300R96008
PROCEEDINGS
VOLUME 1
FOURTH
INTERNATIONAL
CONFERENCE ON
ENVIRONMENTAL
COMPLIANCE AND
ENFORCEMENT
April 22-26, 1996
Chiang Mai, Thailand
o
V
UNEP
Ministry of Housing,
Spatial Planning,
and the Environment
(VROM) The Netherlands
l+l
Environment Environnement
Canada Canada
ENVIRONMENTAL
LAW-INSTITUTE
EUROPEAN
COMMISSION
POLLUTION CONTROL DEPARTMENT
THAILAND
-------
-------
FOURTH INTERNATIONAL CONFERENCE ON
ENVIRONMENTAL COMPLIANCE AND
ENFORCEMENT
CONFERENCE PROCEEDINGS
VOLUME 1
April 22-26,1996
Chiang Mai, Thailand
Editors:
Mr. Jo Gerardu, VROM, The Netherlands
Ms. Cheryl Wasserman, U.S. EPA
Executive Planning Committee:
Dr. Adegoke Adegoroye, FEPA, Nigeria
Ms. Jacqueline Alois! de Larderel, UNEP, IE
Mr. Antonio Azuela, Mexico
Ms. Susan Becker, UNDP
Ms. Vivianne Blanot, Chile
Mr. Christopher Currie, Environment Canada
Mr. William M. Eichbaum, World Wildlife Fund, U.S.
Dr. Ossama EI-Kholy, Egypt
Mr. Marius Enthoven, European Commission
Mr. J. William Futrell, Environmental Law Institute, US
Mr. Marco Antonio G6nzalez Salazar, Costa Rica
Dr. Francois Hanekom, South Africa
Mr. Steven A. Herman (Co-Chair), U.S. EPA
Mr. Jalaluddin Ismail, Malaysia
Mr. Zbigniew Kamiefiski, Poland
Dr. Pakit Kiravanich, Thailand
Mr. Sun Lin, UNEP, ELI
Mr. Robert Reiniger, Hungary
Dr. David Slater, United Kingdom
Ms. Rachel A. Vasquez, Philippines
Mr. Pieter J. Verkerk (Co-Chair), VROM,
The Netherlands
Mr. Hongjun Zhang, People's Republic of China
Sponsors:
Environmental Protection Agency, United States
Ministry of Housing, Spatial Planning and the Environment, The Netherlands
United Nations Environment Program, IE
Environmental Law Institute, United States
Environment Canada
European Commission
Ministry of Science, Technology and Environment, Thailand
-------
These Proceedings, Volumes 1 & 2, include papers prepared by
speakers, conference participants, and other interested parties, remarks of
the opening speakers, summaries of workshop discussions, selected exhibit
materials, and the Conference evaluation from the Fourth International
Conference on Environmental Compliance and Enforcement, April 22-26,1996,
in Chiang Mai, Thailand.
Copyright © 1996 by the Conference sponsors: United States
Environmental Protection Agency; Ministry of Housing, Spatial Planning and
the Environment, The Netherlands; United Nations Environment Program, IE;
Environmental Law Institute, United States; Environment Canada; European
Commission; and Ministry of Science, Technology and Environment, Thailand.
No part of this book may be reproduced in any form or by any means without
the prior permission of the authors and attribution to the Fourth International
Conference on Environmental Compliance and Enforcement, April 22-26,1996,
held in Chiang Mai, Thailand. 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.
-------
DEDICATION TO THE VICTIMS OF CHERNOBYL
These Proceedings are dedicated to the Victims of the Chernobyl disaster, a global
environmental catastrophe. Participants were reminded of the 10th anniversary of the disaster
in the closing moments of the Fourth International Conference by Ms. Svitlana Kravchenco who
read a statement and requested a moment of silence in memory of the victims of Chernobyl who
are still bearing its consequences.
Two million eight hundred thousand people, including more than half million children
under the age of 14, are now living in areas contaminated by the Chernobyl catastrophe despite
the fact that approximately 200,000 people and more than 2000 settlements were moved from
the contaminated zone. 150,000 people, including children, received radiation poisoning to the
thyroid, which exceeded permissible limits. Today the Ukrainian list of Chernobyl's victims consists
of 405,576 persons, in addition to 36,000 persons who are on the military-medical list of the
Ministry of Internal Affairs and Security Service of Ukraine. Diseases of the respiratory and
digestive systems, as well as the endocrine and blood circulation systems, account for a significant
percentage of the mortality rate of children living in contaminated zones. Experts now consider
that the Chernobyl disaster has created a new epidemic called Chernobyl AICD. All children of
the Chernobyl zone have reduced immune systems.
-------
-------
TABLE OF CONTENTS—VOLUME 1
Table of Contents—Volume 1
PREFACE 1
CONFERENCE PURPOSE AND GOALS 3
CONFERENCE PROGRAM 5
OPENING SPEECHES
1. Welcome and Introduction to the Conference.S. Herman 13
2. Evolution of Environmental Compliance and Enforcement Programs in Thailand
and Current Challenges, H. Yingphan Manasikarn 19
3. Chiang Mai's Environmental Challenges, V. Naewboonnien, J. Wongburanawatt. 23
4. Reaching Out To Others For Effective Environmental Enforcement, M. de Boer 27
CONFERENCE PAPERS AND DISCUSSION SUMMARIES
Theme #1: Driving Forces Behind Environmental Compliance and Enforcement
Programs 31
1. Summary of Panel Discussion of Theme #1, Moderator: C. Wasserman, Rapporteurs:
S. Oley, K. Rubin 33
2. Driving Forces for Environmental Compliance and Enforcement: Sustainable
Development, International Trade, Public Pressure and Involvement in Decision-Making
and the Implications for Cleaner Production, Environmental Law, and Sustainable
Development, R. Olembo 37
7. Implications of ISO 14001 for Regulatory Compliance, J. Casio 43
8. The Impact of Driving Forces on Environmental Compliance and Enforcement
Programs—The Philippine Experience, R Vasquez 49
9. The Impact of Driving Forces on Environmental Compliance and Enforcement
Programs—Example of Poland, S. Wajda 61
10. Driving Forces for Sustainable Environmental Compliance and Enforcement
Program in Africa with Particular Reference to Nigeria, A Adegoroye 73
11. The Impact of Driving Forces on Environmental Compliance and Enforcement
Programs in Mexico, A. Azuela 85
Theme # 2: Principles of Environmental Compliance and Enforcement 95
1. Building International Networks, Cooperation, and Capacity for Environmental
Compliance and Enforcement: A Progress Report, C. Wasserman 97
Theme #3: Establishing International Cooperation and Regional Networks:
Status of Efforts Underway 133
1. Summary Of Panel Discussion of Theme # 3, Moderator: M. Enthoven, Rapporteurs:
S.Oley, K. Rubin 135
2. Emerging Networks of Environmental Enforcement and Compliance Cooperation in
NorthAmerica and the Western Hemisphere, S.A.Herman, L.I. Sperling 139
3. Toward Establishing a Regional Network in the West Asia/Middle East Region,
O.A.EI-Kholy 157
-------
vi FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4. Establishing International Cooperation and Regional Networks.D.H. Slater, A.W. James 161
5. Enforcement and compliance Programs in Central America, P. Madrigal Cordero 169
6. International Cooperation: INTERPOL, J. van Doom 205
7. Transfrontier Shipments of Waste: Successes and Problems with the Enforcement
of Supranational Legislation, R. de Krom 209
8. A European Enforcement Project on the Notification of New Substances (NONS);
A Cooperative Project of 14 European Countries,/..C. van Gent 215
Theme #4: International Capacity Building 219
1. The Evolving Role of Citizens in Environmental Enforcement, S. Casey-Lefkowitz,
W.J. Futrell, J.Austin, S. Bass 221
2. International Capacity Building for Industrial Compliance and Enforcement —
The UNEP Experience, J. Alois! de Larderel, J.H. Skinner 237
3. UNEP's Role in Capacity Building in Environmental Law.D. Kaniaru, L Kurukulasuriya 243
4. International Capacity Building for Environmental Compliance and Enforcement,
S. Becker 255
5. World Bank Supported Environment Institution Building Investments,.;. Aden 275
Theme # 5: Institution Building: UNEP Workshops 281
1. Synopsis of UNEP Manual on Institution Building 283
2. Synopsis of Organizational Design Issues: A Comparison of International
Compliance and Enforcement Programs 285
3. Synopsis of Financing Environmental Compliance and Enforcement Programs 286
Theme # 6: Special Topic and Institution-Building Workshops 287
Special Topic Workshop A: Automation and Enforcement: Available Support
Systems 289
1. Information Systems to Support Compliance and Enforcement, C.R. Galloway 291
Special Topic Workshop B: Strategic Targeting for Enforcement 317
1. Summary of Workshop: Strategic Targeting For Enforcement, Facilitators: C. Currie,
K. Prosser, rapporteur: C. Cocault 319
2. Strategic Targeting for Compliance and Enforcement, R. F. Duffy 285
Special Topic Workshop C: Integrated Permitting and Inspection 333
1. Summary of Workshop: Integrated Permitting and Inspection Facilitators: J. Skinner, C.
Wasserman, Rapporteur: J. Mozingo 335
2. Innovative Multi-media Compliance, Enforcement and Pollution Prevention
Approaches to Environmental Compliance at Federal Facilities in the
United States of America, R. B. Cheatham, J.R. Edward, W.H. Frank, R.J. Satterfield 341
Special Topic Workshop D: Compliance Monitoring 379
1. Summary of Workshop: Compliance Monitoring, Facilitators: J. Blenkers, H. Laing,
J. Skinner, Rapporteur: J. Jeffery 381
2. Institutional Strengthening and Capacity Building in the Field of Environmental
Inspection and Enforcement in Denmark, G. Nielsen 385
3. Synopsis of International Comparison of Source Self-Monitoring, Reporting,
and Recordkeeping Requirements 393
-------
TABLE OF CONTENTS—VOLUME 1 vn
4. Synopsis of Multi-media Inspection Protocols: International Examples 394
5. Synopsis of Course: Conducting Multi-media Inspections 395
Special Topic Workshop E: Promoting Voluntary Compliance: Environmental
Auditing, Outreach, and Incentive Programs 397
1. Summary of Workshop: Promoting Voluntary Compliance: Environmental Auditing,
Outreach, Incentive Programs, Facilitators: M. Olman, L Rimer, Rapporteur: D. Novak 399
2. Legal Marketing of Environmental Law: The Philippines Experience^. Oposa 405
3. The Mexican Environmental Audit as a Voluntary Norm.J. Calderon 419
4. Dutch Industrial Target Group Approach: An Enforcement Study on the
Voluntary Environmental Agreement with Petrol Stations,H.R Staats 427
5. Stimulating Voluntary Compliance: New Policy Directions in the United States:
The Minnesota Experience,/!. Paddock 439
6. Encouraging Voluntary Compliance without Compromising Enforcement:
ERA'S 1995 Auditing Policy, E.S. Schaeffer 451
7. Dutch Industrial Target Group Approach: A National Enforcement Study
on the Voluntary Environmental Agreement for the Wood Preservation Industry,
W. Huurdeman 461
Special Topic Workshop F: Measures of Success 479
1. Summary of Workshop: Measures of Success, Facilitators: J. Peters, C. Wasserman,
Rapporteur: J. Mozingo 481
2. Measuring the Success of Compliance and Enforcement Programs,/1?. F, Duffy 489
Special Topic Workshop G: Communications and Enforcement 503
1. Summary of Workshop: Communications and Enforcement, Facilitators: R. Glaser,
J.C.M. Veenman, J. Wise, Rapporteur: J.J. van Klaveren 505
Special Topic Workshop H: Public Role in Enforcement: How to Go About Creating
and Supporting Effective Citizen Enforcement 509
1. Summary of Workshop: Public Involvement in Enforcement, Facilitators: M. Axline,
J. van Dijk, Rapporteur: S. Casey-Lefkowitz 511
2. Environmental Enforcement and Public Advocacy in Ukraine.S. Kravchenko 515
3. Intergenerational Responsibility in the Philippine context as a Judicial Argument for
Public Action on Deforestation, A Oposa 521
4. Role of Public Participation in Enforcement, G. Sarmiento 527
Special Topic Workshop I: Criminal Enforcement: INTERPOL, Role of Criminal
Enforcement in Environmental Enforcement 529
1. Summary of Workshop: Criminal Enforcement Role in Environment, Facilitators:
T. Bispham, J. van Doom, Rapporteurs: J. Gras, L Sievers 531
2. The Environmental Task of the Police: 1990-1994, L Sievers, M.J. Horstman 535
3. The Environmental Task of the Police: 1995-1998, L Sievers, M.J. Horstman 547
4. Environmental Duties of the Police in The Netherlands,/.. Sievers 559
5. Oregon's Experience in Developing and Implementing a State Environmental
Crimes Program, T. Bispham, H. Duncan, L. Carlough 565
6. Targeting and Criminal Enforcement, A de Lange 577
7. The Environmental Criminal Justice in China, S. Wang 583
8. The Netherland's Manual: Investigations of Complex Environmental Offenses,
C. vanKooten 591
-------
VIM FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Special Topic Workshop J: Enforcement of Economic Instruments 595
1. Summary of Workshop: Enforcement of Economic Instruments, Facilitators:
J. van den Heuvel, J.Rothman, J. Wise, Rapporteur: D. Novak 597
2. Enforcement of Pollutant Discharge Fee in China,/-/. Baolin 601
Table of Contents—Volume 2
Special Topic Workshop K: Take-Back Laws Enforcement 609
Special Topic Workshop L: Creating Enforceable Permit Programs and Requirements:
Discussion Focus on Water Pollution and contamination of Drinking Water
Supplies 611
1. Summary of Workshop: Creating Enforceable Permit Programs and Requirements:
Discussion Focus on Water Pollution and Contamination of Drinking Water Supplies,
Facilitators and Rapporteurs: P. van Erkelens, L Crerar. 613
2. The Pollution of Surface Waters Act in The Netherlands: A Story of Successful
Enforcement, P. van Erkelens, M. Olman 617
3. The Enforcement of Drinking Water Quality in The Netherlands, J. Lijmbach-Hendrikx 625
4. Potassium and Nitrate Pollution of Surface Water in the Catchment Area of the "Blankaert"
Water Production Centre in Flanders (Belgium),/?. Baert, R. Loontiens, M. Devos 635
5. Protecting Drinking Water Quality Through the Clean Water Act and the Safe Drinking
Water Act, B. Devlin 643
Special Topic Workshop M:Transboundary Illegal Shipments of Hazardous Waste;
Tricks of the Trade 655
1. Summary of Workshop: Transboundary Illegal Shipments of Hazardous Waste;
Tricks of the Trade, Facilitators: F. Kesselaar, J. Rothman, Rapporteur: R. Sturges 659
2. A United States Perspective on Transboundary Investigations: Recent Cases and
Essential Strategies for Interdiction of International Environmental Crime,£.£ Devaney,
M. J. Fenders 663
3. The International Control of Transboundary Illegal Shipment of Hazardous Wastes:
A Survey on Recent Cases Happened in China.X. Wang 673
4. Regional Action Program and Guidelines to Prevent Illegal Traffic in Hazardous Wastes
in the Asia-Pacific Region, AS. Tolentino, Jr. 685
5. Illegal transports of Waste: Tricks of the Trade, L.C. Blanker 697
6. Transboundary Illegal Shipments of Hazardous Waste, Toxic Chemicals (Pesticides)
Contraband Chlorofluorohydrocarbons: The Nigerian Experience./W.IOdube/a,
O. Soyombo, F.Adegbite, K. Ogunbuyi. 705
7. Cradle-To-Grave Compliance Tracking of U.S./Mexico Transboundary Hazardous Waste:
The Haztraks Tracking System, S. Coleman, J.V. Schultes 711
8. Synopsis of Transboundary Trade in Potentially Hazardous Substances 733
Special Topic Workshop N: Montreal Protocol: Enforcement of Chlorofluorocarbons
(CFC) and Related Requirements 735
1. Summary of Workshop: Montreal Protocol: Enforcement of Chlorofluorocarbons (CFC)
and Related Requirements, Facilitators: H. Kesselaar, I. Moreno, Rapporteur: R. Sturges.... 737
2. Regulations to Implement Montreal Protocol: Guatemala Country Program,
J.M. Del Valle, H. Figuerora 741
-------
TABLE OF CONTENTS—VOLUME 2 ix
3. Evaluation of Three Years enforcement of the Chlorofluorocarbons (CFC) Regulations
in The Netherlands, G.A.H. Tijink, J.P. Comet 747
Special Topic Workshop O: Enforcing Domestic Programs Implementing International
Agreements 753
1. Environmental Compliance and Enforcement: A Case of Nepal.K.R OH 755
Special Topic Workshop P: Collaborative International Targeting of Enforcement 777
Special Topic Workshop Q: Organizing and Financing Programs 779
1. Summary of Workshop: Organizing and Financing Programs.Fac/'Wator R. Glaser, L
Paddock, Rapporteur: K. Rubin 781
Special Topic Workshop R: Enforcement Policy and Authorities 785
1. Summary of Workshop: Enforcement Policy and Authorities, Facilitators and
Rapporteurs: M. Gade, J. Peters 789
2. Compliance Program Innovations in Polish Environmental Law.Z Kamienski 793
3. Compliance Agreements for Environmental Risk Management in the Czech Republic,
H.Cizkova 809
Theme # 7: Making Progress: Regional Examples, Capacity-Building Agenda, International/
Regional Networks 817
1. Africa Regional Meeting Summary 821
2. Americas Regional Meeting Summary 827
• Oaxaca Declaration 840
• Proceedings from Managua Meeting: Creation of the Central American Enforcement
Network 843
3. Southeast Asia-Pacific Regional Meeting Summary 851
4. South Asia Regional Meeting Summary 865
5. Central and Eastern Europe Regional Meeting Summary 869
6. West Asia/Middle East Regional Meeting Summary 873
7. Western Europe Regional Meeting Summary 875
8. Information Sharing as an Environmental Policy Tool: The Indonesian Experience,
N.Makarim, J.Butler 881
9. The City of Kitakyushu's Experience Concerning the Implementation of
Countermeasures for and Compliance with Environmental Protection Legislation,
R.Hitsumoto 893
10. A Survey of Environmental Law and Enforcement Authorities in China, Y.Zhao 903
11. Enforcement of Legislation on Genetically Modified Organisms in The Netherlands,
/. van der Leij, M.S. Thijssen 923
12. Environmental Laws, Capacity Building and Compliance Monitoring --
The Hong Kong Experience, J.E. Boxall, W.F.S. Ho, C.K. Lei, C.W. Tse 931
13. Enforcement Problems with Radioactive Material in the National and International
Trade in Metal and Metal Scrap, G.M. Breas and P.I. van der Vaart 949
14. Some Environmental and Enforcement Issues Relating to the Siting of a Medium Scale
Steel Mill on the Shores of the Manukau Harbor, Auckland, New Zealand.C. Hatton 955
15. Enforcement Strategies of the Israel Ministry of the Environment, R Rotenberg 963
16. Development and Enforcement of New Armenian Environmental Protection Legislation:
Problems and Solutions, V. Ter-Nikghosyan 971
-------
FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
17. Features of Licensing and Control of Environment in Romania,/.D. Vasilescu 983
18. From Environmental Planning to Enforcement: A Case Study from Egypt,
T.M. Genena 991
19. El Salvador's Experience in the Design of Environmental Programs,
G. Navarrete Lopez 997
20. The Role of Goals, Steps and Content of Comprehensive Compliance Programs
in Achieving Environmental Compliance and Enforcement in Romania.Q Popescu 1003
21. Thailand's Environmental Enforcement Program, K. Homchean 1013
22. The Range of Legal Enforcement Tools in Lithuania and Problems.D. Lygis 1021
23. Licensing and Enforcement at Municipal and Provincial Level in North Brabant:
Developments in Recent Years, J. Blenkers, N. Dols, P. vander Linden 1025
24. An Integrated Approach to Environmental Enforcement -- A Case Study.B. Baron 1043
25. Compliance and Enforcement Programs on Residual Waters, Case Study:
Costa Rica's Grande deTarcoles River, M.A. Gonzalez Salasar 1049
26. Development and Implementation of Information Exchange by Enforcement
of Environmental Legislation, J. van Dijk 1069
CLOSING REMARKS FOR THE FOURTH INTERNATIONAL CONFERENCE ON
ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT, S.A. Herman, P.J. Verkerk 1077
CONFERENCE EVALUATION 1091
PARTICIPANT LIST 1105
PARTICIPANT LIST BY COUNTRY 1123
MEMBERS OF THE EXECUTIVE PLANNING COMMITTEE 1137
EXECUTIVE PLANNING COMMITTEE STAFF 1142
ACKNOWLEDGMENTS 1143
-------
FOURTH INTERNATIONAL CONFERENCE ON
ENVIRONMENTAL COMPLIANCE AND
ENFORCEMENT
VOLUME 1
-------
-------
PREFACE 1
PREFACE
These Conference Proceedings contain papers solicited from the speakers, participants and other
interested parties for the Fourth International Conference on Environmental Compliance and
Enforcement held April 22-26,1996 in Chiang Mai, Thailand. Additional papers that were not available
at the conference are also included in Volume 1 or 2 of these Proceedings. The Proceedings will be
widely disseminated to all conference participants, other country environmental officials and NGOs
throughout the world, and also will be accessible through the internet's world wide web.
The Fourth International Conference is part of an ongoing international collaboration to develop
domestic environmental enforcement programs in different settings that can effectively achieve
widespreadcompliancewith each nation'senvironmentalrequirements. The Conferencealso sought
to strengthen the ability of each nation to carry out domestic programs related to international
environmental agreements. The Fourth Conference builds on the first International Enforcement
Workshop held in Utrecht, The Netherlands, in May 1990, the second International Conference on
Environmental Enforcement held in Budapest, Hungary, in September 1992 and, the Third International
Conference on Environmental Enforcement held in Oaxaca, Mexico, in April 1994.
The Fourth International Conference sought to catalyze efforts to build institutional capacity for
environmentalcomplianceand enforcementto both enhance existing and develop new environmental
enforcement programs - a challenge for all nations. The Conference built on the frameworks and
resource materials developed at the previous conferences and continued to introduce new materials
that offer more hands-on information comparing and contrasting different approaches to important
compliance program elements. The Conference program stressed the driving forces behind
compliance and enforcement program development: sustainable development, international trade
and economics, and increasing public pressure and involvement in decision-making concerning
activities with significant environmental impacts. It highlighted and offered stepped-up support for
capacity building by fostering regional and international networking, cooperation, and dialogue on
common problems. The Conference program continued the successful format of the Oaxaca
Conference, emphasizing hands-on workshops that offer practical applications in the fundamental
principles of environmental compliance and enforcement and in designing enforcement and
compliance programs. Fourteen new and ongoing special topic workshops were structured around
issues addressed in papers solicited from experts in the field. Results of the small workshop
discussions are summarized to capture current thinking and experience on the subject. Special
exhibits further promoted the exchange on these topics.
The Executive Planning Committee for the Conference devoted much time and effort to design a
Conference to offerthe greatest opportunity for useful exchange and practical information for individuals
both within and outside government who can influence the successful design and implementation of
enforcement programs. Additional information about the Conference and resource materials can be
obtained by contacting the Staff or members of the Executive Planning Committee. On behalf of the
Executive Planning Committee, we look forward to your continued and productive use of these
Conference materials.
Editors:
Mr. Jo Gerardu Ms. Cheryl Wasserman
Deputy Director, Enforcement Division Associate Director for Policy Analysis
Inspectorate for the Environment Office of Environment and
VROM Compliance Assurance
The Netherlands U.S. EPA
-------
FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
CONFERENCE PURPOSE AND GOALS
CONFERENCE PURPOSE AND GOALS
The Fourth International Conference on Environmental Compliance and Enforcement was
held in Chiang Mai, Thailand, April 22-26,1996. The Conference built on the work of the first three
International Conferences. Each Conference has, in turn expanded its sponsorship, participation,
and scope to reach an ever-broadeningaudienceand to develop more extensiveand useful materials
and frameworks for exchange.
Promote the Importance of and Underscore the Driving Forces Behind Effective
Environmental Compliance and Enforcement
These Conferences respond to the urgency of addressing environmental concerns both
domestically and on a global scale and to the increasing recognition by government and
nongovernment officials of the critical role that environmental compliance and enforcement plays in
ensuring an effective response. Growing interest in environmental compliance and enforcement
stems from a desire to ensure that environmental requirements lead to real improvements in
environmental quality. Environmental enforcement - broadly defined as the range of actions
governments and others may take to encourage and compel compliance with environmental
requirements - is critical to achieving environmental objectives.
Effective domestic environmental compliance and enforcement programs are an important
factor in global efforts to reduce international trade barriers and enhance economic development in
a manner that does not create unfair competition or pressure to diminish environmental quality and
stewardship of valuable natural resources. Effective enforcement also can 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 that might undermine longer-term
economic and environmental goals for a sustainable future.
Foster Institutional Capacity to Enhance Existing and Develop New
Environmental Compliance and Enforcement Programs
The Fourth International Conference on Environmental Compliance and Enforcement
focused on building the institutional capacity for enhancing existing and developing new domestic
environmental compliance and enforcement programs. The United Nations Conference on
Environment and Development (UNCED), held in Rio de Janeiro in June 1992, produced an
international agenda, Agenda 21, which firmly states that effective environmental compliance and
enforcement programs are a key element of environmental management and which recognizes the
need to build institutional capacity for effective enforcement in each nation's environmental program.
The Fourth International Conference on Environmental Compliance and Enforcement was designed
to help all nations achieve the objectives of this international agenda.
The Conference program provided the potential and opportunity for nations to establish
consensus around priorities for capacity building within and across regions of the world and facilitate
access to international support. It also included topics and workshops to meet the needs of those
just beginning to develop programs and those with existing programs seeking to improve them.
Serve All Stakeholders Influencing the Design of Environmental Compliance and
Enforcement Programs
The target audience for the Conferences is enforcement officials and policy-makers both
within and outside government who are in a position to influence the design or enhancement of
environmental compliance and enforcement programs. Within government the Conference sought
representation from national, regional, and local governmental units responsible for both the legal
-------
FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
and technical aspects of environmental compliance and enforcement at the mid- to senior-
management levels. It also involved selected nongovernmental organizations (NGOs) and industry
representatives.
Encourage Ongoing International Exchange and Regional Networking
The Conference program encourages follow-up beyond the Conference itself in several
ways. The program highlighted international as well as regional resources and networking designed
to help nations address common challenges and priorities and offer potential models for nations
within all regions to support each other in these efforts. The program sought to establish consensus
around an international agenda for capacity building that will help to guide limited resources to greatest
advantage. The program included opportunities for nations within different regions of the globe to
explore how they can build on existing collaborative internationalarrangementsto provide accelerated
progress and cooperation in environmental compliance and enforcement. Conference participants
were drawn from all regions, with a special emphasis on Asia and the Pacific to take advantage of
the Conference'slocationand the opportunitiesit presents to promote greater internationalexchange
and regional networking among countries in Asia and the Pacific.
Foster Exchange of Expertise and Learning Through Active Participation
The Conferences are structured to provide ample opportunity for participants to form
professional networks and to learn through active participation. In addition to open discussion during
plenary sessions and workshops of fewer than 25 participants on the second, third, and fourth days,
there were regional meetings and informal opportunities for exchange around exhibits and related
Conference events.
-------
CONFERENCE PROGRAM
CONFERENCE PROGRAM
APRIL 21,1996 Welcome Reception and Registration
15:00-18:00 Registration
17:00-18:00
DAY ONE
APRIL 22,1996
08:00-08:30
08:00-18:00
Reception
PLENARY SESSION
Registration—Late Arrivals
Exhibits (throughoutthe Conference)
Video Displayson Training, Compliance Promotion
• Inspection,InspectorTraining.ComplianceMonitoringEquipment
Exhibits
Computer Applicationsand Internet Displays
International Program/Regional/Countrylnformation
08:30-09:30 Welcome and Opening Remarks
Day Chair: Mr. Steven Herman, Assistant Administrator, Office of
Enforcement and Compliance Assurance, U.S. EPA
Co-Chair: Mr. PieterVerkerk, Inspector General, VROM.The Netherlands
Opening Speeches
Mr. Steven Herman, Assistant Administrator, Office of Enforcement and
Compliance Assurance, U.S. EPA
I mportance of I nternational Exchange
Governor Virachai Naewboonien, Chiang Mai Province, Thailand with Mr.
Jakapan Wongburanawatt, Dean of Social Science Faculty, Chiang Mai
University
Chiang Mai's EnvironmentalChallenges
MinisterYingpanManasikarn,Ministry of Science,Technologyand the
Environment
• Evolution of Environmental Compliance and Enforcement Programs in
Thailand and Current Challenges
MinisterMargarethade Boer, Ministry of Housing, Spatial Planning and the
Environment (VROM),The Netherlands, delivered by Mr. PieterVerkerk,
InspectorGeneral
Reaching Out to Others for Effective Environmental Enforcement
-------
FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Theme #1: Driving Forces Behind Environmental Compliance and En-
forcement Programs
09:30-10:00 Key note Address
Speaker#1: Mr. Reuben Olembo, Deputy Executive Director, United
Nations Environment Program (UNEP)
Driving Forces for Environmental Compliance and Enforcement:
Sustainable Development, InternationalTrade, Public Pressureand
Involvementin Decision-Makingandthe Implicationsfor Cleaner
Production, Environmental Law, and Sustainable Development
10:00-10:30 Break/Press Conference
Theme #2: Principles of Environmental Compliance and Enforcement
10:30-11:10 Speaker#2: Ms. Cheryl Wasserman, Associate Directorfor Policy
Analysis, Office of Enforcement and Compliance Assurance, U.S. EPA
Defining Compliance and Enforcement
General Framework for Compliance and Enforcement
The Impact of Driving Forces on Environmental Compliance and
Enforcement Programs
11:10-12:30 Moderator: Ms. Cheryl Wasserman
Panel Discussion:
Industry Representative: Dr. Dorothy Bowers, U.S. Technical Advisory
Group to I S014000
Philippines: Ms. Rachel Vasquez, Assistant Director, Environmental
Management Bureau
Mexico: Mr. JavierCabrera Bravo, General Directorfor International
Affairs, PROFEPA
Poland: Mr. StanislawWajda, Legal Advisor, EC Phare Program,
Ministry of Environmental Protection
12:30-14:00
Lunch
-------
CONFERENCE PROGRAM
Theme #3: Establishing International Cooperation and Regional Net-
works: Status of Efforts Under Way
14:00-15:30 Moderator: Mr. Marius Enthoven, Director General Environment, European
Commission
Panel Discussion:
INTERPOL: Mr. Jan van Doom, Chief, Environmental Crime Unit,
INTERPOL
Americas: Mr. Steven Herman, Assistant Administrator, Office of
Enforcement and Compliance Assurance, U.S. EPA
European Union: Mr. David Slater, Director, Pollution Prevention and
Control, Environment Agency, United Kingdom
Asia and Pacific: Mr. Virah Mavichak, Director of Industrial
Environment, Division of Industrial Works Department, Thailand
West Asia/Middle East: Dr. Ossama EI-Kholy, Senior Advisor,
Egyptian Environmental Affairs Agency, Egypt
15:30-16:00 Break
Theme #4: International Capacity Building
16:00-17:00 Speaker#3: Mr. Lai Kurukulasuriya, Chief, Regional Environmental Law
Program, UNEP
• Environmental Law
Speaker#4: Mrs. Jacqueline Aloisi de Larderel, Director, UNEP, IE,
delivered by Mr. John Skinner, Senior Advisor
UNEP Capacity-Building Workshops for Industrial Compliance
Speaker#5: Mr. J. William Futrell, President, Environmental Law Institute
Public/Citizen Participation: NGO Efforts
Speaker #6: Ms. Susan Becker, Environmental Management Advisor,
Sustainable Energy and Environmental Division, UNDP
Regional and Country Action Plans; Capacity 21
Speaker#7: Ms. Jean Aden, Institutional Specialist/ EA Coordinator,
Environment and Natural Resources Division, Asia Technical Department,
World Bank
World Bank Supported Environmental Institutional Building
Investments
17:00-17:30 Instructions on Principles/Other Workshops, given by Cheryl Wasserman
Instructions on the UNEP Workshops, given by Rob Glaser
19:30 Dinner Hosted by Conference Sponsors
-------
FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
DAY TWO
APRIL 23,1996
08:30-10:45
10:45-11:15
11:15-12:30
12:30-14:00
13:30-15:30
15:30-16:00
WORKSHOPS ON PRINCIPLES OF ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT
Day Chair: Mr. PieterVerkerk.lnspectorGeneral.VROM, The Netherlands
In small groups, workshop participants used case studies to explore the
principles of environmental enforcement. Participants chose preferred
case study subject matter:
Coal Burning/Sulfur Dioxide Problems
Mining
Petrochemical/Refining
Deforestation
Residential and Industrial Waste
Tourism
Transboundary Illegal Shipments of Hazardous Waste, Toxic
Chemicals (Pesticide), Contraband
Using facilitated discussion and exercises, each workshop covered:
designing a managementapproach; designing enforceable requirements;
setting priorities; balancing compliance promotion and enforcement
response; inspection strategies; defining enforcement response and
evaluating results and responding to change. Also, each workshop
included a role-playing exercise to demonstrate a process for resolving
alleged violations involving complex economic, social and technical issues
and uncertainties. Roles included enforcement officials, industry
representatives, community activists, employees and others. Case study
materials also provided information on environmental problems, pollution
control and prevention approaches and their cost-effectivenessand
sources of information
Concurrent Workshops: Designing Management Approaches,
Enforceable Requirements, and Effective Compliance and
Enforcement Strategy
Break
Concurrent Workshops (continued)
Lunch
Concurrent Workshops: Resolving a Complex Enforcement Problem
Break
-------
CONFERENCE PROGRAM
16:00-18:30
18:30
DAYTHREE
APRIL 24,1996
10:30-12:30
Theme #5
Concurrent Workshops (continued)
Cultural Event: Traditional Khantoke Dinner and Show at the Old Chiang
Mai Cultural Center, hosted by the Thailand Pollution Control Department
REGIONAL MEETINGS/UNEP INSTITUTION-BUILDING
WORKSHOPS
Day Chair: Mr. Steven Herman, Assistant Administrator, Office of
Enforcement and Compliance Assurance, U.S. EPA
Participants met in regional groups to discuss country programs and
progress, shared problems and challenges, institution-buildingneeds,
opportunitiesfor institutional support and exchange, proposals for regional
networking,desired linkage to internationalcapacity-buildingeffortsand
targets of opportunity. They were also provided and overview of four United
Nations Environmental Program (UNEP) institution-buildingworkshopson
organizing compliance and enforcement programs, developing human and
financial resources, designing permitting processes, and compliance
monitoring and enforcement responses programs.
Regional Meetings and Institution Building: UNEP
Workshops
Africa
Americas
South Asia
Southeast Asia and Pacific
Central and Eastern Europe
West Asia and the Middle East
Western Europe
12:30-13:30 Lunch
13:30-15:00 Concurrent Regional Workshops
15:00-15:30 Break
15:30-17:45 Concurrent Workshops (continued)
-------
10
FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
DAYFOUR
APRIL 25,1996
Theme #6
09:00-12:00
12:00-14:00
14:00-17:00
SPECIAL TOPIC WORKSHOPS
Day Chair: Mr. Pieter Verkerk, InspectorGeneral, VROM, The Netherlands
Participants had an opportunity to attend two of fourteen workshop
offerings. Facilitatorsensured that workshops provided opportunitiesfor
active discussions with contributions by all workshop participants and for
exploration of a range of issues defined for the topic. Participants in each
workshop discussed these issues and contributed to the development of a
paper reflecting discussions and consensus. The Executive Planning
Committee solicited papers from participants with experience on these
subjects and these individuals provided background information when
needed during the workshop sessions.
Special Topic and Institution-Building Workshops
ConcurrentSpecialTopicandlnstitution-BuildingWorkshops:
Strategic Targeting
Integrated Permitting and Inspection
Promoting Voluntary Compliance: Environmental Auditing, Outreach,
and Incentive Programs
Public Role in Enforcement: How to Go About Creating and
Supporting Effective Citizen Enforcement
Criminal Enforcement: INTERPOL, Role of Criminal Enforcement in
Environmental Enforcement
Enforcement of Economic Instruments
Creating Enforceable Permit Programs and Requirements:
Discussion Focus on Water Pollution and Contamination of
Drinking Water Supplies
Transboundary Illegal Shipments of Hazardous Waste: Tricks of the
Trade
Organizing and Financing Programs
Lunch
ConcurrentSpecialTopicandlnstitution-BuildingWorkshops:
Strategic Targeting
Compliance Monitoring
Promoting Voluntary Compliance: Environmental Auditing, Outreach,
and Incentive Programs
Measures of Success
Communicationsand Enforcement
-------
CONFERENCE PROGRAM 11
Public Role in Enforcement: How to Go About Creating and
Supporting Effective Citizen Enforcement
Criminal Enforcement: INTERPOL, Role of Criminal Enforcement in
Environmental Enforcement
Enforcement of Economic Instruments
Creating Enforceable Permit Programs and Requirements:
Discussion Focus on Water Pollution and Contamination of
Drinking Water Supplies
Montreal Protocol: Enforcement of CFC and Related Requirements
Enforcement Policy and Authorities
DAY FIVE
APRIL 26,1996
09:00-10:00
10:00-10:30
10:30-12:00
12:00-13:30
REGIONAL MEETINGS/PLENARYSESSION
Day Chair: Mr. PieterVerkerk.lnspectorGeneral.VROM, The Netherlands
Concurrent Regional Meetings (continued from Day Three)
Africa
• Americas
South Asia
Southeast Asia and Pacific
Central and Eastern Eu rope
West Asia and the Middle East
Western Europe
Break
Concurrent Regional Meetings (continued)
Lunch
-------
12
FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Theme #7: Making Progress: Regional Examples, Capacity-Building
Agenda, International/Regional Networks
13:30-15:30 Plenary session highlighting country examples of success and program
improvements since the last Conference based upon written reports for the
proceedings and discussions at the regional meetings, conclusions of
regional meetings on shared problems, future cooperation, and capacity
building.
Moderator: Mr. David Slater, Director, Chief Inspector, Her Majesty's
Inspectorateof Pollution, England and Wales.
Speakers selected by Day Three regional meeting participants.
• Africa
• Americas
South Asia
• SoutheastAsia
Central and Eastern Europe
West Asia and Middle East
• Western Europe
Discussion Session:
Whereto Next: International and Regional Networking for Successful
Environmental Compliance and Enforcement
15:30-16:00 Closing Session:
Day Chair: Mr. PieterVerkerk.lnspectorGeneral.VROM,The Netherlands
Co-Chair: Mr. Steven Herman, Assistant Administrator, Office of
Enforcement and Compliance Assurance, U.S. EPA
16:00-16:15 Press conference
16:00-17:00 Closing Reception
-------
HERMAN, STEVEN A. 13
WELCOME AND INTRODUCTION TO THE CONFERENCE
HERMAN, STEVEN A.
Assistant Administrator, Office of Enforcement and Compliance Assurance, U.S.
Environmental Protection Agency, 401 M Street SW, (MC-2211 A) Washington, D.C.
20460, USA
Ladies and gentlemen, Minister Yingpan Manasikarn, GovernorVirachai Naewboonien,
Honorable Reuben Olembo, honored speakers, and panelists, on behalf of my co-chair, Mr.
Pieter Verkerk and our Executive Planning Committee, it is my privilege to welcome you to the
Fourth International Conference on Environmental Compliance and Enforcement.
Six years ago, the first international conference on environmental compliance and en-
forcement was held in Utrecht, The Netherlands, and was attended by approximately 20 coun-
tries. Since that auspicious beginning, conferences have been held in Budapest, Hungary, and
in Oaxaca, Mexico - with each conference growing in both size and stature.
Here in Chiang Mai, Thailand, 100 countries and international organizations are repre-
sented, making this the largestinternationalenvironmentalenforcementand compliance confer-
ence ever.
The tremendous growth we have seen in the participation at these conferences reflects
an increased awareness world-wide that environmental pollution affects us all. It affects our econo-
mies, our productivity, and our health and overall quality of life. And most of all, it affects these
things for generations to come.
Each one of our countries, to varying degrees, has laws which govern sources of pollu-
tion. Through the enforcement of these laws, and through finding ways to ensure full compliance
with their mandates, we can curb environmental degradation.
That is what brings us here to Thailand for this conference.
Look around you. It is the caliber of the participants and the quality of the dialogue that
made the last Conference in Oaxaca stand out in my experience as one of the most inspiring
moments in my service as head of environmental enforcement for the U.S. Environmental Pro-
tection Agency. This conference gives us all an opportunity to get to know and work with our
environmental enforcement colleagues from around the world on what is a great and complex
mission - to achieve environmental protection inside and outside of our countries' borders through
compliance with our environmental laws. Indeed, we must even look beyond compliance to pre-
vent pollution before it occurs.
In orderto accomplish these objectives, we must rely upon many enforcementand com-
pliance related tools. Strong and aggressive enforcement responses are often necessary to
punish polluters, prevent future violations, and provide the very means for cleaning up the envi-
ronment and protecting the health of our people. Compliance also depends on our ability to
encourage change in the face of what, to some people, may seem to be competing economic
and social goals. It is our task to respond to the demands of the public for environmental protec-
tion, environmentaljustice, and environmentalquality, for these go hand in hand with sustainable
growth and responsible development. And we must do so with an economy of resources, as our
budgets are not limitless.
In the United States, these past two years has been a time of change - within our envi-
ronmental programs overall, within our enforcementand compliance programs in particular, and
within the overall political landscape. And I can say without a doubt that my past 3 years at
-------
14 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Environmental Protection Agency have been the most tumultuous in my 19 years of Federal
service. Indeed, for the first time in more than twenty-five years, the previously unquestioned role
that the government must play to ensure environmental protection was challenged. Attempts
were made to undercut regulatory authority, and to slash Environmental Protection Agency's
budget.
This debate continues in our government, even as I speak today. But throughout this
debate there has been one resounding constant, from which there cannot be a greater motiva-
tion for the work we do - the people of our nations want protection from pollution, and demand
enforcement of our environmental laws to ensure that they receive that protection. The American
public's expectation of protection from environmental hazards drives our enforcement and com-
pliance program. It gives clarity to our mission. I know that the people of your countries share
those views.
And the overwhelming support of our respective populations is our ultimate strength.
We know that environmental enforcement and compliance works. In the United States,
the enforcement and compliance program relies upon everything at its disposal to make it work
- strong criminal and civil cases, swift administrative actions, policies and programs which pro-
vide incentives for companies and government agencies to voluntarily step up to the mark to
confront their environmental problems, and assistance for businesses to help them understand
the laws and regulations with which they have to comply. These efforts are rooted in the simple
principle that polluters must be held accountable for their actions.
And examples of our successes in these efforts abound:
• As a result of an enforcement action against General Motors, the automaker
has agreed to recall nearly half a million cars which failed to control the
pollution from their tailpipes as required by the law. This means the elimina-
tion of over 100,000 tons of illegal excess carbon monoxide which would
otherwise foul the air.
• Another case was brought against a lead refinery which for over 100 years
had dumped lead, arsenic, and other pollutants into the adjoining river, while
illegally operating without a permit. As a result of that enforcement action, it
is now installing water treatment facilities it never had, acquiring wetlands
or wildlife habitat, and doing sampling to ensure that it operates in full com-
pliance with the law.
• Because of other recent actions, a mining company in the State of Michi-
gan will no longer dump high levels of mercury into the Great Lakes, or
pollute the air with illegal amounts of sulfur dioxide. Another mining com-
pany will begin restoration efforts on fifteen miles of creeks and tributaries
of the Ohio River, which had been decimated from the effects of that
company's illegal release of abandoned mine wastewater.
• A land developer who had flouted the advice of environmental consultants,
and willfully and illegally filled in approximately 70 acres of wetlands for com-
mercial development was convicted as a criminal by a jury of his peers.
• The public's right to know about toxic chemicals being released into its
communities was enhanced by the U.S. Environmental Protection Agency's
nation-wide Toxic Release Inventory enforcement initiative against 47 com-
panies last June.
-------
HERMAN, STEVEN A. 15
• These, and other cases, large and small, led to the reduction of thousands
of tons of pollutants being dumped into our rivers and streams, leaked into
our soil, and spewed into our air by violators.
• These enforcement successes benefit us all. That is one of the overarching
messages from each of our international conferences. Progress and envi-
ronmental protection in one country benefits each of its neighbors - we are
all affected.
But our environmental enforcement and compliance program is not limited to filing suit
to compel companies to comply with the law. After all, violations of the law, and illegal pollution,
must be stopped immediately when they occur- not just when they are discovered by our Agency.
To accomplish this, we must enlist the private sector in the battle to ensure compliance. Incen-
tives to comply, and assistance to do so when needed, are also a part of our effective enforce-
ment and compliance program.
Government cannot achieve these things on its own. Compliance with the laws is the
responsibility of all of our citizens and businesses. Both on their own, and in response to strong
enforcement actions, many companies are in fact making responsible efforts to comply with the
environmental laws. Our enforcement and compliance program seeks to encourage and foster
this behavior.
One way we have been doing this is to encourage companies to perform environmental
audits of their operations, and to self-report, and self-correct any violations that they discover.
We are trying to show the benefits of having a comprehensive environmental management sys-
tem in place, one that on its own, seeks to detect and correct violations.
Environmental audits, and good management systems, make those businesses part-
ners in protection with the Environmental Protection Agency - though the responsibility for dis-
covering, reporting, and correcting any violations remains squarely with them. In that regard, last
December, U.S. Environmental Protection Agency issued a final policy on incentives for
self-policing. The policy offers incentives to companies to self-monitor, self-report and self-cor-
rect, and to establish comprehensive management systems. Disclosure, correction, and pre-
vention - these are concepts which the policy takes to large and small companies in every state
in our country.
We are also about to issue a final policy on compliance incentives for small businesses,
and one for small communities. These policies also create incentives for small businesses and
small communities to look for, report, and correct any environmental problems they may have.
They too must be partners in protection if we are to have an effective, and comprehensive,
enforcement and compliance program. Our policy on small communities also encourages those
communities to begin to immediately address those environmental problems that pose the great-
est risk - to the health of their citizens, and to the environment.
Together, these policies and others recognize that environmental results are best
achieved when a company monitors their own pollution practices; and they recognize that envi-
ronmental results are achieved when those who come forward to correct their violations are
treated differently - better -than those who abuse the public trust.
We have also created national compliance assistance centers, which provide compa-
nies with information about the applicable environmental laws and regulations. These centers
will also have the latest information on pollution prevention techniques, so that companies can
move themselves beyond compliance, and into cleaner and more efficient operations.
These new compliance assistance programs, and compliance incentive policies - many
of which we have developed and implemented since our last international conference in Oaxaca
- do not replace our traditional enforcement program - they add to it.
-------
16 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
In everything that we do - whether it is with strong criminal and civil - enforcement ac-
tions, or compliance incentives policies - there is another over-riding principle that we follow - we
know that the public must always be informed. We have continually stood for the public's right to
know about what is in the water that they drink, the food that they eat, and the air that they breathe.
We have rejected the concepts of secrecy and immunity. And we have insisted on corporate
accountability, and preserved a strong enforcement presence in the process.
We can do all this because our enforcement and compliance program uses a mix of
tools to achieve environmental protection through compliance.
Some people think that enforcement and compliance assistance are mutually exclu-
sive. This is not the case! It is not an "either" "or" proposition. It is not "compliance" or "enforce-
ment." We have many options at our disposal and we can, and must, use them all. The problem
of noncompliance has many faces, and there is no single solution, or approach, which can elimi-
nate this problem. Only a combination of approaches will be effective in the long run. We will
examine these tools and approaches at this conference.
But we must be clear about it - there is no substitute for the ability of vigorous enforce-
ment to level the playing field for those who comply with the law. Polluters cannot be ceded an
advantage in the marketplace. Pollution havens cannot be tolerated either nationally or interna-
tionally. There is no substitute for the ability of vigorous enforcement to deter future violations,
sending a strong message that polluters will pay—both in cash and in public perception.
The reality is that pollution does not recognize local, state, provincial, or international
boundaries, and companies are no longer regional, they are often national and multinational in
scope and operation.
But we have limited resources and must find ways to work together, with a focus on risk,
and to move swiftly against violators whose behavior shows no regard for the safety of their
neighbors and the environment.
We must work directly with other nations - with each other - and our own regional and
local governments, to make sure that our resources are directed to where they can be used most
effectively. And we must continue to solve problems that cut across boundaries - pollution affects
us all, regardless of where we live.
As I said earlier - we cannot do it alone. Environmental protections through enforce-
ment of our laws is the responsibility of us all - whether we are in government or private business
- in every one of our nations. The partnerships which must be established are essential to our
success. That is one of the prime benefits of this conference - and the opportunities to make
these partnerships, and to make them work, must be seized by us all.
The next five days together will provide us with great opportunities to explore many
issues surrounding environmental enforcement and compliance.
• Fairness is one such issue - an appropriate enforcement response must
achieve results that are fair, not only for the environment but also for those
companies who have made the necessary investments to comply in the first
place. No one should ever gain an economic advantage by violating the
law. And no one should be put at a disadvantage because they have obeyed
the law.
• We will also explore how to maximize our enforcement responses through
communications and voluntary compliance initiatives, and how to use the
various civil and criminal authorities we have to the greatest advantage.
• We will explore how best to monitor compliance and the mix of government
inspections, self-monitoring requirements, citizen complaints, and the po-
tential to leverage third party audits.
-------
HERMAN, STEVEN A. 17
• We will explore the new economic challenges facing enforcement, and how
to finance and organize programs which draw upon the many skills and
professional demands of our complex programs.
• We will explore the essential role of the public in compliance and enforce-
ment and new ways to employ communication strategies as an effective
tool for enforcement.
• And we will explore how to design requirements that are more easily en-
forceable.
• As a community of nations, we will explore how to ensure that success in
one country does not result in the transport of waste, banned toxic and haz-
ardous substances across our borders imposing new burdens on countries
already struggling to secure a more promising economic future.
• And importantly, we will consider our capacity building needs -both for those
developing and those seeking to enhance their programs. We will try to
match the resources and support available internationally, bilaterally and
regionally with the needs of our various countries. If we are successful in
doing this, then we will have truly left a lasting legacy from these confer-
ences.
We have a rich base of information on which to draw for these discussions. I want to
take this opportunity to offer a note of appreciation to our colleagues who took the time out of
their busy schedules to put on paper their experiences and the lessons they have learned. We
will add to the substantial proceedings volume with additional papers and results from our dis-
cussions throughout the conference.
I also want to recognize the support of the cosponsors of the Conference and Executive
Planning committee members who supported the development of new technical capacity build-
ing documents and those of you who contributed to these, requiring substantial commitments of
time and energy. We invite you to review and perhaps add your own experiences before these
documents are finalized.
We will now reach a far broader audience on a sustained basis by creating a home
page on the internet. It will be keyed off of U.S. Environmental Protection Agency's Enviro$en$e
and Earth 1 Site, with cross links to information provided by all conference cosponsors. I invite
each of you to visit the exhibit area to view the videos, review the materials and try out these
sources of information on program capacity building.
Over the past ten years, we have expanded collaboration among Conference spon-
sors, including colleagues from the United States, The Netherlands, United Nations Environ-
ment Program, Environment Canada, the European Union, the Environmental Law Institute, the
World Wildlife Fund, the Governments of Hungary, Mexico and Thailand, other members of the
Executive Planning Committee from Chile, Costa Rica, Nigeria, South Africa, the United King-
dom, Poland, Malaysia, Indonesia, China and the Philippines, and institutions such as the World
and Regional Banks.
All of us have made a commitment to learn from each other. Environmental pollution is
both a national and an international problem. Through these conferences, and through continued
cooperation, we can ensure that environmental enforcement is both a national and an interna-
tional solution.
And, in that light, I want to express appreciation on behalf of all of us to our host country
for their gracious hospitality, and for providing yet another inspiring location for this conference.
-------
18 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
MANASIKARN, H.E. YINGPHAN 19
EVOLUTION OF ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
PROGRAMS IN THAILAND AND CURRENT CHALLENGES
MANASIKARN, H.E. YINGPHAN
Minister, Ministry of Science, Technology and the Environment, Rama 6 Road,
Rajdhavee, Bangkok 10400 Thailand
Mr. Chairman, Distinguished Delegates, Ladies and Gentlemen, first of all, let me con-
gratulate the Executive Planning Committee and the co-sponsoring agencies and all concerned
on the well organized Fourth International Conference on Environmental Compliance and En-
forcement. I would also like to express my thanks for giving an opportunity to Thailand to be the
host of this important event. It is my very great pleasure to welcome you on behalf of the Govern-
ment and the people of Thailand to this international conference. I hope that all of you had a
pleasant journey and will enjoy your stay here in Chiang Mai.
We are aware that environmental problems have become global issues and are viewed
within the larger context of sustainable development. Effective domestic environmental compli-
ance and enforcement programs are an important factor in global efforts to solve environmental
problems. The Royal Thai Government also considers environmental issues top priority by sub-
stantially increasing the annual budget to take both remedial and preventive measures. As a
basis for achieving effective environmental management, Thailand has enacted a new environ-
mental law, namely the Enhancement and Conservation of National Environmental Quality Act
1992 by amending the previous environmental legislation acts of 1975 and 1978.
Key features and effects of the new legislation include enhancing the National Environ-
ment Board to become an active policy-making body; introducing the Polluter Pays Principle;
establishing the Environment Fund to assist polluters in controlling and eliminating their pollut-
ants; creating more stringent environmental standards and setting proper systems; providing
promotional measures; and establishing civil liability and penal provisions as well.
The new legislation empowers the National Environment Board which is chaired by the
Prime Minister. The Permanent Secretary of the Ministry of Science, Technology and Environ-
ment serves as secretary to the Board. This emphasizes the government's concern about the
environmental issues at the ministerial level. Regarding the Polluter Pay Principle, we incorpo-
rate the use of economic instruments, which provide economic incentives to polluters to change
their behavior. It seems to be more effective than the normal command and control measures.
The owner or possessor of the pollution source is held responsible for meeting the cost of con-
struction and operation of the treatment facilities or another option is to use the central treatment
or disposal plant belonging to the government by paying service fees.
Regarding the Environment Fund, this fund was established to facilitate the Polluter
Pays Principle and is jointly managed by the National Environment Board and the Ministry of
Finance. It provides grants to governmental agencies and low-interest rate loans to the public
and private sectors for installation of pollution control equipment, treatment of pollutants and
disposal of hazardous wastes. The recipients of the funds have an obligation to use the money
"specially for the purpose of meeting the requirement with which the borrower has the legal duty
to comply under the environmental law or other related laws".
From the point of view regarding environmental protection, the National Environmental
Board is responsible for the prescription of a national environmental quality standards program
for all water resources, atmospheric ambient air, noise and vibration and any other environmen-
tal concerns. In this connection, the Ministry of Science, Technology, and Environment has formu-
-------
20 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
lated an action plan called the Environmental Quality Management Plan. This plan provides the
work plans and guidance for action concerning the management of air, water, natural resources,
pollution control from the sources, estimate of funds to be allocated from the Fund, enactment of
laws and regulations for implementation of the Plan.
To further promote environmental quality, important consideration is given to pollution
control, which is prescribed under the Environmental Quality Act of 1992.
There is a Pollution Control Committee which is chaired by the Permanent Secretary of
the Ministry of Science, Technology and Environment. One of the primary duties is to give advice
on the setting of emission or effluent standards for the control of wastewater discharges, pol-
luted air emissions, or discharges of other wastes or pollutants from various sources into the
environment.
In the area deemed by the National Environment Board to have an aggravated pollution
problem which may cause health hazards to the public or adverse impact on the environmental
quality, it designates these areas as pollution control areas. In this event, each Provincial Gover-
nor in the area is authorized to prescribe a more stringent set of emission or effluent standards
for the area, in order to control and reduce the pollution.
So far, there are ten designated pollution control areas resulting from this legislation:
Pattaya, Phuket, Pee Pee Island (Krabi), Had Yai and Muang District of Songkhla Province,
Samut Prakarn, Pathum Thani, Nonthaburi, Samut Sakorn and Nakorn Pathom.
As I mentioned earlier, this new environmental legislation provides an enhanced scheme
of penalties. Those who opt to illegally dispose their waste products and waste water are liable
for a penalty four times the cost of the service fees, until full compliance with provisions of the
environmental legislation is achieved. In addition, those who are required to have their own on-
site waste and waste water treatment facility but fail to do so, and illegally discharge their waste
waters or wastes into the central waste water treatment plant or the central waste disposal facil-
ity, are subject to daily fines of four times the daily costs of normal operation of such on-site
facilities, plus any damages to the central treatment plant or disposal facility resulting from their
illegal activities.
Additionally, this new law also provides inducement measures. A party who owns or
possesses a point source of pollution and plans to install an on-site treatment facility, whether or
not he is required to do so by law, is entitled to request assistance from the government regard-
ing import duties of the necessary machinery, equipment and materials for the facilities which
are not available in Thailand. They are also allowed to bring in foreign experts and specialists
concerning the construction and operation of the facility if such qualified persons are not locally
available. The foreign specialists may also be exempt from taxation of their income earned in
Thailand for the purposes of construction and operation of the facility.
Currently, Ministry of Finance, Ministry of Industry and Ministry of Science, Technologies
and Environment have an initial agreement regarding tax measures for environment manage-
ment.
Violators of the regulations are liable to pay compensation for all damages resulting
from contamination including any expenses incurred for clean-up of pollution and the value of any
natural resources destroyed or damaged in the process. Furthermore, the criminal liabilities for
violation range from one month to five years imprisonment and/or fines of Baht 10,000 to 500,000
or US $400 to $20,000.
This new government policy and legislation shows that Thailand is strongly determined
to solve environmental problems effectively. The Thai Government, through the Ministry of Sci-
ence, Technology and Environment has established policies to support environment oriented
-------
MANASIKARN, H.E. YINGPHAN 21
investment in order to manage environmental quality and build mechanisms for private sector
participation in waste management and to encourage people to recognize the value of natural
resources as a common property.
As I have already mentioned, there is still much to be done in the area of environment.
Cooperation and collaboration at national, regional and global levels is essential to achieve
tangible results. I greatly appreciate the joint effort of international agencies to organize this
important international conference, which I am sure, will be a great benefit to us all. I hope that
with your participation and contribution, the Conference will be successful and wish you a safe
return to your country.
-------
22 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
NAEWBOONNIEN, VIRACHAI AND WONGBURANAWATT, JAKAFAN 23
CHIANG MAI'S ENVIRONMENTAL CHALLENGES
NAEWBOONNIEN, VIRACHAI1 and WONGBURANAWATT, JAKAPAN2
1 Governor, Chiang Mai, Provincial Hall, Chotana Road, Muang District, Chiang Mai,
Thailand
2Dean of Social Sciences Faculty, Chiang Mai University, Chiang Mai, Thailand
Mr. Chairman, Ladies and Gentlemen, first of all let me thank the organizers and all the
rest of you present for having chosen Chiang Mai as a venue for this very important meeting.
Actually, as we all already know Chiang Mai depends on tourism so the more people we get to
come to Chiang Mai the better the economy will be. Therefore, before I forget let me just say now
that while you are here in Chiang Mai spend a lot of money, buy everything in sight, buy as much
as you can. If you have a problem at all with that let me know I can help you. I am sure you have a
lot more money at home so whatever you have brought with you spend it all at Chiang Mai.
A week ago Chiang Mai celebrated its 700th anniversary so this is a very old town, one
of the oldest cities in the world, I do not know if you realize that. We have a lot of problems. My job
this morning is to welcome you and then present something under the heading of Chiang Mai's
Environmental Challenges. As a political administrator, I do not have much time to go into the
details of the various aspects of our environmental challenges. My immediate problem is to
raise the standard of living of the people within my country. Just yesterday the queen was up in
the palace over the hill visiting the very outlying village, a very far away distance from Chiang Mai
and about 1,000 hill tribes came and visited her and received her. Every time she goes out of the
empire a medical unit goes with her to look at the problems of the people. The majority of the
people are living below the accepted level. Only one district in all the 24 districts of Chiang Mai
has proper toilet facilities. We have 23 districts that do not have proper toilet facilities. This is
just one example of the need to bring up the level of living conditions. I personally think that is
more important than the environmental problem of the sector. Not that we do not give attention to
environmental problems, we do. The provincial authority at Chiang Mai has asked the Faculty of
Social Science at Chiang Mai University to study the environmental problems of Chiang Mai and
come up with a plan as to how to go about solving these problems. We asked them to identify the
challenges we have so this morning I would like with your permission to introduce a colleague of
mine who has prepared this environmental plan. He is the Dean of the Social Science Faculty of
Chiang Mai University, Dr. Wongburanawatt.
I have been given ten minutes to give this speech and I have spent about five minutes in
introduction. I think that's the limit of my ability to speak English at the moment. I would like Dr.
Wongburanawatt to come up here and in the ten minutes remaining give you a picture of the
challenges of Chiang Mai as concerns the environment.
* * *
Thank you very much Mr. Governor, Mr. Chairman, Ladies and Gentlemen. It is a great
honor for me to have a chance to say a few words right after the Governor of Chiang Mai this
morning at the Fourth Conference on Environmental Enforcement. As you know Chiang Mai just
celebrated our 700th anniversary. Chiang Mai is a very ancient city that is still alive in Thailand.
Even though we are a very old country the city has not died or passed away.
-------
24 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
With time, particularly within the past five years, Thailand has put a great emphasis on
environmental issues. Especially three years ago, when the Thai Government asked each prov-
ince to come up with an environmental plan. As the Governor has just mentioned Chiang Mai
University was assigned to study and to recommend ways to solve environmental problems. As
the Director of Social Science we are honored to do so.
In the next ten minutes I would like to give you some background information concerning
Chiang Mai. The population of Chiang Mai is approximately 1.5 million persons above the 2.4
million number of tourists each year. That means that though tourists bring a lot of money to
Chiang Mai they also contribute to environmental damage as well. In Chiang Mai the population
of 1.5 million consists of some tribal people and some island people. Right now we have about
seven tribes the Meo, Karen, Yao, Lisu, Lawa Lahu and Akha. Besides those tribes we also
have the Burmese minority and the Chinese minority right up to the second world war. For being
a major tourist city with also a very ancient history we have remained open. Chiang Mai also has
a future potential role in environmental issues. At present Chiang Mai is the principal city in the
upper north region and also has the role of bringing corporations to the nearby provinces as well
as form economic environmental policy which will try to promote corporate growth in Thailand,
China, and Laos. It is predicted in the next fifteen to twenty years that Chiang Mai will become
the center of progress in various areas such as the Center for Human Resources and Develop-
ment for the country and also for Indochina as well. Chiang Mai will be the center for our interna-
tional tourism, the center for international corporate banking and finance, as well as the center
for communications, transportation, and telecommunications. Chiang Mai also expects to be
the center of agroeconomy and industrial agriculture for local consumption and exports. Chiang
Mai will also be the center for education and cultural conservation as well as the center for high
technology industry.
The mentioned potential of Chiang Mai may also cause some environmental risk and
pollution. For the limited time I would like to mention key points of environmental problems of
Chiang Mai. The first problem is water pollution especially in the municipal community. As I
indicated earlier Chiang Mai is host to 2.4 million visitors a year. Above this, the number of
people in the Municipal area is 250,000 and they produce a waste of approximately 50 cubic
meters a day. There is also water pollution from factories and from public housing sewage. In
Chiang Mai we now have nearly 2,000 factories, more than 50 % of which are located in the city
area nearby. These factories release both water and air pollution that can be harmful to health
even though they have installed some pollution prevention and a treatment systems. Besides
those factories there are about twenty public housing sewage systems in Chiang Mai. The amount
of waste water from this comes up to 450 cubic meters per hour and even though they have
some treatment some contamination was still detected in the water sources. The biological
oxygen demand (BOD) checks indicate there was still a high level of BOD in the water.
The third problem is air and noise pollution. The statistics of patients suffering from
respiratory diseases show that in 1994 there were as many as 500,000 patients in hospitals
suffering from respiratory problems. This shows that the future of Chiang Mai will face more
serious pollution of this type due to the present factories and also transportation that may cause
more air and noise pollution. Of both problems another significant one is the community solid
waste, solid waste has become a major political issue. When they were campaigning to run for
the Governor of Bangkok metropolitan area one of the key issues according to Yingpan's lecture
was to solve the solid waste problem in Bangkok. That is why in Chiang Mai we have the legend
of the bear, of the city municipality, and one of the key issues that faces the republic is the
residential solid waste problem. In Chiang Mai right now within the municipality we have about
-------
NAEWBOONNIEN, VIRACHAI AND WONGBURANAWATT, JAKAPAN 25
250 tons of garbage and solid waste a day. We still have a serious problem and need to solve it..
Besides those problems Chiang Mai also has special problems like degraded forest, accord-
ing to statistics in 1976 90% of Thailand was in forest, in 1993 only 71% is forest.
Chiang Mai University is developing three major plans to protect the environment. The
first concentrates on rehabilitation of present resources, water, land and air. Second concerns
prevention of future pollution. Thirdly, is the importance of promoting public awareness of envi-
ronmental issues and the importance of a healthy environment. We look forward to sharing our
plans as they are further developed and ask that you please enjoy your visit to Chiang Mai.
-------
26 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
DE BOER, MARGARETHA 27
REACHING OUT TO OTHERS FOR EFFECTIVE ENVIRONMENTAL
ENFORCEMENT
DE BOER, MARGARETHA1 (DELIVERED BY VERKERK, PIETER J2.)
1Minister, Ministry of Housing, Spatial Planning and the Environment, IPC 100, P.O. Box
20951, 2500 BZ The Hague, The Netherlands
inspector General, Inspectorate for the Environment/I PC 680, Ministry of Housing,
Spatial Planning and the Environment, P.O. Box 30945,2500 GX The Hague, The
Netherlands
Mr. Chairman, Honorable Colleague from Thailand, Esteemed Governor of the Prov-
ince of Chiang Mai, Ladies and Gentlemen, I would first of all like to express my appreciation to
the Royal Government of Thailand for being so willing to jointly organize this conference. The
pollution control department has also played a very important part in the preparation of the con-
ference. Thanks to their efforts we can now begin this Fourth Conference, a conference which I
am confident will be a success. The information I have seen about the number of participants,
the number of participating countries and the program itself, has convinced me that the organiz-
ers, assisted by the members of the Executive Planning Committee, have done a first-class job
with the preparations.
1 INTRODUCTION
This is the fourth time, after Utrecht in 1990, Budapest in 1992, and Oaxaca in 1994,
that a minister of the environment of the Netherlands has made the opening speech to the con-
ference. These speeches reflect a very clear progression in enforcement matters. In the begin-
ning the emphasis was especially on the setting up of our own enforcement organization and
building up and propagating knowledge and skills. We have made a lot of progress since the
earlier conferences. The initiatives started during these conferences are clearly showing results.
Enforcement of environmental legislation is a matter of importance, both at a national level in the
Netherlands, and at an international level. The importance of this enforcement is generally rec-
ognized, and is receiving a great deal of attention.
But—as is so often the case when our knowledge of a subject is still in development—
we have seen that as our knowledge of the subject has increased, so too have our problems. We
are confronted with environmental crime, transfrontier waste shipments, definitions of reuse,
and general differences in definitions for waste substances in the various conventions.
2 DEVELOPMENTS IN THE NETHERLANDS
The priority areas in environmental policy in the Netherlands are agriculture, industry,
waste (shipment), and pollution of the soil, air, and water. The National Environmental Policy
Plan was drawn up to organize and plan the approach to these problems. The plan also ensured
that the enforcement activities were synchronized to the other activities. All parties involved in
-------
28 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
enforcement participate in the National Coordination Committee for Environmental Law En-
forcement. The parties involved are the Ministry of Housing, Spatial Planning and the Environ-
ment, the Ministry of Agriculture, Nature Management and Fisheries, the Ministry of Transport,
Public Works and Water Management, the Ministry of Economic Affairs, the Ministry of Home
Affairs, the Association of Provincial Authorities, the Association of Netherlands Municipalities,
the Association of Water Boards, the Board of Chief Commissioners of Police, and the Public
Prosecutions Department. The committee is responsible for synchronizing and stimulating the
broad outlines of the enforcement of environmental legislation.
There are other new developments which also require attention, including the integra-
tion of the environment and spatial planning, and the environment and the economy. Another
important development is the emphatic placing of the responsibility of implementing (and en-
forcing) environmental legislation with the parties involved. Lower-tier authorities and compa-
nies, should bear the responsibility for their own environmental behavior. Companies with a
corporate environmental care system show that they have adopted a responsible attitude to-
wards the environment, and towards the relevant regulations. A company with a certified envi-
ronmental care system can demonstrate to the inspecting authority that it views the environment
as being of great importance. This can then also be reflected in the form and the content of the
licenses issued to the company. It also means that the authorities responsible for enforcement
duties should also make use of this specific information.
The exact way in which this new approach will be implemented needs to be worked out
in more detail, especially with regard to enforcement. As part of this approach, agreements will
be made between government and branches of industry about the contributions each branch of
industry will make towards achieving the environmental objectives. These agreements will be
set down in writing for each branch of industry, and they will also be incorporated in the environ-
mental license issued to each individual company. Each complete branch of industry will be
answerable for compliance with these agreements. I have also recently submitted a proposal to
Parliament for the introduction of a compulsory environmental report by some 300 large compa-
nies in the Netherlands liable to such regulations.
Progress has also been made in working relationships with lower-tier authorities in the
Netherlands. In accordance with the National Environmental Policy Plan they have received the
funds to enable them to take up their environmental duties. Within the National Coordination
Committee for Environmental Law Enforcement it has been agreed that continued efforts will be
made to increase both the quantity, in terms of the environmental licenses issued, and the qual-
ity, in terms of the enforcement of environmental legislation.
A start will also be made with the monitoring of the performance of government in the
area of environmental policy and enforcement, in particular with regard to specific target groups
from the National Environmental Policy Plan.
The National Coordination Committee for Environmental Law Enforcement is also re-
sponsible for a report to the lower House of Parliament on the results of the enforcement of the
environmental legislation as achieved by all members of the committee. This report is published
every two years.
3 INTERNATIONAL DEVELOPMENTS
The Netherlands is not an isolated state. It is part of the European Union, which is one
reason why it is very interested in the involvement of other member countries in the enforcement
of environmental legislation. This is the reason why the Netherlands participates in the European
-------
DE BOER, MARGARETHA 29
Union Network for the Implementation and Enforcement of Environmental Law - the IMPEL net-
work.
You will be offered more information about this in other contributions to the conference.
This initiative of the member countries was warmly welcomed by the European Commission.
The Netherlands is conducting a number of trial projects in the area of transfrontier shipments of
waste and the notification of new substances, which also constitute initiatives towards a joint
European approach to enforcement.
The objective of this is to achieve a professional Pan-European approach to the en-
forcement of environmental legislation. The European Union is not the only region considered to
be of importance by the Netherlands. The Netherlands also make their knowledge and experi-
ence available to the United Nations Environmental Program. Special attention is also being
given to the developing East European countries, and again the Netherlands are making their
knowledge available to this region.
This is why I place so much importance on this Fourth International Conference on En-
vironmental Compliance and Enforcement. By participating in this conference for the fourth time
in succession, the Netherlands once again offers its support to developments which we con-
sider to be of great significance.
4 FUTURE DEVELOPMENTS
I mentioned earlier that we in the Netherlands have encountered the problem of environ-
mental crime. This is an international form of crime, and I am of the opinion that it is important
that, as far as is possible, we also fight this sort of crime internationally. This is why it is so
important that the participants of this conference come from so many countries, and from impor-
tant international organizations. We have extended our enforcement network in the Netherlands
to Include organizations such as the police, customs, and the port authorities. Similar develop-
ments can be seen in other countries. International cooperation is the only way we will be able to
achieve results sufficient to be able to maintain the durable development of our world for our-
selves and forourchildren.
An increasing amount of international environmental legislation is coming into effect,
for example, the Basel Convention, the Montreal Protocol, and the Convention on Biodiversity. If
we wish these treaties to be credible then we must bridge the gap between implementation and
enforcement. In relative terms, there are many international conferences about new regulations,
for example, the negotiations about the Prior Informed Consent (PIC) Convention, but few about
enforcement. International discussions about enforcement are complicated by factors such as
the sovereignty of Individual countries; nonetheless we cannot neglect the question of enforce-
ment if we wish to give credibility to all the international conferences about new environmental
regulations. Perhaps we should make a cautious start with conferences such as these, where
we give training, and help build capacity.
Together with the United Nations Environmental Program we should give some thought
to an informal network such as the European Union Network for the Implementation and Enforce-
ment of Environmental Law. It would be of benefit if this conference stimulates such thoughts.
-------
30 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
5 CONCLUSION
I would like to wish all participants a very successful conference. It will be a very busy
conference for you, and you will have much to do in the working sessions. When you participate
in these sessions it is very important that you relate the knowledge and experience you acquire
during the course of the conference to the conditions, culture and organization in your own coun-
try. The principles of the enforcement of environmental legislation are universal; it will be up to
you to apply them with the knowledge and experience that you acquire in the field.
It is important that the regional enforcement networks which come into being as a result
of this conference will take root and grow further. I am very interested to see the results and I am
pleased to be able to inform you that the Netherlands is certainly willing to participate in the
organization of a Fifth International Conference on Environmental Compliance and Enforce-
ment.
I wish you all a very successful conference.
-------
THEME 1: DRIVING FORCES BEHIND ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT PROGRAMS 31
THEME #1:
DRIVING FORCES BEHIND ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT PROGRAMS
Theme 1 papers address the following issues:
• The driving forces that gave rise to a decision to create or enhance an
environmental compliance and enforcement program or to respond to
particular noncompliance problems.
• Issues that arose in developing or enhancing a program, including options
considered or selected.
• Particular challenges facing rapidly industrializing, developing, developed,
and transitional economies trying to enhance or establish effective
environmental compliance and enforcement programs, including issues
such as economic and political uncertainty, level of support for
environmental concerns, tradition of enforcement and compliance, and
limitations on availability of human resources with necessary skills and
experience in the field.
• Where appropriate, how these driving forces have affected actions taken,
what resources would be brought to bear, how to establish priorities, how
to effectively follow through on problems found, what human and financial
resources were determined to be needed, and some of the considerations
made in deciding how to develop or acquire those resources.
1. Summary of Panel Discussion of Theme #1, Moderator: C. Wasserman,
Rapporteurs: S. Oley, K. Rubin 33
2. Driving Forces for Environmental Compliance and Enforcement: Sustainable
Development, International Trade, Public Pressure and Involvement in Decision-
Making and the Implications for Cleaner Production, Environmental Law, and
Sustainable Development, R. Olembo 37
3. Implications Of ISO 14001 For Regulatory Compliance, J. Cascio 43
4. The Impact of Driving Forces on Environmental Compliance and Enforcement
Programs - The Philippine Experience, R. Vasquez 49
5. The Impact of Driving Forces on Environmental Compliance and Enforcement
Programs- Example of Poland, S. Wajda 61
-------
32 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
6. Driving Forces for Sustainable Environmental Compliance and Enforcement
Programs in Africa with Particular Reference on Nigeria, A. Adegoroye 73
7. The Impact of Driving Forces on Environmental Compliance and Enforcement
Programs in Mexico, A. Azuela 85
See related papers from other International Workshop and Conference Proceedings:
1. The Challenges of Environmental Enforcement in a Developing Country: The
Nigerian Experience, A. Adegoroye, Volume I, Oaxaca, Mexico
2. Environmental Compliance Issues During the Privatization Process in Poland,
P. Syryczynski, Volume I, Oaxaca, Mexico
3. Summary of Theme Discussion: Environmental Enforcement Challenges, Moderator
A. Adegoroye, Rapporteur: A. DeLong, Volume II, Oaxaca, Mexico
4. Membership of the EEC: What it Means for Environmental Requirements and
Enforcement, R. Macrory, Volume I, Budapest, Hungary
5. Upgrading of Environmental Laws in France as Part of the Requirements by the EEC,
P. Kromarek, Volume II, Budapest, Hungary
6. Some Factors Influencing Environmental Enforcement in the CSFR, E. Kruzikova,
Volume II, Budapest, Hungary
7. Environmental Enforcement in Greece, M. Vassilopoulos, Volume II, Budapest,
Hungary
8. The Role of Industry: Empowerment and Environmental Protection, J. Plaut, Volume II,
Budapest, Hungary
9. Environmental Problems in the Hungarian Privatization, /. Mandoki, Volume II,
Budapest, Hungary
10. Summary of Theme Discussion: Context for Enforcement, F. Uijting, Volume II,
Budapest, Hungary
-------
SUMMARY OF PANEL DISCUSSION OF THEME #1 33
SUMMARY OF PANEL DISCUSSION OF THEME #1: DRIVING FORCES
BEHIND ENVIRONMENTALCOMPLIANCEAND ENFORCEMENT
Moderator: Cheryl Wasserman
Rapporteurs: Shari Oley, Kenneth Rubin
GOALS
Presentation of driving forces that gave rise to a decision to create or enhance an
environmental compliance and enforcement program or respond to particular noncompliance
problems. Discussion of issues that arose in developing or enhancing the program. Address
issues of particular relevance to rapidly industrializing, developing, developed and transitional
economies, including economic and political uncertainty, level of support for environment,
tradition of enforcement and compliance, and limited human resources, along with ways to
overcome these obstacles.
1 PRESENTATIONS
Mr. Reuben Olembo, Deputy Executive Director of the United Nations Environment
Program, delivered the keynote address on forces driving environmental compliance and
enforcement. Ultimately, there is only one driving force: the inescapable need for environmental
protection and sustainable development to go hand in hand. As discussed at length at the
1992 Earth Summit, there are six global environmental priorities that must be addressed to
make sure that development meets the needs of the present without compromising the ability
of future generationsto meet their own needs. These are: atmosphere and climate; deforestation
and desertification; fresh water and the oceans; toxic chemicals; biodiversity, and energy and
natural resource consumption. The hard realities behind these issues are driving the need to
build institutional capacity for environmental compliance and enforcement. Mr. Olembo pointed
out that there are also three broader driving forces. The first is public demand, one of the most
vocal of societal forces that has stimulated a great deal of positive change in many countries.
The second, more subtle than the first, is industry's drive to compete globally because cleaner
production ultimately makes good economic sense. The third driving force is the emergence
of international standards of practice and trade, such as IS014000, that catalyzes a country's
government to bring their own industries up to speed on environmental management in order
to be internationally competitive.
Dr. Dorothy Bowers, U.S. Technical Advisory Group to IS014000, discussedthe driving
force of voluntary programs. Industrial commitmentto good environmental managementsystems
should be based on a plan-do-check-act model whose steps are: define policies and get top
management commitment; put in place the organization and system; set objectives and targets;
set in place findings programs; set in place audit programs; and retool the organization and
system if needed. Ms. Bowers explained that ISO 14000 was developed with input from many
countries and is meant to be used in all countries. Industry sees ISO 14000 as a way to make
more environmental progress at less cost. Ultimately, it is a driving force because banks, other
lending institution, insurance companies, suppliers, and customers will demand an ISO
certification. But for ISO 14000 to have the greatest impact, regulatory agencies will need to
review their approaches with an eye toward increased flexibility. In particular, Ms. Bowers
-------
34 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
stressed that regulatory approaches should treat industries that want to comply — i.e. those
that certify under IS014000 — with more flexibility than those that do not, but that IS014000 is
not intended to replace regulation.
Ms. Rachel Vasquez, Assistant Director, Environmental Management Bureau,
Philippines, focused on the concept of "social acceptability" as a drivingforce. In the Philippines,
environmental laws are sufficient, but there is no great political commitment to implement them
so compliance is low. In this situation, the use of public pressure from stakeholders and local
government units works well. Using the concept of social acceptability, proponents and
opponents alike are engaged in dialogues and public hearings before new regulatory efforts
are undertaken and as part of approval of environmental compliance certificates (approval of
ElAs) for major projects such as mines, forest harvesting, etc. A companion policy that works
well is the use of the public as informal monitors of industrial environmental performance. In the
Philippines, NGOs are critical in this regard.
Stan Wajda, Legal Advisor, EC Phare Program, Ministry of Environmental Protection,
Poland, addressed privatization as a driving force. The classical notion is that under state-
owned and operated industry, little environmental progress is likely, but that in market economies,
the private profit incentive can be harnessed to deliver environmental results. This has, indeed,
been the case in Poland. For example, Poland has had programs of economic instruments (air
emission fees, waste effluent fees, water use fees, waste disposal fees, forestry fees) in place
since the 1970s, but they have not been effective until the fall of communism several years ago.
Since that time, production subsidies have been eliminated and fees have increased to levels
that compel private expenditure on pollution control and minimization. Fines and penalties,
about $200 million per year, go into a national fund which lends up to 50% of project costs to
industry.
Lie. Javier Cabrera Bravo, General Director for International Affairs, PROFEPA,
Mexico, asserted that commerce is an important driving force in developing nations. A series
of political, economic and trade-oriented events have lead Mexico to view the environment
and sustainable development as a necessary element of its modernization. Since 1971, when
the first Environmental Protection Act was decreed, Mexico has experienced continued
strengthening of the legal and institutional framework for environmental protection and the
preservation of natural resources. The State has transformed its institutional structures,
consolidated functions, strengthened enforcement of environmental laws and also expanded
its activities to include emphasis on defining environmental objectives as well punitive intent,
and sought to broaden social participation. A new law passing congress will increase access
to information, reduce discretionary power of agencies, broaden the opportunities for social
input, involving the public in decisions, and decentralize functions from the Federal government
to state and local governing bodies. Mr. Bravo stated that the globalization of the world economy
and the international nature of trade and political relations forces a developing nation like
Mexico to pay much closer attention to the need to comply with global environmental norms
and to participate in international forums for exchange of information and agreement on the
types of things that developing nations can do to protect the environment.
Dr. Adegoke Adegoroye, Director of Inspectorate and Compliance Monitoring, Federal
Environmental Protection Agency, Nigeria, stated that the primary forces driving his country's
environmental compliance and enforcement programs are external. These are the catalytic
roles of various initiatives of the United Nations and its agencies over the last eight to ten years
and bilateral and multilateral aid from donor agencies. Internally the driving force has been the
need to attain public health standards but it is the provision of experts and financial resources
from external sources that has made the most headway in promoting environmental programs.
There are many challenges that face Nigeria's enforcement and compliance programs among
-------
SUMMARY OF PANEL DISCUSSION OF THEME #1 35
which are interagency conflicts and loss of trained staff to other sectors, inadequate legal
instruments, the need for public infrastructure and better agency-industry relations, useful
economic instruments, and the need for stable leadership.
2 DISCUSSION
In regard to IS014000, Mr. Bravo pointed out that some countries with a long history
of auditing and self-certification programs, such as Mexico, may have to customize IS014000
to suit their specific framework. Ms. Vasquez explained that they encouraged industries to
certify underlS014000 and got commitmentsonlyafterthey went to voluntaryoptions. In Poland,
according to Mr. Wajda, the program is mostly unknown but there is much interest. Industry is
very anxious to get the certification because it enhances international competitiveness. Thomas
Bispham from the United States noted that IS014000 could take care of large sources, freeing
regulatory programs to target resources on smaller firms. A participant from Germany
commented that ISO 14000 certification simply means that an environmental management
system is in place, but not that the company is in compliance with applicable environmental
standards.
In responding to the issue of social acceptability, Ms. Bowers pointed out the need to
get public involvement sooner to avoid having to close companies. Mr. Bravo pointed out the
potential for this strategy to fail where populations are largely illiterate, poverty is high, because
the public must be educated on the need for environmental protection. In Poland public
involvement is limited now, But Mr. Wajda feels it will strengthen with the adoption of European
Union policies and framework law that Poland is working on and which is expected to pass
within two years. An Argentine participant agreed that public participation is extremely important
but getting public participation into gear for a new law is sometimes a great problem.
In a discussion of other driving forces, a participant from Brazil noted that democracy
as a force should not be taken for granted. It enables meaningful public participation and
unleashes market forces to compel action. A participant from Costa Rica has seen government
reform reduce resources for the environment and provide little content in government programs,
so clearly government commitment, as evidenced by adequate funding and strong political will
is a major driving force. Mr. Bravo noted that NGO's and industry are both against
decentralization but for conflicting reasons. NGO's feel that state governments, as opposed to
federal governments, will be too soft while industry fears that the states will be too tough. He
warns not to decentralize without resources.
3 CONCLUSION
Economics and the incentive to be competitive in international markets are a major
driving force behind environmental compliance and enforcement programs. The interest in
meeting standards, such as European Union policies, NAFTA, and IS014000, that can enhance
entry into other markets, drives both the regulated and regulating communities, in developed
and developing countries.
Public pressure is a driving force which can be used to enhance government programs
or to strengthen environmental compliance and enforcement when the government efforts are
weak or ineffective, but it requires an educated populous.
-------
36 FOUFITH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
OLEMBO, REUBEN: KEYNOTE ADDRESS 37
DRIVING FORCES FOR ENVIRONMENTAL COMPLIANCE AND
ENFORCEMENT: SUSTAINABLE DEVELOPMENT, INTERNATIONAL
TRADE, PUBLIC PRESSURE AND INVOLVEMENT IN DECISION-MAKING
AND THE IMPLICATIONS FOR CLEANER PRODUCTION, ENVIRONMENTAL
LAW, AND SUSTAINABLE DEVELOPMENT
OLEMBO, REUBEN: KEYNOTE ADDRESS
Deputy Executive Director, United Nations Environment Program, P.O. Box 30552,
Nairobi, Kenya
INTRODUCTION
It is a great pleasure to represent UNEP at this important international conference on
environmentalcomplianceand enforcement. ElizabethDowdeswell.UNEP's Executive Director,
sends you her greetings and best wishes fora successful conference. She personally wanted
to give you UNEP's unwavering support in your efforts to develop and perfect the art of
environmental compliance and enforcement in your countries. This is often a very difficult task,
particularly during a period of intensive global competition, deregulation and government and
corporate cutbacks. But this task is also a critical one, and UNEP recognizes that it is you,
government policy makers and officials, who are on the front line. You have the ultimate
responsibility of seeing that everybody meets at least minimum environmental standards. You
also have the very difficult task of finding ways to encourage people to voluntarily go beyond
the requirements of environmental laws and regulations.
Today I have the privilege of conveying UNEP's message of encouragement and
support, together with several of my colleagues from our regional offices and our Industry and
Environment office, who you will be meeting during the UNEP workshops.
1 SUSTAINABLE DEVELOPMENT
You are about to immerse yourself in the multifaceted aspects of the art of compliance
and enforcement, benefiting from an internationalcross-sectionof experiencesand perspectives
that is unique to this biannual forum. With such a full and diverse agenda, it may be hard to see
the forest for the trees, to have a clear vision of why we are here. So I want to review the driving
forces behind environmental compliance and enforcement programs. I say review because
these driving forces are not new to you of all people, but they are nonetheless important to
keep uppermost in our minds if we are to come out on Friday with a clear sense of vision not
only of why we are here, but of the way forward when we get back to our offices.
These driving forces include the inescapable realities facing our planet today as well
as the broader influences and trends which affect them.
Ultimately, there is only one driving force. It is of course the inescapable need for
environmental protection and sustainable development. In its simplest terms, sustainable
development means making sure that development meets the needs of the present without
compromisingthe ability of future generationsto meettheirown needs. Environmental protection
and management are at the heart of sustainable development, along with economic growth
-------
38 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
and elimination of poverty. We need to focus on six global environmental priorities if we are to
make real progress in moving towards global environmentally sustainable development. These
are:
1.1 Atmosphere and climate
The thin skin of air that surrounds the planet is being affected by human activities as
never before. Air pollution does not respect boundaries. It affects agriculture and ecosystems
far from its source. Many people living in urban areas (45 % of the global population and
growing) are exposed to unacceptable levels of air pollution. Forests are still being degraded
by acid precipitation caused by air pollutants. Depletion of the ozone layer, causing increasing
exposure to the sun's ultraviolet radiation, is an ongoing concern. The link between human
activities and global warming is increasingly undeniable, posing mounting threats of climate
change, floods and droughts.
1.2 Deforestation and desertification
About 25 billion tons of topsoil are lost each year to erosion; about 15% of the earth's
land area has been degraded to some degree. Countries with the least amount of resources in
terms of the ability to act or to absorb the societal and economic costs, are often the most
affected.
1.3 Fresh water and oceans
Freshwater for human use is a fragile, finite resource. Agricultural, industrial, domestic
and municipal needs are stretching hydrological systems to the limit. Overfishing and pollution
of oceans are posing severe threats to fish stocks and marine ecosystems, a vital part of the
global food supply.
1.4 Toxic chemicals
Some of the more than 50,000 different chemicals produced annually can be toxic or
carcinogenic. When toxic substances accumulate in the environment and in food chains, they
can profoundly disrupt biological processes. Much more is still unknown than is known about
environmental toxification
1.5 Biodiversity
We are experiencing the greatest extinction of species since the dinosaurs
disappeared 65 million years ago. This is a result of the combined effects of rapid conversion
and degradation of habitat for human use, overharvesting of animals, fish and plants, pollution
(accidental and deliberate), introduction of exotic species, global climate change, industry,
agriculture, forestry and other activities that destroy or impair natural ecosystems.
1.6 Energy and natural resource consumption
Current global consumption patterns are not only inequitable, but are environmentally
unsustainable. Industrialized countries are the largest consumer of energy and currently consume
about 3/4 of many of the globe's important resources (e.g. metals, energy, commodities). But
developing countries are set to become the largest users of energy in the next century and
many also have unsustainable patterns of consumption today. The issues are controversial
-------
OLEMBO, REUBEN: KEYNOTE ADDRESS 39
and complex, and technology is not a panacea, even if it could, as some say it must, increase
resource productivity by a factor of ten over the next ten to thirty years. And market economics,
because they fail to internalize environmental costs, have their limits as well.
This is the hard reality which is the ultimate driving force behind the need to build
institutional capacity for environmental compliance and enforcement. These environmental
priorities were discussed at length at the 1992 Earth Summit, the largest international conference
ever held, drawing an unprecedented number of heads of state. Chapter 8 of Agenda 21
specifically encapsulates the need to build compliance and enforcement capacity as an
essential element of environmental management. It calls on countries to "develop integrated
strategies to maximize compliance with its laws and regulations relating to sustainable
development". It specifiesthe need to develop effective laws, regulations and standards, promote
and review compliance, and detect and establish violation priorities. It also calls on countries
to undertake effective enforcement, conduct periodic evaluations of the effectiveness of
compliance and enforcement programs, and establish mechanisms for appropriate involvement
of individuals and groups in the development and enforcement of laws and regulations.
2 OTHER DRIVING FORCES
Then there are some broader driving forces. There are three which I think are the most
useful to keep in mind: 1) public demand; 2) industry; and 3) international trade, standards and
law. They are all equally important. If they are not acutely felt in your country at the moment, they
probably will be in three to five years.
2.1 Public demand
First, public demand, one of the most vocal of societal driving forces. Public awareness
of environmental issues is growing. Concerned and motivated individuals, with the kind of
support and contacts made so easy by global networks today, can mount sophisticated
campaigns to shut down a polluting factory, boycott a company's products, influence financial
decisions, call into question a government's credibility or force it to take action. Public demand
has stimulated a great deal of positive change in many countries, legitimizing government's
authority to institute higher environmental standards, encouraging companies to go beyond
them, signaling the alarm in the case of misdemeanors, and providing new markets for those
who are first to catch on. As a country's economy develops, so does its people, so does public
demand for a better environmental quality of life. There is growing public recognition that
environmental management and economic development are flip sides of the same coin.
Public demand is not just a driving force, it is also a resource. The earlier it is used,
the less costly it becomes. Involving the public not only in reviewing permit applications and
monitoring compliance, but also early in key governmentdecision-makingprocesseswill prevent
many of the mistakes, misunderstandingsand false perceptions of the past or of other countries.
The process of public involvement in environmental decision-making and protection will vary
from country to country, and may require concerted effort in places not used to consulting or
involving the public. But in an increasingly complex world, government can no longer expect to
have all the scientific, technological, social and economic expertise required to make sound
decisions. The earlier it consults and involves those outside its offices, the better.
-------
40 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2.2 Industry
Another driving force for government compliance and enforcement programs is a little
more subtle, but one which will have an increasing influence, particularly where public demand
may be left wanting. This is none other than industry itself. It is an increasingly competitive and
global world for industry. The companies that are going to survive are the ones that understand
that cleaner production (that is, good housekeeping, raw material and energy conservation,
and substituting toxic chemicals) is not only good for the environment and public image, it
makes economic sense. They are the leaders with a good deal of influence in industry
associations that represent and promote the industry's interests. A growing number of such
industry associations are using voluntary codes of conduct to promote best environmental
practice (the UNEP Industry and Environment office is currently producing guidelines on such
voluntary industry initiatives). Industry associations have a collective interest in protecting the
public image of the industry. One poor performer among them can spoil it for the rest. They rely
on effective government compliance and enforcement programs to provide a level playing
field and to keep the lowest performers in the industry from undermining public goodwill and
using the environment to undercut their competitors. And in a global economy, industry
associations are having an increasingly global reach.
