8 .N',nth ^nnUa' Rep°rt °n Commission monitoring of the application of Community law
 (1991)  (1) states, that:

 law in iqqhieH°nCltSfnS '° K 1 ^T fr0m monitorin9 the application of Community environmental
 law in 1991 do not differ substantially from those set forth in the Eight Report (2)
       Whereas  the body of Community law is  growing  larger and more  elaborate  (   ) the
 Member States  application of the existing law is still unsatisfactory on the whole
 makP Ad"?ltted|y' sf,eral Member sta'es are making a great effort, despite real  difficulties,  to
 make up  the  ground  lost over a  number of years. There is also a clear tendency  away from
 legally questionable methods of transposal such as circulars.
                                                      .
 nnt-       - 1°' v number °f Member States continue  to see the deadlines for transposal as
 optional or indicative. It is not  unusual for implementing  measures to provide for derogations
 which  have no  basis  in  the Directive transposed or for derogations strictly defined by the
 nl^r^H ?H°    "I!"6" int° nati°nal 'aw in the most flexible terms. Certain provisions of
 r  nn     K  *    "^ than ten yearS a90 ** sti" a dead ^' Measures '° implement Court
 or the EEC Tyrea°meanS      '" *""** ^ ^ ^ & SeC°nd Jud9ment based on
       It is the exception rather than the rule for the Commission to receive the reports provided
                                                                      °f the
thP Pn               hn ^ommitsion h°Pes that ^e new Directive on reports adopted towards
the end of 1991  (4) will bring about a significant quantitative and qualitative increase in the
environmental information available at Community level in the medium term
Mpmh.Tcft* t°f the,,nhew-sty|e reP°rts wi" not  be  available until 1996-97 at the earliest, however
und^thP S fn.W   T l° C°?'nUe f°r the time  beins t0 Sup^ the Commission with information
under the arrangements currently ,n force, as  stipulated in Article 7(2) of the Directive on reports

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170                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


      In  the  medium term  the Commission  also  expects  a  positive contribution from  the
measures which it is  likely to adopt as a result of its research  into the question of liability for
environmental damage (5) and its discussions on the availability of legal remedies (6).
      To improve efficiency  in the  application of Community  law, possibilities for strengthening
cooperation between the Commission and the Member States and for streamlining the  Commis-
sion's monitoring activities will be explored.
      Lastly,  the  Commission would  stress that  developments  relating to environmental law,
unlike other branches of Community law, are of considerable and ever-increasing interest to the
public at large."

1.2    Enforcement of EC environmental Directives

1.2.1   Introduction

       Most EC environmental  legislation  consists of "Directives".(7)  Compared  with  the
"Regulation",  which  has only been  used a few times  in EC environmental legislation  (8), the
Directive has  inherent weaknesses. A Directive has to be transposed into national law in order to
become effective; a Regulation is directly applicable in all Member States. Moreover, a Regulation
has "direct effect", i.e. directly confers rights to citizens which the national courts have a duty to
protect, while a Directive - generally speaking - has no "direct effect" (9).
       Why then,  has the Community not made more  use of Regulations in  the environmental
field? The answer is simple, in  principle: before the entry into force of  the Single European Act
 (SEA) in 1987 (10), EC environmental legislation  was mostly based on Article 100 EEC, Article
 235 EEC, or  a combination of the two. Article 100 EEC only speaks about "Directives" and does
 not offer'the Commission the possibility to use a Regulation as a legal  instrument  under the
 circumstances.
       Although the Regulation has marked advantages compared with the Directive, in particular
 as far as uniformity of application and enforcement are  concerned, there are also "drawbacks". A
 Regulation is binding in its entirety and directly applicable, a Directive is  binding as to the  result to
 be achieved, but leaves to the national authorities  the choice  of form and  methods.  Member
 States  tend 'to  prefer Directives to Regulations in the environmental  field, because the former
 leave them more "flexibility" than the latter.  Moreover,  as  the  Regulation is  directly applicable,
 Member States tend  to  have an even closer look at  the  text  of a Commission-proposal for a
 Regulation than they  do  in the  case of a proposal for a Directive. Negotiations in the  Council of
 Ministers about Regulations therefore risk to be even  longer than about proposals for Directives.
 Although, since the entry into force of the Single European  Act in 1987, neither Article  100a EEC
 nor Article 130s EEC restrains the  Commission to the use of Directives  in the environmental field,
 the Commission continues to show a preference  for the use of these instruments rather than of
  Regulations (11).

  1.2.2  Implementation and  enforcement of  EC  environmental  Directives: the role of  Member
        States

        Article 189  EEC provides,  that:  "A Directive shall be  binding, as  to the  result to be
  achieved  upon each Member State to which it is addressed but shall leave to the  national
  authorities the  choice of form and  methods". Moreover, Article 5 EEC stipulates, that:  "Member
  States  shall take all  appropriate measures, whether general or  particular, to  ensure fulfilment of
  the obligations arising out of this  Treaty or resulting from  action taken by the institutions of the
  Community. They shall facilitate the  achievement of the Community's tasks.  They shall abstain
  from any measure which could jeopardize the attainment of the objectives of this Treaty".
        This  implies,  that:  a) Member States have a  duty to  transpose  a Directive  into  their
  national laws  after which the  Directive becomes part of the national  legislation of that Member
  State (formal implementation), and also that: b) Member States  have to ensure that the objectives
  of the Directive are met in  practice (practical implementation). It can therefore be concluded,  that

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  INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             171


  not only the formal  implementation of Directives is incumbent on  Member States, but also the
  (primary) enforcement of EC environmental Directives.

  1-2-3  Enforcement of EC environmental Directives: the role of the Commission

        According to Article  155 EEC, it is part of the tasks of the  Commission "to ensure that the
  provisions of the Treaty  and the measures taken by the institutions pursuant thereto are applied".
        The  control of  the  implementation,  in due time and correctly, of  EC  environmental
  Directives by the Member States forms part  of this activity. The attribution of this competence to
  the Commission  is an  exclusive one: the Treaty gave  a comparable  mandate neither  to  the
  Council of  Ministers nor to the European Parliament.(12) Moreover, this task is indivisible:  the
  Commission  is  not  allowed  to  delegate  this power  partially or totally, be it to another  EC
  institution, or be  it to any new authority which might be  created.(13)
        The  Commission takes its  task  of  monitoring  the  implementation  of Directives very
  seriously. It controls whether the deadline for implementation  (which is mentioned at  the end of
  the text of each Directive, and which - normally - is 18  months after the date of notification of the
  Directive to the Member States) is respected, and whether the measures adopted comply with the
  terms  of the Directive.  Moreover, it verifies  whether the national provisions  are a correct and
  complete implementation of each Directive  (formal compliance).
        As the Commission  lacks an environment inspectorate, it  has to rely on information from
  citizens and citizens' groups (14) as well as  on assistance from third parties  (15), in order to be
  able to assess, if in practice, Member States have taken all the  necessary measures "as  to the
  result to be achieved" (16) (practical  compliance).
        Increasingly, the Commission receives relevant information pertaining to not correct/a lack
 of implementation  of EC environmental Directives through complaints  of citizens' or citizens'
 groups, or  via Parliamentary questions  (17).  This information  is  extremely valuable  to the
 Commission,  as  it often provides the Commission, and specifically its Directorate-General  for
 Environment, Nuclear Safety  and Civil Protection, with new information not  previously gathered
 through the Community monitoring system  which relies mainly on  information  from governments
 It also forces the  Commission to take action. Submitting a complaint to the Commission, may lead
 the Commission  to open "infringement proceedings", which implies, that the Commission may
 eventually decide to take the offending  Member State to the EC's Court  of Justice in Luxembourg.
        Infringement proceedings may be instituted in any of the following cases:
 (a)     If a  Member State  has  not  notified the Commission of  the measures it has taken at
       national level to put EC environmental  legislation into effect;
 (b)    If the national legislation of  a Member  State has been improperly harmonised with the
       provisions of EC environmental legislation;
 (c)    If the  national legislation  of  a  Member State  has been  properly harmonised with the
       provisions  of EC environmental legislation but is not being properly applied.(18)

       According  to Article 169 EEC,  infringement proceedings are  instituted in  three steps:
       First, the Commission sends  a  "letter  of formal  notice",  requesting the Member State in
 question to  submit its  comments on  the presumed  infringement  of  EC  legislation   within  a
 specified time limit (normally two months).
       If the Member State fails  to  respond  and persists in the  infringement, the Commission
 sends  a second letter, called  a "reasoned  opirion", setting a time limit for compliance with the
 Directive in question.
       Finally, if the second step also fails  to produce the desired results, the Commission  may
decide to take the case to the Court of Justice.

 1-2-4   Enforcement of EC environmental Directives: the  role of the  Court of Justice

       According to Article 173, paragraph  1  EEC, the  role of the Court of Justice is "to review
the legality of acts of the Council and the Commission other than recommendations or opinions  It
shall for this purpose have jurisdiction in actions brought by a Member State (19) the Council or

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172                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


the Commission on  grounds of lack of competence,  infringement of an essential procedural
requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse
of powers".
      Member States are obliged to take measures to comply with the judgments of the Court of
Justice (Article 171 EEC). Until recently, there were no sanctions. The Treaty on European Union
(Maastricht, 1992), however,  provides in Article 171 (new) the possibility for the Court to impose a
lump sum or penalty payment on a Member State which fails to take the necessary measures to
comply with the Court's judgment within the time-limit laid down by the Commission, after the
latter has brought  the case before the Court again. It is hoped, that this possibility will impress
Member  States more than the negative publicity due to a Court verdict  in an infringement case
(the only "sanction" in the past), and thereby improve Member  States' record of  implementation
and enforcement of EC environmental legislation.


2     ENFORCEMENT OF EC ENVIRONMENTAL LEGISLATION: THE ROLE OF CITIZENS
       AND CITIZENS' GROUPS

2.1    Introduction

       EC legislation does not recognise an individual right to the environment.(20) However, only
recently, the EC's  Heads of  State or Government declared: "The development of  higher levels of
knowledge and understanding of  environmental issues will  facilitate more effective action by the
Community and its Member  States to protect the environment. The objective  of such action must
be to guarantee citizens the  right to a clean and healthy environment, (...)".(21)
       Although the  EC is not yet able to guarantee its  citizens the right to a clean environment,
there are, on  the  other hand, two rights  accorded to every citizen of the Community, enabling
 her/him to contribute to the  implementation and enforcement of EC legislation in  general, and of
 EC environmental  legislation in particular. These rights are:
       (1) the right of complaint to the Commission;(22)
       (2) the right to petition the  European Parliament.(23)
       These  two  rights will be presented  in more detail below. Apart from these two rights, this
 chapter will deal with:
       the right to have  access to environmental information, the right to participate in decision-
       making regarding environmental protection,  as well as the right  to be a  party to actions
       before the Court of Justice.

 2.2   The right of complaint to the Commission

 2.2.1  The concept of the right and its legal basis

       Any EC citizen has the right to lay a written complaint before the Commission concerning
 the adoption  by  any  Member State of  measures or  practices contrary to the environmental
  legislation of  the Community.  The complaint is addressed to the Commission, because according
 to Article 155 EEC, the Commission  is  the "Guardian of the Treaty", i.e.  the  Commission  is
  responsible for ensuring that the measures adopted by Community  institutions  are  applied.  As
  most  EC environmental legislation  consists of Directives,  the exceptions being  Regulations and
  Decisions (24), citizens' complaints refer to  the  non-implementation of existing Directives or -
  exceptionally - Regulations.  It should be noted, that  complaints may only be laid  before the
  Commission, and  not before national  authorities (25); moreover, the right  of complaint applies
  only to the implementation of existing legislation, not to the participation of citizens in the process
  of enacting legislation.(26)

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  INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             173


 2.2.2  Method of exercising the right of complaint

       The right of complaint is exercised by sending a simple letter to the Commission. For the
 convenience of EC citizens who wish to  exercise  their right, the Commission has had complaint
 forms printed in all nine official languages of the Community (27), which are distributed free. The
 complaint form lists all the particulars that  must  be filled  in and the documents that must  be
 submitted (such as the complainant's personal particulars and evidence supporting the complaint
 of non-implementation  of Community legislation), as well as  the citizen's right to be kept informed
 after the complaint has been laid.  The forms are distributed by the Commission's Directorate-
 General Environment, Nuclear  Safety  and  Civil  Protection  in  Brussels,  and through  the
 Commission's Information Offices in  the Member States. A  specimen of the form is attached  as
 Annex  1. A  particularly  important characteristic of this  right  is,  that its exercise involves  no
 expense to the complainant (except from buying a stamp), so that it is accessible to everybody.
       A special characteristic of the right of complaint is  its "Community" nature. That is to say,
 that any EC  citizen  may make a complaint to  the Commission about non-compliance with  EC
 environmental legislation  not  only by her/his own  country, but  also by any other Member State
 (28). For instance, Greece's failure to comply with  the Directive on the conservation of wild birds
 (29) by permitting the hunting of turtle-doves in spring (30) has been repeatedly denounced to the
 Commission by environmental organisations and citizens of other Member States.(31)

 2-2.3  Results of exercising the right of complaint

       The laying  of a complaint before  the Commission concerning the adoption by Member
 States of measures or  practices  contrary  to the provisions of EC environmental legislation may
 provide the Commission with data that had not previously been gathered through the Commission
 monitoring  system, which relies  mainly on information given by the governments of Member
 States. Thus  the laying of  a  complaint may lead  to the institution  of infringement proceedings
 under Article  169 EEC. (32) If the Commission  refers the case to the European  Court and the
 Court finds that a Member State has failed to fulfil an obligation under the Treaty, the State shall
 be required to take the necessary measures to comply with the judgment of the Court.(33)
      According to the Ninth Annual Report on  Commission  monitoring of the application  of
 Community law (1991)(34),  the number of complaints on environment laid per  year per country
which led to the initiation by the Commission  of infringement  proceedings under Article 169 EEC'
was  as follows:

Table 1.   Number of complaints  on  non-compliance with EC environmental  legislation  per
Member State/per year,  having led to the opening of infringement procedures by the Commission

  Member State	1985      1986     1987      1988     1989     1990     1991
Belgium
Denmark
France
Germany
Greece
Ireland
Italy
Luxembourg
Netherlands
Portugal
Spain
United Kingdom

1
3
3
14
2
3
11
7
1
44
6
53
13
2
2
5
32
4
4
16
14
17
0
16
4
7
29
30
6
5
36
35
13
12
15
1
2
9
51
31
18

43
36
24
24
22
5
10
91
192
17
3
47
56
40
19
33
3
7
19
111
125
7
1*5
1 \J
44
61
38
29
20
c
D
13
65
55
 Total:	37       165       150      216       465       480      353

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174                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


      The  Commission  is also detecting more and more infringements of EC environmental
legislation through  its own  services.  The following table  shows the  number  of infringements
detected by the Commission's own inquiries (35):

Table 2.   Number of infringements of EC environmental legislation per Member State/per year,
detected by the Commission	

  Member State         1985     1986     1987      1988      1989     1990      1991
Belgium
Denmark
France
Germany
Greece
Ireland
Italy
Luxembourg
Netherlands
Portugal
Spain
United Kingdom
1
1
2
1
-
1
-
-
1
3
3
2
5
6
3
5
3
2
3
-
3
3
1
6
3
1
6
5
1
2
4
3
3
1
2
3
2
2
3
1
5
4
7
3
1
6
8
11
6
7
3
2
2
10
9
5
-
2
2
4
-
9
•
-
2
16
2
5
2
7
5
21
3
19
2
2
12
18
17
 2.2.4  Conclusions

       The number of complaints brought before the Commission is  high and steadily increasing.
 Spectacular increases in the number of  complaints on environmental  issues took place in  the
 years 1986: 165 complaints (compared with 37 during  1985) and 1989: 465 (compared with 216
 during  1988). There is no clear explanation  for this.  At  least not  for the  increase  in 1986. A
 possible explanation for the increase in complaints during 1989 might  be, that the European
 Environmental  Bureau (EEB) launched quite a campaign  on implementation and enforcement of
 EC environmental legislation during the European Year of the Environment (1987-88), involving
 its member-organisations in all EC Member States.(36)
       There  is considerable variation from  one Member State to another in the number of
 complaints. In view of the  "Community" nature  of the  right of complaint,  this right offers a
 challenge  to citizens and  citizens' groups in the  Community  to co-operate  with  each other, to
 exchange  information and  experiences, especially in view of the vast number and experience of
 non-governmental organisations (NGO's) in some Member States, compared to others.
        As  far as the Commission is concerned, it considers complaints a resource rather than a
 nuisance.(37)

 2.3    The right to petition the European Parliament (38)

 2.3.1  The concept of the  right and its legal basis

        The second right,  by which  any EC citizen can play an  active part in  monitoring the
 implementation of EC environmental  legislation, is the right to petition the European Parliament.
 This  right  is conferred  upon  all EC citizens by  Rule  128   of the Rules of Procedure of the
 European Parliament. Rule 128, paragraph 1  (39) reads:
        "Every citizen of the  European Community  shall have  the right, individually or jointly  with
 others, to address written requests or complaints (petitions) to  the European Parliament".

 2.3.2  Method of exercising  the right to petition

        The right to petition is exercised by simply sending a letter to the European Parliament.

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  INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             175


        Petitions should  include  personal  particulars  of  each  of the  signatories,  ie   name
  occupation, nationality and permanent address. Like complaints, petitions are registered (40)  Like
  the exercise of the right to petition,  the exercise of the right of  complaint entails no cost to the
  petitioner(s). There are more similarities: the right to petition has also a "Community" nature.
        The  Parliament has not made petition forms  available so far, but some Member  States
  have introduced  measures to  assist citizens in exercising their right. In  Britain,  for instance
  posters have been printed giving the address of a centre of access to  the European Parliament'
  where any  British  citizen  with a problem may write  a letter to  any (British)  Member  of the
  European Parliament (MEP).(41)

  2.3.3  Results  of exercising the right to petition

        Petitions  are  first examined  by  the Parliamentary  Committee  on  Petitions ("the
  Committee"), to see whether they are admissible, i.e. "whether the petitions registered fall within
  the sphere of activities of the Communities".(42)
        In the case of admissible petitions, the Committee may  decide to draw up a report or
  otherwise express its opinion on petitions it has declared admissible.(43) When considering petiti-
  ons, the Committee may  organize hearings or dispatch members to  ascertain the facts  of the
  situation in situ.(44)
        With  a view to preparing  its  opinions, the Committee may request  the  Commission to
  submit documents, to supply information and to grant it access to its facilities.(45) The Committee
  may submit motions  for resolutions to Parliament on petitions which it has considered The
 Committee may also request that  its  opinions be forwarded by the President of the  Parliament to
 the European Commission or the Council of Ministers.(46)
        Every six months, the Committee informs Parliament of the outcome of its deliberations as
 well as of the measures taken by  the Council  or the Commission  on petitions referred to them by
 Parliament.(47)  The President of  the European  Parliament informs petitioners of the decisions
 taken and the underlying reasons.(48)
       The  number of  petitions submitted by  EC citizens  to  the European Parliament is  rising
 steadily (49):                                                                            M

       1983-84: 100 petitions

       1984-85: 346 petitions.

       The  following environmental issues were  - inter alia - covered by petitions  submitted to
 Parliament during  its 1984-85 session: inclusion of environmental provisions in the  EC Treaties-
 sabotage of  the Greenpeace ship in  New Zealand; European legislation on  the management of
 marine resources; trapping  of songbirds;  protection of the countryside; hunting of  birds-  sound
 levels of aircraft. (50)

 2.3.4  Prospects for improvement

       In view of the fact, that the citizen's right to  petition  the European Parliament used  to  be
 based on the Rules of Procedure of the Parliament only, Parliament felt handicapped  in  its efforts
 to investigate citizens' petitions properly and to offer solutions. Therefore, Parliament  has tried  on
 several occasions,  to strengthen  its position in this area. (51)
       Recently, the Treaty  on European Union (Maastricht, 1992) provided a legal  basis  in the
 Treaty for EC citizens wishing to petition the European Parliament (Article  138d) Althouqh  there
 is now a legal basis for the right to petition the European Parliament in the Treaty  Article  138d
 restricts this right to matters which affect the petitioner(s) directly (52)
The Treaty on European Union also added Articles on a temporary Committee of  Inquiry (Article
 138c), and on an Ombudsman (Article  138e) to the Treaty.
       Article 138c provides, that the European  Parliament may, at the request of a quarter  of  its
members, set up  a temporary Committee of  Inquiry to investigate alleged contraventions  or

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176                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


maladministrations in the implementation of Community law, except where the alleged facts  are
being examined before  a court  and while the  case is  still  subject to legal proceedings. The
temporary Committee of  Inquiry ceases to exist on the submission of its report.
      Article 138e stipulates, that the Parliament shall appoint an Ombudsman  empowered to
receive complaints from any citizen of the Union, or any natural or legal  person residing or having
his registered office in a member State, concerning instances of maladministration in the activities
of the Community institutions or bodies, with the exception of the Court of Justice and the Court
of First Instance acting in their judicial role.
      The Ombudsman will have as his task to conduct inquiries, either on his own initiative or
on the  basis  of  complaints submitted to him  direct or through a member of the European
Parliament,  except where the alleged facts are or have been the subject of legal proceedings.
Where he establishes an instance of maladministration, he will have to refer the matter to the
institution concerned,  which shall have a period of three months to inform him of its views.  The
Ombudsman will then forward a  report to the European Parliament and the institution concerned.
The  person  lodging the complaint will be  informed of the outcome of such  inquiries.
The  Ombudsman has to submit  an annual report to  the European Parliament on the outcome of
his inquiries. He will be appointed after each election of the Parliament, for the duration of its term
of office. He is eligible for reappointment.
       The Ombudsman  may be dismissed by the  Court of Justice at the request  of the European
Parliament,  if he no longer fulfils the conditions required for the performance of his duties or if he
is guilty of serious misconduct.
       The  Ombudsman shall be completely independent in the performance of his duties. He
may not seek nor take instructions from  anybody. Also, he may not,  during his term of office,
engage in any other occupation, whether gainful or not.

2.3.5  Conclusions

       Both the  right of complaint to the Commission  and the right to petition the  European
 Parliament  give EC citizens the possibility to play an active role in the effective  protection of the
 European environment. The provision of assistance to citizens wishing to exercise these rights -
 be it by printing and distributing complaint forms or by showing them the way how to petition the
 Parliament  - is vital.(53)  Not only for the citizens in order to be able to  exercise their rights to the
 full  extent,  but also  for the  Community,  as it will  help the EC  institutions to  strengthen  their
 monitoring  capacity of the implementation and enforcement  of EC legislation in general and EC
 environmental legislation in particular.
       As far as the Parliament is concerned,  it  is hoped,  that the  new Treaty provisions
 regarding the  temporary Committee of  Inquiry, the right of  complaint and  the  Ombudsman will
 reinforce its  position vis-a-vis the other  Community institutions  and  through a more effective
 parliamentary control will lead to a more democratic  Community.

 2.4    The right to have access to environmental information

 2.4.1   Introduction and historical background

        As of  December 31, 1992 any natural or  legal person is entitled to have free access to
 environmental information held by public authorities  in EC Member States. The legal basis for this
 right is Council Directive 90/313/EEC, of 7 June 1990, on the freedom  of access to information on
 the environment.(54)
        The basis for Directive 90/313/EEC was laid in 1985, by a draft-resolution of the  European
  Parliament, tabled by  MEPs Ken Collins (UK) and  Beate  Weber (FRG).(55)  In  this  draft, the
 Commission  was invited to prepare a proposal for legislation concerning the right of the public to
  have freedom of access to environmental  information.(56)
        Parliament also asked  its Committee on  Environment,  Public Health and  Consumer
  Protection  to prepare a report  and a draft-resolution on the matter. Bram van der Lek (NL) was
  appointed  rapporteur.  Although the Committee  on Environment, Public  Health and Consumer

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  Protection accepted the Van der Lek-report, many proposals in it were rejected by the plenary as
  being too radical". Finally, the rapporteur advised the plenary to vote against what was left of his
  proposals, as so  many essential parts  of his report had  already been rejected.(57) This  was
  9CCGpt6Q.
        The European Parliament also decided,  in 1985, to prepare  an own  initiative report on
  information concerning the activities of the EC. Pol Marck  (B)  was appointed rapporteur on this
  issue  He  submitted his report to Parliament in 1987 (58). Parliament adopted his  report  by  a

  inSons'(59 "^  " ***"* ^ ^ PUbNC ^ 9'Ven a°CeSS  l° information held bv the EC
        As  far as the  Commission is concerned,  it presented a  draft for a Fourth  Environment
  Action Programme of the i  European  Communities (1987-1992) to the  Council and Parliament on
  15 October 1986. In the draft-Programme, it proposed, that  "The Commission will study the need
  for, and desirability of, a Community "Freedom of Environmental Information Act" and will make
  appropriate proposals".(60)
        Parliament  stressed,  in  its Opinion  on the  Commission proposal for a Fourth Action
  Programme, that "access to  information for all must be made possible by a specific  Community
  programme .(61) The Council, when adopting the Fourth Environment Action Programme  as-
  signed priority - inter alia -  to "improved access to information on the environment".(62)

  2-4.2   The legal situation in the Member States

        One of the important reasons for the Commission to  present a proposal for a  Community
  legal  instrument on freedom of access to information on the  environment to the Council  and
  Parliament was, that only a minority of EC Member States (Denmark, France,  Italy, Luxembourg
  and The Netherlands) had specific  legislation on this subject.  Further, three Member  States
  (breece  Portugal and Spain)  had general provisions in their  Constitutions governing citizens'
  right to have  access to information. Finally, Belgium,  Germany, Ireland and the United Kingdom
  had no specific legislation governing public access to information.(63)

 2.4.3  The form of the Community legal instrument

 *    ^AS ?." ^6 °ne hand> the situation  in the vari°us Member States was so diverse  and on
 the other  hand political pressure was building  up  calling  for action on  this issue (64)  the
 Commission decided to present  a proposal for a Community  legal instrument on  freedom of
 access to information on the environment to the Council and Parliament (65)
 rnmm-AS- ^'o 1 3°,S4EEC was chosen as a Ie9al ba™ (66), there were two possibilities for the
 Commission: a Regulation or a Directive. The Commission chose the latter. (67) (68)

 2-4.4  A general legal instrument or a specific one?
                     >             which type °f Communitv Ie9al instrument the Commission
                    »     ,o l° dedde Whether its prop°sal would be of a general na^e, as
                                      °f 22 JanU3ry 1988 <69>' °r Whether «
follnwin                       l° reStriCt itS  pr°posal to environmental information,  for the
following reasons: first, there was no clear Community competence to propose an instrument of a
general nature; secondly, Article 235  EEC as  a legal basis  for such an instrument was  less
jusMed than Article 130s;  thirdly, a  Community legal instrument  on freedom of access ?0
formation m general has more to do with human rights, a field in which the Community operates
with great caution; fourthly, there was a clear political demand for a Community legal instrument
                                                                       y ega  nsrument
S±St nf     °f 3rSS t0 inf°rmati0n °n the envi™men', the need for aVmmuni tyTega
instrument of a general nature was less obvious.  Moreover, there was fear, that a Commission

morPe0StnctL9enatur e"*"" ^ "^ t0 m66t "^ CritidSm in the C°Uncil' than a proposa ° ?«

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       As neither the European Parliament,  nor the  Economic and Social Committee,  nor the
Council objected to  the  more limited scope  of  the Commission proposal, the Commission felt
reassured  in  having  opted for  a  Community legal  instrument  on freedom of  access  to
environmental information alone.(70)

2.4.5  Addressed only to the Member States or also to the EC institutions?

       Although the text of Article  1  of Directive 90/313/EEC on the freedom of access to
information on the environment leaves open the possibility for a wide interpretation, Article 2 and
following of the Directive make clear that it is addressed  to the Member States only.
During the preparation  of the Commission-proposal,  the  prevailing view within  the Commission
was  that an obligation  laid  down  in  an EC Directive  could not address the EC  institutions, as a
Directive was addressed to the Member States.(71) That's why the Commission announced in the
explanatory memorandum to the proposal for a  Directive, that it would undertake other initiatives
in order to apply the same principle to the EC institutions.(72)
       Article 214  EEC stipulates,  that Community  officials are  required  not  to   disclose
information  of the kind covered  by professional  secrecy. It follows from Article 3, paragraph 2 of
Directive  90/313/EEC,  which enumerates in  an exhaustive  way the reasons  for refusal of a
request for  environmental information, that professional  secrecy as such  is not a valid reason for
refusal (73); the right to have  access  to environmental information  held by public authorities
applies,  notwithstanding the fact that  the principle of professional secrecy exists in  all  Member
States. Thus, the conclusion is, that environmental information held by national administrations
does not fall'under the  general principle of professional secrecy,  provided it does  not fall under
one  of  the  categories  listed  in  Article 3,  paragraph 2 of Directive 90/313/EEC. The  same
 reasoning is applicable to the interpretation of Article  214 EEC,  which, thus, does not oppose the
 application  of the  provisions of the Directive to the EC institutions.(74)

 2.4.6 The  text of Directive 90/313/EEC

       According to Article  1, the object of Directive  90/313/EEC is  to ensure freedom of access
 to and dissemination of, information on the environment  held by public authorities and to set out
 the basic terms and conditions on  which such  information  should  be made available.  Not only
 does Directive  90/313/EEC create a citizens'  right to have  access to environmental information
 held by public authorities, but the authorities also have to ensure the  "freedom" to have  access
 to this information. Thereby the Directive puts this right  in the context of a human right.(75)
        "Information relating to the environment"  (76) means "any available information in written,
 visual, aural or data-base form  on the state of water, air, soil, fauna, flora, land and natural sites,
 and on  activities  (including those  which give rise  to  nuisances such as noise)  or  measures
 adversely affecting, or likely so to affect these, and on activities or measures designed to protect
 these, including administrative measures and environmental  management programmes".(77)
 It is interesting to  note, that the definition of "information relating to the environment", the notion
 that is used throughout Directive  90/313/EEC, is not limited  to the state of the environment of the
 Community. Information about exports of dangerous products or installations fall within the scope
 of this  definition, as well as,  for instance, data concerning the state of  the ozone layer, world
 climate or tropical forests.(78)
        "Public  authorities"  are  defined  as any  public administration at national, regional or local
  level with  responsibilities,  and  possessing  information, relating  to the  environment  with the
  exception of bodies acting  in a judicial or legislative capacity.(79)
        The text of Article  3 of the Directive  makes it even more clear, that the right  to have
  freedom of access to  information on  the environment  held by  public  authorities is a fundamental
  right, and not just a possibility.(80) It reads as follows:
         "Save as provided  in this Article, Member States shall ensure that public authorities are
  required to make available information relating to the  environment  to any natural or legal person
  at his request  and without  his having to prove an interest".