2.3 International trade
This brings us to our third broad driving force: international trade, standards and law.
As we all know, industry interest in a level playing field extends beyond national borders, as
does environmental protection. Forgive me for bypassing the complex and sensitive subject of
international free trade agreements and the criticism that they settle for the lowest common
denominator in the effort to "harmonize" national standards. Too often this discussion devolves
into an inconclusive debate on which comes first - the chicken or the egg? I'd rather focus on a
more encouraging, emerging aspect of international trade which could bring about a small
revolution on how international business conducts its purchasing and supply decisions. This is
the setting of environmentalmanagementstandards by the International Standards Organization
which are to come into effect this year. Like all ISO standards, the ISO 14000 standards on
environmental management systems, environmental auditing, environmental performance
evaluation and others, are voluntary. But a few years ago, the ISO set parameters for measuring
total quality - ISO 9000 - and look what happened - you need it if you want to do business
outside national borders. Why is this a driving force for government complianceand enforcement
programs? Well, if you want your countries' industries to be internationally competitive, you'll
need them to be up to speed on environmental management. Many companies are already
lining up for ISO 14000 certification.
Voluntary ISO standards will not of course solve many of the global environmental
issues that face us today. There will still be a pressing need for legally-binding and global
environmental agreements such as the Convention on the Illegal Trade in Endangered Species
of Wild Fauna and Flora (CITES), the Montreal Protocol on Substances that Deplete the Ozone
Layer, and the Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal, and the Convention on Biological Diversity. UNEP provides the
secretariat and other support for each of these multilateral agreements but relies on national
governments to ensure compliance and enforcement.
-------
OLEMBO, REUBEN: KEYNOTE ADDRESS 41
3 CLEANER PRODUCTION AND ENVIRONMENTAL LAW
Environment protection and sustainable development, public demand, industry
expectations, and international trade standards and agreements are the key driving forces to
keep in mind throughout the week. If I could add just one other thing to keep in mind throughout
the exchange of your experiences it is the whole issue of how to use government compliance
and enforcement programs to promote a cleaner production approach among the regulated
community. In the past, too much effort has been directed at single media enforcement (e.g.
clean air, solid or hazardous waste, water treatment) which has too often led to an end-of-pipe
reaction by the regulated community, and merely transferred environmental pollutants from one
medium to another. Any initiatives that are on the way to promoting cleaner production need to
be highlighted in your exchange of ideas.
Helping governments to strengthen their institutional capacity to implement Agenda
21 is a key priority for UNEP. UNEP's Environmental Law Unit provides support to governments
in developing the legislative framework needed for their country's environmental protection,
and you will be hearing more about the environmental law activities from Lai Kurulkulasuriya
from our Regional Office for Asia and the Pacific. UNEP's Industry and Environment office has
a twenty year history of working with governments, industry and NGOs in institutional capacity
building for industrial compliance, particularly in the areas of cleaner production, accident
prevention and emergency preparedness, and environmental technology assessment. Later
today, John Skinner, Senior Advisor at UNEP Industry and Environment will be telling you about
these activities. And UNEP lE's training manual on "Industrial Environmental Compliance" will
be used during the UNEP workshops on Wednesday to set the context for regionally focused
discussions.
4 CONCLUSION
To conclude my address, I want to really thank the organizers of this conference. I can
imagine the uphill battle it must have been to pull this together, particularly in today's climate of
government cutbacks. But the need for international exchanges on environmental compliance
and enforcement are essential if we are to move towards a cohesive global society meeting its
peoples needs without undermining its ecological basis. UNEP is pleased to be associated
with such a commendable effort, and would like to give a warm thanks to our partners in this
conference the US EPA, the Dutch Ministry of Housing, Spatial Planning and the Environment,
Environmental Law Institute, Environment Canada, the European Commission and our hosts,
the Thailand Government.
Thankyou.
-------
42 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
CASCIO, JOSEPH 43
IMPLICATIONS OF IS014001 FOR REGULATORY COMPLIANCE
CASCIO, JOSEPH
Chairman, U.S. Technical Committee207 for International Standard Organization 14000,
IBM Corporation, P.O. Box 100, Somers, New York 10589, United States
1 INTRODUCTION
The International Standard Organization (ISO) 14000 series of environmental
management standards embodies a new approach to environmental protection. In contrast to
the prevailing command-and-control model, it challenges each organization to take stock of its
environmental aspects, establish its own objectives and targets, commit itself to effective and
reliable processes and continual improvement, and bring all employees and managers into a
system of shared and enlightened awareness and personal responsibility for the environmental
performance of the organization. This new paradigm relies on positive motivation and the
desire to do the right thing, rather than on punishment of errors. Over the long term, it promises
to establish a solid base for reliable, consistent management of environmental obligations.
Recent industrial accidents, some entailing significanthuman and environmental harm,
have proved that regulatory compliance is not enough to ensure against environmental
degradation. As it became clear that compliance was not a complete prescription for
environmental protection, an awareness arose that a more proactive system was needed. ISO
140011, the foundation of the entire ISO 14000 series, is such a proactive environmental
protection strategy in which regulatory compliance is but one of the elements of a more inclusive
and all-encompassing approach.
ISO 14001, the environmental management system (EMS) standard, provides a
framework to direct the use of organizational resources to the full breadth of actual and potential
environmental impacts through reliable management processes and a base of educated and
committed employees. Regulatory compliance is now a normal result of this management
strategy, along with awareness, sensitivity,and preparedness,greater reliabilityand consistency
in meeting environmental objectives, and greater confidence in the organization's ability to
prevent accidents.
After decades of focusing on compliance with government regulations, however, the
regulated and regulating communities will need to engage in some rethinking to look beyond
compliance as the measure of an organization's environmental achievement. Compliance will,
of course, lose none of its importance in an organization's operations. But it would be
shortsighted to view ISO 14001 as merely a tool to achieve compliance, and those who insist
on doing so will incur the costs of implementing the EMS without reaping its full benefits. It is
imperative, therefore, that everyone involved with ISO 14001 understand its wider purpose
and avoid trivializing it by setting its value only with reference to its impact on regulatory
compliance. ISO 14001 is a significant and consequential development in our ability to protect
and preserve the environmental resources of our planet-transcendingthe regulatory compliance
approach—and must be valued accordingly by both users and regulators.
There should be no illusion that ISO 14001 will be easy to implement. Even
organizations with sophisticated environmental programs will find ISO 14001 challenging. The
organization must inventory and then assess all environmental aspects of its operations,
products, and services. Regulations may apply to many of these, but they are not likely to apply
to all. The standard calls for a system that produces reliable and effective management. While
-------
44 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
regulations call for compliance, they generally do not include requirements for management
systems. ISO 14001 expects all employees to be trained and competent in handling the
environmental consequences of their work. This requires the infusion of environmental
awareness and attitudes in all workers. Broadly, the result overtime is a shift in culture to one
that is as sensitive to the environment as to production schedules and product design. Few
regulations require such far-reaching changes in the mental attitudes of all employees.
It is also true, however, that the diffusion of environmental responsibility from the
environmental engineering function to all employees in the enterprise will be the biggest
challenge and one that, in the short term, may carry some risk of administrative noncompliance,
as employees learn documentation and other record keeping tasks. But, since the goal is to
broaden the organizational base of environmental responsibility, we must be willing to accept
the possibility of these types of errors during the early phases of implementation. Thus, it needs
to be understood that conformance is IS014001 is not likely to result in an immediate change
in the organization's compliance posture.
2 AWARENESS OF APPLICABLE LAWS AND REGULATIONS
ISO 14001 requires an organization to be aware of all environmental laws and
regulations applicable to its environmental aspects. This requirement will compensate, to a
considerable extent, for the ignorance that prevails in places where such laws are not enforced.
Today, many organizations throughout the world have only a vague notion of the laws they are
subject to. ISO 14001 may also lead some countries to discover that they have many more
laws on their books than they can ever enforce, given their resources. Whereas in past years
developing countries were encouraged to adopt environmental laws from more-developed
countries, compliance and enforcement may have become challenges that strain both the
societal commitment and the institutional capacity for proper execution.
In other instances, a country may have adequate regulatory mechanisms but not the
resource infrastructure for effective implementation. This is a structural problem that cannot be
addressed through a management standard alone. However, awareness of applicable laws is
the first step in the right direction, and it may, through its own compelling dynamic, spur
evolutionary changes in behavior, technological investment, and institutional will to build the
necessary infrastructure.
3 PROMOTION OF PROCESS TO MAINTAIN REGULATORY COMPLIANCE
ISO 14001 is expected to promote the development of processes to maintain
environmental compliance. While compliance with all applicable laws may be difficult or elusive
in many countries, ISO 14001 expects organizations to implement processes to maintain such
compliance. In countries where enforcement is strict, compliance processes are a part of doing
business and can simply be integrated into the overall management system. In countries where
enforcement is either lacking or ineffectual, ISO 14001 will provide the needed (and in some
cases the only) impetus to develop processes to reach and maintain compliance. In effect, the
standard encourages compliance processes, even in countries where compliance and
enforcement have not traditionally been strong. Of course, knowledge of the applicable laws is
a prerequisite for establishing any compliance process.
-------
CASCIO, JOSEPH 45
In some developing countries, compliance options will be limited by deficiencies in
both organizational resources and available infrastructure. As noted above, infrastructure plays
a key role in compliance, since it is very difficult to be in regulatory compliance without the
necessary infrastructure. For instance, if there are no recycling facilities in an area, the law that
requires recycling is difficult, if not impossible, to comply with. In these cases, organizations
may be disadvantaged in meeting the requirements of ISO 14001, since their implementation
of credible compliance processes may require greater efforts to overcome structural national
deficiencies. If there are no reasonable ways to be in compliance with specific country laws, an
organization will not be able to implement a compliance process to meet those laws.
Conceivably, this situation may provide impetus for some countries to redraft their
environmental laws so that they match their existing resources and capabilities. Although
redrafting laws to match resources and capabilities may weaken the legal framework in the
short term, the overall effect is to increase the ability of organizations to comply with legal
requirements. As the infrastructure of a country improves, laws can be made progressively
strict. The overall effect is to increase the credibility of all parties involved with environmental
progress, including legislators, organizations, and enforcement authorities.
On the other hand, countries with an economy that is strong enough to provide an
environmental infrastructure should opt to build this infrastructure to match the requirements of
their existing laws. Such a step could improve environmental performance immediately, and is
obviously preferable to weakening existing laws.
It must be remembered that under IS014001, no proof of actual compliance is actually
required for an organization to obtain registration. IS014001 requires only evidence of working
processes that are designed to maintain compliance. It is certainly a great desire and
expectation that, over time, efforts to implement such processes will lead to more consistent
compliance and more supportive infrastructures where they are needed.
4 REGULATORY AND LEGAL IMPLICATIONS INTHE UNITED STATES
There is growing interest in the United States about using ISO 14001 for regulatory
complianceand enforcementprograms. Whilethe U.S. Environmental Protection Agency (EPA)
and the U.S. Department of Justice (DOJ) have not taken official positions on its use, there is
some interest from both government bodies, and agency representative have held preliminary
discussions with leaders of the U.S. Technical Advisory Group (TAG).
Official positions from these authorities are not expected before the standards are
finalized and judged to be successful. To a significant extent, that success will depend on the
integrity and reliability of the third-party conformity assessment system. Government authorities
will want some evidence or justification for placing their reliance on ISO 14001 registration.
Such evidence must cover the accreditation and registration processes, including the rigor of
third-party assessment, the independence of auditors, and the use of appropriate professional
safeguards similar to those used in financial audits.
Regulators in the United States will have to consider many factors as they decide how
to weave ISO 14001 into compliance programs. An organization that has been registered to
ISO 14001 will have demonstrated its good-faith, voluntary efforts to better manage its
environmental responsibilities and maintain compliance with applicable laws and regulations.
In addition, a certified organization will have taken steps to inculcate a sense of responsibility
and an environmentally conscious culture in its employees. Presumably, such an organization
merits consideration from the regulators and deserves credit for its efforts. Credit could come
-------
46 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
in the form of expedited permitting, less frequent agency audits, or other means. These
incentives would motivate organizations to establish an effective EMS, with the goal of continual
improvement of the system, and then to become registered to ISO 14001.
Regulators are also likely to consider registration in their exercise of prosecutorial
and sentencing discretion. Both the Environmental Protection Agency and the Department of
Justice use guidelines to weigh evidence of environmental management systems for these
purposes. It is reasonable to expect that ISO 14001 may become the model used, particularly
since it covers a wider number of management elements than the Department of Justice
guidelines and, most important, encourages third-party audits for certification. It is important,
however, that regulators not use the absence of IS014001 as a penalty against an organization.
Since ISO 14001 is a voluntary standard, the only appropriate approach is to reward those
who use it, not to punish those who do not. Care must also be taken not to depreciate the
significance of ISO 14001 by giving it an insignificant role in voluntary or regulatory schemes.
IS014001 transcends the limited achievements of regulatory compliance and should be justly
valued and accorded the recognition it deserves.
Further, it can be expected that some courts of law will use ISO 14001 as a measure
of standard commercial practice or reasonable care. Showing conformance to the elements of
ISO 14001 could be very advantageous in civil and criminal liability suits. Indeed, evidence of
registration to ISO 14001 is likely to have standing in a court of law, and could be used as a
test to determine if an organization is practicing sound environmental management. Again, the
difficulty here is to avoid punishing those who have not implemented ISO 14001. Punishment
is certainly not the intent, and we should remain watchful to make sure the standard is not used
in that way.
5 EQUALIZING OF INTERNATIONAL REGULATIONS
Over time, ISO 14001 will be a force of equalization of environmental regulations
between countries. Although this may take many years to accomplish, the author believes that
implementationof IS014001 will ultimately pressure countriesto harmonizetheirenvironmental
laws.
As organizations around the world begin developing and implementing EMS programs
that conform to ISO 14001, their abilities to undertake more sophisticated environmental
protection strategies will increase. Just as the implementation of individual elements of ISO
14001 increases an organization's overall environmental awareness and, consequently, its
environmental care, so it follows that as an EMS continues to improve, the protection capacity
of the organization will be enhanced. As this happens with more and more organizations,
government leaders may actually see less resistance to reasonable and cost-effective
environmental protection measures. Thus, as ISO 14001 helps organizations become more
sophisticated in environmental protection, it lays the groundwork for governments to create
legislation that is more protective of the environment.
In addition, once ISO 14001 is implemented, compliance to national laws will be
improved, since it is a requirement in the EMS standard for an organization to have knowledge
of and to follow existing country laws. As regulators find that compliance is increasing, there
will be greater impetus to continue the evolutionandreformationoftheircountry'senvironmental
laws.
-------
CASCIO, JOSEPH 47
An international accreditation and registration system will also serve to spotlight the
relative status of national capabilities, including legal frameworks and enforcement programs.
Over time, ISO 14001 registrars will increase their expertise in comparing environmental
requirements around the world. As ISO 14001 proliferates, the strengths and weaknesses of
national regulatory schemes will become apparent. It is reasonable to assume that certain
countries will feel compelled to bring their regulations to a higher level. In particular, countries
that have the technical infrastructure for managing pollution and waste (e.g., hazardous waste
management units, recycling facilities, and abatement control systems) will come under subtle
pressure to upgrade their legal structures.
6 CONCLUSION
Certainly, no one in the regulated community wants ISO 14001 to become an engine
for more regulation around the world. To the contrary, the desire is to promote voluntary
management systems which have benefits far in excess of those derived from mere compliance
with regulations and which, over time, can supplant the command-and-control model. This is
the ultimate aspiration. In the interim, however, the management standards will coexist with
country laws and regulations which, for now, are still the major incentive for many organizations.
REFERENCE
1. IS014000 is the International Standards Organization's final draft Voluntary Standard
for Environmental Management Systems.
-------
48 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
VASQUEZ, RACHEL 49
THE IMPACT OF DRIVING FORCES ON ENVIRONMENTAL COMPLIANCE
AND ENFORCEMENT PROGRAMS — THE PHILIPPINE EXPERIENCE
VASQUEZ, RACHEL
Assistant Director, Environmental Management Bureau, 99-101 Topaz Building, Kamias
Road, Quezon City, Philippines
1 INTRODUCTION
The Philippines is known to have more than enough environmental regulations but
only lacks the resources and "political will" to implement them. These have been shown by the
data gathered on the number of Environmental Compliance Certificates issued and the number
of Cease and Desist Orders served and executed.
There are about 11,000 manufacturingfirms in the country. About 50% of the industries
are located in Metro Manila. The main manufacturing industries are textiles, pulp and paper,
sugar, alcohol and distilleries, desiccated coconut, food manufacturing, plastics and consumer
goods, whose processing cause the most pressing pollution and solid waste problems. The
major urban centers, other than the National Capital Region, are also beset with slum
proliferation with the accompanying pollution and solid waste problems arising from inadequate
infrastructure systems unable to cope with rapidly growing populations. In Metro Manila, for
example, a commissioned study showed that 38% of river pollution loads come from industrial
sources, 40% from domestic liquid wastes and 22% from uncollected solid waste and reaching
waterways during rain periods. Metro Manila also has set up a solid waste management system
to handle the domestic solid waste generated throughout the National Capital Region. Similarly
in other urban centers, such as Cebu, Davao, Baguio, Cagayan de Oro City, local governments
have provided some form of solid waste collection and disposal systems. But in rural areas,
there are hardly any systematic approaches to the solid waste management problem.
Thus, the major environmental problems include treatment and disposal of wastewater
(both domestic and industrial), solid waste (domestic and industrial), and hazardous waste.
We have only two sanitary landfills, which accommodate both domestic and hazardous waste.
2 DRIVING FORCES
2.1 Environmental laws
The concept of environmental protection is promised under one basic law which is
Presidential Decree No. 1151, known as the Philippine Environmental Policy, which declared
a continuing policy of the state (a) to create, develop, maintain and improve conditions under
which man and nature can thrive in productive and enjoyable harmony with each other; (b) to
fulfill the social, economical and other requirements of present and future generations of
Filipinos; and (c) to ensure the attainment of an Environmental quality that is conducive to life
of dignity and well-being.
A major piece of legislation concerning the environment is Presidential Decree 1586.
This law established the Environmental Impact Statement system which requires all agencies
and instrumentalities of the national government, including government-owned or controlled
-------
50 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
corporations, as well a private corporations, firms and entities to prepare, file and include in
every action, project or undertaking which significantly affects the quality of the environment
the following:
• The environmental impact of the proposed action, project or undertaking
including any adverse environmentaleffect which cannot be avoided should
the proposal be implemented.
• The mitigating measures to minimize adverse environmental effects.
• Alternatives to the proposed action.
• A determinationthatthe short-term uses of the resourcesof the government
are consistent with the maintenance and enhancement of the long-term
productivity of the same.
• Whenever a proposal involves the use of depletable or nonrenewable
resources, a study must be indicated that such use and commitment are
warranted.
In short, the proponent of any project which is a potential source of environmental
pollution/degradation is required to secure an Environmental Compliance Certificate from the
Department of Environment and Natural Resources/Environmental Management Bureau by
submitting an Environmental Impact Statement. This law provides sanctions for noncompliance
with the Environmental Impact Assessment requirement.
The enactment of another environmental law, Republic Act 6969 (Toxic substances,
Hazardous and Nuclear Waste Control Act of 1990) further mandated the Department of
Environment and Natural Resources to regulate hazardous and nuclear wastes as well as toxic
substances in the Philippines.
Republic Act 6969 declared it a policy of the state to regulate, restrict or prohibit the
importation, manufacture, processing, sale, distribution, use and disposal of chemical
substances and mixtures that present unreasonable risk and/or injury to health orthe environment;
to prohibit the entry, even in transit, of hazardous and nuclear waste and their disposal into
Philippine territorial limits for whatever purpose; and to provide advancement and facilities
research and studies on toxic chemicals and hazardous and nuclear wastes.
The system's scope was also delimited to "environmentally critical projects or projects
to be located in environmentally critical areas" (identified in Presidential Proclamation No.
2146). Presidential Decree 1586, however, become operational only in 1982.
Prior to this, the system underwent transition from a decentralized process to a
centralized one, starting December 23,1979 by virtue of a National Environmental Protection
Council Special Memorandum. The National Environmental Protection Council was the agency
responsible for implementing Presidential Decree 1586. From the lead agencies, processing
of Environmental Impact Statement documents and issuance of Environmental Compliance
Certificates for projects which have satisfactorily complied with the Environmental Impact
Assessment requirement, was centralized in the National Environmental Protection Council.
For the past decade, government exerted efforts to implement provisions of
Presidential Decree No. 1152 orthe Philippine Environment Code. Such efforts were on
concerns like waste management, air and water quality management, environmental education,
environmental research and tax incentives, among others. While these efforts were limited
they, nevertheless, laid down the groundwork for subsequent environmental management
undertakings in the nineties.
-------
VASQUEZ, RACHEL 51
Republic Act 3931 was subsequently amended in 1976 by Presidential Decree 984
which abolished National Water and Air Pollution Control Commission and created, in its stead,
the National Pollution Control Commission. The National Pollution Control Commission was
vested with greater powers, among which are as follows:
• The power to impose an ex-parte Cease and Desist Order on two grounds:
a) when there is immediate threat to life, public health, safety or welfare, or
to animal or plant life; or b) when the wastes or discharge exceeds the
allowable standards set by the Commission.
• The expressed power to order closure of a firm for nonpayment of fines.
• The decision of the National Pollution Control Commission is considered
final and may be appealed only to the Court of Appeals on questions both
of facts and law, or to the Supreme Court on questions of law.
At present, House Bill No. 4 which is "an Act to Revise the Philippine Environmental
Code, defining its scope and integrating all other laws relative thereto" is being deliberated in
both Senate and the House of Representatives of Congress. This act will be referred to as the
"Revised Philippine Environment Code of 1996" the salient features of which are the following:
The major legislationgoverning pollution control is Republic Act No. 3931 which created
the National Pollution Control Commission. The law declared it a national agricultural, industrial,
etc., utilization. This mandate provided for the establishment of reasonable standards for air,
water and noise. Presidential Decree 984 was then amended by Executive Order No. 192
merging the National Pollution Control Commission, National Environmental Protection Council
and Environmental Center of the Philippines into the Environmental Management Bureau and
placing this Bureau under the Department of Environmentand Natural Resources. The Pollution
Adjudication Board was likewise created under the Office of the Department of Environment
and Natural Resources Secretary.
2.2 Permits and licenses issued by Department of Natural Resources regional offices
2.2.1 Environmental compliance certificate
Permitting is the most fundamental regulatory element within any command-and-control
system. It controls the discharges from pollution sources. As a matter of practice in the
Philippines, it is routine to include the permitted discharge limits in the Environmental
Compliance Certificate that is pursuant to the Environmental Impact Assessment process.
Thus instead of using the Environmental Impact Statement System as a planning tool, this has
become a regulatory tool. This practice may result from the permit language of Presidential
Decree 984 itself where emphasis is usually placed on the "permit to construct" or the "permit
to operate", as distinguished from the "discharges" from the facility. These practices encourage
enforcement of the permit through both the Environmental Compliance Certificate as well as
Presidential Decree 984. This is an inefficient process that tends to put the Environmental
Impact Assessment process at the center of all environmental management in the Philippines.
While this may be appropriate at the front end of the development process in the Philippines,
it will be wastefully duplicative of resources as the national development program matures.
Permit management functions ordinarily include the establishment of discharge limits
pursuantto a standard, and monitoringthe perm it holder's compliance therewith. These functions
are presently performed by the Department of Environment and Natural Resources regional
-------
52 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
offices for those industries that fall outside the Environmental Impact Statement prescriptive
list of ECPs and (theoretically) for those industries that pre-existed the Environmental Impact
Statement system (before 1982).
2.2.2 Permit to operate and authority to construct
The regulatory power exercised by the Department of Environment and Natural
Resources Regional Offices, particularly the Environmental Management and Protected Areas
Sector, consists of the power to issue permits as stated in 2nd paragraph, Sec. 8, Presidential
Decree 984, to wit:
"A/o person shall perform any of the following activities without first securing a
permit from the Commission for the discharge of all industrial wastes and other
wastes which could cause pollution: 1) the construction, installation, modification
or operation of any sewerage works or any extension or addition thereto; 2)
increase in volume or strength of any wastes in excess of the permissive
discharge specified under any existing permit; and, 3) the construction,
installation or operation of any industrial or commercial establishment or any
extension or modification thereof or addition thereto, the operation of which would
cause an increase in the discharge of wastes directly into the water, air and/or
land resources of the Philippines or would otherwise alter their physical, chemical
or biological properties in any manner not already lawfully authorized."
In practice, the Regional Offices issue two kinds of permits. One is the Authority to
Construct, which is issued once before the construction of the antipollution device and after the
plans and specifications are approved. The other is the Permit to Operate which is issued
yearly to authorizethe continued use of the air and water pollution control device and air pollution
source. Water pollution sources are not subject to annual re-issuance of the Permit to Operate.
The annual permit review and re-issuance of Permit to Operate is not mandated by Presidential
Decree 984, thus, permit life is a matter of internal guidance by the Department of Environment
and Natural Resources.
There are 3 requirements for the issuance of the Permit to Operate:
• Prior issuance of the Authority to Construct.
• Inspection which shows that the conditions imposed in the Authority to
Construct are complied with (i.e., the antipollution device is properly
maintained and still sufficient).
• The antipollution device passed the test for efficiency.
Should any of the requirements be absent, a temporary permit, which is effective only
for six (6) months, may be issued. Usually, the failure to complete the requirement is caused by
the inability of the Regional Office to conduct the necessary inspection or test because of lack
of transportation, budget for travel, testing equipment, laboratory, and trained personnel.
-------
VASQUEZ, RACHEL 53
2.3 Monitoring, compliance and enforcement
2.3.1 Environmental compliance certificate conditionalities
For development projects, compliance to the conditionalities set forth in the
Environmental Compliance Certificates is being monitored by the Environmental Management
Bureau and the Department of Environment and Natural Resources Regional Offices.
2.3.2 Environmental quality standards
Compliance to the standards on air and water quality set forth in the Implementing
Rules and Regulations of Presidential Decree 984 is being monitored by the Department of
Environment and Natural Resources Regional Offices. This is usually done once a year prior to
the issuance of the annual Permit to Operate.
2.3.3 Republic Act 6969
Compliance to the requirements set forth in the guidelines of the Republic Act is being
monitored by the Environmental Management Bureau.
Monitoring as to compliance to the conditionalities of the Environmental Compliance
Certificates and to the air and water quality standards is very ineffective.
3 IMPACTS OF DRIVING FORCES
3.1 Environmental laws
3.1.1 The Philippine environmental policy and the Philippine environment code
Unfortunately these twin laws failed to truly integrate environmental quality protection
and natural resources management with the result that policy conflicts between these two fields
often arise. While comprehensive statutory policies were enunciated in Presidential Decree
1151 and 1152, specific legal rights, for which specific remedies in law can be invoked, were
not provided. Further legislation was necessary to translate these policies into substantive,
actionable rights and provide specific environment for governance. Nevertheless, these laws
provide an excellent frame of reference upon which subsequent environmental laws can be
analyzed. Presidential Decree 1152, in particular, is considered the touchstone to determine
the comprehensives of other enabling legislation and administrative promulgations.
3.1.2 Environmental impact statement
The number of Environmental Impact Documents submitted and processed from June
1978 to December 1979, is quite difficult due to the decentralized nature of the Environmental
Impact Statement system then and the erratic reporting procedure of the lead agencies.
December, 1979 to December 1980 was still a transition period during which some agencies
were still processing Environmental Impact Statement documents although the authority to
process and review such was already lodged with the National Environmental Protection
Council.
From January 1981 to December 1989, a total of 5,231 environmental impact
documents were submitted to the implementing agency. Of these, 4,366 or 83% constituted
sand and gravel projects, which were reviewed based on the cumulative impact and existing
guidelines on sand and gravel extraction drawn up by the National Environmental Protection
-------
54 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Council and the Bureau of Mines and Geosciences (BMG). Table 4 provides the number of
environmental impact documents processed from 1981-1989, excluding sand and gravel
projects. Of the 865 Environmental Impact Documents, 840 were issued Environmental
Compliance Certificates. A breakdown of Environmental Impact Documents submitted to the
Environmental Management Bureau by project type for the same period is given in Table 5.
Nonmetallicmining had the highest number of applications, followed by subdivision and metallic
mining. From 1990 to 1995, there were 1349 Environmental Compliance Certificates issued
by the Environmental Management Bureau.
3.1.3 Presidential Decree No. 984
Despite the creation of a powerful body, the National Pollution Control Commission
failed to make a dent on the pollution control efforts of the government. This is partly due to the
fact that it was not provided with the financial and personnel resources necessary to carry out
its mandate. Moreover, an interviewwith a former National Pollution Control Commission official
has revealed that the industries were then very supportive of the Marcos government, and in
turn, whatever Cease and Desist Orders or closure orders the National Pollution Control
Commission may have planned to issue had to be "cleared with "Malacafiang," which gives the
industries "very strong support". Evidently, the National Pollution Control Commission did not
have the political backing of the President, from whom all powers of the government at that
time, including legislative and judicial, emanated.
The Pollution Adjudication Board assumed the powers and functions of the
Commissioners of the National Pollution Control Commission with respect to the adjudication
of pollution cases under Republic Act No. 3932 and Presidential Decree No. 984. As of 1989,
a total of the 160 cases were filed with the body. Of these, it had deliberated on 57 cases.
Fourteen (14) respondents were fined while twenty-three (23) had their Cease and Desist
Orders temporarily lifted.
This power to issue permits is generally perceived by the field officers to be a useful
regulatory tool. Some of the observations/recommendations on the existing permitting
requirements are:
• The requirement for annual renewal ensures that the Regional office staffs
don't lose contact with the industrial establishment even when these lack
in the necessary logistics to conduct regular inspections. Industries come
to the Department of Environment and Natural Resources with the
information required of them. This is especially useful in monitoring the
activities of small and medium-scale industries which the Department of
Environment and Natural Resources usually see only once a year during
the period for renewals of the Permit to Operate. At present, the Department
of Environment and Natural Resources has issued more temporary
permits, with six month effectivity, than regular permits. The constraint is
on the Department of Environment and Natural Resource's part, on their
inability to conduct timely inspection and testing.
• There is the need to study whetherthe Permit to Operate should be renewed
on a yearly basis. This function makes the Department of Environment
and Natural Resources mainly an industry-regulatingoffice when resources
should be devoted rather to initiating, supporting, and implementing
environmental protection programs. It is also consuming too much of the
industry's time and effort when the burden of monitoring should be on the
-------
VASQUEZ, RACHEL 55
Department of Environment and Natural Resources. It is better to simply
require the industry to install a self-monitoringdevice and to regularly submit
reports together with the result of the indicators in their analyzer or
monitoring equipment. The Regional Office can then just perform spot-
checking instead of inspecting all the industrial plants in the region yearly.
• The Regional Office devotes most of its time conducting routine inspections
related to issuance of permits. Authority to Construct is a meaningful
regulatory mechanism because the Department of Environmentand Natural
Resources can already put in place, at the construction phase, the
company's pollution control scheme. The Department of Environment and
Natural Resources gets the chance to examine the plans and specifications
for the antipollutiondeviceto determine its sufficiency and appropriateness.
• One weakness in the Department of Environment and Natural Resources'
permitting regulation is the lack of power of the Regional Office to stop the
industry from constructing and operating the antipollution device or
undertaking activities that cause pollution. The Department of Environment
and Natural Resources should have this power. Right now, the Department
of Environment and Natural Resources can only impose a "compromise
penalty" of P1.000.00 (US $26,192) pursuant to an National Pollution
Control Commission Memorandum, Series of 1986 in case of failure to
secure Authority to Construct.
A perusal of Presidential Decree 984 will readily show that the present practice does
not satisfy the mandate of the law. The permitting regulation practice at present is confined to
the proper construction and maintenance of the pollution control device. In contrast, the law
authorizes the licensing of increases in volume or strength of any wastes discharged and the
construction, installation or operation of any industrial or commercial establishments which
would cause an increase in the discharge of wastes. This means permitting regulations should
cover the volume and concentration of discharges (the implication being some limitation on
cumulative effects), and the construction/installation of all pollution sources, not just those
affecting air. Thus, in this instance, regulatory practice needs to catch up to the breadth of the
statutory mandate. In addition, further thought should be given to increasing permit life to, say,
five years and then concentrating on compliance monitoring with regular reports on emissions
sent to the Regions by industry.
3.1.4 Republic Act 6969
Implementation of this law only involves the issuance of importation clearances for
importation of toxic chemicals and recyclable materials. Implementing guidelines have just
been drafted and we are starting the implementation now.
3.2 Social acceptability/public participation
The continuing development and refinement of the Environmental Impact Assessment
process brought into focus public participation and social acceptability concerns in
environmental assessment and monitoring. Several major projects were shelved due to non-
issuance of Environmental Compliance Certificates because of public opposition.
-------
56 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The Department of Environment and Natural Resources Administrative Order No. 21,
Series of 1992 (DAO 21, s. 1992) reflects this new perspective not only to provide the
mechanism for Environmental Impact Assessment monitoring but to recognize the importance
of public participation in development activities. Public participation should start right in the
scoping phase, in the conduct of the Environmental Impact Assessment and until the conduct
of the public hearing.
3.3 Philippine Council on Sustainable Development
The Philippine Council on Sustainable Development is a post-United Nations
Conference for Environment and Development national council established by President Fidel
V. Ramos through Executive Order No. 15 dated September 1,1992. The primary task of the
Philippine Council on Sustainable Development is embodied, in broad terms, from the following
words of President Ramos:
"To ensure that the commitments made at Rio de Janeiro, and the implications of
the Earth Summit to the Philippines are implemented, periodically monitored and
coordinated at the global level..." (Speech delivered during the conference entitled:
The Philippine Agenda 21: Reaffirming our Commitments to the Earth Summit,
September 1992)
The Philippine Council on Sustainable Development has the following
mandates:
• Review and ensure the implementation of the Philippine commitments to
sustainable development principles made at the United Nations
Conference for Environment and Development.
• Establish guidelines and mechanisms to concretize and operationalize
the sustainable development principles embodied in the Rio Declaration,
United Nations Conference for Environment and Development, National
Conservation Strategy, and the Philippine Agenda 21, and incorporate
them in the preparation of the Medium Term Philippine Development Plan
at both the national and local levels.
• Provide directions in the form of policy reforms, program and new
legislations to address continuing and emergent issues and to chart future
actions related to environment and development.
• Act as a coordinating mechanism, in cooperation with the Department of
Foreign Affairs — Office of the United Nations and other International
Organizations, the United Nations Commission on Sustainable
Development and other international organizations, on the provision of
assistance and cooperation towards the fulfillment of Philippine
commitments to the United Nations Conference for Environment and
Development.
• Formally adopt a Philippine Agenda 21 and develop national sustainability
plans.
-------
VASQUEZ, RACHEL 57
The Council is reportedly the first body in Asia to be established in connection with the
creation of the United Nations Commission on Sustainable Development to monitor and report
onthelevelofcomplianceofcountriestocommitmentsmadeinRio. As the national mechanism
for monitoring implementation of Philippine commitments made in Rio, the Council will report
to the United Nations Commission on Sustainable Development in this regard.
The Council is expected to take an active role in advocating for the effective
implementation on new environmental policies adopted under the current administration.
It is one of the few government bodies that has adopted the principles of counterparting
and consensus-building in its structure. This distinction is highlighted in the following words of
President Ramos:
"The Council has also reminded us how fruitful it is for both government and the
private sector to join hands. The Council has given new meaning to the concept of
counterparting—the government secretariat works harmoniously with its counterpart
Non-Government Organizations/Private Organizations secretariat. This is a work
technique worth emulating in the other endeavors of government."
3.4 Philippine strategy for sustainable development
Government took cognizance of the need for a National Conservation Strategy
specifically through Section 16 (h) of Executive Order No. 192. Pursuant to this mandate, the
Environmental Management Bureau initiated a series of consultations with the different sectors
of society. On May 23-24, 1988, the Environmental Management Bureau convened a multi-
sectorial national workshop, the participants of which issued a formal resolution urging the
President and Congress of the Republic of the Philippines to adopt and implement a Philippine
Strategy for Sustainable Development. The Workshop also generated the first draft of a
conceptual framework for the Philippine Strategy For Sustainable Development. Subsequent
consultations, such as the Symposium held on June 6,1988, the Senior Officials' Consultative
Forum on February 17, 1989, and regional multi-sectorial consultations, served to further
crystallize and refine the framework. In its Resolution No. 37, dated November 29,1989, the
Cabinet approved the Conceptual Framework of the Philippine Strategy for Sustainable
Development.
The Philippine Strategy For Sustainable Development is basically the country's
response to the worldwide call for undertaking development without destruction and "meeting
the needs of the citizens of today without limiting the options of future generations to fulfill their
needs". Specifically, "it aims to achieve and maintain economic growth without depleting the
stock of natural resources and degrading environmental quality."
At its core are ten major strategies aimed at resolving and reconciling the diverse and
sometimes conflicting environmental, demographic, economic and natural resources use
issues. These strategies are:
3.4.1 Integration of environmental consideration in decision-making
This will involve a fundamental realignment of development planning objectives to
enable the merger of environmental and economic considerations in decision-making.
Analytical tools and methodologies such as natural resource accounting, environmental impact
assessment and land use planning will be utilized.
-------
58 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3.4.2 Proper pricing of natural resources
A price reform strategy will be employed which will take into consideration pricing of
environmental resources which have heretofore been considered free (air and water); proper
pricing of grossly underpriced resources such as timberand minerals; and payment for damages
to the environment, among others.
3.4.3 Property rights reform
At the heart of the strategy is security of tenure for small-holder farmers and forest
occupants over primary resources. This is envisioned to result in self-regulationby the concerned
community or individual in the exploitation of natural resources. The Strategy would involve
utilization of such instruments and schemes as stewardship contacts, small holder timber
concessions, artificial reef licenses, community forests, community fishing grounds and mining
cooperatives.
3.4.4 Conservation of biodiversity
This is simply an explicit recognition of the importance of preserving the country's wild
species and genetic diversity through the establishment of protected areas. It is seen as a
means to increase the country's capacity to deal with future questions on survival and
development.
3.4.5 Rehabilitation of degraded ecosystems
Deliberate rehabilitation efforts are deemed necessary in view of the massive
destruction of the country's ecosystems. A concerted action is planned involving massive
reforestation of denuded watersheds, mangrove re-plantation, cleanup and control of pollution
and revival of biologically dead rivers.
3.4.6 Strengthening of residuals management
The Strategy, rather than merely concentrating on "end-of-pipe" control systems, will
be primarily concerned with the introduction of recent innovations in industrial process design
aimed at reducing waste streams. It will also entail resource recovery through recycling and
utilization of economic incentives to encourage installation of pollution control facilities by
industry.
3.4.7 Control of population growth and human resources development
The planned population control program will not only be limited to controlling numbers
but will include health, education and rural development projects which will be implemented at
the regional and community levels.
3.4.8 Inducing growth in the rural areas
Premised on the notion that economic recovery and long-term stability depend on
increasing incomes and employment in the rural areas where the majority of the country's
population reside, the seven-pronged strategy will basically involve: a) empowerment of the
rural poor through participation in policy-making and project implementation; b) accelerated
implementation of land reform; c) grant of equitable access to the rural poor to natural resource
use and benefits; d) removal of economic and public investment biases against the rural sector;
e) provision of infrastructureand support services; f) establishmentand reinforcementof "growth
centers"; and, g) strengthening of social services such as education, health and nutrition.
-------
VASQUEZ, RACHEL 59
3.4.9 Promotion of environmental education
Environmentaleducation is envisioned to enable citizens to understand and appreciate
the complex nature of the environment and its role in economic development, as well as, to
develop social values which will create the commitment and political will to deal with difficult
environmental and social issues.
3.4.10 Strengthening of citizen participation
Nongovernmental organizations will be employed to mobilize the citizenry and make
them active participants to environmental management. The specific strategy to be employed
is the formation of a network among nongovernment organizations and government
organizations, to organize communities, conduct public information campaigns, conduct
research/situationassessments, undertakeenvironmentalsurveillanceand monitoringand other
similar activities.
3.5 Waste minimization
Instead of attacking pollution problems by the traditional "end-of-pipe" approach,
pollution reduction or waste minimization have been the government's main thrust. One of the
government's programs, the Industrial Environmental Management Project conducted Pollution
Management Appraisals for industries. This resulted in the production of success stories
showing company's savings in water power, raw materials, etc.
3.6 Monitoring and enforcement
Routine monitoring for Environmental Compliance Certificate compliance is a
mandated function of Environmental Management Bureau and Department of Environment
and Natural Resources Regional Offices. The same mandate allows these agencies to initiate
participatory monitoring, which will be determined by project type, scale and impact. The main
difference between these two forms of monitoring is that participatory monitoring involves in
the introduction of multidisciplinary and multisectorial group representing various interests but
working toward a common objective.
In participatory monitoring, stakeholders and interest groups collaborate in gathering,
processing and evaluation environmental information.
Participatorymonitoring is primarily aimed at determiningwhetherthe project proponent
is complying with the terms and conditions of the Environmental Compliance Certificates. At
the same time, participatorymonitoring is directed towards establishingthe actual environmental
impacts of the project. And upon comparison with the predicted impacts reported, it provides
a quality measure indicating areas for improvement of the Environmental Impact Assessment
conducted for similar projects or areas.
3.7 Devolution of functions to local government units
Several environmental functions have been devolved to the local government units
including the issuance of Environmental Compliance Certificates for Kalakalan 20 projects
and sand and gravel and the execution of Cease and Desist Order.
-------
60 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3.8 Incentives
Considered by industry to be one of the more positive programs of government, the
Tax Incentives Program authorized under Section 56 of the Code, granted the exemptions,
credits or deductions for the procurement, installation, utilization and manufacture of pollution
control equipment, devices, spare parts and accessories. Incentives ranged from fifty percent
to tariff duties and compensating tax to fifty percent of expenses actually incurred of research
projects undertaken to develop technologies for manufacture of pollution control equipment.
The Program was administered by the National Environmental Protection Council in 1980 but
was terminated in 1985 when the prescription period for the incentives lapsed. Efforts were
made to extend the effect of the incentives but the legislative branch of government has not
come up with the laws of this effect. Only a little more than twenty (20) industrial firms were able
to avail themselves of tax incentives under the program. Among these were San Miguel
Corporation, Kimberly Clark Philippines, LaTondena, Inc., Franklin Baker Corporation, etc.
4 CONCLUSIONS
Thus, the government has initiated the following programs to address these impacts:
• A study on the possibility of issuing Authority to Construct and Permit to
Operate instead of an annual basis to a duration of three or five years.
• Continuous monitoring devices are being required to industries and
submission of data/reports to the Department of Environment and Natural
Resources on a regular (quarterly) basis.
• Work-out with the Department of Trade and Industry to provide incentives
to industries setting up these pollution control devices and waste treatment
facilities.
• A shift towards market-based instruments (pollution change) combining
with the traditional command and control.
• Strict enforcement of all environmental laws.
• Cooperating with nongovernment organization and private sector in the
compliance monitoring program.
-------
WAJDA, STANISLAW 61
THE IMPACT OF DRIVING FORCES ON ENVIRONMENTAL COMPLIANCE
AND ENFORCEMENT PROGRAMS - EXAMPLE OF POLAND
WAJDA, STANISLAW
Legal Advisor, EC Phare Program, Ministry of Environmental Protection, ul. Waweleska
52-54, Warsaw 00-922, Poland
1 INTRODUCTION
The political changes which occurred in 1989 set Poland on its transition to
parliamentary democracy and a market-based economy. Since that time Poland has
substantially transformed its economic system. Central planning has largely been replaced by
market-oriented system. The private sector has expanded rapidly. In 1992 Poland returned to
economic growth and in 1995 its Gross Domestic Product has increased by nearly 7 percent.
Now, annual expenditures on environmental Protection in Poland amount to about 1.3 per cent
of Gross National Product (or roughly 1 billion USD a year), which is comparable to the
percentage spent in the Organization for Economic Cooperation and Development (OECD)
countries. Some 95 percent of the expenditures originates from domestic sources.
2 NATIONAL ENVIRONMENTAL POLICY
Protection of the environment was high on the agenda of the round-table negotiations
held in 1989 which preceded the political changes. The negotiations and the political changes
that followed shortly allowed the development in 1991 of the National Environmental Policy
(NEP) which until now is the basic document in the field of environmental policy of the country.
It is broadly based on the principle of sustainable development and identifies the following
main priority tasks:
• Halt further degradation of the environment by the reduction of pollutant
emissions.
• Increase public awareness and public participation in decision making
processes.
• Introduction of cleaner technologies to all sectors.
• Protection and conservation of the nature and natural resources.
Weak compliance and lax enforcement are too well known facts from the period before
1989. Therefore the Policy declares law-abideness as one of the basic principles of the new
environmental policy. This means the necessity of reconstruction of the legal system and the
system of enforcement in such a way that each regulation will be strictly abided to, and that no
opportunities will exist for circumvention of the law for reasons of "public interests" or
"impossibility."
The other important principles contained in the Policy is the "Polluter Pays Principle."
In the word of the Policy's strict implementation of the above principle means "placing full
responsibility, including material liability, for the effects of pollution and other damages to the
environment, upon the originator, i.e. subject utilizing the environmental resources."
-------
62 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
To streamline implementation of the Policy and the Rio de Janeiro Agenda 21, the
National Committee for Sustainable Development was established in 1994. The Committee
consists of the representatives of the Central Government, Parliament and various NGOs. The
Committee has reviewed various national policies includingenergy.transportationand industrial
policies.
The National Environmental Policy formulates actions aimed at environmental
improvements for various time horizons. Many actions since 1991 have led to achievements
of short term goals (1991-1993). There are grounds to believe that environmental degradation
in Poland has been halted and that in some areas there are even improvements. For instance
the volume of untreated sewage decreased by 36 %. In 1980 Poland emitted 4.1 ml tones of
SO2 and now only 2.7 ml tones. These results were only partly due to economic recession at
the beginning of the 1990s. After reaching, in 1994, the short-term horizon, the Implementation
Program Through the Year 2000 was designed which envisages further environmental
improvement.
3 INTERNATIONAL COMMITMENTS
International obligations assumed by Poland in the field of environmental protection is
another strong driving force in compliance and enforcement. Since Poland is a party to some
40 international treaties, it has strengthened its environmental policies to enable it to fulfill its
obligations especially as far as transboundary pollution is concerned. It is worthy to mention
that Poland signed the Second Sulphur Protocol in 1994 and ratified the UN Framework
Convention on Climate Change. In 1993 Poland introduced a CO2 emission fee of 0.04 USD
which will be gradually increased in the future. A great deal of the agents whose activities
pollute air with a transboundary effect had to undertake abatement measures.
4 ACCESSION TO THE ORGANIZATION FOR ECONOMIC COOPERATION
AND DEVELOPMENT (OECD)
From the very beginning of the 1989 political changes, Poland has pursued political
and economic integration with western Europe and with other Organization for Economic
Cooperation and Development Member States. An agreement defining principles of mutual
cooperation was signed with this organization in 1991. One of the basic preconditions of
Poland's membership is elimination of some gaps in Polish legislation by implementing of
organizations Council Acts related to environmental health and safety. To change this situation,
intensive drafting work was carried out on a Statute on chemical substances. In 1995 at the
next Organization for Economic Cooperation and Development meeting Poland stated that it
will adopt the Statute by the end of 1996.
5 INTEGRATION WITH THE EUROPEAN UNION
Poland's willingness and determination to accede to the European Union is probably
the strongest multi-aspect driving force behind compliance and enforcement programs in the
country. Therefore it seems justified to present this development in more detail.
-------
WAJDA, STANISLAW 63
In 1991, "The European Agreement, establishing an association between the Republic
of Poland, on the one part, and the European Communities and their Member States, on the
other part" established a framework for the progressive development of free trade in goods,
services and capital. In 1994, after entry into force of the European Agreement, Poland applied
for membership in the European Union. It is expected that negotiation on Poland's accession
to the European Union will start in 1998. As the European Union attaches a great importance
to environmental protection, Poland has already undertaken a great number of steps to fulfill
requirements for the membership.
The European Agreement confirmed the importance of the principle of sustainable
development. Article 71.2 which provides that "Policies designed to bring about the economic
and social development of Poland, in particular policies relating to industry including the mining
sector, investment, agriculture, energy, transport, regional development and tourism should be
guided by the principle of sustainable development. This entails ensuring that environmental
considerations are fully incorporated into such policies from the outset". The European
Agreement says also that cooperation shall seek to promote Community participation in
Poland's efforts in both public and private sectors to modernize and restructure its industry,
which will effect the transition from a centrally planned system to a market economy under
conditions which ensure that the environmentis protected (Article72.1). In addition, cooperation
in the field of energy includes the environmental impact of energy production and consumption
as well as the promotion of energy saving and energy efficiency (Article 78.2).
5.1 Approximation of laws
The European Agreement provides that the major precondition for Poland's economic
integration into the European Community is the approximation of the country's existing and
future legislation to that of the Community (Art. 68). The approximation of laws includes also
the environment (Art. 69). Approximation of Polish legislation extends over a period of 10
years, once the European Agreement came into force. It seems worthy to mention that the
acquis communautoire in the field of environment counts some 200 legal acts.
An important step towards European Community membership is approximation of
some of Poland's environmental standards to levels presently existing in the European
Community. Poland, like other Central and Eastern European countries, however, has some
environmental standards which are similar or even more stringent than the European
Community's or its member countries' comparable standards. The stringency of Poland's
standards often does not correspond with the country's economic capabilities and therefore
these standards are not always adequately complied with or enforced.
The harmonization process might offer a good opportunity to adopt feasible, realistic
and enforceable environmental standards. As the realization of these standards cannot be
achieved overnight, this process may be accomplished gradually with European Community
standards as the ultimate goal.
Harmonization of environmental standards has become one of the central tasks for
the Ministry of Environmental Protection. This task is aided by the EC PHARE Program, mainly
by its sector devoted to institutional strengthening of environmental management.
5.2 The approximation infrastructure
To develop a strong basis for the approximation process, the following steps were
taken:
-------
64 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
a. A project on publicationin Polish of the 9-volumecollection of the European
Union legislation on environmental protection has been launched. This
work, to be completed in 1996, will reflect the state of European Union
legislation up to the end of 1993. The four first volumes of this publication
are already available on the market. Publication of the work, containing
also "5th Environmental Action Program for 1993 - 2000", will eliminate
one of the hindrances hampering the integration process, namely the
language barrier. The removal of this barrier will ensure wide access to
the European Union legislation for politicians, decision makers, scientific
and research centers as well as business circles.
b. A project on the development of methodology for the evaluation of
environmental protection costs was undertaken. A part of the project
addresses costs of harmonization and implementation of European Union
legislation in Poland. Here, a general conclusion can be made: without a
thorough knowledge of harmonization costs and funding sources, it is
difficult to draft in a responsible manner, legal acts that are supposed to
express time horizons for attainment of environmental quality defined in
the European Union standards.
c. Another important project, already completed and also funded by PHARE,
dealt with examination of law and practice in the Union and a few member
countries (Spain, Portugal, the Netherlands and Germany), in terms of
creating the so called adjustment programs for the requirements of
environmental protection for the environmentally-unfriendly sectors of the
economy, and to transferthe functioning European Union solutions to Polish
law and practice.
d. Enhancement of environmental management in Poland is a project which
is still being implemented. It should result in detailed critical analysis of the
existing state of environmental management in Poland and propose
amendments to the existing environmental management system, mainly a
comprehensive set of goals, tasks, competencies, procedures and
economic instruments in the field of environmental protection leading to
enhancement of environmental management in Poland. The proposed
amendments, influenced also by respective European Union legislation,
should include the most rational division (allocation) of tasks and
competencies between various administrative authorities and their levels.
5.3 The organization of the approximation process
The approximation process of Polish environmental legislation is regulated by two
Decisions of the Council of Ministers: Decision 16/1994 and the Decision 133/1995.
The approximation process, commenced already in 1991, was dramatically
accelerated after the Council of Ministers adopted on March 29, 1994 Decision No 16, on
additional proceduresto bring draft govemmentlegal acts in line with European Union legislation.
Pursuant to the Decision 16/1994, the draft legal acts, prepared by the members of the Council
of Ministers, heads of central offices of government, central administration and voivodes [heads
of provinces] are subject to review in terms of their compliance with the European Union
legislation. The review procedure includes preliminary and final opinions. Both of them should
discuss the following issues:
-------
WAJDA, STANISLAW 65
• The scope of adjustment of a draft legal act to European Union legislation.
• Draft provisions that are not in line with European Union legislation.
• Envisaged procedures and dates of ultimate adjustment of provisions not
in line with European Union legislation or discussion in favor of retaining
temporarily discrepancies in this respect.
The Council of Ministers Decision No 133, adopted on 14 November 1995 aims at
implementationof the European Commission "White Paper on the preparation of the Associated
Countries of Central and Eastern Europe for integration into the Internal Market". In fulfillment
of the Decision requirements, the various legal instruments listed in the White Paper have
been allocated for transposal and implementation amongst appropriate ministries and other
central authorities. It is interesting to note, that out of some 60 legal instruments contained in
chapter 8 "Environment", only 7 are allocated to the Ministry of the Environment as coming
withinthe sphere of its competence (lead ministry). In case of many otherinstrumentsmentioned
there, the Ministry has the status of a cooperating ministry. Therefore, cross-sectorial
cooperation becomes indispensable.
It is clearly stated in the White Paper that Environmental Policy is an essential
component of the creation of the Internal Market. The White Paper stresses the importance of
product-related environmental standards. Under this heading comes a substantive number of
community legal acts on chemicals (restrictions on marketing, classification and labeling,
environmentalcontrol of existing and new substances, ozone-depletingsubstances), Genetically
Modified Organisms, product-related noise, transfer of waste etc. Some of them have been
poorly regulated, if at all, as for instance chemicals or Genetically Modified Organisms. It is
only now that these areas are being covered by the national legislation. However, as it is
emphasized in the White Paper, equally important for undistorted functioning of the Internal
Market is factual compliance and enforcement of the legislation. Any substantial failure to apply
the common rules in any part of the internal market puts the rest of the system at risk and
undermines its integrity.
6 NEW LEGISLATION
As described above, any new legal regulation has to take into account European
Union legislation. For example it was the case of the three regulations of the Minister of the
Environment issued in the 1995 in the area of environmental impact assessment: Regulation
on the impact of local land use plans on the environment (of 9 March, 1995); Regulation on
Investments harmful to the environment and human health and on environmental impact
assessment (of 13 May, 1995); Regulation on environmental impact assessment of highways
on the environment, agricultural lands, forests and protected cultural heritage (of 5 June, 1995).
The above regulations, with the exception of public participation requirement, comply with the
Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain
public and private projects on the environment.
To speed up the approximation process, the Ministry launched in June 1995 a project,
sponsored by PHARE, on the preparation of a Draft Framework Act on the environment. Suctorial
approach to regulating environmental protection, that has recently occurred in Poland, makes
it difficult for effective transposal of certain European Union solutions of a more general nature,
such as participation of the public in decision making process, or introduction of integrated
pollution control (draft Directive on IPPC).
-------
66 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
According to the Terms of Reference, the Framework Act should adopt appropriate
principles, legal institutions, terminology and definitions of notions contained in the European
Union legislation such as the Maastricht Treaty, Europe Agreement and framework acts of the
secondary European legislation. Taking into account dynamic changes in the European Union
environmental law, draft European Union legal acts should also be considered, including draft
Directive on Integrated Pollution and Prevention Control (COM/93/423) and draft Directive on
Air Quality Assessment and Management (COM/94/109). It is required that the European Union
acts of "soft law" nature are taken into account as well. These include "5th Environmental Action
Program for 1993 - 2000" and "A Community Strategy for Waste Management". For the sake
of consistency of Polish environmental legal system, the Framework Act should also take into
account the Organization for Economic Development's legislation and all other international
treaties to which Poland is a party. It is planned that the drafting work will be completed in the
Ministry by the end of 1996.
7 PRIVATIZATION
The 1990 Privatization Act of State-Owned Enterprises (hereinafter the "Privatization
Law") is void of any express environmentalconsiderationsor requirements. Because of pressure
from the Ministry of Environment and some investors' concern for potential environmental
compliance and cleanup obligations, the Ministry of Privatization has begun to execute
environmental audits of companies in the process of capital privatization. In 1993, to strengthen
their cooperation, the Ministries of Privatization and Environmental Protection signed a
Memorandum of Understanding creating an Inter-ministerial Environmental Unit to address
environmental issues arising in the process of capital privatization. The Memorandum was
renewed in 1995 and the Unit was empowered to extend its activities on other paths of
privatization. The Unit is under joint supervision of the Director of the Department of Capital
Privatization in the Ministry of Privatization and the Director of the Enforcement Department of
the State Inspectorate for Environmental Protection.
The main task of the Unit is to develop practical solutions to environmental issues
emerging in privatization transactions, such as the allocation environmental liabilities and
implementation of pollution control equipment. The Unit has improved communication between
the Ministry of Privatization and the Ministry of the Environment and introduced standard
procedures for obtaining information on environmental compliance. The Unit requires the
management of privatized companies through capital privatization to complete a detailed
environmentalsurvey and returned it to the Ministry of Privatization. In addition, the Unit consults
local environmental authorities and obtains their evaluations of the environmental problems of
individual companies. After evaluating the data collected, the Unit may conduct its own
evaluation of the company or commissionan environmentalaudit. The Unit analyzesall available
environmental information, assists in the preparation of informal memoranda, compares the
impact on the environment of offers received, and negotiates environmental provisions and
related investment commitments in sale contracts. The activities of the Unit proved to be useful
for the privatization process, compliance of the privatized companies and protection of the
environment.
Lack of any cleanup standards for the polluted lands or water was considered as a
serious obstacle in the privatization process. To eliminate this deficiency and make the cost of
cleanup more transparent, the State Inspectorate for Environmental Protection issued in 1994
Methodological Guidelines for the Assessment of the Level of Pollution of Lands and
-------
WAJDA, STANISLAW 67
Groundwater by Chemical Substances in the Process of Remediation. In addition, the EBRD
recently completed a Soil and GroundwaterContamination Standards Project, financed through
the PHARE program, which developed strategies for establishing soil and groundwater
contamination standards, estimated the costs of these strategies, and made recommendations
as to how these standards could be implemented within the existing institutional framework.
In 1994, the State Inspectorate for Environmental Protection assessed the level of
compliance with environmental requirements of 220 privatized companies. The general
conclusion resulting from the assessment is that the privatization has a positive effect on the
compliance of the assessed companies and the protection of the environment.
8 ECONOMIC INSTRUMENTS
The fees for the use of the environment and fines for violation of environmental
requirements, mainly the terms of a permit, which are the most popular economic instruments
in Poland, have existed in Poland since the 1970's, but they were ineffective for more than a
decade. The main reasons for their ineffectiveness were a lack of free market stimuli, lax
enforcement, and lavish state subsidies (the latter ones, in various forms, were virtually
discontinued in 1991).
Between 1989 and 1992, the Government's policy toward environmental fees and
fines policy was substantially reformed. The fees and fines were dramatically increased and
the rate of inflation has been included in the fee rate. Some of the fees, such as the fees for
SO2 emissions which amount to US $80 per ton of emission, have already provided strong
incentives for abatement although they are still much lowerthan the marginal cost of abatement.
Therefore the system serves mainly to raise revenue rather than to reduce pollution.
Today, the fine which is paid from the profits of the enterprise, poses a heavy burden
for the polluter. The existing law, however, allows for some flexibility. If the polluter commits to
eliminate the source of the fined pollution, the fine can be calculated into the amount of money
spent by the polluter on the appropriate pollution control measures. According to the State
Inspectorate this policy has appeared as an extremely effective measure of enforcement.
Stronger enforcement and market signals (as desire to increase competitiveness)
caused that there is a big demand of the polluters for financial resources. The resources
collectedfrom fees and fines, debt-forenvironmentswapsandinternationalassistance(PHARE,
World Bank, bilateral help) are managed by a unique "green" financial infrastructure whose
role in environmental investment in Poland cannot be overstated. This financial infrastructure
consists of:
• National Fund for Environmental Protection and Water Management.
• Regional and Community Environmental Funds.
• Bank for Environmental Protection.
• ECOFUND.
The main task of the environmental funds is to support implementation of the NEP
goals. After a period of implementing mainly "end of pipe" projects, The National and Regional
Funds are focusing on support of cleaner productiontechnologies.The main criterionfor projects
to be financed by environmental funds and the Bank for Environmental Protection is expected
environmental effect.
-------
68 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Soft loans are a basic form of financing by the National and Regional Funds. The
National Fund is able to support up to 50%, or in a case of local administration projects - up to
70%. The ECOFUND provides financial support only in the form of non-repayable grants which
basically encompass 10-30% of a project cost. The main form in which the Bank for
Environmental Protection supports projects for environmental protection is preferential credit.
It is noteworthy that the demand for this sort of financing is much higher that available capital of
the funds and the Bank.
9 VOLUNTARY MEASURES
In addition to command and control measures and economic instruments, there are
emerging now various types of voluntary measures mainly eco-audit, eco-label and
environmental agreements. The goal of these schemes is to promote and enhance compliance
with environmental requirements. By adhering to them, individual companies or industrial sectors
would be able to improve their compliance record and therefore their brand image, credibility
and competitiveness.
At the European Community level, the Council of Ministers has adopted Regulation
EEC/880/92 on a Community eco-label award scheme. The main idea of the Regulation is to
promote production, sale and use of products with the least harmful effects to the environment
throughout their life cycle. The regulation seeks to allow the consumers to be better informed
about the effects of products on the environment. Under specified conditions producers can
be awarded with a green label.
The other voluntary measure adopted by the Community is Regulation 1836/93 on the
eco-management and audit scheme (EMAS). In distinction from the eco-label scheme, the
EMAS does not focus on product but rather on industrial production processes and activities.
Under specified conditions (as compliance with environmental requirements) companies
participating in the scheme can be awarded a special logo of a company friendly to the
environment which can be utilized on brochures, reports, letterheads, information sheet, etc.
Although neither eco-label nor EMAS legislation has been enacted in Poland yet,
there is a surprisingly high interest on the side of the industry in having them incorporated in
Polish legal system. There is a growing believe that products awarded in Poland with eco-
label and recognized on the European Union market could be much more competitive than
others. A great number of big Polish companies would like to participate in EMAS because
they expect that their partners from European Union countries can sooner or later demand of
them "green image."
10 PUBLIC AWARENESS, ACCESS TO ENVIRONMENTAL INFORMATION
AND PARTICIPATION IN DECISION MAKING
According to various public opinion polls held by the Institute for Sustainable
Development (Warsaw) in 1993, environmental awareness in Poland is growing steadily. The
polls showed that, together with mounting crime and other social aberrations, environmental
pollution is regarded as the main threat to Poland and its citizens. The polls indicated that
provincial and local authorities are considered to be the organizations which most efficiently
protect the environment. Over the last year, provincial and local authorities gained the largest
share of positive scores in public opinion polls.
-------
WAJDA, STANISLAW 69
It is interesting to note that most of those interviewed had not heard about NGOs
operating in their local commune or province. Those who were aware of such activities
considered their efficiency negligible.
The percentage of individuals who regard the protection of the environment as
worthwhile even at the cost of increased unemployment as a result of closure of factories which
cause a particular threat to the environment has declined. Thus, these opinion polls provide
information that the public in general is ready to support environmental protection but not at the
expense of severe economic hardship.
There is an abundance of environmental information in the form of statistical data,
official reports, etc. However, access to information on planned or existing industrial activities
likely to harm or harming the environment is still limited. This indicates that the present law
should be redesigned so as to ease access to and strengthen the influence of NGOs in
administrative and legal actions. A mounting pressure from NGOs and the necessity to
approximate Polish legislation to European Union legislation will result in transposal of the
Council Directive 90/313/EEC on the freedom of access to information on the environment
and other directives dealing with public participation in environmental decision making.
Appropriate provisions transposing the relevant European Union directives have already been
drafted within the work on the Framework Law on the Environment.
11 CLEANER TECHNOLOGY
The cleaner production movement is mushrooming now in Poland. It could not happen
without a genuine interest of the industry. The movement is based on the Cleaner Production
Declaration and on the letter of intent on cooperation in this field signed by the Minister of the
Environment and the Minister of Industry and Trade. The movement was strongly reinforced by
the fact that the III World Seminar on Cleaner Production was held in Poland in 1994. Within a
program sponsored by the Norwegian government, 800 individuals from 500 industrial plants
were trained in the field of cleaner production. Demonstration Cleaner Production projects
were implemented in 200 of these plants. Recently, the World Environment Center established
three Pollution Prevention Centers in Poland which have undertaken vigorous activity in various
sectors of the economy.
In the future Cleaner Production Centers and Pollution Prevention Centers could be of
some help for applicants asking environmental funds for financing of their projects. Mainly, they
could help evaluate alternative technologies. A similar help could be extended to the funds
themselves.
12 ENHANCEMENT OFTHE ENFORCEMENT CAPACITY OFTHE STATE
INSPECTORATE FOR ENVIRONMENTAL PROTECTION
The most important development which has occurred since 1989 for the enhancement
of enforcement in Poland was the enactment of the Law on the State Inspectorate for
Environmental Protection in 1991. The fundamental change that the State Inspectorate Law
introduced was the separation of responsibility for enforcement from the regional authorities'
decision-making functions. Until 1991, the same regional authority was responsible for both
issuing permits and licenses and enforcing them. In addition, the same body was, and still is,
responsible for economic development of the region and employment. Therefore, not
-------
70 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
surprisingly, the environmental requirements were not enforced strictly. Prior to 1991, the State
Inspectorate for Environmental Protection, as a "toothless" creature, was virtually ineffective.
Presently, being independent from regional and local state or municipal authorities, the State
Inspectorate carries out its tasks much better.
The main tasks of the State Inspectorate include:
• Enforcing compliance with the laws and regulations on protection of the
environment and rational utilization of natural resources.
• Enforcing compliance with permits and licenses.
• Participating in sitting proceedings.
• Overseeing implementation of a new installations which are likely to have
adverse impact on the environment.
• Controlling the proper functioning of the pollution control equipment.
• Halting activities which violate environmental requirements.
• Cooperating with other enforcement organs, self-governing authorities and
NGOs.
• Establishing and running the state environmental monitoring system and
assessing the state of the environment.
• Designing and implementing analytical and sampling methodologies.
• Establishing conditions necessary to prevent environmental emergencies
and to restore the environment to its proper state.
The inspectors of the State Inspectorate are empowered to:
• Enter at any time an area of real estate, installation or their parts where
economic activity is carried out accompanied by experts and with any
necessary equipment.
• Inspect the state of the environment and assess it in the light of applicable
environmental legislation and compliance of the site with the terms of
permit.
• Evaluate use of technical equipment on the site.
• Assess the performance of pollution control equipment installed on the
site.
• Request information necessary to assess the state of the site.
• Obtain access to documents and data related to the inspection.
The management of the installation under inspection must allow the inspectorto perform
its duties. When the inspection is completed, the inspector writes a protocol which is also
delivered to the management of the installation.
On the basis of the inspection, the inspector has the power to:
• Issue a post-inspection order to the inspected installation.
• Issue an administrative order.
-------
WAJDA, STANISLAW 71
• Undertake enforcement action, if such obligation results from binding law
or an applicable administrative order.
Article 13 of the State Inspectorate Law enumerates the State Inspectorate's greatest
powers. It provides that the inspector may:
• Impose an obligation to remove the cause of environmentally harmful activity
in prescribed time.
• Impose a fine.
• Halt activity which violates environmental protection requirements.
12.1 The special case of the "80" heaviest polluters
In 1990 a list of the 80 heaviest polluters in Poland was prepared by the State
Inspectorate in close cooperation with regional environmental authorities. The following criteria
were applied: frequency and gravity of the violation of environmental requirements, level of
concentration of toxic pollutants, location of the polluterand territorial range of polluter's harmful
impact.
The main goal of the list was to bring the "80" into compliance with applicable
environmental requirements. To achieve this goal, regional authorities issued administrative
orders by which they bound each of the polluters to install or modernize pollution control
equipment and to undertake the appropriate changes of technology and other necessary
measures. The orders were preceded by environmental audits which provided necessary
information about the environmental performance of the polluters. Financial and economic
viability were taken into account and the polluters themselves had to prepare and submit
programs for achieving compliance.
The State Inspectorate has been entrusted with the special responsibility for enforcing
this process by frequent, almost daily, inspections and tough application of enforcement
instruments designed for each individual case. The enterprises which were not able to present
feasible programs had to stop their operations partly or totally.
The 1994 report on the implementation of the program by the "80," describes notable
progress in the abatement of pollution emitted or discharged by the "80," despite many economic
hardships resulting in delays. The most important is a decrease of emissions of suspended
particulate by 67 percent, gases 44 and wastes 42 percent. These results can only partly be
attributed to economic recession and closure of the worst of the "80." In the reporting year the
list of the "80" has been left by 14 companies which achieved compliance with the environmental
requirements and 5 other ones were added. It is expected that 16 other companies should be
in compliance by the end of 1996. It is worthy to note that similar programs have been adopted
towards 800 companies at the regional (voivodship) level.
12.2 Strengthen organizational authority and institutional capacity for the State
Inspectorate
There is a general consensus that an autonomous status of the State Inspectorate
adopted in 1991 have substantially strengthened its the enforcement activities. The State
Inspectorate, in its efforts to increase its efficacy, is looking for experience sharing with other
enforcement authorities or their organizations. One of them is the European Union Network of
Environmental Enforcement Authorities.
-------
72 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The organization and activities of the network was extensively presented by Mr. David
Slater of the HMIP at the 1994 Third International Conference on Environmental Enforcement.
Mr. Slater said that the network served as a very practical forum for informal exchange of ideas
and experience among those at the working face of environmental regulation. Since European
Union environmental legislation is steadily growing as a part of the Polish legal system, therefore
shortly after the Conference Poland showed an interest in having some links with the body as
an observer. Unfortunately, a reaction on the European Union side was not very encouraging at
that time. It is believed that two years later all obstacles which existed in 1994 have already
disappeared. We believe that what Mr. Slater stated in conclusion of his statement is also valid
for Poland: "One thing is very clear. The problems associated with protecting the environment
from industry activity are common to most if not all countries. Sharing experience through well
organized but largely informal network can help each of us do our job much better."
13 CONCLUSIONS
Transition to parliamentary democracy and a market-based economy, sound economic
growth, privatization and many stimuli from the free market are very important driving forces
behind enhanced compliance and enforcement. Poland's international commitment, efforts to
join OECD and integrate with the European Union are the basic causes of the fundamental
reform of Polish legal system and new approach to enforcement. The harmonization process
might offer a good opportunity to adopt feasible, realistic and enforceable environmental
standards. To operate within the Internal Market, Polish companies will have to comply with the
same standards as the European Union companies. A consistent harmonization will result in
further democratization of the Polish legal system. This could broaden public participation in
environmental decision making and its larger involvement in the enforcement process. Close
relations of the State Inspectorate with the European Union Network of Enforcement Authorities
could contribute to the strengthening of its enforcement efficacy.
-------
ADEGOROYE, ADEGOKE 73
DRIVING FORCES FOR SUSTAINABLE ENVIRONMENTAL COMPLIANCE
AND ENFORCEMENT PROGRAM IN AFRICA WITH PARTICULAR
REFERENCE TO NIGERIA
ADEGOROYE, ADEGOKE
Director of Inspectorate & Compliance Monitoring, Federal Environmental Protection
Agency, P.M.B. 3150, Surulere, Lagos, Nigeria
SUMMARY
In Africa, establishing an environmental compliance and enforcement program a is
very recent undertaking and for many countries, it is just being initiated. The previous
preoccupation of governments after independence has focused on attracting investments for
establishing industries with concessions that gave little or no regard to environmental
considerations.
The driving forces for the current response to establish compliance and enforcement
programs is externally driven and it is by virtue of the various initiatives of the United Nations
and its agencies over the last 8 years. The critical issues are funding, staffing, and technical
capacity as well as availability of enforceable legal instruments. The challenges are many and
diverse, depending on each nation and often include, interagency conflicts, weak legal
instruments, infrastructure, economic incentives, political instability and leadership crises but
are not beyond resolution.
Sustaining and building capacity for compliance and enforcement still appears to
depend largely on the United Nation's agencies and other international assistance. National
governments must begin to demonstrate greater commitment to environmental protection and
mobilize internal resources to sustain compliance and enforcement programs in the long run.
1 HISTORICAL BACKGROUND
The late 1950s and most of the 60s witnessed a rapid political change by way of
independence across Africa. However, no sooner had the wave of political independence
settled down than the challenges of nation building and governance began to manifest, first in
the economies of the new and fledging nations and later in their environmental problems. While
the economic challenges were traceable partly, to the management (or mismanagement) styles
of the new African leaders, and largely to the international economic systems of protectionism,
falling commodity prices, as well as the energy crisis of the 1970s, the environmental challenges
resulted from a combination of the economic challenges and natural hazards such as drought
and desertification.
All over Africa, national governments' responses to these earlier challenges were the
creation of Ministries of Natural Resources (and/or Environment). This approach was seen as
a logical decision of government since environmental concerns were viewed from the angle of
natural resources as a strong contributor to the economy in the same way as mining and
agriculture. Industrialization was perceived not only as the engine and indicator of development
but as a symbol of achievement and a measure of the success of the new political overlords.
-------
74 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Consequently, in the race to attract industrial investments large concessions were
made not only on tax but also in terms of environmental impact considerations and the use of
natural resources by the industries. Siting of industries was governed largely by political
consideration. There were no laws on hazardous waste management or industrial pollution
control except for their passing mention under worker safety regulations in the Mining Acts or
other Acts on natural resources. Throughout black Africa what existed were Public Health Acts
whose focus was the control of mosquitoes, general sanitation for the control of communicable
diseases and the provision of portable water. Therefore, the tradition of compliance monitoring
and enforcement that was prevalent in most African nations was the Public Health Inspectors
of the colonial era.
2 DRIVING FORCES
The decision to create environmental compliance and enforcement programs in Africa
is a very recent and on-going initiative. It is an initiative resulting totally from external driving
forces. Although the initiative was kindled by the 1972 Stockholm Conference on Human
Environment, except for, and even with, Ghana which created an Environmental Protection
Council in 1974, the initiative remained dormant all over Africa until 1987. However, from 1987
to date, tremendous progress has been made in the establishment and enhancement of
environmental compliance and enforcement programs in Africa due to the following driving
forces:
• Initiatives arising from the decisions of the United Nations General
Assembly to:
- Set up the World Commissionon Environmentand Development, 1987,
which produced the Report, "Our Common Future".
- Convene the United Nations Conference on Environment and
Development in Rio-de-Janeiro, 1992 (Resolution 44/228 of 22
December, 1989) leading to the blue print: AGENDA 21.
• Efforts of the United Nations Environment Program , particularly:
- The catalytic efforts of the various Program Activity Centers of UNEP
by way of information dissemination and training.
- The negotiations for the various conventions on e.g. Ozone Layer
Protection -1987, Transboundary Movement of Hazardous Wastes -
1989, Climate Change - 1992, Biological Diversity - 1992, Drought
and Desertification -1994.
• Initiatives of especially the World Bank and to a lesser extent the World
Wildlife Fund (WWF) in supporting the development and implementation
of National Environmental Action Plans (NEAPs) and National
Conservation Strategy (NCS)
• Sad experience of certain nations who have become victims of the
dumping of toxic wastes.
-------
ADEGOROYE, ADEGOKE 75
• Post-Rio initiatives of multilateral agencies particularly the United Nations
Development Program (UNDP), the United Nations Industrial Development
Organization (UNIDO), the World Bank and the requirements for funding
assistance from the Global Environment Facility (GEF), the financial
mechanism entity for the implementationof some of the major conventions.
• General global awareness on environmental issues and the increasing
criticism of governments inaction by the public, the press and the
environmental nongovernmental organizations.
• Governments' responsiveness through the enactment of enabling
legislations and the establishment of the appropriate institutional
frameworks.
Over the years, the catalytic role of the UN Agencies particularly the UNEP and the
Economic Commission for African (EGA) working in collaboration with the Organization of
African Unity (OAU) have mobilized concerted regional actions for sustainable development
as shown by:
• The Monrovian Declaration of 1979.
• The Lagos Plan of Action.
• 1980 African Ministerial Conference on Environment.
• AMCEN Cairo 1985.
• Regional Conference on Environment and Sustainable Development in
Africa, Kampala Uganda, 1989.
• The Bamako Conference, Mali 1991.
The Lagos Plan of Action, for example, has been described as one of the most
comprehensive, bold and forward-looking regional plans for economic recovery and sustainable
development anywhere in the world. Unfortunately these regional initiatives, generally, did not
record measurable success in terms of establishing or enhancing environmental compliance
and enforcement. The current status of the establishment of institutional frameworks for
environmental protection in Africa is shown in table 1 on the following page.
3 CRITICAL ISSUES FOR BUILDING COMPLIANCE AND ENFORCEMENT
PROGRAMS
The main issues that often arise in developing or enhancing compliance and
enforcement programs in Africa are:
• Funding.
• Staffing and technical capacity.
• Availability of legal Instruments for enforcement.
• Delineation of roles among the tiers of government i.e. federal, state, and
local government authority.
• Prioritization of environmental problems and polluting facilities.
• Inspection approach - "multi"-versus "single-media"
-------
76
FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Table 1. Institutional Framework Adopted in Selected African Countries
Country
Botswana
Ethiopia
The Gambia
Ghana
Guinea
Kenya
Mali
Nigeria
Senegal
Tanzania
Uganda
Zambia
Pre-Nation Environmental Action
Plans (NEAPs) and/or National
Conservation Strategy (NCS)
Ministry of Local Government and
Lands
Ministry of Natural Resources
Development and Environment
Protection Conservation Strategy
Secretariat (1990)
Environment Unit, Ministry of Natural
Resources
Environmental Protection Council
(1974)
Department of Natural Resources &
Environment (1986); National
Environmental Council (1987)
National Environmental Secretariat
Ministry of Rural Development and
the Environment -1994
Environmental Division in the
Ministry of Industry, 1978;
Environmental Protection & Planning
Division in Ministry of Works &
Housing (MW&H) 1979; Federal
Environmental Protection Agency
(MW&H 1988) Presidency 1992
Ministry de L'Environment et de la
Produit de la Nature
National Environmental Management
Council (1983) ; Ministry of Tourism,
Natural Resources and Environment
(1990), Department of the
Environment
Ministry of Natural Resources & the
Environment (1994; Environmental
Directorate/Department of
Environmental Protection (1994)
Ministry of Environmental and
Natural Resources (1991); National
Environmental Council (1990)
Recommended
Institutions by NEAP/NCS
NCS Advisory Board and
Coordination Agency
National Environmental
Protection Authority
National Environmental
Agency
Environmental Protection
Agency (1994) Ministry of
Environment, Science &
Technology (MEST-1993)
Kenya Environmental
Agency
Cellule de Suivi,
d'Evaluation/PNLCD
Conseil Superieur
Resources Naturalles et de
L'Environment (CONSERE)
1993
National Environmental
Management Authority
Remarks
Approved but in
progress for new
ministerial home for
coordinating agencies
Established in office
of Prime Minister
Established in office
of President
Recommended by
MEST and approved
Institutional
arrangements not yet
designed
Recommended by
NEAP launch
Responsible for
Desertification Control
Plan; likely to
coordinate NEAP
Inter-Ministry Council
for Environmental
Policy Coordination -
responsible for NEAP
No decision on
institutional
arrangement yet
Approved
No new institution
created
"Source: World Resources Institute 1995 with modification
-------
ADEGOROYE, ADEGOKE 77
In the case of Nigeria, the establishment of the Federal Environmental Protection
Agency, being a swift response to the illegal dumping of Italian toxic wastes in the country, was
greeted by a general public euphoria with government promising an extra-budgetary take-off
grant of 500 million Naira (US $ 80 million) for each of the first two years. The inability of
government to release any part of the grant posed serious challenges to the agency. To overcome
the funding constraint, two other approaches were taken. One, the agency sought and secured
external assistance by way of World Bank grants (soft loans) to the tune of US $ 25 million for
setting up an environmental data bank, conducting studies and procuring monitoring equipment
and vehicles over a 3 year period. The second was by amending the agency's act to reflect
allocation of one quarter of the 2% national revenue earmarked as an Ecological Fund by the
constitution as a statutory grant for the programs of the agency on a yearly basis. The difficulty
of securing this grant also, is now prompting the agency to begin to think of charging fees for
many of its activities (e.g. inspection, audit, etc.) and to seek to establish an ECOFUND along
the line of the SUPERFUND of the United States.
3.1 Staffing and technical capacity
For many African nations, the Universities provide the ready pool of manpower trained
in basic disciplines of environmental sciences. Nigeria's Federal Environmental Protection
Agency (FEPA) drew from such a pool and to a lesser extent, industries and line ministries,
and trained them by sending them on sponsored short courses in the Netherlands, the US, UK,
Canada, Japan, Germany, Belgium and Nairobi UNEP. In addition, short term resident
consultants from overseas and within the country also provided avenues for quick interaction
by the newly recruited staff to enable them to face the challenge of compliance monitoring and
enforcement within the shortest possible time. Materials from the biennial International
Conference on Enforcement remain the backbone of the agency's in-house training. Credible,
and experienced consultant analytical chemists, physicists and microbiologists were also
retained on contract to provide a ready back up for the inspection and monitoring activities of
the new agency until a well equipped laboratory was established. The National Reference
Laboratory of the agency was, in 1990, initially set up with the equipment donated by the
Japanese International Cooperation Agency (JICA) and upgraded later by the government's
internal efforts. The revised organizational setup of the agency is shown in Figure 1 on the
following page.
3.2 Role delineation among tiers of government.
In many African countries, urban sanitation and municipal waste management are
clearlythestatutory(constitutional)responsibilityof local governmentauthorities.Similarly, ports
(sea and airport) issues are of federal concern under the commerce clause. On the other hand,
the issue of industry often appears to be concurrently listed for federal and state (or regional)
governments. For countries operating true federal systems of government, both the state and
federal environmental protection agencies are legally authorized to monitor and enforce
industrial compliance. But in unitary states or national governments with a strong center,
like military states, the entire authority for pollution control and industrial compliance monitoring
-------
78
FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Figure 1. Federal Environmental Protection Agency Revised Organizational Chart 1994
Preside™
Ministerial Governing Council
1
Director General
1
DET&R
Departmentdescriptionsand their roles and responsibilitiesfor Figure 1:
Department of Personnel Management (DPM)
i. General administration
ii. Recruitment promotion and discipline
iii. Staff welfare
iv. Staff training (coordination)
Department of Finance and Supply (DFS)
i. Finance
ii. Store
iii. General procedure
Department of Planning and Evaluation (DPE)
i. Planning
ii. Project monitoring and evaluation
iii. Information management and data bank
iv. Library services and publication
v. Environmental impact assessment
vi. Remote sensing and Geographic Information System (GIS)
vii. Technical assistance and studies
viii. Environmental education
ix. Budget, rolling and perspective plans.
Department of Inspectorate and Compliance Monitoring (DICM)
Industrial compliance and monitoring of standards
Toxic waste dump watch
Chemicals and pesticide registration
Accreditation, licensing and permits
Liaison with states environmental agencies on enforcement
Enforcement and control of regional and international transboundary
movement of hazardous/toxic waste
i.
ii.
iii.
iv.
v.
vii
-------
ADEGOROYE, ADEGOKE 79
viii. Municipal wastes compliance monitoring
ix. CITES compliance
Department of Environmental Conservation (DEC)
i. Biodiversity conservation
ii. Wetlands and protected areas
iii. Wildlife conservation and management
iv. Soil and water conservation
v. Erosion and flood control
vi. Drought and desertification control
vii. Watershed management
Department of environmental technology and research (DET&R)
i. Waste management technology
ii. Pollution abatement technology
iii. Regulation and setting of standards for pollution control.
iv. Instrumentation.
v. Laboratory services.
vi. Engineering services.
vii. Research and development.
is often vested in the federal agency. Therefore, to carry the state or regional governments
along, an arrangement must be worked out to devolve some of the federal powers to the
state environmental protection agencies.
The Nigeria agency operates through ten zonal (regional offices) in Port-Harcourt,
Ibadan, Owerri, Kaduna, Kano, Maiduguri, Bauchi, Minna, Jos and Uyo. It has also ensured
that each of the 30 states of the federal system creates its own state environmental protection
agency by strictly following a generic guideline established by the federal agency for easy
harmonizationof functions. State environmentalprotectionagencies that are established enough
with qualified staff are encouraged to carry out inspections focusing more on pollution of
Table 2. Legal Instruments for Pollution Control in Nigeria
1. Federal Environmental Protection Agency Act, 1988.
2. Federal Environmental Protection Agency Act, 1988.
3. Hazardous Wastes (Criminal Provisions) Act, 1988.
4. Import Prohibitions (Contaminated Foods) Act, 1989.
5. National Policy on the Environment, 1989.
6. National Guidelines and Standards for Environmental.
7. Pollution Control in Nigeria, 1990.
8. National Effluent Limitation Regulation, 1991.
9. Pollution Abatement in Industries and Facilities.
10. Generating Wastes Regulation, 1991.
11. Solid and Hazardous Wastes Management Regulations, 1991.
12. Federal Environmental Protection Agency (Amendment) Act, 1992.
13. Environmental Impact Assessment Act, 1992.
-------
80 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
their water bodies, soil contamination and air pollution and terminating their investigation at
the outfall of the industrial facilities. Serious violations are communicated to the agency who
in turn initiates enforcement.
3.3 Legal instruments for enforcement.
The basis for environmental compliance monitoring and enforcement is in the legal
instruments. These instruments spell out actions or non-actions that constitute offenses by
facilities and individuals, the responses expected of the regulating agencies, sanctions and
penalties to be meted out to the offending facilities and/or individuals. The provisions of legal
instruments must be clear, unambiguous and enforceable. The regulating Agency must be
empowered to make regulations. So far, ten legal instruments have been developed for pollution
control in Nigeria (Table 2). In addition the agency has established seven types of permits
regulating pollution and management of solid and hazardous wastes.
3.4 Prioritization of environmental problems and polluting facilities.
Funding limitations and a dearth of qualified staff at the inception of a compliance and
enforcement programs call for the need to prioritize the environmental problems which should
be tackled first. Is the priority municipal wastes, industrial pollution or water contamination?
These depend on the pressing environmental problems facing each country, but it is
best to focus attention first on pressing problems for which no other ministry or agency has
been previously responsible. Also among the polluting facilities the worst must be tackled first.
3.5 Inspection approach
Funding and staffing limitationsmake the multimedia approach to inspection the logical
step for adoption.
4 CHALLENGES AND THEIR RESOLUTION
Centralizing environmental management and enforcement in a single agency or ministry
in Africa as in many developed nations worldwide is a new development. Environmental
enforcement where it exist are fragmented in various Line Ministries especially Health, Works
and Housing, Agriculture, Petroleum Resources, Water Resources, Mineral Resources etc.
The emergence of an environment agency or ministry with its perceived enormous
powers normally creates frictions with industries wanting business-as-usual and also with the
traditional ministries who are reluctant to relinquish the environmental enforcement part of their
functions which they used to perform. Most of such functions were not thrust upon them by law
but by administrative directive of government or sometimes simply as a unilateral initiative of
the ministry to fill an identified gap. Unfortunately matters are not helped by the ambiguities of
the laws of the competing ministries and the non-deletion of aspects of the old ministry's laws
now transferred to the new agency.
From my experience in Nigeria over the last 5 years, the main challenges faced by our
enforcement and compliance programs are as follows:
• Interagency conflicts
• Inadequate legal instruments
-------
ADEGOROYE, ADEGOKE 81
• Infrastructure
• Agency-industry relations
• Economic incentives
• Leadership crises
• Loss of staff to other sectors
• Pressure groups and environment in politics
4.1 Interagency conflicts
The most disturbing role-conflict of Federal Environment Protection Agency with any
other agency is with the National Agency for Food and Drug Administration and Control
(NAFDAC) established by Decree 15 of 1993 over the monitoring, regulation and control of
hazardous chemicals and pesticides. Indeed last year, NAFDAC went as far as formulating
regulations on pesticide use, importation and control without inviting comments from either
FEPAorthe Department of Pest Control Services of the Ministry of Agriculture whereas FEPA
is the Designated National Authority (DNA) for potentially toxic chemicals and pesticides under
the UNEP/FAO Prior Informed Consent (PIC) Procedure and the London Guidelines. With the
support of the Pharmaceutical Group of the Manufacturers Association of Nigeria (PG-MAN)
vitriolic attacks were unleashed on FEPA in the press and electronic media especially in the
last 12 months.
Through consistent public enlightenment, diligent and credible enforcement strategies
exposing serious lapses in the procedure of the other agency and the confirmation by security
agencies of government, FEPA has been able to maintain its statutory functions.
4.2 Legal instruments
In a situation where laws were enacted following a sad environmental pollution or
disaster experience some aspects of the laws may be borne out of passion leading to extremely
stiff penalties, or serious lacuna (loopholes) making enforcement difficult. For example, the
Harmful Wastes (Criminal Provisions) Act promulgated following the sad experience of toxic
waste dumping in Nigeria prescribes a sweeping ban on all wastes without regards to green
wastes such as recyclable used plastics and fibers both of which are in high demand in the
country's plastics and blanket industries. This has been redressed through administrative
procedures.
Another challenge arising from weakness of the enforcement agency's law is the
attempt to avoid offending some powerful ministers or ministries, who might block the entire
new Act if it attempts to erode some of its traditional powers. This often leads to unfortunate
trade-offs which later make enforcement difficult. One such example is the FEPA Enabling Act
which rather than clearly vesting the authority to control oil pollution in the agency merely says
that "The Agency shall cooperate with the Department of Petroleum Resources for the removal
of oil-related pollutant discharged into the Nigerian environment and play such supportive role
as the Ministry of Petroleum Resources may from time to time request from the Agency."
4.3 Infrastructure
Effectiveenvironmentalcomplianceand enforcement programs in a developing country
while requiring office building, residential quarters for staff and laboratories also and more
importantly require central waste management infrastructures such as sanitary and hazardous
-------
82 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
landfills, treatment facilities, etc. Until enforcement has been firmly established it is difficult
to get business entrepreneurs who will be willing to invest in such ventures. This has been
the case with Nigeria. The government would have to provide such infrastructure and charge
users as appropriate or go into partnership with businessmen to establish the infrastructure.
Nigeria's efforts to seek external investment from multilateral agencies has not been
successful. We have had to coerce individual facilities to build their own treatment plants or
go into cooperatives to do it since the agency's law clearly vests the responsibility to treat
waste on the industry generating the wastes. We have achieved a commendable level of
success in this regard.
4.4 Agency-industry relations
Industriesare usually reluctantto commit extra investment on pollution abatement until
enforcement begins and offenders are being penalized. They might even put pressure on the
government and try to blackmail the enforcement agency. In Nigeria, we have had to give a 5
year moratorium since 1990 for industry to comply. While this was on, massive enlightenment
was mounted for the public and the industries. By way of public complaints from individuals
and nongovernmental organizations as well as the press, industries realized that there was no
room to hide any longer.
Our enforcement began by way of warnings. Then at the 1995 World Environment Day
Celebrations we instituted the Environment-Friendly Industry of the Year Awards. Ten industrial
facilities were so recognized last year and all of them made a big issue of it in their corporate
promotion. Having warmed our hearts to the industries, we started this year by shutting down
two polluting facilities. The public was happy and the facilities quickly began to comply.
4.5 Economic instruments
With the downturn in the economy and increasing external debt of African nations,
industries have been facing very hard times. The absence of economic incentives and access
to soft loans make it difficult for industries to invest in pollution abatement. Not only has this
slowed down the pace of compliance with environmental laws and regulations by industries, it
has made enforcementratherdifficult.FEPA is currently conductinga study of industrial pollution
and use of economic instruments in Nigeria under the World Bank assisted Environmental
Management Program. It is hoped that when this is completed it will be adopted by the Planning
and Finance Ministries.
4.6 Leadership crises
Stable leadership of the environment agency is a sine qua non requirement of an
effectivecomplianceandenforcementprogram.Howeversuchleadershipmust be well informed
on environmental issues and have the capacity to learn fast on the job. He or she must also
have good management capability, an excellent vision for the Agency and be self confident
rather than feeling threatened by subordinates. The leadership crisis at FEPA in 1993 was a
severe setback for the Nigeria's environmental compliance and enforcement program.
4.7 Loss of staff to other sectors
Quite a good number of the well trained staff of the agency have had to resign their
appointment in the last 12 months. The main reason is the general low level of remuneration in
the public sector and other frustrations of a depressed economy. Unlike in the developed
countries such staff losses are not to the environment related private sector but are to unrelated
fields or even outright emigration out of the country. It takes a minimum of 2 years to train a
replacement to occupy their positions. The agency is now trying to convince government to
place enforcement staff on a special salary structure.