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 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              179


       The  reference to  "any natural  or legal  person" does  not contain any  geographical
 limitation.  This  implies,  that also people  living in another Member State,  or even outside the
 Community  can invoke  this right.(81) Moreover,  it is not necessary to prove  an  interest. The
 character of a fundamental right is enhanced by the limited, exhaustive  list of reasons for refusal
 in Article 3, paragraph 2 (82), and the possibility for appeal laid down in Article 4  of the Directive.
       A public authority has to respond to a person requesting information as soon as possible
 and  at  the  latest within  two  months. The reasons  for  a refusal to provide the information
 requested  must be given.(83) A person who considers that his request for information has been
 unreasonably refused/ignored/inadequately answered by a public  authority, can seek judicial or
 administrative review of the decision in accordance with the relevant national legal system.(84)
       Member  States may charge the  person  who has made  a request for environmental
 information for  supplying  her/him with  this information,  but such a charge may not  exceed a
 reasonable cost. (85)
       Bodies with public  responsibilities  for the  environment and under the control of public
 authorities have to make available information relating to the environment on the same terms and
 conditions  as public authorities.(86)
       Member  States will have to provide general information to  the public on the state of the
 environment through - inter alia - the periodic publication of state of the environment reports. (87)
       Finally, Member States have to report to the Commission by the end of 1996 at the latest,
 on the experience gained  with  the  application of  Directive 90/313/EEC. In this light, the Com-
 mission will make a report  to the European Parliament and the  Council of Ministers  together with
 any proposal for revision, which it deems appropriate.(88)

 2.4.7  Conclusion

       Directive  90/313/EEC has created a third citizens'  right relating to  the environment: the
 right to  have freedom  of  access to information  relating to  the  environment held by  public
 authorities  in the Community. In fact, this is not just another right  for EC citizens alone:  it is an
 universal human right in the sense that any natural or  legal person, irrespective  of the place
 where he/she lives, and without having to prove  an interest, can invoke  this right in order to
 obtain information relating  to the environment from public  authorities within the Community. This
 information is not confined to information relating to the environment within  the  Community    It
 might very well be information  relating to the state  of the environment  in  Eastern Europe or
 concerning the state of the  ozone layer.(89)

 2.5    The  right of citizens to participate in EC  decision-making  relating to environmental
       protection

 2.5.1  Introduction

       There is no right for EC  citizens or  citizens' groups to participate in  EC decision-making
 relating to the protection of  the environment.
       The Commission has the  exclusive right to make proposals to the  Council of Ministers and
 the European Parliament,  and  decisions at EC level are generally taken  by the Council The
 Council of  Ministers, which consists  of  one  representative  per  Member  State  and  whose
 composition changes depending on the subjects being discussed,  always meets behind  closed
 do^rs and its minutes are confidential.
       Although the Commission has set up an  important number of committees to assist it in its
tasks and/or  to take decisions  which need the involvement of  Member States  there does  not
seem  to be any representative  of any  national, European or  international  environmental
organisation in any advisory committee existing with the Commission.(90)
       Plenary sessions of the   European  Parliament,  which  are  normally  held  each month in
Strasbourg, are open to the public,  and so are the sessions of its Committee on the Environment
Public Health and Consumer Protection, which are held in Brussels. The  Environment Committee

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180                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


of the  European Parliament sometimes organises public hearings on  environmental matters,  to
which environmental organisations are regularly invited.
       Despite a reinforcement by  the Single European  Act (1987) and the Treaty on  European
Union  (Maastricht, 1992) of its role  in the  EC's  legislative  process, the European Parliament,
contrary  to national parliaments in the Member States, still has largely only an advisory role
regarding draft-EC legislation, except where the  co-decision procedure  of Article 189b of the
Treaty on European Union applies.

2.5.2  Recent developments and future prospects

       Although the present situation  as far as citizens' participation in EC  decision-making on the
environment leaves much to be desired, an improvement of the situation is imminent.
       Recently, the Commission presented  to the Council and Parliament a proposal  for a Fifth
Environment  Action Programme of the European Communities  (1993-2000), entitled "Towards
Sustainability".(91) The approach adopted in drawing up this new policy programme differs from
that  which applied in previous EC environmental action programmes:
          It focuses on the agents and activities which  deplete natural resources and otherwise
          damage the environment, rather than wait for problems to emerge;
          It endeavours to initiate  changes in current trends and practices which are detrimental
          to  the  environment, so  as to provide optimal conditions for socio-economic wellbeing
          and growth for the present and future generations;
          It  aims to achieve  such  changes in society's  patterns of  behaviour  through  the
          optimum involvement of  all  sectors of  society in a spirit of shared responsibility,
          including public administration, public and private enterprise, and the general public (as
          both individual citizens and consumers);
          Responsibility will  be  shared through  a significant broadening  of the range  of
          instruments to be applied contemporaneously to the resolution of particular issues or
          problems.

       Keywords of the Fifth Action Programme are  "subsidiarity" (92) and "shared responsibility".
 In Chapter 9 (Implementation and Enforcement)  of its  proposal for a Fifth Environment  Action
 Programme,  the Commission notes, that:
       "Satisfactory implementation and enforcement of the policy, strategy and measures set out
 in this Programme at all levels of society will be  imperative if  the objectives  of environmental
 protection, sustainability of socio-economic activity and development and the integrity  of the
 Internal  Market  are  to  be achieved. Ultimately,  measures designed  to  facilitate  sustainable
 development  and involving all economic actors through the application of a  broad range of
 instruments should be self-enforcing. For the  foreseeable future, however, the likelihood  is that
 the  effectiveness of  implementation  will be closely  related to the  quality of the measures
 themselves and of the arrangements for their enforcement.

       In the past, a number of factors has contributed to problems of implementation, including
       •  a lack of  overall policy  coherence, partly  due  to an  evolving, sometimes shifting,
          agenda as the  scope of environmental policy grew, and partly because much of the
          environmental legislation was developed in an ad hoc manner;
       •  the narrow choice of instruments, whereby perhaps too great a reliance was placed on
          legislation  of the "command and control" type;
       •  the  need  for  unanimous  agreement within  the Council of  Ministers,  frequently
          necessitating political compromise, has resulted in some cases in measures which are
          difficult to put into practical operation;
       •  the preponderant recourse to Directives as the form of legal instrument has  often given
           rise to difficulties in their incorporation  into quite widely  differing national  statutory
           codes and administrative  procedures with consequential problems of  interpretation and
           practical implementation;

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 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                              181


        •   management inadequacies at all administrative levels, from Community down to local
           authorities."(93)

        According to the Commission,  it is  important to  learn from these  past experiences and to
 take appropriate steps to improve this particular aspect of policy. Among the reforms which are
 required are better preparation of measures, including improved consultation arrangements,  more
 effective  integration with  complementary measures,  better  practical  follow-up  to  legislative
 measures, both administrative and operative, and stricter compliance checking and enforcement.
        In order to institute these reforms, the Commission intends to set up the following ad hoc
 dialogue  groups:  (a)  a Consultative  Forum, (b)  an Implementation Network (94), and (c)  an
 Environment Policy Review Group (95).
        The Consultative Forum  will be  established to  provide for  consultation and information
 exchange between  the industrial/ production sectors,  the  business world, regional  and  local
 authorities, professional associations, trade  unions, environmental  and  consumer organisations
 and relevant Directorates-General of the Commission. It is envisaged, that this Forum  will act as
 an umbrella organisation,  with  specialist subgroups set  up as necessary to deal with specific
 topics or  issues. The common interest in moving towards sustainability and the need to increase
 levels of awareness and consensus in the application of shared responsibility underline  the impor-
 tance of this Forum.
        Citizens' groups representing environmental interests at  EC level,  e.g. the  European Envi-
 ronmental Bureau (EEB), World  Wide Fund  for Nature-EC office, Friends of the  Earth-EC coor-
 dination office  and Greenpeace's EC-Unit will be  invited  to sit on  the Consultative Forum and
 participate actively in it.
        The Consultative Forum, the Implementation Network and the Environment Policy Review
 Group  are meant to serve, in a  special way, the  promotion of a greater sense of responsibility
 among the principal  actors in the partenariat  (public authorities, public and private  enterprise, the
 general public),  and to ensure effective and transparent application of measures.

 2.5.3  Conclusion

       There is no citizens'  right to participate in  EC decision-making relating to environmental
 protection. However, it  is hoped that citizens' groups representing environmental  interests at EC
 level, will  participate actively in the Consultative Forum on  the environment, which is about to be
 set  up and  whose  task it will  be  to  advise  the Commission on the future  course of  EC
 environmental policy.

 2.6    The right of citizens  or citizens' groups to  initiate proceedings on environmental  matters
       before the European  Court of Justice

 2.6.1   Introduction

       According to  Article  173,  paragraph 2 of the Treaty, any natural or legal person  may
 institute proceedings  against an  act of the Commission or  the Council which is of direct  and
 individual  concern to him.  However,  according  to  the jurisprudence of  the European Court of
 Justice  (ECJ), and except in those cases in which a decision addressed to an individual  has been
 wrongly adopted in the form of a Regulation, Directives and Regulations are Community  legal
 instruments which do not affect persons directly or  individually, but only indirectly and collectively
 In principle therefore,  private  persons  cannot  institute  proceedings  against  Directives or
 Regulations. Moreover,  Article 173, paragraph 1, second sentence,  limits the right for natural or
 legal  persons  to initiate proceedings  to the  lack  of competence, infringement of  an  essential
procedural requirement, infringement of the Treaty or secondary Community law, or misuse of
power.  These limitations, together with  the  narrow interpretation by the Court  of "direct  and
individual" concern has  resulted in the  past in the dismissal of all actions brought by citizens on
the basis of Article 173 EEC. Citizens' groups are in no better position, since they are also not
"directly" affected by Directives or Regulations.(96)

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      According to Article 175 EEC, any natural or legal person may complain to the  European
Court of Justice that an institution of the Community has failed to address to that person  any act
other than a  Recommendation or an Opinion. However,  EC  Directives or Regulations are
addressed to the Member States or the general  public collectively, and  never  to citizens' groups
or citizens individually. Therefore they cannot - in practice - initiate proceedings for failure to act
either.(97)
      It can  be concluded, therefore, that  neither Article 173  EEC nor Article 175 EEC  provide
practicable grounds for  citizens or citizens' groups to institute proceedings on  environmental
matters before the European Court of Justice.(98)

2.6.2 Third party intervention on environmental issues

      According to Article  37,  paragraph  2 of  the Statutes  of the European Court of  Justice,
persons establishing "an interest" in the result of  any case submitted to the Court can intervene in
the case to support the submissions of one of the parties.  Further details are regulated by Article
93 of the Rules of Procedure of the ECJ.
      Until now, no third party intervention has taken place in an environmental case,  neither by
an individual  citizen nor by an environmental organisation, though a number of cases might have
been appropriate for such intervention. Therefore it is hard to say whether such a request would
stand a chance.(99)
      There are, however,  precedents in  the field  of consumer protection.  On June 1,  1984,
BEUC (100)  applied to the  Registrar  of the ECJ for leave to intervene in two cases brought by
Ford Motor Company  against the  Commission concerning the application of Articles 85,86  EEC
(rules on  competition), in order to support  the  submissions of the defendant. The Court, in its
decision of July 4, 1984  gave leave to BEUC to intervene in the proceedings, on the following
grounds:
          BEUC is a member  of the  EC's Consumers'  Consultative Committee established by
          Commission Decision 73/306 of September 25, 1973. In view of its objectives, BEUC is
          deemed to have a legitimate interest in intervening in these proceedings;
       •   The Commission,  as defendant, takes the view  that  BEUC  should be allowed  to
          intervene.

       Moreover,  in answer to earlier applications  by BEUC for leave  to  intervene in Joined
Cases 228 and 229/82 involving the same litigants (i.e. Ford v. the Commission), the Court had
granted leave to intervene by its Decisions of  September 21,  1982 (164446) and  of December 1,
 1982 (168845), on the grounds that BEUC had sufficient interest for it to be allowed  to interve-
 ne.(101)
       The European  Environmental Bureau (EEB)(102),  engages in similar activities as BEUC,
 but  in the field of nature conservation and environmental protection. In view of  the  similarities
 between the EEB and BEUC in their aims,  their  mode of operation and their links with the EEC, it
 seems  reasonable that in cases relating to nature conservation or environmental protection, the
 EEB should  be allowed  to appear before  the European Court of Justice on similar grounds  as
 BEUC.(102)
       The  European  Parliament, too,  has  declared to be in favour of  the  right  of  non-
 governmental organisations  (NGO's)  to  bring  cases before  the  European  Court of Justice.
 According to Parliament, consumers' associations  and  environmental organisations  should  be
 granted the right to freely pursue the achievement of their aims; therefore, they should be able to
 apply to  the  Court or to initiate  administrative  proceedings  whenever the collective  interest of
 consumers  or the environment is affected or in danger of being  affected. Parliament has asked
 the  Commission to submit proposals to this effect to the Council of Ministers.(103)

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 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             183


 2.6.3  Legal aid to citizens' groups for actions in the ECJ

       According to Article 76 of the Rules of Procedure of the European Court of Justice, any
 party who is wholly or in part unable to meet the costs of proceedings, may at any time apply for
 legal aid. The application for legal aid need not be made through a lawyer. The application must
 be accompanied by evidence of the applicant's  need of assistance, in particular by a document
 from the competent authority certifying the lack of financial means of the applicant.
       The  Chamber of the Court to which the  Rapporteur belongs has to decide, after conside-
 ring the  written  observations of the opposite  party and after hearing  the Advocate-General,
 whether legal aid  should be granted in full or in part, or whether it should be refused. Next, the
 Chamber will make an order, against which no appeal is possible.
       The  Chamber may, at any time, either on  its own initiative or on application, withdraw legal
 aid if the  circumstances which led to  its being granted alter during the proceedings.
 Where legal aid is granted, the cashier of the Court shall advance the funds necessary to meet
 the expenses.
       The  fore-mentioned Rules of Procedure of the European Court of Justice may prove of
 invaluable help to environmental organisations that wish to intervene as a party in a case before
 the  Court relating  to nature conservation  or environmental  protection,  but  lack the necessary
 financial resources to do so. Legal aid may be granted by the Court to European NGO's,  such as
 the EEB,  as well as to national NGO's.(104)

 2.6.4  Conclusion

       Although Article  173 EEC  and Article 175 EEC provide in principle a right for citizens or
 citizens' groups to initiate proceedings against an act of the  Commission  or the Council which is
 of direct  and individual concern to  them, in practice all actions brought by individuals on the
 grounds of  either  Article  173  EEC or Article 175  EEC have been dismissed by the European
 Court of Justice.
       Although environmental NGO's have never in the  past intervened as a  third party in a case
 before the European Court of Justice, precedents involving BEUC, make it more likely that such a
 request, made on  the basis of Article 37, paragraph 2 of the Statutes of the Court of Justice, will
 be accepted by the Court. Such action can be facilitated by applying for legal aid.


 3      FINAL CONCLUSIONS

       Within the Community,  there  is a  right for citizens and citizens' groups to send a written
 complaint to the  Commission, if a  Member State  adopts  measures  or practices contrary to
 Community  legislation in general, and Community environmental  legislation in  particular. This may
 lead to "infringement proceedings" by the Commission against the offending Member State,  which
 could eventually result in the situation that the offending Member State is taken to the European
 Court of Justice.
       There is also an EC citizens' right to petition the European Parliament.
       As from December 31,  1992,  there will be a right for  every  natural or legal person  at his
 request and without his having to prove an interest, to have  freedom of access to environmental
 information held by public authorities  in the Community. This right is neither limited to  EC citizens,
 nor geographically limited.
       Although, there  is currently no citizens' right to participate in EC decision-making  relating
to  nature conservation or environmental protection, the Commission  is  about to set  up a
Consultative  Forum on the environment, involving  representatives from  industry, trade-unions,
regional- and local authorities, as well as from consumer- and environmental organisations. The
Consultative  Forum will advise the Commission about  the  future  course of EC environmental
policy.(105)
      There is no citizens' right to have standing in the European Court of Justice, despite the
theoretical possibilities mentioned in  Articles 173 EEC and  175 EEC. However, there  is  a fair

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chance that environmental NGO's might be granted the right to  intervene as a third-party in a
case in the result of which they have an interest, considering the precedents involving BEUC.
      The overall  conclusion is, that citizens and citizens' groups can  play, and are in  effect
playing,  an important role  in the enforcement of  EC environmental  legislation, particularly in a
situation where there is  no  EC inspectorate on the  environment.


      REFERENCES

(1)    Ninth Annual  Report on Commission monitoring  of the  application  of Community  law
      (1991), COM (92) 136 final of 12 May 1992, pp.245-246.
      The Commission has published reports on  the monitoring of the application of Community
      law ever since 1984:
      -   First Annual  Report COM (84)  181 final, 20.4.1984;
      -   Second Annual Report COM (85) 149 final, 23.4.1985;
      -   Third  Annual Report COM (86) 204  final, 3.6.1986,  published  in OJ  No C 220,
          1.9.1986;
      -   Fourth  Annual Report COM  (87)  250  final, 24.8.1987, published in OJ  No C 338,
          16.12.1987;
      -   Fifth  Annual  Report  COM (88) 425  final,  13.9.1988, published  in  OJ  No C 310,
          5.12.1988;
      -   Sixth Annual Report COM (89) 411 final, 22.12.1989, published in OJ  No C 330,
          30.12.1989;
      -   Seventh Annual Report  COM (90) 288 final, 22.5.1990, published in  OJ No C 232,
          17.9.1990;
      -   Eight Annual Report COM (91) 231  final,  31.7.1991, published in OJ  No C 338,
          31.12.1991.

 (2)   The Eight Annual Report on Commission monitoring of the application of Community law
       (1990), COM (91) 231 final of 31.7.1991, concludes - inter alia - on page  305:
       "It must be noted that Community directives are seldom transposed in the national  law of
       the Member States within the period  they describe. The  situation is  made worse  by the
       fact that in  most Member States management of the environment law is considered to be
       an  adminstrative question and  that numerous circulars, administrative rules and other
       instruments obscure the transparency of this area of the law.(...)
       Cases of non-conformity of national provisions with Community environment measures are
       relatively numerous. (...)
       The most pressing problem concerns the practical  application  of environmental  provisions
       by the Member  States and the Commission's obligation to ensure that it happens".

 (3)    Council  Directive 76/160/EEC  of 8 December 1975 concerning the quality of bathing water
       (OJ L31 of 05.02.76, p.1).

 (4)    Council  Directive  91/692/EEC  of 23  December  1991  concerning  standardizing  and
       rationalizing reports on the implementation of certain Directives relating to the environment
       (OJ L377 of 31.12.91, p.48).

 (5)    On 15 September 1989, the Commission  sent a proposal to the  Council of Ministers and
       the European Parliament, for a Council Directive  on  civil liability for damage caused by
       waste, COM (89) 282 final - SYN 217 (OJ  C251 of 4.10.89).
       The Commission intends to present a Communication to the Council and Parliament on
       environmental liability, in the near future.

 (6)    The Commission  proposal for  a Fifth  Environment Action  Programme, "Towards  Sus-
       tainability", COM (92) 23 final  - VOL.II, of 27 March 1992,  states on this issue:

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       "Individuals and public interest groups should have practicable access to the courts  in
       order to  ensure that their legitimate interests  are protected  and that prescribed  envi-
       ronmental measures  are  effectively enforced and illegal practices  stopped" ("Towards
       Sustainability", pp.76-77).
       The  Commission  is  currently  preparing  a  proposal  for  a  Directive  harmonizing the
       conditions  for  standing  of citizens  and  citizens'  groups in  the  national  courts  on
       environmental issues. The Commission proposal will be  sent to  the Council and Parliament
       before the end of this year.

 (7)    EC legislation knows three legally binding instruments: the regulation, the directive and the
       decision.
       According to Article 189 EEC:
       A regulation shall have general application. It shall be  binding in its  entirety  and  directly
       applicable in all Member States.
       A directive shall be binding, as  to the result to be  achieved, upon each  Member State to
       which it is addressed, but shall  leave to the  national authorities the choice of form and
       methods.
       A decision shall be binding in its entirety upon  those to whom it  is addressed.
       Recommendations  and opinions shall have no  binding force.

 (8)    EC environmental  regulations are the exception, rather than the rule. They have mostly
       been used to implement international conventions within the Community (see for instance:
       Regulation 88/3322 on CFC's,  OJ  1988,  n°  L297, p.1;  Regulation  88/1734 concerning
       export  from and import into the Community of certain dangerous chemicals,  OJ 1988, n°
       L155,  p.2 and  Regulation 82/3626 on  the  implementation in the  Community  of the
       Convention on international trade in  endangered species of wild fauna and flora, OJ 1982,
       n° L384,  p.1), or in the case of the proposal  for a Regulation  on existing  chemicals (OJ
       1990, n° C276,  p.1) or in the case of the proposal for a  Regulation on the supervision and
       control of shipments of waste within, into and out of the European Community (OJ 1990
       n°C189, p.9).

 (9)    "Direct effect" of a  provision  of Community law  means that the  provision  is directly
       applicable in  Member States without the adoption  of any other national legislation  thus
       directly conferring to citizens rights which the national courts have a duty to protect.
       Regulations  have   "direct  effect"  according  to Article  189  EEC,  which  states  that
       Regulations are  directly applicable  in all Member  States. Directives  have "direct effect"
       only  in some cases arising from the case law of the EC's Court of  Justice. They  have
       "direct effect" only if:
       a)  The Member State's obligation is unconditional and sufficiently clear and precise;
       b)  The provisions  do  not  leave  any substantial  latitude or  discretion to the national
          authorities;
       c)  The provisions are capable of being enforced as  a rule  of law by the courts.

(10)    The Single European Act (1987) provided EC  environmental policy for the first time  in its
       history  since 1973 with a solid legal basis in its Title VII (Environment),  the Articles 130r-
       130t.  The  environment provisions in the Treaty have been reinforced by  the Treaty on
       European Union (Maastricht, 1992), notably by  its Articles B, 2, 3k and  130M30I (new).

(11)    Since the entry into force of the  Single European Act in  1987, the Commission made only
       use three times of  a Regulation,  i.e. in the case of the  proposal for a Regulation  on the
       establishment of the  European  Environment Agency  and  the  European  Environment
       Monitoring and Information Network  (OJ 1989, n° C217, p.7), in the case of the proposal
       for a  Regulation on  the supervision and control of shipments of waste  within, into and out
       of the European Community (OJ 1990, n° C189, p.9),  and regarding the proposal for a
       Regulation on existing chemicals (OJ 1990, n° C276, p.1). See also: note (8) supra

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(12)   See also:  Rolf  Wagenbauer, "European  Community's  prospects  for  enforcement  of
      Directives", in: Proceedings (Volumes I and II) of the International Enforcement Workshop
      (May 8-10,  1990; Utrecht, The Netherlands), p.180.

(13)   In its Report on  the  Proposal from the  Commission  for a  Council Regulation on the
      establishment  of  the  European  Environment Agency and  the European  Environment
      Monitoring  and  Information  Network (Document  A 3-0027/90  of 5  February 1990;
      rapporteur: Mrs.Beate Weber) the Committee on  the Environment, Public Health  and
      Consumer  Protection of the European Parliament tabled an amendment (No.18) to Article
      2 of the  draft-Regulation, suggesting the addi-tion of a monitoring and inspection task  to
      the proposed data-collection task of the Agency. The Commission and the Council rejected
      this  amendment,  with the  argument that  the enforcement  task  of the  Commission  is
      indivisible.  It cannot be delegated to  any other  institution,  be it within- or outside the
      Community framework. A compromise was finally found in Article 20 of Council Regulation
      (EEC)  No  1210/90  of 7  May 1990 on the  establishment of  the  European Environment
      Agency and the European environment  information and  observation network (OJ 1990,
      L120, p.1), which specifies - inter alia:
      "No later than two  years  after the entry  into force  of this Regulation, and after  having
      consulted  the European  Parliament,  the Council   shall, on the  same basis  as  this
      Regulation and on the basis of a report from the Commission with appropriate proposals,
      decide on further tasks for the Agency in particular in the following areas:
      - associating  in  the  monitoring  of the  implementation of Community  environmental
      legislation,  in  cooperation with  the Commission  and existing competent bodies in the
      Member  States; (...)".
      It has to  be noted, that the terminology has been very carefully chosen: "associating in the
      monitoring  of ... (etc.)", and not "monitoring of ...".

(14)   See for details about  the  role of citizens and citizens' groups in the enforcement of EC
      environmental legislation: Chapter II below.

(15)   E.g.: N.Haigh  with G.Bennett,  P.Kromarek  and  Th.Lavoux:  "European Community
      Environmental Policy  in Practice".  Vol I  Comparative Report: Water and Waste in  Four
      Countries  (A Study of the Implementation  of the  EEC  Directives  in  France,  Germany,
      Netherlands and United Kingdom), 1986, Graham and Trotman.

(16)   Article 189 EEC.

(17)   Statistics on complaints about infringements (C) and infringements  of EC  environmental
      legislation detected by the Commission's own inquiries (I):

                       Total
1985:
1986:
1987:
1988:
1989:
1990:
1991:
37
165
150
216
465
480
353
10
32
38
33
60
42
113
       (Source: Ninth Annual Report on Commission monitoring of the application of Community
       law (1991), COM(92)  136 final of 12 May 1992, p.120).

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(18)   See:  A.  Kallia Antoniou:  "Your Rights  under European  Community  Environment
      Legislation", (1987), booklet prepared for the European Environmental Bureau (EEB), p.11.

(19)   According to Article 170 EEC, a Member State which considers that another Member State
      has failed to fulfil an obligation under the Treaty, may bring the matter before the Court of
      Justice. However, it cannot directly go to the Court. First, it has to bring the matter before
      the Commission. Then, the Commission has to deliver a "reasoned opinion" after each of
      the States concerned  has been  given the  opportunity to submit its own case and  its
      observations on the other party's  case, both orally and  in writing. If the Commission has
      not delivered an opinion within three months of the date on which the  matter was brought
      before it,  the absence of such opinion shall not prevent the  matter from being brought
      before the Court of Justice.

(20)   Ludwig Kramer, "Le droit & I'environnement  et le droit communautaire", in: Proceedings of
      the International Conference Guaranteeing  the  Right to the Environment  (Lisbon,  4-6
      February 1988), Fundacao Calouste Gulben  kian, p.125.

(21)   "The Environmental Imperative", Declaration on the Environment by the European Council
      (Dublin, 25-26 June 1990), p.9.

(22)   The right of complaint to the Commission of the European Communities has been derived
      from the  founding treaty  of the  European   Economic  Community,  the Treaty  of Rome
      (1957), and the practice adopted in its application.

(23)   The right to petition the European  Parliament is derived from Chapter XIV (Petitions),  Rule
      128 of the Rules of Procedure of the European Parliament.

(24)   See: note (8) supra.

(25)   However,  the Commission proposal for  a Fifth  Environment Action Programme,  "Towards
      Sustainability", COM(92) 23 final -  VOL.II of 27 March 1992, proposes on page 76 that:
      "An accessible and efficient complaints  facility should be developed at local,  regional and
      national level to improve confidence between public, competent authorities and industrial
      or business establishments.  In this  context,  complaints should be  considered  less  a
      nuisance than  a resource. They are an indication to enforcement agencies of  something
      amiss  and can keep the competent authorities in touch with the realities of situations from
      which they may be geographically  remote or which they are not in  a position to monitor on
      a continuing basis".

(26)   A. Kallia-Antoniou: "The Rights of Citizens  and Non-Governmental  Organizations arising
      from  Community  Environmental   Legislation", overview  prepared  for the  European
      Environmental Bureau (EEB), June 1987, p.15.

(27)   Danish, Dutch, English, French, German, Greek, Italian, Portuguese and Spanish.

(28)   See: A.Kallia-Antoniou, note (26) supra,  p 16.

(29)   Council Directive 79/409/EEC of  2 April  1979  on  the conservation of  wild  birds,  as
      amended.

(30)   Minister of Agriculture, ministerial  order 161377/1247/1985, Govt.Gazette No.214 Part II,
      and earlier orders on the same subject. See  also: A.Kallia-Antoniou, note (26) supra, p.16.

(31)   E.g. the Royal Society for the Protection of Birds (RSPB) in the United Kingdom.

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(32)   See: section I.2.3 supra.

(33)   Article 171  EEC; see also section 1.2.4 supra.

(34)   See: note (1) supra, p.120.

(35)   See: note (1) supra, p.120.

(36)   During the European Year of the Environment  (1987-88), the  EEB launched quite  an
      extensive campaign among its member-organisations to make them aware of the problems
      of  implementation  an enforcement  of EC  environmental  legislation.  This campaign
      consisted - inter alia - of:
      the publication  and distribution of a booklet on the right of complaint, called  "Your rights
      under  EC environmental  legislation"  (in French and English); the publication of a more
      extensive paper  entitled:  "The  rights  of  citizens  and  non-governmental organizations
      arising from Community environmental legislation" (in French and English);  the preparation
      of  a  paper  on  "Enforcement  and  compliance  with  EC environmental  law" and  the
      organisation - with help from the Commission - of a conference on this theme in London;
      and,  last but not least,  the  organisation of an enforcement  campaign  in  the  Twelve
      Member  States concerning three environmental  Directives: the  Bathing Water Directive,
      the Birds Directive and the Seveso Directive.
      For each Directive, a manual was prepared in all nine official languages of the  Community,
      and selected non-governmental organisations (NGO's)  worked with this manual for about
      nine months  in order to get an idea  and an overview  of the problems of  implementation
      and enforcement of these three Directives in all Member States. All in  all  36 different
      NGO's were involved in this campaign in the twelve  EC  Member States.
      The results of the campaign were mixed, which is  no surprise as it was the first time for
      most  NGO's that  they got involved in  such a campaign. However, the campaign created a
      clear  awareness on the side of the NGO's about the serious problems of  implementation
      and enforcement  of EC environmental legislation  and about the role citizens and citizens'
      groups can play to improve the situation.

(37)   See: note (25) supra.

(38)   Petitions to the European Parliament  are governed  by Chapter XIV (Petitions), Rules 128-
      130, of the Rules of Procedure of the European Parliament. Rule 128 deals with "submis-
      sion and referral of petitions"; Rule 129 concerns "examination of petitions", and Rule 130
      regards "notice of petitions".

(39)   European Parliament, Rules of Procedure (5th edition), July 1989, p.91.

(40)   "Petitions shall be entered in  a register in  the order  in which they are  received if they
      comply with the conditions laid down  in paragraph 2 (name, occupation	etc.); those that
      do not shall  be filed without further  action, and the petitioner  shall  be  informed of the
      reasons therefor" (Rule 128, paragraph 3).

(41)   See: A.Kallia-Antoniou, note (26) supra, p.19.

(42)   Rule  128, paragraph 4.

(43)   Rule  129, paragraph 1.

(44)   Rule  129, paragraph 2.

(45)   Rule  129, paragraph 3.

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(46)   Rule 129, paragraph 4.

(47)   Rule 129, paragraph 5.

(48)   Rule 129, paragraph 6.

(49)   According to the summary minutes of the sitting of the European  Parliament on 3.1.1986,
      PE 102.901, PE 50, Appendix I; see: A.Kallia-Antoniou, note (26) supra, p.20.

(50)   See: A.Kallia-Antoniou, note (26) supra, p.21.

(51)   See: A.Kallia-Antoniou, note (26) supra, pp.21-22 for examples of this.

(52)   Rule 128, paragraph 4 of the Rules of Procedure of the European  Parliament, on the other
      hand, does not make this restriction. It only stipulates, that petitions have to "fall within the
      sphere of activities of the Communities" in order to be admissible.

(53)   Starting  from  the  premise,  that "everybody  should  know  the  law",  the European
      Commission's Directorate-General Environment, Nuclear Safety and Civil Protection has
      just published a collection of texts of all EC environmental legislation up to 1  September
      1991, in  seven volumes, in English. It is the intention to publish this collection of texts in all
      other official Community languages by the end of  1992 in order to facilitate access of EC
      citizens to the texts of EC environmental legislation.

(54)   OJ L158/56 of 23.6.90.

(55)   European Parliament,  document B2-736/85 of 16.07.1985.

(56)   See:  L.Kramer,  "La  Directive  90/313/CEE  sur I'acces  a  I'information  en  matiere
      d'environnement: genese  et perspectives d'application" dans: "L'economie  et le social
      dans le marche commun", p.866.

(57)   See:  Bram  van der  Lek, "Democracy  and  the  right to know",  in: Proceedings  of the
      International Conference Guaranteeing the Right to the Environment, (Lisbon, 4-6 Februa-
      ry, 1988), Fundagao Calouste Gulbenkian, p.173.

(58)   European Parliament, document A2-208/87 of  10.11.1987; see also: L.Kramer, note (56)
      supra, p.867.

(59)   European  Parliament, Resolution of  22.01.1988, OJ 1988,  n°  C49,  p.175; see also:
      L.Kramer, note (56) supra, p.867.

(60)   OJ 1987, n° C70/1, paragraph 2.6.2; see also: L.Kramer, note (56) supra, p.867.

(61)   OJ No C156 of 15.6.1987, p.138.

(62)   OJ C328/1 of 7.12.1987, p.4, item (u).

(63)   See: L.Kramer: note (56) supra, p.867.

(64)   It was the aftermath of the accident with the nuclear reactor in Tchernobyl,  and the public
      at  large  throughout Europe was  calling  for more openness regarding data on envi-
      ronmental pollution held by public authorities; see also: L.Kramer, note (56) supra, p.867.

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(65)   Originally, there was some  discussion within the Commission about a  "White  Paper"  on
      the issue, but this  idea was almost immediately discarded, as the Commission felt very
      strongly that the time for lengthy studies  and debate was  over, and the time to act was
      there.  Equally, the possibility of a Resolution was dismissed, as it is not a legally binding
      instrument.  The Commission feared, that  a Resolution would not change anything  in the
      actual  situation in the Member States. (See: L.Kramer: note  (56) supra, p.868.)
(66)   According to L.Kramer (see:  note  (56) supra, p.868),  the  Commission proposal  should
      have been  based on Article 100,  Article  100a or Article 235 EEC, when looking  at the
      objective and the contents of the proposal.

(67)   See for the preference of the Commission for  Directives in the environmental  field:
      paragraph 1.2.1 and notes (7) and (11) supra.

(68)   A Regulation would  have  been preferable  to  a Directive, as  it would  have had the
      advantage of being able  to guarantee  the same right  of freedom of access to environ-
      mental information  to all EC citizens,  in  a  uniform  way,  and  (contrary to  a Directive)
      directly applicable in all EC Member States. See in the same sense: L.Kramer, note (56)
      supra, p.868.

(69)   See: note (59) supra.

(70)   See: L.Kramer, note (56) supra, p.869.

(71)   L.Kramer, (note (56)  supra, p.869),  however, points out quite rightly, that very often EC
      environmental Directives put obligations on EC institutions  as well. The obligation on EC
      institutions that  occurs most often, is the  one requiring the Commission to  prepare and
      publish a report on the implementation of the  Directive.(See, for instance: Article 8 of
      Directive 90/313/EEC.)

(72)   Commission, COM  (88) final of 28  November 1988,  n°  1b; see also: L.Kramer, note (56)
      supra, p.869, note (20).

(73)   Article 3, paragraph 2 of Directive 90/313/EEC lists in an exhaustive way the  reasons  for
      refusal of a request for  environmental  information held by public authorities.  These rea-
      sons are, when the request affects:
          the confidentiality of the proceedings of public autho- rities, international relations and
          national defence,
      -   public security,
          matters  which are, or have been, sub judice, or  under enquiry (including disciplinary
          enquiries), or which are the subject of preliminary investigation procee- dings,
      -   commercial and industrial confidentiality, including intellectual property,
      -   the confidentiality of personal data and/or files,
      -   material supplied by a third party without that party being under a legal obligation to do
          so,
          material, the disclosure of which would make it  more  likely  that the environment to
          which such material related would be damaged.
      Information  held by public  authorities  shall  be supplied in part where it is  possible to
      separate out information  on  items concerning  the interests referred to above.

(74)   See: L.Kramer, note (56) supra, p.869.

(75)   See: L.Kramer, note (56) supra, p.871..

(76)   Article 1 refers to "information on the environment", while throughout Directive 90/313/EEC
      the notion "information relating to the environment" is used.

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 (77)   Article 2(a) of Directive 90/313/EEC.

 (78)   See: L.Kramer, note (56) supra, p.872.

 (79)   Article 2(b) of Directive 90/313/EEC.

 (80)   See: note (75) supra.

 (81)   See: LKramer, note (56) supra, p.872.

 (82)   See: note (73)  supra.  Article  3,  paragraph 3 adds two more formal reasons  to  the
       exhaustive list of reasons for refusal in Article  3, paragraph 2, i.e. where a request for
       information would  involve  the  supply of  unfinished documents  or  data or  internal
       communications,  or where the request is manifestly unreasonable  or formulated in  too
       general a manner.

(83)   Article 3, paragraph 4 of Directive 90/313/EEC.

(84)   Article 4 of Directive 90/313/EEC.

(85)   Article 5 of Directive 90/313/EEC.

(86)   Article 6 of Directive 90/313/EEC.

(87)   Article 7 of Directive 90/313/EEC.

(88)   Article 8 of Directive 90/313/EEC.
       As far as the Commission is concerned, it has committed itself  to publish a "State of the
       Environment in the European Community-report  once every three years. The latest report
       in  this series  (COM (92)  23 final  - VOL.III  of  27 March  1992) was presented  by the
       Commission to the  Council and Parliament earlier this year.  Moreover  EUROSTAT  the
      Community's office of statistics, is regularly publishing statistics on the environment
      The Community has also taken other initiatives to improve the gathering and dessimination
      of information relating to the environment. To this  end, the Council adopted on 7 May 1990
      Regulation  (EEC)  No 1210/90 on the establishment of the European Environment Agency
      and the  European environment information and observation network (OJ 1990  L120/1  of
      11^5.1990). The object of the European Environment Agency (EEA) and the'monitoring
      and information network associated with  it, is to  provide both  the Community and the
      Member States with objective, reliable and comparable information at European level on
      the basis of research and  comparative studies  to enable them  to  take the necessary
      measures to protect the environment, as well  as  to assess the results of such measures
      and to ensure that the public is properly  informed about the state of the environment The
      monitoring and information network will involve as  participants:
      •  a  national focal point nominated by each Member State;
      •   elements from various national information  networks; and
      •   institutions which will be charged with cooperating with the Agency in specific topics  of
         particular mte rest - these will be centres of excellence and are often referred to  as the
         thematic centres".
      The European Environment Agency will be  open also to countries outside the Community
      which  share the objectives of the Community and its Member  States in relation  to the
                 '   L6ady'  ^  haS  been  a  very  enc°uraging  display  of  interest in
                 on the part of a number of  EFTA and Eastern and  Central European coun-

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(89)   As a matter of fact, the Task Force European Environment Agency is currently preparing a
      state  of the  environment report regarding  the "greater Europe", i.e. including  the
      environment of Central and  Eastern  European countries,  as part of  the  follow-up  of the
      Dobris process.

(90)   L.Kramer:  "Participation of environmental organisations in the activities  of  the  EC", in:
      "Participation Rights in European Perspective", Fuhr/Roller  (Ed.), 1991, p.74.

(91)   "Towards  Sustainability", A  European  Community Programme  of Policy and  Action  in
      relation to  the Environment and Sustainable Development, COM (92) 23 final - VOL.II  of
      27 March 1992.

(92)   "Subsidiarity" derives  from Article 3b of the  Treaty on European Union (Maastricht,  1992),
      which states:
      "The  Community shall act within the limits of the powers  conferred upon it by this  Treaty
      and of the objectives assigned to it therein.
       In areas which  do not fall  within its exclusive  competence, the Community shall  take
      action, in  accordance with  the principle of  subsidiarity,  only  if  and in so far  as  the
      objectives of the proposed action cannot be  sufficiently achieved by the Member States
       and can therefore, by reason  of the scale or effects of the proposed  action, be better
       achieved by the Community.
       Any  action by the Community shall not go beyond  what is necessary to achieve the
       objectives of this Treaty".

 (93)   See: note  (91) supra, p.75.

 (94)   The Implementation Network comprises representatives of relevant national authorities and
       of the Commission in the field of practical  implementation of Community measures; it will
       be aimed  primarily at exchange of information and experience and at the development of
       common approaches at practical level, under the supervision of the Commission.

 (95)   The  Environment Policy Review Group comprises representatives of  the Commission and
       the Member  States at Director-General  level, and will be established to develop mutual
       understanding and exchange of views on environmental policies and measures.

 (96)   See: L.Kramer, note  (90) supra, p.77.

 (97)   See also: L.Kramer, note (90) supra, p.77.

 (98)   See also: L.Kramer,  note (90) supra, p.77.

 (99)   See: LKramer, note (90) supra, p.77.

 (100)  BEUC: "Bureau Europeen des Unions des  Consommateurs", was established in  1962.  It is
        a European  non-profit organisation  representing some twenty consumers' associations in
        the  EC Member States. Membership of BEUC is restricted to associations whose sole aim
        is to protect the interests of consumers  and  which are independent of governments, trade
        and industry. BEUC represents the  interests of about  320 million consumers. Its objectives
        are  to  contribute to the proper observance  of consumer legislation  and to "hear and be
        heard" by the EC institutions.

  (101)  See: A.Kallia-Antoniou, note (26) supra,  p.26.

  (102)  The European  Environmental Bureau  (EEB)  was  established in  1974. The  EEB is a
        European non-profit organisation, regrouping at the  EC  level  more  than  120  non-

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      governmental organisations working in the field of nature conservation and environmental
      protection from the  twelve Member States of the  Community, as well as from most EFTA
      countries. It thus represents about 30 million European citizens.

(103) Committee on Legal Affairs and Citizens'  Rights,  draft report on the award of damages to
      consumers, introduced  by Mrs.Boot,  Part II, Statement of Grounds,  Appendix II, draft
      resolution tabled  by Mrs.Dury, PE 104 304/B,  20.3.86.  See also: A.Kallia-Antoniou, note
      (26) supra, p.27, note 44.

(104) See: A.Kallia-Antoniou, note (26) supra, pp.28-29.

(105) The creation by the Commission of the Consultative Forum, in order to implement the Fifth
      Environment Action Programme "Towards Sustainability", is completely in line with Chapter
      27 (Strengthening the role of non-governmental  organisations:  partners for development)
      of Agenda 21, adopted last June in Rio de Janeiro, by about 160 countries in the world, as
      well as the European  Community. Paragraph 27.5 of Agenda 21  reads as follows:
       "Society, Governments and international bodies should develop  mechanisms to allow non-
      governmental  organisations to play their partnership role responsibly and  effectively in the
       process of environmentally sound and sustainable development".

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                                                                               Annex 1



          COMPLAINT TO THE COMMISSION OF THE EUROPEAN COMMUNITIES

                        against failure to comply with Community law




 Name of complainant: *


 Nationality:


 Address or registered office:


 Field of activity:


 Member State, organization or firm which has not complied with Community law:


 Alleged infringement and loss incurred (if any):
Approaches or representations made to national or Community authorities:

- Administrative action:


- Legal action (if any):


Documents and evidence substantiating the complaint:
  The complainant may, if he wishes, remain anonymous. But the author  of an  anonymous
complaint will not enjoy the procedural advantages or follow-up described overleaf.

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                             (Note to appear on back of form)
Under the Treaties the Commission of the European Communities is responsible for ensuring that
the provisions of the  Treaties themselves and the other measures  taken  by  the  Community
institutions are correctly applied.
Any person may file a complaint with the Commission in respect of a practice or measure which
he or she considers to be in breach of a provision of Community law.
The  complaint may be filed by means of this form. It may be addressed  direct  to Brussels
(Commission of the European Communities, rue de  la Loi 200, B-1049 Bruxelles), or be lodged
with one of the Commission's Information Offices.
The complainant enjoys the following procedural advantages:


-  an acknowledgement of receipt will be sent immediately upon receipt of the complaint;


-  the complainant will be kept informed of action taken, and particularly of representations made
   to the national autho- rities and business firms concerned;


-  the  complainant  will  be  informed  of any infringement proceedings  commenced  by the
   Commission against  a Member  State and  of any proceedings against a business firm. The
   complainant  will  also be informed of any  proceedings that may  already  have  been
   commenced if they have a bearing on the subject of the complaint.

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ROLE OF THE RUSSIAN PUBLIC IN ENVIRONMENTAL ENFORCEMENT

MIKHAIL M. BRINCHUK

Director Center for Environmental Legal Studies, Russian Academy of Sciences, Znamenka 10,
119841 Moskou, CIS
      The role and potentialities of the public in the enforcement of the environmental legislation
in  Russia depend on different factors. Interests of citizens and public organizations in  providing
environmental protection, completeness of legal regulation of ecological rights of citizens,  real
possibilities for their realization are  the main such factors.
      The choice of interests and directions of public activity is predetermined by the influence of
social and political conditions of life in the country. Thus, on  the second half of the 80th,  in the
conditioned of openness and perestroika of public relations there was a remarkable  increase of
peoples'  activity in Russia in solution of environmental protection  problems.  At this period many
new ecological  nongovernmental  organizations have appeared along with the existing  public
nature protection structures. Then,  and at present, in the course of worthening conditions of life,
rising of  costs,  activity of the people was more directed towards  the solution of other  problems
(food, housing,  making their livelihood, etc.). The  change of priorities  has occurred in  Russia in
spite of the wide realizing the seriousness of ecological situation in the country.
      Then,  it is significant for Russia  that for  a long time the law demonstrated indifferent
relation  towards  a  man, his rights  and  interests.  A  person, in spite of the wide political
declarations  during  decades,  remained  rightsless.   In  the  conditions  of  the administrative-
command system a man couldn't  have  an influence on public processes in any sphere of life,
including environmental protection. More  than  70  years  priority of public relations over personal
and factually state of a person of possessing no civil reigned in the country.
      The environmental legislation itself was and still remains insufficiently developed and didn't
meet public ecological  requirements.  Before enforcing the legislation it should be created.  But in
Russia till and now there  is no a number of fundamental  environmental  laws - such as on
ecological expertise, on nuclear safety, on toxic substances control,  on  waste disposal, on
agrochemicals,  etc.
      A number of draft laws is being prepared in Russia now, prepared taking into account the
experience of foreign environmental legislation, but still not adopted by the Parliament.
      As for today  a new Law on protection of the natural environment (december 1991),  Land
Code (april 1991), Law on mineral resources (march  1992) are approved in  Russia. Positions of
these laws,  especially  positions  of the  comprehensive  Law  on protection  of  the natural
environment enable us to speak about changing the state policy concerning ecological rights and
interests of the  people.
      Priority of protection  of  life  and  health of  a man,  creation  of favourable  ecological
conditions for life, labour and recreation for the population are declared by the Law as one  of the
main  principle of the environmental protection (art.3).  The law establishes a number of rights and
authorities of  citizens  and  public organizations  in  the  field of  environmental  protection  and
enforcement of environmental legislation,  as well as guarantees for their realization. In particular,
it establishes the right  of citizens to protection of  health from unfavourable  impact of the natural
environment (art.11).
      For increasing the role and  potentialities of the public in enforcement of the environmental
legislation the following authorities of citizens  and public ecological organizations are  the  most
significant:
          to  organize  and  take part in meetings,  pickets,  demonstrations,  referendums on
          environmental  protection issues,  to address  letters, petitions, make  complaints  and
          statements and demand  their consideration;
      -   to demand rendering in  proper time, complete and reliable information on state  of the
          natural environment and measures for its protection from the appropriate bodies:

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          to recommend  their  representatives for participation in  the  state  environmental
          expertise  on  the  issues  of location  and  drafting of objects and to  make  public
          environmental expertise;
          to demand  a disaffirmation of decisions on  location, construction and exploitation
          ecologically not sound  objects, limitation and stoppage of their activities;
          to demand to make the state environmental expertise, appear in mass media with their
          ecological platform;
       -   to bring up a question for making guilty officials answerable, bring a suit in the court for
          compensation  of damage to health and property  of  a citizen caused  by ecological
          offence (art. 12,13).
       One  cannot say that public activities in enforcement of the environmental legislation in the
previous decade  was  efficient.  But  some results  are very  significant.  In particular,  public
succeeded  in preventing  realization of a  number  of ecologically harmful projects, for  example
projects concerning northern  rivers' flow change, construction of channels  Volga - Chogray, Volga
-  Don. Due  to the public actions it became possible to prevent location and construction of some
industrial enterprises in highly polluted  areas as well.
       We  can hope that one the base of the modern environmental legislation public  activities
towards  its enforcement  will be more sufficient.  That in  particular will be  promoted due  to
guarantees  for realization of  ecological rights of citizens and  public organizations proclaimed by
the state.  Sovjets of  peoples'  deputies,  their  executive bodies,  state  bodies in the field  of
environmental protection,  their  officials are obliged to render every kind  of assistance  to public
organizations and citizens in  realization of their ecological rights  and obligations, take necessary
measures for implementation of their proposals and demands  concerning the organization  of
nature protection activities.
       According to the Law nobody can  prevent  the people  to realise  his lawful  rights. When
officials  and  citizens  prevent  realization of ecological  rights  and  obligations  by  public
organizations and citizens, they are to be answerable.
       To increase efficiency of public activities for enforcement of the environmental protection
legislation it is very  important to provide  wide ecological education of the population.  It is also
essential that the people should know  the legislation itself. For today not  only the Russian public
has a very  low level of knowledge of the legislation  but officials of state bodies and enterprises as
well.
       Thus, some legal conditions have been created lately in Russia to  increase the public role
in the environmental legislation enforcement. But still the public is far from using  all its  potential
possibilities  in this field.  On  the  other hand the state bodies  are not ready to perform all their
functions to fulfil all the demands  of public.

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NEW  ECOLOGICAL  LEGISLATION  OF  RUSSIA - IMPORTANT  STAGE  OF NATIONAL
ENVIRONMENTAL SAFETY ENFORCEMENT AND IN DEVELOPMENT OF THE RIGHT OF AN
INDIVIDUAL FOR FAVORABLE NATURAL ENVIRONMENT.

RUSLAN BOGOLEPOV

Professor, Zhitnaya 16, Moscow, Russia, CIS

      According to the new Russian ecological legislation the right of  an individual for favorable
natural environment, which is closely connected with the  national ecological safety situation, is
materialized in specific legal norms being the right of an individual for health protection against
negative  environmental effects. This right should  be  considered as one  of  the most important
indications of the quality of human  life,  as a measure  of the democracy of the  contemporary
society.
      It is well known that in the former USSR the importance of environmental enforcement was
often  underestimated.  Unfortunately  the  government  and  public  opinion had not  payed proper
attention  to  ecological  problems,  and  as  a  result of that  shortsighted  policy the national
environmental situation  was  constantly  deteriorating and sometimes we had  to face serious
ecological disasters in some  regions (Chernobyl,  the Aral and Caspian Seas,  the Volga  river,
etc.).  The right of an individual for favorable natural environment was not reliably ensured by the
State  and the Law.
      After the victory of democratic forces and the restoration of the Russian State last year we
can say that the situation is rapidly improving.
      Last November the Russian Parliament approved the Declaration of Rights and  Freedom
of an individual and a Citizen, Article  25 of which foresees the governmental  support of  'every
activities  having  as   its  objective environmental  enforcement  and  care  for  human health'.
Ecological rights and duties of the Russian citizens are also  regulated by  Art. 67/6 and Art. 67/7
of the Constitution of the Russian Federation.
      We hope that the national ecological safety will be considerably strengthened  due  to the
'Act on  Environmental Enforcement', which was adopted by the  Parliament  last December This
important document is unprecedented historical innovation and practical significance.
The Act directly mentions that every citizen  has  the  right on health protection  against negative
environmental influences due to economic or other activities, accidents  and various disasters.
For the  first time the legislation determines specific ways and procedures to ensure this right. We
can  pick  out three main spheres where  the  citizens  would  be able to implement this legal
possibility:
          right to use the natural environment favorable for normal life;
      -   right  to demand from the government, business  circles and other  citizens  strict
          fulfilment of their ecological responsibilities;
      -   right  to use  all  legal means of state  and public  protection whenever this right  is
          violated.
       It seems very important that the proper text of the Act gives state guarantees of ecological
rights of the citizens and their public organizations.
      With the  progress of  market  economy  principals  in Russia the problems of ecological
safety of  an  individual and the society in general  should be directly connected with the tasks  of
creating  an effective economic mechanism of environmental enforcement.  The above mentioned
Act also  regulates such important  matters  as  ecological examinations,  ecological  monitoring,
ecological emergency  situations,  etc.
       Of course it will  take  some more time  to  make these legal standards to  come into full
force, i.e. to  become  an every day legal practice. This process can be accelerated thanks to the
consistency of the legislative, executive and judicial representatives in  their fight for the priority of
ecological values above any economic,  political  benefits, due to active social  positioning  of all
groups of the population.

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      The future Federal Ecological Code, which is under elaboration now, will contribute greatly
to further  national environmental enforcement.  Being approved by the  Parliament,  the Code will
give a set of important legal institutions necessary to ensure national ecological safety.
      Nowadays the solution  of serious environmental problems goes  beyond  the  national
borders  and needs  an active international cooperation.  In this regard I  would like to wish the
conference every success and express my confidence that the Russian  lawyers and ecologists
are ready  to cooperate fruitfully with their foreign colleagues.

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      SUMMARY OF THEME DISCUSSIONS



THEME 1:       CONTEXT FOR ENVIRONMENT

Reporter:       Frank Uijting


1     Goals

      Introduction of a general framework for designing effective environmental compliance and
enforcement approaches and alternative approaches within that framework. It  also provided a
context for enforcement within the European Community and within Central and Eastern Europe.


2     Presentations

      Ms.  Wasserman, Chief, Compliance  Policy and Planning of Enforcement,  U.S.  E.P.A.,
presented a general  framework for compliance and  enforcement, "Principles  of Environmental
Enforcement" as a  basis  for international  exchange. There  is an  increasing  recognition  that
enforcement is a crucial element  in achieving the goals that are stated in environmental policies
and  requirements. With  the  "Principles  of Environmental  Enforcement"  a  general framework is
given which gives a  bases for individual states to built up their own enforcement program. It
provides definitions,  a general framework, a  set of principles and a range  of options to facilitate
the development and implementation of environmental enforcement programs  and compliance
strategies in different international settings. The "Principles" should not be  seen as  a  model, but
are a point of departure from which an  individual  state can build and improve their own unique
enforcement program. A course, based on the "Principles" has been developed to assist states by
improving their  environmental  programs. The course has now been delivered in Poland and
Hungary and is planned for delivery  in Turkey, the Ukraine and Mexico. The  response  of the
participants has been very positive.

       Mr. R. Macrory, Denton Hall Professor of Environmental Law, Imperial College, London,
discussed the issue of "Membership of the EEC: What it Means for Environmental Requirements
and  Enforcement." Developing EEC law is a very complex process, it is not a top-down system.
Community legislation is supreme over national law.  Yet  it is clear that  the implementation  in
member states is far  from being perfect. He  stated that one of the difficulties associated with the
implementation  and  enforcement of  Community  environmental  law is the  differing structural
character of  much   of  the  legislation  that has  been  agreed. The  CEC is responsible  for
enforcement.  They should not only look  at the formal stage (the implementation  of EEC law), but
also to  the practical implementation (enforcement of environmental legislation).  There should be
Community  environmental  inspectors  to  enforce  the  member  states. Another  interesting

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development would be the setup of a complaint system for citizens, so they can bypass their own
government.
      Furthermore he concluded that  it requires a political will  by all Member States to ensure
that Community policies are implemented within their countries.