-------
ADEGOROYE, ADEGOKE 83
4.8 Pressure groups and environment in politics
Increasing global awareness of environmental issues has both negative and positive
impacts especially in political volatile states. For example, while increasing awareness
engenders consciousness and promotes environmental protection ethics, an uneasy situation
arises when such consciousness becomes a tool of political struggles or aspirations. Nigeria
has its own share in the Ogoni oil pollution issues over the last 2 years. An environment agency
has the responsibility to respond quickly by establishing a legally-binding procedure to address
issues of compensation, remediation and liability for pollution in order to diffuse such tensions.
One extreme side to the growing environmental consciousness was the case of a
nongovernmental agency trying to institute a court injunction against the agency for allowing an
abandoned ship to remain in the nation's wharf because, according to the group, "the ship
constitutes a pollution of the ocean waters"! This is in spite of their awareness of the functions
of the Nigerian Navy, the Nigerian Ports Authority, the Nigerian Maritime Authority and the
Ministry of Transport.
5 CONCLUSION
The driving forces for establishing and enhancing environmental compliance and
enforcement in Africa are externally driven and they reside in the initiatives of the United Nations
and it various agencies. The critical issues are funding, trained manpower and legal instruments.
The enforcement program faces challenges depending on the peculiar circumstances of each
nation. Therefore viable strategies must continue to be evolved to overcome the challenges.
This is the arrangement in the past two years in Nigeria, the World Bank and the UNDP assisted
projects have been the main factors sustaining environmental protection efforts in the areas of
capacity building, institutional strengthening, review of the legal framework and execution of
certain programs under the agency's Action Plan. There is the need to improve national
commitment to environmental protection by mobilizing internal resources if the compliance
and enforcement program is to be sustained.
-------
84 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
AZUELA DE LA CUEVA, ANTONIO 85
THE IMPACT OF DRIVING FORCES ON ENVIRONMENTAL COMPLIANCE
AND ENFORCEMENT PROGRAMS IN MEXICO
AZUELA DE LA CUEVA, ANTONIO
Federal Attorney for Environmental Protection, Insurgentes Sur No. 1480 - 4o Piso, Col.
Barrio Actipan, Del. Benito Juarez, District Federal, C.P. 03230 Mexico City, Mexico
1 INTRODUCTION
Mexico's concern for environmental protection and ecological equilibrium was not
borne out of the North American Free Trade Agreement, as many believe. The system of
environmental treaties established in NAFTA undoubtedly constitutes an element to influence
our own environmental policies, but it also shows the convergence between our national
dynamics, characteristic of the development of Mexico, and global trends. At the end of this
millennium, new paradigms have arisen, which our country is approaching from its own historic
perspective.
Mexico has arrived at this end of the century after a long period of political stability,
social peace and economic growth. Today, with a population of close to ninety million, mostly
urban (70%), we are facing a new social reality, characterized by the presence of a more
informed and participatory society, whose presence is felt with great intensity in current national
debate on topics including political reform, economic programs, and the environmental problem.
Like the rest of international society, we too have witnessed the decline of the political
and economic order established after World War II, as well as the breakdown of some
agreements under the terms of the 1919 Treaty of Versailles.
The accelerated pace of technological innovation imposes new forms of competition
and efficiency on our production systems, compromised by growing competition from foreign
markets and products. As a consequence, our participation constantly increases in the intense
network of economic and technological interrelations which gives rise to great flow of
merchandise, capital, technological products, services, and specialists of all types, interlacing
all the regions of the planet in a permanent flux.
All of these changes, internal and international, are affecting the forms of organization
of our society, in the definition of its demands and priorities, as well as in its forms of political
participation. The line between international and national affairs is rapidly fading. Mexico, like
other countries, is faced with the necessity of redistributing the functions of the State and of the
government toward two apparently contrasting domains: the great forums of international
participation and the very heart of our national communities.
At center stage, as a necessary and inseparable element of Mexico's modernization
project, is the subject of environment and sustainable development.
1.1 The environmental section
In the last few years, Mexico has experienced important strengthening of the legal and
institutional framework for environmental protection and the preservation of natural resources.
In this process, not only has the conscientiousness of Mexican society played an important
part on the magnitude and impact of environmental problems, but so have the powerful
international tendencies that characterize this end of the century.
-------
86 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
In 1971, the first Environmental Protection Act was decreed, and the Subsecretariat
of Environmental improvement was created, as part of the Health Sector; and since then,
society and government have tried to respond to the processes of environmental damage.
In 1972 the Stockholm Conference on the Human Environment was the catalyst for world
interest in ecological issues, and Mexico was no exception. Nevertheless, in the seventies,
environmental policy was circumscribed to the focus on public health and incipient efforts in
urban and forest planning carried out by the Secretariat of Human Settlements and Public
Works and the Secretariat of Agriculture and Hydraulic Resources.
It wasn't until 1982, with the creation of the Secretariat of Urban Development and
Ecology, and with a new Federal Act of Environmental Protection, that the responsibilities
were consolidated and a more ambitious and more comprehensive policy focus was adopted.
In 1988, the General Act of Ecological Equilibrium and Environmental Protection systematized
discourse, explicitly linking environment to the issue of development, distributing competency
among the three levels of government and society, and setting down important instruments of
ecological policy, including environmental impact assessments, ecological land use planning,
natural protected areas, technical norms, ecological planning, and ecological criteria in
development promotion.
The promulgation of this Act was followed by state laws and regulations on evaluation
of environmental damage, prevention and control of air pollution and industrial waste. This
normative body was considered in the Human Settlements Act, the Forest Act, and the Planning
Act, which include different sectorial environmental protection programs.
The 1992 Federal Law of Metrology and Normalization perfected Mexico's normative
model. To date, 81 OMNs (Official Mexican Norms) have been issued, on discharge of residual
waters, management of hazardous and municipal wastes, automotive vehicles, industrial
sources, and natural resources. The Official Mexican Norms have proven to be a valuable
instrument for controlling productive processes, as well as for introducing technological
innovation and promoting an important environmental market.
The creation of the National Institute of Ecology in 1992 and the Office of the Federal
Attorney for Environmental Protection strengthened ecological normativity and the mechanisms
for strict application of the law. More recently, on December 29,1994, the Secretariat of the
Environment, Natural Resources and Fishing (SEMARNAP) was created which has permitted
the integration of strategic areas of the productive sector, including fishing, forests and water
to environmental conduct. The most important lines of actions of this Secretariat are:
• Promoting the transition to sustainable development and curbing
processes of environmental deterioration.
• Planning the use of resources, production, infrastructure and urban
development.
• Promoting patterns of consumption more favorable to sustainability.
• Promoting social participation and timely and transparent information on
environmental policy and natural resources.
• Advancement in decentralization, coordination and regional integration.
• Strengthening legal framework and compliance with laws, norms and
programs.
• StrengtheningMexico'sparticipationin internationalforumson environment
and natural resources.
-------
AZUELA DE LA CUEVA, ANTONIO 87
2 THE REFORM OF THE MEXICAN STATE
In recent years, Mexico has begun an intense process of transformation of its
institutional structures. Special attention has been given, In this sense, to the transformation of
the political philosophy of the Mexican State. The first premise established the need to abandon
the idea of a patrimonalist State with practically absolute attributions. In its place, is a model of
the State that transfers increased facultiesandresponsibilitiesto society, that promotes growing
participation of the private sector in the economy, and that more closely observes the principles
of the federal government, transferring to states and municipalities increased faculties for the
administration of public affairs.
In the economic aspect, the reform of the State has meant the privatization of
non-strategic state enterprises; the opening of domestic markets, the establishment of new
relations of agricultural production and new rules for foreign investment.
The political reform has contemplated perfectingthe electoral system through important
reforms designed to increase impartiality, transparencyand legality; the strengtheningof political
pluralism; a new relationship between State and church, defense of Human Rights and
modernization and democratization of political parties.
The administrative reform, in turn, contemplates adapting the bureaucratic apparatus
to the new political philosophy of the State, by modifying the size of the administration and
transferring greater resources to bureaucratic agencies that attend to social and environmental
demands. This has implied the decentralization of functions, administrative deregulation and
simplification and reform of the corresponding legal framework.
In the area of social reforms, efforts to promote a new relation between the State and
society, particularly with new actors, is outstanding. Other changes include modernization of
the educational system and teaching programs; promotion of measures of ecological protection
and environmental improvement; greater attention to the development of Public Health, and
guidelines for actions to improve the judicial system.
All of these transformations are currently taking place against a backdrop of
unprecedented economic crisis, making stricter rationality of public spending an obligation. In
spite of this, federal authorities have not renounced the scrupulous application of the law.
3 LAW ENFORCEMENT AND VOLUNTARY COMPLIANCE
One of the responsibilities in the area of environmental legislation especially important
to the Mexican Federal Government, is the strengthening and enforcement of environmental
law. Through laws, regulations and official Mexican norms, among other instruments, a normative
body has been configured to clarify environment-related goals, and which constitutes society's
main reference point of guidance for those activities which affect the environment and natural
resources.
In this context, we propose to orient the activity of the application of the law in three
directions:
3.1 Broadening actions covered by inspection and enforcement
Broadening actions covered by inspection and enforcement is especially urgent in
the area of natural resources. While the universe of industrial activities is reasonably well-covered
by the thousands of monthly visits carried out, in the case of enforcement in fishing and forest
activities, flora and fauna, serious limitations exist. It should be pointed out that from the beginning
-------
88 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
of President Zedillo's administration, these functions (which previously had been dispersed
among various federal agencies) have been concentrated in the Office of the Federal Attorney
for Environmental Protection (PROFEPA), a decentralized agency of the Secretariat of the
Environment, Natural Resources, and Fishing (SEMARNAP). Nevertheless, the natural and
financial resources available are exceedingly scarce, and it will be necessary to implement a
program of institutional development to provide an increase in the presence of public power, at
least in regions where the depredation or excessive use of natural resources is having the
most serious effects. One of the fundamental requirements to achieve this goal is the possibility
of dedicating an important part of fines imposed to support inspection and enforcement
programs.
3.2 Achieving defined environmental objectives
A quantitative increase in the actions of inspection and enforcement will not suffice
We must channel our efforts so that the coercive action of the State is not directed solely
toward punitive intent, but also toward the goal of achieving environmental objectives, as well
as the conservation of natural resources as stated in the normativity. This strategy takes on
different tones, depending on whether the subject in question is industry or natural resources.
In the case of industry, over forty seven thousand inspection visits made by the Office
of the Federal Attorney for Environmental Protection (PROFEPA) since 1992 provide an
important quantity of information on levels of compliance with environmental normativity and
most common violations. For this reason a national system of indicators of compliance with
environmental legislation has been set up, consisting of a data base with all the information
relative to detected irregularities. Not only will this provide the most precise diagnosis possible,
but will also orient programming of inspection Visits according to clearly defined goals for
improvement in environmental acceptability.
In the case of natural resources, the lack of systematized information on illicit activities
in fishing, logging and trafficking of species demonstrates the need to Increase our knowledge
of these problems. To that end, an agreement has been made with the National Council of
Science and Technology (CONACYT) to begin a program of research on compliance with
environmental and natural resource legislation, with an annual budget of over $700,000 US, to
finance studies by specialized research centers. Our information on compliance with the law in
this country is so poor that first it will be necessary to motivate the formation of an academic
community dedicated to this subject.
In addition control of natural resources should be modernized by new technologies
including systems of geographic information, Instruments of global positioning, satellite images,
and others to permit the identification of those illicit activities causing the most damage, which
must be ceased urgently.
3.3 Broadening social participation
It is clear that environmental legislation cannot be successful if it depends solely on
government action. In any successful institutional arrangement, coercive actions are the
exception, in the contextthat social actorscomply with the law voluntarily. Forthis, it is necessary
to broaden the forums for society's participation in diverse aspects of environmental legislation,
which constitutes the third important objective of the authority entrusted with the application of
the law. To achieve this, four courses of action come to mind;
-------
AZUELA DE LA CUEVA, ANTONIO 89
Increase accountability of the public power in relation to society. The most
important step in this direction refers to the right of every person to have
access to environmental information in government hands. Current reforms
to environmental legislation represent unprecedented progress in this
aspect, since the right to information is broadened to every person (and
not only those directly affected), and precise legal mechanisms are
established to enforce this right.
Create forums where local authorities, citizens and social organizations
can meet with federal authorities entrusted with protecting natural resources.
To this end, combination 12 of the inspection and enforcement committees
have been organized in 31 states of the Republic, where the most important
social actors on a local level meet to work with the Office of the Federal
Attorney for Environmental Protection (PROFEPA) on fishing, forest and
wild flora and fauna trafficking prevention. These committees mark the
beginning of a new relationship between federal inspectors and the local
communities in which they operate, for the purpose of articulating the
community's support for the application of the law.
Promote the development of forms of voluntary compliance with the law.
Among these the most important is the environmental audit, originally
included in the parallel agreement to NAFTA on environment and which
will soon be incorporated into Mexican environmental legislation. To date,
over 400 audits have been carried out, in order to define, based on
exhaustive diagnostic tests, those actions which should be taken to comply
not only with current norms, but also with international norms and sound
engineering practices in those areas where official Mexican norms do not
yet exist. Also, the term for carrying out said actions will be defined, under
strict supervision by the Office of the Federal Attorney for Environmental
Protection (PROFEPA). Perhaps the most relevant case are the audits
carried out in all the refineries and petrochemical plants of state enterprise
Petroleos Mexicanos (PEMEX), which call for an Investment of
approximately 660 million dollars to improve environmental performance,
within a period of three years. In the future, the incorporation of small and
medium-scale industry will be promoted.
Encourage the participation of academic institutions and research on
attention to environmental problems and emergencies, such as attention
to wildlife, to be coordinated with corresponding authorities. In this context,
the need to commit these institutions, not only to research, but also to the
development of mechanisms for immediate response to these
emergencies, becomes apparent. One example of this potential was
offered by the Scientific-Technical Committee established by the Office of
the Federal Attorney for Environmental Protection (PROFEPA) last year,
with more than 19 institutions, to study the cause of mortality of birds which
occurred in the Silva reservoir.
-------
90 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4 THE REFORM OF ENVIRONMENTAL LEGISLATION
Today, the General Act of Ecological Equilibrium and Environmental Protection is
undergoing a process of reform in order to introduce new norms and procedures.
It should be pointed out that the reforms proposal has been presented and discussed
in multiple forums with social and academic organizations, groups of specialized attorneys'
business organizations and different government agencies.
The proposal calls for decentralization of functions which affect, in the first place, local
communities, and in which local authorities should have Increased participation. In Article 12,
the proposal establishes precise mechanisms with definite formalities for the transference of
functions from the federal government to state governments.
The objective is to create a more precise definition of the areas of competence of
each of the three levels of government, and to reduce to a minimum the discretionary power In
each area, thus offering increased legal security in favor of those governed. The decentralization
program included in the proposal will not go into effect immediately, but under a uniform policy
under which application will be gradual, in keeping with state and municipal diversity. To this
end' the ideal instruments are the agreements provided for by Constitutional Article 116 for the
transfer of functions from the Federal government to the States.
Another important characteristic of the proposal is the broadening of opportunities for
social input on environmental Issues. It provides for increased participation in the process of
environmental impact assessment, granting the right to all citizens to formulate observations
and proposals regarding projects or activities subject to evaluation and establishes procedures
during which, at the request of any citizen, the Secretariat of the Environment, Natural Resources
and Fishing (SEMARNAP) will organize a public hearing for the sponsor of a project to provide
an explanation to the public. The authority shall provide reasons for its decision, in relation to
the proposals presented by citizens in reference to a given project.
Also, for the first time, rules will be established for participation in ecological land-use
planning (or ordenamiento ecologico del territorio), which will give communities over three
months to pronounce on projects.
With respect to natural protected areas (NPAs), not only does the proposal maintain
the principle of social participation in their establishment and maintenance, set forth in Article
47 of the current Law, but also specifies that participation should include proprietors and owners
of same, as well as local governments, indigenous communities, social organizations and
groups, universities, academic institutions, and other organizations, and calls forthe constitution
of the National Council of Natural Protected Areas, for the purpose of participating in the
elaboration, supervision and follow-up of policies for the establishment, administration, and
supervision of natural protected areas. The new wording places special emphasis on the
participation of indigenous communities
The proposal incorporates, forthe first time in Mexico's environmental legislation, the
right to information, which is established not only in general terms, but it also specifies its
content and provides for legal procedures to insure its implementation. Along with a definition
of what should be considered environmental information, Articles 150-3 and 159-6 grant every
person the right to access to information from environmental authorities from the three levels of
government. Exceptions to this right protect legitimate interests - private as well as public -
established by other legal regulations, which would be affected by the release of certain
information. Evidently, discussion as to whether this is sufficient could be unending. Nowhere,
it should be noted that said exceptions correspond to those established by the most recent
legislation in the European Union.
-------
AZUELA DE LA CUEVA, ANTONIO 91
As far as ecological land use planning, the proposal calls for this to be legally binding,
unlike the current situation similar to land use plans for urban development established in the
legislation on human settlements.
With respect to the Environmental Impact Assessment (EIA), the proposal's aim is to
set forth guidelines for a more specific definition of projects and activities which should be
subject to said procedure. Such is the case of polyducts, forest exploitation, forest plantations,
land use changes of forest areas, fishing, agriculture and livestock, industrial parks, real estate
developments that might affect coastal ecosystems, as well as projects in marshlands, lagoons,
rivers, lakes and estuaries leading to the sea, as well as littoral or federal zones.
Instead of reducing levels of environmental protection, what is reduced by establishing
an exhaustive list of projects and activities subject to environmental impact assessments (EIA),
is the discretionary power of authorities to decide when the presentation of an assessment is
required. In order to draw the line between projects that do require an assessment and those
that do not, there are only two choices. The first is to establish in the environmental legislation
a generic formula, whose interpretation and application will rely on the judgment of authorities
as current law, and the second is to establish this definition in a secondary ordinance (a
reglamento) which describes in detail those projects which, because of their size, location or
characteristics, would or would not be subject to the procedure. The proposal includes the
second alternative, in order to reduce discretionary power.
The proposal does not aim to replace preventive actions with corrective ones. The
proposal incorporates the polluters-pay-principle, that should be observed in the formulation
and application of environmental policy. To include a new principle in no way means abandoning
norms that establish preventive policies. This could only be affirmed if the preventive provisions
were revoked. In fact, the proposal's emphasis on the latter can be observed in the inclusion
for self-regulation and environmental audits as instruments of environmental policy, as well as
new provisions to protect the country's genetic capital and specifically, to regulate
biotechnological activities, which are currently not subject to control.
None of the provisions incorporated prevents compliance with the international treaties
and conventions of which our country forms part. On the contrary, international obligations will
be part of the amendmentsto the law, in accordance with Article 133 of the Mexican Constitution,
which states that all international treaties, once approved by the Senate, will become "supreme
law of the nation".
Finally, it should be stressed that work is still being done on the proposal, which could
be subject to revision before going to Congress for discussion.
5 INTERNATIONAL PRESENCE IN THE APPLICATION OF THE LAW
5.1. The North American setting
The intenseinternationalenvironmentalactivity in which Mexico has participated cannot
solely explain the indisputable impact of external factors in the application of the lawand voluntary
compliance in Mexico. We must also carefully consider our relationship with the United States,
the structural character being acquired by some of its elements, and the influences and
distortions produced internally in our country due to our proximity, both in the application of the
law and in our agenda of environmental themes
-------
92 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The broadening of economic ties between the countries and growing trade in the
region have generated increased interrelation of Mexico with foreign markets, and with all
types of conditions imposed. In this context, the environmental element presents itself with a
double dimension: as a conditioning actor in the productive processes and as a powerful
instrument of unilateral commercial competition.
To the latter we would have to include the influence of U.S. environmental rights, which
in some cases has given rise to the adoption of mechanisms In Mexican law such as the
environmental impact assessment1, as well as a for comparing technical levels to determine
sources of air and water pollution, including toxic substances and hazardous waste
management; a process which may not yet have reached the level of homologationof standards,
but which has influenced national debate on environmental standards and legislation.
On the other hand, the distortion effect this influence has with some frequency on
Mexico's environmental agenda should be mentioned. The fact that a differentiated perspective
exists between both nations as far as Mexican environmental priorities is indisputable. The
result is the overestimation of some Mexican environmental problems by some U. S. sectors,
as well as the underestimation of social and economic priorities that have considerable weight
in the attention Mexico gives to its environmental problems.
5.2 The North American Free Trade Agreement (NAFTA) environmental system
The North American Free Trade Agreement contributed to the concrete conformation
of what could be called a system of regional environmental instances that greatly influences
national attention given to environmental problems in Mexico.
When the Mexican Senate approved NAFTA on November 1 B, 1993, that Treaty and
the Parallel Agreements became supreme law in Mexico, as established by our constitution. In
this manner, new environmental and ecological commitments, as well as commercial
commitments, were integrated into our legal structure.
In this sense, both paragraphs of Art. 1114 of NAFTA deserve special attention. The
first establishes that the Parties will" be able to adopt measures to insure that investments in
their territory will keep environmental disquietudes in mind; and the second recognizes the
inadequacy of promoting investment through relaxed internal measures related to the
environment, and consultation is envisioned when one Party believes the other Party to have
promoted investment through the denouncement or reduction of application of environmental
measures. 2
It is also worth mentioning that Art. 104, on the relation between NAFTA and other
agreements on environmental and conservation issues, establishes that In the case of
incompatibility between NAFTA and specific commercial obligations contained in instruments
including CITES (Convention on International Trade of Endangered Species), the Montreal
Protocol on the ozone layer, or the Basilea Agreement on transborder movements, the latter
will prevail over NAFTA. 3
Two pillars of the system of regional environmental instances are the North American
Commission for Environmental Cooperation (NACEC), consisting of Mexico, United States
and Canada, headquarters in Montreal; and the Border Environmental Cooperation
Commission (BECC), between Mexico and the United States, with headquarters In Ciudad
Juarez.
The negotiations on the Environmental Cooperation Agreement, together with its
parallel labor agreement, concluded on August 12,1993. The introduction of these negotiations
when negotiations had already concluded on NAFTA represented an indisputable political
-------
AZUELA DE LA CUEVA, ANTONIO 93
element. Nevertheless, that is no reason for regional environmental cooperation to cease
being an expression of what Gabriel Quadri deems "the interests of modern societies in
environmental issues."
The supreme organ of the Environmental Cooperation Commission is the Council,
formed by the three environmental ministers from member countries. The executive area is
headed by a Secretariat, chaired over by an Executive Director. The advising body is the Joint
Public Advisory Council (JPAC), composed of 15 members, five from each country.
The fundamental objectives of the NACEC are: to encourage protection and
improvement of the environmental; promote sustainable development based on cooperation;
support environmental goals of NAFTA; improve environmental laws and practices; promote
society's input on environmental policies, and prevent pollution.
Also, the Agreement that established the Border Ecological Cooperation Commission
(BECC) and the American Development Bank (NADBANK) was signed on November 16,
1993. Their vinculum to the aforementioned instruments is shown in the points considered, the
last of which establishes the will to "promote the goals and objectives of the North American
Free Trade Agreement... and the North American Agreement of Environmental
Cooperation..."
The main objectives of the Commission are: to provide technical and financial planning
assistance to ecological infrastructure projects presented In the border zone. Said projects
should comply with those technical, financial and environmental the Commission decides to
apply, as well as with environmental legislation and other legal provisions of the area in which
they are located.
The works of the Commission are closely related to those of the Development Bank of
North America, since one of the latter principal functions Is to finance environmental infrastructure
projects certified by the Commission. It can also promote and complement private investment
in said projects.
The Border Ecological Cooperation Commission is headed by a Board of Directors
made up often directors (five from each country). In addition, it has an Advisory Council made
up of 18 members (nine from each country), who represent the state and municipal authorities
from all the border states, as well as community members from the region and nongovernment
organizations.
The system formed by both commissions is becoming consolidated as a group of
regional environmental forums whose interrelation and influence is indisputable. In the case of
Mexico, there are two central aspects to this influence: first as generators or sponsors of
environmental projects, and second as mechanisms to provide follow-up to environmental
problems and techniques of application of the law in Mexico.
One of the most outstanding characteristics of the Commission is the process of
consultations for the certification of environmental projects. Participants in the forums include
representativesfrom communitiesin the region, state or municipal authorities, nongovernmental
organizations, and academic, scientific or intellectual personalities. One of the main objectives
of public participation is to determine whether the projects proposed for certification comply
with selection criteria established by the Commission, which were also designed through public
participation.
Seven public sessions of the Directive Council have been held, as well as more than
twenty informative sessions in different localities along the border of both countries.
We must point out, in this context, the dynamic developing around environmental issues
in the border zone between Mexico and the United States. In addition to the Border Ecological
Cooperation Commission, also active in the region are work groups established by the La
-------
94 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Paz Agreement of 1983 between the two neighboring countries and Border XXI currently in
development, and which will integrate the contributions of all national and international
organizations in charge of environmental actions.
Although not directly linked, other forums in the region have been opened to the
North American Commission for Environmental Cooperation (NACEC), whose work programs
include some related to the protection of natural resources and attention to the trafficking of
hazardous waste along the borders of Canada-United States and United States-Mexico.
Undoubtedly, environmental actions in the border region in the north of Mexico
must be followed very closely, since the area will undoubtedly provide very significant
experiences, not only for those nations directly affected, but also, in a broader scope, for
environmental cooperation between industrialized nations and developing countries.
REFERENCES
1. Branes, Raul: Manual de Derecho Ambiental Mexicano Fondo de Cultura
Economica, Mexico, 1994.
2. North American Free Trade Agreement, Official Text SECOFI 1993, pg. 398
3. Op. Cit pg. 8
-------
THEME # 2: PRINCIPLES OF ENVIRONMENTAL.COMPLIANCE AND ENFORCEMENT 95
THEME #2:
PRINCIPLES OF ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT
Theme 2 papers cover:
• Defining Compliance and Enforcement
- The need to consider compliance and enforcement at every stage in
the development and implementation of environmental laws and
programs.
- The philosophy of compliance, enforcement theories, andwhetherand
how culture makes a difference.
• General Framework for Compliance and Enforcement
- designing enforceable requirements;
- identifying the regulated universe and setting priorities;
- promoting compliance through enforceable requirements, technical
assistance, and outreach;
- monitoring compliance;
- establishing and using enforcement authorities.
- defining intergovernmental roles; and
- establishing accountability and measuring results.
1. Building International Networks, Cooperation, and Capacity for Environmental
Compliance and Enforcement: A Progress Report, C. Wasserman 97
See related papers from other International Workshop and Conference Proceedings:
1. The Principles of Environmental Enforcement and Beyond: Building Institutional
Capacity, C. Wasserman, Volume I, Oaxaca, Mexico
2. Principles of Environmental Enforcement, C. Wasserman, Volume I, Budapest,
Hungary
-------
96 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3. Developed for Conference use in conjunction with alternative workshop topics for the
Principles of Environmental Enforcement training courses are stand alone technical
support documents which summarize the environmental problems, pollution prevention
and control alternatives, selected institutional approaches and an annotated
bibliography on the topics of:
• Mining (metallics and minerals)
• Petroleum refining and petrochemicals
• Residential and industrial waste (solid) disposal
• Tourism
• Deforestation
• Transboundary Illegal Shipments of Hazardous Waste, Toxic Chemicals
(Pesticide), Contraband CFC
These technical support documents are available on request from the editors.
-------
WASSERMAN, CHERYL E. 97
BUILDING INTERNATIONAL NETWORKS, COOPERATION, AND
CAPACITY FOR ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT:
A PROGRESS REPORT
WASSERMAN, CHERYL E.
Associate Director for Policy Analysis, Office of Federal Activities, Office of
Enforcement and Compliance Assurance, U.S. EPA, MC-2251-A, Washington D.C.
20460, USA
SUMMARY
An international collaboration to build effective environmental compliance and
enforcement programs is leaving a lasting legacy through a series of biennial international
conferences, development of international workshops, published proceedings and studies,
and support for ongoing networking and cooperation. The Fourth International Conference
on Environmental Compliance and Enforcement to be held in Chiang Mai, Thailand, April,
1996, is significant both as an event and as demarcation of the progress that has been
made in a little over a decade, including: 1) an international mandate and consensus on the
importance of dedicated programs for environmental compliance and enforcement to the
achievement of domestic and international environmental goals, sustainable development
and free trade; 2) adoption of common definitions, principles and a framework for international
exchange; 3) development of 12 international workshops, 6 technical and 6 capacity building
support documents; 4) exchange of experiences of well over 65 country programs and expert
views on over 25 special topics in widely disseminated conference proceedings; 5) exponential
growth in networking supported by an accessible databank and years of research reflected
in over 200 governmental and nongovernmental officials from 100 countries and international
organizations invited and confirmed to attend the Fourth International Conference; and 6)
emergence of new institutional arrangements for ongoing regional and international networking
and cooperation.
This paper provides a brief overview of the importance of building capacity for
environmental compliance and enforcement program success; what this international
partnership has been able to achieve and what might be needed to continue this progress
into the next century.
1 INTRODUCTION
The series of four biennial international conferences on environmental compliance
and enforcement has given a voice to what has for too long been the silent and difficult task
of getting compliance with and enforcing environmental requirements. Achieving real results
and changing behavior to meet environmental requirements is a daunting task. Serious
threats to public health and the environment (e.g. from unhealthy air, unsafe drinking water,
discharges of raw or partially treated sewage into our waterways, dumping of hazardous
and toxic chemicals onto our land and into our waters, flooding from unchecked deforestation
and unauthorized land management practices, loss of habitat, ecosystems, and biodiversity,
and/or release of ozone depleting substances), continue unabated unless this job is done
-------
98 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
and done well, and yet how to achieve compliance with environmental requirements is often
ignored until well after problems are identified and laws or international agreements have
been put in place. Overcoming obvious challenges and barriers to compliance is not a job
for the faint hearted (See Figure A1-3). Nor is this job for those who would go charging at
the problem without sound technical support or strategic sense, actions which have resulted
in opposite and equal reactions, creating political backlash rather than support. Effective
environmental compliance and enforcement requires the doggedness of a good journalist,
the finesse of a statesman, and the understanding of a psychologist to meld together a
balanced program which addresses the range of motivations and obstacles to get people
and institutions to comply. While monitoring compliance and taking legal enforcement
response to impose legal sanctions and consequences for violators is at the heart of any
compliance and enforcement program, there is much more involved.
Networking has proved to be a powerful force internationally to help design and
implement more effective compliance and enforcement programs. Ironically, while laws and
cultures are so very different that many now seek harmonization and simplification, the
elements of environmental compliance and enforcement strategy have resonated to common
principles and frameworks which have human nature at their core. These common human
threads have transcended the potential barriers to networking among governmental and
nongovernmental officials from 117 countries and international organizations coming together
over the course of a decade and learning from each other.
The multinational commitment to capacity building, networking, and cooperation
has few parallels. A bilateral exchange between the United States' Environmental Protection
Agency (U.S. EPA) and the Netherlands' Ministry of Housing, Spatial Planning and the
Environment (VROM) in 1985 under a Memorandum of Understanding led to the First
International Enforcement Workshop in Utrecht, the Netherlands in 1990. Since then, the
Netherlands' Inspector General for the Environment and U.S. EPA's Assistant Administrator
for Enforcement and Compliance Assurance continue to provide leadership, co-chairing
and staffing the Executive Planning Committees for the conferences. The Executive Planning
Committee and conference sponsors have steadily expanded. By the time of the second
International Conference on Environmental Enforcement held in Budapest, Hungary,
September, 1992, sponsorship had already expanded to include the European Commission,
along with the gracious support from Hungary as host country. The Executive Planning
Committee also included the United Nations Environment Program's Industry and
Environment center (UNEP I/E), the Regional Environmental Center in Budapest, the
governments of Poland, Hungary and what was then the Czech and Slovak Federated
Republic (now two independent Republics) and the World Wildlife Fund, involving NGO's for
the first time. The Third International Conference held in Oaxaca, Mexico, in April 1994,
expanded its sponsorship further to include UNEP I/E as a full sponsor, the World Wildlife
Fund (WWF) and Mexico's SEDESOL (now PROFEPA). The Executive Planning Committee
included the sponsors plus Canada, Costa Rica, Chile, Venezuela, Jamaica, Nigeria, and
Indonesia, The location of the Conference in Mexico highlighted the importance of reaching
not only industrialized economies, and those in transition, but also those with developing
economies.
The Fourth International Conference sponsors include not only VROM, U.S. EPA,
and UNEP UNEPI/E serving as the three anchors, but also Thailand's Pollution Control
Department, Environment Canada, the European Commission and the Environmental Law
Institute, U.S. The Executive Planning Committee includes UNEP's Environmental Law
Center, the United Nations Development Program (UNDP), the WWF, Canada, Mexico,
Chile, Poland, Hungary, the United Kingdom, Nigeria, Egypt, South Africa, Thailand, Malaysia,
-------
WASSERMAN, CHERYL E. 99
the Philippines, and the People's Republic of China. The location of the Conference in Asia
adds new focus on countries with rapidly industrializing economies to those of industrialized,
transitional, and developing economies highlighted at prior conferences.
In partnership, an international collaboration has been able to achieve what few if
any countries or international institutions could achieve alone. The Executive Planning
Committees for the succession of four international conferences have come to perform a
role analogous to that of an Executive Board of Directors, guiding and catalyzing international
capacity building efforts. The exchanges, networks, and cooperation have strengthened
individual country programs, created the base of experience to support international and
country commitments to environmental compliance and enforcement programs, put newly
developing programs on a fast learning curve, and accelerated evaluation and learning from
what works and does not for those wishing to enhance existing programs. Figure 1 is a
telling portrait of this progress.
Since 1990, and every two years since, the number of countries and international
organizations participating in the international conferences has doubled from Utrecht to
Budapest, and from Oaxaca to Chiang Mai. We have shifted our locations to build a stronger
regional as well as international networking capacity from Western Europe, to Central and
Eastern Europe, to Latin America, and now Asia. Another shift was the presence, at the
Budpest Conference and thereafter of nongovernmental organizations, both citizen groups
and international industry organizations. Exponential growth in the numbers and
representation of governmental and nongovernmental officials participating in the Conferences
is directly related to the contacts and relationships established at previous conferences. All
participants are personally invited based upon their ability to influence the design or
enhancement of environmental compliance and enforcement programs.
The development of improved environmental compliance and enforcement programs
can be traced like stepping stones from one exchange to the next, each country and international
organization benefitting from the experiences of the others, offering their own unique contribution
to successes around the world.
2 INTERNATIONAL CONSENSUS ONTHE IMPORTANCE OF ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT PROGRAMS, NETWORKING AND
COOPERATION
Heightened global activity to advance environmental compliance and enforcement
programs derives from four basic concerns: 1) a concern for environmental quality and
protection of public health; 2) a concern for economic prosperity; 3) a concern about fairness;
and 4) a concern for the credibility of our laws and institutions. (See Annex 1, figure 2).
Over the past ten years, it is clear that successful environmental compliance and enforcement
of environmental law are essential to achievement of domestic and international environmental
goals, cleaner production, sustainable development and international free trade. Together
with public demand for environmental accountability, these concerns are in turn driving
enhancement of environmental enforcement. Concerns about pollution havens, economic
pressure to reduce environmental protections, potential erosion of environmental quality in
countries where institutions were not sufficiently developed to address environmental issues
have been central to the debates not only on the North American Free Trade Agreement
(NAFTA) among Canada, the United States and Mexico, but also within the European
-------
100
FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Building I nternationa I ''(En vf witmf|§|pP
.Compliance andjl^
International Conferences Leave
A Growing Legacy
250
2OO
150
1 OO
5O
Individuals Participating
Countries and International
Organizations Participating
1985
OECD
Enforcement
Project
USEPA/VROM
Memorandum of
Understanding
1990
First
UTRECHT,
The
Netherlands
1992
Second
BUDAPEST,
Hungary
1992
Third
OAXACA,
Mexico
1996
Fourth
CHIANG MAI,
Thailand
....More countries
and international
organizations are
sharing
experiences
....More
International
Workshops
and Technical
Support
Documents
are
available
1985 1990 1992 1994 1996 Total
1991
1996
Capacity Building and
Support Documents
UNEP Institution-
Building Workshops
New Principles
Workshops and
Technical Support
Dcuments
Principles of
Environmental
Enforcement Training
-------
WASSERMAN, CHERYL E. 101
Community and within the Asia-Pacific region as well. Clear signals are being sent that
those countries wanting to engage in free trade, need to meet some minimum level of
competency in establishing environmental standards and ensuring compliance with them.
3 ACCOMPLISHMENTS OF INTERNATIONAL CONFERENCES AND
RELATED NETWORKING
3.1 International mandate for environmental compliance and enforcement programs
One of the most important outcomes of the first International Enforcement Workshop
in 1990 was the participant recommendation that enforcement appear on the agenda at the
United Nations Conference on Environment and Development (UNCED), planned for Rio de
Janeiro, Brazil in 1992. Although enforcement was not specifically a topic at the UNCED, a
more significant result emerged in Agenda 21, Chapter 8, Section (e) 8.21. This established
an international mandate to build compliance, compliance monitoring and enforcement
capacity as an essential element of environmental management, starting with ensuring that
laws and regulations be enforceable. Language in Agenda 21 also empowered UN
organizations to more actively support compliance and enforcement institution building
activities. Public accountability provided by such governmental compliance and enforcement
programs was undergirded by support for a strong public role in decision making throughout
Agenda 21. (See Figure 2).
Agenda 21, Chapters, Section (e) 8.21, establishes an international mandate
to build compliance and enforcement capacity as an essential element of
environmental management:
(e) Develop effective national programs for reviewing and enforcing compliance with national, state,
provincialand local laws on environmentand development
8.21. Each country should develop integrated strategies to maximize compliance with its laws and
regulations relating to sustainable development. The strategies could include:
(a) Enforceable, effective laws, regulations and standards that are based on sound economic, social
and environmental principles and appropriate risk assessment, incorporating sanctions designed to
punish violations, obtain redress, and deter future violations;
(b) Mechanisms for promoting compliance;
(c) Institutional capacity for collecting compliance data, regularly reviewing compliance, detecting
violations, establishing enforcement priorities, undertaking effective enforcement, and conducting periodic
evaluationsof the effectivenessofcomplianceandenforcementprograms;
(d) Mechanisms for appropriate involvement of individuals and groups in the development and enforcement
of laws and regulationson environmentand development.
Figure 2. Agenda 21 Language on Environmental Compliance and Enforcement.
Of perhaps equal significance are related voluntary initiatives by the business
community to support compliance with environmental requirements. At the UNCED,
organizations such as the International Chamber of Commerce and the Business Council for
Sustainable Development presented consensus statements on the need for more effective
environmental management. Indeed, the International Standards Organization's international
-------
102 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
standards on environmental management systems, ISO 14001, are predicated on a
commitment from top management to both environmental compliance and prevention of
pollution. (See Figure 3).
Excerpts from Voluntary International Standards for Environmental
Management Systems, which include a commitment to environmental
compliance: the International Standards Organization ISO 14001
Environmental Management System Requirements:
4.1 Environmental Policy Top management shall define the organization's environmental policy and
ensure that it:
c) includes a commitment to comply with relevant environmental legislation and regulations, and with
other requirements to which the organization subscribes;
4.2.3 Objectivesand Targets The organizationshallestablish and maintain documented environmental
objectives and targets, at each relevant function and level within the organization. When establishing
and reviewing its objectives, an organization shall considerthe legal and other requirements
The objectives and targets shall be consistent with the environmental policy
4.4.1 Monitoring and Measurement The organization shall establish and maintain a documented
procedurefor periodically evaluatingcompliancewithrelevantenvironmentallegislationand regulations.
Figure 3. Excerpts From Voluntary International Standards for Environmental
Management Systems
3.2 Principles and frameworks for international exchange
A common international framework, definitions and principles for international
exchange now provide a basis for international exchange after being introduced at the Second
International Conference in Budapest, Hungary in 1992 with this purpose in mind. These
principles emerged from the first International Enforcement Workshop held in Utrecht, the
Netherlands, May 1990, based upon principles and frameworks used to describe the U.S.
program. Participants recognized a common need to change human behavior to get results
intended by environmental requirements that transcended differences in laws, customs, and
legal systems. These frameworks were originally developed to better articulate a consistent
philosophy and approach to inspire improved enforcement among the 50 states and numerous
local government entities in the U.S. after a two-year decline in enforcement. At the beginning
of 1991, Poland's Ministry of Environmental Protection, Natural Resources, and Forestry,
represented at the first International Enforcement Workshop requested enforcement training
and provided a unique opportunity to take these principles and frameworks out of a U.S.
context, and to develop them for international use. Drawing on international experiences
shared at the first international workshop, the text and course were developed to offer a rich
menu of options for ways to develop programs. The "Principles of Environmental Enforcement"
text and associated training exercises, role-playing and case-study materials were developed
by U.S. EPA in cooperation with both Poland's Environment Ministry and the Netherlands's
environment inspectorate (VROM) for enforcement training with broad international
applicability. The Principles of Environmental Enforcement Training has now been offered in
over 13 countries and translated into 9 languages.3 The definitions, principles and framework
are summarized in Annex 1 to this paper and the course is described more fully in Annex 2.
-------
WASSERMAN, CHERYL E. 103
The framework covers seven elements:
• Creating requirements that are enforceable.
• Knowing who is subject to the requirements and setting program priorities.
• Promoting compliance in the regulated community.
• Monitoring compliance.
• Responding to violations.
• Clarifying roles and responsibilities.
• Evaluating the success of the program and holding program personnel
accountable for its success.
The Executive Planning Committees for the Third and Fourth International Confer-
ences included a one-day version of the training at the Conferences to provide a common
basis for discussions. To ensure wider applicability, new case study subject areas were
commissioned to augment the original case study concerned with air pollution from coal as
an energy source and use in the coking process for steel fabrication. The new topics in-
cluded mining, petroleum refining and petrochemicals, residential and industrial waste dis-
posal, tourism, deforestation and transboundary illegal shipments. The broader subject matter
of the new Principles of Environmental Enforcement workshops did much to blur some of
the sharp lines dividing green and brown issues within the environmental community. It
demonstrated a common framework within which one could learn from each other, whether
the concern involves tourism and forest management or industrial and municipal pollution.
Six stand-alone technical support documents for each of these new subject areas provide
an overview of the kinds of environmental problems, pollution prevention and control op-
tions that are available to both address the public outreach issue and to enable officials
throughout the world to begin tapping into the expertise available to address these prob-
lems. (See Figure 4.)
The problems portrayed in the fictitious case studies at the Third International
Conference were echoed by real life examples described in the papers in the Fourth Conference
Proceedings. These include papers from Barbados which mirror the tourism case study and
technical support document, the paper from Guyana on compliance and enforcement problems,
which mirrors the mining case study and support document, the experiences of Nigeria, China
and the Netherlands in transboundary illegal shipments of hazardous waste, and the Dominican
Republic in addressing deforestation.
3.3 Development of international workshops, technical and capacity building
support documents
The Principles of Environmental Enforcement International Training was followed
by a second and complementary set of training modules and workshop materials. In 1992,
UNEP published "From Regulations to Industry Compliance: Building Institutional
Capabilities". The report, two years in the making, was designed to provide government
officials and other concerned actors with guidance on building institutional capabilities to
implement their environmental laws with an integrated approach so that waste and pollutants
are not simply transferred between media, e.g. air to water or water to land, but are actually
reduced at the source. Ideas and concepts illustrate the importance of legally binding industrial
facilities to established environmental standards and to check that they are meeting them.
Examples of countries' experiences were selected to show the incremental steps that can
be taken with even minimal personnel and resources when there is sufficient political will.
-------
104 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Requests of UNEP from officials in developing countries and transitional economies
of East and Central European to help them apply the concepts and integrated approaches
outlined in UNEP's publication resulted in the development of UNEP's Institution Building
Workshops for Industrial Compliance. The workshops were developed with the Netherlands
in cooperation with U.S. EPA with additional members of an Advisory Committee with
members from Mexico, France, Egypt, and Poland to ensure the materials are helpful to
developing nations and transition economies. A draft Manual and four case studies with
facilitation materials were piloted at the Third International Conference on Environmental
Enforcement, picking up where the Principles of Environmental Enforcement leave off,
exploring in four different modules:
• Organization of permitting, compliance monitoring and enforcement
programs.
• Human, financial and information resources for the above programs.
• Permitting processes for industrial facilities to enhance compliance.
• Compliance monitoring and enforcement capability.
International Workshops and Related Technical and Capacity Building
Support Documents:
Principles of Environmental Enforcement International Training Course
• Principles of Environmental Enforcement Text
• Technical Support Documents:
- Coal burning, iron and steel (first case/no support document);
- Petroleum refining and petrochemicals;
- Metallic ore and minerals mining;
- Residential and industrial (solid) waste disposal;
- Deforestation;
- Tourism; and
- Transboundary illegal shipments of hazardous waste, pesticides and contraband
CFC.
UNEP Institution Building Workshops on Industrial Compliance: comprised of 4 Modules
• 1-Organizingpermitting,compliancemonitoringandenforcementprograrns, 2-Financing
and budgeting resources for compliance and enforcement programs, 3-Enforceable
Permitting Processes, 4-Compliance Monitoring and Enforcement
Capacity Building Support documents
• Organizing permitting, compliance monitoring and enforcement programs
• Financing and budgeting resources for compliance and enforcement programs
• Comparative study of source compliance self-monitoring requirements
• Comparative study of multi-media inspection protocols
Communications and Enforcement Workshop
• Communications Strategies for Enforcement
Inspector Training and related technical materials with process and prevention information
• Student text: Conducting Multi-Media Inspections
• Technical Information on Selected Industry Processes
- Furniture finishing
- Electroplating
- Printed circuit boards
- Wood Preservation
- Rock Crushing and Cement Production
- Injection Molding
Figure 4. International Workshops and Related Technical and Capacity Building Support
Documents
-------
WASSERMAN, CHERYL E. 105
To reinforce the common basis for international capacity building, the overview to the manual
is a summary of the "Principles of Environmental Enforcement."
The Executive Planning Committee for the Fourth International Conference also
specifically commissioned several capacity building support documents to enrich the basis
for exchange (See Figure 4). These build upon areas identified in the Principles of
Environmental Enforcement and UNEP training workshops and other topics of interest at
the international conferences. The capacity building support document on organizing
programs compares 10 country programs and how they address issues such as the degree
of centralization, placement in the hierarchy, degree of consolidation of functions, single or
multimedia organization. The support document on financing and budgeting provides
information on more than 60 country programs along with key concepts in budgeting and
financing. The comparison of source compliance self-monitoring, reporting and record keeping
requirements illustrates how over ten different countries leverage scarce inspection resources
and ensure the regulated community has sufficient information to achieve compliance through
self-monitoring and reporting requirements. It explores how each country considers technical
feasibility, cost to medium and small business, and management of the information. The
international comparison of multimedia (integrated) inspection protocols should help countries
continue to explore the relative advantages and disadvantages of single and multimedia
approaches. Finally, a new workshop and capacity building support document are available
on communication strategies for enforcement. This is a particularly important topic given the
importance of spreading the word about enforcement and gaining the support of an educated
and supportive citizenry to make each enforcement action count.
3.4 Exchange of experiences of well over 65 country programs and expert views
on over 25 special topics in published and widely disseminated conference
proceedings
3.4.1 Creating a practical literature on environmental compliance and enforcement
Following each of the International Conferences, Volumes of the Proceedings are
widely disseminated to enforcement and environmental officials in virtually every nation
around the globe. The Proceedings contain papers by country and special topic experts,
opening speeches, results of workshop discussions, conference evaluations and additional
papers. These proceedings clearly reflect a realization of several goals of Conference
organizers in the increasing number of country experiences profiled, the increasing number
of topics around which experiences are summarized, and the increasing sophistication of
the papers that are the subject of these communications. Papers are solicited to provide
information on the evolution of a program or activity, what works and does not work, factors
leading to success or failure, and clarity needed to be understood and potentially serve as a
learning experience for others. For the Fourth International Conference in Chiang Mai papers
from over 55 countries and international organizations will bring the total from four conferences
to well over 67 country programs having been profiled. (See Figure 5.) Through papers and
reports by rapporteurs at over 25 special topic workshops, the state of the art in official
experiences in that topic is captured (See Figure 6).
-------
106 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Countries and International Organizations with Participants at the
International Conferences
# Countries and Organizations by Region
17 Africa:
Benin, Botswana, Cameroon, Egypt*, Ethiopia, Ghana, Kenya, Malawi, Nigeria*, Senegal*,
Sierra Leone, South Africa, Tanzania*, The Gambia, Tunisia, Uganda*, Zimbabwe*
19 Asia: Australia. Bangladesh, Bhutan, Cambodia, Hong Kong*, India, Indonesia*, Japan*,
Malaysia, Mongolia, Nepal*, New Zealand*, Pakistan, People's Republic of China*, the
Phillippines*,Sri Lanka, Taiwan, Thailand*, Vietnam
9 Caribbean:
Aruba, Bahamas, Barbados*, Curacao, Dominican Republic*, Jamaica, St. Lucia, St. Maarten,
St. Vincent
19 Central and South America:
Argentina*, Belize, Bolivia*, Brazil, Chile, Colombia*, Costa Rica*, Ecuador, El Salvador*,
Guatemala*, Guyana*, Honduras*, Nicaragua*, Panama, Paraguay, Peru*, Suriname, Uruguay,
Venezuela
3 North America: United States*. Canada*. Mexico*
6 West Asia and Middle East: Bahrain, Israel*, Jordan, Kuwait, Oman, United Arab Emirates
12 Western Europe: Austria. Belgium*, Denmark*, Finland, Germany*, Greece, Italy, Norway*,
Sweden*, Switzerland.TheNetherlands*, United Kingdom*
16 Central and Eastern Europe/NIS:
Albania, Armenia*, Bulgaria*, Croatia.Czech Republic*, Estonia, Hungary*, Kazakhstan,
Latvia, Lithuania*, Montenegro, Poland*, Romania*, Russia*, Slovak Republic, Ukraine*
16 International Organizations: Asian Development Bank, Commission of the European
Communities*,EnvironmentalLawlnstitute*,GlobalEnvironmentalManagementlnitiative*,
Inter-AmericanDevelopmentBank, InternationalChamber of Commerce*, INTERPOL*, North
America Commission for EnvironmentalCooperation (NACEC), Organization of American
States, Organizationfor EconomicCooperation and Development, Regional Environmental
Center*, United Nations EnvironmentProgram,l/E*, UNEP ELI, United Nations Development
Program*, United Nations Crime Unit*, World Bank*, World Wildlife Fund*
* Indicates sources of papers in Conference proceedings
Figure 5. Countries and International Organizations With Participants at the
International Conferences
3.4.2 Example conclusions from workshops and theme discussions
• Challenges to initiating environmental compliance and enforcement
programs
Challenges to environmental enforcement are present whether one is
establishing a national environmental enforcement program or enforcing
at a regional level, whether starting from scratch or improving the
implementation of an existing program. First, a catalyst is needed to
break the inertia of inaction about compliance problems. Second, there
is a constant search for funding and trained personnel. Third, interagency
conflicts and provincial/federal jurisdictional conflicts must be resolved
or they will impede progress. Fourth, political instability in particular
plagues the advances in many programs. Fifth, creative and even
courageous interpretation of laws are often necessary to begin
constructive response to environmental problems. Finally, national
commitments have to be supported by international cooperation and an
involved public.
-------
WASSERMAN, CHERYL E. 107
Special Topics Addressed at Four International Conferences for which
Papers and Discussion Summaries are available:
Automation and Enforcement: available support systems (4th)
Strategictargetingforenforcement(4th)
Strategies, tools and management systems (1 st)
• Integrated permittingand enforcement (4th)
• Compliance monitoring (2nd, 4th)
• Role of police in enforcement (3rd)
Promoting voluntary compliance: environmental auditing, outreach,
incentive programs (3rd, 4th)
Measures of success (1st, 4th)
Communicationsand enforcement (2nd, 3rd, 4th)
Public role in enforcement: How to go about creating and supporting effective
citizen enforcement (2nd, 3rd, 4th)
Criminal enforcement: INTERPOL, role of criminal enforcement (3rd, 4th)
Enforcementof economic instruments (3rd, 4th)
• Take-backlawsenforcement(4th)
• Creatingenforceablepermitprogramsand requirements (2nd, 4th)
General, hazardous and solid waste (2nd)
Focus on water pollution and contamination of drinking water supplies (4th)
Transboundary illegal shipments/ imports and exports of hazardous waste, toxic chemicals,
contaminated product, pesticides, contraband CFC (1st, 2nd, 3rd)
Montreal Protocol: enforcement of CFC and related requirements (1st, 3rd, 4th)
Enforcing domestic programs implementing international agreements (1 st, 4th)
Establishing international networks (3rd, 4th)
Collaborativeinternationaltargetingofenforcement(4th)
Organizing Programs (2nd, 3rd, 4th)
Financing Programs (2nd, 3rd, 4th)
Intergovernmentatenforcementrelationships(lst)
Enforcement policy and authorities (1 st, 2nd, 4th)
Field citation and related administrativeenforcement programs (3rd)
Enforcing the law at government owned or operated facilities (2nd, 3rd)
• Enforcing in economically depressed circumstances/areas (2nd, 3rd)
Privatization as an opportunity to enhance compliance (2nd)
Numbers reflect proceedings from conferences in which the topics were discussed and papers and
discussion summaries available.
Figure 6. Special Topics Addressed at Four International Conferences
• Institution building
The important message in institution building is to start. Many country
examples are now available which suggest some common experiences
that might be applicable in many different settings. Norway's experience
suggests that it is best to create an independent enforcement and
inspection function as their program evolved from an integrated permit
and compliance program in which personnel had multiple roles to one
with discrete functions to improve professionalism. Mexico's experience
with extensive training programs for their inspectors is part of a larger
effort to improve interagency coordination and decentralize enforcement.
The Netherlands has established coordinating councils to organize
response to violations among several agencies at different levels of
government efficiently and to address all aspects of the problem.
-------
"108 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• Transboundary export/import of illegal shipments of hazardous
waste, pesticides and ozone depleting substances
If ever there were a need for networking and cooperation it is the
transboundary shipments issue. Complicated to detect, and facing an
increasingly cynical community which is creating ways to evade detection
as quickly as they are discovered, several obstacles to gaining strong
controls on the export and import of illegal shipments still exist. In
particular, the search for a clear and consistent definition of hazardous
waste continues to be a challenge, and detection requires extensive
coordination of departments within governments and internationally.
Exporting nations need to take more responsibility for promoting
compliance given the lack of full understanding of international
requirements. Lack of strong requirements in some developing countries,
that are sufficient to protect them from improper disposal of hazardous
waste is still a problem. To effectively control export and illegal import
there is a need to continue the ongoing international efforts to share
information and develop regulatory and institutional frameworks through
Interpol, Basel Convention implementation and local regional cooperative
arrangements . The Proceedings of the Fourth Conference offer Nigerian
and Dutch views on tricks of the trade, U.S. tips for investigation
strategies, and China's experience in assessing responsibility and
working with the full range of actors to resolve problems.
• CFC controls to implement the Montreal Protocol
Several developed nations have begun aggressive enforcement
programs aimed at implementing the goals of the Montreal Protocol.
However, many developing countries and some developed countries
have not yet begun to achieve the international goals set by the Montreal
Protocol due to lack of support, lack of funding and lack of capacity. As
CFC containing materials are banned, illegal exports, particularly to
developing countries, are increasing and there is a particular need for
cooperation and transfer of knowledge.
• Government owned and operated facilities
It is essential for the credibility of compliance and enforcement programs
and achievement of environmental goals that government owned and
operated facilities be held accountable for compliance in the same
manner as private sector facilities. Although there is significant public
support for the idea that governments should live up to the environmental
standards they set for their citizens, legal and political barriers make this
idea very hard to implement. A variety of approaches and institutions
are necessary to produce environmental compliance and cleanup at
government facilities. Most important are an independent judiciary,
funding for compliance and cleanup, public awareness and involvement,
and enforceable requirements.
-------
WASSERMAN, CHERYL E. 109
Enforcement of economic instruments
Worldwide experience with economic instruments for environmental
protection is still quite limited although a wide range of economic
instruments have been used in developing as well as developed nations.
Experience to date indicates that some types of economic instruments,
especially the more complex ones such as tradeable permits, can require
at least as much enforcement and monitoring as do the more traditional
command-and-control regulations. Economic approaches in fact require
good information and monitoring systems which can also raise costs for
regulated entities. There is real interest in the potential of economic
instruments to address environmental issues more efficiently. However,
this interest is tempered with caution, particularly in developing countries,
given the difficulty of implementation and the fact that a firm regulatory
and enforcement base is often required.
Role of communications
There is widespread agreement that an informed and supportive citizenry
is essential to achieve the political support for enforcement, and
communication of enforcement actions is essential to gain the deterrent
impact of enforcement response.
- Public disclosure: led to major pollution prevention efforts instead of
cleaning up pollution at the end of the pipe. The press can be a
major ally in helping to improve compliance and implement
enforcement programs.
- Citizen enforcement: plays 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. Governments need to support NGO participation in the
enforcement process.
Enforceable requirements
A major theme at the second international conference was how to
establish enforceable requirements. Criteria, checklists, and country
experiences are now available in Conference proceedings, and results
reported, particularly in regard to hazardous and solid waste. Shared
problems with definitions, and confusing requirements mingled with the
need for improved waste management approaches and waste
minimization were discussed and described in conference papers. The
Fourth International Conference continues to explore this topic with a
focus on safe drinking water.
Voluntary compliance
Voluntary compliance programs (i.e. programs to encourage and promote
compliance, not compel compliance through legal process) are important
to achieving compliance, especially as a complement to a regulatory
framework and strong enforcement program. Countries which are just
-------
FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
developing their regulatory and enforcement framework may only be
able to begin with voluntary compliance efforts, but such initiatives are
strongly encouraged, even though their effectiveness will be far greater
once enforcement and regulatory frameworks are in place. Approaches
need to examine all aspects of compliance, using all motivations,
particularly public pressure and concern for market share. The role of
media is important in raising public awareness.
For small or economically marginal business, the goal of voluntary
programs might be compliance with the law, whereas large or more
profitable businesses can be encouraged to go beyond compliance to
reduce waste and prevent pollution. There are significant benefits to
promoting environmental auditing by companies and policies should avoid
discouraging self audits. Environmental education can change behavior
in early years, establish environmental values, and provide for public
pressure for compliance.
Enforcement policies and authorities
Conference papers and workshops have explored the use of
administrative, civil judicial and criminal enforcement, their relationships,
and relative strengths, human resource requirements and program
implementation.
- Creative new authorities to balance risk, compliance and ability to
pay considerations: Polish and Czech officials have recently
developed enforcement response policies and authorities which they
are calling "compliance programs" to better take into account harsh
economic realities while maintaining the rule of law and commitment
to compliance based in part on experiences in the U.S. reported at
the First International Workshop. The U.S. employed negotiated
compliance schedules to address compliance by the iron and steel
industry faced with economic hardship in depressed economic areas,
tough environmental standards to meet quality goals in the heavily
polluted iron and steel bel. The new approaches also seek risk based
pollution prevention and control which may go beyond what is required
to comply, employing models similar to those used in the U.S on a
selective basis in creative enforcement settlements which included
supplemental projects to prevent pollution beyond mere compliance
in exchange for somewhat reduced penalties.
- Field Citations: Empowerment of inspectors or field officers to take
complete enforcement action when confronting certain types of
environmental violations was widely viewed as a desirable feature of
an enforcement program. Field citations were felt to have a great
deal of potential for streamlining lengthy administrative enforcement
procedures which have proved to be very frustrating to enforcement
officials around the world. There were a wide variety of approaches
among countries to the authorities given to field officers, ranging from
-------
WASSERMAN, CHERYL E. 111
assessment of a small fine to closure of the facility. Field officers can
include a variety of personnel including inspectors, park rangers and
police officers.
- Criminal enforcement: Countries employ criminal enforcement very
differently, some reserving it for the worst offenses, while the majority
of environmental offenses are criminal in other countries. Most
countries recognize the particular deterrent value of criminal
enforcement in the potential and actual application of jail terms to
violators. Education of judges and hearing officers can be a key factor
in the successful prosecution of environmental crimes. Criminal
enforcement mechanisms can deliver a full range of potential
sanctions and consequences for responding to environmental
violations, and not just jail terms and fines. It is increasingly being
viewed as an important enforcement tool best utilized in an
enforcement scheme which contains multiple response options.
Compliance monitoring
The backbone of any compliance and enforcement program, compliance
monitoring raises may issues including the role and training requirements
for environmental inspectors, relationships to civil and criminal
investigators, relationships to legal staffs, and issues related to potential
roles in promoting compliance, providing assistance, and in enforcement
response. Norway described its experience which led to separation of
the permitting and inspection functions and the use of inspection fees
for inspections augmented by payments to third parties to conduct audits
in the absence of government inspection. Conference exchanges have
also explored issues related to single versus integrated or multimedia
inspections, source self-monitoring record keeping and reporting, and
the use of third party audits. Key results of these discussions include:
- Training and developing expertise: The United States has reviewed
its establishment of the National Enforcement Training Institute,
federal requirements for inspector training and a National Enforcement
Investigations Center which supplements the work of state and
regional inspectors and investigators. In response to a request by
the government of Mexico, the U.S. EPA developed training programs
with Mexico for Mexican inspectors and customs officials which are
equally beneficial to U.S. EPA.
- Third party audits: Several countries have explored ways to augment
their own inspector resources through third parties. For the First
International Workshop, Norway described its experience with the
use of inspection fees for inspections augmented by payments to
third parties to conduct audits in the absence of government
inspection. For the Fourth Conference, the Mexican government
describes an environmental audit program to augment its limited
compliance monitoring resources, which may provide the basis for a
more formal third party system.
-------
112 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
- Role of police: Police offer significant potential to serve as additional
eyes and ears for detecting environmental violations given their
significant number and distribution and a lack of sufficient resources
in environmental departments. Police may play a particularly valuable
role in uncovering and solving environmental crimes and some
countries have developed specialized police to investigate this sort
of criminal activity. Training is essential to make police aware of
environmental infractions, civil and criminal, and to enhance
appreciation of their significance as crimes. Given the need for
technical skills and know-how, the role of police must be carefully
coordinated with that of the environmental department, using different
means applicable to respective countries. The Dutch reliance on their
police corps to investigate and bring criminal enforcement action
inspired outreach within the U.S. to Chiefs of Police and a program
of training and awareness in the State of New Jersey which was
adapted for national use to augment a corps of civil inspectors and
criminal investigators for environmental crimes.
- Source self monitoring and reporting: were identified as key
ingredients for success at the second International Conference where
costs were affordable, as it ensured greater accountability by the
regulated community, provides more complete and timely information,
and shifts some of the cost burden from the government. A new study
comparing country approaches will help further discussions on the
subject.
3.5 Emergence of new institutional arrangements for regional and international
networking and cooperation
The Conferences already have spawned several new institutional arrangements for
regional and international networking and cooperation. IMPEL, the European Enforcement
Network of the European Commission and member states, (which stands for Implementation
and Enforcement of Environmental Law), was largely inspired by exchanges at the first
International Enforcement Workshop on efforts to build the federal/state relationship within the
United States. Several papers have been prepared for the Proceedings of the Third and Fourth
International Conferences on cooperative projects on enforcement to prevent illegal
transboundary shipments of hazardous waste and on notification of new substances. Following
the second Conference in Budapest, Hungary, in 1992 the Regional Environmental Center
helped to foster further exchanges among governmental and nongovernmental officials within
Central and Eastern Europe.
At the Third Conference regional enforcement cooperation was described for North
America under NAFTA. The historic North American Free Trade Agreement and its
environmental side agreements have established an unprecedented level of international
cooperation and mutual support in enforcing environmental laws. A plenary program panel on
international networking and cooperation was presented to stimulate interest to foster ongoing
exchanges and capacity building both regionally and globally based upon natural partnerships
and common environmental challenges. Spontaneously during informal sessions, participants
from the Americas developed the Oaxaca Declaration, committing themselves to work
together to establish a network for helping to build programs. Subsequently the Summit of
the Americas has led to more formalized efforts.
-------
WASSERMAN, CHERYL E. 113
There is enormous activity now in Central and Eastern Europe to enhance
environmental enforcement. Interpol has been strengthened as an institutional mechanism
for exchange of information on environmental crime. The Caribbean basin is coordinating
efforts to protect the Gulf of Mexico and its fragile ecosystems and Central American nations
have joined to enhance and harmonize their environmental laws to achieve sustainable
development goals.
In November of 1994, UNEP and the People's Republic of China's National
EnvironmentalProtectionAgencyorganizedanAsiaregionalworkshoponindustrialcompliance
using its draft UNEP workshop materials with representatives from 8 nations in attendance.
4 A LASTING LEGACY: INSTITUTIONAL ARRANGEMENTS FOR ONGOING
REGIONAL AND INTERNATIONAL NETWORKS AND COMMUNICATIONS
To leave a lasting legacy from the series of conferences it is important not only to
develop and disseminate the proceedings, workshop materials, and related documents — all
tangible products - but also to develop regional and international mechanisms for continued
exchange — leading to appropriate mechanisms for cooperation and shared progress globally
across regions that transcend the biennial conferences.
4.1 Regional networks
The Fourth Conference provides fertile ground and opportunity for participants to adopt
the most appropriate approaches for their own countries and regions. Reports on regional
meetings among officials from Africa, the Americas, South Asia, Southeast Asia and the Pacific,
Central and Eastern Europe, West Asia and Middle East, and Western Europe will summarize
country programs' status and progress, shared problems and challenges, institution building
need and opportunities for support and exchange, proposals for regional and international
networking and cooperation. Both the Principles of Environmental Enforcement definitions
and frameworks and the UNEP workshop materials provide a foundation for discussions.
Each region will report out at the Plenary session discussions on the last day on
these issues. Whatever the subject or avenues of exchange, the Conference organizers are
looking toward an ongoing mechanism which can result in even greater progress reported at
the Fifth International Conference.
4.2 Joining the World-Wide Web
In the interim, steps have and will be taken to create vehicles for exchange which
will be both more effective and less costly than the biennial conferences. By the time of the
Fourth International Conference, a homepage will be ready for use keyed off of Earth 1, U.S.
EPA's homepage. It will sport the Conference logo and logos of its sponsors. It will provide
cross-links to sponsors' homepages to take advantage of materials they have to offer and
provide in electronic form all of the proceedings, technical and capacity building support
documents and workshop manuals created by the international collaboration for widespread
use. As a part of the homepage, there will be an ability to make inquiries, request assistance
or send comments to the Executive Planning Committee and staff on the materials and
issues related to environmental compliance and enforcement.
-------
114 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ANNEX 1
This annex provides a brief synopsis of the "Principles of Environmental Enforcement"
text reprinted in its entirety in the Proceedings of the second International Conference on
Environmental Enforcement held in Budapest, Hungary, September 1992. It offers definitions
of compliance and enforcement, principles, a general framework, and range of options for
addressing each element of the framework for establishing effective compliance and
enforcement strategies and programs in any international setting. It considers the full range of
motivations and barriers affecting compliance behavior, and offers reasons for concern about
effective compliance and enforcement efforts tailored to the specific circumstances and
problems presented.
1 DEFINING COMPLIANCE AND ENFORCEMENT
One of the most difficult challenges for international exchange and enhancement of
compliance and enforcement is finding the proper translation for the terms "compliance" and
"enforcement" in different languages. The following definitions are used:
1.1 Compliance
Compliance is a state in which environmental requirements are met and maintained1.
Environmental management decisions to address environmental problems include many
different choices, ranging from voluntary programs to traditional regulatory approaches, from
economic approaches to liability schemes where individuals or groups are accountable for
consequences of their actions, or involving combinations of these approaches (see Figure
A1-1). Compliance is a concern only where requirements are a part of a management scheme
to achieve environmental goals, whether it involves traditional regulatory approaches or
economic-based requirements, such as the payment of fees.
1.2 Enforcement
Enforcement refers to the use of legal tools to assist in and compel compliance with
environmental requirements, and in some contexts to establish liability or responsibility for
harm to the public or environment from polluting activities2.
For simplicity, "environmental enforcement" has sometimes been used, (for example,
in the titlefor the internationalconferencesand for the "Principlesof Environmental Enforcement"
text and training course), as a shorthand for the term "compliance and enforcement programs".
In this use of the term it encompasses the full range of "carrot and stick" approaches to gaining
compliance, going beyond the above definition to include inspections and other forms of
compliance monitoring (e.g., to find information needed to determine compliance status and
to identify violations) in addition to legal actions to impose some consequences for violating
the law and would also include compliance promotion activities such as technical assistance
and subsidies. Some may prefer to speak in terms of "compliance and enforcement programs"
to ensure that this broader meaning is clear.
-------
WASSERMAN, CHERYL E. 115
Approaches to Environmental Management
Planning
Evaluation
Implementation
Goal Setting
For example:
• Reduce Risk
• Improve and Maintain
Environmental Quality
• Prevent Pollution
* Sustain
Environmental Uses
e.g., Fishing)
• Clean Up Past
Contamination
Selection of
Management
Approach(es)
For example:
• Voluntary
• Regulatory/
command and
control
• Economic/market-
based
• Liability
• Risk-based
• Pollution
• Prevention
Development of
Legal Basis/
Requirements
For example:
• Legislation
• Regulation
• Permits and
Licenses
- Court Cases/
Precedents
• Programs
Development and ™
Implementation of
Strategy/Program
For example:
• Compliance and
Enforcement Strategy/
Program
- Ensuring Enforceable
Requirements
- Priority Setting
- Compliance
Promotion
- Compliance
Monitoring
- Enforcement
Response
- Roles and
Responsibilities
- Evaluation Measures/
Accountability
Systems
For example:
• Compliance
• Environmental
Improvements
• Reduced Waste and
Pollution
Voluntary Approaches Voluntary approaches encourage or assist, but do not require, change. Voluntary approaches include public educa-
tion, technical assistance, and the promotion of environmental leadership by industry and nongovernment organizations. Voluntary approaches
may also include some management of natural resources (e.g., lakes, natural areas, ground water) to maintain environmental quality.
Traditional Regulatory or Command and Control In traditional regulatory or command-and-control approaches, the government
prescribes the desired behavior changes through requirements, then promotes and enforces compliance with these requirements.
Requirements may be imposed through laws, regulations and/or permits and can include:
• Technology requirements.
• Performance-based requirements.
• Work practices or best management practices.
• Testing and/or monitoring, reporting and/or record keeping.
• Bans on certain products or practices.
Marfcet-based/Economlc Incentive Approaches Market-based/economic incentive approaches use market forces to achieve desired
behavior changes. These approaches can be independent of or build upon and supplement command-and-control approaches. For
example, introducing market forces into a command-and-control approach can encourage greater pollution prevention and more
economic solutions to problems. Economic incentive approaches include:
• Fee systems, which tax emissions, effluents, and other environmental releases.
• Tradeable permits, which allow companies to trade permitted emission rights with other companies.
• Of/set approaches, which allow a facility to propose various approaches to meeting an environmental goal. For example, a facility
may be allowed to emit greater quantities of a substance from one of its operations if the facility offsets this increase by reducing
emissions at another of its operations.
• Auctions, in which the government auctions limited rights to produce or release certain environmental pollutants.
• Environmental labeling/public disclosure, in which manufacturers are required to label products so that consumers can be aware of
the environmental impacts of the products Consumers can then choose which products to purchase based on the products' environ-
mental performance.
Liability Some environmental management approaches are based on laws that make individuals or businesses liable for the results of
certain actions or for damages they cause to another individual or business or to their property. Examples of liability-based environmen-
tal management systems include nuisance laws, laws requiring compensation for victims of environmental damage, and laws requiring
correction of environmental problems caused by improper disposal of hazardous waste. Liability systems reduce or prevent pollution
only to the extent that individuals or facilities fear the consequences of potential legal action against them.
Risk based Approaches Risk-based approaches to environmental management are relatively new These approaches establish
priorities for change based on the potential for reducing the risks posed to public health and/or the environment.
Pollution Prevention The goal of pollution prevention approaches is to prevent pollution by reducing or eliminating generation of
pollution at the source The changes needed to prevent pollution can be required eg as part of a command-and-control approach, or
encouraged as voluntary actions.
Figure AM.
-------
116 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
1.3 Compliance and enforcement program
A compliance and enforcement program is an organization, management systems,
and human and financial resources dedicated both to encouraging and compelling compliance.
The terms "compliance program" or "enforcement program" also may be used, although the
most common uses of these terms describe efforts to encourage and compel compliance,
respectively34. These programs are exclusive of efforts to define environmental requirements
through laws, regulations, and permits, but include relationships to ensure that the design and
language for requirements are enforceable.
2 IMPORTANCE OF COMPLIANCE AND ENFORCEMENT CONCERNS
Once environmental requirements are established, we depend upon compliance with
those requirements to achieve their intended benefits. To achieve actual changes in behavior,
governments must devote resources to encourage compliance, overcome barriers, and ensure
that consequencesfor violations of those requirementsexist. Withoutthis commitmentto enforce
the law, governmental agencies lose credibility and leverage to achieve more widespread
compliance, signaling the public that compliance is not a priority. Further, long-term economic
health often depends on environmental protection that may not seem to be economically
advantageous in the short run, causing inefficientshort-run decision-making. Finally, enforcement
provides an element of fairness for those who comply with requirements where it reduces or
eliminates the economic advantages that might be lost to those who choose to violate the law,
particularly where sanctions are at least as high as the economic noncompliance. (See Figure
A1-2).
3 MOTIVATING COMPLIANCE BEHAVIOR
Many factors affect whether compliance behavior results from the adoption of
environmental requirements for industrial sources, such as social, moral, and personal influences,
the level of technical sophistication, familiarity with the requirements, and economic factors.
No one can predict human behavior, and a successful compliance strategy must address all of
these factors to overcome the barriers to compliance. Figure A1-3 lists some of these factors.
Enforcement by government programs seeks to correct violations and create an
atmosphere in which the regulated community is stimulated to comply both because the
government has demonstrated a willingness to act when noncompliance is detected and
because of the consequences such actions bring to bear. Deterrence is a principle that is
fundamental to all enforcement programs. "Deterrence" is the creation of an atmosphere in
which many choose to comply ratherthan violate the law. Four interrelated elementsare needed
to create deterrence:
• A credible likelihood that a violation will be detected.
• A swift and certain response by government or others.
• Appropriate consequences in the form of sanction or penalty.
• The perception that the above conditions exist.
-------
WASSERMAN, CHERYL E. 117
Why Are Environmental Enforcement Program Important?
To Protect Environmental Quality and Public Health. Compliance is essential to achieving
the goals of protecting public health and environmental quality envisioned by environmental laws.
Public health and the environment will be protected only if environmental requirements get results.
Enforcement programs are essential to get these results.
To Build and Strengthen the Credibility of Environmental Requirements. To get results,
environmental requirements and the government agencies that implement them must be taken
seriously. Enforcement is essential to build creditability forenvironmental requirements and institutions.
Once credibility is established, continued enforcement is essential to maintain credibility. Credibility
means that society perceives its environmental requirements and the institutions that implement
them as strong and effective. Credibility encourages compliance by facilities that would be unlikely
to comply if environmental requirements and institutions are perceived as weak. The more credible
the law, the greater the likelihood of compliance, and the likelihood that other government efforts to
protect the environment will be taken seriously.
To Ensure Fairness. Without enforcement, facilities that violate environmental requirements will
benefit compared to facilities that voluntarily choose to comply. A consistentand effect iveenforcement
program helps ensure that companies affected by environmental requirements are treated fairly.
Facilities will be more likely to comply if they perceive that they will not be economicallydisadvantaged
by doing so.
To Reduce costs and Liability. Though compliance is often costly in the short-term, it can have
significant long-term economic benefits to both society and the complying facility. The healthier
environment created by compliance reduces public health and medical costs, as well as the long-
term cost to society of cleaning up the environment. Compliance benefits industry by reducing its
liability and long-term cleanup costs. Industry may also realize immediate economic benefits if
compliance involves recycling valuable materials or increasing the efficiency of its processes. A
strong enforcement program may also encourage facilities to comply by preventing pollution and
minimizing waste, rather than installing expensive pollution control and monitoring equipment.
Figure A1-2.
Each element of a compliance and enforcement program relates to these aspects of
deterrence. Inspection programs are established in large part to ensure a credible likelihood
of detection. There are other possible purposes for inspections such as educating the regulated
community, or establishing compliance statistics. The enforcement response part of an
enforcement program is designed to ensure swift and sure response and appropriate sanction.
There is also an important communications component to any enforcement effort to ensure
that there is a general public awareness about the consequences of violating the law and that
there is a strong possibility of being detected. These factors are interrelated. The less likely a
violation is to be detected, the greater the consequences must be to establish effective
deterrence when violations are detected.
Other theories of human behavior appropriate to enforcement are provided by
economic and behavior theory, but a basic principle of enforcement is that no one motivating
factor can predict human behavior. A compliance strategy must therefore anticipate the full
range of motivations that may be operative for a given situation. Another basic principle is that
a well-designed program, using these elements of deterrence, can leverage scarce program
resources to affect a broad regulated community with well-targeted activities.
-------
118 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4 THE GENERAL FRAMEWORK FOR COMPLIANCE AND
ENFORCEMENT
The "Principles of Environmental Enforcement" text offers a general framework for
compliance and enforcement with seven elements:
• Creating requirements that are enforceable.
• Knowing who is subject to the requirements and setting program priorities.
FACTORSMOnVATINGCOMPUANCE BARRIERS TO COMPLIANCE AND FACTOR
ENCOURAGING NONCOMPUANCE
ECONOMIC
Desire to avoid a penalty. • Lack of funds.
Desire to avoid future liability. • Greed/desire to achieve competitive advantage.
Desire to save money by using more • Competing demands for resources.
cost-efficient and environmentally sound practices.
SOCIAL/MORAL
Moral and social values for environmental quality. • Lack of social respect for the law.
Societal respect for the law. • Lack of public support for environmental
concerns.
Clear Governmental will to enforce environmental • Lack of government willingness to enforce.
laws.
PERSONAL
Positive personal relationships between program • Fear of change.
personnel and facility managers.
Desire on the part of the facility manager to avoid • Inertia.
legal process.
Desire to avoid jail, the stigma of enforcement, and • Ignorance about requirement.
adverse publicity. • Ignorance about how to meet requirements.
MANAGEMENT
Jobs and training dedicated to compliance. • Lack of internal accountability for
compliance.
Bonuses or salary increases based on • Lack of management systems for
environmental compliance. compliance.
• Lack of compliance training for personnel.
TECHNOLOGICAL
Availability of affordable technologies. • Inability to meet requirement due to lack of
appropriate technology.
• Technologies that are unreliable or difficult to
operate.
Figure A1-3. Factors Affecting Compliance
-------
WASSERMAN, CHERYL E. 119
• Promoting compliance in the regulated community.
• Monitoring compliance.
• Responding to violations.
• Clarifying roles and responsibilities.
• Evaluating the success of the program and holding program personnel
accountable for its success.
These components form a framework within which any government at any level must
consider issues pertinent to designing a compliance and enforcement program, no matter
what its stage of development. The response to these issues may differ among countries,
among regions or localities within countries, and among different programs over time. Important
to the success of all programs, however, is the need to address all elements of the framework.
Each element is part of an interconnected whole and thus can influence the success of the
whole program. The framework also calls for a dynamic process, one which evaluates and
adjusts to the successes and failures of proposed compliance strategies,. The full text provides
a range of alternative approaches to meet the needs represented by the elements of the
framework.
4.1 Creating environmental laws and requirements that are enforceable
Once a management approach is selected which includes requirements, enforcement
concerns begin and are addressed at requirements' design stage, not only after the
requirements are put into effect. Without clear definition of who is required to do what by when,
how both the regulated community and enforcement officials will be able to credibly detect
violations and establish compliance status, and what the consequences of noncompliance will
be, the achievement of widespread compliance is unlikely.
There are several implications for program design. First the need for clear and
enforceable requirements may suggesta preference for tailored permitting of industrial activities
in orderto adaptand interpret general regulationsto the particular processes and circumstances
at the facility. It also suggests a need to establish appropriate linkages between those
organizations responsible for developing regulatory and permit requirements with those
responsible for inspecting and enforcing requirements.
4.2 Knowing the regulated community and setting priorities
A further principle of environmental enforcement that enforcement shares with other
aspects of environmental protection is the need to establish priorities that will yield the greatest
environmental and programmatic results. Various schemes for establishing priorities (i.e., for
inspections, enforcement response, and compliance incentives or assistance) are offered
based upon risk-reduction potential, the need to preserve the integrity of program reporting
and related requirements, and the need to preserve the integrity of prior enforcementagreements
or orders. Management and collection of information on the regulated community and its
compliance status are critical to effective targeting.
No program can be everywhere at once to detect violations or to respond to each and
every violation. Accordingly, priorities must be established based upon the environmental
consequences of the violation, the need for consequences for the regulated community to
encourage the desired behaviors given the level of sophistication of the regulated sources,
and the barriers to and incentivesfor compliance. Information must be assembled and managed
in a way that can help program managers decide how to focus resources: for example, who to
-------
120 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
inspect and how often, how to balance resources between compliance promotion and
enforcement in the most effective way given the nature of the compliance challenge and
regulated sources, and which violations to respond to and how.
The process of profiling the regulated communities makes the regulated community
aware of the requirements, aware that the enforcement program officials know who they are,
and aware that they will be expected to comply. This contact with the regulated community is
the first step in creating a perception of an effective enforcement program. Thus, the process
of identifying the regulated community can be a form of compliance promotion.
Information that can be useful in designing a compliance strategy includes:
• Identifying information, e.g., the name of a facility.
• Geographic location, e.g., longitude and latitude, street address.
• Type of business or operation.
• Any existing license, permit, or product registration numbers.
• Types and quantities of regulated materials or emissions at the facility.
• Risk associated with the releases (if this has been calculated).
• Compliance status, schedules, violations, and status of responses.
The ability to analyze the information on a facility-by-facility basis is necessary in order
to determine patterns of noncompliance.
The enforcement program needs to establish who in the organization is responsible
for collecting, analyzing, and managing the information, for defining requirementsfor information,
and for evaluating whether the information is accurate and useful. The program will need a
system (computerized, if possible) to store, access, and analyze the information, as needed.
4.3 Promoting compliance
Compliance promotion is any activity that encourages voluntary compliance with
environmental requirements. Promotion helps overcome some of the barriers to compliance.
Most compliance strategies involve both activities to promote and enforce requirements;
policymakers need to determine the most effective mix of compliance promotion and
enforcement response.
Experience has shown that promotion alone is often ineffective. Enforcement is
importantto create a climate in which members of the regulated community have clear incentives
to make use of the opportunities and resources provided by promotion. However, experience
in several countries has also shown that enforcement alone is not as effective as enforcement
combined with promotion. This is particularly true, for example, when:
• The size of the regulated community far exceeds the program's resources
for enforcement(e.g., when the regulated community consists of numerous
small sources, such as individual gasoline stations).
• The regulated community is generally willing to comply voluntarily.
• There is cultural resistance to enforcement.
Thus, promotion is an important element of most enforcement programs. Compliance
promotion includes:
• Providing education and technical assistance to the regulated community.
• Building public support.
-------
WASSERMAN, CHERYL E. 121
• Publicizing success stories.
• Providing creative financing arrangements.
• Providing economic incentives.
• Building environmental management capability within the regulated
community.
4.4 Monitoring compliance
Monitoring compliance—collectingand analyzing information on the compliance status
of the regulated community—isone of the most important elements of an enforcement program.
Monitoring is essential to:
• Detect and correct violations both by government and the regulated
community.
• Provide evidence to support enforcement actions.
• Evaluate program progress by establishing compliance status.
The four primary sources of compliance information are:
• Inspections conducted by program inspectors.
• Self-monitoring, self-recordkeeping, and self-reporting by the regulated
community.
• Citizen complaints.
• Monitoring environmental conditions near a facility.
Additional information may come from reports from other national, regional, provincial,
or local agencies that have related jurisdiction over the facility; requests for modifications to
permits or licenses; and environmental audit reports provided by the facility.
Inspections are the backbone of most enforcement programs. Inspections are
conducted by government inspectors, or by independent parties hired by and reporting back
to the responsible agency. Inspectors plan inspections, gather data in and/or arounda particular
facility, record and report on their observations, and (sometimes) make independent judgments
about whether the facility is in compliance. Inspectionscan be very resource-intensive;therefore,
they require careful targeting and planning. By standardizing inspection procedures,
enforcement officials can help ensure that all facilities are treated equally and that all the
appropriate information is gathered. By specifying deadlines for preparing inspection reports,
program managers can help ensure that reports are made available to enforcement personnel
without delay if a possibility of noncompliance exists.
Policymakers need to consider many issues when designing an inspection program.
For example:
• Selection of facilities for inspection.
• Announced versus unannounced inspections.
• Frequency of inspection.
• Inspector selection: government, contractors, third parties, etc.
• Legal authority: to gain access to the facility, to information and files, etc.
-------
122 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• Role of the inspector: whether the inspector will also be authorized to take
an enforcement action in the field, provide technical assistance, and/or
make judgments about compliance.
• Status that are communicated to the facility at the time of inspection.
• Comprehensivenessof the inspection: whetherthere will be sampling, how
detailed the sampling will be, whether the sampling will be focused on one
or all environmental programs and media, etc.
• Inspection of related activities.
• Ensuring the objectivity of the inspector.
• Documenting the violation.
• Inspector training.
• Data quality.
• Consistency of sampling and analytical procedures.
• In addition, the kind of equipment required to support an inspection varies
depending on the type and purpose of inspection. Equipment needed may
include:
- Safety equipment, to protect the inspector from any hazards that may
be encountered during the inspection.
- Documentation equipment including cameras, film, pocket calculators,
tape measures, and logbook, to record information and evidence.
- Sampling equipment, to take samples of soil, water, and/or air.
- Analytical equipment, to analyze the environmental samples taken at
the facility.
Source self-monitoring, recordkeeping, and reporting are three ways in which sources
can be required to track their own compliance and record or report the results for government
review. They are now recognized as essential to supplement and support inspections reflected
in Concluding remarks from the Proceedings of the Second International Conference on
Environmental Enforcement, Volume II, page 237, which concludes source self monitoring should
be required more as a basis for compliance monitoring with due consideration of the costs to
small and medium sized facilities. These activities can providemuch more extensive information
on compliance than can be obtained with periodic inspections, shifting some of the economic
burden of monitoring to the regulated community. In addition, performing these activities
educates the regulated community about their own compliance, increases the level of
management attention devoted to compliance, and may inspire management to improve
production efficiency and prevent pollution.
Reliable and affordable monitoring equipment must be available to the regulated
community. Its successful use also relies upon the integrity and capability of the source to
provide accurate data. Data will be misleading if the source either deliberately falsifies the
information or lacks the technical capability to provide accurate data. Therefore, programs
need to establish ways to help ensure accuracy, e.g., by requiring self-monitoringonly in facilities
with the appropriate technical capability, by developing quality control standards for monitoring
and recordkeeping, and by providing penalties for false reporting. Program officials will need
to provide guidance to the regulated community on what the standard procedures, methods,
and instruments are for obtaining the data; how frequently data should be collected; and how
the data should be recorded and reported.
-------
WASSERMAN, CHERYL E. 123
Citizen complaints are an important way of detecting violations that are unlikely to
be detected through self-reporting or inspections. These include violations that take place in
isolated areas and illegal acts within an organization. Enforcement programs can help educate
and train citizens to detect and report problems.
Information on compliance status can be gained by area monitoring, i.e., monitoring
environmental conditions near a facility. Area monitoring includes ambient monitoring, remote
sensing, and overflights. The main problem with ambient monitoring is that demonstrating that
the pollutants measured came from a particular facility can be difficult. Ambient monitoring is
most useful when a source is the only significant polluter in the area, or when its emissions
have a characteristic composition that serves to "fingerprint" them.
4.5 Enforcement responses to violations
Experience with environmental programs in many countries has shown that
enforcement is essential to compliance. This is because, in any society, many people will not
comply with the law unless there are consequences of noncompliance. Enforcement responses
may also seek to correct and redress actual or potential harm caused by environmental pollution,
whether or not the pollution violates a specific requirement.
Responses to violations can be quite varied depending upon the nature of violations,
circumstances surrounding them, and the range of response options available. Principles of
environmental enforcement include the need to ensure fairness and consistent and effective
application of enforcementtools—through policies and training—all of which serve to establish
and reinforce the credibility of environmental laws and the governmental institutions that
implement them. Economic equity, in particular, can be achieved through enforcement where
economic sanctions imposed on violators through enforcement actions are at least as high as
the economic gain from noncompliance. Fundamental principles also call for escalation from
less resource-intensive to more resource-intensive or severe response, and the imposition of
consequencescommensuratewith the harm and behaviorof the violator. It includes negotiations
to ensure that correction is practical and realistic, that facts are correct, and that creative
opportunities for a successful response are fully explored from the perspective of both the
government and violators.
Government enforcement capabilities will generally be most effective if they are in
place and used when requirements become effective. Delaying enforcement can undermine
the credibility of the program and make it difficult to create an atmosphere of deterrence.
Enforcement is often necessary throughout the life of a regulatory program to achieve initial
compliance and to ensure that those who have achieved compliance maintain it.
Enforcement can be controversial because so much is at stake environmentally and
economically. To be successful, enforcement requires support at all government levels and
within all sections of the program.
A range of authorities and response mechanisms can be used for enforcement. Most
countrieswith enforcementprogramshave some but not all of these authoritiesand mechanisms
because they are developed over time to respond to new and different situations for which
existing authorities prove to be inadequate. Each program must work within the possibilities
offered by the legal system or systems under which the program operates.
Figure A1-4 summarizes a range of authorities that may be useful for an enforcement
program. This list is an amalgam of the authorities of several different enforcement programs
in the United States and other nations.
-------
124 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
TYPES OF ENFORCEMENT AUTHORITIES1
Remedial Actions
Authority to impose a schedule for compliance
Authority to permanently shut down part of an operation
Authority to temporally shut down certain parts of operations or practices
Authority to permanently shut down an entire facility
Authority to temporarily shut down an entire facility
Authority to deny a permit
Authority to revoke a permit
Authority to require a facility to clean up part of the environment
Emergency powers to enter and correct immediate dangers to the local population or
environment
Authority to seek compensation for damage caused by the violation
Other
Authority to require specific testing and reporting
Authority to impose specific labeling requirements
Authority to require monitoring and reporting
Authority to request information on industrial processes
Authority to require specialized training (e.g., in emergency response to spills) for facility
employees
Authority to require a facility to undergo an environmental audit
Sanctions
Authority to impose a monetary penalty with specified amounts per day per violation
Authority to seek imprisonment (a jail term)
Authority to seek punitive damages or fines within specified limits
Authority to seize property
Authority to seek reimbursement for government cleanup expenses
Authority to bar a facility or company from government loans, guarantees, or contracts
Authority to require service or community work to benefit the environment
Limitations on financial assistance
1 This list of enforcement authorities is a hybrid and does not appear in any one law or country.
It is an example of the types of authorities that may be made available to enforcement officials
through environmental laws. These authorities may be either direct authorities or the authority
to seek a court order to impose the sanction.
FIGURE A1-4. Types of Enforcement Authorities
Enforcement mechanisms may be designed to perform one or more
functions:
• Return violators to compliance.
Impose a sanction.
• Remove the economic benefit of noncompliance.
• Require that specific actions be taken to test, monitor, or provide
information.
• Correct environmental damages.
• Correct internal company management problems.
-------
WASSERMAN, CHERYL E. 125
Response mechanisms generally are formal or informal, civil or criminal,
administrative or judicial. Every nation has its own unique legal system, laws, and culture.
However, common to all democratic institutions are processes to balance the rights of
individuals with the government's need to act, often quickly, on behalf of the public. Several
processes may be used to ensure fairness of enforcement responses: notice, appeals, and
dispute resolution. In general, the more an enforcement action may deny an individual his or
her rights, the more protections the enforcement process provides and the longer the process
may take before final action is initiated.
Negotiation, an integral part of enforcement, enables both the facility and the concerned
party or parties to consider the correctness of the facts, the circumstances of the case, and the
variety of alternative responses. Negotiation provides an opportunity to obtain additional
information and correct misinterpretationsbefore pursuing legal action, as well as an opportunity
to reach a solution that satisfies all parties. Enforcement actions create a stimulus and context
for discussion and resolution, providing the framework in which solutions can be negotiated.
Negotiation can enhance compliance by sending a signal to the regulated community that,
while pursuing enforcement response, the governmentis willingto be responsiveto the concerns
and difficulties faced by the regulated community in achieving compliance and to work
cooperatively to develop a satisfactory solution.
Two types of enforcement responses are usually not negotiated. One is a request by
enforcement officials for information from the violator. This is usually not controversial and
therefore does not require negotiation. The other is the exercise by the enforcement program
of emergency powers to protect public health and the environment. In this case, there is no
time to negotiate.
Enforcement response policies describe how various enforcement authorities will be
used to respond to the many different types of violations and violation situations. Such policies
are important to ensure fairness. Fairness is particularly important when assessing monetary
penalties. The perception and fact of fairness is critical to the credibility of an enforcement
program, and also helps otherwise reluctant staff make what are often difficult decisions to
demonstrate government will and resolve to enforce environmental laws.