      Mr.  L. Kramer, Commission  of the  European Communities,  DG Environment, Nuclear
Safety and  Civil  Protection,  discussed  "The Implementation  of Environmental  Laws  by the
European  Economic Communities". He stated that the EEC should not be compared with a state
or a  international institution. Enforcement should be issued in the context of the national states.
The EEC has some very progressive Member States, but also less progressive ones. That makes
implementation difficult. EEC law is a bases for enforcement. The sovereign states do decide by
themselves. He stated   that there  should  be  more  priority   for  non-compliance  and  non-
enforcement.  Therefore   more  information  is  needed.   To provide  more  information,  new
Community laws will be developed on publishing, auditing and information. Another point is that if
there  is no compliance in existence, this should be discussed. Furthermore, if projects are carried
out (e.g. economic), they must comply with the environmental legislation. Finally it should be clear
that the environment is  not a property of the administration. Citizens must be brought into the
process of developing environmental policy and enforcement.

      Ms.  P.  Kromarek  (ELF Aquitaine)  attributes "The  Upgrading  of  Environmental  Laws in
France as  Part of the Requirements by the EEC". EEC-legislation  has an  important effect on
national regulations. Ms. Kromarek highlights some problems that occur with the implementation
of EEC-directives. When an EEC directive regulates an issue which is not regulated internally by
a  Member State, the relevant regulations must  be created. A problem arises when  Member
States already  have relevant legislation.  It  is more  difficult to change  existing  legislation. In
France there are several examples of  such problems. One main problem is the interpretation of
some elements in the EEC directives. The French meaning of some words is not always the
same as  defined by the  EEC. Sometimes  words are  mentioned  in  directives  but are left
undefined,  e.g.  "best available technologies". All these problems of interpretation are difficult to
solve, especially with  12 states having different  legal, technical and economic practices. This
problem should be tackled during the drafting  of legislation.
It must be stressed that  enforcement of EEC  environmental law  is not just a matter of formalities
and procedures. It goes beyond strict standards,  it  is a  way to protect the environment as a
common interest, and has come to be integrated with protecting individual rights.

      Mr. W.  Beblo, Director Ecological Department, presented "Environmental Enforcement in
Central and Eastern Europe in Transition",  especially in  Hungary,  Poland and CSFR.  In the
communistic period  some very strict laws  were  developed. The purpose of these laws was to
show the Western Countries that they  protected the environment, but  there was no  enforcement.
After the  democracy revival in all Central and Eastern European countries environmental issues
became one of the most important political  issues. The policy-makers  where forced  to make new
environmental  legislation. The way of  rebuilding  the legislation  is different in  each  country. It is
done  by  a creating  a general  framework (CSFR)  or by  synthesizing a  general  system from
detailed laws  (Hungary, Poland).  Environmental  policy  in the Central  and Eastern  Europe
countries require modern laws derived from their national constitutions.

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      Mr. G. Bandi, Scientific Director, Copernicus Environmental Law  Program of the Danube
Region,  presented "Environmental Enforcement in  Hungary - Today and Tomorrow" and what is
needed to improve the current situation. He stated that enforcement is far from being satisfactory.
He  discussed some items to which attention should be  paid. First of all there is  a lack of
environmental policy in  Hungary. A great burden for enforcement is that new laws are developed,
without knowing how to use  them.  Secondly,  at the moment privatization happens a lot.  One
should know  how to deal with responsibilities, the  price for pollution and what kind of  standards
should be used. Thirdly, a new philosophy is needed. A key element is cooperation instead of as
one sided approach. In the fourth  place, more public pressure is needed. An important condition
to public participation is access to information. This is  still missing in general legal rules.  Fifthly,
all participants involved in  environmental issues should have environmental ethics. Finally, where
do we have to begin?
      We should be aware that there is not much difference  between states, so cooperation is
very important.  He made a link with the  presentation of ms. Kromarek,  it is easier to create new
legislation instead of reviewing old laws. This gives Hungary a good opportunity.

      Ms. E. Kruzikova, Executive Director, Institute of Environmental Policy, Prague,  presented
some factors which are influencing "The Current Status of Environmental  Enforcement in the
CSFR". One  factor is the environmental legislation  and its quality. All acts in the CSFR are brand
new. The fact that the regulations where prepared in a big hurry, they where constructed because
of the future membership of  the EEC and  that there was  a lack of environmental policy some
disadvantages  appeared.  Environmental enforcement is  not so easy because professional  skills
are not sufficient and it is hard to express  what environmental damage is. Furthermore it is too
ambitious and  non-realistic.  On the other  hand  the  advantages are that  we  could  take  into
account  new trends in  economic,  social and political life. It also allowed us to make an effort to
incorporate as much as possible EEC environmental requirements. One success is that the CSFR
is the first country in  Central and  Eastern Europe  that approved this  year an amendment on
environmental audits for privatization.
       Another aspect  is public participation. This  aspect is also important like law making. It is
not easy to involve the public into environmental decision-making. Environmental protection is not
a priority for citizens today. NGO's are not well organized and not always willing to cooperate with
each other.  However, new  NGO's  are  being  created  and  will  hopefully  play  a  role in
environmental policy.
 3     Open discussion

       Mr. Philippi,  Brazil, has  a question  about the behaviour of large  industries  regarding
 environmental concerns towards the EEC. Are industries  anticipating environmental measures in
 order  to be  the "first"  companies  to  achieve environmental  requirements  of  the EEC ?
 Furthermore, are these industries using this for marketing?
       Mr. Kramer,  EEC, thinks  that big companies  see a competitive  advantage in applying
 measures, but it differs from company to company. They use this for their  marketing. Mr. Macrory
 adds to  this that companies realize that the major changes  are taking place at EEC level. That's
 where they have to got to look to.

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       According  to  Ms. Wasserman,  USA-EPA,  in  the  USA companies  are  using  their
environmental record for promotion.

       Furthermore  Mr. Phiiippi, Brazil, is interested in the  role of NGO's in the evaluation step of
the Environmental Management Cycle.
       Ms. Wasserman,  EPA,  points  out  that the citizens are  involved  by having access  to
information  and  through  the  legislation  passed  by  Congress  citizens  are   involved  in
implementation and enforcement of environmental  law. Besides this, EPA supports citizens by
helping them dealing with the problems they are facing,  e.g. giving information, giving support for
taking  legal steps by citizens.
Citizens do  also have an "ear  and eye function" that is important for  enforcement. So citizens
have an important role in  the evaluation step.

       Mr. J. Plaut,  USA, thinks that the issue of enforcement is just one part of a larger general
plan. This comes at the end of the plan, not at the beginning. We need to understand this as a
group.
       Ms. Wasserman,  USA-EPA, states that the definition of enforcement includes both those
things  necessary to encourage and compel compliance. We do recognize that to get compliance
you need both. One  could think that  enforcement  might  wait while  compliance is encouraged.
This might  be true  only for  the period  between  when  requirements  are   established  and
compliance is required. While balance is always needed,  you need to start enforcement actions
as soon as possible when compliance is required or you  will send the wrong message.

       Ms. Maslarova  from Bulgaria wants to know if there  is a possibility that her country can get
support in the process of developing environmental regulation and policy.
       Mr. L. Kramer, EEC,  points out that the EEC is not able to  protect the environment  of
member states if there is not a will to protect the environment. If  there  is no request from a
association state, and they have not ranked environmental aspects  high in priorities,  it will not
come into that.
       Environmental issues play a growing role but not a  priority role. It is one of the aspects  of
the EEC. So if the country itself does not protect the environment, do not expect that the EEC will
do this.
       According to  Mr. R. Macrory, UK, there is a difficulty with developing environmental policy
and regulations. One has  to deal with agreements that are made in EFTA context.
Ms. Wasserman, US  EPA, is impressed  by the  contrast that was described between trade and
environment in Europe. In the  USA there is an integration of trade and environment.

       Mr. R. Macrory, UK, brings up  a question about privatization  in relation  to enforcement.
State enterprises in Eastern  Europe raise peculiar problems for enforcement, because the laws
may apply to them, but there are other tensions  like economic goals. He  is wondering how the
Central and  Eastern  European countries  feel  about  the possibility  that privatization  offers
improved opportunities for enforcement?
       Ms. Kruzikova  states  that there are large enterprises  in the  state  property. There is no
substantial change  in approach to environmental enforcement. They still feel that the  government
is responsible for them and they suppose they even will be excluded from new legislation. This
situation might slightly  change after privatization. Some measures are taken  to stimulate them.

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        Mr.  Bandi,  Hungary,  points  out  that  privatization  solves nothing  for  this moment
  Privatization is a massive process,  but not so  massive to  change the situation as has  been
  mentioned before. There is also the  situation of introducing a market economy and on the  other
  hand dealing with enforcement. Developing a market economy has priority.

        Mr. Nagy,  Hungary, notes that when you are starting with enforcement, one  thing is not
  included, namely how to enforce authorities to enforce the law.
        Mr. Bandi,  Hungary,  explains  the situation  in Hungary.  There  are 6  political parties in
  Hungary.  None of them has developed environmental policy.  So there  is a long way to go  One
  should have first of all a policy and then there is a basis  for enforcement. We should get rid of the
  current standards that were set up  in the  80's by  the  communist government. They cannot be
  applied and enforcement is not realistic.

        Ms. Kruzikova, CSFR, points out that in the  CSFR there are  also a lot of political parties
  They do have an environmental program, but these  programs  are all the same  It look like a duty
  to have it  in their program. In the  CSFR  politicians are not interested  in enforcement  That's
  because of the splitting between Czecho and Slovakia. It might become an item again  next year.

        According to  Mr.  Beblo, Poland, there are ways to enforce governments. First of all there
 is parliament that controls the government. Secondly, the media do have power to enforce the
 authorities to a certain extend.

        Mr. Syryczinski from Poland is  asking what the influence is of  advisors, the Worldbank, the
 EEC and consultants on the implementation of environmental policy.
        Ms.  Kruzfkova, CSFR,  thinks this depends   on  what  kind of ministry is  involved  Ms
 Kruzikova  worked with  two  consultants from  the  USA on  environmental matters  concerninq
 privatization. It worked excellent.
       Mr.  Beblo, Poland, also has good experience  with  support from the EEC or the Worldbank
 Our problem is that we don't have the knowledge or  the experience and  the skills how the handle
 implementation/enforcement.
       Mr.  Bandi, Hungary, thinks there is a positive influence of the Worldbank support They
 want an environmental assessment for the project that are carried out. The World Bank also gives
 loans for industry. There are only a few requests. The reason for this is that they should meet
 some standards.

       Ms.  Duncan,  Canada, is wondering  how the  Central and Eastern Europe  countries  are
 dealing with costs for cleaning up during privatization  projects.
       Mr. Bandi, Hungary,  points out that it depends on the legislation. The costs for cleaning up
 are for the privatizers. There are no requirements taken up in the law. There is also no fund This
problem has to be solved somehow.
       Ms.  Kruzikova, CSFR,  explains that her country has no regulation about cleaning up  but
 here ,s a resolution  about  how to deal with cleaning up sites. There are two  relevant points in
this resolution. The first one is, who is liable: new purchasers  are liable  for old enterprises The
second  point is, who will pay: the purchaser will clean up the site, and afterwards he receives

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       Ms. Bowman, USA, notes that public participation is mentioned as a very important part of
environmental enforcement and  that privatization is  a fundamental place where changes in
environmental issues are going to happen. But, what is the practical role of the public ?
Ms. Kruzfkova, CSFR, thinks that the public can play a role. She explains that information about
risk assessment and environmental audits should be  published,  so  that  citizens know what the
situation is.  Besides that they also should be informed about what measures a company should
take to comply.

       Mr. S. Madonna, USA, is wondering if there has been any thought about how to deal with
environmental audits in such way that they will not turn against the company.
       According to  Mr.  Beblo,  Poland, audits  are  primary  for getting  the  permits  needed.
Environmental auditing in Eastern Europe is just in a beginning stage.

       Ms.  Popescu,  Romania,  is  curious  about  how  to  deal with   standardization  and
harmonization with the EEC law  during the process of development of environmental legislation,
policy and enforcement. Mr. Syryczynski, Poland, states that it would be very useful  to make in
future one European directive on environmental policy. Everybody speaks another language and
 everybody speaks about environmental rules.
       Mr. Bandi, Hungary, states that all the actions taken are in line with the EEC legislation. It
 is  difficult  to  meet the  requirements  of  the EEC  at  this  moment.  There  should also be
 harmonization between Central and East European states, but that would take a long time.
 4      Conclusions

        There is a long way to go for the Central and East European countries. One should have
 first of all  an environmental policy and then there is a basis for enforcement. Because CEE
 countries  lack knowledge,  experience and the skills  how  to  handle implementation  and
 enforcement,  support (from f.e.  the  World Bank,  the  EEC  and  environmental  agencies or
 ministries of western countries) can have a positive influence.

        Privatization  doesn't offer improved opportunities for enforcement at this moment, because
 enforcement hasn't  got priority. On the one hand one has to deal with the introduction of a market
 economy and on the other hand one has to deal with enforcement.
 The  public  can  play  a role.  However  they  should  be  informed  about risk  assessment,
  environmental audits and what measures a company should take.

        Ways to enforce  against  the government are first of  all the parliament  that controls the
  government. Secondly, the media do have the power to enforce the authorities to a certain  extent.

        In the future it would be very useful to make one European directive  on environmental
  policy. Also harmonization between CEE countries will be useful.

        Mr.  Kesselaar closes the discussion session with the conclusion that  we do  speak the
  same language, regarding to enforcement. Now it is a question of how to bring this in practise.

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THEME 2:    DESIGNING ENFORCEABLE ENVIRONMENTAL REQUIREMENTS

Reporter:    Marcia E. Mulkey


1     Goals

      Enforceable requirements form the building block for all enforcement. Without success in
making  laws,  regulations and permits enforceable, we cannot have compliance and enforcement
success regardless of what structures, personnel, skills, legal  tools, or resources we bring to the
task.


2     Presentations

      The lead paper for this theme, presented by Mr. Fulton, Deputy Assistant Administrator in
the Office of Enforcement of the United States and authored jointly by Mr. Fulton and Mr. Gilberg,
identifies and discusses seven criteria for developing  enforceable environmental regulations and
permits. These seven criteria represent the first set of lessons learned from this theme and are
summarized here as numbered lessons.

       Lesson #1. Enforceable requirements must be  understandable. Understandability is
       developed through use of clear definitions, simplicity, and avoidance of ambiguity.

       Lesson #2. Enforceable requirements  must precisely  define the coverage  of the
       requirement. This  includes  precise  delineation  of  the regulated  industry,  the
       regulated activities,  and the  regulated substances; The specific pollution  sources
       and process as well as the specific  actors, such as owners or operators, should be
       described. Put  simply, the requirement should answer the question "to whom  and to
       what activities do requirements apply?".

       Lesson #3. Enforceable requirements must establish  a clear standard of conduct.
       Clear  standards include both measurable, non-subjective standards and precise,
       narrowly drawn exemptions or exceptions (with the burden  of proving qualification
       for exemption placed on those who claim it).

       Lesson #4. Compliance must be easily measured or determined.  The standards
       should include precise statements of how compliance is to be measured (including
       appropriate test methods). Compliance measurement/demonstrations by both  the
       regulated industry and by the enforcing government should be addressed.

       Lesson  #5.  Requirements  should  include  clear  deadlines for compliance.  The
       requirements should include  a date certain for compliance, not contingent on any

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208                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
      event  or,  if  contingent, with  a  clearly  specified,  unambiguous  contingency.
      Enforceable interim deadlines are also recommended.

      Lesson #6.  Enforcement is enhanced by self-monitoring, mandatory recordkeepinq
      and reporting. Frequent monitoring  intervals, specified periods for record  retention
      and defined  content for records  and reports are important as are separate and
      significant sanctions for false or nonreporting.

      Lesson #7. Proper adoption  procedures  assure that the requirements become and remain
      effective.

      Following this lead paper, and  the  lessons it presented, additional major papers were
presented by panelists  and from other key participants in the conference. Each of these papers
and their principal lessons  are identified below.

      Ms. Victor,  Head of the Environmental Law and  Economics Section of the Swedish
Environmental Protection Agency presented a paper authored by  Mr. Sverndal entitled "Swedish
System  of Integrated Permitting -  Whether it Enhances Compliance and Enforceability".  This
paper described the Swedish  system of multimedia, integrated permits, where  both permitting
authorities  and enforcement/permit  supervision authorities focus  on permits  in  an  integrated,
cross-media manner. Permits  are designed to  detail the covered  activities and the conditions
applied to those activities. The Swedish experience provided lesson #8 for this theme.

      Lesson #8.  When  a single permit governs  all  the  activities at  a  facility,  the
      enforcement  authorities  can much  more  easily  conduct  multimedia,  integrated
      enforcement.

      Mr. Angst, State  Secretary of the Saxon Ministry for Environment and Physical Planning,
Germany  presented his paper on "Environmental Protection and  Environmental  Policy in  East
Germany  - Example: Saxony." This paper explains that  environmental problems in Saxony are
unusually  severe, involving near-dead rivers,  extremely  hazardous air quality  and  major waste
problems, including nuclear waste. In Saxony, recent dramatic governmental change  (the  reversal
of German division)  presented the  opportunity to choose  a new environmental structure. The
result in the state of Saxony is  an interdisciplinary, multimedia ministry with enforcement authority
assigned to counties and  towns, with  specialized  state-wide agencies for technical  support and
oversight.  The Saxony experience offered a further lesson for this theme.

      Lesson #9.  When a new structure chooses  an  integrated,  multimedia approach,
      such structure also enhances enforcement.

      Mr. de Vries, Regional Inspector for the  Environment in the province of North-Brabant, the
Netherlands presented  his  paper "A Clear Approach Gives Full Compliance"  which details the
Dutch experience with efforts to improve both licensing and enforcement. This two-pronged effort
has included a major attempt to conclude the licensing process for a large backlog of unpermitted
facilities. This effort has focused on  developing adequate requirements and moving toward stricter
provisions. Funding and personnel  were  targeted toward  this effort. On  a parallel track, the

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Netherlands enforcement authorities  have targeted  specific  industries,  revealing a  number  of
permit  terms  "of low quality", such as  failure to  define types of waste  covered by the permit.
Based  on this combination of permitting  and enforcement, this  theme derives its lesson #10.

       Lesson #10. Completion of permitting and quality of permitting are key elements for
       a successful enforcement program. Major enforcement efforts can  reveal  problems
       with permits and with the clarity of requirements.

       As  part  of this  theme, Ms. van der Meer, project leader  Environmental Crime  of the
National Criminal of  National Criminal  Intelligence Service of the  Netherlands offered  an oral
presentation on the nature  and role of the  police in the Netherlands  enforcement system. This
very interesting  presentation illustrated that the  police presence  throughout  the society and
around the clock brings valuable assets to environmental enforcement, and that  difficulties in use
of the  police can be addressed through training and coordination with  "expert"  environmental
agencies.  In the context of the enforceability theme,  the conference learned that the police have
found  it  difficult  to  work with  complex legislation  and  with  the ambiguities often found  in
environmental requirements.  As a result,  this presentation  provided a  further lesson  for this
theme.

       Lesson #11. Police involvement  in environmental enforcement can be  made much
       more  effective where requirements  are more  easily understandable and easily
       identified.

       Mr.  Smith, a private  attorney based in Belgium  working closely with the EEC on both US
and EEC  laws  presented his paper on "Designing Enforceable Environmental Requirements for
the  European Economic Community  (EEC)."  This  paper addressed both the design  of EEC
directives  for purposes of subsequent implementation by member states  and  the design of EEC
directives  and  member-state laws as they relate  to  regulated activities  and industries. The
problem areas identified in this paper  included the following:

       (1)  The use  of  general and  conceptual  language  has  created implementation
       problems;

       (2)  The  dominance  of  policy  and  technical considerations  and  the   limited
       involvement of  lawyers  has resulted in less  attention to  precision  of  language,
       inclusion of recordkeeping and reporting, and the like; and

       (3) The absence of strong public and non-governmental organization involvement in
       requirement development and accountability  for implementation  has  affected  the
       nature of the EEC requirements.

       Based on this analysis of EEC experience, a specific lesson emerged.

       Lesson #12. Design problems of EEC directives have slowed and even  prevented
       effective   implementation  in   member   states  and application  to  regulated

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210                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       communities.  Attention  to  specificity,  language,  and  enforceability  could  be
       enhanced through more use of lawyers' skills and improved public involvement.
3      Open Discussion

       Following the presentations by panelists,  this theme provoked a broad dialogue among
participants, including  representatives from  Denmark, the United  Kingdom, the EEC, France,
Spain, the  Netherlands and the United States. Specific points amplified and refined the lessons
developed by the panelists, adding a richness of texture to the theme. Several examples of these
additions to the lessons are described here.

       Lesson #1.  Understandability of Requirements. Simplification  of requirements  may
       result  in  harsher, less  equitable standards  than  more  complex provisions  may
       permit.  There  are also trade-offs  between  greater  precision  (lesson  #2)  and
       simplicity: sometimes precision adds complexity.

       Lesson #3. Clear,  measurable Standards of Conduct. Although numerical standards
       are  preferred for  enforceability, there was  recognition that work practice  -  type
       standards  may  be  the  only approach  available  or  the  best  approach  in  the
       circumstances.

       Lesson #6. Value of self-monitoring, mandatory recordkeeping, and reporting.
       There  was  recognition  that  requirements  for self-monitoring, recordkeeping, and
       reporting  may  impose  significant burdens  on regulated  parties,  particulary  small
       businesses.  On  the  other  hand, participants with experience  implementing  such
       requirements reported less than expected burdens and  the possibility of imposing less
       burden  on small businesses.  In addition, the additional value to the public of monitoring
       and  reporting was emphasized.

       Lesson #10.  Completion of Permitting Activities. Participants were interested in the
       use of "interim status" for facilities awaiting permitting.

       The  key advantage to this kind of  process is its ability to identify and define membership in
the regulated community. The  primary disadvantage  may be the relief  of pressure to  complete
permitting,  and the resulting loss of the enforcement advantage  that comes from well-written,
enforceable permits.
4     Conclusions

      In sum, the full development of the theme of enforceability of environmental requirements
early in  the conference served to  establish a foundation for the discussion  of other enforcement
issues.  Inspection capacity (theme  #3) and  legal  authorities  (theme #4)  depend  for  their
effectiveness  on  the   existence  of  clear,  enforceable  requirements.  Similarly,  economic
development  (theme  #5)  proceeds  best in the  context  of clear  requirements  and public

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participation in  enforcement  (theme  #7)  and  is  particularly  sensitive  to  the  clarity  and
enforceability of the requirements. Therefore, the  contributors to the enforceability theme helped
assure the value of all aspects of the conference.
       Introduction to Theme #3 and Theme #4

       Mr. W. Eichbaum, Vice President, International Environmental Quality of the World Wildlife
Fund talked "About  Alternative Organizational  Structures  for a  Compliance and Enforcement
Program." He discussed the problem of organizing  government institutions to carry out effective
enforcement and compliance  programs. The  ideas  are  meant  to suggest  broad  answers  to
several organizational questions as  the  problem of organizing for enforcement is  considered
within the context of particular governance systems. Environmental management agencies need
to have the responsibility to integrate the various media in their jurisdiction.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             213
THEME #3:   DEVELOPING AN EFFECTIVE COMPLIANCE MONITORING CAPABILITY (E.G.
             INSPECTION CAPABILITY)

Reporter:    Marlies ten Hove
1     Goals

      An exploration of different  organizational  approaches  and strategies for  enforcement
generally and in particular for monitoring compliance, focusing on inspection capabilities, including
whether and how to  develop an  Inspectorate and  whether to inspect on  a  single or multimedia
approach.
2      Presentations

       Ms. M.E. Bierman,  Regional  Inspector of  South Holland spoke  about "Developing  an
Effective Compliance Monitoring Capability in the Netherlands".
       She discussed the advantages and disadvantages of multi media enforcement. There is a
need for an integrated approach. Never the less the multi media approach can be difficult when
you  have to deal with a lot of acts  and, regional and provincial rules based on those acts like in
the  Netherlands. The complexity of large  industries touching on a multitude of environmental
issues is another stumbling bloc.
       She  emphasized  the  merits  of  having  an  overall  policy plan  such as  the  National
Environmental Policy Plan, so  that the  priorities  for enforcement are clear  for the industries.
Further it is important that the national objectives are broken down to activities on the local level.
The  building of networks forms a broader base  for enforcement.  In  the Netherlands network
building benefits from the magazine about enforcement called "Handhaving".

       Ms. J. Aloisi de Larderel, Director Industry and  Environment Programme Activity Centre
from the UNEP presented her paper:  "Integrated Licensing,  Implementing and  Compliance
Monitoring."
       She stressed the need for an integrated approach because it encourages for example at-
source, cleaner production measures and  it avoids  bureaucracy  and  confusion for a company
because of different officials inspecting the same plant.
       Secondly a  permitting scheme  should  be  based on  environmental impact and  risk
assessment studies. Clear priorities should be set. Lack of resources  often forces  authorities to
set  priorities based on  clear criteria.  For example on  the base of the site  of  an industry
(environmentally sensitive) or the chemicals that are used.
       As Ms. Aloisi de Larderel argued: the focus should be on the industrial process itself and
the - not so experienced - officers should be trained to monitor specific industries and "specialise"
at that whole industry. The task of  an inspector goes far beyond inspection. An inspector should
not  only  monitor compliance but  also  inform and  advise industries.  Subsequently he should
secure compliance and inform the public. The inspector should be independent (also from political

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influence).  In the end  she discussed the monitoring of compliance. It is  better to have lower
standards which can be complied with than tough standards that can't be complied with.

       Ms. G.  Rodland,  Head  of Department, State Pollution Control  Authority  spoke about
"Compliance  Monitoring in  Norway".  Because  it is not  necessary to  inspect industries with the
same frequency in  Norway a classification  is used. The classification is based  on the potential
emissions from the  enterprise, their toxicity  and also the environmental sensitivity (air and water
quality) of the surroundings are taken into account. Industries with a high priority (control class 1
enterprises) are inspected with a higher frequency than the industries with a low priority  (class 4).
Norway uses a system in which the polluter pays for monitoring visits and  environmental audits.
The inspectorate in  Norway uses a price-list  with standard fees for this purpose.

       Mr.  C.G.  Wills,  Deputy Director of  the  National  Enforcement  Investigations Center
presented his paper: "USA  Experience and  Differences between Civil  and Criminal Investigations
and Use of Central Elite Force to Supplement Local inspectors.".
       The multi-media approach  has been  strongly emphasized  by training. In the USA special
training institutes have been set up. A centralized investigative  team has been founded which can
provide the personnel and resources  for quick responses and detailed case preparation activities.
Such  a team would be useful not only to Regional inspectors but to all  levels  of environmental
enforcement.

       Mr.  I.  Handyside,  Head of  East Division in  Her  Majesty's  Inspectorate of  Pollution
discussed the "UK Experience in Establishing an Inspectorate for Integrated  Pollution Regulation".
The inspectorate uses teams which are made up of "professionals" each with their own specialist
background and experience. The team is responsible for a geographical region. Each member will
have the same basic training but will continue to develop his specialism.
       Training  in the UK  consists  of classroom training in combination with training  on the job.
The public should be taken  along and as much information as possible should be made available.

       Mr.  J. Jendroska  spoke about  "Compliance Monitoring in Poland  :  Current status  and
development. At this moment the  Polish Inspectorate is badly equipped,  badly trained  and does
not have enough staff. To further improve monitoring compliance this situation should be changed
significantly. Lack of funding for inspections need not to be a  problem in monitoring compliance.
In Poland a company pays for inspections when it results in finding non-compliance.

       Because one of  the Panelists'  presentations had been cancelled, there was an opportunity
for the following people to speak for a few minutes:

       Mr. R. Glaser gave a real example how to help a country start up an  Inspectorate.

       Mr.  M.  Kotaska presented a summary of the  paper  which  has  been  printed in the
Proceedings  volume I as an additional paper:  "The Enforcement of the Environmental Policy  in
the Field of the  Montreal Protocol in the CSFR".

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             215
      Ms. M. van der Voet discussed the benefit from information campaigns to enforcement of
environmental laws. The paper has been printed in  the Proceedings volume I  as an  additional
paper.
3     Open Discussion

      Mr. Kramer,  EEC  wondered  why the Norwegian  Inspection only used inspectors  since
1984/1985, while the inspection system was already started up in the beginning of the eighties.
Ms. Rodland explained that they have  gone through a process  from  using others to do the
inspections to doing the inspections themselves. The  Norwegian Inspection had inspectors before
too. Apart from the inspection these  people did the licensing  and gave permits. Later consultants
did the work, and after that they had  their own inspectors.

      Mr. Adegoroye, Nigeria wondered how it is  possible that industrialists accept the fact that
the Norwegian government charges industries for doing inspections and audits (the polluter pays).
Ms. Rodland: Industry pays for the job the government does, otherwise  they would pay for it by
the taxes. The  big  companies (class 1-3) do not complain, only  the small ones do  (class 4).
Because the industries pay for  the inspections  and  audits the government is forced  to give
quality. The  government had success with their audits.
      Ms. Aloisi  de Larderel  added that  yearly fees, based on  the number of employees  is
another possibility, and audits they have to pay for themselves.
      Mr.  Wills  points   out that the  EPA  doesn't charge  industries  for doing  inspections.
Sometimes through  negotiated settlements or court orders the government is reimbursed for the
costs of major investigations. The funds  go to the General Treasury  and not to the EPA.
      Mr. Adegoroye notes that in  Nigeria the agency is set up like the US EPA. One regional
EPA charged industrialists.  The national  EPA didn't agree because the paying can be seen as a
sort of license to pollute.

      Mr. Popescu, Romania  had a question concerning the characteristics of an enforcement
program to act rapidly.
      Mr. Eichbaum  noted that the reason why  the need to act rapidly  was mentioned was
because governments tend to  be not  very  swift. Swiftness of action  is enhanced by careful
planning, training and enough resources.

      Mr. Popescu, Romania wondered how many industries are only allowed - by law - to work
on the base  of a permit, while only 50 % of the industries work on the base of a permit.
      Ms. Bierman answered that some of the facilities may work on the basis of a notification.
Holland is dealing with a historical  backlog. Non-compliance  is not as a rule  solved by  penal
actions  or administrative  fines  etc. Holland tends  to  have a more  soft approach and  convinces
industries to comply with the laws by a system of "push and pull" up to a certain point.

      Mr. Popescu, Romania likes to know what would be a proper guide to countries with less
experience  to  train their  inspectors.  Inspectors  should have credibility.  In  some  countries
inspectors are maybe  even not allowed  to enter enterprises.  Also the inspectors are not very well
trained.

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       Mr. Handyside points out that Inspectors should have credibility in connection with:
          Industry: inspectors should  be technically competent and understand the problems  of
          industry;
       -   public: the  public has  to know that inspectors do their job fairly and firmly. Inspectors
          have to be  sensitive to public needs and concerns.
4      Conclusions

       The integrated multi media approach  is the best option to use. Practical difficulties should
be solved by using either/or:
       -   team approach: combination of single-media specialists;
          support by central "elite"-team of regional officers;
          officers specialised in specific industries;
          extensive training or coaching.

       Informing the public is  a factor of  importance. Greater involvement of citizens  results in
necessary  monitoring  by  democratic  means of  authorities  responsible  for  permitting  and
enforcement.
       The public needs tools to  enable it  to play a  "watchdog" role. We  must raise  public
awareness by reporting systematically about  the results of monitoring and enforcement activities.
       Inspectors must be accountable and act with integrity.
       There is a long way to  go:  it  is impossible to "leap  from the floor to  the ceiling in one
jump". However,  much progress has been made.  This is  true  as much  for the performing
standards of industry as for the development of high  quality inspection capabilities. The  most
important thing is to get started and  to learn with experience.

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 THEME #4:   DEVELOPING AUTHORITIES AND LEGAL ENFORCEMENT CAPABILITIES TO
              RESPOND TO VIOLATIONS

 Reporter:    Ann E. DeLong
 1     Goals

       An exploration of different authorities and approaches to legal enforcement within different
 legal settings and what  is necessary to employ and develop those authorities effectively.


 2      Presentations

       Ms.  V.  O'Meara,  Assistant   Attorney  General  Designate,  Department  of  Justice,
 Environment and  Natural Resources Division (USA)  spoke about "Developing Authorities and
 Legal Enforcement Capabilities". She emphasized the importance of having both strong laws and
 an effective enforcement  system in  order to  achieve  compliance, deter violators  and address
 environmental damage.  The authorities of the different U.S. environmental statutes and a range of
 enforcement tools, including  administrative, civil judicial  and criminal sanctions,  are  used  to
 achieve  compliance.  Civil  judicial authorities  are used to  sue for damages  and to provide
 injunctive relief.  Penalties are calculated based on the seriousness of the violation,  the length  of
 the violation, the economic benefit received by the company and other factors. In the last ten
 years, criminal sanctions  have  begun to be  used for  environmental crimes  in the US. Both
 individuals and corporations can  be prosecuted for environmental crimes when actual knowledge,
 inferred knowledge or wilful ignorance  can be  established. The Responsible  Corporate  Doctrine
 has allowed Chief Executive Officers to be prosecuted for crimes committed by others within their
 company, however, this  is an area of heavy debate within the  US.

      Mr. S. Fulop, Environmental Public  Prosecutor, Chief Public Prosecutor's Office (Hungary)
 presented his paper: "The Public  Prosecutor's Office of  Hungary and its  Development".
 He described the current legal authorities for the environment available in Hungary. Civil judicial
 and criminal authorities  did not exist and the current administrative authorities are contradictory
 Penalties  calculated  under the  current schedule are  too low to have  a deterrent effect. An
environmental public prosecutor was appointed  and civil and criminal law policies were authorized
against polluters. An initial water pollution survey was performed to assess the appropriateness of
violations for civil or criminal prosecution.

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218                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       Mr. L. Paddock, Minnesota Assistant Attorney General (USA) discussed the "Developing of
Effective Enforcement Programs at  the  State  Level".  He  offered suggestions for  addressing
environmental  violations  within the constraints of limited resources.  Expanding the  range  of
enforcement  responses  available  to  governments,  emphasizing  deterrence,  focusing  on
coordination among federal, regional  and local  levels  of government, using enforcement revenue
to fund enforcement  programs, promoting voluntary  compliance  and increasing the number of
regulators  responsible for  enforcement are six suggestions  he offered as low-cost ways  to
enhance an existing enforcement program for greater environmental results.

       Dr.  M.  Putz,  Ministerium  fur Umwelt,  Raumordnung  und Landwirtschaft des Landes
Nordrhein-Westfalen (Germany) described a "System to Supervise  Environmental Duties and to
Pursue Infringements Taking  Clean  Air Management as Example". He discussed the Federal
Emission Control Act which  is designed to protect  humans, plants, animals  and  waters from
environmental  harm.  The Act contains  requirements for industries, allows  authorities to  enter,
inspect,  sample and  review  records, permits  the government to close down  or dismantle  an
operation  and  provides  for  punishment  of  wilful  or  negligent  acts, including administrative
penalties of up  to 100,000 DM.

       Mr. P.  Dordregter,  Director,  Vereniging Nederlandse  Gemeenten  (Netherlands)  spoke
about Environmental Enforcement by  Municipalities in  the  Netherlands.  He  emphasized the
important role municipalities play in the  enforcement  of state and local environmental ordinances
in  the  Netherlands.  He  cited several  important   reasons  to  involve the  municipalities  in
environmental enforcement efforts including that environmental violations have a greater impact of
the municipalities in which they occur, it is more practical to enforce at a local level, and that the
 municipality can play an important role  in coordinating  the enforcement efforts  of other levels of
 government. Mr. Dordregter also pointed out the need to integrate environmental concerns with
 town  planning  and  zoning plans.  Municipalities may  have more leeway  to be flexible and
 innovative in their enforcement responses.
 3      Open Discussion

        Several  participants raised questions  about the expense,  both  in  terms of time and
 resources, that environmental lawsuits require. Ms. O'Meara responded that most environmental
 lawsuits in the United States are settled outside of the  courts, through mediation, negotiation and
 arbitration.  This discussion continued with particular reference to the  United States'  hazardous
 waste  law, also known as Superfund. In addition it  was noted that  greatest use is made of
 administrative authorities  which  are  less costly  and  can in  many  cases be  as  effective  if
 coordinated with a civil judicial program.

        Further detail was  requested  of Mr. Dordregter and Mr. Paddock concerning the role of
 municipalities and States in enforcement  actions. Several ideas for cooperative efforts, including
 addressing  enforcement  issues  on  a  regional  level and  using   particularly  good  municipal
 programs as examples for other municipalities were suggested.

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      A discussion  ensued about  the  most  effective  type of enforcement authorities  for
environmental violations and all of the panelists agreed that an integrated approach utilizing civil,
criminal and administrative actions  is the most  effective,  with an  emphasis  on administrative
actions due to their increased speed  and lower costs.

      NGO's requested that they be included more in the process.
4     Conclusions

      Both  strong  environmental laws  and a strong enforcement  program are necessary  to
achieve compliance and environmental benefits.

      Having  a  range of authorities  (administrative,  civil judicial  and  criminal)  available  is
necessary to address the range of environmental violations.

      Penalties and sanctions must be commensurate with the violation but also must be strong
enough  to have a deterrent effect. The importance of administrative sanctions was emphasized.

      Promoting  voluntary compliance  helps  industry comply with the  law  and reduces the
amount  of resources the government must spend on enforcement.

      All levels of government, federal,  regional and  local  must cooperate to effectively enforce
against  the regulated community and to avoid duplication of  effort.

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  THEME #5:  ECONOMIC DEVELOPMENT AND OWNERSHIP ISSUES

  Reporter:    Dr. Gyula Band!


  1      Goals

        This topic covers among others the approaches of enforcing requirements at government
  owned and operated  installations,  the  approaches to enforcement  when  facing  economic
  hardships and also the questions of how to address compliance issues in a privatization situation
  Some  especially important and difficult environmental enforcement problems of the Central and
  Eastern  European  countries  were  selected  for presentation and discussion   Among these
  problems probably the most comprehensive is the  question of how to  harmonize environmental
  protection with economic development in  a sustainable way in a situation where the economic
  structure  itself is constantly changing and the ownership situation also has not yet been clarified
 The same problems also arise in market economies and developing countries but in both cases
 in  a  bit different way: everywhere, the  basic support for a better enforcement  situation is the
 harmonization of environmental  and economic interests into one coherent and unified structure.


 2      Presentations

        M. Vassilopoulos, working as  the Permanent Representation of  Greece to the  European
 Communities spoke about "Environmental  Enforcement in Greece". He began his presentation
 with a  reference to one ancient legislative  piece  of Greece in  the year 845 B C  underlying the
 importance  of the polluter pay principle: The  main reason for environmental problems is  the
 contradiction of  environmental  policy on the one side and socio-economic policy on  the other
 side.  The two  should  be balanced  with  a set of  institutions  that  anticipate  and facilitate
 compliance.  Among others, designing environmental requirements which take into  account socio-
 economic factors to facilitate  enforcement, use of  economic incentives and market measures can
 be  used effectively to give priority to environmental requirements.

       Mr. P. Cuillerier,  The  Director of   the Office of Enforcement, Environment  Canada
 discussed the "Enforcement of Canadian  Laws of  Environmental Protection as Applied to Federal
 Facilities". He focused on the necessity to apply environmental enforcement programs to federal
 and government facilities in Canada. The  compliance  with  environmental regulations is always
 and everywhere  mandatory with an emphasis  on prevention.  According to  the speaker sound
 environmental management involves the prevention of violations before they occur the  reportina
 of violations  and last but not  least the reducing  of the harm and correcting any damage caused
 by violations. In  the  last  years,  he  underlined,  the Government of Canada  is serious in going
Qr 66(1.
green.

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222                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       Dr. A. Homonnay, Director of ENVIMARK Ltd.  Hungary presented his paper: "Enforcing
the Law  at  Government Owned  or Operated  Facilities". He expressed  his view  that the
environmental legislation  in  Hungary  is  more  or  less  acceptable,  but  enforcement  is not
satisfactory.  One  of  the present  problems  is the  necessity  of  an  appropriate  economic
environment, which imposes a number of questions, among others the quantity of state property,
the privatization  movement, the conflicting interests of  different economic sectors, the  conflicting
interests of economic development  or  unemployment and environmental protection,  the  very
vague specifications  of  state - community - and  individual  responsibilities  in  environmental
protection.

       Mr. B.M.  Diamond, the Director of the Office of Waste Programs Enforcement,  U.S. EPA,
discussed the "U.S. Environmental  Protection  Agency's Integrated Management Compliance  by
the Federal Government". He spoke  about the enforcement problems concerning the activities of
federal agencies and their relationship with the EPA.  Among  others the EPA  may  comment  on
the budget submissions of other agencies if the budget is for  environmental purposes, comment
on major actions taken by agencies in environmental  issues.  When these agencies fail to  meet
the environmental  requirements or affect the  environmental interests,  states  and  citizens may
bring enforcement action against them.

       Mr. C. J. Goetz, Enforcement Division Administrator of the Allegheny County Bureau of Air
 Pollution Control spoke about "Enforcing Air Pollution Control  Laws in Economically  Depressed
 Areas/ Circumstances. He presented a case study of enforcement in an  economically depressed
 area, concerning  a heavy polluting industry of the steel industry. The most effective  solution in
 that  field proved to be to use the  method of making enforcement agreements with industry on
 issues like research studies, designing  and testing new technologies  and ways of improving  the
 pollution  control   techniques,  setting  up  inexpensive   interim  control  measures,  stressing
 environmental reports etc. All these measures led to a phased approach in solving environmental
 pollution problems, where the local NGO's did play an  important role as a partner.

        Mr. Braams,  a  lawyer  representing the Ministry of  Housing,  Physical  Planning and
 Environment, The  Netherlands  talked  about "Civil  Enforcement: Paying  for  the   Past".  He
 presented the issues of civil enforcement, as  an answer how  to  make polluters pay for the past
 damages and the need to clean up soil contamination. Here  the soil pollution  focus has a large
 impact  on groundwater  quality.  The  essence of  government policy  reflects  the  polluter pays
 principle, meaning a cost-recovery policy in  cases where government action is necessary for
 clean up The  first case is dated back to 1983 and  since then  more and  more cases are filed
 against the polluters on the  basis of an  Interim Act on Soil Clean-Up.  The possible next stage of
 legal development would end up in strict liability.

         Dr. P. Syryczynski, State  Inspectorate of Environmental Protection, Poland discussed "The
  Ecological Semaphores" for Fourteen  Paths  of Ownership Changes  in Poland. He  analyzed in
  detail the different types of  ownership change. The major difficulty of this kind of change  is that
  not  all  the traditional enforcement tools can be applied in the process  of economic transition. The
  ownership changes  may occur in fourteen different ways and therefore the obstacles begin  with
  the   point of how to  identify the  present economic entity.  There  are a  number  of possible
  enforcement tools in the case of privatization, like charges and taxation, administrative interaction,

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environmental auditing, compliance schedules and some indirect methods, which may have the
form of economic measures.

      Mr. J. Plaut, the Director of  the Worldwide  Environmental  Programs,  Allied  Signal Inc.,
pointed  out "The  Importance of Ownership or Control and  Local Decision Making in the
Identification and Solution of Environmental Concerns". As an answer to the previous presentation
he emphasized  the importance of ownership or control, identifying environmental concerns when
addressing changes  in  the  case of privatization,  some  companies of  the  Central  and  East
European (CEE) countries can be improved in terms of compliance but some are not improvable
from environmental point of view. In making business decisions on an ownership change it is  in
the interest of the buyer to assess environmental and health problems. This kind of auditing can
also serve  as  an incentive  for  existing  companies to  improve  environmental  management.
Another type of incentive is  to  set aside a fund from the purchase prices of companies  for
environmental  purposes. When formulating a view  of further compliance, the EEC  standards
represent the most reliable model.

      Dr.  S. Wajda, an expert from  Poland  spoke about  "Privatization  and Environmental
Compliance in Poland". He presented his views upon the importance of environmental auditing in
a situation where no  one has  a clear picture on the  environmental situation. Although compliance
with the  environmental requirements, like  auditing,  would be essential,  less  has been done  in
respect  to ensuring  environmental  priorities  are met.  Beyond auditing, the presentation did
mention the problems of cleaning up contaminated areas, where the setting up of a  fund from a
part of the purchase price may serve as a source of  financing.

      Dr. I. Mandoki, representing the State  Property Agency as an officer in charge,  discussed
the "Environmental Problems in the Hungarian  Privatization".  He  underlined the importance  of
connecting  the  privatization  process  with  compliance  with  environmental  requirements.  In
Hungary, where 40 % of state property is under privatization process,  this issue represents a
special sphere  of  interests from  environmental  point of view.  Environmental auditing is not a
requirement today, but sometimes the foreign investor requires it. Under the privatization process
there is  a good  chance  to  give preferences to environmentally friendly technologies. In the
present legislative process at least auditing  and the liability issues should be regulated, the
sooner the better.
3      Open discussion

       The great number of presentations and the long discussion in theme #5 do not allow a full
recounting of all the remarks and discussion points in detail. Summarized below are those ideas
and views which also represent a kind  of  majority  opinion.  The main  topics covered  by  the
Conference discussion were:
       -   enforcement in the case of state facilities;
          ownership  changes  in  general  and the  opportunities they  present  for  enhanced
          compliance;
       -   privatization as a major means of ownership changes;
       -   enforcement in economically depressed areas;

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224                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       -   civil enforcement of past contamination;
          methodology of treating with businesses.

       The basic idea of enforcement in the case of state owned facilities is  that environmental
laws are obligatory for everybody, so for government and agencies also. In that respect it may
help to authorize the environmental ministry or a national council  to  harmonize the efforts of
environment with those of other government agencies.  State agencies and facilities may receive
support from environmental organs in training, technical assistance  and in many other ways. In
most  cases the environmental government body may  not directly interfere  in  other  agencies
activities,  but  there  are  certain possibilities, like a  control over budgetary  movements. Also,
assigning  enforcement to  a different level  of government can  ensure independence. The role of
public  participation here is very important, but effective  information  is a pre-condition for this to
work.

       In the sphere of ownership changes there are  a number of conflicting  interests, where
some harmonization should  be done. One possible  method  is to use  a kind of ability to  pay
principle in order to avoid major handicaps. There is a possibility to use two approaches for timing
-  a strict liability standard for new businesses  and  a gradual compliance schedule for existing
businesses to  meet the same standards  in a relatively longer period. In standardization a general
acceptable goal is to  reach  EEC  standards. From  among  ownership changes bankruptcy is
particularly important in determining who pays  for environmental obligations and what is  the
ranking of environmental interests. In systems where state ownership still represents a majority,
the situation is much more difficult.

       Privatization  as  characterized above  is  a  massive  process,   which will change  the
playground  for  environmental  requirements.  Here  a  mandatory environmental auditing  and
sometimes an overall assessment  should be established. This is the interest of the investor also
in order to avoid further disputes and to learn whether the company is improvable or not. These
investors need a level of certainty. As the liability for past environmental damages is particularly
important,  among  the  solutions one possible  way  is to create funds from purchase  prices.
However,  privatization presents a  unique  opportunity to leverage foreign capital and know-how
towards ensuring future operations in compliance with environmental concerns.

       The past contamination  is not only  a  problem of privatization, but here it is even more
important to regulate who is  liable for past damages. Polluter pays principle  should serve as a
basis of  liability but it  has  a  different  meaning  in  the  case of old state  owned  businesses.
Therefore the situation in former socialist countries is  even more difficult. One version is to judge
the past  contamination on the  basis of  strict liability. A different version is to provide  statutory
protection for  the  new owner from liability, but a financial contribution for  cleaning-up  is also
acceptable.

       In economic or pollution  point of view depressed areas special arrangements are needed
to achieve compliance. This covers the gradual compliance, so to provide sufficient time, meaning
a phased-in approach. Industry should provide reports on compliance. Special care must be taken
for employment issues, which among other means retraining. The best is to reach an agreement
with industry and with the other  interested parties.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             225
      The harmonization of economic and environmental  requirements need to find the ways of
managing conflict situations, which begins with a dialogue  between government and polluters.
The  public should be  involved in  these  dialogues. There  must  also  be a better  coordination
among  government  agencies.  In  the  following the original philosophy of  enforcement and
administration must be changed, first of all in CEE  countries with a special care on cooperation
between the different parties.  For  negotiations  the best is  to have negotiations within  a legal
framework with legal authorization, but without this there is  also a chance for negotiations.
4     Conclusions

      In respect to  the basic idea of enforcement that  environmental laws are obligatory for
everybody, so for government and  agencies  also, it may help to  authorize the environmental
ministry or a  national council  to  harmonize the  efforts of environment  with  those  of  other
government agencies.

      In the sphere  of ownership  changes  there are a number  of  conflicting  interests  (e.g.
opportunities they present for enhanced compliance), where some harmonization should be done.
Different methods for harmonization are possible.

      A major way of ownership changes is  privatization, which will change the playground for
environmental requirements. Here a  mandatory environmental auditing and sometimes an overall
assessment should be established. The past contamination is not only a problem of privatization,
but here it is even  more  important to regulate who is liable for past  damages. Polluter pays
principle should serve as a basis of liability but it has a different meaning in the case of old state
owned businesses. Therefore the situation in former socialist countries is even more difficult.

      To  achieve compliance  in  economically  depressed  areas,  special  arrangements are
needed. The best is to reach an  agreement with industry and  with the other interested parties.

      The harmonization of economic and environmental requirements needs to find the  ways of
managing  conflict situations, which  begins with  a dialogue  between government and polluters.
The  public should be  involved  in these  dialogues. There must also  be  a better coordination
among government agencies.

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  INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                            227
 THEME #6:  APPLICATIONS TO A PARTICULAR ENVIRONMENTAL PROBLEM- SOLID AND
              HAZARDOUS WASTE

 Reporter:    Frank Uijting


 1     Goals

       The theme  has tried  to  depict concrete  enforcement experiences  and prospects  from
 several perspectives,  UNEP, one western country and in several former communist countries, the
 particular problem of international transhipment of waste being addressed in the light of the Basel
 Convention.


 2     Presentations

       Dr. Rummel-Bulska, Chief of UNEP's Environmental Law Unit gave an overall presentation
 about "The Basel Convention  on the Control of Transboundary Movements of Hazardous Wastes
 and their Disposal", highlighting  key provisions  requiring  enforcement measures.  Dr. Rummel-
 Bulska stressed the necessity to accelerate the ratification process in most OECD countries.

       Mr. W.  Radecki,  Professor of Law at the institute of Law  of the  Polish Academy  of
 Sciences, Warsaw, spoke about  "The Polish Prohibition of Waste Import. He  indicated that the
 absolute  prohibition of  any waste imports into  Poland decided  in  1989 turned out to have
 unexpected detrimental effects for the protection of Poland's environment. As a consequence the
 Polish authorities  are considering new legislation which will  depart somewhat from the total import
 ban approach.

       Mr. S. Wassersug, programme Manager at the Regional Environmental Center  Budapest
 gave a presentation concerning "Transition and Implementation of Waste Management Policies  in
 Central and Eastern Europe (CEE)".  Mr. Wassersug  set out a clear methodology for  designing
 waste management strategies  in CEE countries, stressing the necessity to build on realistic goals
 and enforceable legislation in order to  achieve voluntary compliance.

       Mr. F. Relea, Director of the Junta de Residus of the Regional Government of Catalonia
 gave a general presentation  of "The  Enforcement Experience  in Cataluny Towards  Industrial
 Wastes". The waste management system of Cataluny is a  flourishing highly industrialized  region
 enjoying  extensive  autonomy  in  a  rather less  developed  EEC  Member  State  Mr   Relea
 underlined  especially  the need  for  skilled  environmental inspectors with  a good  technical
background.

       Mr. K. Velek, of the Ministry of the Environment of the Czech Republic, described in detail
the "Enforcement Concerning Solid and Hazardous Waste Disposal in Czechoslovakia"  Mr  Velek
highlighted the persistent gap between the texts and reality,  given in particular the limited financial

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228                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
resources and  the  lack of qualified  staff. He illustrated  notably how an excessively dogmatic
implementation of the principle of proximity can prevent efficient large-scale solutions.

       Mrs.  L Mara, Director of the Strategy and Policy Department of the Romanian Ministry of
the Environment, presented an overall picture of "Hazardous Waste Transport and Disposal" in
Romania. Mrs. Mara emphasized that her country is increasingly having to contend  with illegal
toxic waste imports.
3      Open discussion

       Mr. S. Klem,  Interpol,  gave a  short presentation  about  the  role Interpol might play in
enforcement of transboundary shipments of hazardous waste. Because of the fact that they have
a large international network and a lot of experience with international crime, Interpol can play an
important role as the central point and platform for information exchange and case coordination.

       Mr. H. Kesselaar, Environmental Inspectorate of the Netherlands, presented some remarks
 on behalf of a fast ratification of the Basel Convention. The experience in  the  Netherlands with
 transboundary shipments  of  hazardous  waste so  far is  that besides controlling notification
 documents it is necessary to have active physical inspections. Furthermore one should look to the
 total waste chain. Another important point is that there should be consistency between monitoring
 systems. Among others this means that cooperation is a must. As far as the Basel Convention is
 concerned he concluded that the problems with the  definition of waste have to be solved, there
 should be a quick ratification of  the  Basel Convention within  the  EEC and  a worldwide  fast
 notification.

        Mr. J. Plaut,  USA,  stated that the  USA did not  ratify  the  Basel  Convention  yet.  The
 industry testified twice on behalf of ratification. Yet, there does not seem to be  political pressure.
 So ratification is not seen  as an important  thing to do.  Therefore it is necessary to put more
 pressure on politicians. He  asks if anyone can give advice as to how to built a  strong consensus
 outside the environmental community.

        Mr. N. Blackburn of the  International  Chambers  of Commerce (ICC) adds to this that the
  ICC supports the Basel Convention, but they do have some  concerns.
        Mr. Wassersug, REC  Budapest, said that the media plays an important role in  increasing
  pressure.  The  media  is  interested  in public reaction.  Besides  that  reports  like  those of
  Greenpeace give concern.  In this way publicity can be elevated up to a public policy standpoint.

        Mr. L. Kramer, EEC, raises  the question that  lawyers should not perhaps consider whether
  the separation  of the notion of waste from the notion of products is an error by lawyers. From an
  environmental  point of  view  it is  completely  irrelevant  if  the  environment is affected  by
  substances, products or waste. So is  not all of the difficulties due to the fact that we opened this
  huge loop-hole  of allowing secondary raw materials not to consider as waste.  Is not under these
  auspices perhaps the approach of  making the convention  on waste just a legal error.
         Mr. H. Kesselaar agrees with Mr. Kramer. We should call everything waste. Afterwards we
  always can see how to deal with it.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             229
      Mr. Relea, Spain, explains  that secondary  raw materials are also seen as waste. He
stresses that one should not only look to waste as a result from a production process, but look at
the whole chain. There should be international agreements on this subject.

      Mr. Diamond, USA-EPA, stated that  attention should paid  to regulations on recycling. On
one hand recycling  is an important solution  for the waste problem. On the other hand it appears
that of the most contaminated sites about 10% is caused by recycling facilities. It is therefore that
there  must be good  regulations for recycling  facilities.

      Mr. M.  FiJhr, 6ko-institut Germany,  points out that the  appearance of waste  is now  a
criterium for special control, because the  owner has no interest in waste. If new agreements are
made, there should  be new criteria for control.  One should  be aware that if  control focuses on all
hazardous materials, there will  be  the  problem that some products can be seen  as  hazardous
waste, but because  one  can sell them, they  are not classified as waste.
      There should be  a new approach in  the regulations of materials.  More or less a cradle to
grave approach in the whole life cycle of materials. A new regulatory screen should be developed
within the EEC that brings together  all the different parts in the life of materials and combine the
different legal systems that are now  splitted  up.

      Mr. H. de Vries, the Netherlands, stated that in  some cases the  appearance of hazardous
waste is the price of a product.  For  instance the zinc-industry in the Netherlands is dealing with a
waste stream. There is  a technical  solution  for the  treatment/recycling of this waste, but it is too
expensive. There is too  much competition with other European industries.

      A representative  of the Hungarian  industry points  out that one should  not  regard the
industry as criminals. The problem is that it  is always easier to be on the other side.
       According to Mr.  Madonna, USA, industry is not criminal, but there is always a party that's
making  profit of something, also with waste. We should encourage the idea that recycling is an
important way of continuing the existence of resources.

       Ms. M.  Mulkey,  USA-EPA,  explains that  economic instruments,  like taxes and fees, are
important for reducing the waste streams.
       Mr.  Relea, Spain, explains that in the Spanish waste program some  economic instruments
are taken up.  Besides  that the taxation scheme on  water will  be expanded to waste.  But Mr.
Relea is concerned about finding  the right  ways where to  address for perfect control. If we don't
find the right way we add more difficulties for people who want to do things properly. One should
be careful not to get the opposite results.
       Mr. Velek explains  that in the CSFR a difference  is made in fees for  disposal between
hazardous and normal waste. If recycling takes place,  no fee has to be  paid by the waste owner.
By this  way recycling becomes  attractive.