4.6 Clarifying roles and responsibilities
Environmental enforcement requires clear assignment of roles and responsibilities
and functioning mechanisms for coordination and cooperation among different disciplines and
levels of government. It also requires accountability for results.
Enforcement frequently involves many different groups, including various government
agencies, citizen groups, nongovernment organizations, and industry associations. A key
element in any strategy is defining the roles and responsibilities of the various groups involved:
• How should responsibilities for enforcement be divided among the various
levels of government (national, regional, provincial, and local)? To what
extent should a program be centralized (i.e., run at a national government
level) versus decentralized (i.e., run at local government levels)?
• Which governmentagencieswill be involved (e.g., environmentalagencies,
health agencies)?
• Should there be separate enforcementprogramsfordifferentenvironmental
media (e.g., air, water, land), or one or more integrated programs covering
several media?
• To what extent should a program make use of citizens and other
nongovernment resources?
-------
126 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• To what extent should different types of staff be integrated within a single
organization (e.g., scientists, engineers, policy and program analysts,
attorneys)?
Regardless of the organization selected for the program, key principles that emerge
are the need for clarity of roles, strong and supportive working relationships, and good
communication among all of the key players given the different levels of expertise and roles
that must be played to make any program work effectively. A balancing must occur between
giving responsibility to those closest to the environmental problems and ensuring an element
of fairness and national consistency in enforcement.
4.7 Evaluating program success and establishing accountability
Finally, a fundamental principle of environmental compliance and enforcement
programs is its dynamic nature. There is a need for constant reassessment and review based
upon changing circumstances tailored to the nature of the regulated community and other social
and economic influences.
Information can be a powerful and vital tool for successfully implementing an
enforcement program. Information about program activities and results can ensure that the
individuals responsible for pursuing enforcement are, in fact, doing so consistently and fairly
using established procedures and strategies. Information can help managers adjust
enforcement programs to changing conditions and lessons learned as the program is
implemented. Periodic program evaluations to gather information about program activities
and results serve many purposes:
• Evaluating program strategy.
• Internal accountability.
• Creating deterrence.
• Public accountability.
Measuring the success of an enforcement program is not easy. Program measures
include (see also Figure 5):
• Environmental results.
• Compliance rates.
• Progress in returning significant violators to compliance.
• Measures of compliance monitoring.
• Number of enforcement responses.
• Timeliness of enforcement responses.
• Monetary penalties assessed.
• Measures of technical assistance.
Each of these measures has advantages and disadvantages. Several measures must
be used to gain a meaningful assessment of program effectiveness. Key questions to ask
when considering which measures to use include:
• How accurate is the measure?
• What resources are needed to obtain the necessary data?
• How frequently should data be collected?
-------
WASSERMAN, CHERYL E. 127
• Who will collect the data?
• How should the data be reported, and to whom?
• Who will analyze the data? What will they analyze for?
• Where will the data be stored?
• Will the data be computerized?
Collecting and processing reliable information on compliance and enforcement can
be a constant challenge. For example, all personnel involved in gathering or analyzing data
need to clearly understand exactly what data should be reported. Problems can arise if different
individuals within a program have different interpretations of what data are needed.
Another challenge is that different levels of an enforcement program may have different
data needs. Local personnel, for example, may prefer to focus their resources on data they
consider valuable for evaluating program performance. Program personnel at a national level
may have different priorities. National data systems will benefit if they are designed from the
bottom up. Because local personnel collect the data, they will have a greater incentive to gather
accurate data if they believe the data will be useful to them.
Mechanisms will be needed to gather and store the data, and to transfer it at appropriate
intervals to other program levels that will analyze the data. A schedule for issuing reports of the
analysis will also be needed. Policymakers may also wish to conduct special studies to analyze
program strategy and success and to recommend improvements.
5 DESIGNING COMPLIANCE AND ENFORCEMENT PROGRAMS
The principlesofenvironmentalenforcementare the foundation upon which compliance
and enforcement programs are built. To make them function properly requires the priority and
commitment of government managers at the highest levels. Proper functioning also requires
the consideration of many factors that enter into their design and implementation of these
programs.
The Principles document identifies design issues in establishing a program, including:
• Personnel: roles, staffing levels, training, and use of third parties.
• Information management systems: planning issues.
• Program funding: review of various sources.
• Evolution of enforcement programs: where do they start?
One of the most important principles of environmental enforcement is just to start doing
it — no matter how inadequate the resources or legal tools. Compliance and enforcement
programs will evolve and improve over time, environmental improvements cannot be made
without taking these first steps.
The UNEP Institution Building Workshops for Industrial Compliance pick up where the
Principles of Environmental Enforcement leave off, exploring in more depth:
• Organization.
• Human, financial, and information resources and management.
• Inspection and enforcement response capability.
• Permitting processes for industrial facilities to enhance compliance.
-------
128 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ENDNOTES
1. This means that facilities, processes, owners or operators of polluting facilities or
regulated activities exhibit the appropriate or desired behaviors, for example, when
appropriate processes, raw materials, and/or work practices are used; when
hazardous waste is disposed of at approved sites or in the appropriate manner; when
appropriate tests are performed and/or reported on new products or chemicals before
they are marketed; when environmental releases are within acceptable limits, etc.
2. These activities may include the application of legal authority to compel compliance, to
compel remedies to environmental noncompliance or hazards, to impose sanctions for
violating the law/requirements, or to compel the development of information essential
for determining compliance or the appropriate means of achieving compliance. It may
also include the use of legal tools to protect public health and environment in the
absence of requirements, where there is legal authority to address, for example,
imminent hazards or accidents. It is meant to include the full range of responses, from
informal administrative actions to formal administrative processes of the filing of court
suits.
3. The most common use of the term "enforcement program" includes at least inspection
activities and legal enforcement response. In these instances, compliance promotion
and assistance activities may be carried out by the same or different organizations.
4. The most common use of the term "compliance program" includes those activities
designed to encourage or assist compliance. However, the term also is used more
broadly to describe the full range of activities to encourage and compel compliance.
-------
WASSERMAN, CHERYL E. 129
ANNEX 2
PRINCIPLES OF ENVIRONMENTAL COMPLIANCE AND ENFORCEMENTTRAINING
COURSE
1 SUMMARY OF COURSE
The "Principles of Environmental Enforcement" text and associated training exercises,
and role-playing and case-study materials were developed in 1991 by the U.S. EPA in
cooperation with Poland's Environment Ministry and the Dutch Ministry to assist policymakers
in any international or domestic setting to develop the institutional capacity for designing and
implementing effective programs for compliance with environmental requirements.
The training is designed as a three-day course. The first day consists of a series of
exercises that introduce participants to basic concepts and a range of options. Participants
explore:
• environmental goals, desired behavior change to achieve those goals,
and the range of environmental management approaches to achieve them;
• what factors motivate and/or create barriers to achieving behavior change,
definitions of compliance, enforcement and deterrence, and why
compliance and enforcement concerns are important;
• drafting of enforceable requirements, where appropriate, and what makes
requirements clear and effective;
• compliance monitoring information needs and approaches from the
perspectives of the regulated community and government officials;
• the range of enforcement responses, their applicability to a range of
situations and the need for predictable policies;
The second day provides an opportunity for participants to design their own
environmental management approach, draft enforceable requirements, and design elements
of compliance and enforcement strategy for a fictitious community and environmental problem.
Participants explore:
• the application of different environmental management approaches to a
particular problem;
• the drafting of enforceable requirements where applicable;
• designing compliance promotion strategies;
• balancing compliance promotion and enforcement resources;
• designing compliance monitoring strategies and establishingthe frequency
and type of inspection;
• anticipating potential violations and designing enforcement response
policies;
• evaluating results and revising strategies.
The third day involves an enforcement negotiation settlement role-play, where
participants act out different roles and consider an enforcement problem from different
perspectives.
-------
130 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2 DESIGN CHARACTERISTICS OF THE COURSE
2.1 The enforcement training is philosophically neutral and generic (i.e., not geared
to any specific requirements)
Because environmental programs in Poland were undergoing radical changes, the
course had to transcend debates about the mix of "command and control," "market based," or
"voluntary" approaches to pollution control, as well as legal authorities and systems. The course
participants themselves select an environmental management approach to a particular
environmental problem; only from that vantage point do they then gain experience in drafting
enforceable requirements, where they are appropriate, for designing compliance strategies
covering promotion, compliance monitoring, enforcement response policies, and evaluation
of results.
2.2 The course can be delivered by in-country trainers in order to reach a highly
diverse and decentralized audience
Any training had to be replicable and readily adaptable for Poland to train its own
people at the local government level. Because of the severity of the area's environmental
problems and because it possessed a very capable staff, the Katowice Ecology Department
was recommended by the Ministry as the primary location for a first offering of the training. The
course has now been "handed off" to trained in-country facilitators in Poland, Hungary, and
Turkey.
2.3 The training offers a rich menu of options and ideas so that key policy makers
can design the program best suited to their culture and legal systems
The course needed to be based on something broader than U.S. experience,
particularly because Poland and other Central and Eastern European nations were interested
in closer ties with Western Europe as well as the United States. We decided to seek active
participation from the Netherlands as well as broader international contributions to make the
course useful internationally.The contacts developed throughthe first InternationalEnforcement
Workshop became the basis for the cooperation and consultation involved in developing an
international course and included, in addition to the Netherlands, Canada, Sweden, Norway,
the United Kingdom, Hungary, and others. Representativesfrom Poland's national inspectorate
also participated, supplemented by a team of future facilitators who were consulted during
course development.
The framework for compliance and enforcement programs and strategies involves
seven basic elements:
• ensuring environmental requirements are enforceable;
• setting priorities;
• promoting compliance;
• monitoring compliance;
• responding to violations;
• clarifying roles and responsibilities for implementation; and
• evaluating and establishing accountability for results, taking into
consideration the range of human behavior that transcends differences in
legal systems and culture.
-------
WASSERMAN, CHERYL E. 131
2.4 The target audience of key policy makers is broadly defined
Government officials, academics, nongovernment organizations, industry
representatives, and even journalists are all involved in some fashion in reshaping existing
programs and policies. The course is designed to include all these groups as potential
participants.
2.5 No one model is offered as the only approach to gaining compliance
Althoughthe text was drafted based upon a modified U.S. framework offered in Utrecht,
concepts and examples were broadened to accommodate a range of situations and
experiences. The framework is used only as a point of departure from which all nations can
improve and build their own unique, and hopefully successful, enforcement approaches.
2.6 The course is facilitated. The participants learn from their experiences within
the course and from each other, with a facilitator helping guide these
experiences and exercises.
A facilitated course has the advantage of creating interaction among participants to
enable them to start to build theirown ideas, dialogue, and consensus on the kind of enforcement
programs and approaches that would work best in their regions.
2.7 The course introduces the roles that negotiation may play in reconciling tough
economic, social, and environmental issues while preserving a credible and fair
enforcement presence in fashioning a response to violations
One of the three days of the course is devoted to a role-playing exercise during which
different interests are brought to bear in the resolution of an enforcement action against a
violator. The exercise presents an opportunity for participants to see the interplay between the
need for firm and fair enforcement and adherence to policy and competing demands on officials
to address economic and social concerns. Experience with these very real pressures within
the safety of role-playing can enable officials to deal with some of their real fears in taking on
environmental enforcement concerns when problems seem intractable.
3 THE INTERNATIONAL COURSE AND ITS DELIVERY
The course has now been delivered in Poland, Hungary, Turkey, the Ukraine, Mexico,
Russia, Bulgaria, the Czech Republic, Chile, Thailand, Malaysia, Taiwan, Nigeria, and is
planned for delivery in El Salvador, Indonesia, potentially Egypt and South Africa. Participant
response has been very favorable and enthusiastic. In all of these settings, the course has
been designed to be handed off to in-country facilitators. The course materials consist of the
text, course exercises, and the facilitator's manual.
The course text is available to any nation wishing to use it. The U.S. EPA's Office of
Enforcement and Compliance Assurance is prepared to consider requests by other
governments to train key officials and their own facilitators to offer it within their countries. For
countries in Central and Eastern Europe in particular, efforts are being made to ensure ongoing
delivery through the Environmental Management Training Centers being established by U.S.
-------
132 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
EPA and local governmental or nongovernmental organizations. The enforcement training is
one of several modules offered in various aspects of environmental management. (The course
is part of the training offered through the U.S. EPA's National Enforcement Training Institute.)
4 FUTURE PLANS FOR THE TEXT AND COURSE
Additional case studies have been developed for delivery at the International
Conferences and elsewhere so that facilitators can select from among seven subject areas of
environmental problems most likely faced by a country.
The ideas generated at the International Conferences on Environmental Enforcement
and by course facilitators and course participants will help shape the future of the course, in
terms of its content, usefulness, and distribution worldwide. We welcome continued input and
ideas for the future of what is now called the Principles of Environmental Compliance and
Enforcement course and suggestions for additional steps we can take to spread the
enforcement message.
-------
THEME 3: ESTABLISHING INTERNATIONAL COOPERATION AND REGIONAL NETWORKS 133
THEME #3:
ESTABLISHING INTERNATIONAL COOPERATION
AND REGIONAL NETWORKS:
STATUS OF EFFORTS UNDERWAY
Theme 3 papers describe international support networks for environmental compliance and
enforcement. Each paper addresses, among others, the following issues:
• The genesis of the network and how it was established.
• What was/is involved in developing and maintaining the network.
• Who is asked to participate and at what levels in the organizations.
• Subjects the network covers.
• Vehicles used for exchange and means of communication used.
• Topics on which exchange is taking place.
• How the network overcomes differences in language and legal or other
definitions of terms such as what constitutes a hazardous waste.
• Future directions and changes anticipated for the network.
1. Summary of Panel Discussion of Theme #3, Moderator M. Enthoven,
Rapporteurs: S. Oley, K. Rubin 135
2. Emerging Networks of Environmental Enforcement and Compliance Cooperation
in North America and the Western Hemisphere, S.A. Herman, L.I. Sperling 139
3. Towards Establishing A Regional Network in the West Asia/Middle East
Region, O.A. EI-Kholy 157
4. Establishing International Cooperation and Regional Networks, D.H. Slater,
A.W. James 161
5. Enforcement and Compliance Programs in Central America, P. Madrigal
Cordero 169
6. International Cooperation: INTERPOL, J. van Doom 205
7. Transfrontier Shipments of Waste: Successes and Problems with the
Enforcement of Supranational Legislation, R. DeKrom 209
8. A European Enforcement Project on the Notification of New Substances
(NONS); A Cooperative Project of 14 European Countries, L.C. Van Gent 215
-------
134 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
See related papers from other International Workshop and Conference Proceedings:
1. The European Union Network of Environmental Enforcement Authorities, D. Slater,
Volume I, Oaxaca, Mexico
2. The Caribbean Environmental Program as a Network for the Caribbean Region, M. T.
Szauerilmana, Volume I, Oaxaca, Mexico
3. Environmental Crime and the Role of ICPO-INTERPOL, S. Klem, Volume I, Oaxaca,
Mexico
4. North American Trading Partners: Canada, United States, and Mexico as an
Enforcement Network, S.C. Fulton, LI. Sperling, Volume I, Oaxaca, Mexico
5. Summary of Theme Discussion: Establishing International Networks, Moderator: D.
Slater, Rapporteur D. Bronkema, Volume II, Oaxaca, Mexico
-------
SUMMARY OF PANEL DISCUSSION OF THEME #3 135
SUMMARY OF PANEL DISCUSSION OF THEME # 3: ESTABLISHING
INTERNATIONAL COOPERATION AND REGIONAL NETWORK STATUS OF
EFFORTS UNDER WAY
Moderator: Marius Enthoven
Rapporteurs: Shari Oley, Kenneth Rubin
GOALS
Description of international support networks for environmental compliance and
enforcement. Discussion of issues such as the genesis of the network, entities involved in
developing and maintaining it, types and levels of participation, subjects addressed by the
network, vehicles and topics of exchange, how the network overcomes differences in language
and terminology, and future directions and changes anticipated for the network.
1 PRESENTATIONS
Mr. Marius Enthoven, Directorate-General Environment, Environment, Nuclear Safety
and Civil Protection, European Union, presented the Fifth Environmental Action Program for
the European Union, a strategic plan for sustainable developmentin Europe. Targeting industry,
energy, transportation, agriculture, and tourism, the plan has five dimensions:
• integrate EU policies into country laws;
• focus on environmental infrastructure;
• communicate with the regulated community;
• use networks, such as the 15-member state IMPEL network;
• integrate work of EU agencies with country agencies; and
• step up enforcement.
The EU must integrate environmental enforcement and compliance into other sectors
that it is working on such as transportation and banking and insurance, broaden its use of
economic or market based instruments, expand implementation and enforcement of EU-wide
programs, increase awareness of EU-wide environmental programs, and increase international
cooperation.
EU works with a policy life cycle model, i.e., This involves first recognizing the problem,
gathering data, analyzing and deciding what portion or dimension of the problem to tackle.
Then formulate a solution. Three instrumentsare emerging as the most useful in implementation.
First are market oriented approaches, such as environmental charges, negotiated agreements,
fiscal instruments, and environmental liability. The second is re-regulation, including increased
flexibility to attain goals. The third is an upgrade environmental management and audit scheme
(EMAS) to make it more useful to enforcement. The next step in the model is to implement the
solutions and set up a management structure and enforcement protocol. Here, the program
calls for strengthenedlegislation, increased reporting, enhancedintergovernmentalcooperation,
and more sanctions for offenders of environmental requirements. Integrating the ISO 14000
approach remains a large outstanding issue. The final step is continuous improvement, that is,
-------
136 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
keeping the problem under control as you go forward. The EU has several issues currently
under discussion for future resolution. Is there a need for an inspectorate at the EU level and if
so, how should it be structured? Currently the enforcement inspectorates are domestic. How
should the results of enforcement actions be used at the community level? Finally, what should
be done about voluntary actions with respect to enforcement?
Dr. David Slater, Director, Pollution Prevention and Control, Environmental Agency,
Canada, explained that the UK program has recently consolidated three media programs
(waste, air and water) and budgets under a single agency with a new focus. They shifted
emphasis from pollution control to sustainable development focusing on pollution prevention,
communication with the regulated community, and networking across the EU. The need to
network, in particular on legislation and standards and the development of expertise, was a
key driving force. One of the most important and successful programs with regard to
environmental compliance and enforcement is trading experts, a series of week-long staff
exchanges which they find to be are a great mechanism for capacity and morale building.
Networks deliver information, consistency across programs, and support for problem solving.
Mr. Jan van Doom, Chief, Environmental Crime Unit, INTERPOL, explained the
workings of INTERPOL and cited achievements in networking country police, information
exchange, and expertise exchange. INTERPOL maintains a worldwide network of police and
information on international environmental criminal activities. The standard of information
exchange regarding environmental crime is the ECO report. This aids in tracking various
company activities across borders so that the activities of a company in one country can be
linked with its activities in another. It can help penetrate parent/child company relationships,
shell companies, and pursue enforcement of international environmental crime. INTERPOL
also supports training programs to build environmental expertise.
Mr. Virah Mavichak, Director of Industrial Environment, division of Industrial Works
Department, Thailand, discusses the need for more formal cooperation on environmental
enforcement and compliance in Asia. In Thailand, ASEAN, comprising eight countries,
represents the only such network. In particular, the ASEAN Senior Environmentalofficerforum,
in order to formulate environmental policy, maintains six working groups: (1) transboundary
pollution, to define hazardous waste and develop a protocol to control transboundary movement
of waste (2) environmental management approaches, to harmonize country approaches (3)
environment and economy, to look at emerging programs of economic and market-based
instruments in ASEAN countries (4) environmental information, to establish a monitoring
network, which is only a conceptual design so far (5) sea water, and (6) environmental
conservation. It has also established bi-lateral dialogues between member countries and the
U.S., Canada, The Netherlands, the EU, and Japan and a tri-lateral agreement on ozone
depleting substances, attempting to establish policy on CFC phaseout.
Dr. Ossama EI-Kholy, Senior Advisor, Egyptian Environmental Affairs Agency, Egypt,
explained that there is little regional cooperation in the Middle East. The perspective of a
developing nation is different that a developed one, but to foster such regional networking, four
things must be in place first: (1) a minimum level of commitment from top levels of government,
(2) a domestic environmental framework, (3) international organization and agreements such
as Montreal Protocol that will drive regional networking, (4) domestic expertise.
Mr. Steven Herman, Assistant Administrator, U.S. EPA, explained that since the
Partnership for Pollution Prevention that came out of the December 1994 Summit of the
Americas, the countries in the region are at the beginning of transition from talking about
cooperation to taking action with efforts such as Haztracks, a joint effort of the U.S. EPA and
Mexico's PROFEPA to track transboundary shipments of hazardous waste. There is currently
a fair amount of technical cooperation between the two countries. The US has trained many
-------
SUMMARY OF PANEL DISCUSSION OF THEME #3 137
Mexican inspectors developing a regional infrastructure and talks are beginning that will set
priorities and targets, resulting in specific enforcement actions on both sides of the border.
With a respect for sovereignty and the domestic laws of the two countries, they are sharing
policy, training, and information. NACEC, the North American Council on Environmental
Cooperation, is serving as a neutral forum bringing countries together that might not otherwise
do so. Such efforts offer training, contacts, idea-sharing, and mutual support (multi-country
efforts can counteract opponents of enforcement better than can single countries).
2 DISCUSSION
Three questions were posed for discussion:
• Why is regional cooperation important?
• Are there general lessons that can be learned?
• What are the critical success factors?
Linda Duncan, from the Commission for Environmental Cooperation, suggested that
regional cooperation can provide a neutral forum for bringing together counties that might not
come together otherwise. Mr. Lee Paddock from the US pointed to four benefits of regional
networking organizations used within the U.S. and border States: training, contacts, sharing
ideas, mutual support. The Honorable Wilson Masilingi form Tanzania pointed out that when
many countries join together it becomes harder for politicians from the individual countries to
object to implementation of environmental enforcement. Mr. Tarek Genena discussed two
success factor stating that (1) realistic approaches needed to be taken because countries
have very different levels of capability and enabling statues, and (2) regional networking
commitments must be based on available resources, both financial and human.
At the moderator's request, panelists listed their opinions on the most important
achievements in international networking:
• implementation of the Montreal Protocol;
• strengthened and harmonized domestic programs that must precede
efforts in international cooperation;
• international exchange of staff; and
• conferences such as this!
-------
138 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
HERMAN, STEVEN A. AND SPERLING, LAWRENCE I. 139
EMERGING NETWORKS OF ENVIRONMENTAL ENFORCEMENT AND
COMPLIANCE COOPERATION IN NORTH AMERICA AND THE WESTERN
HEMISPHERE
HERMAN, STEVEN A.1 and SPERLING, LAWRENCE I.2
1 Assistant Administrator for Enforcement and Compliance Assurance
2 Senior Attorney-Advisor, International Enforcement and Compliance Division
United States Environmental Protection Agency, 401 M Street SW, Washington, D.C.
20460, United States
SUMMARY
This paper reviews progress to date in the emergence of networks of cooperation in
environmental enforcement and compliance in North America and the Western Hemisphere,
and explore the challenges and opportunities created by the development of such networks.
Since the Third International Conference on Environmental Enforcement, the countries
of North America have continued to enhance and formalize bilateral and trilateral networks of
environmental enforcement and compliance cooperation, making progress in a number of
areas of cooperation. Under the North American Agreement on Environmental Cooperation, a
working group of U.S., Mexican and Canadian enforcement officials has developed a
cooperative work program on environmental enforcement, facilitated by the North American
Commission for Environmental Cooperation. Meanwhile, citizen submissions on enforcement
to the North American Commission for Environmental Cooperation has placed a spotlight on
the commitment of the three countries to effectively enforce their environmental laws. The U.S.
and Mexico continued to strengthen their bilateral cooperative relationship on environmental
enforcement and compliance, building partnership among a diverse range of local, state and
federal agencies to enhance enforcement and compliance efforts aimed at environmental
problems in the U.S./Mexico border area.
Cooperation on environmentalenforcementand complianceis beginning to take shape
throughout the Americas, stimulated by the creation of a Western Hemisphere Partnership for
Pollution Prevention, as well as a commitment of the governments of Central America and the
United States to work cooperatively toward sustainable development. North America's evolving
network of environmental enforcement cooperation is thus becoming a regional subcomponent
of, and a possible model for, a broader Western Hemisphere enforcement network. The
development of hemisphere-wide environmental enforcement cooperation, however, presents
unique challenges. These include: the developmentof an institutionalframeworkfor cooperation;
responding to an emerging debate over the role of environmental regulations and enforcement
as opposed to voluntary approaches in achieving environmental goals; and the need to address
the question of compliance capacity in the private sector.
1 INTRODUCTION
At the December 1994 Summit of the Americas, the democracies of the Western
Hemisphere established a Partnership for Pollution Prevention as they embraced the promise
of hemisphere-widefree trade. In so doing, they acknowledged the need to couple development
-------
140 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
through economic integration with cooperation in ensuring the effective implementation of
sound environmental laws. Earlier, the negotiation of the North American Free Trade
Agreement had similarly highlighted the need for environmental cooperation to minimize
transborder pollution effects of increased economic activity, and to ensure a level playing
field for free competition. The United States, Mexico and Canada responded to this challenge
by accelerating the formal development of a multi-tiered, North America-wide network of
cooperation in environmental enforcement and compliance. With increased hemisphere-
wide environmental cooperation, this North American network presents itself as a regional
subcomponent of an emerging hemisphere-wide environmental enforcement and compliance
network. 1
The Third International Conference on Environmental Enforcement, in Oaxaca,
Mexico in April, 1994, laid the groundwork for developing a hemisphere-wide network of
cooperation in environmental regulation, enforcement and compliance. Representatives of
seventeen Western Hemisphere countries, the Organization of American States, and the
Netherlands, signed a declaration to constitute a "Network of Friends of Environmental Law",
with the goal of facilitating information exchange and collaborative work, including in the areas
of compliance and enforcement, public participation, domestic environmental regulations, and
training. One of the papers presented at the Oaxaca Conference outlined a possible framework
for the development of regional networks of environmental enforcement and compliance
cooperation, in North America and beyond. The paper suggested that such cooperation should
be solidly based on respect for sovereignty and internationalcomity, and should seek to develop
a rational institutional framework to combine partnership among the various actors at all levels
of interaction (e.g. regional, bilateral, national, subnational). The paper suggested that
enforcement and compliance network activities might seek to address specific environmental
problems through cooperative work which might include the following areas:2 3
• Strategic Priority-Setting and Targeting
• Compliance Promotion
• Compliance Monitoring
• Investigatory Cooperation in Specific Cases
• Sharing Experiences to Build Enforcement Capacity
- Consultation on Laws and Policies
- Training and Technical Assistance
- Enforcement Results Information-Sharing
• Public Communication of Cooperative Enforcement Activity
Since the last conference, the countries of North America have continued to enhance
and formalize the bilateral and trilateral networks of environmental enforcementand compliance
cooperation; making progress in many of the above areas; and initial steps are underway
toward enhanced enforcement and compliance cooperation throughout the Americas. This
paper reviews the status of these efforts, and reflects on the challenges that lie ahead.
-------
HERMAN, STEVEN A. AND SPERLING, LAWRENCE I. 141
2 NORTH AMERICA: A MULTI-TIERED ENFORCEMENT AND COMPLIANCE
NETWORK
NAFTA's "environmental side agreement", the North American Agreement on
Environmental Cooperation ("Agreement"), created a unique institutional context for enhancing
North America's network of cooperationonenvironmentalenforcementandcompliance.through
the creation of the North American Commissionfor Environmental Cooperation ("Commission"),
consisting of a Council of the Environment Ministers of the three countries, and a standing
Secretariat, located in Montreal, Canada. In the first phase of the Commission's operations, a
Permanent Working Group on Environmental Enforcement Cooperation was established to
facilitate cooperation at the trilateral level, among national governments, states and provinces.
Meanwhile, bilateral U.S./Mexico cooperation on enforcement and compliance has continued
to grow, with particular focus on the U.S./Mexico border area. As a result, the past two years
have witnessed the continued evolution of a multi-tiered institutionalframework for environmental
enforcement and compliance cooperation in North America.4
2.1 The North American Commission for Environmental Cooperation
The Agreement takes a multi-pronged approach to promoting environmental
enforcement and compliance. Central to the Agreement is a commitment by the Parties to
effective enforcement of their respective environmental laws, reinforced by two formal
procedures:
• A procedure for citizen submissions asserting ineffective enforcement by
a Party, to which the Secretariat may respond by requesting a response
from the Party and developing a factual record.
• A procedure for claims by a Party that another Party exhibits a persistent
pattern of failure to effectively enforce its environmental law, involving
consultations, possibleformal dispute resolution, and, ultimately, economic
sanctions.5
Complementing these procedures is an obligation of the Parties, through the
Commission's Council of Ministers and assisted by the Commission's Secretariat, to promote
effective enforcement and compliance, including through technical cooperation. In July, 1994,
the Commission Council directed the Secretariat to develop an enforcement and compliance
cooperative work program to facilitate "cooperative initiatives to improve compliance in
identified industry and natural resource sectors", as well as substantial exchangeof enforcement
and compliance information and dialogue on the comparability of enforcement and compliance
measures.67
2.1.1 Permanent working group on environmental enforcement cooperation
To implement these priorities, the governments created a Permanent Working Group
on Environmental Enforcement Cooperation, consisting of senior representatives of the Parties
with environmentalenforcementand compliance responsibilities.These include representatives
of: the U.S. Environmental Protection Agency, Fish and Wildlife Service, and Department of
Justice; U.S. state environmental enforcement agencies; Mexico's Attorney General for
Environmental Protection ("PROFEPA"); Environment Canada and the Canadian Department
of Justice; and Canadian provincial environmental enforcement officials. Meeting in June and
November, 1995, the Working Group adopted the following terms of reference:
-------
142 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• Strengthen cooperation between the parties in environmental enforcement
and compliance while respecting the individual approach of each party.
• Deliver concrete cooperative enforcement and compliance initiatives.
• Establish working relationships among the environmental enforcement
agencies in recognition of the shared borders and inherent shared
enforcement and compliance challenges.
• Exchange information and experiences with alternative approaches to
enforcement and compliance.
• Facilitate enforcement and compliance training opportunities among the
three countries.
Subgroups were established to facilitate work in the following areas:
• Development of the Commission's Annual Report on Enforcement.
• Development of a North America-wide system to assist in compliance
monitoring of transboundary movements of hazardous wastes.
• Cooperation in wildlife enforcement.
• Promote voluntary environmentalcomplianceandenvironmentalauditing.8
2.1.1.1 Annual report on enforcement
Significant activity in late 1995 and early 1996 focused on the compilation of
enforcement information for the Commission's first Annual Report, as required by the
Agreement. Each country contributed information on its respective domestic enforcement
programs and activities. This exercise has begun to stimulate discussion among the three
countries on the comparability of enforcement and compliance statistics as the countries utilize
different arrays of enforcement tools and methodologies for measuring compliance.9
2.1.1.2 Transboundary hazardous waste shipments
The subgroup on Transboundary Hazardous Waste began to discuss development of
a North America-wide system for tracking transboundary hazardous waste shipments. Such a
system could help identify illegal hazardous waste shipments and compliance circumvention
schemes, as well as hazardous waste manifest violations and othertechnical non-conformances;
and might facilitate enforcement targeting and enforcement cooperation between government
authorities. Such a system could also have additional benefits, such as expediting hazardous
waste export and import transactions and industry reporting, and providing information useful
in hazardous waste program planning, policy-making, public reporting, and emergency
preparedness and response. The subgroup began to develop a project plan for design and
implementation of such a system, referencing the U.S./Mexico transboundary hazardous waste
system ("HAZTRAKS") as a possible starting point for a North America-wide system.
2.1.1.3 Wildlife enforcement cooperation
The subgroup on wildlife enforcement, or the "North American Working Group on
Wildlife Enforcement", identified as priorities for 1996 building improved communications and
joint training courses focused on enforcement of the Convention on Illegal Trade in Endangered
Species ("CITES") at border crossings. Programmed activities included training in CITES
enforcementon the U.S./Mexico border, and training in Toronto, Canada on fur-bearing species.
-------
HERMAN, STEVEN A. AND SPERLING, LAWRENCE I. 143
Future training priorities include focus on birds, reptiles and hides identification, and the
development of materials on the laws, policies and organizations responsible for wildlife
enforcement to support cooperative initiatives.
2.1.1.4 Voluntary compliance and environmental auditing
In September, 1995, the Commission Secretariat and Environment Canada joined
Mexico and the United States in co-sponsoring a seminar for industries in the Juarez/El Paso
area of the U.S./Mexico border zone on "Programs and Policies to Promote Environmental
Auditing and Voluntary Compliance in North America. Attended by over 200 industry
representatives, the seminar marked the first cooperative effort under Commission auspices
to actively promote industry compliance with environmental laws. The seminar focused on
environmental auditing as a means of both assuring compliance and identifying pollution
prevention opportunities, and explored government policies to encourage voluntary compliance
through environmental auditing. The Commission and the three governments sponsored a
second seminar in Tijuana, Mexico in December, 1995, expanding the focus to include
discussion of emerging International Standards Organization voluntary standards for
environmental management systems (EMS) to implement industry commitments to
environmental compliance and pollution prevention ("ISO 14000").
At both seminars, the governments and the Commission conducted intergovernmental
consultations on their respective policies and programs in more detail, including their potential
relationship to ISO 14000. As a result of these consultations, the subgroup on Environmental
Auditing and Voluntary Compliance agreed to continue its dialogue on government responses
to ISO 14000 in North America, and to develop additional geographic or industrial sector
based cooperative efforts to encourage voluntary environmental compliance.
To inform such future cooperative activities, the Commission Secretariat launched a
study of alternative mechanisms to encourage voluntary compliance. The study will explore
existing efforts in the three countries to develop and implement voluntary compliance
mechanisms and develop recommendations, after consultation with enforcement and
compliance officials and private stakeholders.
2.1.1.5 Additional enforcement cooperation priorities and opportunities
In addition to the subgroup activities, the Permanent Working Group agreed to pursue
the following priorities: to share approaches to compliance data management; to publish a
roster of enforcement and compliance officials to facilitate information and expertise exchange;
to prepare a catalogue of existing training programs in North America pertaining to
environmental enforcement and compliance; and to focus work on the detection of illegal
shipments of ozone-depleting chemicals controlled by the Montreal Protocol. Other ideas for
cooperation, subject to further dialogue, include subsector-based approaches to cooperation
in enforcement targeting and compliance promotion, and the development of a North American
protocol for cooperation in environmental enforcement investigations, including evidence-
gathering and treatment of confidential information.
The Commission's broader cooperative work on substantive environmental problems
(e.g., Commission Council priorities or cooperative work activities which do not pertain
exclusively to enforcement) may present opportunities for future cooperative efforts in
enforcement and compliance. For example, in October, 1995, the Commission Council adopted
a resolution giving priority to cooperation in the management and control of persistent toxic
substances, such as polychlorinated biphenyls (PCB's). Another Council resolution agreed to
trilateral action to promote public access to environmental information. Initiatives such as these,
-------
144 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
driven at the Council level, could provide useful foci for future cooperative work in enforcement
and compliance. For example, cooperative enforcement targeting and compliance promotion
activities could be geared toward implementation of regulations controlling persistent toxic
chemicals or requiring reporting and community access to environmental emissions data.10'11
2.1.2 Formal enforcement procedures
The Agreement's public complaint and dispute resolution processes complement the
Commission's cooperative enforcement and compliance work program in guaranteeing the
Parties' commitment to effective enforcement of their environmental laws. The citizen
submission procedure provides an important opportunity for public participation in promoting
effective environmental enforcement and compliance. By allowing private parties to request
the Secretariat to develop a factual record shining a spotlight on a Party's alleged failure to
effectively enforce its environmental law, citizens can participate directly in "bright-lights
enforcement" of this central commitment of the Agreement. In October, 1995, the Commission
published a set of guidelines to aid the public in preparing such submissions.1213
Meanwhile, the Secretariat reviewed and ruled on the first two such public submissions,
and began review of a third petition. In the first submission, Biodiversity Legal Foundation
alleged that appropriations legislation passed by the United States Congress in 1995 had the
practical effect of preventing U.S. administrative agencies from carrying out their enforcement
mandates under the Endangered Species Act respecting the classification of threatened and
endangered species and critical habitats. The petitioner requested that the Secretariat of the
Commission seek a response from the United States on the matter under Article 14 of the
Agreement. Similarly, in the second submission, the Sierra Club alleged that U.S. appropriations
legislation effectively suspended citizen enforcement of environmental laws with respect to
old-growth forest and salvage logging, through a "rider" provision which limited judicial or
administrative review of whether timber sales comply with environmental statutes. The Sierra
Club petitioned the Commission to develop a factual record to determine whetherthis legislative
provision amounted to a failure of effective enforcement by the U.S.141S16
The Secretariat declined to take the actions requested in both petitions, finding itself
not empowered to act in response to legislative acts, as opposed to situations in which an
agency charged with enforcing environment law fails to do so. In the Sierra Club petition, for
example, the Secretariat concluded that the rider provision was new legislation which "becomes
a part of the greater body of laws and statutes on the books." The Secretariat concluded that it
"cannot characterize the application of a new legal regime as a failure to enforce an old one."
The Secretariat was reluctant to involve itself in the essentially legislative function of assessing
the prospective impacts of new legislation. The Secretariat noted that failures to enforce "are
best construed to apply to the actions or omissions of the agencies and officials charged with
enforcing environmental laws", and not the enactment of legislation. Thus, in both cases, although
the Secretariat declined to conduct a factual investigation or seek a response from the
implicated Party, its decisions provide valuable interpretive guidance on the scope of the
Agreement's obligation that the Parties effectively enforce their environmental laws.17
The most recent submission, filed by the Centra Mexicano de Derecho Ambiental
(Mexican Environmental Law Center) and el Grupo de los Cien (Group of 100), alleged failures
in the implementation of Mexico's environmental impact assessment requirements with respect
to a cruise-ship terminal development project located within a natural protected area. The
submission, which was pending before the Secretariat as of the writing of this article, presents
the Secretariatan opportunityto provide guidance on issues such as: applicationof the "effective
enforcement" obligation to environmental impact assessment requirements; the application of
-------
HERMAN, STEVEN A. AND SPERLING, LAWRENCE I. 145
the notion of "persistent" ineffective enforcement as applied to individual development projects
and to conduct beginning prior to the Agreement; and the transboundary nature of marine flora
and fauna.18
In addition to the citizen submission procedure, the Agreement provides for formal
arbitration, and possible sanctions, if one Party alleges that another is failing to effectively
enforce its environmental laws. To date, the Parties have preferred to focus on working
cooperatively to enhance enforcement capacity, rather than initiating formal allegations. The
mere possibility of such a proceeding, in fact, and the pressure of "bright lights enforcement"
created by the citizen submission process, appear at this stage to be effective tools in
encouragingthe Parties to work cooperativelyto improve the effectivenessof theirenvironmental
enforcement and compliance efforts.
2.2 U.S./Mexico bilateral enforcement and compliance cooperation
While the U.S., Mexico, Canada, and the Commission were developing a North
America-wide program of enforcement and compliance cooperation, the U.S. and Mexico
continued to develop their cooperative bilateral relationship in this area through the U.S./Mexico
Cooperative Enforcement Strategy Workgroup, one of six workgroups set up under the 1983
U.S./Mexico Agreement on Cooperation for the Protection and Improvement of the Environment
in the Border Area ("La Paz Agreement"). Effective enforcement of and compliance with
environmental laws in the U.S./Mexico border area is essential to ensure realization of each
country's environmental goals, as well as to prevent transboundary environmental problems
and unfair trade advantages resulting from lax implementation. EPA and Mexico's PROFEPA
have worked to mutually enhance both countries' capacity to enforce and promote compliance
with their respective environmental laws, and to resolve mutual environmental problems caused
by noncompliance.19
In June, 1995, the two countries developed a Work Plan for 1995-1996, which called
for substantial activities in the following areas: cooperation in detecting violations and targeting
enforcement; cooperation in specific case investigations and sharing enforcement information;
capacity building through training and technical consultations; enhancing interagency
cooperation; and promoting voluntary environmentalcompliancethroughenvironmentalauditing
and pollution prevention.20
2.2.1 Recent and ongoing cooperative activities
2.2.1.1 Cooperative detection of violations and targeting
EPA and PROFEPA have been working to enhance their capacity to identify likely
violators for enforcement follow-up. HAZTRAKS, a binational system for tracking transboundary
movement of hazardous wastes initiated by the U.S./Mexico Hazardous Waste Workgroup
under the La Paz Agreement, has proven to be an effective tool for monitoring compliance.
Informationdrawn from HAZTRAKS has enabled EPA, its state agency partners, and PROFEPA
to identify potential violations. EPA and PROFEPA are exploring approaches to enhance their
capacity to identify likely violators for enforcement follow-up, e.g., by supplementing data from
HAZTRAKS with other useful information, such as data about a facility or its use of chemicals.
Input of local, state, and regional enforcement officials is essential in identifying
prioritiesforcooperativetargetedenforcementinitiatives. To foster cooperativetargeting among
Mexican and U.S. federal, state and local enforcement authorities, EPA and PROFEPA
established two pilot regional subgroups of the Cooperative Enforcement Work Group: one
-------
146 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
for Texas/Chihuahuaand one for California/BajaCalifomia. The subgroups will develop, propose,
and implement cooperative initiatives to address identified local or regional environmental
enforcement problems.
2.2.1.2 Investigations and information-sharing
U.S. and Mexican federal, state and local agencies engaged in environmental
enforcement are increasingly cooperating in the investigation of environmental cases with
transboundary aspects. EPA and PROFEPA are exploring development of a protocol for
cooperation in the development of evidence for enforcement cases of each country.
EPA and PROFEPA have been exchanging periodic aggregate data on enforcement
activities in their respective jurisdictions, and have agreed to determine criteria for sharing
more detailed information on specific completed enforcement cases.
2.2.1.3 Training and technical consultations
EPA and PROFEPA have worked together to train hundreds of PROFEPA inspectors
in Multimedia Inspection techniques. The course includes a "train-the-trainer" component to
ensure its institutionalization by PROFEPA. The course was recently improved to include
information for inspectors on pollution prevention technologies, and a new unit on wastewater
discharge inspections to address the problem of cross-media transfer of pollutants from solid
waste to wastewater. EPA and PROFEPAhave begun to collaborateon more advanced training
for Mexican inspectors, including training in field sampling and laboratory analysis, and in
investigating environmental crimes.
In May, 1995, EPA facilitated and PROFEPA hosted a presentation of the international
training course on the Principles of Environmental Enforcement and Compliance, attended by
policy-makers from a diverse range of Mexican local and federal agencies. EPA and PROFEPA
are now exploring future course deliveries which will include a "train-the-trainer" component,
and are looking forward to collaborating in the delivery of this course to other Spanish-speaking
countries in the Western Hemisphere.
EPA, its state agency partners, and PROFEPA, are improving interagency and
binational enforcement cooperation through a bilingual training program for U.S. and Mexican
customsandenvironmentalinspectorsonmonitoringcompliancewithtransboundaryhazardous
waste, pesticide, and toxic substance regulations. This training, which has already been
presented at most major land border crossings, has proven to be an effective tool for building
cooperative partnership among field enforcement personnel from diverse agencies on both
sides of the border. Similartraining is being developed regarding smuggling of ozone-depleting
chemicals banned or restricted under the Montreal Protocol.21
In addition to these formal training exercises, EPA and PROFEPA have also engaged
in less formal technical consultations on diverse aspects of environmental enforcement. These
include enforcement data systems, environmental crimes, and administrative environmental
enforcement. EPA and PROFEPA are planning a workshop to exchange perspectives on the
legal and technical practicalities of environmental enforcement, and are exploring technical
consultations on approaches to calculating economic penalties in enforcement cases.
2.2.1.4 Voluntary compliance and environmental auditing
EPA and PROFEPA initiated outreach to U.S. maquiladora parents to encourage
voluntary compliance with applicable laws and regulations, including through participation in
PROFEPA's innovative environmental auditing program. This effort spawned two industry
-------
HERMAN, STEVEN A. AND SPERLING, LAWRENCE I. 147
conferences in the border area to promote voluntary compliance through strategies such as
environmental auditing and pollution prevention, and trilateral consultations involving the U.S.,
Mexico, Canada, and the Commission, to exchange information about each country's policies
to encourage voluntary compliance through environmental auditing. (See Section 2.1.1.4 above).
2.2.1.5 Building networks of interagency cooperation
A diverse range of local, state, and federal law enforcement agencies are essential
partners of EPA and PROFEPA in assuring environmental compliance and in building
enforcementcapacity through cooperation.The EnforcementWork Group has strivedto develop
a border-wide network of enforcementand compliancecooperation.among all relevant agencies
at all levels of government on both sides of the border. This border-wide network forms a
significant regional component of a North America-wide enforcement and compliance
cooperation network, and many activities initiated bilaterally are now forming the basis for
North America-wide cooperative work under the Commission's Permanent Working Group on
Environmental Enforcement Cooperation. (See Section 2.1.1, above).
EPA and PROFEPA have committed to work to improve coordination among the
local, state, and federal agencies on both sides of the border involved with environmental
enforcement. Binational multi-agency training, local task forces, and supporting state
enforcement activities through grant programs, have proven to be effective tools for building
interagency cooperation.Creation of the regional subgroups for Texas/Chihuahuaand California/
Baja California will foster even greater cooperation among relevant federal, state and local
environmental agencies in these regions.
2.2.2 Border XXI: toward the 21st century
The U.S. and Mexico have begun to develop a new framework for border area
environmentalcooperationunderthe La Paz Agreement, to address the significantenvironmental
challenges posed by rapid development in the border area as we approach the turn of the
century. The new framework, dubbed "Border XXI", will seek to forge a partnership among
border communities and state and federal governments on both sides of the border to work
together in improving the border environment. To foster this partnership, as proposed by the
U.S., the Border XXI program will emphasize the themes of public participation, decentralization
of environmental decision-making to empower local communities and residents, and
interagencycoordinationto maximizelimited resourcesand avoid duplicativeefforts. The Border
XXI framework will seek to identify the resources necessary to achieve the environmental goals
for the border area, and will strive to integrate interdisciplinary efforts related to environmental
protection.
2.2.2.1 Enforcement and compliance cooperation under Border XXI
Enforcement and compliance cooperation will continue as a major component of the
framework for U.S./Mexico cooperation in the border area, alongside the work of the other
existing La Paz Agreement Workgroups (Air, Water, Hazardous Waste, Emergency Response,
and Pollution Prevention) and new initiatives in areas such as environmental public health,
environmentalinformation, and environmentaleducation. Because enforcementand compliance
are cross-cutting themes which are important for protecting all environmental media, close
coordination and cooperation is needed with other cooperative activities to ensure that they
-------
148 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
complement one another. The Enforcement Workgroup will continue to coordinate closely with
and support the other La Paz Agreement Workgroups to enhance cross-cutting attention to
enforcement and compliance.
In developing Border XXI, the U.S. has proposed a number of broad objectives for
enforcement and compliance cooperation over the next five years, with specific implementing
projects to be identified in annual work plans. The proposed objectives include:
• Measurably enhance compliance in the border area through aggressive
inspection programs; targeting of inspections for maximum effectiveness;
complianceactions and follow-upto ensure future compliance; and creation
of an effective deterrence through sanctions which remove the economic
benefit of noncompliance and through public communication of
enforcement activities.
• Develop and implement cooperative targeted enforcement initiatives that
address common environmental problems, in a manner which preserves
respect for national sovereignty.
• Promote industry leadership in voluntarily achieving and demonstrating
compliance, including through strategies such as environmental auditing.
• Develop sophisticated tools to monitor compliance.
• Promote pollution prevention solutions to compliance problems, in all
enforcement/compliance related activities.
Enforcement cooperation would also be pursued in accordance with the broader
proposed themes of Border XXI. For example, citizen involvement in the enforcement process
provides an important avenue for public participation. In the U.S., citizens may initiate legal
action to directly enforce most environmental laws. In Mexico, PROFEPA's procedures provide
for follow-up investigation of citizen complaints about environmental compliance problems. In
both countries, citizen input is an important source of information to assist the governments in
responding to environmentallyunsound behavior. The Enforcement Work Group will encourage
the public, employing their respective domestic procedures, to work in partnership with the
government agencies to enhance effective implementation of environmental laws.
Similarly, involvement in the Enforcement Workgroup will be an important avenue for
state and local governments to help shape implementation of Border XXI, ensure
responsiveness to the needs and priorities of local communities, and build interagency
partnership and coordination. The recent creation of pilot regional geographic subgroups of
the Enforcement Workgroup provides an important mechanism for state and local
empowerment, and will help to ensure that interagency coordination occurs where it matters
most—in the field, at the working level. In so building the enforcement and compliance network
in the border area, the Enforcement Work Group will continue to coordinate its activities with
broader, North America-wide enforcement efforts, and to identify bilateral initiatives which could
benefit from trilateral cooperation.
-------
HERMAN, STEVEN A. AND SPERLING, LAWRENCE I. 149
3 TOWARD A WESTERN HEMISPHERE ENFORCEMENT AND
COMPLIANCE NETWORK
At the December, 1994 Summit of the Americas, the presidents of the democratic
nations of the Western Hemisphere announced a Plan of Action which included a call fora new
hemispheric Partnership for Pollution Prevention. The Plan of Action specifically identifies
initial substantive priorities to include safe pesticide management, the gradual elimination of
lead from gasoline, and the reduction of lead exposures from other sources. The Plan calls on
international organizations such as the Inter-American Development Bank, the Pan-American
Health Organization, and the Organization of American States, to play a major role in organizing
and implementing Partnership activities.22
The Plan of Action for the Partnership calls for cooperative efforts in developing and
improving environmentalenforcementas a key aspect of the sound environmental management
required to ensure sustainable development. The Plan of Action calls for the strengthening of
implementation and enforcement of environmental protection frameworks, both through individual
government action and through intergovernmental cooperation to facilitate information
exchange, technical cooperation and capacity-building. In recognizing the importance of
cooperation to reinforce domestic enforcement efforts, the Partnership for Pollution Prevention
sets the stage for developmentof a Western Hemisphere network of environmentalenforcement
cooperation.
Prior to the Summit, in October 1994, the governments of Central America announced
a new Alliance for Sustainable Development, and invited the international community to join
them in achieving the goals of the Alliance. At the Summit in Miami, the U.S. accepted this
invitation. In a joint communique called the "CONCAUSA Declaration", the U.S. and the Central
American governments issued an action plan to work together to achieve the goals of the
Alliance. The action plan contemplates cooperation between the U.S. and its Central American
partners in establishing a network of cooperation to promote and enforce compliance with
environmental legislation.23
3.1 Western Hemisphere partnership for pollution prevention implementation
In November, 1995, EPA, in cooperation with the Organization of American States,
the Pan-American Health Organization, and the government of Puerto Rico, hosted an Advisors
Workshop and an Intergovernmental Technical Experts Meeting in San Juan, Puerto Rico, to
organize the Partnership for Pollution Prevention. Although the Summit of the Americas Action
Plan identified the 1996 Summit Conference on Sustainable Development in Bolivia as the
time of reporting on progress in implementation of Partnership activities, it provided no
mechanism to coordinate between government and non-government organizations or funding
institutions to develop specific programs. At the Puerto Rico meetings, participants from
approximately 25 countries, international organizations and multilateral development banks,
with input from nongovernmental and industry organizations, developed a Framework for
Cooperation, and identified initial priority projects.
3.1.1 Framework for cooperation
The Framework for Cooperation developed in Puerto Rico calls for the Organization
of American States to convene a meeting to establish a Task Force of involved international
organizations to coordinate efforts and optimize resources for Partnership implementation.
-------
150 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Each country is called upon to designate a national focal point for cooperation. The Task Force
will establish its own structure and work plan and report through government focal points. As of
March, 1996, initial meetings of the Task Force had taken place in Washington, D.C., with
participation of the Organization of American States, the Pan American Health Organization,
the World Bank, the Inter-American Development Bank, the United Nations Environment
Program, EPA and the U.S. Agency for International Development, and the Canadian
International Development Agency.24
The Framework exhorts governments to cooperate to create and improve regional
and subregional networks. The networks would include governmental and nongovernmental
experts, and would exchange information and expertise for implementation of Summit-related
activities. Information exchange would include electronic communications, follow-up meetings
and other means. The Framework encourages reinforcing the Partnership with bilateral and
multilateral relationships among governments and nongovernmental organizations to advance
pollution prevention, and calls upon national focal points and international institutionsto promote
public participation.
The Framework specifically calls for strengthening of mechanisms for cooperation
among governments to implement Partnership commitments, including "policy, legal and
regulatory frameworks, institutional arrangements, economic instruments, enforcement and
compliance." Finally, the Framework encourages the countries and international organizations
to identify specific opportunities for capacity-building, training, and technical cooperation in
each of these "cross-cutting" areas.
3.1.2 Substantive project priorities
In addition to initial development of a Framework for Cooperation, the Working Groups
at the Puerto Rico Meetings outlined recommendations for priority project goals to address
pesticides, lead, sustainable tourism, and water quality. Each of these priority themes provides
opportunities for cooperation in the area of enforcement and compliance.
The Lead Working Group recommended the development and incorporation into legal
instruments of national plans to eliminate lead from gasoline in the Americas by the year 2001.
This activity will provide a Western Hemisphere focus on the phase-out of lead in gasoline, in
follow-up to global discussions initiated in March, 1995 at an International Workshop on Phasing
Lead out of Gasoline, hosted by the United States and Mexico under the auspices of the United
Nations Commission on Sustainable Development. To implement the Working Group's
recommendations, EPA is working with the U.S. Department of Energy, the U.S. Agency for
International Development, and the World Bank, to develop a program for providing technical
assistance to countries in the Americas in developing national plans to phase-out lead in
gasoline. This effort appears to be taking shape as the first implementation activity on
substantive priorities of the Partnership for Pollution Prevention.
The Pesticide Working Group recommended regional consultations on harmonizing
of laws and regulations at high levels of environmental protection; the creation of information
centers to facilitate information exchange, capacity-building, and assistance in government
institution strengthening; and establishment of a "board" of interested country representatives
to identify specific projects and assist in developing funding proposals. Projects recommended
by the Water Working Group contemplated development and implementation of water quality
criteria, exchange of experiences with implementation of legal, institutional and economic
instruments for water resource management, including international river basins; management
of water salinity in the Caribbean; and promoting institutional mechanisms for information-
sharing, such as the Inter-American Water Resources Network of the OAS. The Sustainable
-------
HERMAN, STEVEN A. AND SPERLING, LAWRENCE I. 151
Tourism Working Group recommended, inter aha, development of a sustainable management
system, including through regulatory and enforcement mechanisms, for marine parks in Belize,
Dominica, and Honduras.
3.1.3 Enforcement and compliance cooperation in the partnership
At the Puerto Rico meetings, EPA offered a concept paper on "Building Environmental
Enforcement and Compliance Capacity in the Western Hemisphere". The paper envisioned a
hemisphere-wide network of officials and experts to promote development of sound
environmental laws and build enforcement and compliance capacity through regional and
hemispheric cooperation. The network would consist of several regional sub-networks to focus
efforts on regional problems. Its members would include representatives of all relevant
government agencies, and of nongovernmental experts to provide perspectives of NGO's,
academia, and industry, and ensure attention to citizen participation in the enforcement process.
The paper suggested the following possible areas for cooperation:
• Capacity-building.
• Cooperative compliance promotion.
• Cooperative compliance monitoring.
• Cooperation on specific enforcement cases.
• Strategic priority-setting and targeting initiatives.
• Enforcement activity information exchange.
• Cooperative enforcement communications.
The objectives of the proposed strategy include: promoting sustainable development
by ensuring that regulatory frameworks are capable of reaching their environmental goal;
ensuring a level playing field of effective environmental enforcement as a basis for free trade;
maximizing the efficiency of individual countries' efforts to build environmental enforcement
capacity; and maximizing the deterrent effect of enforcement activity, by demonstrating a
cooperative resolve to detect and respond to violations and promote voluntary compliance.
The paper suggested that enforcement and compliance cooperation activities be incorporated
into substantive priority projects (such as pesticides, lead, sustainable tourism, and water
quality); but that they also be pursued through cross-cutting projects, not limited to the substantive
priorities, to allow the network the flexibility to address, through cooperation, unique regional
and subregional enforcement/compliance problems25
The Puerto Rico meetings resulted in recognition of enforcement and compliance as
a cross-cutting theme for hemisphere-wide environmental cooperation. The Framework for
Cooperation specifically encourages cooperative activities to address cross-cutting themes,
including through development and enhancement of networks of cooperation. The meetings
also produced several substantive themes which present opportunities for developing
enforcement and compliance cooperation components. In its subsequent participation in the
Task Force on Implementation of the Partnership for Pollution Prevention, EPA has
recommended the establishment of Working Groups to promote cooperative action in the
substantive theme areas as well as on cross-cutting themes such as legal frameworks,
enforcement and compliance, public participation, and pollution prevention.
EPA has taken some initial steps toward implementing the strategy on enforcement
and compliance as proposed at the Puerto Rico meetings. Building on the network developed
through the International Conferences on Environmental Enforcement and Compliance, EPA
-------
152 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
began to develop a directory of contacts of legal and enforcement officials and experts, to
support a hemisphere-wide network. EPA also developed an initial framework for a training
course on environmental legislation and regulations, to be supplemented by interested countries
or organizations. The training module, which will include a focus on enforcement considerations
in drafting legal requirements, will supplement the existing international training module on the
Principles of Environmental Enforcement.
At the Puerto Rico meetings, EPA proposed several specific projects to follow up this
initial work. These include a hemisphere-wide delivery of the Principles of Environmental
Enforcement and Compliance training, possibly in Mexico. EPA proposed a cooperative effort
to supplementand further develop the training frameworkon environmental laws and regulations,
and the development of case studies for both training modules to address identified Partnership
priorities, such as pesticide regulation, lead exposure, and water quality. (An existing case
study for the enforcement course, developed for the Third International Conference on
Environmental Enforcement, covers sustainable tourism.) Finally, EPA proposed development
ofdatabasesofenvironmentallawsandregulations.agencyandNGOorganizationalstructures,
and legal and enforcementcontacts, to support the evolution of the Western Hemisphere network
of environmental law and enforcement.
3.2 Regional enforcement and compliance cooperation in Central America
The Central American Commission for Environment and Development (CCAD),
representing the seven governments of Central America, is taking a proactive approach to the
development of a regional network of cooperation on environmental laws, enforcement and
compliance. To implement U.S. commitments in the CONCAUSA Declaration to assist Central
America's regional environmental cooperation efforts, the U.S. Agency for International
Development (USAID) worked with CCAD and U.S. EPA to develop a Central American
Regional Environmental Project (Proyecto Ambiental Regional para Centra America, or
"PROARCA"), with components to address protected areas, coastal zone management, and
environmental protection.
Underthe Environmental Protection component, a regional comparativeenvironmental
risk assessment has been launched to reach consensus among key stakeholders on, and
prioritize, the major pollution problems in the region. This effort will be supplemented by an
assessment of existing environmental legislation in Central America and of institutional
capacities to manage environmental risks. The workplan also envisions efforts to develop
compatible national systems of environmental laws and standards among the Central American
nations, including focus on the legislative basis for monitoring and enforcement. Finally, the
Environmental Protection component calls for improving implementation and enforcement of
environmental laws and regulations. This will include technical assistance and training to
strengthen institutional capabilities, and compilation of statistics on enforcement activity. It will
also include engaging the private sector in an open, managed dialogue to achieve concrete
commitments to comply with environmental laws and regulations.
EPA's involvement in the PROARCA project is being funded by USAID, pursuant to
an interagency agreement. Among the first activities, EPA facilitated a delivery of the Principles
of Environmental Enforcement training in Belize in January, 1996, and is working to arrange
future deliveries of this training in other countries in the region. EPA also participated in national
assessments of environmental legislation in Honduras (December, 1995) and Nicaragua
(February, 1996). EPA and CCAD are cooperating in the development of a Central American
network of environmental legal and enforcement officials and experts, and are exploring
-------
HERMAN, STEVEN A. AND SPERLING, LAWRENCE I. 153
cooperative projects in areas ranging from training of inspectors to promotion of voluntary
environmental compliance. Once it is completed, the regional comparative risk assessment
will further inform the development of cooperative projects focused on enforcement and
compliance.
4 FUTURE CHALLENGES IN DEVELOPINGTHE WESTERN HEMISPHERE
ENFORCEMENT AND COMPLIANCE NETWORK
North America's evolving network of environmental enforcement cooperation can
provide a ready model for the growth of similar regional and subregional networks throughout
the Western Hemisphere, which would link together in a hemisphere-wide network of
cooperation. Initial steps have been taken to develop the architecture of such a hemisphere-
wide network. Enforcement and compliance functions are unique and cross-cutting: they are
identifiable as a separate activity while at the same time they are fundamental to achieving a
broad range of environmental program goals. Thus, cooperation should focus on the broad
functions of enforcement and compliance. In addition, specific projects can be responsive to
the priority substantive environmental problems identified on a hemisphere-wide and regional
basis.
Among developing countries in the Americas, enhancing institutional capacity through
technical assistance and training is a priority need. As the North American experience suggests,
however, there is great opportunity for enforcement and compliance cooperation to go beyond
capacity-building efforts. Exchange of ideas and experience benefits all countries in a region
by expanding awareness of possibilities and policy options. Cooperation in areas such as
compliance monitoring, enforcement targeting, enforcement case investigations, and
environmental auditing, can achieve economies of scale in deterring violationsand encouraging
compliance.
The task of hemisphere-widecoordination itself presentsa great institutional challenge.
Although the institutional framework for cooperation has developed rapidly in North America,
the outlines of a hemisphere-wide framework for cooperation have only begun to be drawn.
Regional efforts, such as that of the CCAD in Central America, appear to provide the greatest
hope for developing cooperative networks. Building a hemisphere-wide network which will
ensure optimal cooperation at the operational level, therefore, appears to depend on the
development of regional subnetworks, which will link together in a broader network for the
Americas. These regional subnetworks, in turn, should be developed to enhance partnership
between national and local governments, to ensure responsiveness to local problems and
enhance cooperation among all entities which may provide assistance in detecting and
responding to violations or promoting compliance.
One of the greatest challenges in establishing the Western Hemisphere network
pertains to differing perceptions of the proper role of legal requirements and enforcement in
achieving environmental goals. Many of the presentations at the Puerto Rico meetings suggested
an emerging debate regarding traditional approaches to "regulation and enforcement" versus
"economic instruments, incentives, and other alternative approaches." This characterization,
however, presents a false dichotomy. First, although environmental law in the United States
has traditionally involved "command and control" or "end-of-pipe control" strategies, many
alternative approaches involve the promulgation of legal requirements, triggering concerns of
enforcement and compliance. For example, economic instruments, such as taxes or emissions
trading, often rely on self-monitoring and reporting of emissions or discharges. Such
-------
154 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
requirements must be encoded into law, and enforced, to ensure that the economic approach
achieves its environmental goals. Even some "voluntary" approaches involve notions of
enforcement and compliance. For example, many of the same compliance monitoring concerns
are involved regardless of whether behavior is proscribed by law, or imposed as a condition of
some incentive, whether it be a government subsidy or a private loan.
Finally, regulatory/enforcement and voluntary approaches, if designed properly, are
compatibleand complementary, ratherthan mutually exclusive. Although some purely voluntary
approacheswill cause many polluters to improve theirenvironmentalperformanceout of rational
self-interest or altruism, it cannot be assumed that all polluters will act rationally or altruistically.
This is particularly so if the desired behaviorchange involves radical changes to institutionalized
business practices or large short-term capital expenditures. Hence, voluntary incentives work
best if backed up by baseline requirements and substantial certainty that sanctions will be
imposed if noncompliance is detected.
A more legitimate concern, however, is whether the private sectors in developing
countries have adequate tools and resources to achieve compliance with strict new
environmental standards. While this issue was raised by Central American industry group
participants in the Puerto Rico meetings, the compliance capacity of small or economically
disadvantaged businesses has been a matter of significant debate within the United States
for some time. In response to these concerns, EPA recently modified its traditional approach
to enforcementto include an emphasis on promoting voluntary compliance, particularlytargeted
at small and medium-sized businesses. EPA's new program of compliance promotion is
supplemented by enforcement policies which encourage environmental auditing as a means
of assuring compliance, and provide incentives to small businesses to participate in compliance
assistance programs. EPA is also engaging industry directly in dialogue on how environmental
performance can exceed the baseline levels of protection achieved by mere compliance with
environmental standards, while reducing overall regulatory burdens. At the same time, EPA is
exploring new ways of recognizing industry for exemplary behavior which exceeds compliance.
These efforts provide examples of how traditional enforcement might combine with positive
incentives to change behavior to comply with environmental requirements.
5 CONCLUSION
Much work needs to be done to consolidate the Western Hemisphere environmental
enforcement and cooperation network. In North America, the U.S./Mexico border area is still a
large environmental concern. Industry performance in this region remains a key test of
sustainable development in the Americas. Coordinated trilateral cooperative projects are only
just getting under way. Although great strides are being made, promoting interagency
partnership among all relevant entities remains a challenge, as does ensuring appropriate
public participation. In other regions of the hemisphere, many environmental laws and standards
are only now being developed; and these laws are perceived as challenging traditional
relationships between government and industry. Yet, drafting environmental regulations that
are enforceable from the start is a key to achieving the intended goals of an environmental
protection program. Although electronic communications promise to enhance communications
and cooperation within the hemisphere-wide network, not all stakeholders are at the same
milepost on the "Information Superhighway."
-------
HERMAN, STEVEN A. AND SPERLING, LAWRENCE I. 155
Notwithstanding these obstacles, in the two years since the Third International
Conference on Environmental Compliance and Enforcement, an Americas-wide network of
environmental enforcement and compliance cooperation has begun to emerge. While a
hemisphere-wide institutional structure for this network has begun to take shape, substantial
work has been done to form a coherent, multi-tiered institutional framework for a key regional
component of that network, North America. Meanwhile, other key regions of the Hemisphere,
such as Central America, have begun concerted efforts to organize regional networks. Clearly,
the benefits of mutually enhancing the capacity for and deterrent effect of enforcement,
minimizing trade distortions and transboundary environmental degradation, improving voluntary
compliance, and ultimately improving environmental performance, will be well worth the hard
work. Hopefully, the Fifth International Conference on Environmental Enforcement and
Compliance will provide an opportunity to report on further progress in the evolution of
enforcement and compliance cooperation in the Western Hemisphere.
REFERENCES
1. Summit of the Americas Plan of Action, Miami, Florida, Dec. 9-11,1994.
2. Oaxaca Declaration, Third International Conference on Environment Enforcement,
Oaxaca, Mexico, April 25-28,1994.
3. Fulton, Scott C., and Perling, Lawrence I., North American Trading Partners: Canada,
United States, and Mexico as an Enforcement Network, Presented at the Third
Conference on Environmental Enforcement, Oaxaca, Mexico, April 25-28, 1994.
4. North American Agreement on Environmental Cooperation, Between the United
States of America, the Government of Canada and the Government of the United
Mexican States (entered into force January 1, 1994).
5. Id., arts. 14, 15, and 22-36.
6. Id., art. 10.
7. North American Commission for Environmental Cooperation, Council Cooperative
Work Program Priorities, Washington D.C., July 1994.
8. Commission for Environmental Cooperation, Permanent Working Group on
Enforcement, minutes from November meeting.
9. North American Agreement on Environmental Cooperation, Council Resolution #95-5
on Sound Management of Chemicals, October, 13,1995 (final ratification by ministers
pending).
10. Commission for Environmental Cooperation, Council Resolution #95-5 on Public
Access to Environmental Information, October 13,1995 (final ratification by ministers
pending).
11. North American Agreement on Environmental Cooperation, supra note 4, arts. 14,15.
12. Guidelines for Submissions on Enforcement Matters under Articles 14 and 15 of the
North American Agreement on Environmental Cooperation, October 13,1995.
-------
156 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
13. U.S.C. 1531-1544(1973).
14. Commission for Environmental Cooperation Secretariat Response to Submission by
Legal Foundation, September 22,1995.
15. Commission for Environmental Cooperation Secretariat Response to Submission by
Sierra Club Legal Defense Fund, August 30,1995.
16. Id.
17. Denucia que Formula el Comite para la Proteccion de los Recursos Naturales A.C.
de Cozumel, el Grupo de los Cien Internacional, A.C., ye el Centra Mexicano de
Derecho Ambiental, A.C., Ante La Comision Para la Cooperacion Ambiental (January
17, 1995).
18. Agreement Between the United States of America and the United Mexican States on
Cooperation for the Protection and Improvement of the Environment in the Border
Area (Done at La Paz, Mexico, August 14, 1995).
19. U.S./ Mexico Cooperative Enforcement Strategy Work Group Work Plan, Mexico
City, Mexico, June 1995.
20. Montreal Protocol on Substances that Deplete the Ozone Layer, 26 I.L.M. 1541
(1987); 30 537 (1991).
21. Summit of the Americas Plan of Action, supra note 1.
22. Conjunta Centroamerica-USA (CONCAUSA) Declaration, Miami, Florida, December
19, 1994.
23. Partnership for Pollution Prevention Framework for Cooperation, San Juan, Puerto
Rico, Novembers, 1995.
24. Building Environmental Enforcement and Compliance Capacity in the Western
Hemisphere (U.S. Environmental Protection Agency concept paper, presented at the
Summit of the Americas Advisors Workshop and Intergovernmental Experts Meeting,
San Juan, Puerto Rico, November, 1995.
25. PROARCA Project Paper, U.S. Agency for International Development, June, 1995.
-------
EL-KHOLY, O.A. 157
TOWARD ESTABLISHING A REGIONAL NETWORK IN THE WEST ASIA/
MIDDLE EAST REGION
EL-KHOLY, O.A.
Senior Advisor, Egyptian Environmental Affairs Agency, 13, Street 265, New Maadi, Cairo
11742, Egypt
SUMMARY
This report sets the scene for taking the first steps in establishing a compliance and
enforcement network in the West Asia/ Middle East region. After drawing attention to some
basic considerations, the report describes the main characteristics of environmental
management in the region with emphasis on compliance and enforcement. It ends by proposing
the main points to be discussed in order to start establishing the network.
1 INTRODUCTION
There is no network in our region for the exchange of information and experiences on
compliance and enforcement. As we meet to discuss establishing such a network we need to
place our deliberations today against a background of some basic considerations. These we
need to keep in mind if our first steps towards establishing the network are to be based on a
firm foundation. Briefly, let me touch upon four main considerations:
1.1 Our region is heterogeneous to a significant extent. We have densely populated states
of rather limited resources, sparsely populated ones endowed with a wealth of natural
resources, and a third group that lies somewhere in the middle. Populations vary from less
than one million in some states to sixty millions in others. As might be expected in such a
situation, the stages of development differ widely, as do the major economic activities.
1.2 While, twenty years ago, the general wisdom across the region was that environmental
protection was a concern for the industrialized countries, national and regional priority was
rapid development with considerable tolerance towards environmental impacts. Environmental
worries were a long way down the line and can simply wait. This situation has been changing
slowly, but steadily. All over the region, environmental concerns are moving gradually to the top
of the list of national priorities.
1.3 The issue of environmental management has been addressed so far in a wide variety
of approaches and institutional and legal frameworks. Government units responsible for the
environment have taken the form of ministries, councils, departments, and sometimes supra-
ministerial bodies. The concerned top levels of authority have ranged from ministers (of health,
defense, interior) to councils of ministers and so-called higher councils. Some report directly
to the head of state.
1.4 At the risk of making too drastic a simplification, the most commonly adopted
approaches to environmental management had the following characteristics in common:
• Significant reliance on the command and control approach.
-------
158 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Little involvement of the regulated communities in the drafting of legal
instruments (laws, decrees, standards).
Young, understaffed, underfunded, and underequipped, regulating bodies
faced with the task of dealing with much larger and sometimes more
sophisticated regulated communities.
As might well be expected under the circumstances, regulations,
procedures and standards were usually copied from other societies of
different backgrounds, capabilities and conditions, and hence not
conducive to enhancing the credibility of the young regulating bodies.
2 THE PRESENT SITUATION
It is against this admittedly very sketchy outline of our recent history, and with full
appreciation that there are exceptions where the situation is quite different from these
generalizations, that we should look at some encouraging developments in the region over the
last few years:
• There is now a general realization that the command and control approach,
as it is being carried out, is failing to produce desired results.
• The issue of environmental management is being rethought, away from
copying other models, to tailoring suitable approaches with full realization
of the specificities of each society and institutional setup.
• One major consideration in designing appropriate systems, that has clearly
emerged in many -if not all-countries in the region, is the need to bear in
mind current value systems. The choice of appropriate tools for
environmental management has to take careful note of this critical factor.
In many cases, compliance is not the social norm, and enforcement
capabilities are often weak, if not nonexistent.
• As a result, emphasis is slowly shifting from reliance on laws and
regulations to in-depth analysis of the causes of non-compliance and
definition of socially-acceptable enforcement actions when necessary.
• This has laid bare the defects in the legal instruments as one of the main
causes of weak compliance. The search is now for other more effective
toolsfor ensuring compliance within the overall frameworkof environmental
management at the national level.
• At the level of society at large, dissatisfaction with the state of the
environment and protests against flagrant abuses is becoming more vocal
and in a few cases an effective element in bringing about change.
• At the level of the regulated community, more and more business
enterprises are beginning to devote more attention and resources to
environmental management at the level of the enterprise. The view is now
spreading that this is good business -not only because it improves the
image of the enterprise; but because it is also profitable. A few enterprises
are now talking of the implications of the combination of the new GATT
agreements and the ISO 14000 parts that will come out this year.
-------
EL-KHOLY, O.A. 159
• Many countries are tapping new sources of technical assistance, foreign
expertise, and even financial resources, in dealing with their environmental
problems. Recently, this has moved beyond the "technical fix" to basic
issues in environmental management, with compliance and enforcement
fast becoming a new field of cooperation. This goes well beyond the usual
organizational support, pollution prevention and control, and regulatory
reform.
I trust that you agree with me that this thumb nail sketch confirms that this is an
opportune moment for systematic study and emphasis on the issue of compliance and
enforcement in our region.
3 HOWTO MAKE PROGRESS IN REGIONAL COOPERATION
This Fourth Conference witnesses more participantsfrom our region than any previous
conference. Consequently, it is a unique opportunity for us to:
• Get to know one another.
• Exchange preliminary information on the current situation/ future plans to
strengthen compliance and enforcement activities in our region.
• Identify and prioritize our common needs in the light of the above.
Next, we may — subject to your approval — move on to:
• Sketch the structure of a regional network and the functions it will perform.
• Identify national focal points, even though tentatively.
• Discuss, and hopefully agree on the location of a node.
• Specify a feasible set of objectives and mechanisms of operations for the
next two years, including monitoring progress.
• Discuss mechanisms for communication and exchange of information.
I look forward to a very successful discussion that will hopefully be remembered in
years to come as the first step on the orderto achievingcomplianceand enforcementthroughout
our region and the role our network has played in this worthy endeavor.
-------
160 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
SLATER, DAVID H. AND JAMES, ALUN W. 161
ESTABLISHING INTERNATIONAL COOPERATION AND REGIONAL
NETWORKS
SLATER, DAVID H.1 AND JAMES, ALUN W.2
1 Director Pollution Prevention and Control, Environment Agency, Rio House, Waterside
Drive, Aztec West, Almondsbury, Bristol BS12 4UD, United Kingdom
2 Regional Integrated Pollution Control Manager, Environment Agency, Rivers House,
St. Mellon Business Park, Cardiff CF3 OLT, United Kingdom
SUMMARY
This paper explains the benefits that are to be gained through international cooperation
on environmental issues. The ways in which such cooperation can help policy makers and
environmental regulators is described from the experiences of the United Kingdom as a Member
State of the European Union. It is suggested that the lessons learned through these experiences
are relevant to all countries.
1 INTRODUCTION
We in the United Kingdom have just gone through a major reorganization of the
inspectorates dealing with the compliance and enforcement of environmental legislation. From
the first of April this year new Environment Agencies have been set up in England and Wales,
in Scotland, and in Northern Ireland. These Agencies will have responsibilities for the control of
certain kinds of pollution to all environmental media and will be the competent authorities for
the implementation in the United Kingdom of much of the environmental legislation originating
in the European Community.
The Agency for England and Wales comprises staff of the old National Rivers Authority,
Her Majesty's Inspectorate of Pollution, and Waste Regulatory Authorities. It starts off with over
9000 staff with a wide range of expertise - from flood defense to the regulation of wastes from
the nuclear industry. The complexity of the legislation and the industries regulated by the Agency
would be daunting but for the fact that we are not alone. Not only do we have highly competent
staff in-house, we can get advice and assistance from colleagues in the other United Kingdom
agencies, and from government departments, consultants and academics.
But we would be foolish if our networking was limited to the United Kingdom. The
Agency needs to tap into the knowledge and experience of environmental regulators throughout
Europe, and worldwide, to help us do our job well.
This paper considers the benefits of networking from the perspective of policy makers
and regulators. Although the detailed descriptions refer to Europe, the paper seeks to
demonstrate that the principles have global relevance.
2 BENEFITS OF NETWORKING TO POLICY MAKERS
To consider the benefits of networking to policy makers, let us start at the top, in United
Kingdom terms, with a note from the Secretary of State of the Department of the Environment
to the Prime Minister in August 1993. This stated:
-------
162 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
"We have done much to change the culture of (the civil service) in recent years. But
there is one area where we need to do more. We need to encourage all Departments
to be expert in their dealings with the rest of Europe.
If we are to be at the heart of Europe we need to make this change of culture across
the whole of Government. Every Department needs to keep in touch with the earliest
stages of policy formulation affecting its business, long before the Commission
puts forward proposals. We also need to make sure that our officials are trained
and properly prepared to deal with Brussels."
A short history of the Community will provide an explanation of why the United Kingdom
Department of the Environment needs closer links with Brussels and our partners in the
European Union:
In 1957 the Treaty of Rome was signed establishing the European Economic
Community. The essential objective of the Treaty was "the constant improvement of the living
and working conditions of the European peoples."
No mention was made of environmental protection, but within a few years it was realized
that common standards were needed to protect consumersinorderto ensure the free circulation
of goods among the Member States. Hence the first environmentallegislationdealt with products
- dangerous chemicals, motor vehicles, and detergents. This legislation was based on Article
100 of the Treaty of Rome which dealt with the harmonization of laws in Member States "as
directly affecting the establishment and functioning of the Common Market."
The Treaty was amended in 1987 and the Amendment mentioned the environment. In
fact, it identified a linkage between environmental protection and the quality of life and introduced
a series of new Articles - 130r, 130s, and 130t - on the goals, means and procedures of
environmental protection. Most legislation under these Articles needed the unanimous approval
of the Environment Council; in other words, a Member State could veto a proposal even if all
other countries were in favor.
The next major step was taken in December 1991 with the signing of the Treaty of
Political Union in Maastricht. This requires that environmental concerns must be considered in
the formulation of all policies of the European Community, and it extends the application of a
"Cooperative procedure" to environmental legislation under Article 130r. This means, in
essence, that no single country can veto a proposal under this Article. (However, Member
States still have a veto in some environmental areas.)
The fact that most environmental legislation requires a cooperative procedure makes
a big difference to the way that the United Kingdom deals with Europe. Without a veto, a
country can influence proposalsfor new legislationonly by gaining the support of other countries.
The expansion of the Community in 1995, when Austria, Finland, and Sweden joined,
has meant that more countries need to be united to obtain a change in a proposal. So it is not
surprising in the post-Maastricht Europe that the Department of the Environment is forging
closer ties with similar Ministries in other countries.
3 BENEFITS OF NETWORKING TO REGULATORS
What role, you may ask, do environmental regulators have in all this? Why does the
Environment Agency, for example, need to coordinate with organizations in other countries?
Again we shall recount some history:
-------
SLATER, DAVID H. AND JAMES, ALUN W. 163
The growth in environmental awareness from the original Treaty of Rome to
Maastricht has been mentioned above. This growth was matched by a proliferation of
environmental legislation by the European Community throughout the 1980s, over 200
environmental Directives and Regulations being adopted.
But what happened to this new legislation after approval by Council and publication
in the Official Journal? Was it being enacted in all the Member States? How did different
countries go about the processes of transposing EC legislation, setting standards, issuing
permits for industrial process, implementing regulations, compliance checking, and
enforcement? Were there weaknesses in this regulatory chain?
To answer these questions the Netherlands Ministry of Housing, Spatial Planning and
Environment embarked, in 1991, on a survey of organizations in each Member State involved
in the enforcementofenvironmentallegislation. The survey investigatedthe different procedures
for standard setting, permitting, compliance assessment and enforcement.
The results of the survey and subsequent actions were reported at the Third International
Conference on Environmental Enforcement (ref. 1). In summary, the survey found inconsistencies
in a number of areas, for example:
• Administrative procedures.
• Permits required.
• Technical standards applied.
• Charges made for permits.
• Public access to information.
Some of these inconsistencies were thought likely to impose unequal burdens on
industry across the Community as well as unequal threats to the environment in different countries.
The survey results were presented, in October 1991, to an informal meeting of Environment
Ministers who agreed that
"... it would be desirable as a first step to establish a Network of representatives of
relevant national authorities and the Commission in the field of enforcement,
primarily aimed at the exchange of information and experience in the field of
compliance and enforcement, and at the development of common approaches at
a practical level."
At a meeting of the EC Environment Council on 12-13 December 1991 the United
Kingdom offered to host the first meeting of the Network during its Presidency. This meeting
was held in Chester from 3-6 November 1992. Subsequent meetings of the Chester Network,
as it was then known, were held in Copenhagen in May 1993 and at Steenokkerzeel (Belgium)
in December 1993.
Some changes were agreed to in the terms of reference of the Network at
Steenokkerzeel so as to incorporate certain requirements of the European Commission's
Fifth Action Program. The changes gave the Network a wider mandate for the application and
control of environmental legislation -focusing particularly on Community legislation, but also
addressing that of Member States. It was agreed that the Network would also seek ways to
ensure better implementation and enforcement by local and regional bodies, and that future
plenary sessions would be jointly chaired by the Commission and the country holding the
'Presidency' of the European Union. At a subsequent meeting it was agreed that the modified
Network should be known as the European Union Network for the Implementation and
Enforcement of Environmental Law- the IMPEL Network.
-------
164 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4 STATUS OF THE IMPEL NETWORK
The IMPEL Network continues to provide opportunities for dialogue, at the European
Union and national level, between policy-makers, environment inspectors and enforcement
officers, allowing exchanges of ideas and experiences leading to the development of better
enforcement structures.
During the past two years, plenary meetings have been held in Athens (May 1994),
Munich (November 1994), Paris (June 1995) and Madrid (November 1995). These have
considered broad issues related to implementation and enforcement and have provided
direction to four Working Groups and an ad-hoc Group.
This period has seen the establishment and growth of the European Environment
Agency- one of the most exciting environmental initiatives of the European Union. The Director
of the Agency was invited to attend the Munich plenary and share his thoughts on the future role
of the EEA and its possible interaction with the IMPEL Network. In his talk he foresaw the
following areas of cooperation:
• Exchange of information on monitoring techniques.
• Helping to influence policy makers.
• Development of best practices.
• Reports on control of transboundary effects.
• Technical aspects of permitting.
• Eco-audit experiences.
• Statistical systems.
The Network looks forward to exploring these issues with the Agency. In addition, the
Agency has agreed that IMPEL members can make use of the wide-area computer network
that it is establishing across all Member States for the transfer of environmental data.
Much of the work of the plenary sessions is devoted to the receipt of reports from the
various Working Groups, and to the identification of priorities for their future work. The progress
of these groups in the past two years can be summarized as follows:
4.1 Working Group 1: the technical aspects of permitting
The Group has compared technical standards and pollution control technology for
various types of facilities in each of the Member States. As a result, it has proposed technical
guidelines which, though they have no official status, will provide useful guidance for regulatory
bodies.
To date, the Group has looked at power plants, incinerators, refineries, and cement
and glass production. Future work will consider the production of steel, aluminum, ethylene,
varnishing compounds and chip board.
4.2 Working Group 2: on procedural and legal aspects of permitting
This Working Group exchanges informationand compares experienceon the permitting
of industrial installations in the Member States. The discussions address specific pieces of
EC legislation, such as Directives on large combustion plants, incinerators, or refineries, and
horizontal issues, such as the cross-media assessment of the environmental impact of industries.
-------
SLATER, DAVID H. AND JAMES, ALUN W. 165
The group also examines the application of EC legislation in Member States and
the practical aspects of the regulatory process.
4.3 Working Group 3: on compliance assessment and inspection
This Group has done a comparison of the inspection and enforcement arrangements
in all the Member States. A report on its findings is being produced which will outline the
legislation, organizations and the mechanisms for inspection, monitoring and enforcement
and will include statistics on complaints, inspection visits and enforcement actions.
One of the Group's future tasks will be to examine the question of self-monitoring by
industry.
4.4 Working Group 4: on management of the regulatory process
One of the Group's key activities has been to set up exchange programs for inspectors
to provide an in-depth understanding of the regulatory systems in each country. Four- or five-
day exchanges have been hosted by the Netherlands, Denmark, Germany, France, the United
Kingdom and Austria at which 30 or more inspectors from all Member States have participated.
Other countries will be taking turns to hold such "exchange weeks". Besides the knowledge
gained through the discussions on legislation and through site visits, the contacts established
during these programs greatly facilitate the future exchange of information between
inspectorates.
Working Group 4 is also preparing 'skills and management' manuals for inspectors
covering both the regulatory process and facility inspections.
4.5 Coordinators
In addition to the plenary sessions and the working groups, members of the IMPEL
Network have established National or Regional Coordinators. These have an important role in
the dissemination of information relevant to the Network among and within Member States.
5 UNITED KINGDOM EXCHANGE WEEK
At this point it may be worthwhile to expand upon the subject of exchange programs
and briefly recount the experience of the United Kingdom in hosting one of these weeks in
October 1995.
The main aim which the organizers of the United Kingdom program set themselves
was to persuade other countries in the practical benefits of Integrated Pollution Control. To
achieve this aim, a program of lectures, working groups, and visits to industries in the Teesside
area in the North East of England was arranged.
Each day had a specific theme:
Monday - Principles and Legislation of Integrated Pollution
Control(IPC).
Tuesday - Practical Application of IPC Principles and Legislation.
Wednesday - Links between IPC and other regulatory instruments.
Thursday - Examples of practical successes of IPC.
-------
166 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Two inspectors were invited from each Member State and also from Poland, Hungary
and Romania. In addition, an inspector from Gambia, who was on a training mission with
HMIP at the time, was able to attend. To give participants a chance to become familiar with
the industries, copies of the permits were sent to them prior to the exchange week.
Small groups of 5 or 6 participants were established, each with a United Kingdom
inspector as guide. These groups remained together throughout the week.
First thing in the morning following visits to industrial sites, syndicate groups met to
discuss the authorization process and inspection practice they had seen the day before, and
compare notes on how things were done in different countries. A plenary session would follow
with presentations on the regulatory system in the United Kingdom. Then, before lunch the
syndicate groups would meet again to look ahead to the afternoon's site visit. During these
sessions, the United Kingdom inspector would draw attention to various aspects of the
authorization for the industrial process to be visited.
The feedback from the syndicate groups was very positive, the small size being
particularly welcomed as this facilitated the exchange of information among the participants
and enabled them to question industrial staff whom they met during site visits. The Intimacy
generated within the groups also encouraged openness with the guide inspector, and frank
discussions of how similar problems would be resolved in different countries. Another benefit
of the week for the United Kingdom was the enthusiasm generated in the guide inspectors to
learn more about regulatory processes in other countries. Of course, thanks to the exchange
week, they now know friendly contacts in these countries.
6 AD-HOC WORKING GROUP ONTHETRANSBOUNDARY SHIPMENT OF
HAZARDOUSWASTE
Returning to the Working Groups of the IMPEL Network, there is one other that we
have not mentioned - the Ad-hoc Working Group on the transboundary shipment of hazardous
waste.
This Group was initially set up to carry out a project, now referred to as the first
Transboundary Shipment Project, or TFS-1. In this, five countries came together to examine
the international shipments of solvents and paint wastes from 28 companies. The countries
were Belgium, Germany, Luxembourg, the Netherlands and the United Kingdom; Italy became
a sixth participant halfway through. The project identified a number of illegalities, such as the
unauthorized completion of shipment papers to indicate that containers had been inspected
when, in fact, they had not. At least one of these infringements of regulation led to prosecution.
In view of the findings of TFS-1, an expanded project, TFS-2, was set up involving
more waste streams and more countries. This has been a resounding success. It has:
• Agreed standard procedures for use by regulators for the inspection and
identification of trans-frontier waste shipments.
• Coordinated an international waste transport check in which over 4000
lorries in 9 countries were stopped and inspected in a single week in June
1995.
• Established working practices with national and international police
forces.
• Set up a task force to formulate proposals for the practical implementation
of financial guarantees.
-------
SLATER, DAVID H. AND JAMES, ALUN W. 167
• Investigated the options for electronic data exchange so as to facilitate
faster and more effective information transfer between waste regulators in
different countries.
• Arranged bilateral cooperation on issues such as the pseudo treatment of
wastes.
• Made proposals to the European Commission for the establishment of a
permanent technical officer forum to coordinate information exchange.
Discussionsare being held between policy makers of Member States and the European
Commission to establish a means for continuing the work of the two TFS projects.
7 PROBLEMS
Without doubt, the IMPEL Network has been a great success, but it can be improved:
The Plenary sessions need to define the objectives of the Network more
clearly and provide a better steer for the Working Groups. There must also
be a smoother continuity between succeeding meetings.
As for the Working Groups, some have found it difficult to get some
countries to take part; the main problem being lack of funds. Collaboration
among the different Groups could be improved and a concerted effort is
needed to publish the reports they produce.
The National Coordinators also face problems. Their work in disseminating
information within each Member State is fundamental to the value of the
Network in terms of improving the professionalism of inspectorates. But
this can be very time consuming and, as ever, resources are tight.
The Member States and the European Commission are working together on plans to
improve the Network, particularly in the light of the Commission's intention to prepare, in 1996,
a Communication to the Council of Ministers on the implementation and enforcement of
Community environmental legislation. This work may redefine the overall context in which IMPEL
operates and necessitate a restructuring of the Network. For example, until now the Network
has focused on legislation linked to industrial facilities but it is recognized that, in due course,
the range of activities could be extended.
In the mean time one small, but important, change has been agreed upon: the creation
of a small secretariat to improve continuity between meetings and to ensure better coordination
among Network members.
8 CONCLUSIONS
The paper has identified one of the reasons why the United Kingdom Department of
the Environment needs to be involved in discussions in the European Community; that is, to
influence policy and legislation at the initial development stages. The Community is unique in
having supra-national authority, but we would argue that the same principle holds in all
-------
168 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
international fora to do with the environment-governments of as many countries as possible
should be involved from the very beginning in the drafting of international protocols,
conventions, standards, etc.
If we in the United Kingdom fail to influence the drafting of European policies, and
proposals are put forward which are contrary to our national opinion, we now have two choices
- accept it, or work with other Member States to bring about changes. No longer do we or any
Member State have a veto on most environmental matters. Working with other countries
inevitably requires compromise, but that can lead to a greater common good.
The same is true for regions other than Europe: agreeing a common position among
different countries helps to ensure that the world community takes account of this position.
When we addressed the practical aspects of compliance and enforcement in the
European Union, we mentioned the benefits that European Inspectorates have gained from
the IMPEL Network - it provides a forum for the exchange of ideas with other inspectorates
and enables all to learn from each others' experiences. The resulting improvement in
professionalism helps achieve consistency in the application of environmental legislation, which
is good for the environment and provides a level playing field for our industries.
The same argument can be made for countries worldwide. There is much that we can
all learn from each other, whether it be through bilaterals or through multi-national networks.
The EnvironmentAgencies in the United Kingdom are keen to play a full part in such interactions,
within and outside Europe.
Even though the IMPEL Network has been very effective, this paper has referred to
the need for improvements. This same need applies to all international networks - they must be
able to develop, to meet new requirements while maintaining the basic principles of cooperation
and exchange. And, of course, while fostering informal contacts between members; we are
convinced that this is one of the greatest benefits, and pleasures, of international networking.
REFERENCE
1. Volume 1 of the Proceedings of the Third International Conference on Environmental
Enforcement, April 25-28,1994, Oaxaca, Mexico, p 323: "The European Union
Network of Environmental Enforcement Authorities"; D. Slater
-------
CORDERO, PATRICIA MADRIGAL 169
ENFORCEMENT AND COMPLIANCE PROGRAMS IN CENTRAL AMERICA
CORDERO, PATRICIA MADRIGAL
Parliamentary and Constitutional Court Advisor, Environmental Law Consultants
P.O. Box 20-1017 San Jose 2000, San Jose, Costa Rica
SUMMARY
This paper provides an overview of environmental legislation in Central America.
Regional legal instruments have been developed and have gone into effect at the initiative of the
Central American Commission on Environment and Development (Comisibn Centroamericana
de Ambiente y Desarrollo) including Central American Agreements on biodiversity and protected
areas, forestry resources, climatic change, and dangerous waste. More recently a political
proposal has been made for an Alliance for Sustainable Development (Alianza para el Desarrollo
Sostenible).