       Ms.  J.  Alois!  de  Larderel,  UNEP,   notes  that during the  Rio conference  issues like
 minimization, cleaner technologies, reuse and the  use of  less energy were on the agenda. The
 UNEP has launched a  program about these items. In  October there will be a ministerial meeting
 in which these issues will be discussed.

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230                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       Mr.  S. Fulton, EPA, gives a summary of the experience with transboundary shipments of
waste  between  Canada,  USA and  Mexico.  It appears that these activities look like  criminal
activities. It is important to attend to reconcile waste tracking procedures  between countries so
the disappearance of waste can be checked. Furthermore we need procedures for informing each
other when shipments are  taking place and  also procedures for  sharing  information  for law
enforcement purposes  associated with these kind of  shipments. An area of consideration and
cooperation is making sure that we have procedures in place that allows us to relay effectively on
each other  and developing cases in this area.
4      Conclusions

       Resuming, the following ideas emerged during the discussion.

       Information  and communication between the  different  actors have a key  role to play.
Manufacturers should not feel that impossible targets have been set and that they are subjects to
a presumption of guilt whatever they do.

       Coordination should be deepened,  especially at international level. The participants agreed
that the definition and classification of waste should  be  the same all over the world, it was also
suggested that the separation os waste law from product law turned out to be detrimental but the
opinions  remained divided  on this, nevertheless, everybody agreed that  regulations on waste
management should not focus on waste disposal only should take a cradle-to-grave approach.

       While  most participants agreed on the  need to speed  up the ratification  process of the
Basel  Convention  (which  it  was  felt would  be  a   first  step  towards  a better  international
management of waste transhipment), some raised doubts about its future enforcement pointing to
the disappointing results of the EEC Directive which inspired  it.
       It  was also  stressed that an existing international structure,  Interpol, is willing to play a
more active role in the fight against illegal  international  transhipment of waste.

       Waste  management strategies need  to  be designed in accordance with the economic
possibilities and with the social and cultural conditions  of the  country.
       There  is  a  little  hope  for  efficient  enforcement where the necessary infrastructure is
lacking, not only technology and appropriate equipment, but also education and training.

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THEME #7:   PUBLIC DISCLOSURE AND CITIZEN'S ROLE IN ENFORCEMENT

Reporter:    Ann E. DeLong


1      Goals

       An exploration  of  the role of  public disclosure,  citizen's  and others in the enforcement
process and their implications for achieving more widespread compliance.


2      Presentations

       Ms. M.  Bowman,  Director,  Environmental  Program, Environmental Law  Institute (USA)
spoke  about "The Role of Citizen's  in Environmental Enforcement". She presented an overview of
the ways citizens can  influence  and enhance the ability  of governments to enforce environmental
laws. Among the suggestions she outlined were included publicizing legal requirements to citizens
and industry, monitoring  and reporting environmental violations, commenting on draft laws and
regulations,  suing government to perform the duties required by statutes, suing industry to comply
with laws and leveraging nuisance and trespassing laws for environmental benefits. In order for
citizen suits to be effective, environmental standards need to be clear, the judicial  system  must be
amenable to citizen suits,  adequate  training in enforcement procedures must be  provided and
citizens need access to information. Citizens are the greatest  natural resource for environmental
laws because they have a personal stake in  the environmental problems which  directly affect
them.

       Mr. R. Hallo, Coordinator for  International  Affairs,  Netherlands Society  for Nature and
Environment presented his paper  "Citizen  Role in Enforcement: A Spur,  a  Supplement and  a
Substitute".  He  emphasized  four  important  roles citizens  (or  citizen  groups)  can  play  in
environmental enforcement: 1) to spur governments to act in a timely and effective  manner, 2)  to
supplement governments efforts in  environmental enforcement, 3) to act as  a  substitute for
governments and act in cases  where the government chooses not to (i.e. in low priority cases).
To be effective in  these ares,  Mr. Hallo emphasized  the importance  of access to information,
clear,  enforceable laws and a sympathetic judicial  system.  He  also warned against  the danger  of
losing  a citizen's suit and the subsequent difficulties that would pose for other citizen suits.

       Mr. R. van  Heuvelen, Acting  Director,  Office of Civil  Enforcement, U.S. EPA presented
 "Citizen Participation in U.S. Environmental Enforcement". He  discussed the utility of citizen suits
to  enhance government activities in environmental   enforcement. He  listed  the  benefits  to
 government  of  citizen  involvement  including,  identification   of  violations,   participation   in
 settlements, initiation of citizen  suits and review of regulations. Activities governments  can initiate
 to  encourage citizen  participation  include public education on laws and  procedures, access  to
 information, institutionalizing statutory reward authorities and paid informant programs.

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 232                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       Mr.  M.  Fuhr,  ELNI  (Germany) discussed  the  "Citizen's Role  in  the  Enforcement  of
 Environmental Law in Europe". He described the importance of citizen participation in decision-
 making procedures. He stressed the importance of easy access to information and also the need
 for good data. Citizens currently have access to government information  but not to industry data.
 Citizens, governments  and polluters need to work together for the most effective enforcement
 programs.

       Ms.  F. Irwin, Director,  Pollution Prevention,  World Wildlife Fund. (USA) presented her
 paper: "From Public Disclosure to Public Accountability: What Impact will it have on Compliance?"
 She described three tools governments  and industry can use to communicate environmental
 information to the public and how that information can be used to encourage public accountability
 by  industry. The United States has enacted a community right-to-know regulation which requires
 industry to  provide  information to  the government on annual  emissions,  recycling of chemicals,
 accidental  releases and source reduction measures  taken by  the industry. This information  is
 available to the public through the government and  has  been used by NGO's to push  pollution
 prevention  measures by industry. Industries are also encouraged to prepare environmental audits
 and to make this  information available  publicly. Lastly, in the EEC,  companies are using product
 labelling to  make environmental claims.

       Mr.  N. Blackburn, Director, International Chamber of Commerce (France) described "Public
 Disclosure  and its  Impact on  Compliance".  He addressed the impact  of public disclosure on
 compliance. He stressed that many businesses have voluntarily agreed to establish environmental
 policies, that UNCED promoted public disclosure of environmental information and that many
 businesses are preparing environmental audits  and  environmental performance reports designed
 for  public consumption.  He  suggested that economic instruments,  such as tradeable  permits,
 were favoured to promote environmentally  sound business practices.

       R. De  Baere, Bond Beter  Leefmilieu  (Belgium) discussed "Disclosure  of Environmental
 Information and  Enforcement of Environmental Law  in Flanders: The  Complementary Role of
 Governmental Authorities and NGO's".  He described  the complementary roles of the government
 and NGO's  in environmental  enforcement  in  Belgium.  Citizens  can  participate  in licensing
 procedures, for example, however,  access to the information leading up to the licensing decision
 is  not  available  to  the  public. This was  a  general  problem  with  access to  information-thai
 information  is only available upon  demand  (the government  does not  take a proactive role in
 publishing environmental data) and that the secrecy of duty code for public servants was a barrier
 to  accessing  environmental  information.  Mr.  De  Baere called on the  EEC  to  set minimum
 standards for licensing procedures, accessibility of information and public participation.

       Dr. E.R. Klatte, DG Environment, Nuclear Safety and Civil Protection, Commission  of the
 European Communities presented his paper: "Enforcement of EEC Environmental Legislation; the
 role of Citizens and Citizens' Groups". He  provided practical information  regarding the role  of the
 EEC in supporting citizen participation,  providing access to information and regulating compliance
by member states.  He reviewed the three types of  EEC legislation-directives, regulations  and
decisions-that are legally bindjng on member states. He also  stated that implementation of EEC
directives by  member states is very poor but that the member states do not want  the EEC to
monitor their compliance.  Citizens, therefore, play  a key role  in ensuring compliance through

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             233
citizen complaints. Citizens have the right to complain, the  right to petition the EEC Parliament,
the right to obtain information, the right to participate in the legislative process and standing in the
European  Court of Justice. When a citizen complains, the Commission sends a letter to  the
appropriate agency in the member state requesting  clarification. This procedure is effectively used
by NGO's to access  information otherwise difficult to obtain. Any citizen (even from non-member
states) can request information.

       Mr.  E.  Popov, Ecoglasnost  (Bulgaria)  discussed  "Public Disclosure  and  its  Impact on
Compliance:  Results and Mistakes  (the  Case   of  Bulgaria)".  He  described the  difficulties
experienced by  a Bulgarian  NGO in increasing the  environmental awareness of citizens and
government officials and influencing changes in environmental  legislation. Problems encountered
include the fact that government officials are not  aware of  citizen's  rights,  individual citizen's
initiatives  are  not seen   as  credible by the  government and  that  no  provisions  for public
participation are included in current legislation.  New EIA legislation is addressing this problem by
incorporating provisions for public comment on draft and final  rules and for public hearings. With
the movement towards privatization of  industry,   citizens need  to  be  even more involved  in
decision-making and  policy-making roles.

       Mr. P. Keough, Deputy Regional  Administrator, US EPA, Region  I discussed the "Use of
Public Disclosure  in  Environmental  Protection Programs to Enhance  Compliance and Change
Behaviour in the United States." Because almost all of the data submitted to the EPA by industry
is  public,  disclosure  of this information  can have  a profound effect on  how  a company does
business.  EPA trains journalists  how to obtain and interpret  environmental data and  views  the
disclosure  of  this information as an important tool for  enforcement.  Also,  the  publication  of
enforcement actions  taken by  EPA in the press has a deterrent effect on other members of the
regulated  community. Currently,  EPA is trying to design  a  program to recognize  environmental
excellence on the part of industry and to  publish that information as well.
3      Open discussion

       Civil  suits brought against government agencies  for  a failure  to  enforce provide an
incentive for the government to get serious about their own enforcement efforts.

       Several of the speakers and  participants emphasized that citizen participation does not
necessarily mean that the government is not doing its job-citizen participation should be seen as
a supplement to government action.

       When developing  legislation governing  citizen participation,  it is important to provide for
access to information and to the  courts. Also,  a mechanism needs  to be provided to  overcome
the cost impediments to citizen suits. In the U.S., technical assistance grants can be provided to
citizens groups active at Superfund sites. In England,  in court cases, the loser pays all of the
court fees.

       Representatives from the  EEC and Central  and East European  countries  stressed that
citizens should work within the mechanisms currently available to them to stimulate governmental

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action on  environmental issues. For example, some countries do  not currently have a provision
for citizen suits. However,  citizens and NGO's can work  within the  existing  system,  using  the
media and other means to make their concerns heard. This can  be just as effective  as citizen
suits and is much less costly and time-consuming.

      The importance of citizen participation in monitoring efforts was discussed. Citizens know
their environment, have a vested interest it the quality of that environment, and can play a central
role in  monitoring, setting permit limits  and keeping an eye on the company's and government's
actions. Citizens can continue to be involved after permits are issued.

      The issue of data quality and  reliability  was raised, particularly in  the context of citizen
suits and  monitoring. While data to be  used in court typically has  to meet certain quality criteria,
other measurements can be used to stimulate citizens to become involved in the problem.

      It was  generally agreed that  citizens need to become  more active in requesting data,
educating themselves on the meaning of  that data, and getting involved.  An active citizenry is
necessary to have an impact on the government and on the environment.
4      Conclusions

       Citizens need to be involved in enforcement programs to fill in where governments fail to
act, to spur governments  to act more swiftly  or forcefully and to enhance government efforts in
enforcement.

       Citizen's participation can take many forms: providing input on draft legislation,  monitoring
and reporting environmental violations, publicizing legal requirements and violations and initiating
citizen suits.

       For citizen involvement to be effective, it is necessary to have  clear environmental laws
and  standards, access to information, a judicial  system that is receptive to  citizen  suits, and
adequate training  for citizens to  enable  them  to  interpret the  information  and  initiate  the
procedures.

       Governments need to support NGO participation in the enforcement process and  involve
NGO's in the current legislative and administrative framework.

       Examples  of  effective  information  and  educational tools that  could  be  used  by
governments to enhance voluntary compliance and pollution prevention were suggested, including
publishing  chemical  emission data,  requiring  environmental audits   and regulating  product
labelling.

       Business can  play an active role  in  environmental  protection through voluntary  source
reductions, environmental audits, and environmental  labelling. Governments can assist in these
efforts by providing technical assistance and information on waste minimization technologies.

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 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                            235
 CLOSING   REMARKS   FOR   THE   SECOND  INTERNATIONAL   CONFERENCE   ON
 ENVIRONMENTAL ENFORCEMENT, Budapest September 25, 1992


       On behalf of the Executive Planning Committee for the second International conference on
 Environmental Enforcement,  we  want  to  thank  the speakers, panelists,  moderators, and, of
 course, participants for  your  contributions  which  made  this  Conference a success. We look
 forward to  your formal  evaluations  of the Conference,  but  from  all  the  comments we have
 received, the very active participation and  lively  discussions, we can  comfortably  say that the
 purposes of the Conference were achieved.

       The  Conference  sponsors, the  United  States Environmental  Protection  Agency,  the
 Netherlands Ministry of Housing,  Physical Planning and Environment, and the Commission of the
 European Communities,  assisted by the Executive Planning Committee, (including the sponsors
 as well as the Environmental  Ministries  of Poland, Hungary, Czech and Slovak  Federal Republic
 as well as  the Regional Environmental Center in  Budapest, the United Nations  Environment
 Programme IE/PAC and  Hungary's Public Prosecutor), prepared this Conference as a response
 to the growing  awareness of  the importance of  environmental  concerns and  the  necessity of
 enforcement to achieve the goals of environmental requirements which  are designed to address
 environmental problems.

       The Conference focused on the development and enhancement of domestic environmental
 enforcement approaches, particularly  in Central and Eastern European  countries. However,  our
 participants  from almost 40 nations and organizations all  around the globe  have found there is
 more   common  ground  than differences  in  the  fundamental principles of  environmental
enforcement,  broadly  defined  to  include  actions to compel and encourage compliance. The
challenges we all face  may require different solutions from one nation to  another, but the basic
issues and range of approaches from which to choose are quite similar.

      The Conference  addressed the  following seven themes over a  four day period:

         Theme # 1:    Context for Enforcement.

         Theme # 2:    Designing Enforceable Environmental Requirements.

         Theme #3:    Developing   an    Effective   Compliance  Monitoring  Capability
                     (e.g.Inspection Capability).

        Theme # 4:   Developing Authorities and Legal  Enforcement Capabilities  to  Respond
                     to Violations.

        Theme # 5:   Economic Development And Ownership Issues.

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236                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
          Theme # 6:   Applications to a Particular Environment problem: Solid and  Hazardous
                       Waste.

          Theme # 7:   Public Disclosure and Citizens' Role in Enforcement.

       The final published volumes of the  Proceedings  will include summaries  of each of  the
seven themes, key papers and discussions. We do not propose to summarize  them here,  but
rather, would like to offer some highlights of  the past four  days on which we think we can build for
what we can  all look forward to as the third  International  Conference  on  Environmental
Enforcement.
       First, this Conference has been part  of an ongoing process and commitment to work on a
global scale to build strong, creative, effective domestic enforcement programs worldwide.

       The goal of this Conference is compliance with environmental requirements. Compliance
cannot be expected  to happen voluntarily. Without active efforts to enforce,  that is  to both
encourage and  compel compliance,  environmental policies and requirements are paper  tigers,
ineffective and  unimplemented.  However, the reasons  we  are focusing  on environmental
enforcement are many. Without enforcement environmental laws are not credible, and there is no
 respect  for institutions responsible for environmental protection. Without enforcement there is no
 level playing  field in  the free market-place and those that choose to comply are economically
 disadvantaged,  creating incentives to violate  the law. And finally, without  effective enforcement
 and implementation of environmental requirements, our societies bear more costs for cleaning up
 problems caused by  unaddressed environmental  pollution,  there is  little incentive to prevent
 pollution.

       We have progressed since the first International Enforcement Workshop in  Utrecht, the
 Netherlands, in May 1990 and we have several new frameworks on which to build:

       •  The  Principles of Environmental  Enforcement, presented in Theme # 1, was developed
           initially as an international  training  course in  response  to a request for assistance by
           the  Government  of  Poland. It provides  a general  set  of  definitions, principles,
           framework, and options for designing effective compliance strategies and  enforcement
           programs  in any cultural or legal setting. Following this  Conference, it will continue to
           be used as a general frame of  reference for exchange of experiences internationally.
           Agenda 21 calls for further institution-building in enforcement and compliance and this
           can  serve as its foundation.

         •  Within this  framework,  we  have  a general recognition  that  enforcement  must be
           defined broadly,  recognizing  that  compliance with environmental requirements, and
           achievement of environmental results and behavior change require both  promotion of
           compliance and  more  traditional  enforcement approaches  to  compel compliance.
           Together  they  can create an  atmosphere  of deterrence  in  which  most choose to
           comply rather than to violate requirements,  in which  efforts to overcome barriers to
           compliance such as  ignorance of  requirements  and  lack of technical know-how or
           financing  ability,  and  efforts to provide  disincentives  to  violate the  law  are  made
           effective.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             237
       •   Enforceability:  All  Conference participants  stressed  the importance  of  developing
          enforceable  requirements, during  Theme #2  and other discussions. We now have
          established criteria for defining what makes  a requirement enforceable. In developing
          enforceable environmental regulations and permits there  are seven criteria that have to
          be met:
          understandability,   precise  definition  of  coverage,   clear  standard  of  product,
          measurement of compliance (preferably quantifiable and measurable), clear deadlines
          for  compliance, self-monitoring,  recordkeeping  and  reporting  requirements,  and a
          proper adoption procedure. We heard many examples  of  how poorly designed and
          drafted requirements have  rendered them  unenforceable  and ineffective. We  also
          discussed  without  conclusion,  the merits  of establishing  requirements which are more
          or less stringent or difficult to achieve. We also heard examples of national laws which
          were designed to  make  compliance easy.  Ultimately,  to ensure  enforceable rules,
          those  that are responsible  for enforcement  must play  a role in their design. Also,
          involvement of the public helps to  ensure support for implementation.

          Organization: We  also  have  a framework  for evaluating  organizational options for
          environmental enforcement based upon the  purpose of an enforcement program, its
          capabilities and qualities  along with a range  of  options for such  organizations. We
          recognized that any enforcement  organization requires substantial  coordination  across
          levels  of  government and among  government agencies. Cooperation is  needed  in
          enforcement, both nationally and  internationally,  for exchange of information and the
          effectiveness of implementation of enforcement authorities. Among participants there
          was the  feeling that enforcement bodies should  benefit  from a certain independence
          from general administrative authorities.

       Second we established some common ingredients for making enforcement programs more
successful:

       Compliance Monitoring, Theme #3:

       -   Multi-media inspections   are preferred to ensure an  integrated approach.  However,
          there are  practical  difficulties such  as  the  complexity  of  several  laws and  the
          complexity of large industrial sources which raise  a  multitude of issues. They may be
          addressed  by several actions:
             a team approach, combining single-media specialists;
          -   support from a  central  elite  team;
             extensive training or  coaching,  and
          -   inspectors might best be trained in specific industries.

      •   Source self-monitoring, reporting and record-keeping needs to be required more  as the
          basis for compliance monitoring as inspection resources  are too limited to provide the
          necessary  coverage and it shifts  some  of the cost  burden  from  government to
          regulated   entities  who  must  do  much  of  this  monitoring  anyway  to maintain
          compliance. There are  concerns  however, with the economic burden placed  on the
          regulated community, particularly medium  and small sized facilities.  Such impacts must

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238                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
          be considered in  designing requirements,  and required  reporting  is best tailored to
          focus more reporting from facilities with a greater potential environmental impact.

       •   All programs  lack resources for extensive inspection activity so priorities must be set
          for inspections  at  a  higher frequency  for those facilities  which are most  polluting.
          Inspection resources  may be  increased by funding them through fees which  can be
          based upon the potential pollution or environmental impact, number of  employees or
          other  factors. This is an  approach that Norway  uses as an  alternative to  funding
          through  general  revenues.  The fee  schedule,  while  providing  program  funding,
          essentially dictates how and where inspections can be made. One advantage is that
          because the  inspections  are funded  by the regulated  community, the  government is
          pushed to ensure  a quality inspection.

       Enforcement Authorities, Theme #4:

       •   A range of authorities, including administrative, civil judicial and criminal enforcement
          authorities are needed to address the range of environmental violations.  Administrative
          enforcement will be most widely used in most instances because of its  lower cost and
          quicker response time.

       •   Penalties and other sanctions  should be set at appropriate levels to change behavior
          and  not just lead to payments to pollute. They  should be commensurate with  the
          violation but also strong enough to have a deterrent effect.

       •   Voluntary compliance should   be  promoted  to  avoid the costs  of  having  to use
          enforcement authorities.

          Enforcement by local authorities having expertise  related to environmental control can
          effectively leverage limited regional and national  resources, this includes enforcement
          authority for municipalities, police and regional governmental units.

       Citizen Involvement and Public Disclosure,  Theme #7

       •  We  all  agreed that   citizens  play a critical  role  in making  enforcement effective in
          achieving compliance.

       •   Public support and  an educated citizenry are essential  to support enforcement. This
           can be accomplished through disclosure to the public of information  on releases.

       Third, we discussed  ways of addressing some very  difficult enforcement problems,  facing
 General and Eastern Europe, in particular, but not exclusively:

       •   In  theme  #5,  the problem  of enforcement against government  owned  entities was
           discussed.  All  agreed  that  environmental  requirements should  be obligatory  for
           everybody,  for government  and  non-governmental  entities alike. It  was generally
           acknowledged that   enforcement  against government  entities is  difficult. Technical

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             239
         assistance and  training  can play an  important  role.  The organization  housing the
         enforcement  function  must have the necessary authority to be able to harmonize the
         efforts of environmental compliance of other government agencies. The public can play
         a  particularly important role  if  information is  made  available about  violations.  Also,
         assigning  enforcement to a different level of government can ensure independence!
         Despite its difficulty, nations such as the U.S. and Canada have had success in taking
         enforcement  against their own government agencies.

         Enforcement  is not easy, particularly in areas  experiencing economic  difficulties. This
         can be  experienced in any nation, but will be  almost a universal condition in  Central
         and Eastern  Europe and developing nations.  Speakers with experience in  enforcement
         identified  several  approaches to use  to  enforce and  achieve  compliance at  such
         facilities through  creative  enforcement responses.  The U.S. experience with steel  mills
         in  the 1970's employed many creative  approaches to work with that industry to come
         into  compliance.  Enforcement  agreements  were  negotiated  involving  all levels  of
         government,  using approaches such as pilot projects and then trying  it out in  one  or
         two parts  of  the plant (if the violator  argues that control equipment  is too costly  or
         technically  infeasible), using a  phased-in approach to lower the cost  burden by
         spreading  out the cost, asking for research studies as  part of agreements to enable the
         facility to develop  new designs,  requiring  reports on progress, using  less  expensive
         interim controls for a  limited time or using alternative reduction programs to achieve
         same  reductions  with a different mix of controls within a plant. Ability to pay can be a
         factor  in  assessing   a  penalty.  These  agreements   need   the  commitment  and
         perseverance  of  government officials, cooperation  from  industry,   and  innovative
         approaches to recognize economic conditions and address them.

         Privatization is happening  at  a very rapid rate in  Central and Eastern Europe.  It  is
         complicated by at least  14 paths of  new ownership  arrangements.  Environmental
         agencies, even if properly involved in  the  process, could not  hope to  be involved  in
         each  negotiation.  However,  privatization  presents  a  unique opportunity  to leverage
         foreign  capital and technological and  environmental  management  know-how toward
         ensuring  future  operations  in  compliance  with   environmental  concerns. Foreign
         investors are also in need  of some certainty as to the standards that will apply and that
         the proposed  schedule and  actions to  correct existing  problems is acceptable.  The
         following elements were discussed regarding privatization:

         1.  environmental  factors  should  be  introduced  by  law and  practice  into  the
            privatization process ... if not by law then in practice by ensuring the  involvement of
            environmental officials in transactions and negotiations.
        2.  environmental audits,  a key  part of  the process for governments  and private
            parties, should be required for all paths of privatization.
        3.  institutional relationships must  be  established  between Ministries of Privatization
            and Environment and local  governments.
        4.  environmental  requirements and standards must be clear...  e.g. for soil  clean up
            if costs  are to  be assessed, and clear-cut decisions are needed on  the  problem of
            who bears  the coat  for past damages.

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          5.  to gain full benefits  of  privatization  it is desirable  to  set  aside some  of  the
             privatization purchase price monies to provide clean  up funds to ensure funds go
             toward improvement of environmental conditions.

       •   Given the difficulties of enforcement in Central and  Eastern Europe it was suggested
          that  the  countries  might  join together to enforce requirements related to  a common
          environmental priority such as cleaning up the  Danube River in a coordinated way.

       Fourth when applied to a particular environmental problem,  illegal shipment of hazardous
waste, Theme #6, we discovered that all elements of environmental  enforcement are needed.

       •   The  overwhelming feeling  in theme #6  is  that  strategies  for  handling  solid  and
          hazardous waste need dramatic improvements. Three main priorities emerge from the
          discussions:

          1.  More communication. Better  communication will  ensure that the targets to be
              reached will not be unrealistic or that there is  no contact between the  regulated
              community and the enforcing bodies.
          2.  More coordination  will result  at the international level  in a clear definition  and
              classification  of waste.  The  importance  of  the  Basel  Convention  has  been
              underlined. Its  ratification is strongly encouraged by participants from industrial as
              well  as governmental  origin.  More pressure is needed for a  quick ratification.
              Nevertheless  ratification is recognized as only  a first step, after which many are
              needed to fulfil its goals.
           3.  More pragmatism  is needed  in  designing  waste  management strategies  so that
              they are  in accordance with the economic capacities  and social and cultural context
              of the country.

        It is felt that the transport of hazardous waste has to get more attention from  international
 enforcement organizations like Interpol. Interpol offered such support.

        Fifth, despite the fact that  we all agreed  that environmental enforcement is essential  if
 environmental programs are to be  implemented, there is still a fundamental lack of political
 support  and  commitment to environmental  enforcement in many  regions of the world,  leaving
 environmental  requirements ineffective.  Developing this awareness requires several  actions:
 Publicizing and educating the general public about environmental concerns  is critical. An informed
 electorate  ensures that political  leadership is also sensitive to environmental matters. Providing
 for citizen  involvement  in enforcement can ensure that their  interests are  protected, indeed, the
 greatest natural resource for enforcing our laws are  our citizens,  as  they are closest to the
 problems and most affected by irresponsible actions. For  citizen involvement to be effective, it is
  necessary to have  clear environmental laws and  standards, access to  information,  a judicial
  system  that  is  receptive to citizen suits,  and adequate training  for citizens to enable them to
  interpret the information and initiate the procedures.

        Governments need to support NGO participation in the enforcement process and involve
  NGO's in  the current  legislative and  administrative framework. Examples  of effective information

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             241
and educational tools that could be used by governments to enhance voluntary compliance and
pollution  prevention were suggested, including  publishing  chemical emission  data,  requiring
environmental audits and  regulating product labelling.

      Business  can  play an active  role  in environmental protection through voluntary source
reductions, environmental  audits, and environmental labelling.  Governments can assist in these
efforts by providing technical assistance and information on waste minimization technologies.  For
citizen  involvement to be effective, it  is necessary to have  clear environmental  laws  and
standards, access to information, a judicial system that is receptive to citizen suits, and adequate
training  for  citizens to enable  them to interpret the information and  initiate  the  procedures.
Governments need to  support NGO participation  in the enforcement process and involve NGO's
in the current legislative  and administrative  framework.  Examples of effective  information and
educational  tools that  could be used by  governments  to enhance voluntary  compliance and
pollution  prevention were suggested, including  publishing chemical emission  data,  requiring
environmental audits  and regulating product  labelling.  Business can  play an active role in
environmental  protection  through  voluntary  source reductions,  environmental   audits,  and
environmental labelling. Governments can assist in these  efforts by providing technical assistance
and information on waste  minimization technologies.

      Further we must  develop and provide for creative ways to  harmonize economic and
environmental interests, both within the process for enhancing  economic development and within
the context  of enforcement. We must publicize successful approaches to make  those who think
that economics and enforcement are  competing interests aware of the opportunities for achieving
both.

       Finally, the major  milestones being achieved  in the  area of free  trade and increased
international cooperation  are putting  new pressures on each government at all  levels to ensure
that their obligations are  met in regard to environmental  standards and  pollution. Membership in
the European Economic  Community has already spurred  commitments of  each of its member
states to  meet the growing  body of  EC environmental regulations. While compliance has been
uneven, the pressures within the  Community  are  increasing substantially and will likewise affect
those nations in Central and Eastern  Europe wishing to join the community. These pressures also
are evident in the "green" North American Free  Trade Agreement, recently negotiated between
the U.S., Mexico and Canada.

       Given the intensity of the program over the past four days, in one sense  we are ready to
go home  and reflect upon what has been discussed here. But  more has occurred than can be
measured  by the points  raised in presentations or discussions. We  will  all go  home with  a
renewed commitment to  continue to  improve  environmental enforcement, to continue to develop
the new friendships and  professional relationships we have made, and  to continue to  exchange
useful  experiences on  the most effective  ways  to achieve  compliance with environmental
requirements.

       In  Utrecht,  we  began  with  representatives  from 13   nations and two  international
organizations,  focusing  on the  U.S.,  Netherlands and  Western  Europe.  In Budapest,  the
Commission on the European Communities joined sponsorship and we have representatives from

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242                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
almost 40 nations and organizations, focusing on Central and Eastern Europe. We are pleased to
be able  to announce that the government of  Mexico has offered to host the third  International
Conference  on  Environmental Enforcement.  While  we  plan  to  focus  on  the problems  of
developing nations, and  a regional  emphasis on South  and  Central  America, we also plan to
continue  to  build upon the first two  Conferences  which focused on  developed industrialized
nations.  Central and Eastern Europe and other regions of  the world. The sponsorship will expand,
to  include the  United Nations  Environment Programme. We hope to  have representatives from
many more nations in this exchange.

      Thank you everyone, and please keep the momentum going.
      H. Tate Jr.                                          P. Verkerk
      Assistant Administrator                               Inspector General
      US EPA                                            VROM

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             243
MR. LUDWIG KRAMER  European Economic Community
Ladies and Gentlemen,

      I  have to say some words for the EEC Commission to rap up this Conference.
First of all of course to  deliver our warm  thanks to the Hungarian  government which hosted this
Conference so successfully and allowing  us to enjoy quite a number of very  pleasant moments,
like last  yesterday night where we went out to see  some really good dancing, horse riding, getting
some food and so. On my turn I  have  to thank all the people behind this screen  and it is
impossible to  innumerate  them all, all the more since  the  EEC Commission,  while  officially
cosponsoring this  event, has been relatively little involved in the actual administrative day to day
preparation.  The Commission is a small body compared to the EPA and this might be the reason
for  this  relative discretion, believe  me  ladies and  gentlemen,  all  the more do we  know  to
appreciate the  tremendous effort the Dutch  Department of the Environment and EPA have
invested into the  preparation of this Conference.  That was a tough time these  three  years for
these two bodies and they  had difficulties and they overcame them with a lot of courage and a lot
of enthusiasm  to  bring  us  all here together. I  would also like to  say something in substance to
perhaps this part of the  continent and these are five points which I would like to make.

      The first point is that I would like to take up a word which my friend Miltos  Vassilopoulos
had mentioned two days ago. Colleagues from Eastern and Central Europe. We are on your side.
If you look into the state  of enforcement inside  the EEC, and  I have  no  authority to talk for
anybody else, we  still have to do these things which we  all have  been  discussing  these last four
days. You have heard relatively little  I would say about failures of enforcement in Western Europe
but there are. It is sometimes horrible and it is sometimes deploring what kind of  waste of effort
there is  done in not protecting the environment by  not enforcing the rules which have been set by
parliaments,  by governments and by authorities.
      A number  of Western countries inside  the EEC have a tendency towards environmental
problems which might also be found back in this  region,  that pollution  is an act of god that it is
not something which you  can go against, which  you can fight, where you  can try to start the
citizen action, ask for information for transparency and so on. It comes somewhere from the sky
and you just suffer from it  and this is part of the EEC reality today 1992. We try to change these
things but it goes very gradually,  very  slowly and  there is no  hope even with such brilliant
conferences. There is no hope of making  a switch  and all change to the better.

      My second point is, and it was already Mr. de Vries who mentioned it a moment ago,  it
has  been  raised  on a  number of remarks during the Conference but  I believe it needs to be
stressed because  I also think it is of paramount importance. We have talked a lot of enforcement
and we  have talked much  less of the environment. This is clear because enforcement  is part of
the whole undertaking  and this Conference concentrated  on  the environment.  But where we
should be aware  of problems is the problems of  nature. Of nature conservation  and protection
considering  licenses, issuing good  licensing  permits certificates  authorization is  very  good but

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244                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
where  there is a conflict between a project and construction of an installation, construction  of a
road, motorway or an airport or an industrial plant and nature  the EEC experience is that in 99
cases out of 100 nature is on the  losing side. We  have not managed these last 20 years despite
all our  legislation  and despite  all our efforts  to  bring the slow  and gradual and  progressive
downgrading of nature, the disappearance of fauna and flora to hold, to reverse the  tendency in
Western Europe and be careful in  this part of the continent which has maintained a great number
of natural beauties, be careful that you do not believe it is a fatal way that nature must disappear
by human activity expense. There  are possibilities  to go against it and I submit to you that neither
in the west nor in the centre or in the east of this continent we do enough to protect the nature,
fauna and flora.
       All these words of sustainable development the Commission has issued a green book on
sustainable transport but sustainable  is written  in letters which you can not read and transport is
written in capital letters  and that is the problem of economic development. The conflict between
ecology and economy is the economy which prevails and  if do not manage with our enforcement
procedures to  change this tendency if we then look ahead  25-30  or more years ahead  there is
not much which we can give our children or  grandchildren or can leave  them.  This  I  find  the
biggest challenge  for  any enforcement  body, for  any enforcement  authority  indeed  for  any
environmental  authority because  we  have a  tendency  since we talk and communicate  with
polluters,  actual  or  potential,  industrial  developers  and  so  on. We  have  a tendency  of
overemphasising this  aspect of  arranging with  polluters. In her book "The  Silent Spring" Rachel
Carson told us, and again I take up this point,  that nature dies away in silence, that  nature does
not have voice, and if we  do not manage to  give a  voice to this disappearing  nature. All  our
efforts  in economic and industrial development they are not that successful I would say.

       The third point was touched already upon.  I do not believe  that either in Western Europe
nor in  Central and Eastern Europe  we will have the capacity of drafting legislation which is
revolutionary. Societies are not made like that.  Progress arrives by inches of millimetres,  if at all.
The  lesson for Central and  Eastern Europe, if there is any, can only be tried to  base  on your
indigenous potential of law making of  structures and to improve that step by step gradually. If you
can go quicker OK but  be careful because imports of systems sometimes have reverse effect.
Greater transparency,  increase of standing for NGO's,  increase  of  participation are  all very
important but these are to developed step by  step otherwise  the  machinery, the administration,
the bureaucracy  if you so wish  which has the  power in the west of Europe and perhaps in this
part of Europe too will hit back and the achievements are abroad to nothing.

       This is another aspect and  this is my fourth point that we must be careful, certainly on this
continent I can not say anything about the United States or North America. We must be careful of
avoiding that we come into a situation  of legalized pollution, that public authorities, enforcement
agencies arrange with polluters in order to set environmental legislation which finds agreement
and  acceptance among  public authorities and among  polluters  but  which might  not  be  that
acceptable for the environment. This, certainly  on this continent or in Western Europe if you so
wish, demonstrates  the  overwhelming  need  to  have somebody  to  criticise and  to  put  into
challenge the  authorities. During these  days  you have heard relatively little on  criticism  of
enforcement agencies, on public authorities. If  democracy is to be taken  seriously  then we need
criticism challenging of law makers and law enforcers  by  media, by NGO's, by citizens because
power  tends to corrupt we learn  at school. And absolute power tends to  corrupt absolutely. In

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                             245
Western Europe we have given most of the protection of the environment and the enforcement of
the protection legislation  to the administration.
      The power is there and already sharing the knowledge about pollution  meets this kind of
objection because sharing the knowledge means sharing power and therefore it goes ahead so
slowly and raises so many difficulties.  The legalised pollution is a thing which we must be very
careful of. Inside the EEC we find very nice words that environment impact assessments have to
be made for any motorway which is built, but I quote this example just to inform you that there is
an enormous effort of the whole transport sector all over Western Europe to get out of  this rule
and not to make environmental impact assessments or first get a governmental  decision or a
decision by parliament or by whomever to have this and that built and then make the assessment
and keep the decision, the option open. This is a risk which probably enforcement agencies alone
cannot solve.

      This brings me to my  last point, and than I would not longer bother you. I do believe that
the biggest problem  for  enforcement agencies is the problem that enforcement agencies which
are set up in our countries  do not enforce. For one  reason or the  other, either they cannot
enforce or they will not enforce. We might have to address much more in detail the point what do
we do  in  order to make  enforcement agencies actually  enforce.  In  Western  Europe  no
enforcement  administrations, to  my knowledge,  has ever been  brought to court. These kind of
court suits in theory do exist. In  practice they do  not exist.  If that is correct that the failure is with
the non-enforcement by  those bodies which  are set up than we have to think of  remedies and
means to  counter, attack or tackle this failure in  our society. All this to show that one should not
take back from this Conference that inside the EEC or in Western Europe, again I do not, cannot
and will not talk about the United States,  that things  are alright. They are not. The environment is
not in a good shape in Western Europe.
      The Dutch example, with  the greatest respect and admiration to the Dutch system, is not a
model which is generally existing  in Western Europe. We all know that and  the Dutch know it
themselves quite well. Do  not think that there is  a gap  between the West and the East  in these
things, they are  different degrees  in problems. This is the whole of  the  of criticise  what I  was
trying to say. Let us try to go away from this Conference and see what we can do in order to get
environmental legislation better enforced. We have some very negative experiences in the West.
Perhaps one day we could share those negative experiences also with you because we all can
learn from the past.

       I have to thank you for your patient attendance. The program organizers  have  made a
very heavy program, Sometimes it was tough to sit in more than 15 speakers a day. I  am sure
now that the  end is closed and the final reception too all this is forgotten.  I do  hope that this is a
beginning of a fruitful discussion and cooperation  in this  area of environmental enforcement.
Thank you very much. Good  luck.

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246                          INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT

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 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                                                     247
       CONFERENCE EVALUATION

       To enable the Conference Staff to evaluate the Conference and apply lessons and
suggestions to future Conferences, each participant was requested to complete an evaluation
form. The Conference Staff received 80 percent of the evaluation forms that were distributed
(approximately 130). Therefore, this evaluation fairly represents the views of the participants. Of
those responding, 45 % have expertise in the legal aspects of enforcement, 25 % have technical
expertise and 53 % are involved in policy and management. Some respondents indicated they
have expertise in more than one field.

1      CONFERENCE PURPOSE, GOALS AND  PARTICIPANTS

       The vast majority of participants were very enthusiastic about the second International
Conference on Environmental Enforcement. The initiative to organize a Conference with a focus
on the  development of domestic enforcement approaches was considered an excellent idea or
very useful by 82 % of the respondents. Only 11 % found it moderately useful (7 % no reply). No
one thought it was not useful. The focus on Central and Eastern Europe was appreciated even
more. Ninety-two percent found it an excellent idea or very useful. The remaining  respondents
(6 %) found this focus useful (2 % no reply).
   0%
             Exch. of Experience   Exch. of Experts    Raise Interest    Intern. Cooperation

                                                    BH moderately useful
     very useful
I"  I hardly useful
useful
inappropriate
      Figure 1  Appropriateness of the purpose and goals.

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248
                                INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       In response to a question about opinions on the appropriateness of the Conference
purpose and goals and its success in achieving these, 80 % of the respondents found the
purpose and goals of great value or very useful to the participants. Only 9 % found it moderately
useful. No one found the purpose  and goals not useful (11 %  no reply).

       Figure 1 represents responses regarding the appropriateness of the purpose and goals.
This question is divided into four subquestions. 86 % of the respondents found useful or very
useful the exchange of experiences (Figure 1, Exch. of Experiences) and experts (Exch. of
Experts), the increase in the level of interest in enforcement (Raise Interest) and the
enhancement of possibilities for international cooperation (Intern. Cooperation). Only 12 % found
these to be moderately  useful to not useful (2  % no reply).

       Figure 2 represents responses regarding the success in achieving the Conference
purposes: over 71 % of the respondents thought that  the Conference was successful or very
successful in achieving  its purposes. 24 % found the Conference to be moderately to not
successful (4 % no reply).
    70%
    60%-
    50%- —
    40%- -
    30%- -
    20%-	
     10%
                Exch. of Experience  Exch. of Experts     Raise Interest    Intern. Cooperation

               very successful   m successful       |H moderately succ.
          [~l hardly successful [	."] not successful
         Figure 2 Succes in achieving the Conference purpose.

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 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                                                     249
       Figure 3 represents responses regarding the participants attending the Conference: the
number, the level and the mix of expertise of the participants (respectively No. of Indiv., Level of
Indiv., and Mix of Expertise) was considered successful to very successful by 80 % of the
respondents. 19 % found these to be moderately successful (2 % no reply). There were no
scores lower than moderately successful.
       The number of countries and organizations (respectively No. of Countries and Organiza-
tions) represented at the Conference was considered very successful or successful by 74 % of
the respondents. 25 % found this to be moderately successful to not successful (1 respondent did
not reply).
   70%
   60%- —•
   50%
    0%
               No. of indiv.   Level of indiv.   Mix of Epertise  No. of countries  Organisations

                                                    BH moderately succ.
very successful   g:"] successful
hardly successful LZ'J not successful
       Figure 3 Participants attending the Conference.
2     CONFERENCE THEMES

2.1    Responses from the Evaluation Forms

      For each theme the evaluation contained a question regarding the usefulness of the theme
contents and the mix of topics addressed. From Figure 4 it can be concluded that over 79 % of
the  respondents thought the theme contents were useful or very useful. 14 % found it moderately
or hardly useful. One person found a theme not useful  (7 % no reply).

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250
INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       If we look at the separate themes it can be seen that the themes Context for Enforcement
(see Figure 4, "Theme #1, Context") and Public Disclosure and Citizens' Role in Enforcement
("Theme #7, Public Disc.") score highest, with respectively 88 % and 79 % successful or very
successful responses and with more very successful than successful responses. Designing
Enforceable Environmental Requirements ("Theme #2, Designing") and Developing an Effective
Compliance Monitoring Capability ("Theme #3, Compliance") score also very high with
respectively 89 % and 85 % successful or very successful responses. The other themes,
Developing Authorities and Legal Enforcement Capabilities ("Theme #4, Capabilities"), Economic
Development and Ownership Issues ("Theme #5, Economic"), and Solid and Hazardous Waste
("Theme #6, Waste") score a little less with respectively 78 %, 68 %, and  69 % successful or very
successful, but with  relatively more responses being moderately or hardly successful.
   50%
   45%	
   40%-
   35%	
   30%-
   25%- -
   20%	
    15%-
    10%	
                Context   Designing   Compliance  Capabilities  Economic    Waste    Public Disc.
       Themes #1       #2      #3       #4       #5      #6       #7
              very successful
              hardly successful
    successful
    not successful
moderately succ.
       Figure 4 Usefulness of theme contents.
       A similar response was obtained for the mix of topics addressed (Figure 5, same
 indications for theme titles); in general over 65 % found the mix of topics (very) useful. 23 %
 found it moderately to not useful (2 persons found a particular theme not useful)  (12 % no reply
 for this question). The pattern of the last question is also visible: themes 1 and 7 have high
 scores (respectively 74 % and 66 % successful or very successful) and more responses being
 very successful than successful. Themes 2 and 3 also score very high with respectively 69 % and
 68 % successful and very successful. Themes 4, 5, and 6 again score a little less with 64 %,

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                 251
53 %, and 63 % successful or very successful, and with relatively more responses being
moderately to not successful.
                                         -n
               Context   Designing   Compliance  Capabilities  Economic    Waste    Public Disc.
       Themes #1       #2       #3       #4       #5       #6      #7
             very successful
             hardly successful
successful
not successful
moderately succ.
       Figure 5 Mix of topics addressed.
      It is noted that the scores for the contents are generally higher than the score for the mix
of topics by an average of 14 %. The scores for the Context of Enforcement are best. The theme
on Economic Development and Ownership Issues scores least, but even then only 5 % thought
the theme contents to be less than moderately useful.

2.2    Additional Remarks

      Specific remarks were made by a large number of respondents. The Conference Staff has
tried to give an overview of these remarks by categorizing the type of remark and by selecting the
most representative suggestions. In the following paragraph these are presented per theme.

      Theme #1: Context for Enforcement
      -  Setting the context for the Conference was essential was mentioned three times.
         The economic (cost/benefit) aspects given in the  context of enforcement could have
         gotten more attention according to two repondents.

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252                            INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
         It was felt by one participant that more consideration should be given to matters unique
         to the region (Central and Eastern Europe).

      Theme #2: Designing Enforceable Environmental Requirements
      -  The theme was felt to be somewhat too general and theoretical by four respondents. A
         more practical  approach with real examples for developing countries is needed.
      -  The problem of achieving full environmental compliance with EEC-standards by Central
         and Eastern European countries is  left open.
         The key ideas  for this topic were very well underlined.

      Theme #3: Developing an Effective Compliance Monitoring Capability
      -  Some remarks (5 respondents)  were concerned that the theme did not have sufficient
         variation with duplications of speakers on theme #1 and duplicate of each other). A
         Japanese presentation and presentations on Central European countries would have
         been interesting.
         One participant thought this theme  could also be somewhat less theoretical.

      Theme #4: Developing Authorities and Legal Enforcement Capabilities
         The evaluation of this theme also resulted in some (6) comments that the content was
         considered too theoretical.  More specific country scenario's would have heightened the
         interest.
         However this was described by  some other respondents (2) as being the most
         successful theme, since it got people in the region thinking about practical solutions.

      Theme #5: Economic Development and Ownership Issues
         The theme contained a good mixture of methodology and experiences of Central and
         Eastern European countries according to four respondents.
         Twice a remark was made that  the  differences between countries were too great to
         make a comparison.
         One participant considered it to  be  a good idea to compare environmental enforcement
         in different countries with the emphasis on the differences in enforcement between
         state owned and private enterprises.

      Theme #6: Solid and Hazardous Waste
         Remarks on this theme differed between the belief that such specific topics would
         belong to a separate Conference and that this was among the best sessions because
         of the concreteness and practicality.
      -  The problems  addressed in this theme are very important to Central and East
         European countries because of  weaknesses in the environmental law system and the
         execution of it (3 repondents).

      Theme #7: Public Disclosure and Citizens' Role in Enforcement
         Although this was considered by some to be a very important issue to address at the
         Conference, some others thought this to be a rather alien concept in the region. Many
         of the matters  discussed do not bear on the situation in Central  and Eastern European
         countries.

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
253
          One respondent thought that there was too much focus on citizen suits. Perhaps it
          would have been better to deal with broader citizen's roles first.

       Most participants think that the Conference should be held annually (28 % of the
respondents) or biannually (53 % of the respondents).
3     CONFERENCE ORGANIZATION

      The last set of questions regarded the organization of the Conference (Figure 6). In
general the respondents found the different organizational items good to excellent. Over 74 %
thought the accommodation, location, schedule, information, service desk, displays, and trans-
portation  of the Conference to be very good to excellent. 21  % thought these to be good,
moderate or poor (5 % no reply).
   60%-
             Accommodation Location   Schedule   Information Service Desk   Displays  Transportation
        liSfel moderate I	I  poor


       Figure 6 Information on Conference Organization
      Especially the Information on the Conference and the Service Desk were highly
appreciated. The Conference Schedule and Transportation were less appreciated by comparison,
but were still considered "good".

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254                             INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
      The choice for having two hotels at such distance that bus transportation needed to be
provided, led to the remark that when possible hotels need to be in walking distance of the
Conference centre and need to be in different price ranges.
4     GENERAL REMARKS

      Apart from the comments referring to a specific theme, general comments were given on
the Conference. These have been categorized as follows:

          Many respondents expressed the need for more working group sessions to ensure a
          better exchange/discussion regarding  experiences in managing environmental
          enforcement programs. This would also result in more time for informal discussions.
          The Conference Staff might consider selecting topics that are still emerging  ideas or
          cutting edge issues and use a session to generate creative and real thinking.
          In general, several respondents asked for fewer themes, fewer speakers, more depth,
          more examples, more free time and more time for panelists (at least 15 minutes).
      -   Some  respondents felt that there was not enough  attention for the situation in Central
          and Eastern Europe. They missed the idea of having a dialogue. Some respondents
          disagreed with the basic offset that environmental  enforcement as practised in the
          West is a specific method  that can be taught (management techniques) and transferred
          to the  East. However, countries differ a lot from each other and these differences in
          national character will affect the success of the transfer of various forms of
          enforcement techniques.
      -   The result of the next Conference should be a "Conference Declaration" subscribed to
          by participants and authorities.
          Respondents  strongly support a broad international distribution of the Proceedings.
          One suggestion was to have translations made of a Summary of the Proceedings in
          languages of the Central and East European countries.
      -   The establishment of a newsletter would make it possible to exchange experiences
          during the period between Conferences.
          Another suggestion was to organize workshops (in "off years") on specific topics like
          the link between policy making and enforcement.
          Many thanks to the Staff and EPC-members for their excellent work before and during
          the Conference.

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                                                                                          255
      LIST OF PARTICIPANTS

 Adegoroye, Dr. A.
   Head of Enforcement and Inspectorate
   Department
   Federal EPA
   PMB 12620
   Lagos
   Nigeria
   tel: (2341) 680308
   fax: (2341) 611531

 Alcocer, Lie. A.
   Subprocurador Federal
   Procuraduria Federal de Proteccion al
   Ambiente
   Blvd.  Pipila no. 1, Tecamachalco
   Naucalpan, Edo.  De Mexico
   Mexico
   tel: (525) 5898559
   fax: (525) 5897983

 Alders, Mr. J.G.H.
   Minister of Environment (code 100)
   P.O. Box 20951
   2500  EZ Den Haag
   Netherlands
   tel: (3170) 3393404
   fax: (3170) 3391350

 Aloisi de Larderel, Mrs. J.
   Director UNEP IE/PAC
   39-43 Quai Andre Citroen
   75739 Paris  Cedex  15
   France
  tel: (331) 40588850
  fax: (331) 40588874

Andreescu, Mr. T.I.E.
  Department Manager
  Ministry of Environment, the International
  Department
  Libertatii Boulevard  12
  5 Bucharest
  Romania
  tel: (400) 815386
  fax: (400) 120403
 Angst, Mr. D.
   Sachsisches Staatsministerium fur Umwelt
   und Landesentwicklung
   Ostra Allee 23
   Dresden
   Germany
   tel: (49351) 4862208
   fax: (49351) 4862209

 Bakalov,  Mr. V.
   Ministry of Environment
   67, Gladstone street
   1000 Sofia
   Bulgaria
   tel: (3592) 876151
   fax: (3592)521634

 Bandi, Prof. G.
   Secretary General, Professor of Law
   Hungarian Lawyers' Association
   Szemere u. 10
   1054 Budapest
   Hungary
   tel: (361) 1314574
   fax: (361) 1114013

Beblo, Dr. W.S.
   Director Ecological Department
   Voivodship Katowice
   ul. Jagiellonska 25
   PL-40-032 Katowice
   Poland
  tel: (483) 1561134
  fax: (483) 1561134

Beck, Mr. H.
  Official  Representative of the EEC
  Berc u.
   1016 Budapest
  Hungary
  tel: (361) 1664487/1664587
  fax: (361) 1664221

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                                  INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 Bendo, Mr. V.
   Council of Ministers
   Committee Environmental Protection and
   Preservation
   Pr. Kongresi I Permitit
   Tirana
   Albania
   tel: (35542) 27907
   fax: (35542) 27888

 Bierman-Beukema toe Water, Ms. M.E.
   Regional Inspectorate, Zuid-Holland
   Huis te Landelaan 492
   2280 HH Rijswijk
   Netherlands
   tel: (3170)3985826
   fax: (3170) 3985850

 Blackburn, Mr. N.
    Director
    ICC
    38, Cours Albert 1er
    75008 Paris
    France
    tel: (331)  49532808
    fax: (331) 49532859

  Bosnjakovic, Mr. B.
    The Regional Environmental Center for
    Central and Eastern Europe
    for Central and Eastern Europe
    Miklos ter 1
    1035 Budapest
    Hungary
    tel: (361) 1686284
    fax: (361) 1687851

  Bowman, Ms. M.
    Director Environmental Program
    Environmental Law Institute
    1616 P. Street NW
    Washington DC 20036
    USA
    tel: (1202)9393811
    fax: (1202) 3285002
Braams, Mr. W.
  Government Prosecutor
  P.O.Box 11756
  2502 AT Den Haag
  Netherlands
  tel: (3170)3488700
  fax:(3170)3856412

Brajovic, Ms. J.
  Ministry of the Environment of the Republic of
  Montenegro
  Stanka Dragojevica 2
  Podgorica
  Montenegro
  tel: (3881) 42066 ext. 332
  fax:(3881)42762

Brinchuk, Dr. M.
  Director Center of Environmental Legal
  Studies
  Institute of State  and Law
  Znamenka 10
   119841 Moskou
  CIS
  tel: (7095) 007095/2918721
  fax: (7095) 2918574

 Caisou, Mr. O.
   Directorate-General Environment
   Nuclear Safety and Civil Protection
   Wetstraat 200
   B 1049 Brussels
   Belgium
   tel: (322) 2990319
   fax: (322) 2990307

 Cassini, Mr. G.
   Diplomatic Counsellor
   Ministry of Environment
   Piazza Venezia  11
   00187 Rome
   Italy
   tel: (396) 67593209
   fax: (396) 67593203

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                                                                  257
 Ciobota, Mr. O.
   President
   Ecological Foundation of Romania
   sos Oltenitei nr. 35-37
   Bucarest, sector 4
   Romania
   tel: (400) 346340
   fax: (400) 120929
 de Vries, Dr. H.A.M.A.
   RIMH Noord-Brabant
   Postbus 90134
   5200 MA Den Bosch
   Netherlands
   tel: (3173) 158364/370
   fax: (3173) 145035
 Cuillerier, Mr. P.
   Director, Office of Enforcement
   Environment Canada
   351 St. Joseph Blvd., 18th Floor
   Hull, Quebec K1A OH3
   Canada
   tel: (1819) 9531173
   fax: (1819) 9533459
 DeLong, Ms. A.
   Program Analyst
   U.S.  EPA, Office of Enforcement
   401 M. Street, S.W. (LE-133)
   Washington, DC 20460
   USA
   tel: (1202) 260 8870
   fax: (1202) 2607553
 Danicic, Ms. J.
   Department of Watermanagement
   Ministry of Building/Construction and Env.
   Protection
   Avenija Vukovar 78
   41000 Zagreb
   Croatia
   tel: (3841) 610522/510935
   fax: (3841) 510137
David Gidi, Mr. A.
   Chief, Programming and Technical Assistance Unit
   SEDUSOL
   Tecamachalco
   Mexico City
   Mexico
   tel: (525) 5894398
de Baere, Mr. R.
   Beleidsmedewerker
   Bond Beter Leefmilieu
   Overwinningsstraat 26 (bus 11)
   B-1060 Brussels
   Belgium
  tel: (322) 5392217
  fax: (322) 5390921
Demszky, Dr. G.
   Mayor
   Office of the Mayor of Budapest
   Varoshaz  ul 9-11
   1052 Budapest
   Hungary
   tel: (361) 1176079
   fax: (361)  1176079
Devaney, Mr. E.
   Director, Office of Criminal Enforcement
   U.S. EPA
   LE 134 X, 401 M. Street, S.W.
   Washington, DC 20460
   USA
   tel: (1202) 2604539
   fax: (1202) 2606848
Diamond, Mr. B.M.
  Director, Office of Waste Programs Enforcement
  U.S. EPA
  401 M. Street, S.W. (OS-500)
  Washington, DC 20460
  USA
  tel: (1202) 2604814
  fax: (1202)2603106

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258
                                 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 Dordregter, Mr. P.Ph.
   Directeur
   Vereniging Nederlandse Gemeenten
   P.O. Box 30435
   2500 GK Den Haag
   Netherlands
   tel: (3170) 3738455
   fax:  (3170) 3635682

 Duncan, Ms. Prof.  L.F.
   Assistant Deputy Minister
   Department of Renewable Resources,
   Government of Yukon
   P.O. Box 2703
   Whitehorse, Yukon Y1A 2C6
   Canada B3H 4H9
   tel: (1403) 6675811
   fax: (1403) 6672438

  Eichbaum, Mr. W.M.
   Vice President Int. Environmental Quality
   World Wildlife Fund
    1250 Twenty-Fourth St., N.W.
   Washington DC 20037
    USA
   tel:  (1202)7789645
    fax: (1202) 2939211

  Everaarts, Mr. F.W.
    Internationale Milieuzaken (code 670)
    VROM/DGM
    P.O. Box 30945
    2500 GX Den Haag
    Netherlands
    tel: (3170) 3394706
    fax:(3170)3391306