An incipient juridical framework exists at the national level. There are constitutional
grounds for environmental protection. There are important gaps in the development of juridical
instruments, especially regarding environmental sanitation matters; at present, the main challenge
is the imposition of quality standards. In other cases, such as forestry resources, an effort has
been made to promote an administrative organization with its corresponding procedures, but
real results in the reduction of the deforestation rates have not been achieved.
The general conclusion is that environmental legislation in Central America is very weakly
applied and has low compliance.
Four main obstacles to the actions that are needed to overcome this problem were
deduced from legal advice given over the last two years to the Wildlife Program for Central
America (Programa de Vida Silvestre), in the Regional Office for Mesoamerica (Oficina Regional
para Mesoamerica), of the World Conservation Union, which are:
• The absence of institutional conditions that assure a Rule of Law.
• The growing poverty in the region.
• The scarce participation in the elaboration of juridical instruments.
• The weakening of the State.
1 REGIONAL ENVIRONMENTAL LAW
1.1 Central America environmental integration process
The Central American Integration Process continues its development and consolidation.
It was organized and executed by the Central American Integration System. The Tegucigalpa
Protocol instituted it and included among its objectives:
To establish concerted actions directed to preservation of the environment through
respect and harmony with nature, ensuring a balanced development and rational
exploitation of the region's natural resources, with the perspective to establish a New
Ecological Order in the region."
-------
170 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The system now has four clearly identified sectors:
• Economical Sector: Economical Integration System.
• Social Sector: Social Integration Commission.
• Educational and Cultural Sector: Educational and Cultural Commission.
• Environmental Sector: Central American Commission for Environment and
Development.
The Central American Commission for Environment and Development has become
the focal point for the development of action plans and strategies in the region, as well as the
implementation of agreements concluded during periodic high-level political meeting, the "Central
American Presidential Summits."
The Commission is formed by the leaders of the institutions responsible for the
management of natural resources and the environment in each Central American country. The
treaty setting up this body has been ratified by all regional states. The Protocol of San Salvador
included the participation of Panama and Belize as formal members.
The Central American Commission for Environment and Development guided the
preparation of the "Environmental and Development Central American Agenda", submitted at
the United Nations Conference on Environment and Development. A major theme of this agenda
is the development of regional legal instruments based on principles set out in the conventions
signed at Rio.
This fact has produced the development of the international environmental law in Central
America via regional conventions, by now in four areas:
• Biodiversity and the protection of prime wilderness areas.
• Management and conservation of forest natural ecosystems and the
development of forestry plantations.
• Transboundary hazardous wastes.
• Climatic change.
This regional framework would aim to harmonize national regulations bearing on natural
resources and the environment and promote sustainable development at national level, while
maintaining common regional elements.
1.2 Central American environmental conventions
1.2.1 Convention on the conservation biodiversity and the protection of prime
wilderness areas in Central America
Virtually simultaneously with United Nations Conference on Environment and
Development, an "Convention on the Conservation Biodiversity and the Protection of Prime
Wilderness Areas in Central America" was signed during the Presidential Summit in Managua,
June 5,1992. Its objective is the conservation of terrestrial and marine-coastal biological diversity.
To further this purpose, it calls for the establishment and strengthening of eleven protected areas
between two or more countries. It creates a Central American Council of Protected Areas to
coordinate regional efforts to harmonize policies regarding the regional system of protected
areas. As a mechanism for monitoring compliance with the Convention, the Central American
Commission for Environment and Development, based on information obtained from national
authorities, is called upon to submit annual reports to the Presidential Summit.
-------
CORDERO, PATRICIA MADRIGAL 171
1.2.2 Convention on transboundary movement of hazardous wastes in the Central
American region.
Following the United Nations Conference on Environment and Development, at the
Presidential Summit held in December 1992, in Panama, the "Convention on Transboundary
Movement of Hazardous Wastes in the Central American Region" was signed. "Hazardous waste"
is defined by categories established in Annex I, and by characteristics listed in Annex II. Annex III
lists activities with hazardous waste disposal. The Agreement declared the importation of
hazardous waste an illegal and criminal act, subjecting it to sanctions pursuant to the national
law. These regional agreements are open for membership by the Mesoamerican states. A
reflection, in part, of the fact that Mexico participates as an observer in the Central American
Commission for Environment and Development.
1.2.3 Central American agreement on climatic change
During the meeting of the Foreign Relations Ministers, in Guatemala City on the October
29th, 1993, the " Convention on Climatic Change" was signed by the following countries:
Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica and Panama.
It is based on the "United Nations Convention on Climatic Change", but its approach to
this global problem intends to be from a Central American perspective. Its objective is the
protection of the climatic system to insure food production and continuous economic development.
It defines "climatic system", as the atmosphere, hydrosphere, biosphere lithosphere and their
interactions as a whole.
The Convention contains general mandates. Many of the articles are declarations of
principle, such as the necessity to maintain the climactic conditions for the conservation of the
natural resources. It does not establish specific guidelines nor does it specify parameters. It
reiterates the sovereignty of each countries' use of its natural resources, but only if these activities
are not detrimental to the global climate. It promotes the evaluation of gas emanations which
produce the greenhouse effect, the rational use of soils and watersheds, and sustainable
agriculture that will not conflict with the conservation of the environment.
Emphasis is placed on scientific investigation. For example, learning the factors that
regulate the climate, as well as strengthening the Meteorological and Hydro-meteorological
Services.
Following the trend of preceding Regional Conventions, the executive agency is the
Central American Commission for Environment and Development. The Regional Committee of
Hydraulic Resources and Meteorological Services provides technical assistance to the
Commission. They are in charge of elaborating an Action Plan for 1993-2005.
The Convention created the Central American Council on Climactic Change and is
integrated by the Directors of the Meteorological Services; it purpose is the coordination of
policies at the national level as an associate agency to the Central American Commission for
Environment and Development. It becomes effective when at least four members ratify it, whereas
preceding Regional Agreements required ratification by three signatories.
1.2.4 "Regional convention for the management and conservation of forest
natural ecosystems and the development of forestry plantations"
The "Regional Convention for the management and conservation of forest natural
ecosystems and the development of forestry plantations", was signed during the meeting of
Foreign Relations Ministers, on October 29,1993, and was later approved by the Presidents'
Summit. It contains a regional framework for the management and conservation of natural forest
ecosystems and the development of forestry plantations. Its objective is to avoid a change in the
-------
172 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
use of land in forested areas and to recover those areas that have been deforested. This
agreement is very interesting because it offers a set of principles that will guide institutional,
judicial, and financial policies in pursuit of its objective.
It proposes the consolidation of a National and Regional System for Protected Wildlife
Areas, the rehabilitation of degraded forests, forestry management of primary natural forests,
reforestation programs, and the maintenance of inventories.
Regarding financial aspects it recommends the creation of specific funds, reinvesting
mechanisms, credit assistance, important international cooperation and a modification to the
National Accounts System to include depletion of the natural resources when calculating the
Gross National Product.
It includes a chapter on public participation, where it recognizes the necessity to respect
cultural diversity: indigenous population, communities, women, non-governmental organizations,
and industrial sectors.
At the institutional level it recommends the strengthening of National Forestry Action
Plans, the creation of Environmental Ombudsmen and obligatory Environmental Impact
Assessment. The reason for this is that no legal framework for environmental impact studies
existed in Central America until very recently. Consequently the institutional capacity for their
reception, analysis and approval has been insufficient. This is an area that recently has begun to
develop. In Panama there is draft legislation, in Honduras the General Environment Law takes it
into consideration. In Costa Rica it began fifteen years ago as a requisite for mining activities;
this requirement has now been extended to other activities.
The Central American Forests Council is created, integrated by the Directors of Forestry
Services from each country and national coordinators of the National Tropical Forestry Action
Plans. It will come into effect once it has been ratified by three signatories.
The major concerns at the moment is to stop the change in the use of land in forested
areas, which constitute 60% of Central American territory. Currently deforestation is one of the
major environmental problems in the region. This is a consequence of inadequate management
of other sectors, a lack of territorial order, the process of colonization and inefficient forestry
management systems. For this reason the legal regulation of forestry resources, in an effort to
conserve and restore them, is a common theme in the countries of the area. All Central American
countries are reviewing and modifying their forestry legislation. Honduras and Panama have
already proclaimed new dictates in this aspect. Guatemala, Costa Rica and El Salvador have
defined forestry policies, which provide a referential framework for forestry activity for the next
five years. Here the State assumes a regulatory and supervisory role and the non-governmental
sector is the executor.
These facts reflect that for the first time in the forestry sector, the policies and legislation
of each country are trying to respond to the requirements established in the Diagnostics of the
Forestry Situation.
In 1995, the Central American Council of the Protected Areas created by the "Convention
on the Conservation Biodiversity and the Protection of Prime Wilderness Areas in Central
America" and the Central American Council on Forests, constituted by the "Regional Convention
for the management and conservation of forest natural ecosystems and the development of
forestry plantations", merged into one body, with one Executive Secretary, in order to coordinate
actions and to strengthen them.
As observers a few regional organizations were also incorporated, which represent
different sectors of the civil society such as: women and development, indigenous-farmers of
community forestry, forestry producers, local governments, forest professionals, Parliament
Commissions for environment and development, regional members of World Conservation Union
(CR/ONG's).
-------
CORDERO, PATRICIA MADRIGAL 173
1.3 Central American environmental policy
On 12 October 1994, the Presidents of Central America Panama and Belize, met in
Managua, Nicaragua, to hold the "Central America Ecological Summit for Sustainable
Development". At this summit they adopted a holistic strategy for sustainable development in
the region, called the Alliance for Sustainable Development.
This Declaration includes a definition of Sustainable Development which takes into
account the characteristics of the Central American region, the principles in which this strategy
in based, the requirements to allow it to happen, the objectives, and the tools.
Sustainable Development is defined as: "a process of gradual change in the quality of
life of people that sees them as the center and the pivotal subject of development. This should be
achieved through economic growth with social justice and through the transformation of the means
of production and consumption patterns, based on the region's ecological equilibrium and vital
support. This process implies the respect for regional ethnic and cultural diversity, at both the
national and local levels. It also requires the strengthening and full participation of their citizens,
in peaceful coexistence and in harmony with nature, without detriment to, and assuring the quality
of life of future generations."
The guiding principles were defined as:
• A respect for life in all its expressions.
• The improvement of the quality of human life.
• The respect for, and sustainable use of, the lands, vitality and diversity.
• The promotion of peace and democracy as basic forms of human
coexistence.
• The respect for the region's cultural pluralism and ethnic diversity.
• The attainment of greater degrees of economic integration among the
countries in the region, and of these with the rest of the world.
• The intergenerational responsibility for sustainable development.
The bases on which it is grounded are:
• Democracy.
• Socio-cultural development.
• Sustainable economic development.
• Sustainable management of the natural resources and improvement of the
environmental quality.
The strategy promotes the establishment of National Councils for Sustainable
Development, as instruments of implementation. These will be with participation by the public
and private sectors, and by the Central American Council for Sustainable Development, which
is composed of the Central American Presidents and the Prime Minister of Belize.
The Alliance document includes an Annex, where the specific objectives by areas are:
political, economic, social and environmental. In the latter, clear statements are included regarding
to the need to harmonize and modernize the environmental parameters, the laws and the national
entities that are in charge. The need to strengthen the capacity to regulate, supervise and apply
the environmental norms is also underlined, as well as the need to typify the environmental offenses.
On this occasion, at the foot of the Masaya volcano, another document was signed,
known as "The Masaya Volcano Commitments," with the official title of "Commitments Regarding
the Environment and Natural Resources. Masaya Volcano, Nicaragua."
-------
174 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
These commitments try to set up concrete actions, with well defined and stringent
timetables, for the implementation of the Alliance for Sustainable Development.
1.4 Convenio entre Centroamerica y Estados Unidos de America (agreement
between Central America and the United States of America)
During the Summit of the Americas, the Convenio entre Centroamerica y Estados
Unidos de America declaration was signed. This was the only document added to the Declaration
of Principles and the Plan of Action. Thus, the United States of America became the first partner,
from outside the region, in the Alliance for Sustainable Development. The Agreement defines a
Plan of Action that establishes the individual responsibilities of each one of the governments of
the United States and those of the Central America countries.
1.4.1 Plan of action
In this Plan of Action the following elements are included:
• Conservation of Biodiversity: identification, preservation, and sustainable
use of the unique biodiversity in the region.
• Energy: promotion of a clean and efficient use of energy.
• Environmental Legislation: strengthening of the legal and institutional
frameworks of the instruments for implementation, and the improvement
and harmonization of the environmental protection norms.
• Sustainable Economic Development.
In addition to the specific components of its Plan of Action, Convenio entre
Centroamerica y Estados Unidos de America also voices general support for the implementation
of the Alliance for Sustainable Development.
1.4.2 Legislation
Environmental legislation has seen a strong thrust in the region. The national initiatives
are taking shape within a Central American framework. The development perspectives found in
regional and national legal instruments can be read as summaries of the main elements
incorporated into the previously mentioned documents. The following perspectives are worth
mentioning:
• The participation of civil society, including native communities, indigenous
groups and other groups at the fringe of society, in the environmental
decisions.
• The evaluation of environmental impact, with the definition of principles,
minimum content, methodology, provision of consulting services, venues
for consultation of civil society, and others.
• The management of natural resources:
a) Forestry Resources
Requirements and procedures are established for management plans, certification of
timber-yielding products from sustainable forests, plans for the prevention of, fight against, forest
fires, participation by municipalities and local authorities in the administration.
b) Biological Diversity
-------
CORDERO, PATRICIA MADRIGAL 175
The conservation of this resource and the specific actions for this purpose are becoming
an ever increasing relevance in the region. Since the signing of the Agreement on the Conservation
of Biodiversity and the Protection of Prime Wilderness Areas in Central America, in June 1992,
some Regional Projects have taken shape. These are the Central American Biological Corridor,
which is a linkage of protected areas for the conservation and migration of species; the
establishment of Centers of Biodiversity and Botanical Gardens; and the preparation of a Central
American list of endangered species of wild flora and fauna.
In addition to these specific proposals, a space is being opened up for a more holistic
proposal for conservation of the biological diversity. Proof of this is found in the agreements
reached during the first week of February 1995, in Panama City, by the Interparliamentary
Commission on Environment and Development.
It is acknowledged in them that, to fulfill what was approved in the Convention on
Biological Diversity, the countries need to define Strategies and Plans of Action on Biodiversity.
This must happen at both the national and regional levels, in order to evaluate this resource, and
should include inventories, and knowledge and participation of civil society.
For this reason this Commission supports a diagnosis and proposals for a legal and
policy framework that strengthen the conservation of biodiversity. Some of the recommended
orientations include the exercise of sovereignty on Biological Diversity by the Central American
States, the establishment of the intellectual property rights of over natural and cultural resources,
and the right of access to information and technological transfer.
c) Hydrographic Basins
Policies and laws on the management and conservation of water resources are included,
as well as studies on hydrographic basins.
• Instruments of territorial ordering to unify the classification of lands, and to
set up strategies for the protection and recuperation of depleted soils.
a) Energy.
b) Central American energy policies and a master plan are included.
c) Transportation.
d) Control and prevention of water, air, and land pollution.
This section includes a plan for the elimination of lead in gasoline; regulations to control
air pollution by mobile sources; regulations to monitor and control water, air, land, noise, and
visual pollution.
1.5 Conclusion on legislation
A consensus has been development in Central America regarding the urgent need to
strengthen the implementation of the environmental legislation, both at an international and national
levels. For this reason all the documents contain, as a political commitment, the ratification of
Regional and International Agreements on the environment and natural resources, and the
development of the institutional capacity to make their implementation possible.
At the regional level environmental protection has been advancing rapidly. However,
implementation of these advances within the national legal framework, has been at a much
slower pace. In particular, the institutional response has also been slow reflecting the fact that
national bureaucracies are significantly less enthusiastic about regional integration than political
leaders.
-------
176 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
We have witnessed a great effort to include the environmental concerns within the
political agenda. What used to be a dream is now a fact, and we can observe it in each of the
Declarations of the Presidential Summits. However, there has not been an improvement of the
quality of life for people in Central America, where poverty has been increasing. Now, and
hereafter, an additional effort is required to include the environmental aspects in the economic
development model and make it become part of the concerns of the productive sectors; which
seems the best way to improve the enforcement of and compliance with environmental law.
2 ENVIRONMENTAL LAW IN CENTRAL AMERICA
2.1 History
The history of environmental law as a Western legal concept in Central America stems
from Civil Code, enacted in all Central American countries in the nineteenth century. Early cases
decided under that Code include cases pertaining to hunting, fishing and forest resources, all of
which were viewed as part of the property where they were found. Water resources, always of
great value for community development, began to be regulated in the first-half of this century.
Forest resources began to acquire value and importance in the second-half of this century. Given
their strategic value, both mineral resources and the coastal zone have been declared to be in
the public domain under the constitutions of the Central American countries.
The defining characteristic of the first stage of environmental law in Central America is
compartmentalization. In this stage, the law has not taken into account that nature is composed
of interrelated ecosystems, requiring integrated global regulation to preserve the environment
as a whole. This systematic view is a product of the last twenty years, and has not yet developed
sufficiently in Central America. Democratic states typically adopt legislation in response to
established problems, resulting in uncoordinated regulation that mitigates rather than solves the
underlying problems.
The second stage of environmental law in Central America is characterized by an effort
to classify and systematize existing environmental law, revealing gaps in the law, overlapping
institutional jurisdictions, conflicts of law, etc. Efforts to systematize the environmental laws have
been underway for approximately the last seven years. Unfortunately, many of these efforts have
been isolated projects, not undertaken in any coordinated fashion.
The current stage of environmental law development is characterized by a legislative
effort to integrate and amplify existing law. In 1993, for example, Honduras approved a "General
Environmental Law" which recognized the most advanced principles in the field. The legislatures
of El Salvador, Nicaragua, Costa Rica and Panama are currently discussing proposed general
environmental laws. This legislative effort to establish comprehensive environmental regulation,
balancing conservation and development, to reorganize the administrative structure and to
strengthen the means of enforcement of the law, sets new horizons for environmental law in the
region.
Additionally, while legal scholarship has traditionally remained somewhat outside of the
developments in environmental thinking, there are now a number of lawyers who have formed
non-governmental organizations in each of the Central American countries, all seeking to assist
in the enforcement of environmental law.
-------
CORDERO, PATRICIA MADRIGAL 177
2.2 Constitutional treatment
All Central American countries, with the exception of Costa Rica, amended their
Constitutions during the 1980's to specify the obligations of the State with respect to protection
of the environment. Costa Rica finally amended its Constitution in 1994. The treatment of this
issue in the various Constitutions is not identical, but the following general trends can be deduced:
• They tend toward the recognition of the right to enjoy a healthy environment
as a human right (with greatest clarity in Panama, Nicaragua and Costa
Rica).
• There is a significant controversy concerning the conceptual parameters of
this human right, a subject of great importance, not only academically, but
also practically, in order to define the bases on which this right can be
exercised.
• They recognize that production and development must be based on rational
use of natural resources and environmental conservation.
• They contain a declaration that the following resources are in the public
domain: waters, coastal zone, continental shelf, air space, subsoil, and
nonrenewable resources (hydrocarbons and minerals).
The Constitution of Nicaragua has the broadest sweep, declaring all natural resources
to be the "national heritage."
The most sensitive subject is the protection and exercise of the human right to a healthy
environment in the context of other equally well established human rights, such as the right to
private property, and the right to free enterprise. This balance of individual and social rights is a
daily struggle, framed not only by the applicable constitutional provisions, but also by the value
accorded the individual in each society.
2.2.1 Guatemala1
The Political Constitution of the Republic of Guatemala, in Title II, "Human Rights," Chapter
II, "Social Rights," contains two important references consistent with the trends noted above.
Article 64 (Natural Patrimony), Second Section (Culture) states as follows:
The conservation, protection and improvement of the natural patrimony is declared
to be in the national interest. The State is responsible for the creation of national
parks, reserves and natural refuges, which are inalienable. The law is to guarantee
their protection and that of the flora and fauna which exist in them.
The Tenth Section (Economic and Social Regime) of Article 64 contains the following
Articles that refer to the Public Domain of the State: Article 121 (Property of the State), Article
122 (Territorial Reserves of the State), Article 125 (Exploitation of Nonrenewable Resources),
Article 126 (Reforestation), Article 127 (Regime of Waters), Article 128 (Use of Waters, Lakes
and Rivers).
2.2.2 Panama2
The Political Constitution of Panama is the only Constitution in Central America that
contains an independent, complete, chapter on the "Ecological Regime," contained within Title III
"Individual and Social Rights and Responsibilities." It provides as follows:
-------
178 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Article 114:
It is a fundamental obligation of the State to ensure that the population lives in a
healthy environment, free of contamination, in which the air, water, and foodstuffs,
satisfy the requirements for the adequate development of human life.
Article 115:
The State and all of the inhabitants of the national territory are responsible for social
and economic development that prevents the contamination of the environment,
maintains the ecological balance, and avoids the destruction of ecosystems.
Article 116:
The State will regulate, enforce and apply in a timely fashion those measures
necessary to guarantee that the use of the flora and fauna of the land, rivers and
seas, the forests, land and waters, is carried out in such a way that precludes their
depredation and assures their preservation, restoration and continued existence.
Article 117:
The law is to regulate the use of nonrenewable natural resources, with the goal of
avoiding social, economic and environmental damage.
Moreover, the Constitution of Panama is the only Constitution in Central America that
specifically addresses the prevention and control of environmental pollution. All other countries
focus exclusively on the protection of natural resources.
Title IX, The Public Treasury, Chapter 1, "Property and Rights of the State," identifies
the property of the State as follows: mineral resources, salt mines, mines, subterranean and
geothermal waters, hydrocarbons, quarries and springs (Article 254); territorial waters, flowing
and standing waters, their shores and banks, navigable waters, ports, deltas, air space and the
continental shelf (Article 255).
Chapter 1 also includes an interesting provision not found in any other Constitution in
Central America. This provision leaves open the possibility of the creation of additional public
property by action of law, stating that, "in all cases in which private property is converted to public
use, the owner of the property shall be compensated."
2.2.3 Costa Rica3
In 1994, Article 50 of the Political Constitution of Costa Rica was amended to establish
the right to a healthy and ecologically balanced environment as a human right, as follows:
The State will ensure the overall well being of all inhabitants of the country, organizing
and stimulating production and an adequate distribution of wealth.
Each person has the right to a healthy and ecologically balanced environment, and
is empowered to denounce acts which infringe on this right and to recover damages
for the harm done.
-------
CORDERO, PATRICIA MADRIGAL 179
The State will guarantee, defend and preserve this right. The law will determine the
responsibilities and the corresponding sanctions.
Prior to this amendment, the Constitutional Chamber of the Supreme Court of Costa
Rica had already stated that this was a fundamental right, relying on other constitutional provisions,
such as Article 21 which establishes the right to life and Article 89 which establishes as a cultural
goal the protection of natural beauty.
Article 121 prohibits the State from relinquishing public control of hydroelectric resources,
based on the nationalization of these resources which occurred prior to the drafting of the
Constitution in 1949. Deposits of coal, oil, other hydrocarbons and radioactive minerals as treated
in like manner.
Article 6, concerning territorial limits and sovereignty, creates a 200-mile zone of
territorial waters, with the aim of protecting and conserving the natural resources of this zone,
and ensuring Costa Rica's exclusive use of them.
2.2.4 El Salvador4
The Political Constitution of El Salvador sets out the following in Article 117, concerning
the public's interest in natural resources, Title V, "Economic Order":
The protection, restoration, development and use of natural resources is declared
to be a public interest. The State will create the economic incentives and provide
the technical assistance necessary for the development of adequate programs.
The protection, conservation and improvement of natural resources will be the
subject of special legislation.
Although there is no express reference to environmental rights in Title II, "Fundamental
Rights and Guarantees of the Person," this provision does establish, as part of the right to public
health and social assistance, the obligation of the State to control environmental conditions that
can affect health and well-being. (Article 69)
The public domain is identified in several different articles. Article 103 establishes that
the subsoil is property of the State and that the State may grant concessions for its exploitation.
Article 84 establishes that the territory over which El Salvador exercises sovereignty and
jurisdiction includes the territorial waters, air space, subsoil, continental shelf and the seas,
seabed and subsoil up to 200 miles from the low tide line.
2.2.5 Nicaragua5
The Political Constitution of Nicaragua includes the right to a healthy environment as a
human right. Title IV, "Rights, Obligations and Guarantees of the Nicaraguan People," Chapter III,
"Social Rights," Article 60 states:
Nicaraguans have the right to live in a healthy environment. It is the obligation of the
State to ensure the preservation, conservation and remediation of the environment
and of the natural resources.
Moreover, Title VI, "National Economy, Agrarian Reform and Public Finances," Chapter
I, "National Economy," Article 102 establishes that,
-------
180 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Natural resources are part of the national heritage. The preservation of the
environment and the conservation, development and rational exploitation of them
are the responsibility of the State, which may enter into contracts for their rational
exploitation when the national interest so requires.
Law 192, a partial reform of the Constitution passed in 1995 which precipitated a
constitutional crisis in Nicaragua based on its rejection of the executive power, did not change
any of the foregoing provisions concerning the environment.
2.2.6 Honduras
In the Political Constitution of Honduras, the basic obligation of the State to conserve
natural resources is located in the provisions pertaining to the economic regime. Nevertheless,
in Title III, "Regarding Declarations, Rights and Guarantees," Chapter VII, "Regarding Health,"
Article 145 states: "The State will conserve the environment adequately to protect human health."
Title VI, "Regarding the Economic Regime," Chapter I, "Regarding the Economic
System," Article 340 states:
The technical and rational exploitation of the natural resources of the nation are
declared to be of public utility and necessity. The State will regulate their use
according to the public interest and will establish the conditions under which they
may be granted to the citizens. Reforestation of the country and the conservation of
the forests is declared to be of national convenience and collective interest.
2.3. Jurisprudence
2.3.1. Citizen rights and enforcement authorities
A practical consequence of the recognition of the right to a healthy and ecologically
balanced environment as a human right is the procedural use of the established instruments for
the protection of the constitutional right.
The Constitutional Chamber of the Costa Rican Supreme Court has been able to develop
a substantial jurisprudence concerning the protection of the environment through the issuance of
constitutional injunctions, issuing opinions concerning a wide variety of subjects related to the
environment. In fact, the Constitutional Chamber had already recognized the right to a healthy
and ecologically balanced environment as a human right before the Constitutional amendment
expressly so stating was actually passed. In order to recognize this right, the Court relied on the
relationships between various existing constitutional provisions as set out in the following
paragraphs:
"Human life is inviolate." This is the constitutional principle from which arises the
undeniable right to health, physical, mental and social well-being, human rights
which are inalienably tied to the right to health and the obligation of the State to
protect human life.
Moreover, from a psychological and intellectual point of view, the emotional state is
also dependent on nature. Therefore, given the value of the countryside as a place
for rest and leisure, it is the obligation of the State to preserve it.
-------
CORDERO, PATRICIA MADRIGAL 181
Additionally, the Court has interpreted the concept of standing in Article 50 to include a
private right of action for any citizen seeking to use established legal means to protect the
environment, as paraphrased below:
With respect to the environmental right, the traditional narrow conception of legal
rights must be abandoned. The right must be understood as universal, belonging
to all people, rather than arising from limited notions of property ownership, rights
or concrete actions that can be exercised under conventional rules of law. A legal
action under this right can accordingly be described as an action in the "diffuse
interest" (public interest). Therefore, all members of the public equally affected by
any particular environmental wrong are empowered to bring an action to remedy
that wrong.
The Supreme Court of Panama also issued an important opinion in 1994 establishing
jurisprudence concerning the "diffuse interest." In that opinion, the Court recognized the standing
of the National Association for the Conservation of Nature, a non-governmental organization, as
a party which could oppose a logging permit. The National Association for the Conservation of
Nature presented an opposition before the National Institute of Renewable Natural Resources,
in which they argued that logging was not permitted in the area in question.
In the opinion, the Court expressly recognized the existence of diffuse interests or rights,
defined as "those rights whose holders are indeterminate, that have a supra-individual character,
that are indivisible under law and where there is no legal relationship between the holders of the
rights. These rights deserve the protection of legal process, and the jurisdiction of the Court
should be interpreted broadly in these cases.
The Court concluded that The National Association for the Conservation of Nature, an
organization created specifically for the public purpose of conserving nature and the environment,
had standing to oppose a logging concession and had the right to file an administrative complaint
seeking the nullification of the concession and the right to recover damages, all based on the
consideration that the alleged wrongful act harmed the "diffuse interests."
The growing interest in environmental problems and the increase in the number of
organized groups seeking resolutions to those problems suggests that there will be greater
citizen participation in demanding the enforcement of already existing environmental laws. In
addition to the daily pressure brought to bear in Central America, such as communities demanding
potable water and responses to the problem of solid waste, etc., the public will begin to exercise
its established procedural rights. It is here that the administration of justice will play a crucial rule
in the near future.
This growing public interest in the search for solutions to environmental problems will
be strengthened by the enactment of the general environmental laws currently under discussion
in all of the Central American countries, which have as one of their aims the promotion of public
participation in environmental issues.
This objective is one of the general principles identified above as characterizing
environmental law, and is growing stronger all the time. This is reflected in the Rio Declaration,
which states in Article 10: "The best method of dealing with environmental questions is with the
participation of all interested citizens at all appropriate levels."
2.3.2 Honduras
The General Environmental Law of Honduras is a good example of this approach, given
that it is the most recent and comprehensive legal instrument addressing environmental issues
in Central America. This law contains a public right of action:
-------
182 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
A public right of action is recognized in judicial and administrative matters in order
to obtain sanctions against anyone who contaminates or degrades the environment
and damages natural resources.6
This action has the following characteristics:
• It can be brought by any person. Consistent with the "diffuse interest" theory
discussed above, standing does not require that there be a subjective
personal interest or right implicated.
• The objective is to denounce (file a complaint). Nevertheless, a serious
limitation or restricted interpretation may result if the emphasis is placed on
the mere filing of the complaint without adequate attention to the resolution
of the underlying issue in the continued litigation. Public actions of this nature
promote greater participation in the initial complaint stage and in the
subsequent proceeding.
• Acts subject to protest include polluting acts or activities.
• They must be brought before the proper authorities. The Central American
countries have a wide range of institutions in the environmental area, with
occasionally overlapping expertise and jurisdiction. This may present an
obstacle to the exercise of the right of public action.
• A case must be officially opened in order to bring in evidence to prove the
allegations and to adopt the necessary remedial measures.
Section III of the Regulations under the General Environmental Law establishes the
following proceedings: the investigation must be initiated within five days, the investigation must
be completed within one month, and a finding that there has been no violation of law may be
appealed by any citizen.
2.3.3 Nicaragua
Article 179 of Title XV, "Regarding Administrative, Civil and Penal Sanctions," of the
General Environmental and Natural Resources Law Project of Nicaragua identifies the following
characteristics of an environmental action:
The following are entitled to bring action:
• All Nicaraguan citizens.
• Registered environmental organizations.
• Representatives of State agencies responsible for Natural resources,
including municipal authorities and autonomous governments.
• The Attorney General.
The intent is to increase the participation of all sectors of society in the enforcement of
the law. The action must be presented before the authorities or judge of the location where the
affected resource is located.
Liability is based on an objective standard, without regard to intent. Liability is established
upon a showing of proof of damage and the identity of the responsible party, without the need to
analyze that party's subjective intent. The only defense is that the harm was caused either by the
sole fault of the victim or by a third person for whom the accused is not responsible. The law also
provides for joint liability, the liability of legal entities, and the payment of compensatory damages.
-------
CORDERO, PATRICIA MADRIGAL 183
These brief commentaries indicate that the reinterpretation of traditional legal forms,
such as the expansion of the concept of liability, will increase public participation and render the
role of the administration of justice more relevant.
2.4 Administrative organization7
The form in which the State is organized to respond to environmental issues has been
influenced by the established model of development.
During the last 60 years, following an economic model based on agricultural exports,
the Ministries of Agriculture and Livestock obtained control over the exploitation of natural
resources. Gradually, agencies were created corresponding to each of the resources, each with
a utilitarian perspective: the Division of Fishing Resources (for the exploitation of marine
resources), the Office of Wildlife (for continental hunting and fishing) and the Forestry Office (for
timber exploitation).
Although the names vary between countries, ("Office," "Division," "Department,") the
reality is the same, i.e., administrative agencies charged with the exploitation of a specific resource
on a compartmentalized basis. These agencies typically have neither an integrated vision of
ecosystems nor policies based on sustainabilty.
In the 1980's, the economic model emphasized the reduction of imports and a
concomitant increase in exports, resulting in tremendous stimulation of the industrial and agro-
industrial sectors. At the same time, the conservationist movement was gaining strength, which
influenced the transformation of the various agencies from autonomous institutions into parts of
the existing state ministries or secretariats, changing their focus from exploitation to conservation.
Various protected areas began to be established at this time.
At the present time, the grave deterioration of natural resources and environmental
degradation is so obvious that the public is demanding action on the part of the government, and
the responsibility of the government to take action has been established as a constitutional
obligation. The compartmentalized agencies in charge of environmental issues have been
strengthened and transformed into official government organs, including for example, the Secretary
of the Environment in Honduras and the Ministry of the Environment and Natural Resources in
Nicaragua. Legal projects are underway to develop comprehensive environmental regulations
and to establish the functions and otherwise strengthen the institutions involved. Notwithstanding
this, the Ministries of Agriculture and Livestock, Industry and Commerce continue to exist,
demanding greater coordination and continuity in the government policies to achieve sustainability.
2.4.1 Guatemala
In Guatemala, the National Protected Areas Council is the agency in charge of regulating
the use and conservation of wildlife. It is organized as follows:
It reports directly to the President of the Republic.
The Council is composed of 14 representatives of the following institutions:
• National Commission on the Environment.
• General Forest and Wildlife Administration.
• Guatemalan Institute of Tourism.
• National Institute of Anthropology and History.
• Center for Conservation Studies.
• National Institute for Agrarian Transformation.
-------
184 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• Office of Control of Nation Reserve Areas.
• National Association of Municipalities.
• Friends of the Forest.
• Technical Education Board.
• Defenders of Nature.
• National Urban and Rural Development Board.
• One representative from the Committee of Associations of Commercial
Agriculture, Industries, and Finance Institutions.
• One representative from the non-governmental conservation organizations
that will be created in the future and registered with Consejo National de
Areas Protegidas.
This form of organization, intended to encourage greater public participation, has
produced a significant obstacle to the functioning of the Council, i.e., it is difficult to obtain the
quorum required fora meeting. Decision making is a lengthy process, and is subject to appeal
before the Ministry of Agriculture, Livestock and Foodstuffs. Some merely mechanical issues
such as preparation of the calendar of the agency are subject to the approval of the Congress of
the Republic.
2.4.2 Honduras
There are two Secretaries of State in Honduras with related jurisdictions: the recently
created Secretary of State in the Office of the Environment, and the Secretary of Natural
Resources.
The Secretary of Natural Resources has responsibilities in the areas of agriculture,
livestock, forests, mines, hydrocarbons, water resources and fisheries. The Honduran Corporation
for Forestry Development is an executive institution whose Protected Areas and Wildlife
Department is supervised by the Ministry of Natural Resources.
Secretary of State in the Office of the Environment has coordination functions rather
than executive responsibilities. It was created under the General Environmental Law of 1993. It
is responsible for carrying out environmental legislation, formulating and coordinating in an
integrated manner national policies concerning the environment, monitoring to ensure that these
policies are carried out, and coordinating public and private institutions. It has a Consultative
Board, composed of the Subsecretaries of State of the Offices of Planning, Coordination and
Budgeting, Natural Resources and Public Education, and representatives of the Association of
Municipalities, Institutions of Higher Education, the Federation of Non-governmental Environmental
Organizations, the Honduran Private Business Board, organizations of workers and farmers. It
also has a Technical Advisory Committee.
As a example of the dispersion of institutional authority, the Environmental and
Developmental Action Plan assigns the following aspects of watershed management to the
indicated agencies and institutions:
• The Secretary of Communications, Public Works and Transport handles
channelization projects and the protection of banks.
• The National Energy and Electrical Enterprise handles water resources for
the production of energy.
• The Honduran Corporation for Forestry Development handles forestry
management plans for the conservation of watersheds.
-------
CORDERO, PATRICIA MADRIGAL 185
• The National Geographic Institute handles the preparation of hydrogeologic
maps.
• Financial and technical agencies such as the Center for Tropical Agronomy
Research and Teaching and the Food and Agriculture Organization of the
United Nations are also involved.
Notwithstanding the number of institutions involved in watershed management, the
majority of watersheds are seriously degraded from their highest reaches, as a consequence of
a lack of available water for various uses and frequent natural disasters such as droughts, floods
and erosion of the soil.
2.4.3 El Salvador
In El Salvador, since the creation of the National Environmental Board in 1991, the
Executive Secretary has been responsible for preparing environmental policy proposals and
coordinating and supervising their implementation. The Board is comprised of the Ministers of
Agriculture and Livestock, Public Health and Social Assistance, Justice, Treasury, Public Works,
Planning, Economy, Defense and Public Security, Education, Interior, Labor and Foreign Relations.
Finally, a representative of the Salvadorean Municipal Development Institute is on the Board.
The Executive Secretary is the entity responsible for coordinating and monitoring
environmental policies and strategies issued by the Board to ensure their implementation as a
means of fulfilling the established goals of defending natural resources and controlling
environmental contamination. One of its first actions was the preparation of the Environmental
Agenda and Plan of Action.
Nevertheless, as in the rest of the Central American countries, there is "institutional
dispersion and fractionalization, administration of a resource by multiple institutions, resulting in
jurisdictional conflicts, duplication and rivalry with respect to the use and care of the resource.8
2.4.4 Nicaragua
In Nicaragua, the Ministry of the Environment and Natural Resources has the legal
capacity to regulate the use of the natural resources of the country. This institution, which became
a Ministry in 1993, was formerly an autonomous legal entity with an independent jurisdiction over
its own resources. It has unified a number of dispersed agencies, among them the General
Administration for Renewable Natural Resources, formerly located in the Ministry of Livestock
Development.
2.4.5 Costa Rica
In Costa Rica, there are two principal relevant institutions, the Ministry of Natural
Resources, Energy and Mines, responsible for renewable natural resources, and the Ministry of
Health, through the General Administration of Environmental Sanitation.
The Ministry of Natural Resources, Energy and Mines is composed of the National
Park Service and the General Administrations of Forestry, Wildlife, Geology and Mines. To
achieve consolidation of these functions, it is currently necessary to reinforce its mechanisms of
internal coordination in an equitable manner.
The discussion of watershed management in Honduras, illustrating the problem of
scattered institutional authority, is equally applicable to Costa Rica. Watershed management in
Costa Rica is accomplished through a large number of different institutions, with overlapping
jurisdictions, and no clear means of coordination between them. Moreover, these institutions
have different structures; some are Ministries, others are autonomous institutions or local
governments. These institutions include the following:
-------
186 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• The National Electrical Service, which regulates the use of public waters,
and grants concessions for their use.
• The Costa Rican Institute of Aqueducts and Sanitary Sewers, which supplies
potable water, collects and removes sewage, and operates the system of
storm sewers.
• The National Subterranean Waters, Irrigation and Drainage Service, which
is responsible for the development of farming through its irrigation and
drainage systems.
• The Costa Rican Electricity Institute, which is responsible forthe development
of hydroelectric energy. The Ministry of Natural Resources, Energy and
Mines, which is responsible for watershed conservation.
• The Municipalities, which are responsible for the provision of potable water
and the removal of used water AQUAS SERVIDAS.
2.4.6 Panama
In Panama, the National Institute of Renewable Resources is relatively new. Created in
1986, its functions are centralized. It is an autonomous legal entity with its own resources. It has
a board of directors composed of nine representatives:
• Minister of Planning and Economic Policy, the Vice Minister presides.
• Minister of Government and Justice.
• Minister of Education.
• Minister of Agricultural Development.
• Minister of Commerce and Industry.
• A representative from the conservation groups.
• A representative of the Union of Industrial Workers.
• A representative of the Association of Employees of the I nstitute.
• A representative of the loggers' union.
It is the obligation of the Director General, who is responsible for the technical and
administrative administration of the Institute, to designate and remove the executive body.
2.5 Legal regulations
The environmental laws in Central American are totally scattered. Natural resources
are regulated in a compartmentalized manner and regulations are promulgated based on different
uses of the same resources resulting in overlapping jurisdictions and limited instruments of control
and application.
The law suffers from deficiencies, inconsistencies, duplications, and
superimpositions with respect to its substance. Regulations have not been
promulgated for the majority of the laws, presenting legal gaps in decisions and
regulations. Regulations concerning resources are scattered, creating institutional
competition and turf battles with respect to resource management, rather than
working together to strengthen environmental protection. Some laws are very
general, others refer to regulations that were not approved in a timely manner, which
makes application of the law difficult.9
-------
CORDERO, PATRICIA MADRIGAL 187
2.5.1 Protected areas, forest resources and wildlife
The regulations concerning protected areas, forest resources and wildlife have principles
in common, but the instruments for their rational use are different. Nevertheless, in Central America,
due to the pressure to develop environmental laws, there are common regulations.
In El Salvador, Nicaragua and Panama there are no integrated laws regulating protected
areas. "The majority of the existing declarations have responded to political pressures of the
moment. There is no legal definition of "protected area" nor is there a definition of what should
be the categories for such areas.10
There is a regional trend to revise the policies concerning protected areas based on
the Convention for the Preservation of Biodiversity and Protection of the Priority Wild Areas in
Central America. There are also initiatives promoting proposed legislation in each country to
reform the law concerning protected areas. The objective is to conform the law of protected
areas to the actual circumstances. There is also a desire to make the categories of management
and use uniform. One of the most controversial subjects is whether and how private activities
may be carried out inside areas in the public domain.
Forest resources have been the object of legislative attention since the middle of this
century. The law and institutional coverage of this issue are ample. Some commentators are of
the opinion that there is excessive regulation of forestry issues, interfering with both the use of
this resource and its conservation.
In Guatemala, El Salvador, Honduras, Nicaragua and Costa Rica there is proposed
legislation to reform the existing laws.
On February 3, 1994, Panama approved Law No. 1 "which establishes the Forestry
Law in Panama and makes other provisions." On November 23,1992, Panama approved Law
No. 24, "which establishes incentives and regulates the activity of reforestation in the Republic of
Panama." This is the most recent forestry legislation in the region.
There is also a Regional Convention for the management and conservation of natural
forest ecosystems and the development of forest plantations, signed by the presidents of the
Central American countries on October 29,1993.
With respect to wildlife, Costa Rica, Panama and El Salvador have general wildlife
laws. These laws incorporate a focus on management of the resource for its conservation in the
context of regulating hunting and fishing as a use of wildlife. They also regulate other uses such
as animals raised in zoos, scientific collection, and other activities such as the import and export
of wild species, the introduction of exotic species and taxidermy.
In Nicaragua and Guatemala there are scattered provisions in the forestry regulations
concerning protected areas and in the 1956 and 1969 hunting laws.
The principal problem with respect to wildlife is the low perceived value of this resource.
Wild plants, excluding forest species, have not been subject to regulation, and have not been
assigned to the jurisdiction of any particular agency.
There has always been a close relationship between the administration of protected
areas and wildlife, which has resulted in shared jurisdiction over both resources within the same
agency. Perhaps the primary result has been the failure to protect wildlife outside of protected
areas.
There is no clearly defined concept of wildlife. It could be deduced that the concept is
implicitly restricted to the larger vertebrates. This is reasonable, given that the regulations primarily
address hunting and fishing.
-------
188 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Each of the countries in the region administer continental and marine wildlife separately.
Marine wildlife is regulated in each Central American country by a law concerning marine hunting
and fishing, dating from the 1950's. The object of this law is the exploitation of marine resources,
pursuant to a licensing system. Methods of fishing are regulated in some cases, but controls are
generally weak, as are the norms and policies established for the conservation of the resource.
It is very rare that any country (developed or developing) achieves efficient use of the
seas. Like the land, the sea is a multiple-use resource, which provides food, transport,
minerals and quarries, the production of oil, recreation and elimination of wastes. But
contrary to the land, there are few efforts intended to regulate this multiple-use.
The organization of the administration of marine wildlife is even more complicated than
the regulation of continental wildlife. Administration is through decentralized and centralized
autonomous institutions with jurisdictions over specific resources. These institutions make no
effort to operate in an integrated manner, resulting in duplicative and conflicting efforts and
dispersion of resources.
The following charts, setting out the existing law on protected areas, forest resources
and wildlife summarize the legal norms applicable to renewable natural resources. As noted,
these laws are oriented to resource exploitation, the instruments of control and application are
very weak, and the focus is on specific sectors.
To avoid the errors of the past, a legal standard should be enacted which allows the use
of resources, but which also guarantees their conservation, with an institutional structure sufficient
to exercise adequate control. Such a standard should be based on parameters of renewability
and respect for those species which may not have current economic value, but which may
acquire such value in the future. This is the heart of the concept of sustainability, which seeks to
not foreclose the development options of future generations.
2.5.2 Water resources
The grave problem of administrative dispersion in relation to environmental
competencies and jurisdictions over natural resources is manifested even more clearly with
respect to water resources. Although this issue is discussed with reference to Honduras and
Costa Rica, the situation is unfortunately similar in the rest of the countries of the region.
Many laws and regulations are addressed to the use and management of water... but
there is no law which combines the various aspects of water management, just as there is
no law that regulates water quality.11
2.5.3 Conclusions
There are defects, gaps and duplications in normative texts, but the major problem is a
legal structure that has not been applied, not by private individuals and not by the State. The real
challenge is to ensure the application of existing law, through respect for the law on the part of the
citizens and by the application of it by public institutions.
-------
CORDERO, PATRICIA MADRIGAL 189
3 REFLECTIONS ON THE ENFORCEMENT AND COMPLIANCE OF
ENVIRONMENTAL LAW IN CENTRAL AMERICA
3.1 A concrete experience: the wildlife program for Central America
Since 1993, legal and institutional assistance has been provided to the Wildlife Program
for Central America, of the Regional Office for Mesoamerica, of the World Conservation Union.
It has been a challenge to be able to work on wildlife management, with the objective of improving
the quality of life of the people, especially with the most impoverished sectors of the society. An
interdisciplinary work team has been consolidated. Environmental law is characterized for being
interdisciplinary and transectorial. We have had to pass over from the theory to the practice. The
professional and personal enrichment has been enormous and important.
This final part of the work, is centered exclusively on the most relevant aspects of this
experience, trying to extract some lessons that can be useful to the Law. The characteristics of
the World Conservation Union, as a regional institution of the Program where assistance is
provided, the lessons learned from the Demonstration Projects and a general conclusion on the
most important aspects to be taken into account in the development of effective and efficient
juridical instruments will be briefly presented.
3.1.1 The wildlife program for Central America, of the regional office for
Mesoamerica of the World Conservation Union
The World Conservation Union is an international non-governmental organization,
constituted since 1948. It is a Union of sovereign States, governmental entities, and non-
governmental organizations. Its primary interest is to encourage scientifically founded action
which establishes links between the environment and development, with the aim to promote
improvement in the world populations' quality of life. There is a commitment to try to assure that
the human utilization of natural resources occurs in an appropriate, sustainable and equitable
manner.
The World Conservation Union has a Regional Office for Mesoamerica, with
headquarters in San Jose, Costa Rica. Its purpose is to provide services that are required by its
members in Mexico, Central America and Belize.
Wildlife is one of its programs. It is founded on the premise that the controlled use of
wildlife is an alternative to the strict protection of the resource. By effectuating a sustainable use
of the wild resource, biodiversity is preserved, as the ultimate aim, which is vital for its development
and that of future generations.
The Wildlife Program for Central America, came to being at the adoption of Resolution
18:24 in the 18th is sustained on the principles and criteria of "Caring for the Earth" (A Strategy
for Sustainable Living); whose basis is the establishment of an ethic for the care for nature and
people, and sets up actions that are reinforced by acquiring an individual, local national and
international character.
The program of the Regional Office for Mesoamerica, parallel to the Strategy for Caring
for the Earth, tries:
• To respect and care for the community of life, by proposing actions that
directly benefit the conservation of wildlife and the habitat that sustains it at
the long-term.
-------
190 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• To improve the quality of human life. This work is based on a triangle where
the user's role is of equal importance to that of the wild populations' or the
habitat. Here, any action should be based on a serious analysis of the social
and economic situation of the human communities.
• To enable communities to care for their own environment, by promoting and
facilitating the management of species which are of interest to the rural
communities, as well as securing a just profit for the traditional users from
the resources' exploitation.
The Wildlife Program for Central America, has achieved actions:
• To promote the sustainable use of wildlife resources for the improvement of
the quality of life of the rural population in the Central American region.
• To assist the Central American governments and non-governmental groups
in their wildlife resource management programs with technical,
administrative, legal and inter-governmental cooperation aspects.
• The implementation of demonstration projects for the sustainable use of
natural resources in Central America.
Community wildlife demonstration projects have been developed in:
• Guatemala: community management of fauna species in Uaxactun, within
the Mayan Biosphere Reserve, in Peten.
• Nicaragua: community management of garrobo in semi-captivity.
• El Salvador: community wildlife management project in La Laguna de
Jocotal.
• Costa Rica: community management of alligator in the Cano Negro Wildlife
Reserve.
• Panama: management of paca and green iguana.
These demonstration projects are carried out through governmental and non-
governmental organizations in each of the countries. As well, the program has proposed the
establishment of a network of technicians who work in the region. It will be formed by those
professionals interested in wildlife management, and will permit a better transfer of information
and technology in the aspects related to this subject.
The activities of the Wildlife Program for Central America are developed according to
the following conceptual framework:
• That biodiversity is a vital resource, indispensable for survival, important for
the economic, social, cultural, esthetic use which should be conserved for
the benefit of present and future generations, in all of the Central American
territory, within as well as outside of the protected areas.
• That wildlife is a shared resource, which doesn't admit geographic or
administrative divisions and that requires, in many cases, measures for
protection and regional controls for its adequate conservation at the long
range.
• That rural communities depend and have depended on wild resources
throughout the years for their well being and development. That the
sustainable use of biodiversity improves the quality of life of human
communities.
-------
CORDERO, PATRICIA MADRIGAL 191
• That the traditional knowledge of native communities regarding the use and
exploitation of wildlife resources is very valuable.
• That women have knowledge and fundamental experience in the use and
exploitation of wildlife resources, as well as in the education for its
sustainability.
• That the State should regulate the distribution and the equitable access to
the resources, balancing between the inclination for profit at the short term
and social interests at the middle and long range.
• That the law is an instrument that can promote community participation in
wildlife management, and that the norms that regulate the sustainable use
of natural resources should be based on scientific and traditional knowledge.
3.2 The wildlife program for Central America: the juridical and institutional
emphasis
Since 1993, the Wildlife Program of the Regional Office for Central America of the
World Conservation Union has developed actions on environmental legislation matters, specifically
regarding wildlife.
One of the objectives of the Wildlife Program is "to contribute to the development of
basic elements for the elaboration of a strategy in environmental legislation that permits community
participation in wildlife management, through effective and efficient instruments".
The Program's juridical and institutional aspects have elaborated a plan of activities
which include:
3.2.1 A diagnosis, in each country of Central America, of the situation
concerning legislation and institutional structures, for wildlife conservation
matters
Its analysis was focused on the possibilities for community participation in its
management. This research project had a duration of 2 years and involved natural science and
law professionals, with the aim to obtain a interdisciplinary focus. At the end of 1994 a book
entitled "A necessary encounter: the management of wildlife and its juridical regulations. A Central
American diagnosis" ("Un encuentro necesario: el manejo de la vida silvestre y sus regulaciones
juridicas. Un diagnostico centroamericano"), was edited by M.Sc. Vivienne Solis and Lie. Patricia
Madrigal.
The general objective of publishing this book was to motivate an awareness of the
need for each country's political authorities to tend to administrative aspects and wildlife
management more rigorously, while also providing systematic information which is of interest to
different organizations and academic and research institutions.
3.2.2 Legislative assistance in the elaboration of wildlife conservation laws
According to the above mentioned diagnosis the regulation of wildlife in the broad sense
is one of the gaps at the Central American level. Therefore, at the request of the corresponding
legislative bodies, Costa Rica and Panama have been assisted in the elaboration of Law Projects
on this matter, which are now in effect, and a process has been initiated in Nicaragua.
-------
192 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3.2.3 Research and diffusion
Interdisciplinary work and "demonstration projects", as spaces for observation and
learning, have permitted the systematization and analysis of the main conclusions for the
consolidation of a juridical outline.
This enrichment offers the possibility of providing juridical assistance with knowledge
of the reality and an adequate evaluation of the socio-economic circumstances.
In the search for ways to reach the proposed objective of promoting the sustainable use
of wildlife resources to improve the quality of life of the rural population in Central America,
demonstration projects have been established in various countries of the Region.
3.2.3.1 The sustainable use project in La Laguna de Jocotal
The Project is developed in La Laguna de Jocotal which is located in the southeastern
zone of El Salvador. This lagoon has a great variety of wildlife including aquatic plants and
resident fauna, especially birds, some migratory and in danger of extinction. Its size changes
according to the dry and rainy seasons that causes legal problems regarding its boundaries.
The Project is implemented by different organizations that promote community
organization and education for the sustainable use of their natural resources. Nesting cages
have been installed for patos arb6reos or "piches", harvesting their eggs for consumption and
exchange.
3.2.3.2 Community management of the black garrobo (ctenosarura similis) and the
green iguana (iguana iguana) project in Cosiguina
This Project is located in the Cosiguina Peninsula, in the northeastern zone of Nicaragua.
The Cosiguina Volcano is found in the Peninsula, which was declared a Wildlife Refuge in 1956
and as a Natural Reserve in 1983. The activities of the Project are carried out in the buffer area.
Its objective is to promote community participation in the sustainable use of wildlife,
with emphasis on the reproduction of the iguana andgarrobo. This is accomplished by developing
new productive options and a diversification of economic activities to improve the quality of life
and the sustainability of the Project.
3.2.3.3 Community management of wild fauna resources project in Uaxactun
The Project is developed in the community of Uaxactun, located in the heart of the
Mayan Jungle, in Flores of the Peten Department, Guatemala.
Its objective is to develop community management plans for the sustainable exploitation
of the fauna species which are used by the community for consumption. These plans will
incorporate traditional knowledge and be supported by scientific and social research.
3.2.3.4 Institutional strengthening for the control and conservation of wildlife
resources project in Panama
Its objective is to increase the capacity of the Institute for Renewable Natural Resources
(Institute de Recursos Naturales Renovables so it can provide extension services to rural
communities, for wildlife management, in the Canas Island with marine turtles and in Cabuya
with the green iguana.
These projects have motivated the following reflections around real situation.
-------
CORDERO, PATRICIA MADRIGAL 193
During the first trimester of 1995 an exchange was held between the technicians of
each one of the projects, to visit and learn about the experiences developed by the others. The
following reflections are the product of this systematization process. From the local experience,
great inputs are extracted for a global analysis, trying to transcend the problems for local
development to the obstacles that are found at the national level.
3.2.3.4.1 Strengthening the rules of law and the expansion of democracy,
indispensable requisites of environmental legislation. The teachings of
the "La Laguna del Jocotal" project.
"The campesinos don't have property titles. This is the reason that they don't invest".
Land tenancy is one of the conditions required to undertake conservation actions. See
for example, the situation in El Salvador, in relation to the absence of an up-to-date and reliable
Registry System, that guarantees the juridical security of the land.
In order for grassroots groups to approach a conservation strategy, there are relevant
juridical aspects to be defined. The most important without a doubt is the definition of land
ownership. This factor causes serious obstacles in our countries where Democratic Systems
are barely in a process of establishment, since the governments have been elected "democratically"
only five years ago.
Great differences exist between the catastral and registered information. The case of
La Laguna de Jocotal, from the strictly juridical point of view, doesn't offer major problems.
Based simply on the Legislation which is currently in effect, a lagoon is of public domain, and
therefore is inalienable and inadvisable; it can't be inscribed by any one person, and in the case
that it has been doesn't grant him/her any acquired rights.
Nevertheless, reality is totally different. La Laguna del Jocotal has been inscribed by its
adjacent landowners. According to the Property Registry, the lagoon doesn't exist, it is an "optical
illusion". Even though judicially it can not have generated any right, if a protected area were to be
established, the supposed owners would have to be indemnified.
Groups that have greater access to the inscription of properties have economic, political
power and strongly defend their interests. For this reason, it is not of interest to look for alternative
ways for granting property titles to the persons who live in the villages that border the natural
areas. Due to the lack of property titles in these extremely rich areas, pressure groups have
tremendous interest to inscribe them as their own, despite the fact that the villagers are the real
owners.
To develop a Conservation Policy, the State as an organization of society, definitely
should exercise a Rule of Law and having advanced democratic society place more attention to
these structural requisites:
• Free electoral systems.
• Representativity of public positions.
• Anticipation of civil society.
• Administration of autonomous and independent justice.
• Reliable property registry systems.
The strengthening of the Rule of Law implies the struggle against corruption; this is
extremely important for the control of one of the causes of irrational exploitation of natural
resources.
-------
194 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3.2.3.4.2 "No one can be obligated to do the impossible". With hunger there can
not be conservation. The teachings of the "Cosiguina" Project.
Carlitos is a nine year old. While visiting the Project in Cosiguina he asked us to take
him to Chinandega. A Military Police check point was searching the vehicles this day. In his
knapsack Carlitos carried a garrobo (black iguana) and three baby parakeets, still without
feathers. Seeing our surprise, he calmly told us after they had taken away the animals from him
and we had started on our way again: "Thankfully they didn't find the biggest iguana that I have
with me which is pregnant".
Trying to contain all of the mixed emotions that this event produced in us, we understood
that in the Chinandega market the equivalent of US $ 0.70 was paid for these iguanas and US
$ 0.10 for the parakeets. The day before Carlitos had also gotten three parakeets. Each day he
had to climb higher up the mountain of the Cosiguina Volcano, to reach the parakeets' nests.
When we affirm that the communities live from the resources that are found in the woods,
many times we are saying that they "survive" thanks to these resources. The animal protein in
their diet comes from these resources; they use the leather; extract seeds, mushrooms, wood,
water...
Unfortunately the use of the woods at this rhythm doesn't permit the recuperation of the
ecosystem. In all the Demonstration Projects that we visited it is recognized that "day by day it is
harder" to obtain the resources. It is extremely difficult to break the circle of misery and allow for
the rational management of the natural resources. For these communities, even an income of
US $ 4.00 is a benefit to its quality of life.
Therefore, it is imperative that Demonstration Projects enable the observer to transcend
each country's structural reality and analysis of economic and social policies. It is here where a
feeling of frustration and impotence stems from.
The Law as regulator of social harmony, is a product and forms part of this political and
social structure, one of the consequences being the despairing poverty of our countries.
Its response has been slow. Only sanctions have been included as application
instruments in the laws that are intended to conserve the fauna, Not only pecuniary sanctions,
like fines, which surpass the majority of rural families' incomes by various months to a year, but
with penalties that restrict freedom, in other words, jail. Without even mentioning the problems
that are encountered in the Administration of Justice in each country, sanctions have been
established that are due to the non-application of the laws.
This repressive juridical system has to change, it must be modified, and converted into
a preventive juridical system, which procures environmental conservation objectives, providing
opportunities for its management.
3.2.3.4.3 For broad participation in the elaboration of juridical instruments. The
teachings of the "Uaxactun" project.
For some years, the National Council for Protected Areas (Consejo National de Areas
Protegidas) has been preparing a Hunting Seasons Calendar. The elaboration of this wildlife
conservation instrument has taken five years, and still has not been approved, since the Bylaws
of the Law of Protected Areas establishes the need for it to be approved by the Congress of the
Republic.
It is definitely inadequate to demand the approval of a technical conservation instrument,
which in addition should be reviewed and modified periodically, by a deliberative political body
such as the Congress of the Republic.12
-------
CORDERO, PATRICIA MADRIGAL 195
This is precisely the reason that the Hunting Seasons Calendar Project has not yet
been put into effect. The existing norms regarding the continental wildlife resource are found
mainly in the Law of Protected Areas and its bylaws. A General Hunting Law of 1970 also exists,
which has practically fallen into disuse.
For the inhabitants of Uaxactun, where the Demonstration Project is being developed,
hunting has a high economic and social value; it is essential to sustain their daily diet. So, it is not
just a casual interest that brought them to discuss this Hunting Seasons Calendar Project.
The Demonstration Project in Uaxactun originated in the discussion of this juridical
instrument project with the inhabitants of this community, and is a real example which
demonstrates the importance of holding discussions with those groups that will be the most
affected by the approval of a juridical norm. This is important for the enrichment of the process of
elaboration of the norms, which without a doubt will lead to a better application of them and fulfill
the established objectives.
The technicians who work in this Project began a process for diffusion and discussion
with the community's inhabitants, which has a broad hunting seasons tradition. The following are
the main aspects that came out of this process:
Both the Consejo National de Areas Protegidas Law, which was just approved, and the
first draft of the Hunting Seasons Calendar Project, evidenced a great contradiction between
the prohibition of many activities and the reality of a rural community which is accustomed to an
intense and diverse use of the woods.
Originally they had been conceived more for sports hunting than for subsistence hunting;
they hadn't sufficiently evaluated the importance that hunting has as a source of animal protein in
this country's family diet.
The Mayan Biosphere Reserve (Reserva de la Bidsfera Maya), an extremely rich
extension, still has a woods with a broad surface area which is expansive enough to sustain
large, healthy and stable seasonal animal populations.
Some conclusions have been drawn from this Consultation Process with the local
hunters, who with great pragmatism and common sense gave their opinions on the Hunting
Seasons Calendar Project. As follows are some examples of the opinions that have were
expressed:
With regard to hunting licenses which could be granted per family, the Project limited
the license's use to three family members, but in this community the families are large, with an
average number of 5 persons.
It outlined specific days for hunting; sports hunting from Thursday to Sunday and
subsistence hunting from Monday through Thursday. This was qualified as being absurd; the
days of the week are not the factor that defines when a person is going to go hunt. This is a point
where traditional practices that have been developed by these communities for thousands of
years should be taken into account and be respected.
It makes it obligatory to carry a booklet with the species hunted, which should be handed
over to the Municipality every year. Hunting quotas for the next year will then be defined using this
information. Without a doubt this point will provide a good quantity of very valuable up-to-date
information. With regard to this aspect, the Community also manifested their wish to have this
information.
The only hunting techniques established included fire-arms and bows and arrows. As
well, the use of other hunting techniques which are used locally such as snares, slingshots, lures
for mammals, bait, dogs, tiger traps (tigreras) is prohibited; the calibers of fire-arms which are
included are unknown to the inhabitants and do not correspond to those fire-arms that they
possess. The prohibition should be restricted to poisons, toxic substances or artificial light
(flashlights, lanterns, etc.).
-------
196 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
It establishes that the hunters who hunt for domestic consumption should not hunt more
than that which will be used to feed their own families, but inl/axacMnthe inhabitants eat half of
what they hunt and sell or exchange the other half within the community for other goods. There is
no profit in this exchange or sale; the community doesn't want the price of meat to go up.
With regard to "sports hunting", the community prefers that it not be allowed in the
surrounding areas, or at least that limits be established. For example, that a local guide be used
or that a hunting fee be paid.
In spite of the fact that the intention is to elaborate a prevention law, for conservation of
the fauna, it includes few control instruments, and these are limited to vigilance by the Municipality
and the community, but they do not give them defined attributes. The orientation of the laws
which are in effect in the Central American region continues to establish sanctions of fines on
these aspects. These fines are set at five hundred quetzals which presently is equivalent to
some 75 to 80 US dollars; this is the annual income of a family in Uaxactun.
The Consultation Process which was carried out is an example that should be followed
in the elaboration of juridical instruments which will have an impact on the rural communities.
3.2.3.4.4 Institutional commitment in the elaboration of regulations. The case of
Panama.
The legislative initiative is shared by the Deputies, as members of the Legislative Power,
and by the Executive Power. Approval of the laws is an exclusive capacity of the Legislative
Power. Nonetheless, in reality the Executive Power normally exercises the legislative initiative,
submitting for approval the Law Projects of its interest, and directly influencing on the establishment
of the Legislative Agenda.
In Panama the Environmental Commission of the Legislative Assembly has taken up
this function by seeking advise needed to elaborate a General Wildlife Law Project, looking for
support for the process from the Executive Power. This example constitutes a revindication of
the Legislative Power in its function to elaborate the legal legislative framework.
The Wildlife Program and in the Environmental Legislation Center, of the World
Conservation Union responded to the request for support for the elaboration of this Law Project.
The former, providing technical assistance through the Regional Office and the
Committee of Panamanian Wildlife Specialists, professionals, scientists, from governmental
and non-governmental bodies, met for eight months to discuss what should be included in a
norm related to this subject in their country.
The Environmental Legislation Center contributed juridical assistance through a regional
advisor and a national advisor, who participated in this process by collecting the recommendations
made by the Group of Specialists and reflecting on the most suitable juridical instruments.
An important part of this process was the consultation made in the governmental
institutions directly related to this subject and in the non-governmental conservation organizations
and users of this resource, whose purpose was to collect their recommendations and opinions.
This consultation workshop was not an expository event to gather the participants' endorsement,
but rather was an activity of intense work; for 3 days, 45 people dedicated an average of 8 hours
daily, to substantially modify and enrich the foundation document that had been presented to
them.
The Environmental Commission of the Legislative Assembly and the Department of
Protected Areas and Wildlife of the Institute for Renewable Resources (Instituto de Recursos
Renovables) maintained close contact during the entire Process, supporting and recognizing
the work being carried out. The notable participation of the Supreme Court of Justice and the
-------
CORDERO, PATRICIA MADRIGAL 197
Office of the Environmental Ombudsman should be emphasized, due to the importance they
should play in the elaboration of the juridical instruments and the care taken in the aspects of
Justice Administration.
This process, where coordination among the Powers of the Republic, institutions, and
between the State and civil society converged, while maintaining a balance between scientific
and juridical aspects, is an example that brings us closer to a correct elaboration of the law.
4 CONCLUSIONS
There are two levels of final reflections, first in global terms for Environmental Law and
the State; and second, in specific terms for regulations concerning wildlife matters.
4.1 Global reflections on environmental law and the state
According to the activities developed during the past two years, four main conclusions
can be made which are obstacles to the actions needed to overcome the weak enforcement
and low compliance of the Environmental Law:
• The absence of structural conditions which assure a Rule of Law.
• The growing poverty in the region.
• The scarce participation in the elaboration of juridical instruments.
• The weakening of the State.
Little by little, Central America should overcome the difficult period of social confrontation
that it has been affected by, achieving a social concentration that permits the strengthening of
the Rule of Law, that satisfies the basic needs of the people.
The Rule of Law doesn't just come to be "per se", it must be constructed. In our Region
institutional forms that diminish poverty should be found.
We have witnessed a reform of the State, in each and every one of the countries of the
area; a large number of public officials have mobilized trying to reduce non-essential services
and be more efficient. This process has weakened the State as we have known it up to now.
Although it is true that the figure of the assistentialist State is not sustainable, public obligations
which permit a country's development cannot go unfulfilled.
One of these public obligations, undeniable and non-transferable, is the conservation
of natural resources and of the environment. The contrary would be to mortgage the options for
development. If the state's present orientation recommends the decrease of activities where the
State is executor, its function as comptroller, as auditor, should be strengthened.
Two fundamental events should occur:
• A way to reduce poverty is the promotion of the sustainable use of natural
resources. The rural communities should be capable of using their natural
resources, in accordance with their cultural and millenary traditions,
accompanied with scientific assistance, permitting the resources'
sustainability.
• A greater participation in the establishment of norms that regulate this
sustainable use, guaranteeing the best enforcement and compliance.
-------
198 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4.2 The elaboration of norms should first take into account the socio-
economic-cultural conditions of where they will be enforced
This conclusion has led us to think that Environmental law should stem from two sources.
Traditional knowledge which collects the habits, knowledge and traditions that historically have
regulated the relationship between the native communities and the use of natural resources.
Traditional knowledge coming from the autochthonous groups, should be recovered
and analyzed, to discover principles for environmental management. These millenary traditions,
experienced by native groups, should enrich the present reality. The past is a source for analysis
of the present.
4.3 Scientific-technical knowledge
Scientific-technical knowledge helps when providing explanations or solutions to the
historical environmental problems and can offer current development instruments.
Environmental Law is converted into a catalyst from these sources, where the different
sectors of society interact according to their interests, to find new forms of harmony. In this sense,
the State has a fundamental role to try to balance these interests for the common good.
4.4 Specific reflections for legislation on wildlife
Based on the legislative assistance which has been provided over the last years to
regulate the wildlife resource, these should procure that:
4.4.1 The object of a wildlife law should encompass a broad concept of this
resource
Wildlife legislation, during the first half of the century, has been fundamentally oriented
towards the regulation of hunting. For this reason, its objective has mainly been fauna, leaving
aside other components of this resource, such as flora, fungus, microorganisms, alga, etc.
Presently wildlife legislation encompasses a concept which is much broader than just
vertebrate animals, and includes all the kingdoms that Science, in its development has identified
and classified (see figure 1).
Wildlife is defined as a union of living organisms including the monera, protista, fungi,
animalia and plantae kingdoms; these live in natural conditions in the national territory and do
not require care by human beings for their survival or else live, temporarily or permanently, in
non-natural conditions.
4.4.2 The sustainable use of wildlife should be promoted, above all by rural
communities
To achieve wildlife conservation different systems have been used, like resource
conservation in the place where these are found; for example, "conservation in situ" through the
establishment of protected areas. It has also been accomplished by "conservation ex situ", which
is to say the conservation of wildlife resources outside of the areas where they are found in a
natural manner, for example in zoos, botanical gardens, etc.
The term conservation is used in a broad sense, accepting wildlife management
activities. For example, a rational use of this resource can be achieved through farming and
ranching of wild animals. The reproduction of wild animals can have commercial ends, which is
characterized by their objective to make a profit, but it also can be undertaken by the communities.
-------
CORDERO, PATRICIA MADRIGAL 199
The participation of the communities in wild animals ranching and farming allows for the
improvement of their alimentary diet, by including more protein content; it achieves the
conservation of forest coverage and thus, of water nascents; and can provide additional income
stemming from the exploitation of woods products and wild animals.
4.4.3 The law should be enforced by the authorities and should be complied by
everyone
At this time, the greatest challenge to the Law is the enforcement of the juridical
regulations and their forms of control.
When the difference is established between formal "reality" which is set up in the juridical
texts and the objective "reality" that we see day to day, we become aware of the divorce between
both. Today, this is the subject of major reflection by jurists and by all the society in general.
The real possibilities for enforcement and compliance of the reglamentation that is
sought to be established, should be questioned. This question should be present from the very
moment of the regulations' elaboration, because it affects each one of the matters that are
posed.
The communities should participate and understand the existing regulations and their
importance for the conservation of local resources. A growing interest exists to recover "traditional
knowledge" which is the key to the rational use of natural resources by a portion of autochthonous
groups. The recognition of its importance should not solely be academic, but should influence on
the elaboration of policies and regulations, in a manner that permits the inclusion of ethnic
considerations and the enrichment of the juridical and institutional system with other types of
instruments.
4.4.4 Control instruments for application of the law should be preventive and
exceptionally repressive
The penalization of the conduct that attack wildlife conservation has been used as a
control instrument in the norms that regulate this resource.
Practice has demonstrated that aggressions against wildlife resource still are not
penalized, which is needed for them to be converted into penal crimes, and sanctioned with
prison terms.
Judicial authorities do not see this as important, comparing them with other aggressions
like those against property, such as theft or robbery, or against human life, in the case of lesions
or homicides. Due to the volume of legal proceedings that are managed in a judicial office, it is
difficult for these denouncements to be resolved, and even harder to obtain an exemplary sanction.
The classification of conduct should be directed towards really grave conduct, like the
trafficking of species.
The use of penal law is the "last step", an instrument that should be used as the last
consequence in an environmental policy. The legal proceedings of the State should be oriented
somewhat according to the Precautionary Principle, which is included in the Rio de Janeiro
Declaration, which demands that actions be taken even though no scientific certainty regarding
the causes of a determined problem exist.
4.4.5 Implications of wildlife legislation on biodiversity
Wildlife is an important part of biodiversity. At this time, the pressure exercised on
biodiversity, occurs in the wild part. A type of legislation is required that sees to the conservation
of this resource in an integral manner, but most of all one which answers the need to establish
controls that permit its enforcement and compliance.
-------
200 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
At this time some regulations on wildlife exist, on hunting aspects, but there is a total
absence on biodiversity. The establishment of controls and regulations should be gradual,
according to the institutional capacities of each country, but with a vision of sustainable use of
the resources in benefit of their quality of life.
Recently, at the request of the Commission for Environment and Development of the
National Assembly of Nicaragua, we have initiated a diagnosis on the juridical and administrative
situation of this country's biodiversity.
The goal that we have established is the preparation of a law project that will fill the
existing legal gaps, procuring effective (enforcement) and efficient (compliance) instruments.
Nonetheless, this legal initiative should be placed within a conceptual framework which
procures that the management, control and distribution of the resources, as well as the benefits
derived from the use of the biodiversity, are carried out with:
• Community participation.
• Respect for traditional knowledge.
• Equity (between men and women).
• An evaluation of the impact of the economical policies on conservation.
Nicaragua has a national strategy on biodiversity. Its objective is to search for alternatives
for a juridical strategy that consolidate a juridical legal framework according to these purposes.
The following has been defined as the work structure:
There has been a great discussion over the concept of biodiversity which will be used.
For now, it has been defined with an emphasis on wildlife, continental and marine resources; the
resources which will be considered wild resources are those previous to human manipulation,
whose aim is domestication.
Regarding biological and biotecnological resources, there is a discussion about what
it the order of domain: who does this resource belong to? What the concept of property implies
as far as domain, use and benefit are concerned.
• The regime of intellectual property.
• The access to genetic resources.
• The evaluation of environmental impact for the control of exotic species.
• Research and technological transfer.
As far as conservation in situ:
• Protected Areas: The efforts to grant the administration of protected areas
to local organizations such as municipalities or autonomous regions; or the
systems of associated property, which grants the property to men and
women, in buffer areas.
• Lists of threatened species.
• Traffic.
• Research (the departure of endemic species from the country, forms of
control).
Conservation ex situ:
• Zoos, botanical gardens, seasonal farms, animal farms/ranches,
germoplasm banks.
• Reintroduction of wild species: recovery centers.
-------
CORDERO, PATRICIA MADRIGAL 201
Figure 1
Higher plant*
Ferns
Cellular
slime molds
Metazoa
Most fungi
Acelhilar I Red
slime molds! algae
Multicell
green algae
Unicellular
green algae
Brown
algae
Flagellates
Parazot
(sponges)
Amoebae
Euglenoids
Dinoflagellates
Cyanophyt
Eubactei
Oiry»ophyte*
Diatoms
f
Protospongia
Cttiate protozoa
Methanogentc bacteria
(e) WHTTTAKER'S FIVE-KINGDOM SCHEME
Robert A. Wallage, Jack L. King, Gerald P. Sanders
"BIOLOGY, THE SCIENCE OF LIFE"
Editorial; Scott, Foreman and Company. 1981.
p.403.
-------
202 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Incentives
In each one of these subjects the following items will be analyzed:
• International norms.
• Background regulations.
• Administrative procedures.
• Institutional capacity.
• Enforcement-compliance analysis.
This process for the elaboration of a wildlife law, which develops the orientations
established by the Biological Diversity Convention, has been designed using a broadly
participative methodology, mostly because this country is the most advanced as far as social
organization.
Finally, in this era of demystification, the Law should surpass some premises, such as:
• "No one can plead to be unknowledgeable of the law." If permanent diffusion
programs, training and the discussion of juridical norms do not exist, this
aphorism doesn't apply to reality. The reality is that the majority of the citizens
are ignorant of the laws.
• "Norms should be general, enforceable for all." In a region of great cultural
wealth, diverse ethic and autochthonous groups, immigrants, some
differences should be recognized. In order to respect cultural dignity,
principles for interpretation should be included in the law which recognize
these differences.
There is an estrangement between the moral and legal content in the Law, there is a
lack of ethic, revalidating forms of authoritarian organization and materialist attitudes. This is
the origin of the frustration and social discontent in which we live. A movement for the humanization
of the Law, which questions why, for what and for whom the juridical systems are necessary.
In my opinion, the Law is justified as a regulator of social harmony, for the well-being of
the citizens, in benefit for all, but mostly is for those who are the most deprived.
REFERENCES
1. MienezandAyala(Eds.), Political Constitution of the Republic of Guatemala, National
Constitutional Assembly, Guatemala, May 31,1985, p. 61.
2. Gebase S.A. (Eds.), Political Constitution of the Republic of Guatemala, 1972,1983
Reforms, Official Gazette No. 19826, June 6,1983,1989, p. 89.
3. Law 7412, reform of Article 50 of the Political Constitution of Costa Rica of November 7,
1949, May 24, 1994.
4. Supreme Court of Justice, El Salvador. Constitution of the Republic, 1983, Reforms of
1991,1992. Seconded., San Salvador, March, 1992, p. 131. University of El Salvador,
Faculty of Sciences and Humanities, Faculty of Jurisprudence and Social Sciences,
"Regional Research Project: Diagnostic Concerning Environmental Legislation in Central
America. National Report of El Salvador," 1991, p. 273.
-------
CORDERO, PATRICIA MADRIGAL 203
5. Editorial El Amanecer S.A., Political Constitution of Nicaragua, February 1987, p. 64,
Law No. 192: Law of Partial Reform of the Political Constitution, National Assembly of
Nicaragua, Managua, February 1,1995.
6. Article 10, General Regulations ofthe Law of the Environment, February 5,1994.
7. Madrigal Cordero, Patricia; Soils Rivera, Vivienne, "Un Encuentro Necesario: El Manejo
de la Vida Silvestro Y sus Regulaciones Juridiccas. Analisis Enctroamericano," 1st
edition, San Jose, 1994, pp. 33 and 37.
8. Executive Secretary ofthe Environment, Environmental Agenda and Plan of Action,
1992, p. 237, as quoted from Serrano Caceres R., "The Legal Problem ofthe
Environment in El Salvador and Possible Solutions," CENITEC, 1989, p. 85.
9. Plan of Action for the Environment and Development of Honduras, p. 27, paragraph 71.
10. Gonzales, Marco A. "Informe de Nicaragua," Un encuentro necessario el manejo de la
vida silvestre y sus regulaciones juridicias. Analisis Centroamericano. Programa de
Vida Silvestre, Officina Regional para Centroamerica, Union Mundial para la Naturaleza,
The Wildlife Program for Central America, Editado por Madrigal, Patricia; Solis,
Vivienne. 1 ed. San Jose, 1994, p. 205.
11. Government of El Salvador, National Commission on the Environment, the Executive
Secretary, Environmental Agenda and Plan of Action, San Salvador, 1992, p. 237.
12. We support the recommendation ofthe Guatemala Report, prepared by Alejandra
Sobenes and Ma. Jose Gonzalez, in the book: Un encuentro necesario: el manejo de la
vida silvestre y sus regulaciones juridicas. Analisis Centroamericano, edited by
Madrigal Cordero, Patricia; Solis Rivera, Vivienne; Wildlife Program, Regional Office
for Central America, International Union for Nature Conservation, 1 st edition, San Jose,
1994. "To review the bylaws ofthe Law of Protected Areas and modify, among others,
articles 54 and 57, in the sense that Consejo National de Areas Protegidas can manage
by itself the General Hunting System and not by means ofthe Congress ofthe Republic
as is presently established, being able to emit cinegetic calendars of each season".
-------
204 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
VAN DOORN, J. 205
INTERNATIONAL COOPERATION: INTERPOL
VAN DOORN, J.
Chief, Environmental Crime Unit, INTERPOL, National Criminal Intelligence Division,
Financial and Economic Crime, The Netherlands, National Police Agency, Postbus 3016,
2700 KX Zoetermeer, The Netherlands
SUMMARY
Since 1985 environmental crime has increased considerably. One of the causes of this
increase is the forever growing mountain of waste in Europe, which itself is partly due to the fact
that in Europe too much waste is produced and that the development of possibilities for processing
this waste does not keep pace.
Added to this are the more stringent requirements set by the authorities for waste
processing and the increasing costs; in the Netherlands, for instance, these costs have tripled
over the past few years.
Criminal inquiries conducted in the Netherlands have shown that the waste problem is
a breeding ground for environmental crimes.
1 INTERNATIONAL ENVIRONMENTAL CRIME
International environmental crime takes several forms:
• The so-called waste tourism, which involves illegal cross-border transports
of waste within Europe. The routes used by the international criminal
organizations in question are usually part of large-scale environmental crime
operations.
• The illegal dumping of waste at random spots in Europe. Investigations in
the Netherlands show that Dutch waste is being transported to dumps in
Belgium, France, England, former Yugoslavia, the former Soviet Union,
Poland, and Romania.
To the offenders and criminals, who operate at an international level, it is a very profitable
business to gather waste in one country and dump it, sometimes under false pretences, in another
country illegally. One of the major obstacles the authorities meet with in their fight against these
illegal activities is that the international exchange of information is no easy matter; this is due to
the differences in legislation and approach to this particular form of crime. The chance that
perpetrators involved in illegal dumpings are caught is small; their financial gain, however, is
very often considerable.
We can easily conclude that international environmental crime is a very profitable
business; at the same time we cannot but acknowledge that fact but see that the fight against
this particular form of crime poses a great many problems. Illegal activities committed in different
countries attract less attention than those committed in a limited area, consequently, the chances
that perpetrators are caught are not as high either. This means that those involved in professional
-------
206 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
environmental crime are continuously roaming Europe in their search for new places where they
can illegally dump waste. All European countries will sooner or later be confronted with this form
of crime, with serious social and economic consequences.
Obviously, the fight against international environmental crime necessitates a coordination
of the efforts undertaken by the various law enforcement authorities.
2 CURRENT SITUATION
In the current situation authorities in different countries cooperate only on an ad hoc
basis and on the basis of treaties on international legal assistance. This may suffice for simple
crimes, but when internationally operating professional criminals are involved the case is quite
different. Experience has taught us that the gathering of relevant information is particularly difficult
because:
• In a great many cases information must be obtained from different sources.
• There is usually no central contact point.
• The definition of "environmental crime" is not the same in all countries.
• Almost always professional criminals make sure their illegal activities are
hidden by a legal front.
Beside the information provided by judicial authorities, information from local
governments and agencies is especially relevant to the fight against environmental crime, both
at the national and the international levels.
For example, it should always be examined whether dispensation or certain licenses
have been issued to a suspect. In almost every European country there is a government body
which is to see to it that the rules and regulations regarding the protection of the environment are
complied with. Still, the exchange of information is problematic because the various legal systems
are all very complex, because there is a lack of knowledge regarding these systems, and because
there are no central contact points.
3 IDEAL SITUATION
As explained above, the internationalization of environmental crime will continue in the
future, because, as the waste issue is still increasing, the market for illegal practices is still
growing. These developments will make it even more necessary for the European countries to
cooperate and gear their activities where the fight against international environmental crime is
concerned. It seems desirable that this occurs at two levels:
• First, it is important to coordinate the gathering of information regarding the
various law enforcement activities and of the information to perform these
activities efficiently.
• Second, it is also important to coordinate the gathering of information on
regulatory bodies and of the information they can provide. As indicated
above, almost every European country has a body that sees to it that rules
-------
VAN DOORN, J. 207
and regulations regarding the environment are complied with. Linking the
information provided by these bodies at an international level is essential in
the fight of international environmental crime.
All this leads to the conclusion that an international platform is what is needed for the
coordination of the various activities regarding the fight against environmental crime. Such a
platform will provide an opportunity to exchange information, to perform crime analyses, and to
make a start with international, well coordinated, concrete criminal inquiries.
4 CONCRETE MEASURES
INTERPOL has discussed the subject of environmental crime. Up to now these
discussions have led to:
• An insight regarding a world and a European network of national police
contact points, where environmental law is enforced at a national level.
• The compiling of a so-called ECO report, which is a standard form for the
(bilateral) exchange of information on environmental crimes, needed in order
to provide a reliable structure for the provision of information at world and
European levels. As the document, which is available in three languages,
has been drawn up with the help of the relevant contact points, all countries
know what the ECO report is and how it can help the exchange of
information. It has been agreed that ICPO INTERPOL in Lyons will collect
and process information at world level, and that Denmark will do the same
at for Europe.
• The organizing of a seminar (training module) for representatives of the
police forces in the various countries.
5 CONCLUSIONS
Building a network, and getting to know it thoroughly, establishing which kind of information
is exchanged with whom, and providing others with one's know-how and experience are the first
three steps which have now been taken.
The next step should now be a more goal-oriented and well coordinated international
cooperation and image building. INTERPOL is considering paying particular attention to the
following phenomena:
• Waste tourism and dumping of waste.
• Illegal trafficking of nuclear substances.
• Illegal trafficking of protected species (animals and plants).
• Illegal waste brokers.
Added to this is the attention that should be paid to cooperation among national agencies
and the consultation of governmental bodies required at an international level.
-------
208 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
DE KROM, RUUD 209
TRANSFRONTIER SHIPMENTS OF WASTE: SUCCESSES AND
PROBLEMS WITH THE ENFORCEMENT OF SUPRANATIONAL
LEGISLATION
DE KROM, RUUD
Inspectorate for the Environment, Ministry of Housing, Spatial Planning and the
Environment, IPC 681, P.O. Box 30945,2500 GX The Hague, The Netherlands
SUMMARY
This article provides an overview of successes and problems in enforcing European
Regulation No. 259/93 on the supervision and control of shipments of waste within, into and out
of the European Community (EC).
INTRODUCTION
1.1 Background
The problems caused by dioxin-containing waste following an explosion at a factory in
Seveso in Italy in 1984, led the European Community to draw up Directives designed to control
the processing and transfrontier shipment of hazardous waste. The transfrontier aspect was also
dealt with in the Basel Convention and within the Waste Management Policy Group of the
Organization for Economic Cooperation and Development (OECD).
The results were incorporated into EC Directive 84/631 on the transfrontier shipments
of hazardous waste, which has now been implemented by the European Member States.
Several European countries had to contend with waste between 1988 and 1989,
searching the world over for somewhere to dispose of it. It became clear that there was a lack of
communication between enforcement organizations within the European Union (EU).
The Inspectorate for the Environment therefore took the initiative in 1992 to organize a
European enforcement project. The aim was to build a network of enforcement organizations
involved with monitoring compliance with and enforcement of legislation governing transfrontier
shipments of waste.
The project, entitled "Transfrontier Shipments of Hazardous Waste (TFS-1), was carried
out by monitoring transfrontier shipments of paint waste and spent solvents between five
participating countries (Belgium, Germany, Luxembourg, the United Kingdom and the
Netherlands). The project was completed in May 1994 and a follow-up and continuation of joint
enforcement activities was recommended.
1.2 European legislation
European Community Directive 84/631 concerning the transfrontier shipments of
"hazardous waste" was replaced on May 6th 1994 by European Regulation No. 259/93. The
official title is "Council Regulation (EEC) No. 259/93 on the supervision and control of shipments
-------
210 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
of waste within, into and out of the European Community." One major difference between EC
Directive 84/631 and European Regulation No. 259/93 is that the latter regulates wastes of all
types, not just hazardous wastes.
2 "TRANSFRONTIER SHIPMENTS OF WASTE" (TFS-2) ENFORCEMENT
PROJECT
2.1 Grounds for the project
The final report on TFS-1 recommended a follow-up, with the following aim in mind:
To develop a permanent structure (not as a project limited in time) to allow existing
cooperation and coordination to continue and expand to other countries."
The first step towards this structure was to design a new enforcement project entitled
"Transfrontier Shipments of Waste in Europe (TFS-2)."
The essence of "TFS-2" is, in conjunction with a number of European Member States, to
monitor proper compliance with European Regulation No. 259/93 with a view to improving
compliance and enforcement and to continue to develop the enforcement network at operational
level.
2.2 Outline of the project
The project is being conducted under the auspices of the IMPEL (Implementation and
enforcement of environmental law) network. This network was set up in November 1992 to provide
a mechanism for the exchange of information and experience between environmental enforcement
bodies within the European Union. Its objective is to raise professional standards within national
inspectorates and to enhance the quality of pollution control enforcement throughout the Union.
TFS-2 has been adopted by the IMPEL network as "Ad hoc working group Ilia."
The project is structured as follows:
• Orientation:
Contacting organizations that are interested in participating.
• Desk-research:
Conducting a survey of information on the waste flows being investigated
(PCBs/PCTs), some non-ferrous metal wastes and etchants). The
purpose of this phase was to form some picture of the waste flows
selected on the basis of the documentation and data files available.
• Company visit and shipment inspection plans:
Visiting companies (including those acting as producers, disposers,
treaters and brokers of transfrontier shipments of waste), primarily to
acquire the information required to form an overall picture of the waste
flows selected.
• Final report:
Compiling the final report with conclusions and recommendations on how
to improve enforcement of European Regulation No. 259/93.
-------
DE KROM, RUUD 211
2.3 Results
Enforcement organizations from 13 European Member States are currently involved.
Although not an EU member, Norway is also participating as an observer.
Thanks to the joint enforcement activities, a number of European companies involved in
waste production or disposal are now familiar with their compliance with European Regulation
No. 259/93 being monitored.
The desk-study identified 1.370 waste flows. This overview lists the companies involved
in transfrontier waste shipments, describes the waste and provides some further details.
More than a hundred company inspection site visits are planned on the basis of the
desk-study findings. Approximately 30% had been carried out by October 1995. Although some
companies require further investigation, the general impression so far is that companies are
complying with the Regulation.
Additionally, 25 shipment inspections were carried out in seven European Member States
in week 25 of 1995. More than 3,000 shipments have been checked. A number of infringements
were identified, with various administrative errors on shipments with which the competent
authorities were not familiar. A number of these shipments were sent back to the country of
origin. Sound communication with enforcement organizations is a particular must in such cases
- demonstrating the need for a good network.
Apart from these tangible results, there was a growing need for greater structure in the
approach to enforcing the Regulation as enforcement was not uniform in the various Member
States. The Regulation is also very complicated and requires Member States to cooperate in
monitoring compliance. Although the Regulation is directly binding on all Member States and
should therefore be clear, many problems of interpretation and definition remain.
FUTURE DEVELOPMENTS
3.1 Introduction
A task force was formed within the framework of ad hoc working group Ilia to develop a
more structural approach to enforcement of the Regulation 259/93 in Europe. It concluded that a
permanent forum would be effective by promoting joint enforcement. Ad hoc working group Ilia
will put forward a proposal for a permanent forum under the responsibility of the IMPEL network.
3.2 Permanent forum
The objective is as follows:
"The establishment of a permanent forum in order to coordinate, stimulate and support
the enforcement of European Regulation No. 259/93 in Europe."
The forum will help improve the clarity and quality of enforcement of the Regulation. The
word "forum" has been chosen to highlight the fact that this is not just some new institution but a
body concerned with the approach adopted to practical enforcement and finding solutions. The
members are representatives of the European Member States involved in enforcing the Regulation.
3.3 Tasks of the permanent forum
The forum has seven tasks:
-------
212 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• providing the proper bodies (such as the IMPEL network and the European
Commission) with problems encountered and recommendations/proposals
for solutions concerning European Regulation No. 259/93;
• maintaining relations with other organizations (the European Commission,
the police network and possible others) in order to exchange information on
the enforcement of European Regulation No. 259/93;
• stimulating and facilitating European enforcement activities such as the
current TFS-2 project (activities to be carried out by more than one Member
State);
• developing a multi-year plan (working program) for enforcement activities;
• supporting the development of a central information and communication
system;
• sharing experiences and information/solutions in respect of practical
(interpretation) problems; and
• involving all Member States in the enforcement of European Regulation No.
259/93.
One of the forum's main tasks is to build upon the joint enforcement activities of several
Member States.
It will therefore draw up a multi-year plan for the work. The plan will map out a vision of
enforcement, along with goals and enforcement targets agreed by all Member States as well as
specific enforcement projects and task forces.
One key element in the plan is to organize the swapping of information, knowledge and
experiences. This exchange will provide a European understanding of monitoring compliance
with the Regulation. The information thus gleaned will form the basis for a uniform enforcement
strategy.
CONCLUSIONS
4.1 Enforcement problems
A number of problems were identified in enforcing EC Directive 84/631 and European
Regulation No. 259/93 to date, breaking down into the following areas:
• definition;
• interpretation;
• practical enforcement; and
• communication.
For example: there were no procedures for returning illegal shipments and no guarantee
of their arrival at the proper destination.
4.2 Successes
Finding a solution to the problems mentioned requires effective communication and
cooperation between enforcement organizations within the European Member States.
-------
DE KROM, RUUD 213
A network of enforcement organizations in Europe, the IMPEL network, was established
in 1992.
Under the auspices of the network, two European enforcement projects were carried
out. The outcome was a practical network of enforcement organizations responsible for enforcing
European Regulation No. 259/93.
The number of enforcement organizations involved has grown from five in five European
Member States to approximately twenty five in 13 Member States. The network will continue to
expand into a solid, practical enforcement network involved in day-to-day enforcement of the
Regulation. This will also enhance the uniformity of approach.
A proposal fora more structural approach as a permanent enforcement forum has been
agreed by the organizations involved in the TFS-2 project and will be submitted to the IMPEL
network for implementation.
In the meantime a start has been made on tackling the enforcement problems
encountered, by discussing solutions and drawing up manuals. Agreements have also been
reached on new joint enforcement projects on transfrentier shipments of waste in the near future.
REFERENCES
1. Council Regulation (EEC) No. 259/93 on the supervision and control of shipments of
waste within, into and out of the European Community.
2. Proceedings of the third international conference on environmental enforcement, April 25-
28,1994, Oaxaca, Mexico.
3. Conference reports on the "Transfrontier Shipments of Waste in Europe (TFS-2)" project.
-------
214 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
VAN GENT, LIESBETH C. 215
A EUROPEAN ENFORCEMENT PROJECT ON THE NOTIFICATION OF
NEW SUBSTANCES (NONS); A COOPERATIVE PROJECT OF 14
EUROPEAN COUNTRIES
VAN GENT, LIESBETH C.
Senior inspector, Inspectorate for the Environment, Ministry of Housing, Spacial
Planning and the Environment, IPC 681
P.O. box 30945, 2500 GX The Hague, The Netherlands
SUMMARY
An impression on the set up and progress of the European inspection project on the
notification of new substances (NONS) is given. Fourteen European countries have participated
in this ongoing project and inspected approximately 100 companies. The preliminary results
show some serious problems with enforcing this regulation. These problems will be reported to
the European Commission and might lead to revision of European legislation. Besides this, the
set up of this project has already proven to be very successful and can serve as a blueprint for
other European inspection projects.
1 NOTIFICATION OF NEW SUBSTANCES, DIRECTIVE 67/548/EEG
1.1 European legislation on new substances
In Europe many chemical substances are produced and imported. These chemicals
may expose man and the environment to unknown risks. To prevent the placing on the market of
new substances without reliable information on the dangerous properties the European Union
adopted in 1979 the Dangerous Substances Directive and improved this in 1992 (92/32/EEC)
By introducing a harmonized notification procedure since 1983 new chemical substances
must be notified before placing on the market. The submitted information enables assessment
by the various EU-member states of the dangerous properties of the chemical substance and is
used to provide essential information for users in classification, labelling, packaging and safety
data sheets.
1.2 Enforcement activities
The success of the above described risk assessment relies not only on the chemical
substances regulation implemented in the national legislation of the affected European countries,
but also on the monitoring of compliance with this regulation. New chemical substances which
have been placed on the market without proper notification lack adequate information. These
substances could be on the market without proper classification, labelling and packaging, and
without proper information in safety data sheets. These "no-notified" substances could present a
serious danger to man and the environment, not only in one member state but potentially in all
European Countries.
-------
216 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
As most Member States were not yet actively enforcing this regulation, the EU started in
1991 a project to develop a guidance manual to assist enforcement authorities in starting up
enforcement activities in this area. The manual was developed by a European working group. It
is based on practical experience within Member States in the selection and preparation of
inspections of companies that are manufacturing, selling, or importing new chemical substances.
In October 1993, the manual was accepted by the Member States. A European inspection project
seemed to be a useful continuation of the cooperation between member states on the enforcement
of this regulation.
2 THE "NOTIFICATION OF NEW SUBSTANCES" (NONS) PROJECT
The Dutch Main Department of Enforcement Environmental Legislation of the
Inspectorate for the Environment took the initiative to coordinate an enforcement project on this
area; The realization of this project takes place in cooperation with the EU-subgroup on Control
Measures under the Chairmanship of the United Kingdom.
2.1 Aim of the project
The main aim of the NONS-project is to foster a greater degree of compliance of
companies with regard to the notification of new substances. A second aim is to monitor the
occurrence of hazardous dyestuffs. This information can be useful for policy decisions. Moreover,
the cooperation of the participating countries might be an example for other European enforcement
projects.
2.2 Set up of the project
A Dutch proposal for a European inspection project was put forward during a meeting of
the competent authorities for the implementation of directive 92/32/EEC, (Brussels, 17 and 18
January 1995). The proposal was given a positive reception. The competent authorities of most
of the EU member states and of Norway were interested in participating in the project. The
European Commission (DG XI), also present at the conference, stressed the importance of the
interchange of information and sharing of enforcement experience and welcomed the initiative of
an inspection project.
For the organization of the project the Dutch Inspectorate contracted an experienced
consultancy. The first action was to send a 'request for participation' accompanied by a proposal
fora project plan, to all European Member States and to Norway. According to the project proposal,
participation in the project requires attending three workshops and carrying out a certain number
of company inspections. The response was overwhelming. The following countries indicated
that they were interested and are now actually participating in the inspection project: Austria,
Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Netherlands, Norway, Portugal,
Spain, Sweden and the United Kingdom.
The project includes three phases: the preparation phase, the operational phase, and
the reporting phase. Each phase ends with a conference. Subjects of those conferences are
subsequently: 1) preparation and working method; 2) problems and preliminary results and 3)
the final report and future cooperation. Participants are committed to inspect a number of companies
and to take (if necessary) some samples for analyses.
-------
VAN GENT, LIESBETH C. 217
During the first conference in Leiden (the Netherlands) on May 15-17,1995 enforcement
and policy authorities from 14 European countries reached agreement on the project program.
This meant that those countries would visit between 70 and 100 importers and producers of
dyestuffs during 1995 and in the beginning of 1996. The dyestuff industry was selected because
a desk study had shown that this sector is the most innovative in developing new chemical
substances and it is well known that certain groups of dyestuffs have hazardous properties. The
conference met at the end of the preparation phase and at the beginning of the operational
phase.
A company inspection means: checking whether imported or produced substances (which
can be part of a preparation) are in the European inventory of existing chemical substances
(EINECS)2. In order to check this, one needs to know the chemical constitution of the product or
the CAS-3 and/or EINECS-numbers of all ingredients. During the conference participants agreed
that minimal 25 dyestuffs would be checked per company.
2.3 Results so far
By now the project is in the operational phase. The first results of the project are emerging.
Most countries have selected companies by using all different kind of sources, like custom
agencies, product registers, and handbooks. Company visits are carried out and for problems
related to those visits, a help-desk in the Netherlands is available. Participants are kept informed
about each others activities by means of newsletters.
Company visits lead often to demanding problems, which require energy and creative
solutions from the inspector. A problem, for instance, is the lack of knowledge of the regulation
especially by importers of dyestuffs. Part of the companies are not aware of their obligations and
know only the performance of a product rather than their chemical constitution.
In addition, suppliers of visited companies are not very keen to provide information
about the chemical identity of a product. They are not familiar with the EINECS and, according to
some of the visited companies, suppliers in Eastern Asiatic countries do not always know
themselves the chemical constitution of a dyestuff. Hopefully producers, especially in those
countries, will become more conscious of European obligations and the need to register chemical
names and potential hazards of their products.
By means of sample analyses supplied information on the chemical constitution of a
product is checked. In too many cases it happens that the given information is proven to be
wrong. The credibility of other supplied information by the company is therefore questionable.
AN EXAMPLE FOR OTHER EUROPEAN PROJECTS
3.1 Positive results
Positive results so far are; increased cooperation between participating countries, sharing
of knowledge and improved control methods by discussing results and using each other's
capacities. Probably all participants underwrite the preliminary conclusion that the enforcement
in every participating country improved during this NONS-project and is stimulated by new ideas
about enforcement methods.
Another result of this project might be a strong signal to policy-makers and the European
Commission concerning problems in enforcing this directive. This may lead to a modification of
some essential regulations. By now major differences are seen in, for instance, national legislation
concerning the registration of the chemical constitution of products by companies.
-------
218 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
gaining experience might be an impulse for maintaining an appropriate enforcement level on this
area. On the other hand countries which already have an enforcement history on this area learn
to look critically to their enforcement methods and to sharpen them.
On several related areas the progress and results of the NONS-project are followed with
interest. For instance, the Existing Substances Regulation might be the next European
Enforcement project to be started in this area. For this regulation one might expect enforcement
barriers on international level, as its effectuation asks already a lot of cooperation between member
states on policy level.
3.3 Conclusion
Being aware of the promising progress of this project and the enthusiastic participation
of the fourteen countries, one might conclude that a project like this is very valuable and might
serve as a blueprint for other European projects.
REFERENCES
1. European Directive 92/32/EEC is the 7th Amendment of Directive 67/548/EEC on
classification, packaging and labelling of dangerous substances, European Commission,
27 June 1967.
2. European Publication C 146A, European inventory of existing chemical substances
(EINECS); 15 June 1990, Brussels; this inventory was made during the eighties and is
meant to make a distinction between 'new' and 'existing' chemical substances.
3. The CAS-register (chemical abstract service) is a kind of chemical library. Every
substance which has been published is given a reference number in order to facilitate
literature searches. Substances in EINECS are numbered and cross-linked with their
CAS-number. So having a CAS-number might be an entrance to check whether a
substance is in EINECS.
-------
THEME 4: INTERNATIONAL CAPACITY BUILDING 219
THEME #4:
INTERNATIONAL CAPACITY BUILDING
Theme 4 papers address the following issues:
• capacity-building goals for this organization;
• expertise, materials, training, and/or support available or planned;
• priorities established for supporting capacity-building needs;
• how requests are made; and
• successes achieved.
1. The Evolving Role of Citizens in Environmental Enforcement,
S. Casey-Lefkowitz, W.J. Futrell, J. Austin, S. Bass 221
2. International Capacity Building for Industrial Compliance and Enforcement —
The UNEP Experience, J. Alois! de Larderel, J.H. Skinner 237
3. UNEP's Role in Capacity Building in Environmental Law, L Kurukulasuriya,
Donald Kariary 243
4. International Capacity Building for Environmental Compliance and
Enforcement, S. Becker 255
5. World Bank Supported Environmental Institutional Building Investments,
J.Aden 275
See also papers in Theme 2: Principles of Environmental Compliance and
Enforcement.
See related papers from other International Workshop and Conference Proceedings:
(1) Establishing International Networks—UNEP IE/PAC Experience, J.H. Skinner,
Volume II, Oaxaca, Mexico
(2) Principles of Environmental Enforcement and Beyond: Building Institutional Capacity,
C. Wasserman, Volume I, Oaxaca, Mexico
(3) Principles of Environmental Enforcement, C. Wasserman, Volume I, Budapest,
Hungary
-------
220 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
CASEY-LEFKOWITZ, SUSAN; FUTRELL, J. WILLIAM; AUSTIN, JAY; AND BASS, SUSAN 221
THE EVOLVING ROLE OF CITIZENS IN ENVIRONMENTAL
ENFORCEMENT
CASEY-LEFKOWITZ, SUSAN,1 FUTRELL, J. WILLIAM,2 AUSTIN, JAY,3 AND
BASS, SUSAN4
1 Co-Director, Environmental Program for Central and Eastern Europe
2 President
'Co-Director, Environmental Program for Central and Eastern Europe
A Director, Inter-American Program
Environmental Law Institute (ELI), 1616 P St. N.W., Suite 200, Washington, D.C.
20036, USA
SUMMARY
In many countries of the world, citizens interested in environmental issues are
experimenting with participation in development planning and governmental decisionmaking.
However, only in a few countries have governments and citizens developed workable mechanisms
for public participation in environmental enforcement. This paper reviews why it is important to
encourage citizen participation in environmental enforcement efforts and outlines the main
elements which citizens have found necessary to ensure their participation, such as legal rights
and remedies, clear environmental standards, and access to information. The paper then outlines
common strategies for public participation in enforcement which are being initiated in many
countries at the national level, such as citizen monitoring and inspection, public complaint
mechanisms, and citizen enforcement suits. It concludes with a discussion of new options for
transboundary public participation in enforcement and examples of how international networking
and cooperation is building capacity and infrastructure in the non-governmental community to
take on the challenges of meaningful participation in enforcement efforts.
1 WHY ENCOURAGE CITIZEN PARTICIPATION IN ENFORCEMENT?
The two past International Conferences on Environmental Enforcement in Budapest,
Hungary (1992) and in Oaxaca, Mexico (1994) established the principle that citizen participation
is an important supplement to governmental enforcement efforts.1 Still, examination of the situation
shows that in many countries citizens are often overlooked as one of a nation's greatest resources
for enforcing environmental laws and regulations'. It has been acknowledged in international
fora, such as the 1995 Conference of European Environment Ministers in Sofia, Bulgaria, that
citizens know the country's land and natural attributes more intimately than a government ever
will; that their number makes them more pervasive than the largest government agency; and
that seeing citizens as part of the enforcement team helps shield an agency from isolation and
builds broad-based popular support for what can be controversial enforcement actions. Yet, in
many countries citizens and non-governmental organizations (NGOs) are still struggling to assure
the fundamental legal basis for citizen enforcement.
A fisherman out on the river sees chemical waste flowing through a stream, traces the
source to a neighboring factory, and alerts government agencies to the factory's violation of its
emissions discharge permit. A local citizen group in a small town near a coal mine suggests to a
-------
222 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
state mining agency practical ways, based on experiences working in the mines, of making
environmental standards for mines easier to administer and enforce. A trade association convenes
small businesses to craft consensus on new regulatory measures, thus avoiding protracted
litigation. A city resident notices that municipal buses are emitting noxious fumes, sues the bus
company, and wins a court order requiring the company to place pollution control devices in the
bus exhaust systems. These are just a few examples of the many and varied influences citizens
can have on the process of environmental enforcement.
Drawing on the resources of citizens can enrich and strengthen the environmental
enforcement process in several ways. Public participation strengthens governmental authority;
improves environmental decision-making; encourages sound business practices for sustainable
development; and strengthens civil society. Participation and authority are two sides of the same
coin. The government that encourages broad public participation is capable of mobilizing effective
popular support of its policies. Its authority is legitimate. Citizens want the state to govern effectively
and realize that at some point implementation demands authority.
Yet tension sometimes arises between the government and the governed. The
government may fear that citizen involvement in environmental enforcement will disrupt its own
enforcement efforts and will reduce its flexibility to tailor enforcement decisions to particular
circumstances.3 Government enforcers may also believe that if enforcement actions in the courts
are mounted on a piecemeal basis, rather than as part of a coordinated strategy, poor judicial
precedents may be set that could hinder further enforcement efforts'. Consequently, government
agencies sometimes decline to support, or may even resist, private enforcement initiatives.
Citizens, on the other hand, often suspect government agencies of not properly fulfilling
their enforcement responsibilities. Citizens may view government employees as overly susceptible
to the influence of the business interests they regulate*. Or they may attribute government
inaction to bureaucratic inertia. Either way, agency enforcers often are seen as overlooking or
impeding environmental protection goals9.
If properly channelled, this tension between government and citizens can result in
improved environmental enforcement. The government's desire to prevent citizen action it views
as disruptive can encourage agencies to take their own regulatory or enforcement steps. The
public's suspicion that government may not vigorously implement certain laws may prompt the
legislature to grant citizens a statutory right to bring a lawsuit requiring the government to perform
its assigned regulatory duties. And in instances when the government insists on inaction, citizen
action can replace government enforcement. Not only may compliance be achieved, but the
government can be required to account publicly for its own inaction.
When the interests of the government and the citizens are similar — as is often the case
— individuals can fill gaps in government enforcement caused by resource constrains. The
sheer size of the citizenry, for example, enables individual citizens to monitor compliance
throughout the nation and identify violations that an understaffed investigative agency might
miss. An enlightened government agency can also use citizen volunteers to implement a
comprehensive enforcement strategy. This could both help the government meet its enforcement
objectives and avoid the potential conflicts that may result from piecemeal enforcement efforts.
Finally, public involvement in enforcement is a logical next step for democratic political
systems that have encouraged public participation in the creation of environmental statutes and
regulations.9 Allowing citizens to have a concrete role in implementing the regime they helped to
design strengthens public support for and awareness of environmental goals. If citizens are
denied a role in enforcement, or if they are not educated about and encouraged to assume a role,
even the most sophisticated system of environmental protection laws may exist only on paper.
Developing and nurturing a role for the citizens in enforcement efforts could provide the missing
ingredient necessary to make these countries' environmental protection goals a reality.
-------
CASEY-LEFKOWITZ, SUSAN; FUTRELL, J. WILLIAM; AUSTIN, JAY; AND BASS, SUSAN 223
2 LAYING THE GROUNDWORK FOR EFFECTIVE PUBLIC PARTICIPATION
Effective citizen participation requires more than a willing citizenry. Both in countries like
the United States where citizen involvement in enforcement is fairly common, and in countries
like Hungary where it is just beginning, there are several fundamental regulatory and institutional
elements that are necessary for effective citizen participation. These prerequisites are legal rights
and remedies, access to information, and clear environmental standards. Where even one of
these elements is missing, citizens find it very difficult to participate in the environmental
enforcement process.
2.1 Legal rights and remedies
Citizen participation in the environmental enforcement process is usually built around 1)
the recognition of certain rights beyond personal property rights and the recognition of citizens or
environmental organizations' ability to represent the public interest; and 2) the existence of an
independent and well-informed judiciary which can adjudicate and enforce these rights.
Many newer constitutions, such as the one in Colombia, are guaranteeing citizens the
right to a healthy environment. In other countries, such as Argentina, courts have made use of a
constitutional guarantee calledamparo, which can be loosely translated as "protection," to defend
individual or collective environmental rights derived from statutes, international treaties, or the
constitution itself. In still other countries, such as Mexico, the constitution guarantees a right to
petition, which constitutes a vehicle for the public to direct inquiries to the government to which
the government must respond in some manner1.0
Alternatively, in some countries environmental statutes themselves give a cause of
action to individuals to enforce the law when the government is not taking action. This system
has been largely developed in the United States over the past twenty years with citizen enforcement
suits being expressly included in the major federal environmental laws. For example, in the
United States, despite enactment of the Resource Conservation and Recovery Act in 1976, the
Environmental Protection Agency did not even begin to regulate hazardous waste until four
years later, when required to do so by court order in a citizen suit] However in the last few
years, citizen groups in other countries have had growing success in bringing such cases.
Granting citizens the ability to bring enforcement suits, however, does not necessarily
mean that citizens will be able to do this in practice. Citizens also need to consider costs. For
example, Ireland's laws appear comparable to U.S. provisions: Irish citizens may bring a suit for
injunctive relief against any person for violations of water, air, or land use regulations. However,
because of the risk that the plaintiff will have to pay defendant's costs and fees, these suits have
not been commonly used]2
Another hurdle for citizens can arise if government agencies and courts are reluctant to
grant standing to citizen groups in administrative or court proceedings. Even where laws say that
any interested group may become a party to a proceeding, this access is often denied to citizen
groups. For example, in Slovakia, a forest protection NGO tried to become a party to an
administrative decision under a local forestry plan. The Ministry of Agriculture and subsequent
court decisions denied the NGO standing, even though the Slovak Administrative Procedure Act
states that any interested person may become a party to the proceeding. As of March 1996, the
case was before the Slovak Supreme Court which agreed to hear the standing issue. In only a
few countries, have courts determined that environmental organizations in a civil proceeding can
represent the interests of the environment as a public interest. For example, in the 1986 De
-------
224 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Nieuwe Meer case, the Dutch Supreme Court recognized the standing of an NGO to defend the
environment as a public interest]3 It was the first time that it was not necessary to prove that a
specific individual interest had been harmed.
In systems that rely on judicial, rather than administrative mechanisms for enforcement,
an independent judiciary becomes an essential element of citizen enforcement. In many legal
systems, such as in Europe, it is normal for the judiciary to be at least partially under the control
of the executive branch. When this is combined with a legacy of a totalitarian regime, it may
mean that the judiciary is too closely tied to the executive bodies to allow citizen enforcement
actions against the government. For example, in the Russian Federation, environmental
organizations have had difficulty convincing lower level courts to take their cases against the
government seriously. However, some Constitutional Courts have been active in protecting
constitutionally guaranteed rights, such as the right to a healthy environment. The Hungarian
Constitutional court can be counted among the success stories in its region in helping to promote
the rule of law and consequently a sound basis for public participation. The court held in a 1994
decision that amendments to the Law on Agricultural Cooperatives violated the constitutional
right to a healthy environment by lifting protected status from certain lands. The court found that
the constitutional right to a healthy environment required the state to give legal and institutional
guarantees to environmental protection1.4
As a result, many countries in Central and Eastern Europe have reorganized their lower
court systems.15 The major focus of such changes has been to ensure the independence of the
judiciary from other branches of government. At a minimum, the power of appointment and
removal and the control of resources available to carry out the judiciary's tasks need to be
guaranteed. In some countries, the judiciary slowly is achieving the necessary independence. In
Slovenia, for example, judges have been given life tenure, freeing them from dependency on the
executive branch for their livelihood.
In addition to independence, citizens need a judiciary which understands environmental
law and is receptive to its special needs in the court. Moreover, in countries in transition for
example, many judges still carry assumptions from the previous regime, including supremacy of
government production quotas and a relative lack of concern with environment. A case in Estonia
where a lower court admonished a local environmental administrator for appealing to the courts
to push the central authorities to rectify inconsistencies in law and regulation illustrates this point.
That judge was later overturned by the National Court which found the administrator's case to be
proper.
2.2 Accessible information
Access to information is the cornerstone of effective public participation at all levels of
decisionmaking. For environmental enforcement, the public needs access to specific information
concerning discharges and emissions, such as the discharge monitoring reports required in the
United States or the toxics release information required in countries with a pollutant register
system. Yet, in many countries access to this type of information is limited or not allowed.
The degree of development of legal regimes for public access to government-held
information varies from country to country. In many countries, recently amended constitutions
and national environmental laws grant the citizen the right to have access to information, but fail
to provide implementation and enforcement mechanisms. This is the case, for example, in the
Czech Republic. The Czech constitution guarantees a right to information, however, the Czech
government has been reluctant to draft an implementing law providing for public access to
government-held environmental information. In addition, the government has been reluctant to
-------
CASEY-LEFKOWITZ, SUSAN; FUTRELL, J. WILLIAM; AUSTIN, JAY; AND BASS, SUSAN 225
use the constitutional right to allow actual citizen access to environmental information without an
implementing law. Instead it limits access to environmental information to the relevant provisions
of the environmental impact assessment law.
Only a few countries allow citizens to request and receive from the government
environmental monitoring data and discharge reports. Experienced environmental litigators in
citizen groups warn that any environmental program that requires citizens to gather evidence,
take samples, perform tests on effluents will present almost impossible barriers to a successful
citizen suit.
One invaluable source for such information is data on pollution levels supplied by polluters
themselves, as part of a regulatory self-monitoring and reporting regime? For example, the U.S.
Federal Water Pollution Control Act requires that the holders of permits to discharge effluents
from point sources submit regular discharge monitoring reports (DMRs) to the governmerif.
These reports are usually accepted by courts as definitive proof of a violation, since they are
written and filed by the alleged violator itself. However, especially in emerging democracies,
environmental laws usually do not contain monitoring and self-reporting requirements. Even
when such requirements are in place, citizens in countries in transition have expressed a distrust
of such systems being enforceable and trustworthy.
Access to information concerning permit conditions and regulatory standards are also
necessary to verify whether a violation has taken place. It is fairly well accepted that the public
has the right to access information concerning regulatory standards. It is less well accepted,
however, that the public has the right to access information concerning decisions affecting a
regulated entity (e.g., permits, licenses, etc.). For instance, in most of the European Union, the
Council Directive on access to environmental information has been interpreted to include access
to information concerning draft and final permit decisions1? Still, in Slovakia where the Ministry
for Environment is currently drafting legislation concerning access to environmental information,
the Ministry interpretation, as of March 1996, is to exclude permit information from the definition
of "environmental information" accessible under the law.
Systems with publicly accessible information concerning toxic releases are slowly
spreading to other countries from the United States. These laws typically provide for databases
where the government compiles information provided by industry on toxic chemicals stored,
transferred, or released and provides for access by the public to this information. These types of
"right-to-know" provisions have helped citizens to identify and prove environmental violations. In
the U.S. the Emergency Planning and Community Right-to-Know Act (EPCRA), imposes extensive
self-monitoring and reporting requirements on certain industries that use and release extremely
hazardous chemicals.19 A growing number of countries are developing laws concerning toxic
release inventories (TRI) or pollutant release and transfer registers (PRTR). For example, in the
Czech Republic, the government is working together with a coalition of environmental organizations
and other sectors of the public to develop a pollutant release and transfer register.
2.3 Clear environmental standards
Clear standards of conduct against which the behavior of potential violators can be
compared are the final prerequisite for effective citizen participation in enforcement efforts.
When a citizen is provided with specific emission levels, deadlines for compliance, or other
definite substantive requirements contained in statutes, regulations, or permits, it is easier to
identify and prove the violation. Such substantive requirements are particularly effective when
used together with industry self-monitoring obligations, reporting schedules, or other information
access mechanisms. Clear standards may be provided for in statutory language, regulations
developed by agencies in accordance with statutory duties, or industry-specific permits issued
-------
226 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
pursuant to the regulations. The only question at issue in most enforcement actions should be:
did the defendant violate the standard set forth in the law, regulation, order, or permit. In the
United States, for example, compliance is a matter of strict liability and a defendant's intention to
comply or good faith attempt to do so does not excuse a violation.
A law which simply prohibits "harmful" or "dangerous" pollution would be very difficult to
enforce consistently; it might serve as a safety net, but experience has proven that enforcers
need clear standards to avoid debates over scientific and policy issues. The more scientific and
policy issues are resolved by statute, regulation, or permit, the easier and more cost-efficient
enforcement becomes. Thus, for example, laws that set a standard for water quality in a stream,
but fail to set an end-of-pipe standard would still be difficult to enforce. Unless there is a clear
standard of how much may be released from each pipe, enforcers will be burdened with proving
that it was the defendant's discharge which violated the water quality standard. Such causation
issues can become very complicated, especially given the complex scientific issues surrounding
release, combination, and dilution of chemicals in a stream.
3 MAKING PUBLIC PARTICIPATION WORK
Environmental organizations and governments in many countries have been
experimenting with innovative methods for increasing citizen involvement in monitoring and
inspection, as well as the use of citizen complaint and enforcement mechanisms.
3.1 Citizen monitoring
The growing number of environmental problems and the increasing demands on limited
government resources combine to strain the resources of environmental agencies to perform all
the necessary investigatory and monitoring duties. Monitoring alerts the government not only to
possible violations of the law, but also to potential damage or threat to the public health and
safety. However, in general, public participation in monitoring compliance with laws and permits
is very limited. With a few exceptions, the public and NGOs usually do not have proper technical
equipment or the practical possibility to undertake monitoring.
In some countries, governmental institutions make use of citizen monitoring which may
already be taking place. For example, in the U.S., some citizen organizations have begun
harborwatch programs to identify oil spills or other emissions in local harbors. Others teach
citizens to walk streams, identifying locations of pollutant emissions and observing the effects of
these emissions on water quality or indicator species. The Izaak Walton League of America
trains citizens in this way. The citizens then report information to a national clearinghouse, which
notifies state orfederal agencies. State agencies also help fund the League's training and reporting
programs.
Another vehicle for public participation is the establishment of coordination agreements
between the government and public organizations. For example, in Mexico, such coordination
agreements provide for joint activity on a particular issue or problem. The Mexican Federal Ecology
Law envisions coordination agreements between government environmental agencies and the
public aimed at facilitating joint administration, conservation and monitoring of protected nature
reserves.21
The opportunity for post-project monitoring usually falls within the environmental impact
assessment (EIA) process. However, in practice, monitoring is the weak point of most EIA regimes.
Most EIA regulations do not explicitly require any monitoring. Yet, without monitoring, there can
be no guarantee that conditions imposed by the decisionmaking body on the project proponent
-------
CASEY-LEFKOWITZ, SUSAN; FUTRELL, J. WILLIAM; AUSTIN, JAY; AND BASS, SUSAN 227
are being implemented. Monitoring also provides an opportunity to assess the accuracy of impact
predictions and the effectiveness of proposed mitigation measures, thereby contributing to the
design of future projects and the improvement of future ElAs.
Where national EIA legislation does require some type of monitoring, it rarely specifies
whether that includes citizen participatiorf.2 However, there are some exceptions. For example,
in the Philippines, once the environmental compliance certificate is issued, compliance monitoring
is normally conducted by the Department of Environment and Natural Resources (DENR) regional
offices as part of their standard regulatory and enforcement procedures23 But, with the emergence
of the concept of multi-partite monitoring, a monitoring team consisting of representatives from
the DENR, the project proponent, NGOs, and local community residents may jointly undertake
compliance monitoring. For example, to ensure that industrial developers comply with
environmental standards set by the government in the ongoing development of a major industrial
corridor in Northern Mindanao in the Philippines, representatives of local communities, together
with NGOs and government agencies, organized a task force to monitor compliance. The Philippine
DENR is creating in each regional office a Regional Community Advisory and Monitoring
Committee whose membership will include NGOs and the private sector. The Committees will
be involved in all phases of EIA, including compliance monitoring.
Post-project monitoring can also be required in the permitting process. For example, in
the Czech Republic, citizen involvement was encouraged during a public participation experiment
in Ostrava in 1992 which included post-project monitoring A facility for the reprocessing of
used mineral oil has been permitted with the condition that an independent citizen's commission
be established to control implementation of the permit conditions. In theory this process could
also be used in the Czech Republic for EIA post-project monitoring. The Czech Administrative
Code allows for the establishment of a special commission on post-project analysis for each
particular project to ensure application of a sound administrative permit.
3.2 Citizen inspections
In some countries, government agencies are allowed to contract with citizen groups or
other associations to enlist their assistance in inspection efforts. For example, in Estonia, under
the Nature Protection Act, citizens can be deputized as "public inspectors." They are allowed to
write protocols about violations of nature protection rules, but they cannot take payment. These
public inspectors monitor compliance with laws, regulations, and permits concerning hunting,
fishing, and forestry?5
In Poland, a similar institution exists in the form of the Nature Protection Guard, which
was established 1957?6 This is an organization affiliated with conservation associations. Its aim
is to monitor compliance with nature conservation laws and its members have powers similar to
forest rangers. Authorized members of the Guard have the right to enforce nature conservation
laws directly through a procedure of ticketing violators and imposing a small fine. However,
Poland has been slower at transferring this model to the pollution control area. The Polish
Environmental Protection Act of 1980 provides for the existence of a number of institutions meant
to facilitate public participation in monitoring compliance For instance, trade unions and other
associations can function as civic environmental protection bodies with in-house environmental
commissions or inspectors to monitor a company's environmental performance. However, this
model has not had much chance to prove itself, partially because the Council of Ministers has not
issued the necessary regulations.
Some countries allow citizens to demand inspections under limited circumstances. For
example, in the Czech Republic, under the Building Act, parties to the land planning decision and
investment permitting process have the right to demand the inspection of facilities prior to and
-------
228 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
subsequent to completion. Another example can be found in Argentina where water quality
legislation allows private parties who have filed a complaint about a facility to participate in any
inspection of the facility during the investigation.27 The U.S. Surface Mining Control and
Reclamation Act of 1977 contains a similar provision"?
3.3 Public complaint process
The public complaint process is one of the most common mechanisms for public input
in environmental enforcement. The process usually allows any person to file a complaint with the
state regarding activities that are causing environmental harm or ecological imbalance. The state
or municipal government is then required to look into the matter and provide a response within a
relatively short period of time.
Some countries have an independent complaint committee or designated staff member
(ombudsman) at the national or local levels. Citizens can lodge their complaints with the committee
whenever they disagree with any measure taken by the government. The institution is usually
funded by, but independent of, the government and is competent to deal with complaints on the
basis of statutory rules. The law providing for the creation of an ombudsman also regulates what
kinds of complaints may be reviewed. In many cases, the publicity achieved through the complaints
puts pressure on the violator to address the situation at hand.
The ombudsman, as an officer of parliament with the power of oversight over organs of
state administration, is established under the constitutions of nine countries in Central and Eastern
Europe. Yet, this institution has not been fully implemented in this region. Ombudsmen have only
taken office in five countries, as of late 1995, three of these only during 1995P Only Poland has
had substantial experience with an ombudsman in place. Nonetheless, the recent appointments
may indicate the momentum for ombudsmen is building and the next few years will be critical
ones in determining the long-term viability of such an institution in this region.
In many countries, however, there is a more informal complaint mechanism or petitions
are used. For example, in Bulgaria, citizens and NGOs can petition or make a request to
environmental authorities if they discover violations of environmental law or regulations. In Albania,
there is a new energy law which specifies that citizens claiming legal violations on the part of a
license-holder have the opportunity to file written complaints with the licensing agency, which is
obliged to require a response from those permit-holders. This has not yet been implemented or
tried in practice. In Mexico, the federal and state Ecology Laws contain provisions enabling any
person to file a complaint with the government regarding activities that are causing environmental
harm.30 The state or municipal government agency is required to look into the matter and provide
a response within a relatively short period of time. In practice, the public complaint process
appears to be among the most widely used means of bringing government attention to
environmental violations and enforcement problems. In Mexico, state enforcement officials in
Nuevo Leon found the public complaint process so useful that they established a special telephone
hotline to facilitate receiving citizen complaint^.1
3.4 Citizen enforcement actions
In many countries, citizens are allowed to take legal action to enforce environmental
laws, either under constitutional rights, under specific provisions in environmental laws, or in
accordance with administrative or civil codes. Legal action by citizens has been used to enforce
environmental regulations and duties against both governmental institutions and private entities.
Most public participation opportunities provide citizens with the opportunity to give their comments.
However, to participate effectively, citizens must also have some way to ensure that their comments
are considered and that the laws and procedures are properly implemented. Political pressure
-------
CASEY-LEFKOWITZ, SUSAN; FUTRELL, J. WILLIAM; AUSTIN, JAY; AND BASS, SUSAN 229
can be used on elected officials, but special avenues are needed to challenge decisions of non-
elected officials. Without an administrative or judicial review process of agency decisions, public
participation in decisionmaking can be an empty gesture*?
Avenues for direct public participation in enforcement include allowing citizens to intervene
in government enforcement proceedings through filing friend-of-the-court briefs, allowing citizen
participation in reviewing the terms of settlement decrees, allowing citizens to bring administrative
review proceedings, and allowing legal action to be brought by citizens to enforce environmental
law against the government or against violators3.3
Government agencies are usually granted a great deal of discretion in deciding
enforcement priorities. However, in the United States, Congress supplemented governmental
enforcement with citizen enforcement rights. This is done through explicit provisions in the major
national environmental statutes granting members of the public the ability to enforce the law
directly against violators or to bring a suit against a government agency for failing to carry out
duties that are not discretionary (for instance, missing a statutory deadline). In the U.S., federal
environmental statutes grant "any person" the right to bring a citizen suit, with "person" defined
broadly to include individuals, corporations, associations, and governments. In most cases, citizens
need only show primarily that the law was violated, not that there was fault or causation linked to
actual or threatened harm. The cases usually result in certain action being ordered by the court,
or in civil penalties being awarded to the government. Citizens do not usually collect compensation
for personal injury or property damage in enforcement suits. However, if citizens succeed on any
significant issue in litigation, they may be awarded attorneys fees, determined by the court.
It is also common in the U.S. for environmental cases, including citizen suits, to be
settled during the lawsuit. To ensure that settlements are enforceable, they are often crafted as
court negotiated consent decrees, with interim deadlines for specific actions and penalties. In
addition to citizen suit settlements, citizens who are parties to or have an interest in a government
enforcement suit often may participate in negotiating the terms of the consent decrees.
Citizen groups in many other countries have been experimenting over the past ten
years with varying forms of citizen suits, such as defense of the public interest under the civil
code. Under Colombia's Civil Code, citizen groups have the right to bring cases or "popular
actions" (acciones populares) to enforce the law. The code gives the right to stop the threat of
harm to the public interest to an indeterminate group of people. Suit can be brought against any
public or private person causing threat of harm. However, the plaintiff must show fault and
causation, not simply a violation of the law. The Dutch Civil Code defines an unlawful act as any
act which neglects to fulfill a general legal duty84 However, again, the definition of "unlawful act"
also includes fault, damage, causation, and "relativity" (the legal norm that has been violated
must have the purpose of protecting the injured person). Such requirements of proving negligence,
damage, causation, and relativity place an extra burden on citizen groups trying to enforce the
law.
4 TRANSBOUNDARY PUBLIC PARTICIPATION IN ENFORCEMENT
EFFORTS
In many countries, industrial and other activities in the border region affect both their
own populations and those of neighboring countries. It is a generally recognized principle of
international law that a country should not harm the environment of another country. If this
occurs, the affected country can hold the country of origin accountable, and if necessary take the
matter to court, even to the International Court of Justice.
-------
230 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
In general, granting legal rights for the public to participate in enforcement efforts under
international treaties has not yet been broadly implemented or exercised. Until recently, inter-
governmental agreements only rarely included rights of the individual citizens of the States in
their provisions. Recent international treaties, such as those concerning transboundary
watercourses and transboundary results of industrial accidents provide for limited public
participation.36 Public participation in a transboundary context means that citizens on both sides
of a border have the same rights to access to information and legal remedies.
Until the United Nations Conference on Environmental and Development in 1992, and
the preparatory process which started several years prior to that, there was very little mention of
the "public" or of "individuals" in international environmental treaties. In general, there are several
points in a typical treaty that have at times allowed participation, or at least access to information,
by individual citizens (or by NGOs). These are: 1) the meeting of the Conference of the Parties;
2) EIA procedures; 3) exchange of information procedures; and 4) access to courts. For example,
the 1992 Convention on the Transboundary Effects of Industrial Accidents grants a citizen from
the affected country access to judicial and administrative proceedings in country of origin. In the
1993 Convention on Civil Liability for Damage Resulting from Activities Dangerous to the
Environment, non-governmental organizations which have the goal of protecting the environment,
in accordance with national law, may make certain requests to administrative or judicial bodies in
the country of origin concerning prohibition of a dangerous activity or requirement of preventative
measures.
The environmental side agreement to the North American Free Trade Agreement
("NAFTA") created several mechanisms for public participation in promoting the enforcement of
national environmental laws in the U.S., Mexico and Canada. Citizens may submit a complaint
to the North American Commission for Environmental Cooperation (the "Commission") whenever
they believe a party is failing to effectively enforce its environmental law. The Commission can
also be requested to prepare report on environmental matters related to its cooperative functions.
The public was responsible for bringing a major transboundary environmental case to
the attention of the Commission. During the winter of 1994-95 between 20,000 - 40,000 migratory
water birds died in the Silva Reservoir in the central Mexican State of Guanajuato. As a result of
a petition filed by U.S. and Mexican NGO's, the Commission assembled a team of scientists from
the three NAFTA countries to determine what killed the birds. Although it was originally believed
that industrial pollutants were entirely to blame for the deaths, the scientific panel concluded that
the cause of mortality of water birds at the reservoir was botulism, often caused by raw sewage.
The panel then recommended several efforts and management options for improving
environmental conditions at the reservoir.
Another example of transboundary public participation in enforcement can be found in
Western Europe in a case concerning the dumping of pollutants in the river Meuse. In 1993, a
Dutch court heard a case brought by a coalition of NGOs against the steel manufacturer Cockerill
Sambre alleging the illegal discharge of pollutants into the river Meuse in Belgium7. In its verdict,
the court obliged Cockerill to take bi-monthly measurements of the amount of chemicals released
in one day and to send these measurements to the environmental groups for monitoring. The
plaintiffs had the authority to bring the case in the Netherlands due to a 1976 European Court
decision that in a case concerning an international misdemeanor, the injured party could chose
the court. The European Court decision is an interpretation of the European Execution Treaty
which regulates the mutual recognition and execution of legal verdicts.38 Belgium and the
Netherlands are both party to this treaty.
-------
CASEY-LEFKOWITZ, SUSAN; FUTRELL, J. WILLIAM; AUSTIN, JAY; AND BASS, SUSAN 231
5 INTERNATIONAL COOPERATION AND CAPACITY-BUILDING
In most countries, there are only a handful of environmental NGOs and lawyers working
to ensure public participation in implementation and enforcement of environmental law. However,
there are expanding international and regional networks of environmental professionals assisting
each other in building the capacity of local NGOs to participate in this area. International cooperation
and support is an important element to many environmental enforcement campaigns. In cases
where the developer or industry is from another country, outside information about the firm's
background and practices can be essential in public enforcement efforts. International attention
can also put pressure on a firm to come into compliance or lose goodwill, as well as putting
pressure on a government that may have been reluctant or unable to place resources towards a
specific environmental enforcement effort. Finally, exchanges of information concerning public
participation strategies and tools provide an opportunity for NGOs to learn from each others
experiences.
An example of a structured network for assistance in the most direct type of public
enforcement effort — citizen enforcement suits — is the Environmental Law Alliance Worldwide
(E-LAW).39 E-LAW is an international network of public interest environmental attorneys dedicated
to collaborating across borders and sharing information in defense of the environment. E-LAW
has nineteen offices around the world and has worked with environmental advocates in more
than 50 countries. E-LAW uses electronic mail to give these attorneys access to vital scientific
and legal information for use in their cases.
A more loosely structured network of public participation activists can be found in Central
and Eastern Europe. Coordinated through the Public Participation Program of the Regional
Environmental Center (REC), environmental advocates wishing to promote public participation
in their countries have been coming together since 1992 to exchange information on strategies
used in their countries and to work together to develop country guidelines based on practical
experience.40 This network has served to build local capacity for public participation throughout
most of the region, focusing on both legal and informal tools.
A third type of cooperation in environmental enforcement is the IUCN Commission on
Environmental Law.41 The Commission brings together environmental law experts from all regions
of the world to think through issues of environmental law implementation and enforcement. The
Commission focuses both on tools for implementation of national law, such as environmental
impact assessment, and on tools for implementation of the international treaties. Commission
members are involved in the current process of drafting a new Convention on Public Participation,
which was mandated after the European Environment Ministerial Conference in Sofia in 1995.
An example of cooperative efforts within the IUCN Commission can be found in the
Western Hemisphere. In cooperation with the Commission, eight law centers from the Americas
have joined forces to address one of the fundamental conditions threatening the biodiversity of
the Americas and impeding the sustainable development of local communities: the lack of
adequate national laws regulating access to and compensation for local genetic resources. The
Biodiversity Convention, which came into force in December 1993, establishes a broad framework
for national systems to conserve and manage biological resources. To assist in the development
and implementation of these systems, the eight law centers are working cooperatively to produce
a comparative analysis of laws regulating access in each of their countries. The study will also
identify options and recommendations for reforming existing national laws on access and
compensation.
Environmental law professionals in the Americas also have collaborated on efforts to
disseminate information and provide training on the development and use of citizen enforcement
tools. In July 1994 U.S. and Mexican environmental lawyers teamed to present a workshop for
-------
232 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
community leaders in Southern Mexico on basic legal tools for the conservation of natural resources
and environmental protection. In September 1993 the Environmental Law Institute, the Defensoria
del Pueblo, and the Fundacibn para la Defensa des Interes Publico presented an international
seminar in Bogota, Colombia on new tools for exercising collecting rights, bringing together
experts from throughout the region.
In addition to networks of individuals working on environmental law implementation and
enforcement, the U.S.-based Environmental Law Institute (ELI) tried to build the environmental
law profession.42 ELI's focuses on building capacity of the institutions that are essential for a
workable system of environmental protection. It increases the effectiveness of legal practitioners
and other professionals through training and education. It transfers the best "legal technology" —
the tools that have been proven to work in conserving natural resources and public health to
other environmental professionals around the world. One example of this type of capacity building
is judicial training which ELI has sponsored in the Americas and in Central and Eastern Europe.
As mentioned earlier in this paper, a judiciary which understands the basic concepts of
environmental law and is open to citizen environmental enforcement efforts is crucial to effective
citizen participation in enforcement. For example, after a 1995 judicial training workshop co-
sponsored by ELI and the Ukrainian environmental law group Ecopravo, the participating judges
concluded that Ukrainian trial judges not only must take new environmental legislation seriously,
but must play an active role in its development and implementation.
These types of formal and informal cooperation through networks of environmental
professionals have been essential to spreading experiences with new techniques for public
participation in enforcement efforts and for building capacity in local NGOs and in local legal
structures to support such efforts.
6 CONCLUSION
With the progress of democracy, more and more citizens understand their role, rights
and responsibilities related to social and political environmental conflicts and are more willing
and able to supplement governmental enforcement of environmental law. The basic groundwork
for public participation has been laid in many countries in the form of basic constitutional rights,
environmental protection laws, and specific public participation procedures. In a few countries, it
can be said that the legislation is more than mere declaration. However, most countries are still
at the initial stages of creating a system which is conducive to making good use of the public as
a partner in enforcement efforts.
ENDNOTES
1. Starting in 1990 as a collaborative effort between the U.S. Environmental Protection
Agency and the Netherlands Ministry of Housing, Spacial Planning and the Environment
(VROM), the International Conference on Environmental Enforcement has become a
highly successful international collaboration to build effective environmental compliance
and enforcement programs. Already in the 1992 Budapest Conference, the citizens' role
in enforcement was a central theme, focusing on why citizen involvement was important
and on the techniques developed in the United States and Western Europe to facilitate
this involvement.
-------
CASEY-LEFKOWITZ, SUSAN; FUTRELL, J. WILLIAM; AUSTIN, JAY; AND BASS, SUSAN 233
2. The examples in this paper are based mostly on the authors experiences working with
colleagues in Central and Eastern Europe and in Latin America.
3. See Cross, "Rethinking Environmental Citizen Suits," 8 Temp. Env. L. & Tech. J. 55, 64-
70 (1989).
4. See "Private Watchdogs: Internal Auditing and External Enforcement — Three
Perspectives," 17 Envtl. L. Rep. (Envtl. L. Inst.) 10,255, 10,263 (1987) and Snook, Robert
D., "Environmental Citizen Suits and Administrative Discretion: When Should
Government Enforcement Bar a Citizen Suit?" Nat'l. Envtl. Enfor. J., Apr. 1995, at 3.
5. This may be especially true in state agencies and enforcement programs, whose
employees tend to be closer financially, politically, and personally to the potential
violators than are federal officials. See Smith, "The Viability of Citizen Suits under the
Clean Water Act after Gwaltney," 40 Case W. Res. L. Rev. 1, 55-56 (1989-90).
6. See Environmental L. Inst., An Analysis of Citizen Enforcement Actions under EPA-
Administered Statutes V-11 to V-12 (Sept. 1984) [hereinafter ELI Study].
7. See Webb, "Taking Matters into Their Own Hands: The Role of Citizens in Canadian
Pollution Control Enforcement," 36 McGill L.J. 770, 819 (1991).
8. In the United States, government agencies have expressed appreciation for citizen
enforcement efforts. See Chesapeake Bay Foundation v. Bethlehem Steel Co., 652 F.
Supp. 620, 625 (D. Md. 1987) (citing Brief of the U.S. as amicus curiae in support of the
Clean Water Act at 1-2, Student Public Interest Research Group v. Monsanto, 600 F.
Supp. 1474 (D.N.J. 1985) (indicating that the EPA Administrator enthusiastically
supported the role of citizens in enforcement proceedings)); ELI Study, supra note 6, at
V-7; L. Jorgenson & J. Kimmel, Environmental Citizen Suits: Confronting the Corporation
— A BNA Special Report 17 (1988) [hereinafter BNA Report]; Price, "Private
Enforcement of the Clean Water Act," 1 Nat. Resources & Env't 31, 60 (1986).
9. See Participation and Litigation Rights of Environmental Associations in Europe (M. Fuhr
&G. Roller eds. 1991).
10. Environmental Law Institute, Draft Report Decentralization of Environmental Authority in
Mexico: A Review of the Legal and Institutional Framework for Environmental Protection
at the State Level (forthcoming 1996)
11. See Illinois v. Costle, 9 ELR 20243 (D.D.C. Jan. 3, 1979).
12. Supra note 9.
13. See MilieuKontakt, Dutch Environmental Organizations Go to Court (Amsterdam 1994)
[hereinafter MilieuKontakt Report].
14. Magyar Kozlony, 1994/N0.55 p1919.
15. Regional Environmental Center for Central and Eastern Europe, Status of Public
Participation Practices in Environmental Decisionmaking in Central and Eastern Europe,
September 1995.
-------
234 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
16. A 1984 report on citizen suits in the United States identified the lack of readily accessible
information as "the single most important factor inhibiting citizen enforcement." "The
crucial variable" in a successful citizen suit regime was information provided to citizens in
a form that identified key compliance indicators. ELI Studysupra note 6, at V-12 to V-13.
17. Federal Water Pollution Control Act, 42 U.S.C. §12519? seq.
18. See MilieuKontakt Report.supra note 13.
19. 42 U.S.C.A. §11001-11050.
20. See Babich, Adam, "Citizen Suits: The Teeth in Public Participation," 25 Envtl.L.Rep.
10141, Environmental Law Institute, March 1995.
21. Supra note 10.
22. Report of the International Roundtable on Practical Implementation of EIA in Central and
Eastern Europe, Slovakia, November 1995.
23. Smith, David B., and van der Wansem, Mieke, Strengthening EIA Capacity in Asia:
Environmental Impact Assessment in the Philippines, Indonesia, and Sri Lanka, World
Resources Institute, June 1995.
24. Regional Environmental Center for Central and Eastern Europe, Status of Public
Participation Practices in Environmental Decisionmaking in Central and Eastern Europe,
September 1995 [hereinafter REC Case Studies].
25. Id.
26. Id.
27. Ley 13.577 Creacibn de Obras Sanitarias de la Naci6n, art. 31 and 32; Decreto 674/89
Regimen contra la Contaminaci6n de Rios Bs. As. 24/V/89.
28. 30 U.S.C. §1271(a)(1).
29. REC Case Studies, supra note 24.
30. Supra note 10.
31. Id.
32. Babich, Adam, "Citizen Suits: The Teeth in Public Participation," 25 Envtl.L.Rep. 10141,
Environmental Law Institute, March 1995.
33. The mechanics of citizen suits are discussed in detail in the Environmental Law Institute's
paper, "The Role of Citizens in Environmental Enforcement," which was delivered at the
Third International Conference on Environmental Enforcement in 1995. Environmental
Law Institute, The Role of the Citizen in Environmental Enforcement (ELI Working Paper,
1992).
34. Burgerlijk Wetboek, article 6:162, section 2.
35. This has widely been accepted as a general principle of international law based on Article
38(1 )(c) of the Statute of the International Court of JusticeSee a/so Principle 21 of the
Stockholm Declaration (1972) and Principle 2 of the Rio Declaration (1992).
-------
CASEY-LEFKOWITZ, SUSAN; FUTRELL, J. WILLIAM; AUSTIN, JAY; AND BASS, SUSAN 235
36. Convention on the Protection and Use of Transboundary Watercourses and International
Lakes, 1992 and the Convention on the Transboundary Effects of Industrial Accidents,
1992.
37. The "Cockerill Sambre" case, District Court of Maastricht, 3 February 1993. For further
information concerning this case, see supra note 13.
38. See Article 5, section 3.
39. E-LAW can be contacted through its U.S. office at 1877 Garden Ave., Eugene, Oregon
97403, telephone (541) 687-8454, facsimile (541) 687-0535, email:
elaw.usoffice@conf.igc.apc.org
40. The contact for the REC Public Participation Project is Magda Toth Nagy at Regional
Environmental Center, Miklbs ter, H-1035 Budapest, Hungary, telephone (36-1) 250-
3401, facsimile (36-1) 269-7210, email: magdi@fs2.bp.rec.hu
41. The Commission can be reached through the IUCN Environmental Law Center,
Adenauerallee214, D-53113 Bonn, Germany, telephone (49-228) 2692-231, facsimile
(49-228) 2692-250, email: elcb@hq.iucn.ch
42. Environmental Law Institute, 1616 P Street, N.W., Suite 200, Washington, D.C., 20036,
telephone: (1-202) 939-3800, facsimile: (1-202) 939-3868, email: HTTP://www.eli.org
-------
236 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
ALOISI DE LARDEREL, JACQUELINE AND SKINNER, JOHN H. 237
INTERNATIONAL CAPACITY BUILDING FOR INDUSTRIAL COMPLIANCE
AND ENFORCEMENT —THE UNEP EXPERIENCE
ALOISI DE LARDEREL, JACQUELINE1 AND SKINNER, JOHN H.2
1 Director IE/PAC
2 Senior Advisor
United Nations Environment Program (UNEP), 39-43 Quai Andre Citroen, Tour
Mirabeau, 757339 Paris, Cedex 15, France
SUMMARY
This paper covers the UNEP Industry and Environment (UNEP IE) office experience
related to international capacity building for industrial environmental compliance and enforcement.
The rationale or need for such capacity building is discussed, some of UNEP lE's capacity building
programs outlined, and some observations on the goals of capacity building are made.
1 INTRODUCTION
It is an honor for the UNEP Industry and Environment to be a co-sponser of this Fourth
International Conference on Environmental Compliance and Enforcement. UNEP appreciated
the opportunity to work with the other conference sponsors and organizers, the Thailand Pollution
Control Department, the US EPA, the Netherlands Ministry of Housing, Spatial Planning, and the
Environment, Environment Canada, the European Commission, and the Environmental Law
Institute and to participate in discussions of these timely and important subjects.
We are very impressed by the conference theme of International Capacity Building.
This theme reflects the important need to bring together the combined resources and expertise
of all elements of society to effectively deal with some of the complex health, safety and
environmental issues of the future. This concept of capacity building through global partnerships
and networks is clearly called for by Agenda 21 adopted at the United Nations Conference on
Environment and Development (UNCED) in Rio de Janeiro in 1992.
This paper outlines some of UNEP lE's programs for environmental capacity building in
general, and in particular, our efforts with respect to capacity building for industrial environmental
compliance and enforcement. Finally, it offers some observations on the goals of partnerships
for capacity building.
2 INTERNATIONAL CAPACITY BUILDING AT UNEP IE
The UNEP Industry and Environment program was established in 1975 to bring industry,
governments and non-governmental organizations (NGOs) together to work towards
environmentally sound forms of industrial development. UNEP IE was active in UNCED's
preparation and participated in the various industry fora. Following UNCED, UNEP IE reviewed
-------
238 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
its strategy and reoriented its activities to better support the initiatives of Agenda 21. A summary
of some major activities with an emphasis on international capacity building follows.
2.1 Cleaner production
UNEP IE launched the Cleaner Production Program in 1990, in partnership with many
organizations including OECD, ED, UNIDO, and the World Bank. This concept has now entered
the sustainable development lexicon and is strongly supported in Agenda 21. Our Cleaner
Production Program today includes: national cleaner production workshops held around the
world, a publications series translated into several languages, ICPIC the International Cleaner
Production Clearinghouse, the establishment of National and Regional Cleaner Production Centres
in cooperation with UNIDO and a series of cleaner production demonstrations in China and
Africa. The program networks with organizations and experts world wide and transfers information
to a broad set of audiences. In September of this year, in Oxford, England, this program will be
reviewed and discussed to assess progress made and suggest future directions.
2.2 APELL
The APELL Program (Awareness and Preparedness for Emergencies at Local Level)
which promotes the prevention of, and response to, industrial accidents was developed in 1988
and was also acknowledged in Agenda 21. This is a good example of an international partnership
actively developed by UNEP IE, the chemical industry (the International Council of Chemical
Associations), and governments. The first step was to prepare the APELL Handbook which is
now available in 14 languages, and which recommends national and local partnerships to prevent
accidents and prepare for emergency response. Many APELL Seminars and Workshops have
been held over the past five years reaching over 1000 local decision makers from industry,
government, local authorities, and communities. Over 70 national governments now have APELL
focal points which disseminate APELL information to appropriate industries and agencies on a
nationwide basis and the APELL network links the members of this network.
2.3 OzonAction
UNEP IE is also responsible for the clearinghouse function envisaged in the Montreal
Protocol on Substances that Deplete the Ozone Layer. The OzonAction Information Clearinghouse
transfers information on ozone-depleting substances including: policy and technical options,
descriptions of alternative technologies, an international directory of experts, document abstracts
and news bulletins. Workshops, conferences and training activities are held around the world
and country programs have been established to provide practical assistance to industry and
governments to help phase out ozone depleting substances. Regional networks of ozone offices
are being established under the auspices of UNEP, enabling the sharing of information and
experiences on the implementation of the Montreal Protocol.
2.4 Tourism and transport
Agenda 21 cites the importance of tourism, one of the world's largest and fastest-growing
industries, in promoting sustainable development. The UNEP IE tourism program, launched in
1991 involves partnerships with international organizations, particularly UNESCO and the World
Tourism Organization, and has developed links with tourism industry associations. The program
involves publications, training, technical assistance, networking and the preparation of guidelines
on tourism and the environment.
-------
ALOISI DE LARDEREL, JACQUELINE AND SKINNER, JOHN H. 239
2.5 EnTA
In 1993, UNEP IE launched a new program on Environmental Technology Assessment
(EnTA). The goal of EnTA is to encourage the use of technology assessment as a tool to support
the development and application of environmentally sound technologies that are consistent with
sustainable development. Two specific goals are to encourage cleaner production and to
discourage the export and use of technologies that pose potential environmental hazards,
especially in developing countries. To guide this effort, an international advisory group has been
established, and an EnTA Newsletter has been published. This year we will be issuing a primer
and workbook on how to carry out an environmental technology assessment and will develop
guidelines on the environmental information that technology importers can and should provide to
importing countries. Also an important report to the Commission on Sustainable Development on
survey of information systems on environmentally sound technologies was issued this year.
2.6 Sectorial activities and information transfer
UNEP IE sectorial activities provide comprehensive guidance to specific industry sectors
to encourage improved environmental performance. Environmental management tools and
technologies such as waste and energy audits are addressed. A series of technical guides have
been prepared jointly with industry and over 15 industrial sectors have been covered to date. The
response to these in other sectors show the need and demand for such technical guidance. The
Industry and Environment Review is issued quarterly and is distributed to over 10,000 persons
worldwide including government, industry and educational organizations. Each year UNEP IE
responds to over 5,000 requests for information and documentation, and more than 500
researchers from academia, industry and government consult the UNEP IE library and database
resources.
2.7 Consultation with industry, government and NGOs
UNEP IE has continuous consultation with its various partners in carrying out its programs
and responsibilities pursuant to Agenda 21. UNEP IE has also held specific consultations on
several subjects: voluntary codes of conduct, and corporate environmental reporting and
sustainable consumption patterns. In a UNEP project on voluntary environmental reporting, more
than 100 corporate reports on the environment were reviewed and some first guidelines on
environmental reporting, were discussed. In a cooperative effort with the International Chamber
of Commerce (ICC) and The International Federation of Consulting Engineers (FIDIC), UNEP IE
recently issued an Environmental Management System Training Resource Kit to help build
environmental management capacity of industrial managers. UNEP IE will continue to encourage
industry codes of conduct that promote voluntary compliance with environmental policies.
-------
240 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3 CAPACITY BUILDING FOR ENVIRONMENTAL COMPLIANCE AND
ENFORCEMENT
Over the last few years, many governments have established environmental laws and
regulations to protect their country's environment and provide a level playing field for industry
competition. But the institutional capacities needed to ensure that all companies are equally
complying with the environmental standards are often weak or lacking. In order to assist
governments build their institutional capability to carry out environmental compliance programs,
UNEP IE in 1992 published a report entitledFrom Regulations to Industry Compliance: Building
Institutional Capabilities
To build on this earlier work, UNEP IE, in cooperation with US EPA, VROM and an
international working group, developed a training manual to help governments develop their
institutional ability to ensure industry compliance with the country's environmental standards.
The training manual entitled Industry Environmental Compliance: A Training Manuabrovides
the context, examines different approaches, identifies critical elements of success and discusses
options when resources are limited in developing an effective compliance and enforcement
program. It promotes an integrated approach to help steer industry towards cleaner production
options rather than end-of-pipe solutions to meet environmental requirements.
The training manual consists of four separate modules. The first module on institutional
aspects examines:
• why an effective compliance and enforcement program is important;
• its objectives and functions;
• its optimal hierarchical position, degree of centralization and integration;
• the optimal balance between the inspection, permit and enforcement
functions;
• the necessary interaction among government bodies, industry and the public;
• how to establish priorities and evaluate success; and
• how to phase-in functions as resources become available.
The second module focuses on permits and provides answers to such questions as:
• what is an environmental permit, its role, its content;
• who should be required to have a permit, who should issue it and what
criteria should it be based upon;
• how to make the permit enforceable and what to do when laws or regulations
are imprecise; and
• what to do when resources are limited and how to introduce integrated
permits.
How to monitor compliance and enforce compliance is covered in the third module.
Three sections focus on industry self-monitoring, government inspections and enforcement,
covering issues such as:
• who should be required to self-monitor what, how and when;
• how to adopt an integrated approach to self-monitoring;
• how to develop an inspection strategy and what guidance to provide to
inspectors;
-------
ALOISI DE LARDEREL, JACQUELINE AND SKINNER, JOHN H. 241
• how to convert to integrated inspections;
• how to develop an enforcement strategy with appropriate responses to
different violations; and
• what options exist when resources are limited.
The fourth module deals with human and financial resources and examines:
• the types of resources needed for different functions; and
• the funding options.
The appendices include:
• a case study of a fictitious country providing a discussion of common
problems governments encounter in each of these four areas; and
• a summary of the key points of each module in a form which can be easily
photocopied onto overheads.
The training manual can be used for individual study orfor group training in local, regional,
national or international settings. It complements the earlier UNEP IE publication on From
Regulations to Industry Compliance: Building Institutional Capabilities which prompted worldwide
interest and requests for assistance to put its principles into practice. The training manual was
successfully piloted to run the training program in China for governments of rapidly industrializing
Asian countries.
The training manual is now available from UNEP IE. Requests for UNEP IE assistance
in carrying out the training programs may also be considered.
In November 1994 in Beijing and Behai, China, UNEP held a Training Workshop on
Industrial Compliance with Environmental Standards for Countries in Asia with Rapidly Advancing
Economies. This workshop covered the functions of a compliance and enforcement program,
financial and human resource needs, inspections, permits, compliance monitoring and enforcement
response. The target group was government officials dealing with industrial compliance and
related subjects in China, India, Malaysia, Singapore, Indonesia, Thailand, Pakistan and the
Republic of Korea. At end of workshop participants developed a compliance program
implementation plan for their country.
4 OBSERVATIONS ON CAPACITY BUILDING
Five observations about capacity building: First, capacity building should enhance
compliance with environmental laws and standards. Capacity building should be viewed as
complimentary to efforts aimed at environmental enforcement and not substitutes for them.
Capacity building can furnish technical and managerial assistance, provide forums for consensus
building and help develop institutions within government and industry to improve voluntary
compliance with environmental standards.
Second, capacity building should encourage cleaner production and other preventive
approaches as the strategies of choice for dealing with environmental problems. The traditional
approach to environmental protection has been an end-of-pipe strategy that captures or removes
pollutants after they are generated, or cleans up contamination after it has occurred. A cleaner
production or preventive strategy is different, it means not creating pollution in the first place. This
can be accomplished by substituting less toxic materials in product designs, recycling within
-------
242 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
industrial processes or increasing process efficiencies, and extending product lifetimes. Cleaner
production usually entails cost savings in terms of reductions in waste treatment and disposal
costs, reduced liability for environmental damages, lower raw material costs and process
efficiencies.
Third, capacity building should support public information and environmental education.
Capacity building can improve information flow to stakeholders and decision makers and educate
the public on the nature of environmental problems and what can be done about them. Partnerships
can involve research into the social and economic aspects of environmental protection to better
understand and design economic incentives and information and education programs.
Fourth, capacity building should encourage technology transfer and technical assistance
both on a domestic and international basis. The results of environmental research and development
must be transferred into the field as new and improved technological and management systems
are developed. Outreach efforts to apply the results of research are essential. This is especially
true on an international basis. Technology transfer to countries with developing economies is
especially important.
Fifth, capacity building should provide for better integration of environmental policy with
other policies. Other national and international policies can have as strong or stronger influence
on environmental protection as can environmental policies. Consider the effect of energy policy
on the types of fuels used, transportation policy on the vehicle mix and modes of transportation,
and agricultural policy on fertilizer and pesticide use. The environmental effect of these policies
need to be assessed in national and international forums. Approaches that reconcile environmental
and other objectives need to be explored.
To deal with the increasingly complex environmental challenges of the future new tools
and broader based strategies will be necessary. UNEP IE looks forward to new partnerships that
recognize the needs and capacities of different groups and bring together the necessary resources
for continuous improvement in environmental protection and sustainable development.
-------
KANIARU, DONALD AND KURUKULASURIYA, LAL 243
UNEP'S ROLE IN CAPACITY BUILDING IN ENVIRONMENTAL LAW
KANIARU, DONALD1 AND KURUKULASURIYA, LAE
1Deputy Director, Environmental Law & Institutions, Program Activity Center
2Chief, Regional Environmental Law Program, Regional Office for Asia and the Pacific.
United Nations Environment Program, UN Building, Rajadamnerm Avenue, Bangkok
10200, Thailand
1 INTRODUCTION
Endogenous and genuine capacity building for sustainable development elaborated by
the United Nations Conference on Environment and Development in Agenda 21 demands a
concerted and coherent approach linking a number of components and based upon systematic
analysis. Genuine capacity building requires a systemic analysis which links several components.
Among them are; establishment of environmental institutions and machinery; the development
of policies and strategies; the preparation and enforcement of laws and regulations; the
development and use of economic instruments and market-based incentives; mechanisms for
gathering, assimilating and dissemination of information; training of human resources in relevant
technical disciplines; the development of new analytical tools, such as, national environmental
profiles, impact assessment, environmental accounting, environmental audits, environmental
indicators, environmental education, community involvement, technology development and
transfer, and financing.
The essence of UNEP's response to these challenges in the area of capacity building
lies in a shift of focus from pollution control and environmental management to the broader area
of sustainable development and the more concerted, coherent and consistent approach it has
adopted, in partnership with relevant UN and other agencies, with emphasis on regional delivery.
Environmental Law - both international and national - constitutes just one of these components
of capacity building in this new context. By itself, even the best legal regime can not do much to
advance the pursuit of sustainable development goals. However, as Agenda 21 points out, laws
and regulations suited to country-specific conditions could be among the most important
instruments for transforming environment and development policies into action if they are used -
in conjunction with the requisite human and other resource capabilities. They include capacities
for the development and application of appropriate policies, strategies and activities to achieve a
clean environment, natural resource security and integration of environment and development.
1.1 Activities to realize sustainable development
Capacity building in environmental law encompasses three distinct but closely interrelated
areas of activity crucial to the realization of sustainable development. They are:
• The development of national policies and strategies for pursuing the goals
of sustainable development upon which national legislative and institutional
regimes must be based;
• Formulation, enactment, implementation and enforcement of country-specific
national legislation and institutions for environmental management for
sustainable development; and,
-------
244 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• Active participation of States in the negotiation and adoption of international
legal instruments on sustainable development, and their effective
implementation.
1.2 Need for adequate environmental laws in developing countries
Agenda 21 echoes the concerns expressed in several national reports to the United
Nations Conference on Environment and Development, that the inadequacy and ineffectiveness
of existing national environmental law is a major hindrance to effective environmental management
for sustainable development. Agenda 21 also emphasizes the essential importance of the
participation in, and the contribution by all countries, including the developing countries, to treaty
making in the field of international law on sustainable development. It states, in Chapter 39, that
many of the existing international legal instruments and agreements in the field of environment,
have been developed without adequate participation and contribution of developing countries,
and calls for provision of technical and/or financial assistance to enable these countries to effectively
participate in the international law making process. It calls for developing countries to be given
"headstall" support not only in their national efforts to implement international agreements or
instruments, but also to participate effectively in the negotiation of new or revised agreements or
instruments, and in the actual international operation of such agreements or instruments. Such
support should include assistance in building up expertise in international law, particularly in
relation to sustainable development, and in ensuring access to the necessary reference information
and scientific/technical expertise.
The legal and institutional capacities to cope with the challenging tasks of achieving a
cleaner environment, natural resource security and the integration of environment and development
are often either lacking, or weak and inadequate in many developing countries. Further, the
legislative and institutional mechanisms for the implementation of global and regional
environmental conventions are all too often nonexistent or inadequate such agreements being
implemented, generally, through administrative directives. Full and effective participation in treaty
making processes is often hampered by inadequate information and perhaps also by inadequate
consultations among relevant national institutions and interest groups.
1.3 Need for implementation and enforcement
Where governments have succeeded in developing environmental legislation and
institutions which incorporate some modern concepts of conservation and natural resource
management, these often remain unimplemented or inadequately implemented for several
reasons. Principal among these are, the piecemeal formulation of legislation without adequate
consultation among all relevant national institutions and interest groups to forge national consensus
on the policies upon which to base such legislation, including, interrelationships among national,
state, provincial and local institutions involved in the implementation of such legislation; lack of
essential material resources, equipment and trained personnel; and inability to mobilize sufficient
public interest and participation.
Environmental legislation is among the most pervasive elements of cross-sectorial
importance in environmental management for sustainable development. Environment touches
upon most sectors of development related activity, for instance water management, soil protection,
agriculture development, livestock management, mineral activity, transport, energy generation
and distribution, industrial development, forestry, fisheries, wildlife utilization, tourism, management
of human settlements etc. In addition to having an important contribution in each of these individual
sectors and in their interrelationships and integration, the development and implementation of
-------
KANIARU, DONALD AND KURUKULASURIYA, LAL 245
sound and effective environmental law may involve interaction with legislation and administrative
practices and institutions even beyond these sectors. For example, it may be necessary in this
process to coordinate the provisions, or the application, of environmental norms with the legal
regimes dealing with property rights, land tenure, taxation, local government, customary institutions
and practices, and with administrative practices in the areas of national planning, fiscal policy
development, natural resource accounting etc.
Thus, a sound and implementable legislative and institutional regime at the national
plane which is country-specific is indispensable for effective environmental management for
sustainable development. It is particularly important not only to ensure that the network of
environmental legislation and related institutions are substantively adequate and implementable,
but also that the implementing agency/agencies have the capacity in terms of human and material
resources to carry out theirfunctions effectively. Laws which are not properly implemented simply
serve to weaken the compliance morality of the population and undermine governmental policies
and achievements in the environment and development field. Further, the full participation of all
States in the development of international legal instruments, including global and regional
conventions in the field of sustainable development, is essential for achieving wider adherence
to, and efficient implementation of, such legal instruments.
Environmental law undergirds and guarantees actions taken by governments and aid
donors to help achieve a cleaner environment, natural resource security, and the integration of
environment and development. Giving legal backing to these policies and programs, provides
those engaged in them with justification, stimulation and even protection since the agency or
ministry concerned can have recourse to the law as a mandate for resource mobilization and
action. It also provides a sound basis for implementation and enforcement of national policies.
The relevant institutions can also serve a catalytic function, energizing governmental, administrative
and public involvement in environmental management for sustainable development.
1.4 Capacity building for developing countries and those in transition
Clearly, there is a need for a coordinated, cohesive, structured and sustained capacity
building program to assist developing countries and countries with economies in transition to
develop and effectively implement legal and institutional responses at both international and
national levels to the new challenges for achieving environmental management for sustainable
development. Having regard to the fact that the effect of having laws which are not implemented
could be even worse than having no laws at all, it is essential that programs for the development
of national legislative and institutional regimes culminate in galvanizing international cooperation
for the mobilization of the requisite human, material and other resources to augment national
efforts to realize effective implementation.
Following the mandate it received from the United Nations General Assembly Resolution
3436 (XXX) to".... take measures designed to provide technical assistance to developing countries,
at their request, for the development of their national environmental legislation."., reiterated at
successive sessions of its Governing Council, UNEP has provided assistance to some seventy
five or more developing countries, at their request, to develop national environmental legislation
and related institutions. Such assistance includes review of existing national legislation and related
institutions, drafting of general and sectorial environmental legislation and/or elements for use in
drafting legislation, preparation of legal components of national environmental and conservation
strategies and legal advice on appropriate legislation and institutions for environmental
management. Having regard to the comparative advantage it has in this field, Agenda 21 has
identified as some of the priority areas on which UNEP should concentrate: the.?, provision of
-------
246 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
technical, legal and institutional advice to governments, upon request, in establishing and
enhancing their national legal and institutional framework, in particular, in cooperation with UNDP
Capacity Building efforts...."
The wealth of experience and expertise that has been gathered over a period of some
twenty years has firmly established UNEP as an acknowledged leader in the area of capacity
building in environmental law. This was recognized in Agenda 21 (Chapter 38.22) which listed
this activity as one of the priority areas on which UNEP should concentrate. The same has
recently been echoed in the Secretary-General's Report on the In-depth Evaluation of UNEP's
Program, endorsed by the Committee for Program Coordination, which listed capacity building in
environmental law as one of two areas of capacity building on which UNEP should focus
(Recommendation 14?. A practical demonstration of this recognition is the lead role given to
UNEP in the design and implementation of the Government of the Netherlands funded UNEP/
UNDP Joint Project in Environmental Law in Africa in partnership with the World Bank, IUCN and
FAO2. Maintaining and further strengthening this leadership role is the principal responsibility of
UNEP's Environmental Law and Institutions Program Activity Center (ELI/PAC).
Assistance in the development of relevant sectorial legislation has also been rendered
by several UN agencies such as FAO, WHO, UNESCO, etc. International organizations such as
IUCN have also made a significant contribution in the development of national environmental
legislation in several developing countries. The World Bank and Regional Development Banks
have also assisted in development of sectorial legislation related to their loan agreements.
ESSENTIAL CAPACITY REQUIREMENTS IN ENVIRONMENTAL LAW
2.1 Goals and objectives
The aim of capacity building in environmental law and institutions is to develop as
appropriate, human and material resource capabilities of countries, particularly developing
countries and countries with economies in transition, to achieve the following goals:
• To secure, in the light of their respective country-specific conditions, the
development of national policies and strategies for environment and
development, and facilitate their integration through appropriate legal and
regulatory policies, instruments and enforcement mechanisms at national,
State, provincial and local levels;
• To secure the effective implementation and enforcement of international
and national legal and institutional regimes in the field of sustainable
development; and
• To secure the effective participation of these countries in the negotiation of
new international legal instruments in the field of sustainable development
and the review, and where necessary, revision of existing instruments, their
international operation and effective implementation at national levels.
2.2 Fundamental considerations in UNEP's capacity building programs
• Capacity building in environmental law must be integrated within the larger
framework of capacity building for sustainable development.
-------
KANIARU, DONALD AND KURUKULASURIYA, LAL 247
• The programs must be appropriately designed and executed with a view to
inspiring a greater interest in and commitment towards the use of
environmental law as an instrument for translating sustainable development
policies into action and enabling national institutions and individuals to take
appropriate initiatives, on a well informed basis, towards this end. They must
be appropriately focused on the requirements of each target group, be result-
oriented and be pursued on a sustained basis until results are achieved.
Investments in capacity building have failed too often due to the absence of
follow-up action.
• Capacity building should be directed at countries that demonstrate a serious
and sustained commitment to pursuing the goals of environmental
management for sustainable development, having regard to their respective
absorptive capacities. Preference should be given to the Least Developed
Countries and to those in which UN agencies and bodies and other
international organizations have major activities on environment and
development in general, and in capacity building in particular. Such programs
should be carried out in languages which promote effective communication.
• Interagency cooperation and collaboration in the design and implementation
of capacity building is emphasized in Agenda 21 with a view to avoiding
duplication, enhancing effectiveness and promoting a holistic, cohesive and
integrated approach to capacity building for sustainable development
applying the best available expertise. Such collaboration is crucial to the
success of capacity building in environmental law and institutions.
• An essential component of the strategy for capacity building, particularly in
the legal and institutional field, is the central role to be assigned to national
experts in these areas to steer the whole process. It is they who are the best
judges of national needs and possible options for action as seen within their
own particular national milieu. In addition, the full participation of national
experts invests in them the authorship in the final product, which helps
advance the implementation process. It also provides them with the much
needed exposure and experience required to deal with national sustainable
development issues with greater confidence and facility. External expertise,
wherever possible from the region, should be used to support what is
essentially a national undertaking.
2.3 Essential Capacity Building Requirements in the Area of National Legislation
and Institutions
• Capacity to effectively integrate environment and development in policies
and practices of each country. Towards this end, to promote consultative
processes which leads to the forging of consensus on national policies and
institutional regimes upon which national legislation is to be based.
• To review existing legal and institutional mechanisms, established, in most
cases, long before the urgency for taking measures to achieve sustainable
development became imperative, with a view to restructuring such regimes
to promote the realization of the goals of sustainable development.
-------
248 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• To promote the development of appropriate, country-specific, legal and
regulatory policies, legislation and enforcement mechanisms for the
integration of environment and development, at national, state, provincial
and local levels.
• Having regard to the need for countries to develop their own priorities, in
accordance with their specific needs, to disseminate information and practices
of States in the field of environment and development, including appropriate
instruments and compliance incentives, with a view to encouraging their
adaptation and use, as appropriate, at national, state, provincial and local
levels through national training programs and other means.
• To disseminate information on judicial decisions touching upon legal and
institutional aspects of sustainable development to judicial officers, with a
view to advancing the frontiers of environmental law for sustainable
development through judicial interpretation and decisions.
2.4 Essential Capacity Building Requirements in the Area of International Legal
Instruments
• Dissemination of information on scientific, technical, legal, institutional and
other developments which constitute a backdrop to the development of
international legal regimes for sustainable development.
• Promotion of national consultative processes leading to the examination of
relevant issues from a wider national perspective, paying due regard to
regional and global perspectives, and consequently, developing relevant
national policies on a more informed basis.
• Assistance to participate in international negotiating processes of new or
revised agreements or instruments.
• Assistance to implement international legal regimes, including development
of appropriate legal, administrative and institutional mechanisms.
• Assistance to build up expertise in international law, particularly in relation
to the broad range of legal and institutional issues connected with sustainable
development, through appropriate training and education programs, as well
as, dissemination of necessary reference information and provision of access
to scientific and technical expertise.
2.5 Target Groups
To achieve the aims and objectives of capacity building in environmental law and to
integrate it within the larger framework of endogenous capacity building for sustainable
development, programs must be appropriately designed to respond to the specific requirements
of the following target groups.
• Policy-makers, decision-makers and senior government officers, whether
at the national or local level, responsible for the formulation of environmental
and development policies requiring the assessment of the need for, and
scope of, legislation and related institutions, and also, national positions for
the development of international legal instruments.
-------
KANIARU, DONALD AND KURUKULASURIYA, LAL 249
Legal officers and legal draftsmen with responsibility for the preparation of
draft legislation in the field of environment and development, who would
receive technical advice and professional enhancement support.
Authorities and agencies, and their individual staff members, that have
responsibility for administering, implementing and enforcing laws relating to
environmental protection, natural resource management and integration of
environment and development, who will benefit from training, information
networking and professional enhancement services.
Grassroots organizations especially those representing local communities,
women and youth, in addition to being stimulated to play a more active and
fuller role in environmental management, decision making, and the
development, implementation and enforcement of environmental law at the
local level, could also provide an important source of traditional knowledge
relating to environmental management for sustainable development.
Non-governmental organizationsactive in regard to the development and
implementation of policy, legal and institutional aspects of environment and
development. Their effective participation in the decision-making process
and in environmental management tasks generally should be encouraged.
The media should also be encouraged to play its role effectively to stimulate
the development and effective implementation of environmental law.
The private sector especially with regard to industrial compliance, should
also be encouraged to take a leadership role in community activities aimed
at achieving the objectives of sustainable development.
Universities and other institutions specializing in environment and
development studies which have programs in environmental law and
management should be further strengthened and in regard to the teaching
of these subjects and their active engagement in offering assistance and
training to national environmental institutions.
Developments in the field of environmental lawespecially those attributable
to judicial interpretation and decisions should be made accessible to members
of judicial bodies with a view to promoting the harmonization of environmental
law through the application of the doctrine of precedent in judicial
interpretation and decisions.
3 NEW APPROACHES TO CAPACITY BUILDING IN ENVIRONMENTAL LAW
The Post-UNCED context demands a heightened role for UNEP as the leading instrument
of the international community to raise the world's conscience regarding actions that are creating
negative environmental impacts and to catalyze the development and implementation of policy
options to respond to urgent environmental issues, in the context of sustainable development.
Capacity building to enable nations to pursue sustainable development paths is central to UNEP's
mandate. It constitutes a linchpin of its restructured program, "UNEP: The New Way Forward",
which is designed to respond to the new challenges of UNCED. The principal strategic elements
of this new program are an integrated and coordinated approach, needs-responsive and result-
oriented program design, partnership with UN and other agencies, and regional delivery.
-------
250 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Against this background UNEP's new strategies for capacity building in environmental
law underscore the following fundamentals:
• Integration of capacity building in the legal and institutional field within the
larger framework of endogenous capacity building for sustainable
development as elaborated in Agenda 21 and towards that end, to harmonize
ELI/PAC's capacity building activities in a multi-program approach with those
of UNEP's other divisions, units and regional offices;
• Partnership with the secretariats of major environmental conventions, as
well as other UN bodies, agencies and intergovernmental and non-
governmental organizations active in the area of environmental law and
institutions so as to ensure cohesion, complementarity and continuity of the
program, avoid duplication of efforts and resources, and heighten
effectiveness;
• Design and implement programs in partnership with national/regional experts,
which respond to the specific requirements of each country/region, taking
full account of their respective absorptive capacities and towards that end to
fully engage the specialized knowledge of UNEP's regional offices regarding
the needs and requirements of countries in each region in both the design
and delivery of such programs; and
• Investing in national experts the full responsibility for developing and steering
the process of legal and institutional development through national
consultative and participatory processes, with UNEP in partnership with other
agencies, facilitating their work through the provision of technical advice,
and a range of legal information and material.
Within these key parameters, UNEP's capacity building activities in environmental law
had been directed at the following:
• Identifying the existing gaps and shortcomings in domestic environmental
law, its implementation and enforcement and in the related institutional
structures, taking careful account of the work which has been undertaken in
this respect by the governments and other international agencies, and the
capacity of each country to develop and effectively implement country-specific
legal and institutional regimes for environmental management for sustainable
development;
• The provision of assistance for the formulation, enactment and enforcement
of national environmental legislation and the establishment or enhancement
of related institutional structures for effective environmental management to
achieve sustainable development, covering general, cross-sectorial and
sectorial issues and, including the implementation of international
environmental agreements;
• The facilitation of advice and through interagency collaboration - in particular
with UNDP's Capacity 21 and the World Bank's National Environmental
Action Plans, - assistance required by the governments to effectively and
efficiently implement the legislative and institutional regimes, including
provision of equipment and other material resources required for carrying
out effective environmental management, within the framework of the legal
and institutional regime;
-------
KANIARU, DONALD AND KURUKULASURIYA, LAL 251
Providing legal training and other human resource development programs
in the field of environmental law and institutions, to enable the authorities
and individuals dealing with these matters to discharge their functions with
greater effectiveness and efficiency;
Providing a network of information and resources to assist in the development
and implementation of environmental legislation and related institutions
including the development, adoption and application of environmental
standards; and
Enhancing the capacity to participate effectively in the negotiation,
development and implementation of international environmental agreements.
4 UNEP'S ACTIVITIES IN CAPACITY BUILDING IN ENVIRONMENTAL LAW
4.1 National Legislation
UNEP has substantially restructured its assistance program to focus on sustainable
development issues, as against pollution control and environmental management, which was
the principal focus of its pre-UNCED program. In addition, these activities are linked to bilateral
and multilateral cooperation programs, such as the World Bank's National Environmental Action
Plans in order to maximize synergies and ensure an integrated and systemic response to countries'
needs. New areas being addressed in the development of national legislative and institutional
regimes include, institutional mechanisms for integration of environment and development in
decision making at national, state and provincial and local levels, economic instruments for
promoting sustainable development, such as, Environmental Impact Assessment and green
audits, industrial compliance and enforcement, public participation, including, citizens' suits, and
innovative funding and dispute avoidance and settlement measures.
The previous practice of relying on foreign consultants to develop national laws has
been replaced by investing the responsibility for this work on a representative Task Force of
national experts. It is they who, through participatory and consultative processes, develop the
necessary national legislative and institutional mechanisms in the context of the particular
circumstances and administrative practices of their respective countries. Technical assistance,
legal material and information is provided to the Task Force, as may be required, by ELI/PAC
staff in collaboration with the partner agencies. Such programs have been carried out in more
than twenty-five countries, at their request, during the three years since UNCED. These include:
in Africa - Burundi, Central African Republic, Chad, The Gambia, Ghana, Kenya, Lesotho, Malawi,
Nigeria, Sao Tome and Principe, Mozambique, Sierra Leone, Sudan, Tanzania and Zambia; in
Latin America and the Caribbean - Barbados, Bolivia, Chile, Trinidad and Tobago; and, in West
Asia and Asia and Pacific regions - Cambodia, Jordan, Kiribati, Lebanon, Oman, The Philippines
and Sri Lanka.
4.2 Human Resource Development
The strengthening of human and material resource capabilities of countries, especially
developing countries and countries with economies in transition to develop and effectively
implement environmental law at international and national levels in the new context of sustainable
development is the avowed aim of UNEP's programs in this field. Activities in this area since
UNCED include two Global Training Programs and four regional training programs. Two regional
training programs and one at national level are planned for later this year. Several innovative
-------
252 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
measures have been included in the post-UNCED period to make these programs more focused
and result-oriented. The regional and national programs, in particular, are focused on specific
aspects of law of special relevance to them, such as, the workshop held in China on Industrial
Compliance for countries in Asia with rapidly advancing economies, and those held in Western
Samoa and Bahrain which focused on national environmental legislation of the Pacific Island
States and West Asia, respectively. In designing each program, basic prerequisites are ensured,
i.e. adequate advance preparation of participants, appropriate teaching methodologies and focused
and sustained follow-up action . Some innovative mechanisms have been introduced.
Environmental problems and issues of concern to the participants are received in advance of the
Program, which enables Resource Persons to focus on real issues, promote vibrant interaction
and enhance the usefulness of the programs to the participants. Participatory and experiential
teaching methodologies are applied having regard to the high level of participation that these
programs attract. Follow-up programs are designed for each participant based on continuing
support for accomplishing "special assignments" and for responding to their legal information/
material requirements. Arrangements have also been made with UN agencies and bodies and
other international organizations to provide necessary assistance to the trainees. A training-by-
attachment program which provides a 4-6 week exposure to selected senior officials of developing
countries and countries with economies in transition at UNEP's Legal Offices, Convention
Secretariats and other UN agencies and bodies began in 1992. Eight participants from Egypt,
Barbados, Fiji, Jordan, Malawi, Cuba, Mozambique, and Burundi have benefited from this program
so far. With a view to strengthening the teaching of environmental law at universities, this program
is being expanded to include University professors, who will be attached to Law Faculties of
other Universities in their respective regions which have well developed teaching programs in
Environmental Law.
The principal objective of the legal information and publications program is enhancing
the information and knowledge base of those working in the field of environmental law in
government, universities and other institutions, and the public generally, especially in developing
countries and countries with economies in transition. It also provides an essential support service
to UNEP staff, particularly those working in the legal and institutional field. Among the information
tools of particular relevance developed since UNCED, are the Computerized Environmental Law
Information Base (CELIB), which contains legal information collected by UNEP over a period of
over twenty years in both international and national environmental law; the texts of over 200
International Environmental Conventions and Agreements, as well as the Register of
Environmental Treaties. Two indexed compendia of national framework legislation and E.I.A.
legislation have been compiled and a biannual bulletin serves to inform those interested in
environmental law worldwide of UNEP's activities in this field. Collaboration with Convention
Secretariats in the development and dissemination of information, and with other organizations,
particularly IUCN, with a view to enhancing efficiency and avoiding duplication, constitute a
cornerstone of this program.
5 PARTNERSHIP
Since UNCED, UNEP's Environmental Law Program has pursued collaborative
partnerships not only with governments but with several UN agencies and bodies and international
organizations, universities and professional bodies. The aim of such partnership is to draw on
the experience of various UN and other organizations to mutually reinforce the effectiveness of
the respective programs, to build upon the work already carried out by various agencies, and to
avoid wasteful duplication . The UNEP/UNDP Joint Project on Environmental Law in Africa,
-------
KANIARU, DONALD AND KURUKULASURIYA, LAL 253
funded by the Government of The Netherlands and implemented in collaboration with the World
Bank, FAO, WHO and IUCN described elsewhere in this publication was the first major joint
undertaking in this field and has paved the way for closer collaboration with these and other
organizations in several other legal activities as well. This was followed by the signing of an
Agreement for Cooperation in the Field of Environmental Law between UNEP and IUCN, which
provides a framework for cooperation between the two organizations in several areas including
development of international environmental law, legal training, and dissemination of legal
information. Partnerships have also been forged with The United Nations Institute for Training
and Research (UNITAR) and The United Nations Commission on Human Settlements (Habitat)
which have collaborated in the design and conduct of two major Global Training Programs in
Environmental Law attracting participants from over 50 developing countries and countries with
economies in transition. Over 450 applications were received for participation in these two Global
Training Programs. UNEP is working in partnership with IUCN, the University of Singapore, The
United Nations University (UNU) and ESCAP to develop and carry out regional capacity building
programs at The Asia-Pacific Center for Environmental Law established at the University of
Singapore. UNU's expertise is also being drawn into UNEP's initiatives to develop environmental
law curricula and strengthen the teaching of environmental law in Universities particularly of
developing countries. The two organizations regularly provide resource persons for each others'
training programs in the field of environmental law, thereby, contributing to creating a judicious
balance between the academic and practical aspects of environmental law in the training programs.
In its program for the development of international environmental law, UNEP is working
closely with several recognized institutions active in the field, such as, the Foundation for
International Environmental Law and Development (FIELD), the Center for International
Environmental Law (CIEL), and the Environmental Law Center at the Georgetown University in
Washington DC A workshop on Implementation and Compliance was convened in collaboration
with FIELD early in 1995, and two workshops on the Development of International Law in the
direction of Sustainable Development were convened jointly with CIEL and the Georgetown
University Law Center later in the year. Relations with National Law Institutes are also being
strengthened through joint sponsorship of mutual programs, as for example, the sponsorship of
the Indian Law Institute's International Symposium on Environmental Law.
FOOTNOTES
1. Document No. E/AC.51/1995/3
2. See Partnership in Action: UNEP/UNDP Joint Project on Environmental Law in Africa, in
this volume.
-------
254 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
BECKER, SUSAN 255
INTERNATIONAL CAPACITY BUILDING FOR ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT
BECKER, SUSAN
Environment Management Adviser, Sustainable Energy & Environment Division, United
Nations Development Program (UNDP)
405 East 45th Street, FF1006, New York, NY 10017, USA
SUMMARY
A summary of UNDP's primary objectives, modes of operation and forms of support for
building capacity in environmental enforcement and compliance is provided.
1 THE UNITED NATIONS DEVELOPMENT PROGRAM
1.1 General description of the organization
The United Nations Development Program (UNDP) is the United Nations largest provider
of grant funding for development, and the main body for coordinating UN development assistance.
UNDP's purpose is to help developing countries, and countries moving from centrally planned to
market economies, build capacities for "sustainable human development" - development that
center's on people.
UNDP has three overriding goals:
• To help the United nations become a powerful and cohesive force for
sustainable human development.
• to focus its own resources on a series of objectives central to sustainable
human development, namely: poverty elimination; creation of jobs and
sustainable livelihoods; advancement of women; and, protection and
regeneration of the environment.
• To strengthen international cooperation for sustainable human development
and serve as a major substantive resource on how to achieve it.
Within the framework of sustainable human development, UNDP's Executive Board
has recognized "poverty elimination" as the overriding priority in UNDP programs. It has also
decided that countries with annual per capita incomes of US $750 or less should receive 88 per
cent of UNDP's core resources.
1.2 Universality
UNDP derives its core resources, totaling about $1 billion a year, from the annual voluntary
contributions of governments that are members of the United Nations or its agencies. All major
policy decisions and financial allocations are determined by a 36-member Executive Board,
whose members are from both contributor and program countries.
-------
256 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
1.3 Global reach
With 136 offices worldwide, UNDP has the largest on-the-scene representation of any
development assistance organization. Through these offices it supports the development efforts
of 175 countries and territories, working with governments, organizations of civil society, and the
people who benefit from its support. Eighty-five per cent of UNDP's staff members serve in
country offices and 15 per cent at its Headquarters in New York.
This extensive network also enables UNDP to facilitate the cooperation for development
provided by the UN system as a whole. The Resident representatives that head UNDP offices
are usually also Resident Coordinators of UN operational activities for development and represent
many UN organizations. Their duties include administering special-purpose funds such as the
UN Capital Development Fund (UNCDF); the United Nations Volunteers (UNV); and the UN
Development Fund for Women (UNIFEM).
When disasters or emergencies occur, Resident Coordinators play an important
role in coordinating relief efforts, in cooperation with the UN Under-Secretary-General for
Humanitarian Affairs and other UN agencies. In addition, the resident coordinator is ex-
pected to take the lead in mobilizing international assistance for rehabilitation in countries
that are recovering from major disasters and emergencies.
1.4 Access to worldwide expertise
To execute the programs and projects it supports, UNDP draws upon developing
countries' own national technical capacities, as well as the expertise of over 30 international and
regional agencies, academic and research institutions and many non-governmental organizations.