  Filipov, Mr. I.
    Secretary General
    Ministry of Environment
    67, Gladstone street
    1000 Sofia
    Bulgaria
    tel: (3592) 876151
    fax: (3592) 521634
Fiihr, Dr. M.
  Oko-lnstitut e.V.
  ELNI
  Bunsenstrasse 14
  6100 Darmstadt
  Germany
  tel: (496151) 819130
  fax:(496151)819133

Fulop, Dr. S.
  Public Prosecutor
  Chief Public  Prosecutor's Office
  Marko u. 16
  1055 Budapest
  Hungary
  tel: (361) 1316150
  fax: (361) 1120667

Fulton, Mr.  S.
  Deputy Assistant Administrator
  Office of Enforcement, U.S. EPA
  401  M. Street, S.W. (LE-133)
  Washington, DC 20460
  USA
  tel: (1202) 2604137
  fax:  (1202) 260 0500

Garcia, Mr. P.R.
   Director General SADA-AMAZONAS
   Direccion de Parques Nacionales
   Av.  Romulo Gallegos, Parque Miranda
   Caracas
   Venezuela
   tel: (582) 4081822/1826
   fax: (582) 2853337/2853070

 Gerardu, Mr. J.J.A.
   HIMH/HM (code 681)
   VROM/DGM
   P.O. Box 30945
   2500 GX Den Haag
   Netherlands
   tel:  (3170) 3172621
   fax:(3170)3172645

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                                                          259
 Geysels, Mr. F.
   Generale Staf van de Rijkswacht
   Hogere Directie van de Operaties
   Fritz Toussaintstraat  47
   1050 Brussels
   Belgium
   tel: (322)  6426307
   fax: (322) 6464940

 Glaser, Mr. R.
   RIMH/VROM
   P.O. Box  7073
   4330 GB  Middelburg
   Netherlands
   tel: (311180)33792
   fax: (311180) 38245

 Goetz, Mr. C.J.
   Enforcement Division Administrator
   Allegheny County Bureau of Air Pollution
   Control
   301 39th Street, Building #7
   Pittsburgh, PA 15201-1891
   USA
   tel: (1412)5788107
   fax:(1412)5788058

 Gombas, Mr. I.
   Chief, Section for  Environment Protection
   Tisza Chemical Works (TVM)
   P.O. Box  1
   5007 Szolnok
   Hungary
   tel: (3656) 36111
   fax: (3656) 36732

Grodzicka-Kozak, Ms. D.
   Director
   Gdansk Department of Environmental
   Protection
   ul. Okopowa 21/27
   80-938 Gdansk
   Poland
   tel: (4858) 377369
   fax: (4858) 317833
 Gyulai, Dr. I.
   Vice President
   Green Action
   Miskolc, Kossuth 13
   3525 Miskolc
   Hungary
   tel: (3646) 326436

 Hallo, Mr. R.E.
   Netherlands Society for Nature &
   Environment
   Donkerstraat 17
   3511 KB Utrecht
   Netherlands
   tel: (3130) 331328
   fax: (3130) 331311

 Handyside, Mr. I.
   East Division Head
   Her Majesty's Inspectorate of Pollution
   Howard House, 40-64 St. John's Street
   Bedford MK42  DDL
   United Kingdom
   tel: (44234) 273919
   fax: (44234) 213032

Hanmer, Ms. R.
   Head of Division Pollution Prevention and
   Control Div.
   OECD
   2, Rue Andre-Pascal
   75016 Paris
   France
  tel: (331)45249871
  fax: (331) 45247876

Haraida, Mr. M.
  Ministry of Environment of Ukraine
  vul Krestchatik 5
  252001 Kiev 1
  Ukraine
  tel: (7044) 2287065
  fax: (7044) 2298383

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260
                                  INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 Hardi, Dr. P.
   Executive Director
   The Regional Environmental Center for
   Central and Eastern Europe
   Miklos ter 1
   1035  Budapest
   Hungary
   tel: (361) 1686284
   fax: (361) 1687851

 HegedCis, Dr. A.
   Chief, Public Prosecutor's Office of Buda
   Surroundings
   Executive Secretary of the Hungarian Public
   Prosecutor's Association
   Szabadsag u. 164
   2040  Budaors
   Hungary
   tel: (361) 1668755
   fax: (361) 1668755

 Homonnay, Dr. A.
    Director
    ENVIMARK Ltd.
    P.O.  Box 27
    1453 Budapest
    Hungary
    tel: (361) 1143648
    fax: (361) 1341514

  Irwin, Ms. F.
    Director Pollution Prevention
    World Wildlife Fund
    1250 Twenty-Fourth St., N.W.
    Washington DC  20037
    USA
    tel: (1202)  7789646
    fax:(1202)2939345

  Janota-Bzowski, Ms. J.
    Air Component Manager, Env. Co-ordination
    and  Management Unit
    Min.  of Env. Protection, Natural Resources
    and  Forestry
    ul. Wawelska 52/54
    00-922 Warszawa
    Poland
    tel: (4822) 258829
    fax:  (4822) 254141
Jendroska, Dr. J.
  Member Research Group on Environmental
  Law
  Polish Academy of Sciences
  ul. Kuznicza 46/47
  50-138 Wroclaw
  Poland
  tel: (4871) 444747
  fax: (4871) 444747

Kamienski, Mr. Z.
  Director of Supervision Department
  State Inspectorate for Environmental
  Protection
  ul. Wawelska 52-54
  00-922 Warshaw
  Poland
  tel: (4822) 251524
  fax: (4822) 251104

Keough, Mr. P.
  Deputy Regional Administrator
  U.S. EPA Region 1-New England
  JFK Federal Building, room 2203
  One Congress St., Boston, MA 02203
  USA
  tel: (1617) 5653402
  fax:(1617)5653415

 Keresztes, Mr. S.
   Minister for Environment and Regional Policy
   P.O. Box 351
   1394 Budapest
   Hungary
   tel: (361) 2014133/2243
   fax: (361) 2012846

 Kesselaar, Dr. F.H.
   HIMH/HM (code 681)
   VROM/DGM
   P.O. Box 30945
   2500 GX Den Haag
   Netherlands
   tel: (3170)3172624
   fax: (3170) 3172645

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                                                           261
 Klatte, Dr. E.R.
   DG Environment, Nuclear Safety and Civil
   Protection
   Commission of the European Communities
   Rue de la Loi 200, B34 1-27
   B 1049 Brussels
   Belgium
   tel: (322)  2968769
   fax: (322) 2969560

 Klem, Mr. S.H.
   Specialized  Officer
   I.C.P.O. Interpol, General Secretariat
   50, Quay  Achille Lignon
   69006 Lyon
   France
   tel: (33) 72447190
   fax: (33) 72447163

 Klos, Dr.
   Gdansk Department of Environmental
   Protection
   ul. Okopowa 21/27
   80-938 Gdansk
   Poland
   tel: (4858) 377369
   fax: (4858) 317833

Kolowietz, Mr. I.
   Ministry of Environment of Ukraine
   Lviv, Morshiuska 11
   Lviv
   Ukraine
  tel: (7044) 353467

Komsa, Mr. J.
  'Biro Lajos' Ecological Society
  Zorilor Street 45/A
  RO 3900 Satu-Mare
  Romania
  tel: (4097)  38627
 Kostytsky, Mr. V.
   Vice Minister
   Ministry of Environment of Ukraine
   vul Krestchatik 5
   252001 Kiev 1, Ukraine
   Ukraine
   tel: (7044) 2262430
   fax: (7044) 2298343

 Kotaska, Mr. M.
   Department of International Relations
   Federal Committee for the Environment
   Slezska 9
   120 29 Praha 2
   CSFR
   tel: (422) 2152195
   fax: (422) 256938

 Kramer, Dr. L.
   Commission of the European Communities
   DG Environment, Nuclear Safety and Civil
   Protection
   34, Rue Belliard
   1049 Brussels
   Belgium
   tel: (322) 2992265
   fax: (322)  2991070

Kromarek, Ms. P.
   Director Environment
   Etf Aquintaine
   Tour Elf CEDEX 45
   92078  Paris La Defense
   France
   tel: (331) 47447862
   fax: (331) 47446918

Kruzfkova, Dr. E.
   Executive Director
   Institute for Environmental Policy
   U dvou srpu 2
   150 00 Praha 5
  CSFR
  tel: (422) 533090/534833
  fax: (422) 527808

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262
                                  INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 Kundrotas, Mr. A.
   Principal Economic Advisor
   Department of Environmental Protection
   Juozapaviciaus 9
   2600 Vilnius
   Lithuania
   tel: (70122)356627
   fax:(70122)358020

 Levedag, Mr. P.
   Chief Investigations
   Environment Canada
   25 St. Clair Avenue E.
   Toronto, Ontario M4T 1M2
   Canada
   tel: (1416)9731073
   fax: (1416)9731160

 Linde, Ms. I.
   Legal Adviser
    Environmental Protection Committee
   25 Peldu Street
   226282 Riga
    Latvia
   tel: (70132) 226472
   fax:(0132)228159

  Linn Locher, Ms. M.
    Bundesamt fur  Umwelt, Wald und Landschaft
    Hallwylstrasse 4
    3003 Bern
    Switzerland
    tel: (4131)619091
    fax: (4131) 433187

  Macarol-Hiti,  Dr. M.
    Sanitary Inspector
    Ministry of Health
    Parmova 33
    61000 Ljubljana
    Slovenia
    tel: (3861) 320743
    fax: (3861) 322284
Macrory, Prof. R.
  Head Environmental Law Department
  Imperial College Centre for Environmental
 . Technology
  48 Princes Gardens
  London SW7 2PE
  United Kingdom
  tel: (4471) 589 511 ext. 8945
  fax: (4471) 8237892

Madonna, Mr. S.J.
  State Environmental Prosecutor
  New Jersey Department of Law & Public
  Safety
  25 Market Street (CN  118)
  Trenton, NJ 08625
  USA
  tel: (1609) 2923924
  fax: (1609) 7774054

 Mandoki, Dr. I.
  Officer-in-charge
  State Property Agency
  P.O. Box 708
  1399 Budapest
  Hungary
  tel: (361) 1294800/1359
  fax: (361) 1179825

 Mara, L.
   Director
   Ministry of Environment
   12 Bd. Libertatii
   Bucharest 5
   Romania
   tel: (400) 814460
   fax: (400) 120403

 Maslany, Mr. T.J.
   Division Director, Air  and Toxics
   U.S. EPA Region 3
   728 Raynham Road
   Collegeville Pennsylvania 19426
   USA
   tel: (1215) 5979390
   fax:(1215)5802011

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                          263
 Maslarova, Ms. L.
   Legal Department
   Ministry of Environment
   67, Gladstone street
   1000 Sofia
   Bulgaria
   tel: (3592) 876151/205
   fax: (3592) 521634

 Matua,  Mr. A.
   Committee Environmental Protection and
   Preservation
   Pr. Kongresi I Permitit
   Tirana
   Albania
   tel: (35542) 22439/32481
   fax: (35542) 27888

 McCalla, Dr. W.
   Natural Resources Conservaton Authority
   40 East Street
   Kingston
   Jamaica
   tel: (1809)9221217
   fax: (1809) 9225202

 Moe, Mr. M.
   Head of Division
   Ministry of the Environment
   Strandgade 29
   1401 Copenhagen
   Denmark
   tel: (45) 31578310
   fax: (45) 31572449

 Mulkey, Ms. M.
   Regional  Counsel Region 3
   U.S.  EPA
   841 Chestnut Building
   Philadelphia, PA 19107
   USA
   tel: (1215) 5979821
   fax:(1215)5973235
Nagy, Prof. B.
  Associate Professor
  Faculty of Law, ELTE University
  P.O. Box 109
  1364 Budapest
  Hungary
  tel: (361) 2668055
  fax:(361)2668055

O'Meara, Ms. V.A.
  Assistant Attorney General-Designate
  Department of Justice, Environment and
  Natural Resources Division
  9th and Pennsylvania Avenue, N.W. Room
  2143
  Washington, DC 20530
  USA
  tel: (1202)  5142701
  fax: (1202) 5140557

Paddock, Mr. L.
  Minnesota  Assistant Attorney General
  102 State Capitol
  St. Paul, MN 55155
  USA
  tel: (1612)2966597
  fax:(1612)2974193

Philippi, Mr. A.
  Head of Department
  CETESB-Cia Technologia de Saneamento
  Ambiental
  Av Prof. Frederico Herman Jr, 345
  05489 Sao Paulo
  Brazil
  tel: (5511)  2107623
  fax:(5511)81302271

Plaut, Mr. J.
  Director Worldwide Environmental Programs
  Allied-Signal Inc.
  P.O. Box 1013
  Morristown, NJ 07962
  USA
  tel: (1201)4556570
  fax: (1201) 4554835

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264
INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 Popescu, Ms. Dr. D.
   Legal Advisor
   Institute for Legal Research
   3-dul M. Kogalviceana Nr. 33
   70602 Bucharest
   Romania
   tel: (400) 151198
   fax: (400) 120403

 Popov,  Mr. E.
   Ecoglasnost
   Institute of Ecology, Bulgarian Academy of
   Sciences
   2 Yuri Gagarin Street 1113
   1113 Sofia
   Bulgaria
   tel: (3592) 705379/882665
   fax: (3592) 705498/882665

 Putz, Prof. Dr. M.
   Ministerium fur Umwelt, Raumordnung und
   Landwirtschaft
   des Landes Nordrhein-Westfalen
   Postfach 30625
   400 Dusseldorf 30
   Germany
   tel: (49211)4566550
   fax: (49211) 4566388

 Puka, Mr. V.
   Instituti Hidrometeorogjik
   Environment Protection Department
   Pr. Kongresi I Permitit
   Tirana
   Albania
   tel: (35542) 22169/33413
   fax: (35542) 27900
              Radecki, Dr. W.
                Member Research Group on Environmental
                Law
                Polish Academy of Sciences
                ul. Kuznicza 46/47
                50-138 Wroclaw
                Poland
                tel: (4871)444747
                fax: (4871) 444747
              Rehacek, Mr. V.
                Incom
                Milheimova str. 611
                CS 530 82 Pardubice
                CSFR
                tel: (4240) 36885
                fax: (4240) 30566

              Reiniger,  Mr.  R.
                Deputy Director
                National Agency for Environment
                Alkotmany  u. 29
                1054 Budapest
                Hungary
                tel: (361) 1322787
                fax: (361) 1327196

              Relea, Mr. F.G.
                Director De Junta Residus
                Departament de Medi Ambient, Generalitat de
                Catalunya
                Passeig de Gracia, 94
                08008  Barcelona
                Spain
                tel: (343) 4873778
                fax: (343) 4873307

              Rummel-Bulska, Dr. I.
                Coordinator
                UNEP/ISBC
                Case Postale 59
                1292 Chambesy-Geneva
                Switzerland
                tel: (4122)  7582510
                fax:(4122)7581189

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                          265
 Rzewuska, Dr. E.
   Local Government Parliament
   Biuro Sejmiku Wojewodzkiego
   pi. Powstancow Warszawy 1
   53 Wroclaw
   Poland
   tel: (4871)35524
   fax: (4871) 35524

 R<(>dland, Mrs. G.
   State Pollution Control Authority
   P.O. Box8100DEP
   0032 Oslo 1
   Norway
   tel: (472) 573621
   fax: (472) 676706

 Schober, Dr. W.
   Deputy Director General Section II
   Ministry  for Environment, Youth and Family
   Untere Donaustrasse 11
   1020 Vienna
   Austria
   tel: (431) 0222/211-32/2039
   fax: (431)0222/211-32/2008

 Selfo, Mr. L.
   Chairman Project Bureau of Public Works
   Parliamentary Committee of Environment and
   Public Health
   Pr. Kongresi  I Permitit
   Tirana
   Albania
   tel: (35542) 33515

 Sheehan, Mr. C.
   Environmental and Natural Resources
   Division
   Department of Justice
   9th and  Pennsylvania Avenue
   Washinghton, DC 20530
   USA
   tel: (1202)5144361
   fax:(1202)5144231
Silina, Ms. M.
  FOE-East and Greenway
  P.O. Box 163
  81499 Bratislava 1
  CSFR
  tel: (427) 495264
  fax: (427) 495264

Smeets, Mr. J.H.P.
  First Secretary, Embassy for Environmental
  Affairs
  Royal Netherlands Embassy
  Nostitz Palace, MaltezskS nam. 1
  11000 Praha 1
  CSFR
  tel: (422) 531378/531368
  fax: (422) 531368

Smith, Mr. T.T.
  Hunton & Williams
  Avenue Louise 106
  B-1050 Brussels
  Belgium
  tel: (322) 6460010
  fax: (322) 6460246

Stec, Mr.  S.
  Liaison of the Central and East European
  Law Initiative American Bar Association
  Andrassy ut 117, I/7
  Budapest
  1062 Hungary
  tel: (361) 1316150/808
  fax: (361) 1120667

Stodulski, Mr. M.A.
  Institute for Sustainable Development
  ul. Kryzwickiego 9
  02078 Warshaw
  Poland
  tel: (4822) 252558/250378
  fax: (4822) 253461

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266
INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 Syryczynski, Dr. P.
   State Inspectorate for Environmental
   Protection
   Wawelska Str. 52-54
   00-922 Warshaw
   Poland
   tel: (4822) 251524
   fax: (4822)251104

 Tate, Mr.  H.H.
   Assistant Administrator
   U.S. EPA, Office of Enforcement
   401 M. Street, S.W. (LE-133)
   Washington, DC 20460
   USA
   tel: (1202)2605145
   fax: (1202) 2600500

 Terselic, Mr. V.
   Green Action Zagreb
   Radnicki Cesta 22
   41000 Zagreb
   Croatia
   tel: (3841) 610951
   fax:(3841)610951

 Tb'kes, Mr. I.
   Director of Dep. for Int. Cooperation and
   Information
   Ministry of Environment and Regional Policy
   P.O. Box 351
   1394 Budapest
   Hungary
   tel: (361) 2013843
   fax: (361) 2012846

 van der Meer, Ms. Y.A.
   National Criminal Intelligence Service
   P.O. Box 20304
   2500 EH Den Haag
   Netherlands
   tel: (3170) 3769340
   fax: (3170) 3768754
              van der Voet, Ms. M.
                Directie Voorlichting en Externe Betrekkingen
                (code  120)
                Ministerie van VROM
                Postbus 20951
                2500 EZ Den Haag
                Netherlands
                tel: (3170) 3393670
                fax:(3170)3391351

              van Dijk, Mr. J.
                Gedeputeerde Provincie Groningen
                P.O. Box 610
                9700 AP Groningen
                Netherlands
                tel: (3150) 164127
                fax: (3150) 185615

              Van Heuvelen, Mr. R.
                Acting Director
                Office of Civil  Enforcement, U.S. EPA
                401 M. Street, S.W. (LE-133)
                Washington, DC 20460
                USA
                tel: (1202) 2604540
                fax: (1202) 2600500

              van Schouwenburg, Mr. H.
                Internationale Milieuzaken  (code 670)
                VROM/DGM
                P.O. Box 30945
                2500 GX Den Haag
                Netherlands
                tel:  (3170)3394714
                fax:(3170)3394722

              Varga, Dr. P.
                Head of Section
                National Authority for Environment Protection
                Alkotmany u. 29
                1054  Budapest
                Hungary
                tel:  (361) 1322787
                fax: (361) 1327196

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                                                        267
 Vassilopoulos, Mr. M.
   Permanent Representation of Greece to the
   European Communities
   Avenue de Cortenberg 71
   1040 Brussels
   Belgium
   tel: (322) 7395679
   fax: (322) 7355979

 Velek, Mr.  K.
   Chairman Section for Wastes
   Czechoslovak Society for Environment
   Slezska 136
   13000 PrahaS
   CSFR
   tel: (422)733113
   fax: (422) 731 357

 Verkerk, Mr. P.J.
   Inspector General (code 680)
   DGM/VROM
   P.O. Box 30945
   2500 GX Den Haag
   Netherlands
   tel: (3170)3394620
   fax: (3170)  3394624

 Victor,  Ms. K.
   Head of Environmental Law and Economics
   Section
   Swedish Environmental Protection Agency
   Englundavagen 13
   171  85  Solna
   Sweden
   tel: (468) 7991000
   fax:  (468) 989902

 Wajda, Dr. S.
   ul. Wilsona 48/4
   45-329  Opole
    Poland
   tel: (4877) 30880
   fax: (4877) 30880
Wasserman, Ms. C.
  Chief, Compliance, Policy & Planning Branch
  U.S. EPA, Office of Enforcement
  401 M. Street, S.W. (LE-133)
  Washington, DC 20460
  USA
  tel: (1202) 2604486
  fax:(1202)2607553

Wassersug, Mr. S.
  The Regional Environmental Center for
  Central and Eastern Europe
  for Central and Eastern Europe
  Miklos ter 1
  1035 Budapest
  Hungary
  tel: (361) 1686284
  fax: (361) 1687851

Weber, Mr. P.
  Chairman of Romanian Parliamentary
  Commision for Ecological Equilibrium and
  Environmental  Protection
  Str. Kogalniceanu 19
  3125 Medies
  Romania
  tel: (400) 141074/92814036

Wills, Mr. C.G.
  Deputy Director
  NEIC, U.S. EPA
  Building 53, Box 25227
  Denver, CO 80225
   USA
  tel: (1303) 2365120
  fax: (1303) 2365116

 Wubben, Mr. J.J.J.
   Packet Procureur-Generaal
   Openbaar Ministerie Den Bosch
   P.O. Box 90155
   5200 MG Den Bosch
   Netherlands
   tel: (3173) 816220
   fax:(3173)816499

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268                               INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 Zerjav, Mr. J.
   Advisor
   Ministry of Environment, Slovenia
   Vojkova  1A
   61000 Ljubljana
   Slovenia
   tel: (3861) 327461
   fax:(3861)322694

 Zirm, Dr. K.L.
   Head I/A
   Ministry for Environment, Youth and Family
   Radetzkystrasse 2
   1030 Vienna
   Austria
   tel: (431)711584102
   fax:(431)711584221

 Zlinszky,  Dr. J.
   Deputy Director-General
   Institute for Environmental Management
   Alkotmany u. 29
   1054 Budapest
   Hungary
   tel: (361) 1328270
   fax: (361) 1115826

 Zoltai, Dr. N.
   Ministry of Environment and Regional  Policy
   P.O. Box 351
   1394 Budapest
   Hungary
   tel: (361) 2014133/2243
   fax: (361) 2012846

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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                           269
      MEMBERS OF THE EXECUTIVE PLANNING COMMITTEE

Mrs. Jacqueline Alois! de Larderel                           PHONE:   (331) 40 58 88 50
United Nations Environment Programme                     FAX:      (331)40588874
Director, Industry and Environment Programme Activity Centre
Tour Mirabeau
39-43 Quai Andre Citroen
75739 Paris CEDEX 15, France
Contact:  Ms. Clare Delbridge                              PHONE:   (331)40588869
                                                       FAX:      (331)40588874
Mr. Laurens Jan Brinkhorst
Director-General
Commission of the European Communities
Directorate-General Environment, Nuclear Safety
      and Civil Protection
34 Rue Belliard
1049 Brussels, Belgium
Contact:  Dr. Ludwig Kramer                              PHONE:   (322) 299 2265
                                                       FAX:      (322)2991070

Dr. Kalman Gyorgyi                                       PHONE:   (361) 118 1452
Chief Public Prosecutor of the Republic of Hungary            FAX:      (361) 132 3969
Chief Public Prosecutors Office
P.O. Box 438
1372 Budapest, Hungary
Contact:  Dr. Istvan Szabo                                PHONE:   (361)312173

Dr. Peter Hardi                                          PHONE:   (361) 168 6284
Executive Director                                        FAX:      (361)1687851
The Regional Environmental Center
      for Central and Eastern  Europe
Miklos ter 1
1035 Budapest, Hungary
Contact:  Dr. Branko Bosnjakovic                          PHONE:   (361)1686284
         Mr. Steven Wassersug                           PHONE:   (361)1686284
                                                       FAX:      (361)1687851

Dr. Jan Mikolas
Chairman                                               PHONE:   (422)  252539
Federal Committee for the Environment                     FAX:      (422)257211
Slezka 9
120 29 Prague
Czech and Slovak Federal Republic
Contact:  Mr. Veclev Dobes                               PHONE:  (422)  25 2539
                                                       FAX:      (422)  257211

Dr. Karoly Misley                                        PHONE:  (361)2011582
Permanent State Secretary                                FAX:     (361)2012846
Ministry of Environment and Regional Policy
P.O. Box 351
1394 Budapest, Hungary
Contact:   Dr. Nandor Zoltai                               PHONE:  (361)2014133
                                                       FAX:     (361)2012846

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270
                              INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Dr. Maciej Nowicki
Minister
Ministry of Environmental Protection,
      Natural Resources and Forestry
Wawelska 52/54
00-922 Warsaw, Poland
Contact:  Prof. Jerzy Sommer

         Mr. Marek Nowakowski

Mr. Herbert H. Tate Jr.
Assistant  Administrator for Enforcement
Office of Enforcement
United States Environmental Protection Agency
401  M Street, SW LE-133
Washington, DC 20460, USA
Contact:  Ms. Cheryl Wasserman

         Ms. Ann DeLong
Mr. Pieter Verkerk
Inspector General, Ministry of Housing, Physical Planning
      and Environment (code 680)
P.O. Box 30945
2500 GX Den Haag, the Netherlands
Contact:  Mr. Jo Gerardu

         Mr. Huub Kesselaar
CONFERENCE STAFF

Ms. Cheryl Wasserman
Office of Enforcement
United States Environmental Protection Agency
401 M Street, SW LE-133
Washington, DC 20460, USA

Mr. Jo Gerardu
Ministry of Housing, Physical Planning and Environment
Inspectorate for the Environment (code 681)
P.O. Box 30945
2500 GX Den Haag, the Netherlands

Logistics Contractor

Mr. Jeroen Bartels
ERL Nederland
P.O. Box 710
2700 AS Zoetermeer, the Netherlands
PHONE:  (4871)444747
FAX:     (4871)444747
PHONE:  (4822) 25 11 33
FAX:     (4822) 25 39 72
PHONE:
FAX:
PHONE:
FAX:

PHONE:
FAX:
PHONE:
FAX:
PHONE:
FAX:
PHONE:
FAX:
PHONE:
FAX:
(1202) 2604486
(1202) 260 7553
(1202) 260 8870
(1202) 260 7553

(3170) 33 94620
(3170) 33 94624
(3170) 33 92621
(3170)31 72645
(3170) 33 92624
(3170) 31 72645
(1202) 2604486
(1202) 260 7553
(3170) 33 92 621
(3170) 31 72 645
PHONE:
FAX:
(3179) 522 777
(3179) 512 127

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       ACKNOWLEDGEMENTS

       The second International Conference on Environmental Enforcement held September 22-
 25, 1992 in Budapest, Hungary was made possible by the personal and financial contributions of
 many organizations and individuals. Funding of the Conference and participants was provided by
 the United States Environmental Protection Agency (EPA), the Netherlands' Ministry of Housing,
 Physical Planning and Environment (VROM), and the European Economic Community (EEC),
 supplemented by funds from the Netherlands' Directorate Generals Office of International
 Environmental Affairs.

       An Executive Planning Committee whose membership is listed in these Proceedings, was
 created to provide leadership and direction in the design of the program,  selection of the
 speakers and panelists, and identification of  individuals from  a range of nations who would be in
 the best positions to share practical experience in environmental enforcement and to improve or
 develop domestic programs. In keeping with  its focus on Central and Eastern Europe, the
 Executive Planning Committee included the representatives of the Environment Ministries of
 Poland, Hungary, and the Czech and Slovak Federal Republic as well as Hungary's Public
 Prosecutor and the Regional Environmental Center in Budapest. The United Nations Environment
 Programme (IE-PAC) was also a key member of the Executive Planning Committee, in an effort
 to further expand the exchanges that began with the first International Enforcement Workshop,
 sponsored by the Netherlands Ministry of VROM and U.S.  EPA, in May 1990 in Utrecht, the
 Netherlands.

       Members and staff of the Executive Planning Committee, listed within these Proceedings,
 spent much effort discussing and reviewing staff proposals for the Conference structure and
 content and in identifying experts from government at all levels, NGO's and industry that would
 ultimately determine the success of the Conference.

      Given the Conference location in Budapest, we wish to particularly acknowledge the
 hospitality and special efforts of Dr. Karoly Misley and Dr. Nandor Zoltai to make this exchange
 not only productive but enjoyable.

      Primary staff and coordinators of the Conference were Mr. Jo Gerardu of VROM and Ms.
Cheryl Wasserman of US EPA who were responsible for drafting the Conference program and
materials. The Conference logistics, preparation of the Proceedings, and handling of Conference
communications was directed by Mr. Jeroen Bartels from Environmental Resources Limited
Nederland.

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272                          INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT

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