This enables it to deliver the exact type of specialized assistance required. It also ensures the
effectiveness of UNDP's global and interregional programs which address worldwide concerns
such as food security, safe motherhood, tropical disease control and HIV and AIDS.
1.5 Catalytic role
Over and above its core funding, UNDP helps to mobilize additional financial support for
governments' priority programs. Contributions of some $900 million yearly are provided for
UNDP administered special purpose and trust funds, and for particular programs through "cost
sharing" contributions from both donor and program countries.
In addition, UNDP support activities stimulate some $9 billion a year in collaborative
funding from public and private sources.
1.6 Program activities
UNDP works both "upstream," giving governments essential policy advice, and
"downstream," providing funds for activities with short term tangible benefits. Support is provided
to:
• Build governments' capacities to manage development. Areas of assistance
include public sector reform; aid coordination; economic management and
market reform; democratization (encompassing electoral processes, human
rights protection and establishment of independent judiciaries); and improving
cooperation with organizations of civil society.
-------
BECKER, SUSAN 257
• Help countries develop operational frameworks for sustainable human
development, for example, by defining development goals, linking global
themes and resources to national priorities and identifying external financing
and technology needs.
• Assist governments in identifying, designing and implementing long-term
development programs, including strategies and plans which respond to
national development objectives.
• Help countries mobilize additional financial resources needed for their
development activities - from domestic sources, or from multilateral lending
institutions such as the World Bank and regional development banks.
• Promote access to and adaptation of scientific knowledge and suitable
technologies.
• Further Technical cooperation Among Developing Countries, whereby
countries work together for development or match needs and capacities for
their mutual benefit.
• Strengthen capacities in civil society for participatory grassroots development
that empowers people and their non-governmental and community based
organizations.
• Directly finance projects that validate policy ideas, demonstrate grassroots
success or launch promising innovative activities.
• Help forge North-South partnerships and secure international agreements
on global issues, such as desertification control and climate change.
• Contribute to peace building and conflict prevention through support for
national and regional reconciliation, reintegration of returning refugees and
displaced people, reconstruction of war-torn communities and the training
of demobilized soldiers for remunerative employment.
1.7 Programming tools
UNDP work includes the preparation of several program and project documents, some
of which are prepared every 3-5 years and others which are prepared on an as required basis.
These major documents, by their generic name, include a Country Strategy Note, Program Note,
Cooperation Framework and specific thematic programs and projects.
2 CAPACITY BUILDING
The breadth of the topic of capacity development, much like that of sustainable
development, encompasses a wide range of aspects including the human, technological,
organizational, financial, scientific, cultural and institutional. It does not lend itself to clear definitions
or a consensus on its meaning. Indeed, most discussions on the topic quickly tend to broaden
out to deal with the overall process of development. It therefore may be useful to restate the
definition in Agenda 21, i.e., that capacity building is/he process and means through which
national governments and local communities develop the necessary skills and expertise to manage
their environment and natural resources in a sustainable manner within their daily activities
The main ideas, according to UNDP, behind this concept are the following:
-------
258 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• strengthening peoples' capacity to achieve sustainable livelihoods;
• a cross-sectorial multi-disciplinary approach to planning and implementation;
• an emphasis on organizational and technological change and innovation;
• an emphasis on the need to build social capital (i.e. voluntary forms of social
regulation) through experimentation and learning; and
• an emphasis on developing skill and performance of both individuals and
institutions.
To assist in the field of capacity building, UNDP gives attention to the enabling
environment or the broader context of capacity building programs — political, social, cultural,
legal, institutional — and ways in which key stakeholders can support or prevent progress. In
other words, capacity building for UNDP is defined in its broadest sense and is not limited to
training and education activities.
In the context of UNCED, UNDP was given the responsibility to task-manager on capacity
building for Agenda 21.
3 TECHNICAL SUPPORT FOR CAPACITY BUILDING IN ENVIRONMENT
3.1 Sustainable energy and environment division (SEED)
3.1.1 General description
An important element in turning UNDP's sustainable human development mandate into
reality is SEED — the Sustainable Energy and Environment Division. Established in 1994,
SEED consolidates UNDP's wide range of energy, natural resources management and
environmental support activities into one division. By bringing this wealth of substantive expertise
into a coherent whole for the first time, SEED enhances UNDP's technical capacity, competence
and responsiveness to country demand. This innovative consolidation provides UNDP - and its
partners in government and civil society - with new possibilities for improving the effectiveness of
global and national policies and programs related to energy, the atmosphere, agriculture, forests,
waters, land biodiversity and other natural resources, and environmental management as a whole.
3.1.2 Integrating environment and development
SEED'S primary objective is to support the integration of environmental protection and
management with other aspects of UNDP's development program. In addition, SEED seeks to
maximize the effectiveness of UN operational activities and strengthen international cooperation
in support of strategies, policies and programs focused on the essential linkage of environment
and development. It works towards these goals through UNDP's country offices and regional
bureaus at headquarters by providing support in the following areas:
• Helping to incorporate environmental concerns at the earliest possible stages
of national planning and economic decision making.
• Helping to design and implement projects and programs to promote
sustainable energy, encourage sustainable management and use of natural
resources, protect biodiversity and combat desertification and land
degradation.
-------
BECKER, SUSAN 259
• Disseminating knowledge, training, tools and technologies to build capacity
in both government and civil society to help achieve the goals of Agenda
21.
3.1.3 Divisional structure, synergy and collaboration
Five operational units, each with its own program responsibility and areas of technical
expertise, comprise SEED. While the units actively make inputs into one another's programs -
and increasingly collaborate operationally - they continue to maintain their own distinctive nature
and focus. SEED represents an innovation through synergy and diversity, rather than uniformity.
The five existing SEED units, based in New York, are: Energy and Atmosphere Programs;
Natural Resources Management; The Global Environment Facility; UNSO-Office to Combat
Desertification and Drought; and, Capacity 21.
3.1.4 SEED supported activities related to compliance and enforcement
a) Capacity 21
While each of the units has a particular segment of environmental compliance and
enforcement which it could support, the primary unit responsible for this topic is Capacity 21.
Capacity 21 was launched at the United Nations Conference on Environment and
Development in Rio de Janeiro in 1992. The program is a novel and catalytic initiative that
supports developing countries in building their capacity to integrate the principles of Agenda 21
- the plan of action for sustainable development endorsed by more than 180 countries - into
national development.
Capacity 21 pursues three main objectives: assisting countries to incorporate the
principles of sustainable development into their development plans and programs; assisting
countries to involve all stakeholders in development planning and management; and creating a
body of experience and expertise in sustainable development and capacity building that will be
of continued material value to developing countries, UNDP, UN specialized agencies, NGOs,
donors and others. At the end of its second year of operation, Capacity 21 had on-going programs
in more than 40 countries; additional activities are under development in 10 other countries.
One of the more relevant, yet unique, examples of Capacity 21 support for compliance
and enforcement is seen in the project RAF/93/013 Environmental Law and Capacity Building in
Africa. The project involves 10-12 African countries and is managed through a cost sharing
arrangement with the Government of the Netherlands, UNDP, UNEPandthelUCN. It addresses
the following needs:
• Strengthen the capacities and capabilities of participating Government
institutions with a view to facilitating a switch from vertical functioning attitudes,
especially policy initiatives and decision-making to integrating multi-sectorial
management approaches to environmental legislation, and enforcement for
sustainable development;
• Institute a program for human resource development related to legislative
and institutional strengthening, including training and dissemination of
information;
• Create enabling environment through improvement/ revision of existing
environmental and related institutional mechanisms with a view to promoting
efficient, rational and sustainable utilization of natural resources.
-------
260 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
In each of the targeted countries the project will develop country specific responses
that:
• Provide a detailed needs assessment of legal and institutional regimes for
sustainable environmental management both on a sector and cross sector
basis.
• Assist in preparation of national legislation.
• Assist in implementing environmental legislation, including the putting in
place of institutional structures which ensure that managerial functions at all
levels are properly integrated and coordinated to provide an effective
framework for environmental management, including inter-ministerial
coordination and conflict resolutions.
• Provide institutional capacity building in the form of training, dissemination
of information and exchange of experiences.
• Promote consensus building for environmental legislative reform processes.
Capacity 21 is a UNDP trust fund managed by SEED. In order to access these funds
countries must make requests to their local UNDP offices which in turn forward the request to
their respective geographic bureau at UNDP-HQ New York. A Capacity 21 Management Group
meets occasionally to review requests for Capacity 21 funds submitted through the Regional
Bureaus. Capacity 21 programs are traditionally broad in scope, rather than focusing on a single
aspect of Agenda 21. Two examples of relevant Capacity 21 projects are attached herein as
Annex 1. The criteria for obtaining Capacity 21 support through a UNDP country office includes
those listed in the checklist in Annex 2.
b) Forest capacity program
The purpose of the Forestry Capacity Program (FCAP) is to support building capacity in
developing countries to implement their National Forestry Programs. The focus of this Program
is to design and implement policies that will encourage the various actors to make decisions
which result in sustainable management of tropical forests for socio-economic development and
environmental conservation.
As demand is expected to exceed the availability of resources, their allocation under the
program will be guided by criteria which include:
(a) degree of government commitment to the FCAP goals and objectives;
(b) importance of the country's forest resources;
(c) contribution of the sector to the national economy and the respective
development potential;
(d) severity of forest degradation and the number of people affected;
(e) needs for conservation of biodiversity as well as soil and water resources;
and
(f) type and extent of FCAP assistance needed.
It is important to establish a participatory planning and implementation process, and a
multi-disciplinary approach to forest issues. A variety of local institutional arrangements which
bring together relevant ministries, international organizations, NGOs and CBOs may be appropriate
to support such an approach. This project would provide assistance for supporting existing
-------
BECKER, SUSAN 261
institutional arrangements or setting up new ones where needed. Coordination of donor
participation in NFPs requires further institutional capabilities which this program also aims to
support.
The detailed design of a FCAP should be based on a comprehensive assessment of
the national and local capabilities to initiate and undertake long term forestry planning and to
implement programs and projects. The purpose of the program is to fulfill the essential technical
and institutional conditions for forestry development planning, while simultaneously enabling the
country to begin, or enhance, the FCAP process, particularly with regard to sectorial and project
planning, consultative mechanisms, policy design and implementation, and monitoring and
evaluation.
Given the above, the FCAP has the ability to deal with legislation, policy and regulations
governing the forest sector. The projects supported through this special fund do not deal solely
with compliance and enforcement, but includes these issues as part of overall forest sector
management. Assistance through an FCAP project may entail drafting new legislation, writing
regulations, implementing legislation, guidelines, codes of practices, and monitoring and
enforcement thereof. For example, in the Cameroun, an FCAP project was mandated to provide
the team responsible for writing the specific text for the application of the new forestry law and
accompanying degrees. Similarly, the FCAP project in Bhutan has enabled the country to finalize
text for a new Forest and Nature Conservation Act (1995), which has been approved by the
Cabinet for submission to the National Assembly. The enforcement of many sections of the new
Act will require the preparation of rules and regulations, which will be entrusted to a Task Force,
also supported by the project.
Support for FCAPs can be obtained directly through the Natural Resources Management
Unit of SEED.
4 ADDITIONAL UNDP SUPPORT FOR CAPACITY BUILDING GENERALLY
UNDP can support capacity building in environmental compliance and enforcement
through its regular country level activities. Country programs are developed by countries in
consultation with UNDP country offices. These activities are designed to provide support in the
thematic areas listed under 1.1 above. Governmental and non-governmental organizations
seeking assistance for support in capacity building for environmental compliance should therefore
contact the resident representative in their country to discuss methods of obtaining support from
the UNDP core allocation to the country.
In the past support has been provided for training, institution building, programs in
governance and democratization processes, support for the creation of market based systems,
grants for civil society activities and so forth. The spectrum is broad, and requirements and
needs vary in each country.
5 UNDP'S RECENT EXPERIENCE WITH REGULATIONS AND COMPLIANCE
In 1992 UNDP issued the Handbook and Guidelines for Environmental Management
and Sustainable Development. These guidelines were based on the rules and procedures of
UNDP at the time, and had some resemblance to strategic environmental assessment criteria. A
significant training program was launched after the guidelines were released, and over 120 country
offices hosted the training course. Although the guidelines are considered relevant and necessary,
-------
262 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
their implementation has been limited. Communication about the guidelines was abundant when
they were distributed, yet the guidelines were issued without any compelling reasons for their
utilization, either negative or positive. From this experience, UNDP is in the process of drafting a
new policy on the implementation of the guidelines which will hopefully provide incentives and
disincentives for the use of these protective measures.
6 CONCLUSIONS
UNDP is committed to capacity building for sustainable human development. Indeed,
using the broad definition of capacity development explained above, nearly all of UNDP's support
falls within this category, and certainly it is UNDP's priority in topics related to Agenda 21. UNDP
support is country driven - requests emanate from the countries, not from or through the
organization's headquarters. New proposals stemming from government or civil society for support
in areas related to capacity building for environmental compliance should accordingly be discussed
with UNDP country offices directly.
-------
BECKER, SUSAN 263
ANNEX 1 UNDP CAPACITY 21 PROGRAM EXAMPLES
These are two of a series of summaries of Capacity 21 programs currently under
implementation around the world. One is for Lebanon and one is for Honduras. Series documents
and general program information are available through the UNDP Internet Gopher Server at
gopher.undp.org. Please address any questions by e-mail to CAP21@undp.org or by mail to
the Coordinator, Capacity 21, Sustainable Energy and Environment Division, United Nations
Development Program, 1 United Nations Plaza, FF-10th Floor, New York, NY 10017, USA. Fax
1 (212)9066973.
A. CAPACITY 21 PROGRAM SUMMARIES. NUMBER 3. LEBANON
Program Title: Establishment of an enabling environment for integrating the principles of
sustainable development in Lebanon.
Program Number: LEB/93/G81
Start Date: September 1994
Duration: 2 years
Executing Implementing Agency: Government of Lebanon, Ministry of the Environment
Cooperating Agencies: UNEP and METAP
Capacity 21 Contribution 550,000 US$
Cost Sharing: 60,000 US$, UNEP
42,675 US$, IPF Subline
1 IN BRIEF
After seventeen years of war, and the social and environmental turmoil associated with
it, the Government of Lebanon faces the extraordinary task of planning, financing and executing
a comprehensive reconstruction of the country's infrastructure. The Government has also chosen
this as an opportunity to improve its development strategies and will use Capacity 21 support to
create an enabling environment for sustainable development. Included will be plans and strategies
for sound environmental management and capacity building for all sectors involved in the
sustainable use and development of Lebanon's resources.
2 BACKGROUND
Environmental profile Political and social attitudes during the war placed few limitations
on the use of natural resources, and Lebanon's environment has severely deteriorated from
overexploitation. The depletion and degradation of land, water, air, coastal and other resources
have reached critical levels, as has pollution by solid waste, sewage, chemicals and industrial
development. A laissez-faire attitude has prevailed in Lebanon regarding land use planning,
environmental regulation and the exploitation of natural resources, and no regulatory or monitoring
legislation currently exists.
Cultural profile The years of civil conflict in Lebanon were also socially devastating.
Emigration of skilled Lebanese was widespread, and by 1990 almost 750,000 people were
displaced, exacerbating both human and economic suffering. Disadvantaged and vulnerable
groups were particularly affected, compounding previous regional imbalance. Disparities between
men and women have also been widened.
-------
264 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Lebanon's response The Government of Lebanon has embarked on the implementation
of a US$ 2.25 billion Program of National Emergency and Reconstruction (NERP). The NERP
concentrates primarily on the rehabilitation of water, waste water, solid waste, electricity, housing
and education sectors. The Program is broadly managed by the Council for Reconstruction and
Development (CDR). While the NERP has an implicit environmental component, it does not
adequately integrate environmental concerns into its proposed rehabilitation and reconstruction.
The Government has also established the Ministry of State for the Environment. However,
an outdated legislative framework and nonexistent enforcement mechanisms hinder Lebanon's
ability to regulate activities to ensure sustainable development. Current development and
reconstruction practices are therefore often launched in ways that are neither environmentally
sound nor sustainable.
3 POINTS OF EMPHASIS
Though the main thrust of this program will be support for environmental management,
all sectors that impact sustainability will be supported and involved in implementation.
This is the first attempt to integrate environmental and sustainable development
issues into the national planning process of reconstruction and development.
ANTICIPATED RESULTS
• National institutions established for sustainable development.
• An effective legal and regulatory framework for sustainable development
and effective administration and enforcement of this framework, including
economic instruments and market incentives.
• Enhanced capacity of stakeholders to participate in and apply the
Environmental Impact Assessment (EIA) process.
• Ability of the Ministry of Environment and other stakeholders to:
- ensure coordination of environmental monitoring;
- use the information acquired for improved decision making,
- establish systems for integrated environmental; and
- economic accounting, promote greater awareness of the need for
sustainable development, and facilitate greater access to information
for sustainable development.
• Availability of and access to resources necessary for sustainable
development.
DEVELOPMENT OBJECTIVES
• To create an enabling environment for integrating the principles of sustainable
development in decision making processes in Lebanon
-------
BECKER, SUSAN 265
6 IMMEDIATE OBJECTIVES
6.1 To establish national institutions for the sustainable management of
development
Indicators of Achievement
• A program for the consultation and participation of all stakeholders in the
planning of the mandate and functions of the Ministry of Environment (MOE)
agreed and in operation
• Ministry of Environment Development plan approved by government
• Legislation to support the Ministry of Environment
• Ministry of Environment established
How will Achievement be assessed
• Capacity 21 reports
6.2 To develop an effective legal and regulatory framework for sustainable
development
6.3 To propose actions for effective administration and enforcement of this
framework, including economic instruments and market incentives
Indicators of Achievement
• Review of all policies, strategies and institutional arrangements relating to
sustainable development
- Existing laws revised
- New laws drafted and presented to Government
How will Achievement be assessed
• Capacity 21 reports
- Review of government legislative process
6.4 To enhance the capacity of stakeholders to participate in and apply the
Environmental Impact Assessment (EIA) process
Indicators of Achievement
• Stakeholder groups identified and consulted
• Procedures for stakeholder participation and consultation, including criteria
for participation, developed
• A program of awareness and training in operation
How will Achievement be assessed
• Interviews with stakeholder representatives: government, private sector,
NGOs
-------
266 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• Workshop reports
6.5 To enhance the ability of the Ministry of Environment of Lebanon to:
• Ensure coordination of environmental monitoring.
• To use the information acquired for improved decision making; and
• To establish systems for integrated environmental and economic accounting.
Indicators of Achievement
• Environmental monitoring requirements and capacities of all sectors reviewed
and assessed
• A cooperative inter-institutionalprogram of environmental monitoring drawn
up and agreed by cooperating parties
• Equipment, personnel and training needs defined
• Priority equipment obtained
• Environmental monitoring program in operation
How will Achievement be assessed
• Capacity 21 reports and interviews with representatives of sectors and
institutions
• Capacity 21 reports
• Government of Lebanon reports
6.6 To enhance the capacity of the Ministry of Environment and of other
stakeholders:
• to promote greater awareness of the need for sustainable development;
• to facilitate greater access to information to help secure the objectives set
for sustainable development
Indicators of Achievement
• Implementation of the Sustainable Development Network Program (SDN)
Proposal
How will Achievement be assessed
• SDN Program reports
6.7 To ensure that the necessary short and long term resources are made
available for sustainable development
Indicators of Achievement
• Government strategy for funding development in a sustainable fashion
• UNDP strategy for IPF investment in sustainable development prepared
• A program of resource mobilization among donors operating
-------
BECKER, SUSAN 267
How will Achievement be assessed
• Government reports
• Country Office reports
• Capacity 21 reports
B. CAPACITY 21 PROGRAM SUMMARIES. NUMBER 10. HONDURAS
Program Title: Integrated Programto Strengthen Indigenous Groups to Protectthe Environment
and the Cultural Patrimony
Program Number: HON/93/G81
Start Date: September 1993
Duration: 3 years
Executing Agency: Honduran Institute of Anthropology and History
Capacity 21 Contribution: 700,000 US$
UNDP/IPF Funds: 300,000US$
Cost Sharing: 300,000 US$, Government of Honduras, in-kind contribution 500,000 US$,
Third Party Cost Sharing
1 IN BRIEF
By working with indigenous groups who live in the most ecologically fragile Honduran
forests, Capacity 21 will help Honduras to build legal instruments, technical resources, and human
capacities that will harmonize external pressures with environmental protection. Institutional
capacity in Honduras will be strengthened in order to integrate environmental conservation with
human development in a manner that satisfies the aspirations of indigenous minorities, who are
typically alienated from mainstream patterns of development.
2 BACKGROUND
Environmental Profile. Tropical forests are currently being deforested at rapid rates by
migrant farmers and cattle ranchers, leading to loss of biodiversity and environmental degradation.
Estimates of destruction are 15,500 hectares per yearforconiferousforests and 64,500 hectares
per year for broadleaf deciduous forests, the latter being the most important ecosystem for
biodiversity. If these rates continue, the tropical forests of Honduras will disappearwithin the next
twenty years.
Cultural Profile. Competing economic interests (primarily of migrant farmers, cattle
ranchers and tourism developments) are forcing indigenous groups off their traditional lands,
leading to a gradual extinction of these ethnic communities. The threat to survival of these
communitiesis also a threat to their vast knowledgeand a threat to the endangered species such
as tapirs, spider monkeys, harpy eagles and others which have coexisted together for centuries.
Honduran Response. To combat the intensified occupation and degradation of their
traditional lands, representatives of the Toplan, Lenca, Tawakha, Miskito, and Garffuna tribes
recently presented a series of petitions to President Callejas requesting guarantees for "land
tenure, personal security, and self-determination of their autonomous cultures". The President
has recognized the need to support these indigenous groups in their efforts and has, in turn,
supported the integrated environmental and development strategies proposed in this program.
-------
268 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3 POINTS OF EMPHASIS
The social and economic aspirations of the communities that depend on natural resources
for their survival must be considered and integrated into environmental protection plans and
conservation goals.
Ethnic groups who still inhabit the forest are living examples of ecological harmony and
can provide a wealth of knowledge regarding the forest flora and fauna.
This program is multi-disciplinary, involving indigenous groups and specialists in
anthropology, agro-ecology, education, health, artisans and eco-tourism development..
4 ANTICIPATED RESULTS
A legal framework that guarantees the survival of forest-dwelling ethnic groups while
permitting the viable protection of biodiversity in fragile zones and the conservation of the nation's
cultural patrimony.
A protected corridor system from the Rio Platano Biosphere to the Bosawas Reserve in
Nicaragua.
A legal and functional consolidation of ethnic settlements in ecologically fragile zones
and creation of buffer zones to contain deforestation by cattle ranchers and migrant farmers.
A technical plan for integrated resource management, combining elements of customary
and modern management systems. A group of pilot communities will also be established to test
this plan.
Strengthened public administration systems of the indigenous groups through training
in community development, natural resource management, forest/biological reserve administration,
eco-tourism and other fields.
A package of demonstration micro-projects at the village level, encompassing sustainable
resource management, agroforestry, food security, primary health care, bicultural education,
traditional crafts and eco-tourism under tribal control. Funding strategies for the implementation
of these projects will also be created.
5 DEVELOPMENT OBJECTIVES
5.1 Involve indigenous communities in the economic, political and cultural
development of Honduran society
5.2 Achieve a rational use of natural resources, guaranteeing their continued
existence to ensure ecological balance and to provide the population with
the benefits of their sustained use as a basis for development of the region
6 IMMEDIATE OBJECTIVES
6.1 Define a development concept for the region which incorporates the
sustainable use of natural resources, by achieving the following objectives:
-------
BECKER, SUSAN 269
6.2 Reform the public, private and non-governmental institutional structure for the
promotion, management and coordination of development programs
Indicators of Achievement
• An understanding developed in government and in communities of traditional
public administration systems
• Minimum capacities identified that is needed to guarantee survival of ethnic
groups and biodiversity
• Indigenous people trained through specially designed training programs
• Increase in sharing of information between ethnic groups
How will Achievement be assessed
• An interdisciplinary study of indigenous systems
• Interviews with representatives of government and communities
• Capacity 21 reports
• Reports on training sessions. Interviews with trained people
• Interviews with representatives of groups
6.3 Involve local populations in the management and use of resources and in
benefiting from them
Indicators of Achievement
• The legal and functional consolidation of ethnic settlements
• Creation of buffer zones to contain deforestation by rancher and migrant
farmers
• Integration of traditional management systems and new technology in a
plan for integrated resource management
• Plan tested in pilot communities
• Communities involved in micro-projects, and funding strategy for
micro-projects in place
How will Achievement be assessed
• Government legislation documents, visits to settlements
• Government legislation, inspection of management plans for buffer zones
• Review of plan
• Reports on pilot programs
• Reports on micro-projects and funding strategy
6.4 Conserve and protect the ethnic cultural heritage of the indigenous population
of the region as a means of strengthening their cultural and national identity
-------
270 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Indicators of Achievement
• Development of a legal framework that guarantees the survival of indigenous
forest-dwelling groups while permitting the viable protection of fragile
biodiversity and national patrimony
• Creation of new protected areas: establishing a protected corridor from the
Rio Platano Biosphere to the Bosowas Reserve in Nicaragua
How will Achievement be assessed
• Government legislation
• Review of legal status of protected areas
-------
BECKER, SUSAN 271
ANNEX 2. CHECK LIST FOR ASSESSING PROPOSALS TO CAPACITY 21
This checklist is a tabulated compilation of criteria and guidelines established by the
UNDP Governing Council for programs to be supported under Capacity 21. Everything in the
table supports the central principles of Agenda 21, to which UNDP Program Countries are
signatories.
REQUIREMENT
SOURCE OF
REQUIREMENT
COMMENT
Country has demonstrated
strong commitment to
implementing Agenda 21 and to
achieving sustainable
development. Commitment will
normally be demonstrated
through the actions of UNDP's
main counterpart ministries,
especially those concerned with
central planning and finance.
Commitment of specialized
agencies, including
environmental agencies may be
insufficient if they do not have
adequate support. Adequate
funding of the agencies
responsible for the
implementation of Agenda 21
may be a good indication of
commitment.
UNDP Governing Council.
Agenda 21, Chapters Integrating
environment and development in
decision making.
Agenda 21 Chapter 8, Section
8.12 - Strengthening National
Capacity.
The nation's development plans
in general and the Country
Program in particular manifest
support to sustainable
development, and planning
frameworks recognize the long
term nature of investment in
sustainable development. An
aim is to bring about changes ir
commitment and attitude towards
sustainable development.
UNDP Governing Council.
Agenda 21, Chapter 8
Integrating environment and
development in decision making
The program that Capacity 21
will support is designed to assist
the achievement of sustainable
development through the
integration of processes of
Agenda 21, Chapter 8 -
Integrating environment and
development in decision making
sustainable development into
national development planning
-------
272 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
REQUIREMENT
SOURCE OF
REQUIREMENT
COMMENT
Country has adopted, or plans,
a broad programmatic
approach to achieving
sustainable development.
Agenda 21, Chapter 8 - Section
8.12 - Strengthening National
Capacity.
The Capacity 21 proposal is of
central importancein helping to
shift development processes
towards sustainable
development, (i.e. it is not "just
another" conventional program,
and Capacity 21 is not simply
being used to compensate for
general shortage of resources).
UNDP Governing Council.
The Capacity 21 proposal is
innovative i.e. it helps to bring
about a genuinely new and
pioneering approach to
sustainable development in the
country concerned.
UNDP Governing Council.
The catalytic nature of the
Capacity 21 proposal can be
demonstrated and will lead to
the mobilization of resources for
sustainable development by
helping to plan national
budgetary requirements, by
helping to allocate national
resources appropriately, and by
securing external resources.
UNDP Governing Council.
Although the outputs of
Capacity 21 proposals will be
national in impact, there must
be consistency with regional
and global initiatives including
the GEF, Montreal Protocol etc.
UNDP Governing Council.
Capacity 21 proposals should
be formulated locally on the
basis of a participatory and
Agenda 21, Section 3 -
Strengthening the Role of Major
Groups - Chapters 27-32.
transparent process that
-------
BECKER, SUSAN 273
REQUIREMENT
SOURCE OF
REQUIREMENT
COMMENT
involves consultation with
NGOs, the private sector,
government, UN agencies and
other donors. Proposals should
give full support to the
participation of civil society to
participate in program
execution.
UN agencies should be
included in consultations at all
stages of proposal preparation,
and involved in program
execution where appropriate.
UNDP Governing Council.
Proposals will normally give
consideration to improving
access to information and
networking within the country
and between countries.
Agenda 21, Chapter 40 -
Information for Decision Making
Preference given to good
programs from LDCs.
UNDP Governing Council.
-------
274 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
ADEN, JEAN 275
WORLD BANK SUPPORTED ENVIRONMENT INSTITUTION BUILDING
INVESTMENTS
ADEN, JEAN
Institutional Specialist, Environment and Natural Resources Division, Asia Technical
Department,The World Bank, 1818 H Street N.W., Washington, D.C. 20433, USA
SUMMARY
A main focus of Bank lending for the environment is to strengthen public sector institutions
responsible for environmental protection and management at the national and subnational levels.
As of July 1995, twenty such projects, involving commitments of nearly $670 million and total
project investments of close to $1.2 billion, were under implementation. All of these projects
have been approved since fiscal 1990 and almost two-thirds in the three years since UNCED
(see Table 1 for projects approved since Rio). Many of these projects support implementation of
National Environmental Action Plans. While some of these operations include sizable investment
components, all of them include significant technical assistance, training, and studies components.
1 NEW ENVIRONMENTAL INSTITUTIONS PROJECTS
Four new environmental institutions projects were approved in fiscal 1995 involving
Bank financing of $135 million for a total investment of more than $220 million. Of these, three
are comparatively small technical assistance operations, while the fourth is much larger, combining
investment and institutional development components in the Russian Federation. The Benin,
Honduras, and Trinidad and Tobago operations are described below; the work initiated in the
Russian Federation is discussed in Figure 1. In addition, the Institutional Development Fund
(IDF) is providing increasing support for activities with an environmental or social focus, as illustrated
in Figure 2.
1.1 The Benin Environmental Management Project
The Benin Environmental Project will support the development of environmental
management capacity at the national level and help the government of Benin to implement the
National Environmental Action Plan adopted in June 1993. It will pursue capacity building and
institutional support, including streamlining and strengthening national environmental
responsibilities, reinforcing policy implementation and coordination mechanisms, promoting better
preparation and enforcement of the environmental regulatory framework, developing an effective
environmental regulatory framework, developing an effective environmental information system,
and enhancing environmental monitoring and evaluation capability. The project will also promote
public awareness of environmental issues and the integration of environmental considerations in
the education system.
-------
276 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
STRENGTHENING ENVIRONMENTAL MANAGEMENT IN THE RUSSIAN FEDERATION
Like many other countries in transition to market economies, the Russian Federation
has inherited a costly environmental legacy from decades of growth that neglected to take
environmental factors into account in national investment decision making. As elsewhere,
moreover, the environmental management system is fragmented and uncoordinated, with many
government agencies sharing some responsibility for environmental concerns. Because the
capital requirements for resolving environmental problems in the country are high, priorities
must be set and interventions selected to address these priorities in a cost-effective manner.
Among the institutional and financial problems that need to be tackled are the unreliability of
much existing environmental data, ineffective laws and regulations for environmental protection,
poorly defined management and organization responsibilities, inadequate budget allocations, a
breakdown of the traditional command and control system for pollution abatement and nature
protection, inappropriate criteria for emission standards, and the lack of sufficient medium-term
investment funds.
To support efforts to address these issues, a loan of $110 million was approved this
year by the Bank for the Environmental Management Project to support, among other things,
environmental management and institutional strengthening at the federal level and in the North
Caucasus, Upper Volga, and Urals regions. More specifically, the project will assist the Russian
Federation in establishing and Environmental Framework Program, estimated to cost a total of
$282 million over four to five years whose objectives are to:
• incorporate environmental and natural resource management concerns
directly into the economic, social and political adjustment process at the
federal and regional levels of government;
• strengthen and streamline government institutions for environmental and
natural resource management;
• improve the formulation and implementation of environmental and natural
resource management systems;
• strengthen financial delivery mechanisms to address priority environmental
management investment needs through the setting up and initial
capitalization of a National Pollution Abatement Facility; and
• facilitate the flow of donor and multilateral resources to the
environmental protection sector.
Figure 1. Strengthening Environmental Management in the Russian Federation
1.2 The Honduras Environmental Development Project has three principal sets of
objectives:
• to strengthen government capacity for environmental planning, policy, and
regulation, interagency and intersectorial coordination, and monitoring and
enforcement of environmental laws and regulation;
• to assist the Ministry of the Environment in implementing national and
participatory system of EAs and in developing methodologies for their
preparation, processing, and review; and
• to develop environmental management capacity at the municipal level, with
greater grassroots participation, and increase financial support for pilot
environmental projects at the municipal and community levels as well as for
small and microenterprises using the Honduran Social Investment Fund.
-------
ADEN, JEAN 277
USING THE INSTITUTIONAL DEVELOPMENT FUND TO IMPROVE
ENVIRONMENTAL MANAGEMENT
The Institutional Development Fund is a grant facility for financing technical assistance
for institutional development not directly linked to planned Bank Group lending operations. The
Institutional Development Fund enables a quick response for funding small, action-oriented
initiatives identified during the Bank's economic and sector work and policy dialogue. The
Institutional Development Fund came into operation in 1992, and in the first two years committed
nearly $27 million in grants to 101 projects, funding a wide variety of recipients and critical
institution-building activities that otherwise might not have been funded.
The Institutional Development Fund's focus is broad, but a number of its grants have
social and environmental objectives at their core. For instance, a $190,000 Institutional
Development Fund grant was approved to strengthen organizational management in agriculture
and natural resources in Malawi; a $100,000 grant was awarded to build capacity for
environmental management in Sao Tome and Principe; $190,000 was granted for formulating
environmental policy and strengthening environmental capacity in the Lao People's Democratic
Republic; and $430,000 was awarded for a local environmental management program in the
Donetsk Oblast, Ukraine, which includes an air quality management program and a public
awareness component as a first step in Ukraine's budding environmental program. Other
grants awarded by the Institutional Development Fund since 1992 have been used to carry out
innovative institution-strengthening programs for indigenous peoples in Bolivia, Chile, and
Guatemala; to manage national cultural property in Albania; and to provide assistance to China's
Ministry of Water Resources and India's Ministry of Forestry and Environment.
Figure 2. Using the Institutional Development Fund to Improve Environmental
Management
1.3 The Trinidad and Tobago Environmental Management Project
The Trinindad and Tobago will also work to establish the necessary institutional
arrangements for environmental regulation and management, along with a priority environmental
work program based on a National Environmental Action Plan to be formulated under the project.
It will include a public awareness program and an environmental training program for the public
and private sectors. It will also support the activities of the Environmental Management Agency.
During project preparation, the government fostered a major participatory effort to draft legislation
for the agency, which was opened up for public review and substantially revised on the basis of
comments received before the legislations was introduced into parliament.
In addition to the operations approved in fiscal 1995, the Urban Environmental
Management Project in Colombia, currently under preparation, should be noted because of its
highly innovative nature. This proposed technical assistance operation capitalizes on the
government decentralization currently taking place in Colombia to build institutional structures
for managing environmental problems in four major urban centers: Barranquilla, Bogota, Cali,
and Medellin. This will be the first Bank project to focus exclusively on environmental institution
building at the urban and municipal level. In each of these municipalities, new environmental
institutions have been established to address a broad range of urban environmental issues,
including water supply and sewerage, water pollution, air pollution, and waste management.
The proposed project will support these institutions by focusing on environmental planning,
organization structures, regulatory strengthening, and the provision of training and equipment for
the participating cities.
-------
278 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Environmental institution-building projects often face particularly complex implementation
challenges due to the cross-sectorial and cross-jurisdictional nature of many environmental
problems, the likelihood that many environmental agencies are new or weak, and the critical
importance of strong political support for achieving environmental improvement goals. Among
such operations, which have been under implementation for several years, important lessons
can be learned from the Environmental Management Project in Poland, approved in 1990, which
is nearing completion and is one of the most successful environmental institution-building projects
to date. Much of this success is due to solid preparation work, which included setting clear
priorities and effectively collaborating between Polish and Bank specialists, together with firm
government commitment to the project's objectives. Strong local technical and institutional capacity
and the continuity of key project personnel on both the borrower and the Bank side have also
been important factors, as has been the pragmatic approach taken to project design, which has
included consideration of procurement arrangements from the earliest stages of preparation.
From the very beginning, moreover, several large but heavily polluted municipalities (Katowice
and Krakow among others) have been formally involved in project activities, together with the
central environmental agency, reflecting the project's serious commitment to decentralization.
Flexibility during implementation has likewise been a significant element in the project's highly
satisfactory performance.
-------
ADEN, JEAN 279
Table 1. Projects for Environmental Institutions, Fiscal 1993-1995
(millions of dollars)
Fiscal year
and country
1993
Bolivia
Chile
China
Ghana
Korea, Rep.
of
TOTAL
1994
Gambia
Korea, Rep.
of
Morocco
TOTAL
1995
Benin
Honduras
Russian
Federation
Trinidad and
Tobago
TOTAL
Project Name
Environmental Technical
Assistance Project
Environment Institutions
Development Project
Environment Technical
Assistance Project
Environment Resource
Management Project
Environmental Research
and Education Project
Capacity Building for
Environmental
Management - Technical
Assistance
Environmental
Technology
Development project
Environmental
Management Project
Environmental
Management Project
Environmental
Development Project
Environmental
Management Project
Environmental
Management Project
Loan/Credit
(L/C)
C
L
C
C
L
C
L
L
C
C
L
L
Total since UNWED, fiscal 1993-1995
Active projects
approved before fiscal 1993
Total Active Portfolio
World Bank
Financing
5
12
50
18
60
145
3
90
6
99
8
11
110
6
135
379
289
668
Total Project
Cost
5
33
70
36
97
241
5
156
11
172
9
13
195
11
228
641
536
1,177
-------
280 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
THEME 5: INSTITUTION BUILIDNG: UNEP WORKSHOPS 281
THEME #5:
INSTITUTION BUILDING : UNEP WORKSHOPS
A training manual, case studies, and a discussion guide are available to explore
design issues and options for organizing a compliance and enforcement program;
developing human information and financial resources; permit processing; and
implementing a compliance monitoring and enforcement response program. Case
studies provide a common point of departure for discussion.
1. Synopsis of UNEP Manual on Institution Building 283
2. Synopsis of Capacity Building Support Document: Organizing Environmental
Permit, Compliance, and Enforcement Programs 285
3. Synopsis of Capacity Building Support Document: Financing Environmental
Permit, Compliance, and Enforcement Programs 286
See related paper from other International Workshop and Conference Proceedings:
1. Instructions for UNEP Institution-Building Workshops, R. Glaser, Volume II,
Oaxaca, Mexico
-------
282 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
SYNOPSIS OF UNEP MANUAL ON INSTITUTION BUILDING 283
SYNOPISIS OF UNEP MANUAL ON INSTITUTION BUILDING
Industry Environmental Compliance
A Training Manual
UNEP IE TECHNICAL REPORT NO. 36
UNEP IE has produced a training manual to help governments develop their
institutional ability to ensure industry compliance with their country's environmental
standards. "Industry Environmental Compliance: A Training Manual" provides the context,
examines different approaches, identifies critical elements of success and discusses options
when resources are limited in developing an effective compliance and enforcement program.
It promotes an integrated approach to help steer industry towards cleaner production options
rather than end-of-pipe solutions to meet environmental requirements. It complements an
earlier UNEP IE publication on "From Regulations to Industry Compliance: Building
Institutional Capabilities" which prompted world-wide interest and requests for assistance
to put its principles into practice.
The training manual consists of four separate modules. The first module on
institutional aspects examines: why an effective compliance and enforcement program is
important; its objectives and functions; its optimal balance between the inspection, permi
and enforcement functions; the necessary interaction among government bodies, industry
and the public; how to establish priorities and evaluate success; how to phase-in functions
as resources become available. The second module focuses on permits and provides
answers to such questions as: what is an environmental permit, its role, its content; who
should be required to have a permit, who should issue it and what criteria should it be
based upon; how to make the permit enforceable and what to do when laws or regulations
are imprecise; what to do when resources are limited and how to introduce integrated
permits. How to monitor and enforce compliance is covered in the third module. Three
sections focus on industry self-monitoring, government inspections and enforcement,
covering issues such as: who should be required to self-monitor; what, how and when;
how to adopt an integrated approach to self monitoring; how to develop an inspection
strategy and what guidance to provide to inspectors; how to convert to integrated inspections;
how to develop an enforcement strategy with appropriate responses to different violations
what options exist when resources are limited. The fourth module deals with human and
financial resources and examines the types of resources needed for different functions
and funding options. The appendices include: a case study of a fictitious country providing
a discussion of common problems governments encounter in each of these four areas
and a summary of the key points of each module in a form which can be easily photocopied
onto overheads.
The training manual can be used for individual study or for group training in local,
regional national or international settings. It is now available from UNEP IE. Requests for
UNEP IE assistance in carrying out the training programs may also be considered.
-------
284 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
SYNOPSIS OF FINANCING ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT PROGRAMS 285
SYNOPSIS OF FINANCING ENVIRONMENTAL COMPLIANCE AND
ENFORCEMENT PROGRAMS
Capacity Building Support Document for Environmental Compliance and
Enforcement Programs
PURPOSE
Consistent with the goals of the Fourth International Conference on Environmental
Compliance and Enforcement, its international sponsors, and the Executive Planning Committee,
this document provides guidance on budgeting and financing methods that can be used to
maximize resources available for environmental compliance and enforcement programs.
Through illustrative examples, it describes how environmental compliance and enforcemen
programs are financed throughout the world. Information from more than 50 countries is
presented. The document was designed for use by government officials and individuals
associated with non-governmental organizations who are directly responsible for design,
budgeting, and management of environmental compliance and enforcement programs.
SUBJECT AREAS
In general, the document covers: budgeting, specific funding mechanisms (taxes,
fees, fines, grants, loans/debt, voluntary mechanisms, and public-private partnerships), measures
to minimize financing demands (tradable permits, subsidies, deposit-refund systems, resource
allocation, and technical training) institutional mechanisms to manage the flow of funds (genera
fund mechanisms, dedicated funds, funds transfer, public authorities, bilateral/multilateral
mechanisms), and additional sources of additional sources of information.
SCOPE
Information on financing mechanisms used to fund environmental compliance and
enforcement programs from the following countries:
Africa & Middle East
Burkina-Faso
Morocco
Asia
Australia
Japan
Philippines
Thailand
Egypt
Nigeria
China
Malaysia
Singapore
Vietnam
Europe
Albania Austria
Estonia Finland
Greece Hungary
The Netherlands Norway
Russia Spain
North America
Canada
South America
Argentina
Mexico
Brazil
Ghana
South Africa
Hong Kong
Nepal
South Korea
Belgium
France
Ireland
Poland
Sweden
United States
Chile
Israel
Tunisia
India
New Zealand
Sri Lanka
Mauritius
Indonesia
Pakistan
Taiwan
Czech Republic Denmark
Germany Dried Kingdom
Italy Lithuania
Portugal Romania
Columbia
Uruguay
-------
286 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
SYNOPSIS OF ORGANIZATIONAL DESIGN ISSUES: A COMPARISON
OF INTERNATIONAL COMPLIANCE AND ENFORCEMENT PROGRAMS
Capacity Building Support Document for Environmental Compliance and
Enforcement Programs
PURPOSE
Consistent with the goals of the Fourth International Conference on Environmental
Compliance and Enforcement, its international sponsors, and the Executive Planning
Committee, this document provides information regarding the organization of environmental
compliance and enforcement programs in 19 countries drawn from seven regions of the
world. It examines which institutions conduct what activities and why, across tiers of
government (national, regional, local) and within a tier, among agencies. Countries facing
organizational issues may benefit from models that other nations use to organize
environmental compliance and enforcement programs, especially where the two nations
share similar environmental, social, cultural, political, geographical, or economic conditions.
SUBJECT AREAS
This document is based on a series of country profiles, which are presented in
separate country appendices at the end of the document. Country-specific information is
contrasted in a series of comparative tables that examine the extent to which environmental
compliance and enforcement activities (establishing requirements, writing permits,
monitoring, inspections, etc.) are centralized at the national level of government, or
decentralized at regional or local levels; dominated by a single agency at any one level 01
spread across numerous agencies; integrated or coordinated among agencies; organized
by environmental media (air, water, natural resources, solid waste), or organized by industry
type. The role of non-governmental organizations is discussed. Country examples are
used liberally to illustrate main points.
SCOPE
At least some information is presented for each of the following 19 countries:
India Indonesia Philippines Singapore
Sri Lanka Thailand New Zealand Jamaica
Hungary The Netherlands Norway Poland
Canada Mexico United States Brazil
Chile Nigeria South Africa
-------
THEME 6: SPECIAL TOPIC AND INSTITUTION-BUILDING WORKSHOPS 287
THEME #6:
SPECIAL TOPIC AND INSTITUTION-BUILDING
WORKSHOPS
Expert papers were requested on the following workshop topics and the issues listed below each
workshop were addressed during facilitated discussions at the workshops.
A Automation and Enforcement: Available Support Systems
B Strategic Targeting for Enforcement
C Integrated Permitting and Inspection
D Compliance Monitoring
E Promoting Voluntary Compliance: Environmental Auditing, Outreach, and Incentive
Programs
F Measures of Success
G Communications and Enforcement
H Public Role in Enforcement: How to Go About Creating and Supporting Effective Citizen
Enforcement
I Criminal Enforcement: INTERPOL, Role of Criminal Enforcement in Environmental
Enforcement
J Enforcement of Economic Instruments
K Take Back Laws Enforcement
L Creating Enforceable Permit Programs and Requirements: Discussion Focus on Water
Pollution and Contamination of Drinking Water Supplies
M Transboundary Illegal Shipments of Hazardous Waste: Tricks of the Trade
N Montreal Protocol: Enforcement of CFC and Related Requirements
O Enforcing Domestic Programs Implementing International Agreements
P Collaborative International Targeting of Enforcement
Q Organizing and Financing Programs (Opportunity for Further Discussion from UNEP
Workshops)
R Enforcement Policy and Authorities (Opportunity for Further Discussion from UNEP
Workshops)
-------
288 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
SPECIAL TOPIC A: AUTOMATION AND ENFORCEMENT: AVAILABLE SUPPORT SYSTEMS 289
SPECIAL TOPIC WORKSHOP A
Automation and Enforcement: Available Support Systems
Papers address the following issues:
• Potential uses of automation to support compliance monitoring and
enforcement response functions.
• Software systems used to support enforcement and availability to other
nations: how copies can be obtained.
• Key pieces of information that are typically in such systems.
• Evolution of these systems over time and what features characterize
beginning systems.
• How information in the systems is maintained and kept up to date.
• Typical report formats, to whom these reports go, and for what purposes.
• Linkages between information systems used:
- For managing permit issuance or inventories of sources of pollution,
and those used to monitor compliance.
- Information systems used to manage inspection programs, and those
used to manage source self-monitoring information.
• How systems are managed in highly decentralized settings and options for
establishing compatibility and exchange.
• Features of automated systems that make them:
- most reliable and up to date;
- supportive of strategic targeting of enforcement resources; and
- user friendly.
• How to address issues of confidentiality and access.
1. Information Systems to Support Compliance and Enforcement, C.R. Galloway 291
2. See also Cradle-to-Grave Compliance Tracking of U.S./Mexican Transboundary
Hazardous Waste; The Haztracks Tracking System, S. Coleman, J. V. Schultes,
Theme 6, Workshop M 711
-------
290 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
GALLOWAY, CAROL R. 291
INFORMATION SYSTEMS TO SUPPORT COMPLIANCE AND
ENFORCEMENT
GALLOWAY, CAROL R.
Chief, Data Management Branch (2222A), Office of Enforcement and Compliance
Assurance, U.S. Environmental Protection Agency, 401 M Street S.W., Washington,
D.C. 20460, USA
SUMMARY
A general overview of the types of information and information systems that support the
United States' compliance assurance and enforcement programs at the national, regional and
state levels including the need for national information and national systems, typical data, evolution
of enforcement systems and public access to the data.
1 REGULATORY ENFORCEMENT FRAMEWORK IN THE UNITED STATES
Environmental protection is implemented through three major groups in the United States.
These groups are the States, the Environmental Protection Agency's (EPA) ten Regional offices,
and the Headquarters office of the EPA. In most environmental programs, EPA's Headquarters
office sets national goals and objectives, and establishes policies and general performance
expectations. Headquarters offices are also often closely involved with the formulation of new
environmental bills by Congress. EPA is responsible for national compliance monitoring and
enforcement of environmental laws and for communicating information about these programs to
the public.
The majority of Federal environmental statutes are eventually delegated to the States
for implementation. In these cases, individual state environmental agencies implement the
enforcement program (i.e., conduct inspections, monitor compliance and take enforcement
actions). States may also implement additional state-specificstatutesand may be more stringent
than the Federal statutes and regulations. States are often subdivided into regions or districts
within a State, and these districts are sometimes semiautonomous units that implement
enforcement programs in their geographic area.
EPA Regions oversee implementation by the States and attempt to ensure consistency
among States. Where States have not yet been delegated an environmental program (e.g., a
State may have approval to implement the wastewater enforcement program but not the sludge
control portion), the federal EPA throughon of its ten Regions will implementthe program directly.
Thus, both the State and EPA may be implementing separate parts of a program at the same
facilities. The Regions negotiate with the States to set performance targets for key activities
such as inspections and enforcement response.
2 THE IMPORTANCE OF INFORMATION
Information is critical to the work of all three groups; EPA Headquarters, EPA Regions
and States. The types of information required by each group however, do vary to some degree.
In general, the States (and EPA Regions where they implement programs) will require the
-------
292 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
most detailed information, including a variety of data on individual regulated facilities. The Regions
will require less detail and more summarized information useful to their role in oversight and
performance evaluation. This summarized information might include numbers of inspections
conducted, numbers of administrative orders issues etc. EPA headquarters relies heavily on
summarized information, however, it too uses facility-specific information as will be described
below.
2.1 Basic types of information
2.1.1 Inventory
Information on the number, size, location, and character (i.e., an inventory) of the regulated
universe of facilities is critical to understanding which facilities are subject to specific laws and
regulations. It is important to keep the inventory up to date as facilities shut down, start up, move,
change ownership or type of operations. It is often useful to compare and contrast different types
of regulated facilities. For example, operators of small printing shops may be characterized by
limited resources and educations and may require special outreach to foster understanding of
environmental requirements. While large printing businesses may more typically have specific
staff trained to follow environmental issues and requirements.
2.1.2 Location
It is vital that the regulators know specifically where facilities are located. This information
is used not only to enable the regulators to visit the site, but to understand the possible impact the
facility may have on nearby populations or surrounding ecosystems. Locational information is
needed when selecting sites for inspections, and for targeting outreach and education efforts to
support geographic initiatives. The State may target a specific watershed for priority action, and
it is necessary to understand which facilities are located within or contribute to that watershed.
Thus, it is useful to know not only where the "front door" is located, but also where the emission
points are (e.g., air stacks, wastewater outfall pipes). Many of EPA's data systems contain
several sets of locational information including the mailing address, the plant addresses and the
location of the emission points.
2.1.3 Compliance and enforcement history
Information on facilities' compliance histories is critical in targeting "bad actors" and to
minimize potential risk. Information on violations also facilitates deciding on an appropriate and
consistent enforcement response. States and EPA must maintain accurate and up to date records
on enforcement actions taken against a facility so that the regulator can ensure proper escalation
of actions if the violations are not corrected in a timely fashion. It is also important to know what
actions have historically been taken at a facility to anticipate what level of action may be appropriate
to respond to subsequent violations.
2.2 Importance of automated information
It is possible to implement compliance and enforcement programs using non-automated
methods using paper copies and careful filing. However, automating the key information described
above provides ease of access, quicker response and flexibility in analyses. Even a small State
program may have thousands of regulated facilities so finding and compiling even simple requests
for information can take a significant amount of staff time. Aside from the physical limitations of
working with paper copies, automating compliance and enforcement information allows the analyst
-------
GALLOWAY, CAROL R. 293
to compile, compare and to correlate large amounts of data. For example, automated programs
can be created to generate inspection targets based on a complex set of conditions including
size, types of pollutants, compliance history, and geographic location. Data can be sorted by
industry category, by emissions, by proximity to sensitive ecosystems, etc. Tables 1, 2 and 3
illustrate the types of complex reports which can be produced using automated data systems.
Table 1 shows compliance by media program, numbers of enforcement actions, and numbers of
facilities by Region and by industry type. Table 2 shows a breakdown of populations served by
different sources of drinking water. Table 3 illustrates the multi-media picture for facilities showing
whether the facility is a "significant violator" under any media programs.
2.3 Typical reports
Automated systems allow compliance and enforcement managers to generate periodic
reports useful in managing their resources. Included are sample printouts of reports from some
of EPA's major compliance and enforcement data systems to illustrate typical reports which are
generated. Table 4 shows the usefulness of maintaining inventory data. It identifies which wastes
are produced, quantities, who exports, transports and who receives wastes. Table 5 shows a
typical inspection report showing the facilities which have received inspections, when the facility
was inspected, the type and who (State/EPA) conducted the inspection. Table 6 is a typical
enforcement action report showing that status of active civil judicial actions, that is, where the
case is in the judicial process. Finally, Table 7 shows a multimedia picture of a facility indicating
types of violations, inspections and enforcement actions.
3 KEY DATA TYPES COMMON TO ENFORCEMENT SYSTEMS
Much of the compliance and enforcement information found in State and EPA's systems
is similar and falls into the following types:
• facility descriptors;
• compliance monitoring data;
• types of enforcement and other action;
• results of actions on compliance; and
• environmental results of actions.
3.1 Facility descriptors
Nearly all of EPA's compliance and enforcement databases are "facility oriented". The
major exception is the Enforcement "Docket" system which is "enforcement case oriented". Of
the facility oriented systems, some or all of the following information is usually found in each
database.
• facility name;
• physical location (street, city, county, State, zip code);
• mailing address (street, city, county, State, zip code);
• latitude and longitude of physical address (including method, scale, and
code of accuracy);
-------
294 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• watershed (hydrologic unit code);
• permit or other identifying number;
• Standard Industrial Category (e.g., petroleum refining, animal feedlot etc.);
• name, phone number of plant operator;
• name and address of owner;
• type of facility (varies by program e.g., major/minor, direct/indirect discharger,
private/public water supply, etc.);
• status code (active/inactive); and
• unique facility-specific information (e.g., seasonal facility).
3.2 Compliance monitoring data
Compliance monitoring data includes inspection data and where applicable self reporting
data. These data elements may include the following types of data:
• type of inspection conducted (e.g., sampling, records review);
• date of inspection;
• responsible organization (State, EPA or joint inspection);
• date inspection report is submitted;
• result of the inspection (violations found);
• date self monitoring report received;
• parametric data from self monitoring; and
• violations detected based on self monitoring data.
3.3 Types of enforcement and other actions
Enforcement action data describes the nature of the response to violations detected.
EPA's databases vary in their capability to link specific violations to corresponding enforcement
actions. Some systems do not have any linkage so it is impossible to verify which violations were
addressed by an enforcement action, and often whether the noncompliance was resolved. The
following data is typical in describing enforcement actions:
• enforcement action proposed (e.g., proposed administrative order);
• enforcement action issued (e.g., warning letter issued, judicial referral,
administrative order issued);
• date of enforcement action;
• responsible organization (State, EPA);
• proposed penalty amount ($);
• final penalty amount ($);
• date administrative hearing requested;
• date appeal filed; and
• date action concluded.
-------
GALLOWAY, CAROL R. 295
3.4 Results of actions
Enforcement actions often include schedules the violator must follow to return to
compliance. These schedule milestones are also included in the databases. In addition, there
may be other conditions or supplemental environmental projects that are included in the conditions
associated with an enforcement action. These may include restoration activities to cleanup damage
to the environment, research activities relevant to the environmental problems at the site (e.g.,
research into biological affects of a pollutant spill or discharge), or compliance promotion activities
such as development of advertisements to educate the regulated community and/or the public
on the importance of compliance with environmental laws. The data associated with these types
of activities varies widely and may include:
• schedule requirements and milestone dates (e.g., when phases of
construction are to be completed, when status reports are required); and
• supplemental environmental projects (type and monetary value).
Recently, EPA has developed "measures of success" to monitor the environmental
results of our enforcement actions. The data associated with these measures includes:
• type of injunctive relief required and value ($);
• amount of pollution prevented through the action;
• compliance promotion activities; and
• impacts (e.g., reduced worker/population exposure).
4 EVOLUTION OF DATABASES TO SUPPORT ENFORCEMENT
Most of EPA's major databases were developed as national environmental programs
were first being implemented in the late 1970s and 1980s. These databases were developed by
EPA headquarters but with regional and state implementers in mind. The systems were developed
to fulfill information needs at all three levels; national, regional and state.
EPA chose to design systems to meet all needs for several reasons. First, in the beginning
of most environmental programs, EPA regions were the only implementers. Programs were
delegated to States only after the States met certain standards and were approved by EPA.
Thus, EPA needed these systems to operate the programs themselves. Second, designers
believed that if the implementers used the systems, this would provide an incentive to keep the
data accurate and timely. This approach resulted in highly complex, large, varied systems. To
the credit of the system designers, while very complex, many of the systems actually fulfill most
of the needs at these three levels. Unfortunately, other systems found that state variability made
it impossible to have one system that would meet all states' needs as well as those of EPA
headquarters and regions, and these systems are undergoing major redesign.
There is currently considerable debate over the role of national information systems
especially in light of movements to reduce budgets, and to relax federal oversight of state programs.
Some believe that EPA should not have access to state data and have built two level databases
in which only core data is uploaded from the state systems to the national system. Clearly, this
is a complicated issue, and one can argue that it is more efficient to have national systems than
to have each state develop its own. In addition, federal oversight must rely on information to
-------
296 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ensure the effectiveness of state programs which argues for the availability of more, rather than
less information. Depending on the outcome of these philosophical debates, the databases may
need significant revision and redesign to reflect the chosen approach.
Enforcement databases were designed to support media-specific enforcement programs
(e.g., wastewater, drinking water, hazardous waste). Since these were designed at different
times, by different offices, they are not compatible in terms of hardware, software, design, data
standards, or definitions. The evolution of media databases has made integrating data extremely
difficult (as discussed below). EPA recognizes that significant improvements should be made to
many of the major databases to facilitate integration, and to make better use of modern
technologies. Unfortunately, EPA's regulatory framework and organization by media makes
significant, Agency-wide improvements extremely difficult to achieve. Within media-specific
systems, however, there is evolution and constant improvements to the data systems.
4.1 Flagging noncompliance
Many of EPA's compliance databases record that a violation was detected, but do not
record the supporting data explaining the nature of the violation. While this approach is effective
in identifying facilities needing action, it does not facilitate tracking trends in violations. This trend
information can be valuable in designing compliance assistance activities and in designing a
flexible enforcement response plan.
In some systems, once a facility is flagged in the system as being in noncompliance, a
facility remains in this status indefinitely, even if the violations are resolved. This may be caused
by the lack of a linkage between violations and enforcement actions. If facilities remain identified
as violators for long periods of time, the usefulness of the information to target actions and to
monitor compliance rates diminish significantly.
4.2 Detecting noncompliance
Some systems are able to track underlying compliance data and identify noncompliance
determinations. In these systems it is relatively easy to designate violating facilities based on the
data in the system and to record a return to compliance as well. The linkage between the
underlying data and the status of the facility (in compliance or in violation) makes the system
effective in generating periodic lists of enforcement targets and in monitoring compliance trends
overtime.
4.3 Facility linkages, multi-media
EPA has discovered that the independent development of individual, media-specific
information systems has led to great difficulty in linking information among systems for an individual
facility. Many facilities (although a minority overall) are multi-media, meaning that they are regulated
under more than one program. Information on these multi-media facilities is therefore found in
more than one database. In many cases the name of a given facility varies from system to
system along with address and other key information. The Agency has devoted significant
resources to linking facilities and assigning key identifier numbers, but this effort has not been
completely successful and linkages remain incomplete.
EPA has shifted much of its enforcement focus from a media-specific orientation to a
multi-media and industry sector approach. Under this enforcement approach EPA must generate
a full compliance picture at specific facilities or groups of facilities. This information is used to
-------
GALLOWAY, CAROL R. 297
generate multi-media risk and trend information for national targeting of compliance and
enforcement actions. As a result of these shifts in enforcement, there is even greater pressure to
accurately link data among the systems.
The issue of facility linkages has been raised to the highest levels of the Agency and
was chosen as the most significant Agency information resources management issue for 1995
and beyond. An Agency-wide effort has begun to redesign the way facilities report information to
EPA with an eye to providing one key identifier number to each facility. In the short term, EPA is
attempting to use all available linking mechanisms to facilitate generation of multi-media compliance
information.
4.4 Technology shifts
Many of EPA's compliance databases were developed in the 1980s and were built
using the software and hardware technologies then available and supported at EPA. In the
intervening years, significant changes have clearly occurred in software and hardware. Both
lack of funds to keep data systems current and the inertia involved in changing databases used
by hundreds of EPA and State users acted to slow modernization of many systems. As a result,
several key enforcement databases including the Enforcement Docket, the Permit Compliance
System, the Resource Conservation Recovery Act (hazardous waste) Information System and
the Air Facility Subsystem have not been modernized in recent years. These systems are all
currently maintained on the Agency's mainframe computer.
These mainframe systems are relatively difficult to access when compared to the desktop
personal computer. And, the software on the mainframe is non-intuitive making it more difficult to
use. The software often requires the user to understand some programming and a great number
of codes. The latest user-friendly features we are coming to expect on the desk top such as
windows, help functions, and graphical user interfaces are not available on these mainframe
applications. The EPA is moving toward non-mainframe, client server technologies and many
system managers are currently examining the feasibility of this approach. The challenge is to
use the power and capabilities of the PC while still operating an effective system on an appropriate
server. Unfortunately, lack of funds is slowing this modernization process.
5 HOW INFORMATION IS REQUIRED AND ENTERED INTO DATABASES
Reporting to the national databases comes from both the regulated entities and from
the EPA and/or State regulators. Information submitted by the regulated facilities is required
through separate legislation e.g., Clean Water Act, Clean Air Act. These statutes require either
national reporting requirements or reporting through individual or group permits under the statutes.
The information submitted by the facilities includes information about the facility, such as location,
name of plant operator, industrial classification (SIC), numbers and locations of pollutant discharge
points. These types of information are usually submitted initially in a permit application and
updated only if facility conditions change over time. This information is usually submitted in
written form to the EPA or State and entered into the databases manually.
In some programs, periodic reports are required from facilities. These may be status
updates or progress reports on predetermined schedules. The State or EPA will record and
enter into the database the date the reports were received to monitor and record any late submittals.
-------
298 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
5.1 Self monitoring data
In addition to information about the facility, facilities may be required to submit information
on actual discharges. Where statutes and/or permits require self monitoring and reporting of
discharge information, this compliance information is submitted on a periodic basis e.g., annual
to monthly reports may be required. Where compliance data is self generated and reported,
compliance monitoring can be done off-site. Where the regulatory agency receives self monitoring
data, the EPA or State enters the data into a database and compliance is calculated automatically.
5.2 Inspection data
Self reporting of compliance data is not required under many EPA programs and
compliance monitoring is done solely through inspections by the regulators. In addition, inspections
are conducted to supplement and verify self monitoring data. Information about the inspection
such as when it was conducted, the type of inspection (records review, sampling etc.), and the
results of the inspection are generated by the inspector and are eventually entered into the
national database.
5.3 Technology shifts in data entry
While the majority of data from facilities is still entered manually by EPA or State staff,
EPA is moving quickly to use more cost effective approaches. Other technologies are being
employed to save resources and time, and to increase data quality. These techniques include
use of optical character readers which scan documents and automatically upload the data into
an electronic file which can be uploaded to a database. This technique requires the use of
standardized forms and typed submittals.
Another major improvement in data entry is electronic data interchange. This technique
allows the facility to directly transfer data electronically from their computer to the national database.
Many States currently achieve electronic transfer through the use of computer disks which they
often send to the facility preformatted to receive specific, required information and which are then
mailed back to the State for uploading to State databases. EPA is developing standard formats,
security procedures and establishing the infrastructure to handle electronic submittal of large
amounts of data into national systems. After the initial configuration and mapping are established
at a facility, this approach will greatly reduce the resources needed by the facility to generate the
required paper reports and significantly reduce the resources needed by EPA and/or State to
enter the data by hand.
6 MAINTENANCE AND ENHANCEMENT OF SYSTEMS
Many of EPA's compliance systems have hundreds or even thousands of users at the
States and in EPA's Regional offices. With user communities of this size and users who have
different needs and desires, EPA's systems must establish and use formal processes for making
changes to the databases. These "change management" processes involve both State and EPA
users and management in nominating desired changes and then voting on the final changes.
-------
GALLOWAY, CAROL R. 299
6.1 Role of user communities
Most of EPA's compliance and enforcement systems were developed to support both
State and EPA users across the country. In the case of the Permit Compliance System for
example, the user universe is about 1,000 strong and located in all States across the country.
6.2 Enhancement, change processes
The extent of user involvement in the decision-making process varies among systems
and in most cases, EPA program and system managers hold effective if not official veto powers.
In most cases, program managers divide the funds available for system enhancements into
"required" changes and "user specified" changes. The "required" changes may include
enhancements to incorporate new regulatory requirements (e.g., to include sludge facilities in
the water program database) or Agency required data elements (e.g., facility latitude and longitude
were mandated by the Agency for all systems.) There may also be required changes to enable
the system to operate more efficiently or to fix software problems (e.g., to allow dates after the
year 1999).
User specified changes are those actually suggested by the State or EPA users to
make the system more usable, or to provide codes or functionality to support user-specific
conditions or initiatives (e.g., to allow users to distinguish facilities targeted in a compliance
outreach activity). These changes are usually nominated, described and discussed in user
conference calls or meetings and then voted on by the user community with the most widely
supported changes enacted within budget constraints.
6.3 Modernization efforts
Much like system enhancements, system modernization efforts usually involve
representatives from all major user communities. Modernization projects vary widely with various
system managers using different tools and analytical frameworks. In some cases, the effort to
modernize the information system begins with a comprehensive look at the entire regulatory
program. One such effort, in the hazardous waste program, is currently examining what information
is needed to operate the program and will eventually translate these information needs to data
and system requirements. These projects usually take several years and several million dollars
to conduct; some modernization efforts at EPA have taken nearly 10 years (e.g., Office of Water's
STORET system modernization has taken over 5 years and will not be completed for several
more years).
7 THE ROLE OF NATIONAL SYSTEMS IN A DECENTRALIZED SETTING
The EPA Headquarters has a unique role in information management to support
compliance and enforcement efforts even though most actual implementation occurs at the State
or EPA Regional level. EPA maintains national information systems to:
• promote a nationally consistent environmental protection;
• provide national environmental information to the public; and
• target environmental efforts.
-------
300 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
7.1 Promote national consistency
Access to national data helps EPA promote national consistency and ensure minimum
standards of environmental protection are provided to all Americans. These efforts seek to protect
the public by discouraging/removing economic incentives for pollution; minimizing interstate transfer
of pollutants; and creating a "level playing field" for U.S. business. EPA's responsibility is to the
citizens of the United States, not just a particular area of the country.
EPA needs national data to ensure that national environmental goals are achieved.
While the specific information required from states may change over time, baseline nationwide
data is necessary to identify when national standards are not being met and to appropriately
direct federal involvement. More flexible oversight approaches, such as the Performance
Partnerships, will continue to rely on sound state-by-state data.
7.1.1 Evaluate state actions
Effective and uniform enforcement relies on compliance information. EPA systems collect
information on permit limits, inspections conducted, violations cited and enforcement actions
taken. Comparisons of this data highlights areas where states may need federal assistance;
bringing their performance in line with national standards.
7.1.2 Implement flexible oversight
The new "Performance Partnership" approach to EPA/State agreements will be driven
by performance based indicators, relying directly on data summarized from the national databases
to evaluate results against state commitments. Efforts are also underway to reward complying
facilities by reducing reporting requirements. The absence of credible compliance data will
jeopardize this effort.
7.1.3 Identify environmental justice communities
The need for national consistency is perhaps best highlighted in the case of environmental
justice communities. Minority or low-income communities should not bear a disproportionate
share of the adverse environmental consequences resulting from public and private activities.
This data provides the knowledge and power which local communities need to protect themselves.
Without national data EPA could not identify and address these concerns. For example:
• One EPA Region identified locations with a hazardous waste facility where
the average number of people of color and low-income populations are
greater than the state average to better target compliance monitoring and
assurance efforts.
• EPA is conducting a hazardous waste study to reevaluate sites originally
listed in the mid-1980s and is adding new sites, identified by native American
tribes, to the cleanup list.
7.1.4 National analysis of sectors
EPA identifies candidates for compliance assistance and enforcement based on analyses
of national trends in data such as pollutant emissions/releases, compliance, and inspection and
enforcement frequency.
-------
GALLOWAY, CAROL R. 301
7.2 EPA provides national environmental information to the public
EPA serves as the focal point for providing environmental information to the public,
Congress, and other stakeholders. Data in the national systems allow EPA to serve as a direct
source for information on national environmental issues, a service which Congress and the public
expect. Seeking this same information on a state-by-state basis would be nearly impossible.
7.2.1 Answer information requests and Congressional inquiries
Office of Enforcement and Compliance Assurance receives hundreds of Freedom of
Information Act (FOIA) and Congressional requests each year. These requests serve a wide
variety of needs for national or multi-state information. For example:
• Public Information Research Group annually requests and publishes a list
of all facilities in significant noncompliance, focusing on trends in the quality
of the nation's water.
• Environmental companies request lists of permitted facilities for marketing
purposes.
• The Sierra Club's Environmental Justice Task Force requested pesticides
information to educate their members and the public.
• Environmental compliance information is requested by loan companies,
insurance companies, and bond companies to set bond ratings (which
determine borrowing interest rates) for municipalities, counties, etc.
• The EPA's Inspector General and the General Accounting Office routinely
seek access to our national databases to assess the quality of EPA programs.
7.2.2 Provide public access
Much of the compliance and enforcement data is available to the public. One delivery
mechanism, the Envirofacts system, which provides data from several national databases is
accessed, via the Internet, approximately 100,000 times per month. For detailed descriptions of
enforcement data available to the public, refer to section 10.2 of this paper.
7.2.3 Analyze trends
• Sound environmental decision making requires that trend data be available
to policy makers and others who wish to enter the national debate. Information
from national systems is used to establish base lines and then to show
results over time. Also, the Science Advisory Board's recent "Futures" report
recommends that the Agency spend as much attention to avoiding future
problems as to controlling current ones, requiring a broad-based data system.
Efforts in this area include:
• The Office of Water is currently tracking reductions in toxins and oxygen
demanding pollutants as part of their environmental measures.
• Publication of Toxic Release Inventory data, coupled with the 33-50 Project,
has resulted in significant declines in industry's reported emissions.
• OECA annually publishes the Enforcement Accomplishments Report and
the State-by-State Enforcement Summary, both of which provide trend data
for EPA and State enforcement and compliance activities.
-------
302 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
7.2.4 Supply data to other agencies
EPA data is used by other federal agencies for analysis and distribution to the public.
For example, publications include NOAA's National Coastal Pollution Discharge Inventory, and
the Council on Environmental Quality's Annual Report on Environmental Quality.
7.3 EPA develops approaches to target environmental efforts
Using the national systems, EPA plays a leadership role in developing more effective
approaches to direct scarce public resources toward the most critical environmental needs
National data is essential for targeting on an industrial, corporate or media basis. In
addition, wide-ranging national data is essential for supporting the objectivity of the Agency's
decision making. The national data can be reviewed by all interested parties, helping to prevent
an appearance that EPA has acted arbitrarily or on unsupported assumptions.
7.3.1 Conduct case and corporate screening
Compliance/enforcement profiles of historical data are frequently prepared to support
enforcement case development or are reviewed prior to government officials interacting with a
company:
• Before an enforcement action is taken, two profiles are developed: a cross-
media search of Agency compliance and enforcement databases for the
specific facility(s) involved in the complaint, and a corporate-wide profile.
Both of these profiles require access to EPA's national data systems as well
as the Integrated Data for Enforcement Analysis data integration capability.
• Frequently the EPA Administrator's Office requests information from the
national systems on the compliance status of various companies that the
Administration wishes to interact with for environmental and policy reasons
(e.g. the President's Toxic Release Inventory System and budget
announcement at the Bethlehem Steel plant in Baltimore). The Administrator
needs to know if the company should be praised for its compliance record,
or whether they have had significant compliance problems.
• Target Industrial Sectors The FY 1996 MOA proposed national priority
sectors were identified after evaluating national toxic pollutant release,
compliance and enforcement data from Toxic Recovery Inventory System,
AIRS Facility System, PCS and Resource Conservation and Recovery Act
Information System. The sectors selected are all significant noncompliers
with high TRI releases and a significant trans-Regional impact.
7.3.2 Target corporations
Single media noncompliance at a few facilities in one Region developed into multi-
Region, multimedia judicial case after Region VIII requested a national IDEA search for Louisiana
Pacific facilities. The data collection took about 30 minutes. This can be contrasted with the
development of a corporate profile for Exxon Corporation after the ExxorVa/ctez incident: data
was collected directly from the Regions and took about four weeks.
-------
GALLOWAY, CAROL R. 303
7.3.3 Analyze pollutant loadings
Emissions data from AIRS Facility Subsystem and effluent data from PCS can be
analyzed to determine ambient effects and for targeting the most significant sources. For example:
• PCS data is being used to analyze pollutant loadings trends in the Great
Lakes. Coupled with Permit Compliance System compliance data, this
information is supporting a multi-state effort to ensure consistent enforcement
for persistent toxic substances under the Great Lakes Enforcement Strategy.
7.3.4 Target ecosystems
Integration and analysis of environmental data moves environmental efforts beyond
single-media statutory mandates toward ecosystem protection. National system data is being
used to:
• Prepare basic background inventories of air, NPDES, and RCRA facilities,
as well as TRI release and transfer loadings, for the counties abutting the
Mississippi, Missouri and Ohio Rivers;
• Identify sources of nutrients draining into the Gulf of Mexico, causing a 6,000
square mile oxygen depleted "dead zone"; and
• Identify vulnerable national wildlife refuges across the country.
7.4 Other uses of EPA's national information systems
7.4.1 EPA operates non-delegated environmental programs
National data provides EPA information needed to directly implement federal statutes
which are not delegated to states and tribes. Through EPA efforts, citizens in states and tribal
lands which do not have the resources, technical expertise, or political will to assume environmental
programs will still be protected.
EPA must collect and maintain the information required to operate non-delegated
programs across the country and to run programs which are carried out at the federal level. At
least for the present, no Region has fully delegated programs within all of its states.
Conduct Non-Delegated Programs EPA's direct implementation responsibilities include
for example: environmental programs on most tribal lands; and the wastewater permitting and
enforcement (NPDES) program in 12 states.
Fulfill Federal and International Responsibilities EPA has primary responsibility for
administration of several federal programs including: many aspects of the toxic chemical regulation
program, the pesticide program, tracking potentially responsible parties at hazardous waste sites,
and the hazardous waste Import/Export program. National data is also essential for global
management including the negotiation of agreements with other countries (e.g. the Great Lakes
Agreement with Canada and the NAFTA Agreement with Mexico and Canada).
Support Regulatory Development Accurate national data is essential to support Agency
regulatory decision-making and to minimize concerns and criticism resulting from Agency actions.
7.4.2 EPA supports state information resource management capacity
EPA's national data systems provide state, local and tribal partners access to the EPA
information, and the computing infrastructure, which strengthens their efforts to protect human
health and the environment.
-------
304 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
States use the national databases as an information reference tool, locating relevant
information on other state programs to use in their compliance and enforcement efforts.
Set Permit Limits: States review the detailed information on permit limits set by other
states for similar industries as they set their own permit limits and as a resource to supplement
their own expertise. For exmple:
• Great Lakes states in three Regions use the national databases to determine
pollutant loadings and opportunities to tighten permit limits.
Share Violator Information Nationwide data systems provide compliance information
which other states use for targeting their own activities, determining compliance of a facility they
are interested in or determining interstate impact. For example
• Many asbestos contractors operate nationwide. The Agency's tracking
system is available to communities or school boards to aid in contractor
selection. States also use the systems to target contractor inspections.
8 NEED FOR AUTOMATED NATIONAL SYSTEMS
8.1 Efficiency
EPA's national data systems provides delegated states with access to a computer
application specifically designed for environmental program management. Replicating these
services across 50 states would be both inefficient and very expensive. Similarly, maintaining
separate systems on several different platforms (the inevitable result of Regional systems) is
both inefficient and more costly than a central national system.
Provide Computer Applications: For example, approximately 27 NPDES delegated states
use the Permit Compliance Systems (PCS) as their primary data system and 35 delegated
states use the air system (AFS) for managing their programs.
Support Computing Capability; Through the national systems, States have direct access
to the national application, the computing power of EPA's computer hardware (mainframe and
LANs), user support services, training and ongoing system O&M and development. Even states
without expensive, state-of-the-art desktops can access these systems.
Supply Consistent System Modifications As revisions to the national laws are enacted
or new programmatic initiatives are undertaken the national systems are updated and, in turn,
state programs are kept current and consistent. For example:
• Revisions were made to PCS to track new Clean Water Act requirements
for the stormwater, sludge, pretreatment and Combined Server Overflow
(CSO) programs which are then used by the states.
• If the national systems did not provide this service to the states, some states
would increase their budgets to modify their systems while others would
delay and ultimately fail to update their systems.
Develop Efficient Data Transfer Methods The centralized communications infrastructure
of the National Computing Center (NCC) provides opportunities for developing innovative data
exchange methods to reduce the burden associated with collecting and reporting data.
• For example, EPA is in the process of developing Electronic Data Interchange
(EDI) technology for submission of Discharge Monitoring Reports into Permit
Compliance System (PCS) which will increase data quality and reduce costs
for both states and the regulated community.
-------
GALLOWAY, CAROL R. 305
Manage Data for Non-Delegated Programs The national systems provide the data
storage and retrieval mechanism necessary to carry out EPA's direct implementation
responsibilities.
Manage Data for Federal/International Programs EPA has primary responsibility for
several systems which support administration of federal programs including: Section Seven
Tracking System (SSTS)/PRES/ LISA/NCDB for Toxic Substance Control Act (TSCA), Federal
Insecticide, Forgicide and Rodenticide Act (FIFRA) and Emergency Planning and Community
Right Act (EPCRA) requirements; Site Enforcement Tracking System (SETS) for potentially
responsible parties for Comprehensive Environmental Response Compensation and Liability
Act(CERCLA) sites; and Import/Export to track hazardous waste transported across U.S. borders.
8.2 Provides structure to data
The existence of national databases imposes an overall structure on the environmental
data collected. This structure facilitates consistent data collection and interpretation.
Consistent Data Collection: Definitions are developed for nationally reported data
elements (such as significant noncompliance). Lacking these definitions make comparisons among
states difficult if not meaningless. Additionally, through the national systems a minimum set of
data elements is established which is critical for complete comparisons.
Consistent Data Interpretation Standardized reports with standardized selection criteria
help to make valid comparisons of the data (e.g. the quarterly noncompliance report). These
reports are available to all users in an easily accessible and consistent format.
8.3 Timeliness of analyses and responses
National systems are the most efficient way to provide timely responses to requests for
information.
Provide Prompt Responses The Freedom of Information Act requires EPA to respond
to requests within 10 calendar days. Congressional requests must sometimes be answered that
same day to influence committee or floor debate.
Decrease State/Regional Reporting : Contacting each state or region to provide
information from their systems would not only increase processing time substantially, but would
also add a significant reporting workload to state and regional staff (i.e. 50 different states providing
answers instead of a single computer retrieval).
8.4 Relationships with other databases
The automated national systems provide access to the data in a format which allows
regular data updates to systems such as Integrated Data Enforcement Analysis (IDEA) which
integrates data from many separate systems and creation of data sets which support other Agency
targeting tools.
Support Data Integration Efforts Enforcement and compliance data from 11 of EPA's
national databases are accessed by Integrated Data Enforcement Analysis (IDEA), allowing
data analysis across media on multiple targeting scenarios. Demographic data and risk based
models are also being added to the system so that users can better evaluate queries. Over Office
of Environmental Compliance Assurance's (OECA) first year, someone started an Integrated
Data Enforcement Analysis (IDEA) session every 27 working minutes. This system provided a
report, handled a query or produced an analysis every 9 minutes.
-------
306 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
9 ROLE AND RELATIONSHIP OF STATE SYSTEMS TO NATIONAL SYSTEMS
As discussed, most environmental programs are largely implemented by State agencies
rather than directly by EPA. And, in many cases, the scope of State programs go beyond and
may be more stringent than is required under national laws. This decentralized, flexible regulatory
approach poses a challenge in terms of maintaining and developing national databases. Two
basic options are available: national systems can be developed as tools for States and a subset
of information is used for national reporting; or national systems can be developed solely to
support national reporting.
EPA has had experience with both of these models and has encountered significant
difficulties in terms of ensuring that complete and accurate data is entered into the national
systems. Our basic finding is that in order to have reasonable data quality, the users of the
system must perceive a benefit. The criticism leveled at some systems is that the State and/or
Regions are required to "feed the monster" but do not receive any benefit once the data is
entered; that the system is not useful in managing their activities. Where systems have been
developed that are perceived as useful and that are actually used in implementing programs,
poor data quality and missing data do not appear to be significant issues.
10 PUBLIC ACCESS TO EPA'S ENFORCEMENT DATABASES
10.1 ERA's approach to public access
In general, there are two approaches to accessing EPA data; through the Freedom of
Information Act process and through assorted avenues EPA has voluntarily chosen to make
information available.
10.1.1 Freedom of Information Act (FOIA) process
EPA is required by law under the Freedom of Information Act to provide information
requested by the public within 10 days of receipt of the request. This law covers written documents
as well as data contained in EPA's databases. The law provides that EPA is not be required to
create new materials in order to satisfy the request. For enforcement data in national systems,
however, EPA has taken the approach that it is appropriate to generate reports and queries from
the databases that are specific to the requester's needs. This information can be requested from
EPA on hard copy, but is most usually provided on magnetic tape or on 3.5" computer disks. In
some cases where the database is small, a requester can receive a copy of an entire database,
but more often, specific types of data regarding a geographic area or specific type of facility is
requested. One of the limitations to using the FOIA process is that the requester must understand
what specific information to request. If the requester finds the information is not sufficient, he or
she must go through the process again, and write to EPA to request the additional information.
10.1.2 Publicly accessible information
A great deal of EPA's compliance and enforcement data is currently available to the
public through a variety of mechanisms. EPA has not taken a consistent approach to public
access and as a result, each program office has historically chosen what data to make available
and through what delivery mechanisms. These include making hard copies of summary data
available through public information centers, relying solely on Freedom of Information Act requests,
granting access directly to the databases, and most recently, making information available through
the Internet.
-------
GALLOWAY, CAROL R. 307
Of the major enforcement databases, the following are available to the public:
• Enforcement Docket (Federal judicial and administrative enforcement cases)
is available electronically from the National Technical Information Service
(NTIS can be reached by phone on 703-487-4650).
• Permit Compliance System (wastewater permitting and enforcement
program) is available electronically from this information service including
on-line access.
• Site Enforcement Tracking System (Superfund potentially responsible parties
notified under Comprehensive Environmental Response Compensation
Liability Act (CERCLA) is available from the service on tape, disk or CD
ROM.
• Resource Conservation Recovery Act (RCRA) (hazardous waste) system
is available through these reports and reports are available on the Internet.
Some database managers at EPA were originally reluctant to release information to the
public because they believed the data quality was not sufficiently high and the data contained
errors. In the case of compliance and enforcement data, database errors can mistakenly represent
facilities as being in violation when they are in fact, in compliance. While the data in the databases
unquestionably does contain some errors, EPA's current approach is to make the data widely
available to promote improvements to data quality. It is our belief that if the public and the regulated
facilities begin to use the data and to do analyses, they will find errors and that this process will
lead to an increase in data quality.
The Agency's experience with the release of Toxic Release Inventory (TRI) data has
shown that the public is very interested in environmental data. Simply releasing this inventory
data has resulted in facilities voluntarily decreasing emissions. EPA believes that making
compliance data available may result in both greater community involvement in compliance
monitoring and voluntary compliance by regulated facilities.
While this approach sounds simple, the decentralized regulatory setting makes releasing
national data a more complicated matter. The States are the primary source of the data in the
national systems and in fact, the States do most of the data entry. However, once the data is in
the national systems, accountability for data quality seems to be diffused. For example, a public
interest group recently requested a national list of significant violators under the wastewater
program. The group planned to and eventually released a report which received national and
regional media attention. EPA alerted its Regions and the States to the request so that they could
correct any data entry errors prior to the generation of the list. When the report was released to
the national press and some facilities complained that they had wrongfully been listed as having
been a significant violator, several States disavowed any responsibility and claimed the information
had "all come from Headquarters".
10.2 Description and availability of specific EPA enforcement databases
EPA has chosen to focus public access activity on making information from its Integrated
Data for Enforcement Analysis system (IDEA). This system is EPA's tool to integrate compliance
and enforcement data from key Agency systems. It contains data on State and Federal compliance
and enforcement activities under the wastewater, air, hazardous waste, emergency response,
pesticides, and toxics programs. These systems are described below. On-line public access to
this system will be available beginning in Spring of 1996 through the National Technical Information
Service (NTIS). This service will establish a billable account for users to access this system on
-------
308 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
EPA's mainframe. Documentation will also be available from the information service. Information
on this system and instructions concerning gaining access will also be available on the Internet
through EPA's homepage. EPA's long-term public access strategy includes implementing a toll-
free telephone number for information about this system, a simplified graphical interface available
on the Internet and an on-line Windows-based version for public access.
IDEA contains information from the following databases:
• Aerometric Information Retrieval System (AIRS) Facility Subsystem - AFS
contains emission, compliance and permit data for major stationary sources
of air pollution.
• CERCLIS - Contains information on compliance and enforcement activities
at Superfund sites under the Comprehensive Environmental Response,
Compensation and Liability Act.
• Enforcement Docket - Tracks EPA civil judicial and administrative
enforcement actions including violations, defendants, penalty information.
• Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)/Toxic Substance
Control Act (TSCA) Tracking System - FTTS tracks compliance with FIFRA,
TSCA and Emergency Preparedness and Community Right to Know Act
(EPCRA) EPCRA inspections, enforcement actions and settlement terms.
Uploaded to a national database called NCDB. (FIFRA is the Federal
Insecticide, Fungicide and Rodenticide Act, TSCA is the Toxic Substances
Control Act.)
• Permit Compliance System - PCS contains permit and compliance and
enforcement information on all major wastewater dischargers (facilities with
greater than 1 million gallons per day of flow or that pose a significant risk to
a water body) and many minor facilities.
• Resource Conservation Recovery Information System - RCRIS tracks
activities related to facilities which generate, transport, treat, store or dispose
of hazardous waste including permit notification, compliance, inspection and
corrective action activities.
• Site Enforcement Tracking System - SETS contains information on Potentially
Responsible Parties notified under the Comprehensive Environmental
Response, Compensation and Liability Act (Superfund).
-------
PR6
U.S. Environmental Protection Agency
Enforceeent Confidential - For EPA Interne! Us* Only
Sunmry Report
Number of Facilities Selected by Region end Prograe
II III IV V VI VII VIII IX X
TOTAL
a>
a-
AFS
CER
DCK
DUN
FFI
FIH
LST
HCO
PCS
RCR
SET
TRI
e
2
3
4
0
10
0
3
7
10
0
e
3
2
3
2
0
4
0
3
4
4
0
3
3
2
1
4
0
3
0
0
2
3
0
3
14
5
4
11
0
16
0
7
11
14
0
14
25 <
6 '
13
27
0
36
0
4
33
29
1
27 <
» 0
» 0
1 0
7 2
0
1
0
1
1
1
0
k 1
1 I
0
0
1
0
1
0
0
0
1
0 (
1 (
> 14
9
9
la
0
17
0
15
17
17
) 0
» 17
72
30
34
77
0
97
0
35
62
06
1
ao
Compliance Status of Facilities by Program
*
Facs
Facs
in Compliance
Not in Compliance
AFS
36 (
36 (
SOX)
SOX)
RCR
61 (
25 (
71X)
29X)
PCS
25 C
57 (
30X)
70X)
All Thr
0 (
1 I
ee
OX)
= Total Number of Facs
72
86
53
Number of Enforcement Actions by Program
AFS RCR PCS
CER
Year NOV/NONS Adiin Judic NOV/NOHS Adein Judic NOV/NONS Adein Judic Adain Judic
19*>2
1993
1994
1995
41
22
41
2
16
12
17
0
2
4
5
0
13
a
7
1
5
2
6
0
1
0
3
0
3
4
2
0
31
14
ia
i
4
1
Z
0
0
0
0
0
0
0
0
0
Number of Open Civil DocKet Casei =
Sunmry of SIC Codes by Region
SIC
II III
IV
VI VII VIII IX
Totals
iter Description
0
2087
2261
2297
2411
2'»21
2429
2436
m
2
0
1
1
0
0
0
i
i
0
0
0
0
0
0
i
1
0
0
0
0
0
0
i
2
0
0
0
0
1
0
1
10
0
0
0
0
0
0
I
1
0
0
0
0
0
0
i
0 (
0
0
0
0
0
0
! !
) 0
0
0
0
0
0
0
! !
6
1
1
0
2
3
2
!
23
1
2
1
2
4
2
I
N't in SIC Table
FLAV EXTR 1 FLAV SYRUPS. NEC
FINISH OF BRO HOV FAB OF COTTN
NONHOVEN FABRICS
LOGGING CAMPS/LOGGING CONTRACT
SAHMILLS t PLANING HILLS, GEN
SPECIAL PRODUCT SAHMILLS NEC
SOFJHppD yENEER AND PLYWOOD
P
8
CO
-------
310 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Table 2
2
5S
i
as
ss
§ *
: a
i»
in
IP
r
<
.
S
Sa rBI »*. £«
* Kim S~ $«
se. C"! 8": S1".
e * ** ^*0'
>e oo ee ee
NO ««l «K{ J2<
>e ee ee ee
»"! S".
8-. S"!
15 52 «' 25
K- 3§2 S" §2 £2 82 22 SD «"• *2 85
ai at a;.
ON «MM «•*
*. ^ K
"= 22 82 32 52
5 s s s1?
! s! r: "5
S S -•
. _.. Je ss as S
Ii Si £A SA tt- K
o (5 o 5
in* cT o* vT
5-8
3°:
5.a
-------
GALLOWAY, CAROL R. 311
Table 3
I
3
nn
33
U
I '
J "i
• J
i •
• ig
5 4- *«
i
-ajji'
S.nSSi
5SS5S5SSSS2SSSS55S2S555!
i §
Ir
§g
8
HP ^ g^I
uis?nu2 i«s
ssj;
I KKOUi
e
M
SMIU
MH-X
1*3
i
S g g B S B 2 2 g S 9
XKXXKttXXXXJ
-------
312 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Table 4
o
u
u
2
S
I
t
S
III
»
&
s s
IU IU
•* iu a£
•o )->-(
CM OT O •
^4
523,
S^'
o <
>o
o
o
e
e
e
e
So; o w
< N Z
K K Ul
UJ 1U C£
z z o
UJ UJ O
ID O <
g
e
s
I
s
§
> I
o
ss
K K W
< < in
ee tr ui
a
TER 1 I.C* NO.
TER Z I.D. NO.
ANS
i i
S£ £
in iu x
ui t- >- 55
o in H
o ui 3 H o
tu « a. a g
H Z IU CT Z
i
-------
GALLOWAY, CAROL R. 313
Table 5
-
-: s
3! ft!55S5S5S555S55555SS55
*S S^KSKKSSSKSKSSSKKSSKK
if iii § iiii I i iii i
-------
314 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Table 6
5<
M
S£
n i
fc M
Ml O 1 Ul
at u. n
Z •> <
|£ Ul Ul CV
U G Ul Ul
8^3
ss
-JO
§•*
*
M
z
KM -ii-
SUI Q
« ac
8
S.J >•
< k.
Sg
°8
Ik U
t
§ J
£
0.
>*
H« vl
M <
>
g
Hi
IU
in
*o -*
3 -*
UJ
UJ
U
(t
IU IU
u|
Q. a:
-* u
e
e
V0
o
Q
11/21/65
2/14/A3
9/10/65
9/30/60
2*
n
n
_j
LS
m m
sssss;
22
a. a, a. n. a.
uu uu u
e e o e e
e e e e e
o o in e e
0 O 1- .A O
v in -« « ui
111
•i (SI O N O
IA O -* 0 ^
Ul
Ul
ui C Ul
> " S
_l <>-
u u.
•4 ••
—
i i i i i
N CO O f*
i i i
- O
C -J U U
n o
?z-S;Si
an a ac
2
2
u
S
u
a
0.
§
in
oc
t
z
0
e
o
i
«
t
o
£
o
e
M
X
O
in
jj
$
g
< in
Sgg^gS
ac a ac H3 J S
z « ui 3 3 <
uu a in in u
_,
M
Si
0
2
ac
IU
U
>•
Ul
.J
<
Ul
M
in
g
k.
-i
m
o
0
1
•>
o
u
e
e
o
o
6/30/90
"• O
« S
O «••
JJ.J
•*«
8
i
a
In -» a. 2 —
2 22
X Ul < ul ul
u u u u u
M
o
d
u
u.
u.
33
a ig
= «
iu u
(9 K
C Z
•i CK
N O
O O
1 1
S?
1 1
0 O
-------
U.
S. ENVIRONMENTAL PROTECTION AGENCY
INTEGRATED DATA FACILITY-SPECIFIC
"ddre"- '>KOOO'?25J*e7 Fa
nCRIS Handler Id: AKD009252487
Home: ALASKA PULP CORP SITKA
TSD Facility Status:
Owner Operator Typo: P Exist
I'CS Permit Ho: AK0000531 Issue
Fac. Name: ALASKA PULP CORP
Active Major Discharger
Expi red
PCS Permit No: AK0049573 Issue
Fac. Mnm«s: ALASKA PULP CORP
Active Minor Discharger
Expired
rEnri T« C!4o llr,m». AlA^f* Dill 11 f
c. Na»e: ALASKA PULP
Year
MILL CY92
HPV? NO CY93
. Date: 1959/11 CY94
Date: 1985/04 Year
CY92
CY93
Date: 1990/05 CY94
Date: 1990/03 Year
CY92
CY93
Date: 1995/04 CY94
ORP Cal Ye«ir
Site Clnssifi cation: HD Ho! Judic! Actions-
Civil Docket Cnse Nsi»e
AK LUMBER-PULP CO
Civil Docket Cast? >b->«>
AUVSKA PULP CORP - CIC
Civil Docket Case Name
ALASKA PULP CORP
— ___
COR
PORATI
No.Eval
1
1
0
All
All
Viols
0
2
1
Viols
0
o
0
ON SI1
KA City
Zip: 991
H
5"
03/08/95
COMPLIANCE PROFILE RtPORT 1A
335
. No. NOVs No.AAs
1 0
0 0
0 1
Eff.
Eff.
1991 1992 1993
0
0
0
0
Case Number Type Case
10-74-0001 CIV
Case Numh-sr Type C*se
10-05-001 t CIC
Case Number Type Case
10-86-0008 CIV
0
0
L*M
CHA
Law
CHA
LBN
CHA
fc
Lat: 57.049
No.JAs
0
0
0
Long:
Viols Inspections No. NOVs No
OlQ
i « -
X
0
A
0
u
0
Viols Inspections No. NOVs No
OOo
OA — .
0
1994
0
0
Ovral '
CASE U
Sta.
uJSED
O-.-rall Sta.
CASE CLOSED
Ovral 1 Sta.
CONCLUDED
u
0
Initiated
1974/06
Ini i i a ted
1985/03
Initiated
1986/04
u
0
To DOJ
1976/05
To DOJ
1985/03
To DOJ
1986/05
State:
135.297
.AAs
0
0
0
.AAs
0
0
0
1976/05
Filed
Filed
1986/06
AK
No.JAs
0
0
0
No.JAs
0
0
0
Concluded
1V76/05
Concluded
1985/07
Conr jded
'0J6/09
>
r~
S
1—
pa
CO
01
-------
316 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
SPECIAL TOPIC B: STRATEGIC TARGETING FOR ENFORCEMENT 317
SPECIAL TOPIC WORKSHOP B
Strategic Targeting for Enforcement
Papers and Workshop B discussions address the following issues:
• Methods developed to target enforcement resources, such as inspections
and enforcement response.
• How these methods have been applied in practice.
• Criteria used for targeting.
• Success and benefits demonstrated from the application of targeting
methods in comparison to the alternatives. For example, whether targeting
results in greater ability to detect significant violations or significant
environmental problems and to send a clear signal to the regulated
community.
1. Summary of Stategic Targeting Workshop, Facilitators: C. Currie, K. Prosser,
Rapporteurs: C. Cocault, K. DeMoors. 319
2. Strategic Targeting for Compliance and Enforcement/?.F. Duffy 325
See related papers in Theme 6, Workshop I: Criminal Enforcement.
1. Planning and Executing Strategic Environmental Enforcement Initiatives: Maximizing
Enforcement Impact, R. van Heuvelen, P.J. Fontaines Volume I, Oaxaca, Mexico
2. The Great Lakes Enforcement Strategy: Using Enforcement Resources to Maximize Risk
Reduction and Reduction and Environmental Restoration in the Great Lakes Basin,
L Peterson, Volume 1, Oaxaca, Mexico
-------
318 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
SUMMARY OF WORKSHOP: STRATEGIC TARGETING FOR ENFORCEMENT 319
STRATEGIC TARGETING FOR ENFORCEMENT
Facilitators: Chris Currie, Kathy Prosser
Rapporteurs: Clare Cocault, Karin DeMoors
GOALS
The session addressed the following issues:
• What methods exist or can be developed to target enforcement resources,
such as inspections and enforcement response?
• How have these methods been applied in practice?
• What criteria are used for targeting?
• What are the successes and benefits demonstrated from the application
of targeting methods in comparison to the alternatives?
1 INTRODUCTION
More than twenty participants discussed, in two separate workshops, strategic targeting
for environmental enforcement. Participants represented countries with a broad range of existing
environmental enforcement programs, including a few who had strategic targeting plans and
many who were interested in developing these plans.
2 PAPERS
One paper prepared for the workshop by Richard Duffy reviews the history of the United
States Environmental Protection Agency's efforts to target its resources at sources of
environmental pollution over twenty years of implementation. It describes criteria used for
strategic targeting, data and analysis performed to identify strategic targets, management
systems used to communicate and manage targets, and the results of those efforts. Recent
data and information system improvements better support targeting on a geographic, industry
and pollutant basis as well as for specific types of violations. Targeting is used to manage a
decentralized organization within the U.S.
3 DISCUSSION SUMMARY
3.1 What are the reasons for strategic targeting?
Some of the driving forces for strategic targeting identified by the workshop participants
include:
• Public perception and the media.
• Political agendas.
-------
320 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• Desire of an agency to get more results out of their resources.
• Insufficient resources to do the job and the need to use them wisely.
• Need for intelligence capability.
• Desire to stress enforcement within a decentralized organization in which
one must get others to enforce laws and establish compliance as a priority.
• Desire to be less fragmented and adopt a more integrated pollution control
regimen.
• Desire to protect and manage certain natural resources.
3.2 What is strategic targeting?
Following a review of country legal and organizational frameworks and approaches for
achieving compliance, participants defined "strategic" and "target". "Strategic" entails intentional
direction, one in which interactions happen in a consistent manner, focused in a particular direction.
A "target" is the focus on activity and resources believed to have the biggest impact and for which
to develop a strategy to achieve compliance.
3.3 What activities require strategic targeting?
Most of this discussion did not specifically address strategic targeting, but rather was a
general overview of what the participants' countries did by way of environmental compliance and
enforcement program implementation.
All of the participants stated that they operated under laws or rules of a government or
agency that ultimately lead to enforcement if a facility is out of compliance. These laws or rules
establish regulatory tools, such as permits, that have limits and standards for pollutant emissions.
Enforcement tools include inspections, self-monitoring and reporting, citizen complaints and
company involvement.
Grades of enforcement allow government agencies to target their resources. Generally, a
warning or notice is given to a violating facility stating that they must comply with regulations. The
next step taken if the violating facility does not respond is to issue a violation notice. This notice is
normally a formal document with penalties attached. If the facility still does not comply then one or
more of the following actions are taken: 1) the permit is withdrawn; 2) the facility is shutdown; 3)
civil and administrative procedures are taken; or 4) criminal charges are imposed. Some countries
such as Jamaica can require a company to submit a management plan and rapid response plan in
response to violations to ensure company involvement in resolving non-compliance.
Participants also identified "carrots" such as education, information, tax incentives,
prevention, awards, grants and loans, technical assistance, negotiation and the like. It is important
that the tax payer not subsidize polluters in any such scheme. In all cases, it was deemed essential
by all participants that actions be documented, timely and communicated ahead of time and as
follow up to the community, all geared toward the compliance goal.
The level or levels of government that are responsible for establishing and employing
enforcement tools varied among countries. In some cases one level of government, either the
locality, state/province, orfederal, was responsible for the enforcement of all regulations on a particular
facility, while in other cases many levels of government had power over a facility.
It was noted that the severity of the violation determines the level of enforcement taken.
For instance, if the action is severe, some participants stated that in their country the facility would
be shutdown without a warning or notice. However, it was also noted that if the violating facility
provides a public service such as sewage treatment then it is impractical to take such action.
-------
SUMMARY OF WORKSHOP: STRATEGIC TARGETING FOR ENFORCEMENT 321
3.4 How to start being strategic?
First set priorities, indicating where to spend resources and second analyze the program
results to see if it is effective. Programs need plans so they are not just reacting. It is important to
focus on health and safety as well as public complaints. The strategic plan addresses:
• What are the problems?
• Why are the problems?
• Where are the problems?
• Who is causing the problems?
• Whether there are means (e.g. technology) to be effective.
• Verification: How do you know?
- citizen input through the media and politicians
- monitoring results
- NGOs
- health authorities
- ambient monitoring
The need to then shift resources according to priorities is important; use the full range of
carrot and stick compliance and enforcement tools to achieve results in a timely manner.
3.5 Garnering public support for agency priority setting
Participants discussed issues related to public perception and the fact that the public may
not perceive the same priorities as does the responsible governmental organization. While
sometimes difficult, participants viewed informing the public to be very important, particularly when,
for example, a small plant they see as important may not be viewed by an agency as important in
comparison to larger plants - or vice versa. To do this successfully, an enforcement agency needs
a tradition of credibility so that when the government makes decisions, they will be trusted. Some
countries hold public/private pollution forums to ensure the public understands the problems and it
is very helpful when companies establish and implement community plans to establish credibility.
Despite any such efforts to establish and communicate priorities, community and press
concerns on a local basis, while not strategic, is important to respond to and difficult to plan. Some
countries have established ombudsmen for the environmentto serve as a buffer for the agency but
ensure they are trusted to look into citizen complaints.
3.6 What criteria are used for targeting?
The target was defined as the area in which an enforcement tool or program can have the
most impact. A strategy can be formed that combines these targets enabling the enforcement
program to reach the highest level of compliance with limited resources. A strategy is composed
of priorities and an analysis of whether the strategy is effective.
Criteria named that are used for targeting include:
• The compliance history of the industry or particular facility.
• Experiences in other countries (e.g. use of cyanide in gold mining or denying
permit based upon other country experience).
• Political agenda and issues coming up.
• Public concern.
-------
322 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• Urgency of the problem.
• Quantities of pollutants.
• Geography.
• Topography.
• Specific pollutants.
In several instances, information on compliance history within a community, or outside a
community or country has been used successfully to bar a company from obtaining new permits.
3.7 What are the successes and benefits demonstrated from the application of
targeting methods in comparison to the alternatives?
The utilization of targeting methods primarily allows the agency enforcing environmental
rules and laws to stretch limited resources enabling the most efficient use of funds, resources, and
labor.
Targeting also establishes credibility for the enforcement agency. If a public example is
made of a polluter then the agency is seen as powerful and penalties are real. Other benefits
include the increased likelihood of receiving funding since the agency is perceived as efficient and
fair. Improved staff moral is also a benefit of targeting. When staff is given a target to focus on and
have success a feeling of accomplishment exists.
The final and most important benefit of strategic targeting is improved compliance rates
and more sustainable development.
In Armenia, mobilization of the public enabled the authorities to combat illegal forestry
cutting, a strategic focus and means of gaining this public support. Chile, when faced with bakeries
in residential areas where pollution from them was a problem held discussions with bakery
associations, sent letters to all members of the associations, gained assistance from municipal
authorities and conducted outreach to the press to promote compliance. In the USA, one example
provided was when small but numerous sources of air pollution in areas exceeding national air
quality standards were the source of integrated compliance promotion, assistance and enforcement
strategies.
4 CONCLUSIONS
Strategic targeting plans are an essential component of any environmental agency's
enforcement program. These plans will allow the agency to focus limited resources and have the
largest impact on improving compliance. While it is not possible to control all factors that influence
the choice of targets, it is possible to establish priorities and shift the majority of resources
accordingly.
Several observations were made by participants in the workshop about strategic targeting:
1. Strategic priority setting requires discussion with others, both within the agency
and ministry as well as with other ministries, and with the public.
2. Strategic targeting requires an overall framework (e.g. national action plans)
to enable priorities to be set.
3. Strategic targeting and priorities often have to be set without complete
information, but all agreed that the following were most useful criteria in
targeting resources and setting priorities.
-------
SUMMARY OF WORKSHOP: STRATEGIC TARGETING FOR ENFORCEMENT 323
• Very bad environmental (and health) problems.
• Urgency of the problems which could be at a geographic, industry or facility
level.
• Practicality of taking compliance and enforcement activity.
• Visibility of activity to encourage further compliance and get social
acceptability.
• Public and political priorities.
In addition, the following information is important to have:
• Compliance history of the industry or facility.
• Quantities of pollutants.
• Geography.
• Topography.
• Specific pollutants.
4. Strategic targeting offers several benefits including: stretching limited sources
to ensure most efficient and effective use of funds, resources and labor; helps
to establish credibility, enhances ability to secure funding; provides sense of
accomplishment, compliance and environmental results for sustainable
development.
-------
324 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
DUFFY, RICHARD F. 325
STRATEGIC TARGETING FOR COMPLIANCE AND ENFORCEMENT
DUFFY, RICHARD F.
Chief, Targeting and Evaluation Branch, Enforcement Planning, Targeting, and Data
Division, Office of Compliance, Office of Enforcement and Compliance Assurance,
U.S. Environmental Protection Agency, 401 M Street, SW, (MC-2222A) Washington,
D.C. 20460, USA
SUMMARY
This paper reviews some of the history of the United States Environmental Protection
Agency's (EPA) efforts to target its resources at sources of environmental pollution. The paper
tracks the evolution of targeting efforts from the late 1970s to the present. Early targeting efforts
were based almost exclusively on independent single-media approaches i.e., the clean air program
and clean water program worked independently of each other, even if both programs were working
with the same major industry groups or, in a few instances, the same facility or company. In the early
1990's, in recognition of the realities of one of the most basic physical principles, that of mass
balance (where mass is neither created or destroyed, only its form changes), the Agency began
working to implement more holistic multi-media approaches to environmental enforcement. Among
recent efforts to implement holistic approaches are targeting compliance and enforcement efforts
at individual industrial sectors based on their multi-media compliance histories and their overall
reported releases of toxic chemicals. Holistic multi-media approaches are also being pursued for
particular geographic areas and ecosystems, pollutants of concern, and corporations. Each of
these major areas of activity are discussed in detail.
1 INTRODUCTION
Targeting of resources is a fundamental activity for any organization regardless of its size,
nature of its work, or whether it is a public agency or private enterprise. It can be used by senior
managers to inform and direct long-term macro-level strategic decisions looking one or several
years into the future, and it can be used to guide short-term field-level decisions (i.e., the next few
weeks or months) on how best to allocate resources to meet overall organization-wide goals. Targeting
is becoming increasingly critical to the compliance and enforcement programs of EPA and the
states as their regulatory programs have grown in scope and complexity at a time when budget
constraints on federal and state governments are resulting in stagnant or declining resources levels.
Efficient use of scarce field resources is essential if EPA and its state partners are to fulfill their
many regulatory mandates. Strategic targeting based on sound analysis of information about the
state of the environment and of compliance by regulated entities is essential to achieving efficiency.
Targeting plays an important role at several stages of the organizational planning process.
It is essential to informing the early stages of the long-term planning process where senior managers
consider ideas and concepts for organizational priorities and new areas of emphasis. Once macro-
level decisions have been made, targeting analysis is critical for translating the macro-level directions
into operational plans and commitments at the field office level. In many ways, the stages of the
-------
326 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
targeting process are akin to peeling an onion - one layer leads to another until you get to the core.
Targeting is an ongoing cyclic process, however, with measurement and analysis of the results of
prior targeting efforts providing feedback to the organization for future planning.
2 BACKGROUND
For much of its existence, EPA has carried out its planning and targeting functions on a
media-specific basis, e.g., the Clean Air program planned and targeted its program without
interaction with the Clean Water program or the hazardous waste program. This approach was
logical since the Agency has been organized by statutes which focus on particular environmental
media, i.e., separate statutes and offices for air, water, hazardous and solid waste, and pesticides
and toxic substances. Within each of these major organizational subcomponents, the planning and
targeting process have started with identification of broad areas of priority, with iterative refinement
of those priorities until they evolve into facility-specific action plans for field level operations in EPA
or State agencies.
2.1 Early targeting of major sources of air and water pollution
Media-specific targeting has frequently been guided by deadlines or specific requirements
contained in the individual statutes. In the late 1970's and early 1980's, the Clean Air and Clean
Water programs targeted their efforts on specific lists of facilities and industries which had never
achieved initial compliance with regulations promulgated under those statutes. Known as the Major
Source Enforcement Effort (MSEE), "major" facilities were targeted by either EPA or state agencies.
("Major facility" is defined by the air program as a source with a potential to emit greater than 100
U.S. tons per year, and a "major facility" is defined by the water program as a source with discharges
to navigable waters of greater than 1 million U.S. gallons per day). Facilities targeted were primarily
power plants, publicly owned treatment works, petroleum refineries, steel mills, and chemical
manufacturers. Collectively, EPA and the states took over 600 enforcement actions for water-related
violations and over 400 actions for air-related violations. At the conclusion of the Major Source
Enforcement Effort, initial compliance with the air and water statutes for many industries had been
achieved, or enforceable schedules to achieve them had been established, and focus in these
programs began to shift toward maintaining continuous compliance.
2.2 Significant noncompliance as a targeting mechanism
In the mid-1980's, the Agency began implementing the concept of "significant
noncompliance" (SNC) into its management processes for use in long-term goal setting, annual
planning, and measuring success. Each of the major regulatory enforcement programs established
national criteria and definitions for high priority violations that constitute significant noncompliance.
Significant noncomplier lists are not industry-specific nor geographically oriented, rather, the lists
are generated by applying the media-specific criteria to the full universe of facilities regulated under
each statute. If the facility meets the violation criteria, it is placed on the significant noncomplier list.
Optimal timeframes for responding to facilities on the significant noncomplier list are established,
with initial response to occur within at least 150 -180 days after the violation is detected. Progress
in responding to violations is closely monitored by each program, and the success of both EPA
regional programs and state programs are judged, in part, based on performance vis-a-vis significant
noncompliers. Significant noncompliance is a dynamic process which is well suited to the realities
of pollution control where regulated entities can come in and out of compliance due to equipment
-------
DUFFY, RICHARD F. 327
failures, poor operations and maintenance practices, or new regulatory requirements. The significant
noncomplier concept continues to be a key management tool for identifying and addressing violators,
and the definitions of significant noncompliance continue to be set on a media-specific basis.
2.3 Multi-media targeting
In the early 1990's, policymakers at EPA saw that many environmental issues transcend
the boundaries of the media-specific programs, and work began on bringing a more holistic, multi-
media perspective to compliance and enforcement goal setting, planning, and program
implementation. The agency instituted both single- and multi-media inspection targeting and case
screening to identify violations which involve significant health and environmental risks. The agency
also formulated multi-media initiatives directed at specific industries. Initially, these changes met
significant organizational inertia, and both the Administrator and Deputy Administrator, the top two
ranking officials at EPA, put a significant amount of personal energy into making sure that the
organizational culture at EPA began to take a broader view of the world. These first efforts to
implement a holistic, multi-media perspective were generally successful, however, many managers
in the media-specific programs were concerned about the high transaction costs associated with
coordination among the programs, and about detracting from their basic responsibilities under
each statute. Implementation of multi-media approaches continued to require significant commitment
from the Agency's most senior officials.
Beginning in 1994, EPA undertook a major reorganization at its headquarters office
intended in large part to institutionalize holistic, multi-media approaches to environmental protection.
The reorganization consolidated five major media-specific headquarters offices into a single
organizational entity with the responsibility for the compliance and enforcement requirements for all
the environmental statutes. Similar, but not necessarily identical, consolidations have been
implemented in EPA's ten regional offices. Key components of the new headquarters organization
include an office dedicated to developing multi-media enforcement cases, offices with expertise in
all matters pertaining to specific industries or sectors, and offices that consolidate information
management, program planning, and targeting from all of the programs that conveyed to the new
organization. This latter office is charged with integrating the media-specific facility data from each
of the major computer data systems and conducting broad scale analysis of compliance trends
and potential impacts on human health and ecosystems.
TARGETING FOR RESULTS
3.1 Early multi-media enforcement initiatives
The multi-media compliance and enforcement targeting efforts that took place in the early
1990's prior to the reorganization were focused on industries such as the pulp and paper and iron
and steel industries. These efforts were coordinated by a senior level agency-wide enforcement
steering committee which was known as the Enforcement Management Council (EMC). It consisted
of representatives from each media office and from all ten regional offices. It served as a "board of
directors for enforcement," and it oversaw and sanctioned the development of the enforcement
initiatives targeted at major industry groups. It also sanctioned the analytical framework that was
used for selecting these industries which consisted largely of an analysis of industry-wide multi-
-------
328 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
media noncompliance rates, analysis of data reported by facilities to the Agency's Toxic Release
Inventory (TRI) (it contains data self-reported by facilities on releases and transfers of over 300
toxic chemicals), and perceived opportunity.
These early initiatives were intended to test new ways of better focusing the attention of
the enforcement program at problems that significantly impact human health and the environment,
and make better use of scarce Federal and state enforcement resources. To the maximum extent
practicable, environmental problems were to be addressed in a holistic, multi-media fashion.
Resource efficiencies were expected through focusing inspections, enforcement actions, and
settlements on industrial sectors of concern, pollutants of concern, and geographic areas where
populations and/or ecosystems are at risk.
The bureaucratic obstacles to implementing these new approaches were significant.
Managers and staff at all levels of EPA's enforcement programs were initially resistant to the notion
of multi-media enforcement because of the additional new workload associated with establishing
and maintaining a multitude of new channels of communication and coordination among the media
offices. Many were also concerned that the resource and timing issues associated with developing
and initiating multi-media actions would cause programs to fail to meet their media-specific
commitments for conducting inspections and taking enforcement action within established guidelines
for timely and appropriate response.
The EMC initially set as an operating assumption that the multi-media enforcement
initiatives would be conducted from inspection to developing enforcement actions within a single
year. With experience, it became clear that one year was simply not enough time to conduct an
effective initiative if a significant number of new inspections are to be targeted, as opposed to
relying primarily on "opportunistic" cases. At least one year is needed to simply plan and conduct
inspections; there should be at least one more year for case development. Most initiatives are
better implemented through a multi-year strategy which allows affected offices the lead time to
strategically allocate inspection resources to the targeted areas. This is particularly true if the goals
of an initiative are very complex or ambitious. A short time horizon also creates tension between
regional and state program goals, particularly with respect to implementing the base program.
3.2 Targeting in the new compliance and enforcement organization
As mentioned above, the reorganization of headquarters compliance and enforcement
functions consolidated many compliance and enforcement functions which for the prior ten years
had been scattered throughout five major offices in headquarters. The reorganization emphasized
five key objectives: (1) maintain an imposing enforcement presence to deter noncompliance; (2)
use compliance assistance and other innovative tools in addition to formal enforcement actions to
bring about compliance; (3) organize compliance strategies, and often formal enforcement activities,
around sectors of the economy and ecosystems; (4) utilize multi-media, whole facility approaches
to reach comprehensive solutions that fix problems and do not simply move a problem from one
medium to another; and (5) measure success by improvements in compliance rates and
environmental quality, not just by the number of cases brought or the amount of penalties collected.
Strategic targeting plays a central role in achieving all of these objectives. Targeting analysis
plays a role from the very earliest stages of the program planning process where ideas and concepts
for future organizational priorities are considered. The analytical process follows through the process
of measuring the success of the program, where the targeting data serves as the baseline set of
conditions against which results are being measured. Analysis of data may suggest or indicate
trends within the regulated community that cause concern about the state of compliance, or it may
suggest potential opportunities for achieving greater public health and environmental protection
through use of innovative settlements or pollution prevention.
-------
DUFFY, RICHARD F. 329
It is very important that the analysis be based on sound and objective analytical techniques
and methodologies that can withstand challenges by those facilities or areas that have been targeted.
And while it is also important that there be consistency in analytical approaches, especially if targeting
work is being conducted by different groups in the agency (e.g., conducted both at headquarters
and in the regional offices), a balance needs to be struck in this area because strict adherence to
uniform ways of doing analysis will also stifle creativity. It is also useful to expect that the analytical
process will be iterative, with refinements either narrowing or broadening the scope of work. Useful
byproducts of the iterative process include refinements which strengthen the overall analytical process
and an increased understanding by senior managers and staff alike of the meaning and limitations
of the data and the analysis.
3.3 Targeting analyses in EPA are generally focused on the following areas:
industrial sectors, geographic areas/demographic analysis, corporate
analysis, and risk-based analysis
3.3.1 Industrial sectors
Analysis of industrial sectors is conducted using the United States' Standard Industrial
Classification (SIC) codes. These codes are 4 digit numbers used to categorize industrial and
commercial processes. The first two digits place the facility in a macro-level category (e.g., Category
28 includes Chemicals and Allied Products), and the following two digits provide greater definition
and precision (e.g., Category 281 is the subcategory for Industrial Inorganic Chemicals, which is
further subcategorized to 2812 for Alkalies and Chlorine, 2813 for Industrial Gases, etc.).
Objective rankings of industrial sectors are used for priority setting among many sectors.
The ranking analysis typically includes the historical multi-media noncompliance patterns for all the
facilities within the individual industrial groups (EPA's mainframe computer databases allow for
analysis of trends over a two-year timeframe), historical information on enforcement actions taken
against facilities within the sector, reported releases of toxic chemicals (both the amount of total
releases and releases of known or suspected carcinogens), and the frequency of inspections.
Relative rankings among the sectors are organized using the noncompliance rate as the primary
ranking factor; the secondary ranking factors are total reported releases of toxic chemicals and
total reported releases of known or suspected carcinogens. Rankings are developed at the national
level to assist in selection of national priorities. Similar rankings are developed for each of EPA's
ten regions to reflect the unique mix of industries that exist within each region. The national rankings
and the region-specific rankings are then used during the annual planning process to inform
discussions between headquarters and regional managers about region-specific priorities and
how they relate to, or deviate from, the national priority industrial sectors. These data also form the
baseline against which success is measured overtime.
For FY 1996, the process described above was used to inform the selection of both
national and region-specific priorities. At the national level, this process identified the following
major industrial groups as priorities: petroleum refining, primary non-ferrous metals, industrial organic
chemicals, plastic materials and synthetics, iron and basic steel products, and pulp mills. On a
region-specific basis, some regions have many facilities within these industries and others may
have none. Some industries with relatively high noncompliance rates and large releases of toxics
may be located mostly in one region. By analyzing the data at both the national and regional levels,
it is possible to inform the selection of macro-level national priorities while at the same time informing
region-specific decisions about priorities.
-------
330 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3.3.2 Geographic areas/demographic analysis
Geographic analysis can be conducted using one of two starting points. The first starts
with an objective set of criteria or characteristics and then attempts to find areas that match those
criteria. A second starting point is with a geographic area that is selected based on general
knowledge or information from within the agency or the community which indicates that environmental
and/or compliance problems may exist. With a known area, the analysis focuses on gathering and
sorting through all of the available information for the area for facilities, ecosystems, and populations.
In designing geographic analysis it is important to plan up front for how the data will be
displayed. It is usually best to display the objective data in the form of maps created using
Geographical Information System (GIS) or other types of graphical depictions (proving the old
adage that "a picture is worth a thousand words"). In the Geographical Information System format,
"layers" of information can be placed on the map to depict sources, their compliance status (either
the rate overtime or the current status), the relative volume and nature of their reported releases,
important ecological characteristics such as receiving water bodies, critical habitats such as
wetlands, watersheds, and recreational areas, and the density and demographics of surrounding
populations (e.g., U.S. Census data on minority populations, income level, relative proportion of
children and elderly, etc.). Tables containing the underlying data can also be presented, but the
most effective way to convey such large volumes of information is proving to be through use of GIS
maps.
3.3.3 Corporate analysis
Several models for objectively evaluating corporate compliance patterns have been
considered by EPA. Starting points for analysis can be corporation size, number of facilities reported
as being in significant noncompliance, corporation-wide noncompliance rate over time, and the
total amount of reported releases of toxic chemicals by facilities owned by the corporation.
In corporate targeting analysis, patterns may emerge where corporations and their
subsidiaries may be operating facilities improperly in many locations across the country.
Corporations and their subsidiaries may operate under many different names, and it may initially
be difficult to determine ownership. EPA has found, however, that this complex analysis can uncover
persistent patterns of noncompliance across a corporation. In the absence of a unified enforcement
response, the corporation may be able to greatly minimize its pollution control expenses. If a pattern
can be identified, and a corporate-wide enforcement response developed, the impact on the
corporation and its practices, and the resulting benefits to the environment, can be many times
greater.
Corporate approaches can be resource intensive due to cross-program coordination
and coordination among many or all headquarters and regional offices. Coordination becomes
even more complex if EPA's state partners choose to participate in the action. A notable example
of the benefits of the corporate approach was an action taken against Louisiana Pacific Corporation
where a pattern of widespread noncompliance was uncovered. The government uncovered evidence
through its databases and other sources of information that Louisiana Pacific had failed to apply
for required Clean Air Act permits and provided incomplete or low estimates on air emissions at 11
of its oriented strand board and medium density fiberboard facilities located in nine states. As a
result of the company's failure to report all its air emissions of volatile organic compounds, paniculate
matter, or carbon monoxide comprehensively, neither the federal nor state governments would or
could accurately know the level of air quality deterioration in the vicinity of the plants. In addition, the
company avoided installing pollution control equipment that would have been required to prevent
the significant deterioration of air quality in areas which were attaining ambient air quality standards.
In settling the case, the company paid an $11 million penalty, the largest Clean Air Act penalty in
-------
DUFFY, RICHARD F. 331
EPA's history, and the company is implementing an extensive Clean Air Act compliance program
including obtaining all necessary air permits and complying with all necessary requirements and
regulations.
3.3.4 Risk-based analysis
Developing risk-based targeting techniques has tested the limits of the data that EPA
collects on regulated facilities and ambient environmental conditions. It has also brought into play
evolving sciences related to the toxicity and fate of chemicals, pollution pathways, the synergistic
effects of chemicals, etc. As EPA has worked to develop a risk-based targeting capability, it has
struggled to reconcile conflicting approaches coming out of the scientific community. EPA has
convened a workgroup to consider how risk assessment models might be used effectively and
confidently and incorporated into the operating strategy of EPA's enforcement and compliance
assurance program. The workgroup assembled a compendium of over 160 models, and through
repeated applications of ranking and screening criteria arrived at a set of 6 models that are being
subjected to more thorough and detailed investigations. The evaluation criteria included amount
and type of required data and whether the model provides consideration of multi-media risk and
human exposure. For the models which pass the continued evaluation, both independent (of EPA)
peer review and the production of guidance to prospective model users will be undertaken. If no
models pass these tests, consideration will be given to developing a new model designed specifically
for the compliance and enforcement program.
Risk-based approaches are expected to have applications in the conduct of industrial
sector analyses, pollutant-specific targeting analyses, corporate analyses, and geographic/
demographic and ecosystem analyses. One approach that will be explored will be the development
of relative risk rankings of facilities where the amounts of reported releases for individual toxic
chemicals are weighted by the toxicity factors for each chemical. An analysis that uses only the total
number of pounds released may overstate, in a relative sense, the potential impact of one facility
over another. For example, in industrial sector or geographic/demographic targeting, weighting
releases by the respective toxicity factors of the individual chemicals may reorderthe list of facilities
within the sector or area from rankings based on the total amount of all chemicals released. From
a program planning perspective, all facilities may still receive an inspection and/or enforcement
action, but the order in which the inspections or actions are scheduled may be adjusted to first get
to the facilities of greater concern or potential impact to surrounding populations.
Risk-based targeting analysis can be conducted where identified environmental conditions
exist (e.g., aquatic systems with known contaminated sediments, river segments where fishing is
forbidden, contaminated fish tissue), and then the agency can identify through its data facilities
which may be contributing the contaminants of concern. The analysis can assist in developing and
implementing strategies (either enforcement or facility permit improvement strategies) for reducing
loadings of problem contaminants, directly reducing known risks to human health and aquatic
systems.
4 CONCLUSIONS
In conclusion, the following thoughts may be useful in guiding and implementing strategic
targeting approaches:
1. Define objective and defensible analytical criteria to ensure that the agency is
on solid footing in the selection of enforcement priorities and targets; industries
and facilities may take exception to having been targeted as a noncomplier
or a potential health risk.
-------
332 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2. Synchronize the analytical process with the agency's annual planning
processes to maximize results and to better inform the identification and
selection of priorities. Establish baseline compliance and enforcement trend
data and use this data to monitor and measure success, results and
effectiveness.
3. Make the targeting process inclusive (there isn't a monopoly on good ideas),
iterative (macro-level for budget and national guidance, region-specific for
local priorities and specific inspection plans), and supple to accommodate
emerging priorities, new ideas, or unexpected occurrences (e.g., newly-
identified health threats, accidents, spills).
4. Take maximum advantage of the investment that the government has made in
the collection (and automation) of compliance and enforcement data. If the
agency is not going to use data, perhaps it should not spend resources to
collect it.
REFERENCES
1. Memorandum from Elaine G. Stanley entitled "Final Report of the Workgroup on Measures
of Success for the Office of Enforcement and Compliance Assurance." January 24,1995.
2. Memorandum from Steven A. Herman entitled "Case Conclusion Data Sheet - Pilot
Reporting for FY1995." March 22,1995.
3. Memorandum from Steven A. Herman entitled "Final FY1996/FY1997 Office of
Enforcement and Compliance Assurance Memorandum of Agreement Guidance." June
22, 1995.
-------
SPECIAL TOPIC C: INTEGRATED PERMITTING AND INSPECTION 333
SPECIAL TOPIC WORKSHOP C
Integrated Permitting and Inspection
Many nations are moving toward integrated permitting and inspection, and others are
considering this approach. Workshop C discussions built on the UNEP training manual and a
new capacity-building technical support document prepared for the Fourth International
Conference on Multi-media Inspection Protocols. Papers and Workshop C discussion topics
address the following issues:
• The extent of country experiences with integrated permitting and/or
integrated multi-media) inspections.
• How an integrated permit is defined, specifically whether it covers procedural
integration, administrative integration, substantive integration, or all three.
What is different about integrated versus single-media or program permits.
• Advantages and disadvantages of integrated permits and whether they are
more or less efficient and effective, why, and in what circumstances.
• Potential and actual compliance and environmental results from integrated
permits that would not have resulted from single-media permits.
• Level of difficulty in issuing and monitoring compliance with integrated
permits: is it more or less difficult to achieve compliance in the regulated
community.
• Special expertise needed to implement integrated inspection programs.
• How an integrated multi-media inspection is defined, specifically whether
it is a team of inspectors with single program expertise, a single inspector
trained to inspect for compliance with multiple programs, a review of overall
processes and environmental performance, and/or a broad screen for
potential problems.
• Implications of pollution prevention concerns on integration of compliance
approaches.
1. Summary of Integrated Permitting and Inspection Workshopfac/WafOAs:
J. Skinner and C. Wasserman, Rapporteur, J. Mozingo 335
2. Innovative Multi-media Compliance, Enforcement, and Pollution Prevention
Approaches to Environmental Compliance at Federal Facilities in the United
States of America, R.B. Cheatham, J.R. Edward, W.H. Frank, R.J. Satterfield. 341
3. See also Synopsis of International Comparison of Source Self-Monitoring,
Reporting, and Recordkeeping Requirements, Workshop D 393
4. See also Synopsis Multi-media Inspection Protocols: International Examples,
Workshop D 394
-------
334 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
5. See also Synopsis of Course: Conducting Multi-media Inspections, Workshop D..... 395
See related papers from other International Workshop and Conference Proceedings:
1. Integrated Pollution Control in England and WalesA Bryce, Volume I, Oaxaca, Mexico
2. Swedish System of Intergrated Permitting — Whether It Enhances Compliance and
Enforceability, L Svemdal, Volume I, Budapest, Hungary
3. The U.S. Environmental Protection Agency's Integrated Compliance by the Federal
Government, T. McCall, Volume I, Budapest, Hungary
-------
SUMMARY OF WORKSHOP: INTEGRATED PERMITTING AND INSPECTION 335
INTEGRATED PERMITTING AND INSPECTION
Facilitators: John Skinner, Cheryl Wasserman
Rapporteur: Jack Mozingo
GOALS
Discussions were designed to address the following issues:
• The extent of country experiences with integrated permitting and/or integrated
(multi-media) inspections.
• How an integrated permit is defined, specifically whether it covers procedural
integration, administrative integration, substantive integration or all three. What
is different about integrated versus single media or program permits.
• Advantages and disadvantages of integrated permits and whether they are
more or less efficient and effective and why, in what circumstances.
• Potential and actual results from integrated permits that would not have resulted
from single-media permits.
• Level of difficulty in issuing and monitoring compliance with integrated permits:
more or less difficult to achieve compliance by the regulated community.
• Special expertise needed to implement integrated inspection programs.
• Impact on integration of compliance and pollution prevention concerns and
approaches
1 INTRODUCTION
Many nations are moving toward integrated permitting and inspection, and others
considering these approaches. This movement reflects several concerns, including: 1) recognition
that the environment and impacts on the environment often is not neatly compartmentalized into
single media such as air, water and land, but is an integrated system requiring integrated
considerations on the best approaches to control pollution and its impacts; 2) increased emphasis
on prevention of pollution which often requires an integrated look at new processes and technologies
rather than end-of-pipe treatment for a single environmental medium; 3) a desire to achieve greater
efficiency in permitting and inspection activity; 4) a desire to avoid transfers of pollution from one
medium to another. Despite the desire to achieve more integrated environmental management
through integrated permitting and inspection, experience has been limited. Attempts to integrate
have raised management and decision-making concerns about complexity of decision-making
and implementation; whether it really is more efficient and how it can be implemented efficiently,
and whether these approaches really result in integrated control and prevention approaches.
-------
336 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2 PAPERS
A Capacity Building Support Document was prepared by the Conference sponsors on
Multi-media Inspection Protocols with international examples. The document includes discussions
on and examples of a range of approaches and definitions, along with the potential advantages
and disadvantages of each approach.
In addition, a paper prepared by Reginald Cheatham, et al. describes a multi-media
strategy for strategic targeting, compliance promotion and outreach, inspection and enforcement
response for the federal facilities sector within the United States. Data is presented on the success
of the strategy first described in the Proceedings of the second International Conference in Budapest,
Hungary.
3 DISCUSSION SUMMARY
3.1 Defining "integrated permits and integrated permitting"
Integrated permits were defined by the participants as:one permit related to one facility
covering all elements of the environment The group realized that there were different approaches
and goals for integrated permitting systems and integrated permits that existed around the globe,
ranging from integration of permitting processes to integration of the substantive requirements in a
permit. Three categories of approaches were identified with three types within one of the categories
yielding a total of five different approaches:
1) An additive approach(or "the big staple") which added together the results of
what wereessentially separate permitting processes to deliver a single permit.
2) A coordinated approach in which separate permitting processes are
coordinated to ensure that cross-media and cross-program transfers of
pollution do not occur and that information about the facility is shared for
purposes of decision-making on a media-by-media and program-by-program
basis.
3) Holistic approaches which create new substantive requirements as a result of
permit integration at three possible levels:
a) best available technology from a multi-media standpoint is applied;
b) pollution prevention and cleaner technology is emphasized in addition to
a base-line of compliance including resource; and/or
c) the integrated permit takes into account overall environmental impacts.
3.2 Country experiences with integrated permitting
Many countries throughout the globe are interested in pursuing integrated approaches to
environmental management for permitting and inspection activities. For example in Europe, the
Integrated Pollution Permitting and Control (IPPC) Directive from the European Union provides
new impetus for an integrated approach in both Western Europe and Central and Eastern Europe,
participants from both Italy and Poland described current efforts to address this challenge through
new legislation and review of ongoing programs. In the United States, a recent reorganization is
enhancing the ability of the program to adopt more sector and geographic based approaches to
-------
SUMMARY OF WORKSHOP: INTEGRATED PERMITTING AND INSPECTION 337
inspection and enforcement activity. In Estonia it is a "dream", Bhutan is in its early stages of program
development with an Environmental Commission and Environmental Impact Assessment (EIA)
mandate but little else is in place as yet.
In reviewing country experiences, it was clear that few countries have had actual experience
with integrated permitting that is holistic, and that experiences reflected the range of approaches
identified above. Most countries are attempting to coordinate permitting processes, while still issuing
separate permits. Among the countries participating in the workshop, only New Zealand had
experience with holistic approaches at the 3c level, taking into account overall environmental impacts
by using Environmental Impact Assessment as an application and including ecological conditions
in a single environmental permit. They have only issued 3 to 4 such permits since their laws were
changed in 1991. While ElA's are required in many countries for permitting, they are usually not
associated with issuance of a single comprehensive permit which reflects the full range of impacts
from pollution loadings to ecological implications. Some U.S. States are experimenting with level
3b integrated permitting but have not yet issued such permits. The U.S. EPA has gone so far as to
develop sector-based standard-setting for performance requirements in permits which emphasize
considerations of 3a (BACTfrom a multi-media standpoint), and 3b (pollution prevention and cleaner
technology from a multi-media standpoint), that would then be the basis for single media permitting;
and has provided opportunities for additive and coordinated permitting. Many countries in Western,
Central and Eastern Europe are preparing to comply with European Unions' IPPC requirement for
integrated permitting and are facing some very real implementation issues.
Italy issues permits based upon BACT determinations which are holistic, and relies upon
a separate EIA process to ensure broader environmental impacts are addressed. Poland is currently
pursuing coordinated permitting approaches to prevent unwanted transfers of pollution from medium
to medium.
3.3 Implementation issues for integrated permitting
3.3.1 Relationship between Environmental Impact Assessment (EIA) processes
and integrated permitting
In many countries around the world, environmental impact assessment precedes permitting
and has the potential to serve as a basis for an integrated permit application. The EIA typically
involves an holistic assessment of releases, risks, ecological impacts, resource usage, and all
other environmental implications. EIA, if followed up with enforceable operational and/or siting
conditions, brings many of the advantages of integrated permitting even where such permitting is
not practiced.
If an integrated permit is intended to identify, measure, weigh, and resolve tradeoffs among
media, risks, and impacts, difficulties remain as to how this can be accomplished, particularly
given the absence of methods, technical skills and discretion not easily exercised by the typical
permit writer. One very important observation was that it is not possible to assign common values
to different types of impacts, whether during the EIA process or during permitting. Possible solutions
involve: 1) more guidance, 2) including such judgments in standards for these types of permits in
advance, and 3) getting discussionsamong teams of experts who can help to address such issues
in the permitting process itself.
Additional concerns are the pressures to permit new construction and the potential for
delay to address ecological issues related to flora and fauna. For fully integrated permitting the
time involved in collecting and analyzing information could be substantial. As with EIA, assessment
-------
338 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
of ecological impacts often takes at least one growing season. There was some discussion of
whether permitting could proceed when less time was available, with additional data collection and
analysis requirements incorporated into the permits.
The advisability of this approach really depended upon the types of impacts of concern
since moving ahead with permitting could reduce options to mitigate or avoid important environmental
impacts.
3.3.2 Organizational issues
Single medium permitting and inspection is the norm in many countries so organizational
lines are drawn by medium. A move to integrated permitting or inspections raises organizational
issues created by both organizational autonomy and the need to cut across organizational lines of
authority. A move to integrated permitting or enforcement compels at least an examination of
organizational relationships. In some countries, a designated "lead" agency or organization can
overcome some of the problems posed by institutional barriers. Solutions discussed among
participants included New Zealand's approach of making one person responsible both for a site
and a sector to ensure consistency. Related approaches include assigning lead responsibility to
one organization to coordinate and integrate permits as is done in Romania, and South Africa's
proposed tiered model in which local inspectors serve largely to screen for compliance problems
and regional experts, who have sector specific expertise, are brought in less frequently or when
necessary, ensuring familiarity with local conditions while maintaining expertise. Romania used
audits of permit writers and inspectors to provide integration and ensure consistency.
3.4 Multi-media inspections
Workshop participants reviewed the new capacity building support document on Integrated
Multi-media Inspection approaches and discussed the distinctions that are similar to those in
integrated permitting between different approaches. The different approaches included:
1) Multi-media screening which may accompany a single media inspection
2) Consolidated (one or two multi-media trained inspectors for that sector or
industry)
3) Multi-media Team Inspections (single media inspectors inspect at one time)
4) Process-based inspection
along with different substantive purposes and scope for these inspections, which might
include:
a) Compliance only;
b) screening of environmental impacts; and
c) technical assistance for prevention and compliance.
3.4.1 Separate or integrated inspection and permitting staffs
The group discussed whether the same individuals should write permits and perform
inspections.
While Austria and South Africa have combined these roles, and New Zealand's site
coordinator coordinates both for a site, there was general agreement with Italy's experience that it
works better to separate responsibility for inspection and permitting. This preference for separation
of these functions reflects the experience of Norway (see published paper by Gro Rodland in
proceedings), and the advisory group experience in the United Nations Environmental Program's
-------
SUMMARY OF WORKSHOP: INTEGRATED PERMITTING AND INSPECTION 339
Manual on Institution Building for Industrial Compliance. It may encourage too close a relationship
between facility and inspector or inability to approach permit requirements objectively for independent
evaluation of compliance and enforcement.
3.4.2 Integrated inspection without integrated permits
Programs can have integrated permitting not accompanied by integrated inspections
and integrated inspection but not integrated permits. There is insufficient experience to assess
whether an integrated permit would assist multi-media inspection. The U.S. EPA has developed
and requires use of a multi-media screening approach to be used for all inspections, regardless of
whether they are single or multi-media and has introduced greater use of both coordinated and
team inspections for specific types of situations. EPA and its state counterparts are experimenting
with new roles for inspectors in performing process-based inspections which are more capable of
identifying cross-media transfer problems and pollution preventioropportunities.
4 CONCLUSION
Many countries are adopting and experimenting with integrated approaches to permitting
and inspection. There is no single approach, but a variety approaches from separate permits or
inspections which are simultaneous, to coordinated permitting and/or inspection to holistic
approaches which are multi-media, process-based or integrate broad environmental concerns.
Countries may have integrated inspection without integrated permits, and integrated permits without
integrated inspection. There is still limited experience with organizing and implementing fully
integrated single permit and single inspection schemes for all media and programs which adopt
holistic and process-based approaches to environmental protection. Questions still exist as to the
best means of organizing and implementing such programs, their efficiency and methods for making
trade-offs among media where issues arise. Much can be gained by further sharing of experiences
and clarifying what is meant by these terms when addressing them. The workshop participants
developed useful definitions for the range of approaches which should help in this process of
exchange and learning from each other's experiences.
-------
340 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 341
INNOVATIVE MULTI-MEDIA COMPLIANCE, ENFORCEMENT AND POLLUTION
PREVENTION APPROACHES TO ENVIRONMENTAL COMPLIANCE AT
FEDERAL FACILITIES IN THE UNITED STATES OF AMERICA
CHEATHAM, REGINALD B., EDWARD, JAMES R., FRANK, WILLIAM H.,and
SATTERFIELD, RICHARD J.,
United States Environmental Protection Agency, Chemical Industry Branch, 401 M
Street, SW, Washington, D.C. 20460 USA
SUMMARY
The United States Environmental Protection Agency (EPA) oversees the Federal
government's efforts to manage and clean up safely the radioactive, hazardous, and mixed wastes
generated from its weapons research and production activities, operation of its military bases, and
a myriad of activities in non-defense areas. To accomplish its mission, EPA is implementing an
integrated management strategy for environmental performance by the federal government. The
immediate goal of the strategy is to assure that the federal government meets or exceeds compliance
with all applicable environmental laws and regulations. The ultimate objective of the strategy is for
the federal government to lead the way by setting an example for the entire nation in environmental
performance.1
The five components of the integrated management strategy are:
• Legal and Regulatory Authority.
• Regulatory Agency Responsibilities and Organization.
• Training and Technical Assistance.
• Compliance Monitoring.
• Enforcement Options.
This paper will focus on the implementation of programs and initiatives that directly and
indirectly influence the execution of these five components of the integrated management strategy.
The first subject for discussion will be the Federal Facility Compliance Act and how this legal
authority has enabled EPA to implement U.S. hazardous waste law with respect to Federal facilities
in the same manner as private facilities. Second, a discussion of EPA's Federal Facility Multi-
media Enforcement/Compliance Initiative (FMECI) will show legal authorities applied within a policy
framework that seeks efficiencies of scale by going beyond the single-media approach of the past.
The third section of the paper addresses one of the best overall examples of the direction EPA is
going in trying to improve environmental management systems in the Federal sector, which is the
ongoing effort to address the environmental performance and concerns of Civilian Federal Agencies.
The fourth section of the paper addresses one of the most innovative approaches to improved
environmental management in the Federal sector, the implementation of Executive Order 12856,
entitled "Federal Compliance with Right-To-Know Laws and Pollution Prevention Requirements,"
which requires that federal agencies comply with the Emergency Planning and Community Right-
to-Know Act of 1986 (EPCRA) and Pollution Prevention Act of 1990. Section five of the paper
discusses the future directions of EPA's federal facility enforcement program and offers some
conclusions from the antecedent discussions. There are two attachments: a guidance (Attachment
A) on assisting enforcement personnel in identifying and documenting pollution prevention
-------
342 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
opportunities that can be incorporated into enforcement settlement agreements with particular
Federal facilities and a generic Federal Facility Pollution Prevention Field Reporting Form
(Attachment B).
The responsibility for implementing the integrated management strategy within EPA lies
with the Office of Enforcement and Compliance Assurance (OECA) Within this Office, the Federal
Facilities Enforcement Office (FFEO), working with the EPA Regions, deals with multi-media
compliance issues under all environmental statutes as well as cleanup and remediation under
Superfund.
Compliance at Federal facilities is monitored by EPA through both facility inspections
and the analysis of self-monitoring reports which are often required by statute or regulation and
submitted by Federal agencies. Upon the discovery of a statutory or permit violation at a Federal
facility, the appropriate EPA Region initiates an enforcement action pursuant to the enforcement
authorities granted to the Agency in the environmental law which has been violated. The procedure
for initiating these enforcement actions depends on the program under which the action is being
taken.
Multi-media enforcement and compliance approaches, such as the Federal Facility Multi-
media Enforcement/Compliance Initiative and the Civilian Federal Agencies Strategy, ensure that
Federal facilities are evaluated for full compliance with environmental laws. Regulatory reform
initiatives such as the Common Sense Initiative and Project XL will move environmental protection
at Federal facilities into the next century, moving EPA successfully toward the goal of the integrated
management strategy at Federal facilities.
Many Departments and Agencies currently use a multi-media approach in their
environmental auditing activities. EPA is promoting and facilitating this type of compliance monitoring,
which involves a more holistic view of compliance deficiencies and increased environmental
awareness by Federal employees. By emphasizing the use of creative solutions to these
deficiencies, such as pollution prevention, the Agency promotes both increased compliance and
decreased cost.
1 LEGAL AND REGULATORY AUTHORITY
The most significant recent indicators of the direction in which U.S. environmental law is
moving with respect to Federal facilities are the passage of the Federal Facility Compliance Act
and the issuance of Executive Order 12856 (See Sec. 4.0, below). These authorities enable EPA
to implement hazardous waste and community right-to-know laws with respect to Federal facilities
in the same manner as private facilities.
On October 6,1992, the Federal Facility Compliance Act of 1992, Pub. Law No. 102-386
(the Act), became lawfThis Act amends the waiver of sovereign immunity found in the Resource
Conservation and Recovery Act (RCRAyJThe Act's legislative history indicates that its primary
purpose is to ensure that Federal facilities are treated the same as private parties with regard to
compliance with the requirements of the earlier Act. For example, the Conference Report states
"where EPA uses an administrative complaint pursuant to section 3008(a) to address particular
types of violations detected at a private company or municipality the Administrator must use an
administrative complaint to address the same types of violations at a federal facility.
Prior to the Act's passage, EPA took enforcement actions against Federal agencies
differently than against private parties. This difference was tied to the language of section 6001 of,
the hazardous waste law Resource Conservation and Recovery Act, 42 U.S.C. § 6961. According
to the Department of Justice's 1987 testimony before the House Subcommittee on Oversight and
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 343
Investigations, Committee on Energy and Commerce, EPA lacked the statutory authority necessary
to issue administrative compliance orders (pursuant to the Resource Conservation and Recovery
Act section 3008(a). EPA, thus negotiated Federal Facility Compliance Agreements with Federal
facilities to bring them into compliance.
Through passage of the 1992 Act, Congress clarified that administrative order authority is
available to the Administrator, and this authority has been given directly to the Administrator:
"The Administrator shall initiate an administrative enforcement action against such
a department... in the same manner and under the same circumstances as an
action would be initiated against any other persofi"
In addition, under section 103 of the Act, Congress further clarified that federal agencies
are persons for purposes of Resource Conservation and Recovery Act. EPA now has administrative
compliance order authority against Federal facilities under the latter Act.
In the Federal Facility Compliance Act of 1992, Congress stated that "the Federal, State,
interstate, and local substantive and procedural requirements referred to in this subsection include,
but are not limited to, all administrative orders and all civil and administrative penalties and fines,
regardless of whether such penalties or fines are punitive or coercive in nature or imposed for
isolated, intermittent, or continuing violations?"
As a matter of policy, EPA will pursue penalties only from the effective date of the Act
forward.7 If violations occurred prior to the effective date and are ongoing, EPA could assess penalties
for the violations from Octobers, 1992 until correction of the violation.
In summary, the Federal government is liable for the Resource Conservation Recovery
Act civil and administrative penalties just like any other person (with the exception of the effective
date of the Act limitation). Since the law and the Congressional intent state that Federal agencies
are liable for penalties, EPA will apply its current applicable penalty policy, presently the 1990 Civil
Penalty Policy, against the Federal government for violations of the Act in the same manner and to
the same extent as against any private party3. The February 12, 1991 "Policy on the Use of
Supplemental Enforcement Projects" also applies in this context. Moreover, for settled cases that
require compliance work, stipulated penalties should be included in the Consent Agreement and
Consent Order.
EPA believes that the Federal Facility Compliance Act will enhance accountability of
Federal facilities for environmental cleanup and compliance. At the same time, the legislation
recognizes the unique situation of Federal facilities by ensuring that the authority to impose penalties
on these Federal facilities is exercised within a fair, workable framework. In this regard, the legislation
contains provisions which address mixed waste, munitions, public vessels, wastewater treatment
works, payment of fees by Federal agencies and protection from personal liability for Federal
employees.
Since the passage of Federal Facility Compliance Act, EPA and the states have compiled
an impressive enforcement and compliance record. EPA and states have issued over 100 orders
to federal facilities, seeking over $12 million in penalties. Many of these actions have involved very
significant violations, including open burning and open detonation of munitions, and storing hazardous
wastes without permits. These violations not only threaten the health and welfare of neighboring
communities, but those of our service men and women, and civilian workers as well.
For example, during a 1992 inspection, EPA found that a particular Federal facility had
stored over 22,000 pounds of hazardous waste unprotected and outdoors in an area prohibited for
such storage by the facility's Resource Conservation and Recovery Act hazardous waste permit.
When EPA returned to the same facility a year later for another inspection, large quantities of waste
-------
344 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
were being stored in the same location, still in violation of the permit, prompting a penalty action.
Months after assessing over one million dollars in penalties, EPA conducted an inspection at the
facility and no violations were detected in their day-to-day waste management activities.
In FY 94, EPA and the states issued 40 orders against Federal facilities seeking more
than $6.5 million in penalties. Many of these actions involved open burning and open detonation of
munitions without permits and storing hazardous wastes without permits. These violations not only
threaten the health and welfare of neighboring communities, but those of our service men and
women and civilian workers as well.
During FY 1995, EPA and states achieved or made significant progress towards achieving
a wide range of programmatic objectives. EPA continued to emphasize aggressive enforcement
of environmental regulations at Federal facilities, particularly Resource Conservation and Recovery
Act requirements under the Federal Facility Compliance Act. In FY 1995, EPA issued 12 Consent
Agreements and Final Orders under Resource Conservation and Recovery Act §3008. The types
of violations addressed under these actions ranged from illegal transport of hazardous waste and
improper waste management to inadequate waste characterization and various procedural/
administrative errors. Total penalties associated with these actions amounted to nearly $360,000,
with an additional $1.5 million worth of supplemental environmental projects. During FY 1995, EPA
also issued a total of six Resource Conservation and Recovery Act §3008 Complaints and Orders
with opportunities for hearings. Total potential penalties associated with these actions exceeds
$1.1 million. During the year, EPA issued two Corrective Action Orders under Resource Conservation
and Recovery Act 3008(h) against the Air Force. Federal facilities affected by Resource
Conservation and Recovery Act Orders were located across seven EPA Regions and included
Army, Navy, and Air Force installations, as well as facilities under the oversight of Civilian Federal
Agencies (CFAs) such as the Coast Guard, U.S. Department of Agriculture, and Department of the
Interior.
The Federal Facility Compliance Act demonstrates a commitment of leadership in
government by providing an opportunity for a positive and constructive relationship with the States
and ensuring that Federal facilities live up to the same environmental standards that apply to private
facilities.
STRATEGIES FOR IMPROVING ENVIRONMENTAL MANAGEMENT AND
COMPLIANCE AT CIVILIAN FEDERAL AGENCIES
2.1 Background
One of the best examples of the direction EPA is gong in trying to improve environmental
management systems in the Federal sector is the ongoing effort to address the environmental
performance and concerns of Civilian Federal Agencies. Recent legislative and executive actions
have placed additional legal requirements and reporting responsibilities on Federal agencies and
have focused attention on their environmental performance. Despite efforts on the part of some
agencies to redefine their missions to include environmental stewardship, most Civilian Federal
Agencies are lagging considerably behind the environmental performance curve and may be
responsible for significant cleanup and compliance problems that have not yet received adequate
attention. As one example, EPA has determined that between 400 and 500 contaminated sites are
owned or operated by 16 Civilian Federal Agencies. These sites vary from major research
laboratories and illegal drug operations seized by the Drug Enforcement Agency to landfills and
mines owned by the Departments of Interior and Agriculture.
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 345
Civilian Federal Agencies often lack the infrastructure, budget, and technical expertise to
effectively manage environmental problems. Resource limitations may force many agencies into a
reactive — rather than proactive — posture on environmental compliance. Nor are Civilian Federal
Agencies closely monitored for compliance by EPA or the states. For example, although 56 percent
of the Federal facilities that EPA tracks in its database are owned or operated by civilian agencies,
in FY1994, only one third of the total number of Federal facility inspections conducted by EPA and
the states were performed at Civilian Federal Agencies facilities (380 out of 1,163). Meanwhile,
the percentage of Civilian Federal Agencies facilities among all federal facilities with Class I Resource
Conservation and Recovery Act violations increased from 13 to 24 percent between FY 1993 and
FY1994.
At the heart of the problem is the failure of many smaller Federal agencies to embody
environmental compliance in systems that get their employees' attention, such as management
commitment, reward systems, or personnel performance evaluation criteria. As a result, when
hazardous waste contamination or violations of environmental statutes do occur, these agencies
are more likely to produce an inappropriate response to the problem. This in turn compromises the
personal liability of the agency's employees and the compliance status of the agency and its facilities,
and increases the potential for third party impairment or loss and associated legal complaints.
2.2 Findings
A1993 survey conducted by the Task Force received responses from 27 Civilian Federal
Agencies, confirming these problems:
• Over 80% of the Civilian Federal Agencies reported that they have no formal
compliance training program at either the regional or installation level for
employees charged with ensuring agency compliance.
• Implementation of pollution prevention strategies as part of the agency's
mission.
• Only 22% of the agencies reported having a formal award system that
encourages environmental compliance among agency employees.
• Only 40% of the Civilian Federal Agencies have conducted a third-party
assessment of the effectiveness of their agency's environmental management
program in reducing violations and risks.
• 50% of respondents have not identified environmental liabilities from past
operations or are only now in the process of developing a plan to do so.
• 50% of the agencies reported that they do not perform risk evaluations of
environmental cleanup contractors prior to award, or that they did not know of
such evaluations.
• Only one agency reported having an agency-wide system or database to ensure
that proper records (e.g., waste manifests, biennial reports, permit status,
etc.) are maintained and updated.
2.3 Goals
As part of the development of a strategy to improve Civilian Federal Agencies
environmental performance, the Civilian Federal Agencies Task Force articulated the following
overarching goals of this effort:
-------
346 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• Assist Civilian Federal Agencies environmental compliance and management
programs in evolving to higher levels of performance by providing accelerated
access to resources.
• Improve communications between EPA headquarters, EPA regions, federal
agencies and facilities.
• Give federal agencies that have more experience and expertise (i.e., the
Department of Defense and the Department of Energy) the opportunity to
demonstrate leadership by sharing information and helping other agencies
resolve environmental problems.
• Provide EPA with an opportunity to improve federal agency environmental
management and compliance performance through technical assistance,
compliance assistance, and outreach.
2.4 Needs and recommendations
The Civilian Federal Agencies Task Force identified the following six areas of highest
need for improving Civilian Federal Agencies environmental program management:
2.4.1 Environmental management training
Inadequate training and a shortage of on-board expertise in environmental management
are key impediments to compliance. What training programs do exist are not well publicized and
are frequently inadequate or duplicative across federal agencies.
2.4.2 Information resources
Regulatory requirements are voluminous and subject to change. Many Civilian Federal
Agencies have difficulty finding timely and reliable sources of information on new and proposed
regulations and on innovative technologies and management strategies.
2.4.3 Compliance monitoring
Most Civilian Federal Agencies lack a centralized data management system that alerts
agency headquarters personnel to changes in facility compliance status, regulatory violations, and
pending enforcement actions.
2.4.4 EPA assistance on specific compliance issues
Smaller agencies would benefit from tapping EPA's environmental management expertise
to develop internal compliance programs, pollution prevention strategies, environmental auditing,
and other policies.
2.4.5 Sufficient staffing
Most smaller agencies have a limited number of experienced technical staff. Greater in-
house expertise is needed in hazardous material/waste management, pollution prevention technology,
and environmental engineering as well as actual experience in hazardous waste site remediation.
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 347
2.4.6 Communications
Many Civilian Federal Agencies encounter a confusing lack of consistency on regulatory
requirements between EPA headquarters and regional offices. A lack of understanding of each
other's organizational structures, budgeting processes, and current priorities is a problem for both
Civilian Federal Agencies and EPA.
2.5 Conclusions and future directions
EPA will strive to develop a consensus with Task Force members on the most effective
ways to implement these and other recommendations. EPA will offer continued technical assistance
to foster improvement in Civilian Federal Agencies compliance programs, building on the success
of recent initiatives to establish permanent networks and databases to promote compliance and
environmental excellence at smaller federal agencies. More broadly, EPA recognizes the unique
environmental management concerns faced by smaller-sized federal agencies and will seek to
ensure that these concerns are reflected in the development of national strategies, enforcement
policies, and outreach initiatives conducted by Federal Facilities Enforcement Office.
These efforts represent a first, albeit significant, step in forming lasting partnerships among
federal agencies. Another important collaborative effort will be the development of the Federal
Government Environmental Challenge Program mandated under Executive Order 12856. The
Environmental Challenge Program will provide a vision to federal agencies to go beyond compliance
with the law by developing state-of-the art environmental management programs and implementing
pollution prevention concepts into all aspects of their operations.
Both management and staff level employees at federal agencies are continually "on the
line" making decisions that affect an agency's compliance status. An environmental management
program that is purely reactive to regulations and environmental practices will be a serious handicap
for a federal agency in the years ahead. Civilian federal agencies represent a tremendous potential
for environmental excellence and a proactive approach to environmental management. With
coordination and effective exchange of information, the resources and talents of federal agencies
can be marshaled to provide a source of leadership in environmental management.
3 MULTI-MEDIA ENFORCEMENT AND COMPLIANCE AT FEDERAL
FACILITIES
EPA established the Federal Facility Multi-media Enforcement/Compliance Initiative
(FMECI) as an Agency priority for FY 1993 and FY 1994 in recognition of the fact that Federal
facilities are highly visible and have a mandate and commitment to address environmental problems
in the Federal sector. Traditionally, however, Federal facilities have demonstrated lower rates of
compliance with environmental laws than have private sector facilities.
3.1 Background
The Federal Facility Multi Media Enforcement/Compliance Initiative was a national initiative
designed to assess compliance of Federal facilities with environmental laws using multi-media
inspections and enforcement to address areas of non-compliance. The initiative consisted of a
series of coordinated multi-media team inspections conducted by all ten EPA Regional Offices, in
concert with appropriate State officials, at highest risk Federal facilities throughout the nation. An
Interim National Report on the results of the Federal Facility Multi Media Enforcement/Compliance
Initiative, based on FY 1993 data, was published in November of 1994 (EPA 300-R-94-007).
-------
348 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3.2 Objectives
In the past few years, EPA and Federal facilities have stepped up efforts to ensure that
environmental compliance is thorough, expedient, and just. Pursuant to those goals, and underscored
by the Federal Facilities Compliance Act of 1992, the Federal Facility Multi Media Enforcement/
Compliance Initiative seeks to:
• Foster improved Federal agency compliance with environmental laws and
regulations.
• Help reduce environmental risks posed by Federal facilities by increasing the
use of multi-media inspections.
• Achieve efficient use of enforcement authorities by consolidating efforts.
• Expand the application of pollution prevention measures so that facilities can
exceed baseline compliance.
The next section explains EPA's approach to the design and implementation of the Federal
Facility Multi Media Enforcement/Compliance Initiative.
3.3 Guidance/targeting criteria
EPA Regions performed their field activities in accordance with the FY1993-1994 Federal
Facility Multi Media Enforcement/Compliance Initiative Implementation Guidance Document
prepared by the Federal Facilities Enforcement Office (FFEO) of the Office of Enforcement and
Compliance Assurance (OECA). The guidance specified that each Region conduct at least two
multi-media inspections during each year of the Federal Facility Multi Media Enforcement/
Compliance Initiative. The guidance also provided a set of criteria for the Regions to use in targeting
inspections of Federal facilities. The criteria were designed to be adjusted by the Regions to account
for Region-specific factors. These criteria include:
• compliance history;
• regional risk ranking (including NEIC ranking or other identified impacts to
human health and the environment);
• other national, regional, or state environmental priorities/initiatives;
• environmental justice; and
• opportunities for pollution prevention.
Once the facilities are selected, the EPA Regional Federal Facility Coordinator, inspectors
from EPA, and State media-specific environmental protection programs form teams and conduct
the inspections. The team concept is designed so that facilities can:
• comprehensively evaluate environmental management and compliance
performance;
• take advantage of combined expertise to identify pollutants that affect various
environmental media; and
• identify pollution prevention opportunities.
In designing the Federal Facility Multi Media Enforcement Compliance Initiative, the
Federal Facilities Enforcement Office consulted with EPA Regions, EPA Headquarters Program
Offices, and State organizations. EPA issued inter-agency communication to other Federal agencies
to launch the initiative, which produced tools and achieved effects consistent with Federal Facility
Multi Media Enforcement/Compliance Initiative goals.
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 349
FMECI National Hic/klignts
* EPA Regional Offices
Multi-Media Inspections Cond
3.4 Federal Facility Multi-media Enforcement/Compliance Initiative Inspections
EPA conducted 73 multi-media compliance inspections during the Federal Facilities Multi-
media Enforcement/Compliance Initiative (FMECI); 41 in FY1993 and 32 in FY1994. The number
of inspections conducted ranged from three in Region V to 21 in Region IV. Most Regions conducted
fewer inspections during the second year of the initiative, although Region IX increased its inspection
activity from two in FY 1993 to five in FY 1994. Three other Regions (I, VII, and X) conducted the
same number in both years. All Regions, except Region V, conducted an average of at least two
inspections per year. Inspections were conducted in 35 States, two Territories, and the District of
Columbia.
The Department of Defense (DOD) operates 61 of 73, or more than 83 percent, of the
facilities examined during the Federal Facility Multi Media Enforcement/Compliance Initiative. The
inspected DOD facilities include 21 Air Force, 17 Navy, and 23 Army installations. The remaining
12 inspected facilities include two Department of Energy laboratories and 10 Civilian Federal
Agency (Civilian Federal Agencies) facilities (three NASA space flight centers, two Department of
Agriculture research facilities, two Coast Guard installations, a Department of Justice penitentiary,
and a Veterans Administration medical center). In addition, as requested by President Clinton in
his Earth Day 1993 address, inspectors conducted a multi-media audit of the White House and
Old Executive Office Building (referred to herein as the White House Complex).
-------
350 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Exhibit 1 presents inspected facilities by agency category (i.e., Defense, Civilian Federal
Agencies, and the Department of Energy and branch of the military service.
Inspected Facilities by Agency Category and Branch
All Facilities
DOD Facilities
DOE
(2.7%)
CFAa10
(13.7%)
DOD 61
(83.6%)
Army 23
(37.7%)
Navy 17
avy IJ.—
(27.8%)
N - 73 Facilitie
Air Force 21
(34.4%)
N = 61 Facilities
3.4.1 The majority of inspections occurred at Defense facilities.
EPA Regions classified most inspected facilities as medium-sized (62 percent) or large
(34 percent), with the remainder (4 percent) being classified as small. Between FY 1993 and FY
1994, the percentage of medium-sized and small facilities increased slightly, while the share of
large facilities declined by approximately five percent.
The intensity and level of resources devoted to the inspections varied somewhat across
Regions and facilities; however, all inspections conducted under the Federal Facility Multi Media
Enforcement/Compliance Initiative were either Category C or D. Overall, the Regions conducted
slightly more Category D than Category C inspections, 39 and 34, respectively. Between the first
and second years of the Federal Facility Multi Media Enforcement/Compliance Initiative, the number
of Category D inspections increased slightly relative to the number of Category C inspections (in
FY 1993, there were 21 Category D inspections and 20 Category C inspections).
Large facilities were slightly more likely to receive the more resource-intensive Category
D inspections, while medium-sized facilities were subjected to nearly the same number of Category
C and D inspections.
3.4.2 EPA and the States conducted slightly more Category D than Category C
inspections
Exhibit 2 presents a breakdown of multi-media inspection leads? States assumed a lead
role on 23 percent (17 of 73) of inspections conducted under the Federal Facility Multi Media
Enforcement/Compliance Initiative. EPA-only inspections accounted for 18 percent (13 of 73),
while EPA-led inspections, which include Regional and National Enforcement Investigation Center
(NEIC)-led efforts, accounted for 59 percent (43 of 73).
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 351
Exhibit 2.
FMECI Inspection Leads
EPA-Led Inspections 4
(58.9%)
N = 73 Facilities
State-Led Inspections 17
(23.3%)
EPA-Only Inspections 13
(17.8%)
3.4.3 States played an active role in multi-media inspections
The level of State participation on inspection teams declined slightly between the first and
second years of the Federal Facility Multi Media Enforcement/Compliance Initiative. In FY 1993,
States participated in 88 percent (36 of 41) of inspections and acted as lead on 34 percent (14 of
41). During FY 1994, the State participation rate decreased to 75 percent (24 of 32) and State-led
inspections dropped to only nine percent (3 of 32). For both years of the Federal Facility Multi
Media Enforcement/Compliance Initiative, States participated in 82 percent (60 of 73) of the
inspections and acted as lead on 23 percent (17 of 73).
3.5 Federal facility multi-media enforcement/compliance initiative enforcement
actions
Inspection teams identified 115 violations warranting enforcement actions during the
Federal Facility Multi Media Enforcement/Compliance Initiative. As of the publication of this Report,
there are six additional enforcement actions pending. The issued enforcement actions consisted
of:
• warning letters;
• notices of violation (NOV);
• notices of noncompliance (NON);
• field citations;
• administrative orders; and
• federal facility compliance agreements.
-------
352 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The level of enforcement activity declined substantially between the first and second year
of the Federal Facility Multi Media Enforcement/Compliance Initiative. In FY 1993, Regions and
States issued 77 enforcement actions; in FY 1994, the figure was only 38, a decrease of almost 51
percent. Moreover, this decline cannot be entirely attributed to a reduction in the number of multi-
media inspections. The number of enforcement actions per inspection decreased from 1.9 in FY
1993 to 1.2 in FY 1994.
Of the enforcement actions issued as a result of the Federal Facility Multi Media
Enforcement/Compliance Initiative, 46 (40 percent) addressed Resource Conservation and
Recovery Act violations. As can be seen in Exhibit 3 below, the four most frequently violated statutes
warranting enforcement action (Resource Conservation and Recovery Act, Clean Air Act, Toxic
Substance Control Act, and Clean Water Act) accounted for more than 84 percent of all such
violations.
Exhibits.
Enforcement Actions Taken According to Statute/Program
RCRA46
(40.0%
N = 115 Enforcement Actions
SDWA4
(3.5%)
ST4
(3.5%)
_ _ __ ;PCC 7
(1.7%)
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 353
3.5.1 A total of 115 enforcement actions were taken under nine different statutes
The distribution of enforcement actions by statute is essentially the same for medium-
sized and large facilities?0 Navy, Army, and Air Force facilities had similar violation rates across
statutes, although as a group they tended to receive more enforcement actions for Clean Air Act
violations. Accordingly, Civilian Federal Agencies received Resource Conservation and Recovery
Act, Toxic Substances Control Act, and Clean Water Act violations in the same relative proportions
as the rest of the inspected facilities; however, they were not cited for any Clean Air Act violations.
Exhibit 4 presents enforcement actions according to agency category and branch of military
service. Defense facilities accounted for the vast majority of the violations warranting enforcement
actions during the Federal Facility Multi Media Enforcement/Compliance Initiative. In addition, the
distribution of enforcement actions by agency category was fairly consistent with the distribution of
inspections (see Exhibit 1); Department of Defense, Department of Energy, and Civilian Federal
Agencies facilities received 88.7, 1.7, and 9.6 percent, respectively, of enforcement actions
compared to 83.6, 2.7, and 13.7 percent, respectively, of multi-media inspections. Comparing
these two exhibits also reveals that Army installations received a somewhat disproportionate share
of enforcement actions relative to the other branches of the military; Army installations accounted
for 37.7 percent of inspected Defense facilities, yet they received 47.1 percent of enforcement
actions at Defense facilities. Air Force facilities received 34.4 percent of the inspections and 23.5
percent of enforcement actions, while Navy facilities received 27.8 percent of inspections and 29.4
percent of enforcement actions.
Exhibit 4.
Enforcement Actions by Agency Category ana Branch
All Facilities
DOD Facilities
DOD102
(88.7%)
Army
(47.1%)
CFA11
(9.6%)
Air Force 24
(23.5%)
Navy 30
N = 115 Enforcement Actions
NavydU
(29-4%)
N = 102 Enforcement Actions
-------
354 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3.5.2 Defense facilities received the majority of enforcement actions
Exhibit 5 provides additional detail on the specific types of enforcement actions taken to
address violations of environmental statutes. Notice of Violations (NOV) were the most frequently
issued enforcement action, accounting for almost 36 percent of the total. Administrative Orders
and Warning Letters each comprised 23 percent of all enforcement actions.
Among the four most frequently violated statutes, NOVs comprised anywhere from 21
percent (Toxic Substances Control Act-TSCA) to 46 percent (Resource Conservation and Recovery
Act) of actions issued under each statute. In percentage terms, Administrative Orders were most
frequently issued under Resource Conservation and Recovery Act, while Warning Letters were
most commonly issued under Safe Drinking Water Act and Clean Air Act. Notices of Noncompliance
(NONs) accounted for two-thirds of toxic substance enforcement actions and Toxic Substances
Control Act (TSCA ) Notices of Noncompliance accounted for nearly 90 percent of all Notices
issued during the Federal Facility Multi Media Enforcement/Compliance Initiative. It should be noted
that the authority to issue all of these various enforcement actions does not exist under every
environmental statute.
Between FY 1993 and FY 1994, there were no significant changes in the distribution of
enforcement actions — Notice of Violations (NOVs), Administrative Orders, Warning Letters, and
Notices of Noncompliance (NONs,) respectively, were the four most commonly issued enforcement
actions.
Exhibit 5. Type of Enforcement Actions by Statute/Program Violated
Enforcement Action
Warning Letter
NOV
NON
Administrative Order
Field Citation
FFCA
TOTAL
Rtsou
rce
Coast
rvatlo
nand
Recov
fry
Act
7
21
0
IS
0
0
46
CWA
4
5
1
3
0
1
14
CAA
7
7
0
4
0
0
18
TSCA
0
4
13
1
0
1
19
F1FRA
0
1
0
0
1
0
2
SPCC
3
2
0
0
0
2
7
UST
1
1
0
1
1
0
4
EPCRA
0
0
1
0
0
0
1
SDWA
4
0
0
0
0
0
4
TOTAL
26
41
- 15
27
2
4
115
3.5.3 Notices of Violations (NOVs) accounted for more than one-third of
enforcement actions under the Federal Facility Multi-media Enforcement/
Compliance Iniative
In all, EPA and States issued enforcement actions at approximately 73 percent (53 of 73)
of the facilities they inspected. Region II issued the most actions, handing down 27 among seven
facilities, with Region IV a close second at 26 actions. Region VII issued the fewest enforcement
actions (three actions at four facilities).
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 355
3.5.4 On average, one multi-media inspection resulted in 1.6 enforcement
On a per inspection basis, Region II was the most active, issuing 27 enforcement actions
against only seven facilities — an average of 3.9 violations per inspected facility. Regions VII and
IX had the lowest averages, issuing 0.8 and 0.9 actions per inspected facility, respectively. Nationally,
the average number of enforcement actions taken to address violations detected during a multi-
media inspection was 1.6.
Exhibit 6 compares the number of facilities at which enforcement actions were taken to
the total number of inspected facilities. Of the 73 facilities inspected, 27 percent (21 of 73) were not
subjected to any enforcement actions and an additional 27 percent (21 of 73)received only one
enforcement action. The remaining 44 percent (32 of 73) of inspected facilities were cited for
violations of multiple environmental statutes. Among the inspected facilities receiving enforcement
Exhibits.
Percent of Inspected Facilities Receiving Enforcement Actions
One statute violated
(21 facilities - 28.8%)
^BRdRiKilytililiV ^^XXXXXXXX^XXXXXi.
No statutes violated
(20 facilities -21'A
Four or mote statutes violated ^V^HBB BliilBii^^ -y .. , , -1.1
(7 facilities-9.6%) ^Hii B^8*^ Two statutes violated
' , /, (19 facilities - 26.0%)
Tnree statutes vi
(6 facilities - I
N = 73 Inspected facilities
actions under the Federal Facility Multi Media Enforcement/Compliance Initiative, the median
number of environmental statutes violated was two. Thus, the majority of Federal facilities cited for
violations violated multiple statutes.
3.5.5 More than 40 percent of all inspected facilities violated multiple statutes
The type of enforcement actions taken and proposed or final penalties associated with
EPA- and State-issued Administrative Orders and Field Citations may vary in each jurisdiction.
Federal facilities located in seven of 10 EPA Regions were subject to enforcement actions in which
EPA and/or States proposed penalties. As of September 30,1995, the total amount of proposed
-------
356 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
penalties was more than $3.8 million. Final penalties issued were substantially lower — slightly
less than $575,000; however, proposed penalties of almost three million remain under review in
four Regions.
In addition to participating on the inspection teams, States actively enforced requirements
under the Federal Facility Multi Media Enforcement/Compliance Initiative. Of the 115 enforcement
actions taken, States led 35 (30 percent). The level of State involvement in the enforcement phase
of the Federal Facility Multi Media Enforcement/Compliance Initiative declined substantially from
FY 1993 to FY 1994. In FY 1993, States took the lead on 35 percent (27 of 77) of enforcement
actions, while in FY 1994, the State share was only 21 percent (8 of 38). In addition, the U.S. Army
Corps of Engineers took the lead on a single enforcement action to address wetlands violations
under the Clean Water Act at Aberdeen Proving Ground in Maryland. Exhibits 1 -13 and 1 -14 show
how these State actions during the Federal Facility Multi Media Enforcement/Compliance Initiative
were distributed among the various types of actions.
3.5.6 Regions led nearly two-thirds of all enforcement actions: States led 30
The average time required to initiate an enforcement action following a multi-media
inspection ranged from less than two weeks to nearly fourteen months. In general, enforcement
actions initiated and issued simultaneously (e.g., notices, warning letters) took less time to issue
than did actions that involve a period of negotiation or opportunity for public comment between their
initiation and issuance (e.g., Administrative Orders, Federal Facility Compliance Act - FFCAs).
3.5.7 Most enforcement actions were issued within one year of the inspection
For those Regions reporting, the average time elapsed from inspection to report completion
declined from approximately 5.1 months during FY 1993 to 3.7 months during FY 1994; thus, the
average time required for the two-year period was approximately 4.6 months. Several Regions
noted that multi-media inspections were resource intensive; however, only two Regions specifically
observed that the time required to prepare the multi-media inspection reports may have delayed
the issuance of enforcement actions.
Multi-media enforcement actions involve using a single enforcement action to collectively
address violations under multiple environmental statutes. Most Regions did not actively pursue
multi-media enforcement actions. Four Regions indicated that they had explored multi-media
enforcement opportunities at inspected facilities, and only two Regions (II and V) issued enforcement
actions addressing violations of multiple statutes. Regions cited the following reasons for the lack
of substantial multi-media enforcement coordination:
• The discovered violations were straightforward, single-program violations.
• Parties who were encouraged to take multi-media enforcement actions saw
no benefit that would off-set the extra time required to coordinate such an
effort.
• Coordination was difficult because of varying levels of enforcement authorities
and the lack of substantial violations.
3.6 Pollution prevention results from enforcement
Some Regions actively pursued pollution prevention remedies as an enforcement tool
during the Federal Facility Multi Media Enforcement/Compliance Initiative, but most noted the
importance of pollution prevention and the expectation that it would become more prominent in the
future. Federal facilities in five Regions have either implemented pollution prevention Supplemental
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 357
Environmental Projects (SEPs) oral least explored their feasibility. In addition, three of these five
Regions have included pollution prevention remedies and conditions into enforcement settlements.
For example, Region I incorporated two separate pollution prevention remedies into settlements
with the U.S. Coast Guard Boston Support Center. The remedies involved replacing two underground
storage tanks (UST) with a single above ground dual compartment tank and construction of a new
container storage area. The Region also successfully included Supplemental Environmental Projects
as part of its enforcement settlement with the U.S. Army Natick Research Center. Similarly, Region
IV required Air Force Plant #6 to submit a pollution prevention action plan, setting forth actions and
dates for reduction of pollutants, as part of an enforcement action.
Several other Regions reported pursuing less formal pollution prevention strategies at
inspected facilities. At least two Regions made specific pollution prevention recommendations
that were later adopted by facilities, while another Region noted that immediately following a multi-
media inspection, the facility initiated several pollution prevention measures. In FY1993, six Regions
provided Pollution Prevention Opportunity Profiles to facilities at the time of the inspections. During
FY 1994, most Regions elected not to distribute the Profiles, citing their lack of up-to-date information.
The Profiles identify processes, measures, operation and maintenance functions, and technologies
that facilities can explore to prevent the creation or release of pollutants during facility activities.
FFEO compiles the Profiles using a hybrid approach that combines facility mission and facility
specific environmental data. Annex I contains a sample Profile.
3.7 Regional/state coordination
The level of Regional/State coordination shown by the Regions and States throughout the
Federal Facility Multi Media Enforcement/Compliance Initiative was significant. Regions reported
interaction levels between Regional and State offices as more intensive during the inspection and
enforcement phases of the Federal Facility Multi Media Enforcement/Compliance Initiative than
during the targeting phase.
3.7.1 Regions need a fairly high level of involvement by States in Federal Facility
Multi Media Enforcement/Compliance Initiative (FMECI) activities.
particularly during the inspection and enforcement phases
Three Regions reported that no interaction occurred during the targeting of facilities; three
reported a moderate level of interaction; and two reported a significant level. One Region noted a
moderate-to-significant level of interaction during the targeting stage.
Five Regions reported significant coordination levels between EPA and States during the
inspection stage, and three Regions described interaction during that stage as moderate. During
enforcement, six Regions noted significant levels of interaction, two reported moderate levels of
coordination, and one Region indicated that the level of interaction was not applicable.
States led enforcement efforts in approximately 30 percent (35 of 115) of enforcement
actions. State actions most frequently consisted of Warning Letters, Notices of Violations, and
Administrative Orders. Regions and the States exercised joint lead in four enforcement actions, an
Notice of Violations in one Region and three Resource Conservation and Recovery Act §3008(a)
Orders in another. Three Regions reported that State Enforcement Agreements (SEAs) enhanced
States' ability to participate in Federal Facility Multi Media Enforcement/Compliance Initiative. The
remaining Regions either did not report, or stated that State Enforcement Agreements did not
affect State participation. One Region described the Agreement as providing a framework for joint
inspections which facilitated coordination between Regional and State program staff. Another
Region stated that the Agreements are beginning to include the multi-media enforcement concept.
In contrast, another Region stated that it has not used the Agreement for many years.
-------
358 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Nine Regions reported benefits to State and Regional involvement, citing most frequently:
enhanced communication; training opportunities; mutual understanding; cooperation; and sharing
of data and technical assistance. The Regions reported other benefits including: thorough
inspections; State familiarity with facilities as assisting Regions with inspections; joint assessment
of compliance problems; improvement of State relationships; and opportunities for joint partnerships.
The Regions also reported several obstacles to Regional and State coordination. Two
Regions named scheduling as a primary obstacle. Other obstacles included difficulty in identifying
appropriate participants; the need to meet security and access requirements; extra time required
for State enforcement decisions; difficulty in agreeing to "lead" responsibilities for delegated
programs; and different inspection protocols (e.g., announced vs. unannounced inspections).
Seven of the Regions responding indicated that the Federal Facility Multi Media
Enforcement/Compliance Initiative had no negative ramifications for Region/State relations. Of
the two Regions that perceived problems, one cited different enforcement philosophies within EPA
and the States. As an illustration, this Region referred to one State agency issuing a penalty to a
facility, while another State agency issued a relatively mild enforcement action for a comparable
violation at a different facility. Another Region noted that States do not perceive added value from
multi-media inspections. According to this Region, the States would rather refer inspections to
other program offices. The Region also stated that multi-media considerations delay enforcement
actions. Exhibit 7 summarizes these benefits and barriers.
Between FY1993 and FY1994, the relationship between the States and several Regions
improved. Enhanced communication, inspection coordination, and enforcement action involvement
between Regions and States were reported by at least three Regions. Three other Regions reported
no change in the Regional/State relationships. No Regions noted any deterioration with respect to
any phase of the multi-media inspection/enforcement process.
3.8 Overall impact of multi-media inspections
Six of nine Regions responding stated that the Federal Facility Multi Media Enforcement/
Compliance Initiative resulted in increased interest in using multi-media inspections, although one
Region commented that it could allocate necessary resources for only a small number of inspections.
The Regions viewed the inspections as an effective enforcement tool that expands the knowledge
of inspectors.
Exhibit 7. Benefits/Barriers to Multi-media Inspection
Benefits
Encourages upper level management to focus on environmental compliance
matters
Provides comprehensive compliance examination of facilities
Allows determination of strengths and weaknesses of facility environmental
programs
Allows identification of technical needs of facilities
Provides Regions and States an opportunity to exchange information
Barriers
. Limited travel funds
. Multi-media inspections can be time-consuming and require extensive resource,
logistical, and decision-making coordination
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 359
Relative to conventional single-media inspections, two Regions reported that multi-media
inspections are more efficient, however, two other Regions noted just the opposite. The principal
benefits and barriers associated with a multi-media inspection approach, as reported by the
Regions, are presented in Exhibit 7.
Overall, the Regions perceived facilities involved in multi-media inspections to be
professional, cooperative, and positive in responding to the Federal Facility Multi Media Enforcement/
Compliance Initiative. Regions also noted that facility environmental staff often welcomed the
inspections because the attention inspections brought to environmental management reinforced
the importance of their efforts. Three Regions mentioned the effectiveness of the Federal Facility
Multi Media Enforcement/Compliance Initiative in involving upper management staff at facilities
and one Region noted the responsiveness of base commanders, stating that commanders frequently
will send follow-up letters outlining the corrections made as a result of inspections.
Regions also described some of their concerns that arose during the implementation of
the Federal Facility Multi Media Enforcement/Compliance Initiative. These ranged from potential
difficulties incorporating multi-media inspections as a standard Regional program element once
the Federal Facility Multi Media Enforcement/Compliance Initiative concludes, to concerns on the
part of facility personnel about criminal liability associated with environmental violations discovered
during inspections, and the effect these concerns could have on facility participation.
3.9 Summary
EPA's experience during the Federal Facility Multi Media Enforcement/Compliance
Initiative reveals some of the immense potential benefits associated with multi-media inspections.
Fully implemented, the multi-media approach can lead to significant improvements in environmental
compliance at Federal facilities. Specifically, the Federal Facility Multi Media Enforcement/
Compliance Initiative demonstrates the following:
• The 73 Federal Facility Multi Media Enforcement/Compliance Initiative
inspections represent a significant investment in the Federal facility sector by
EPA Regions and participating States.
• EPA and States issued 115 enforcement actions for violations under nine
separate environmental statutes. Enforcement actions taken were appropriate
to the significance of or level of non-compliance encountered at facilities.
• Nearly 45 percent of all inspected Federal facilities violated multiple statutes.
Of the Federal facilities receiving enforcement actions, 62 percent violated
more than one statute.
• EPA documented significant levels of and benefits from State involvement in
the Federal Facility Multi Media Enforcement/Compliance Initiative.
• EPA's procedures and approach to conducting multi-media inspections can
be effective, regardless of the size or operating agency of the facilities involved.
-------
360 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• Seven out of ten Regions proposed a total of more than $3.8 million in
penalties.
• EPA and States began to encourage facilities to adopt Pollution Prevention
strategies as first choice measures to return to and maintain compliance.
4 INTEGRATING POLLUTION PREVENTION INTO COMPLIANCE
PROGRAMS
4.1 Background
On August 3, 1993, President Clinton signed Executive Order 12856, entitled "Federal
Compliance with Right-To-Know Laws and Pollution Prevention Requirements." This Order requires
that federal agencies comply with the Emergency Planning and Community Right-to-Know Act of
1986 (EPCRA) and Pollution Prevention Act of 1990. Moreover, the Order sets a new standard for
federal environmental excellence by extending this compliance requirement to many activities not
currently monitored in private industry. In requiring compliance with the Act of 1986, the Executive
Order reaffirms and strengthens the Federal Government's obligation as a responsible neighbor in
communities where Federal facilities are located.
In addition to community right-to-know requirements, Executive Order 12856 also
establishes the Administration's vision for federal government leadership in pollution prevention.
The Order directs that federal agencies and facilities take steps to embrace pollution prevention as
a government-wide ethic in the day-to-day management of federal facilities and sets ambitious
goals for reducing or eliminating the release of toxic and hazardous pollutants from federal facilities
into our Nation's environment. Moreover, the Order supports these goals by committing the federal
community to modify acquisition and procurement practices by adopting pollution prevention as
standard practice for government purchase of goods and services. Finally, the Order supports the
continuing federal commitment to work with the private sector in the development, testing and
implementation of innovative pollution prevention technologies.
To ensure that federal agencies and facilities fulfill the provisions of Executive Order 12856,
the Order directs that all Federal agencies with "covered facilities" * develop a strategy for
implementation of the Executive Order. Sixteen federal agencies have prepared pollution prevention
strategies that will direct implementation of the Executive Order at more than two thousand covered
federal facilities.
4.2 Executive Order reporting requirements
As previously stated, Executive Order 12856 establishes a requirement for Federal facility
compliance with the Emergency Planning and Community Right-to-Know Act (EPCRA) and its
various reporting requirements. For compliance with section 301 through 312 of this Act, the
Executive Order calls for a reporting schedule similar to that set up for initial industry compliance
and mirrors private sector time frames for annual reporting. The time frame for Federal facility
reporting under section 313 of the Act also coincides with the reporting schedule established for
private industry with the first reports due to be submitted by July 1,1995. As previously noted, the
Order applies the reporting requirements of the Act to federal facilities more broadly than current
application in private sector industries. A discussion of applicable reporting requirements of this
Act is provided below.
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 361
4.3 Emergency planning and response
Emergency Planning and Community Right-to-Know Act (EPCRA) SECTIONS 302 AND
303: Pursuant to section 3-305 of the Executive Order, federal facilities must comply with section
302 and 303 by providing the State Emergency Response Commissions (SERC) and Local
Emergency Planning Committees (LEPC) information necessary for planning community response
to rare but potentially catastrophic events such as the release of hazardous chemicals during a
facility accident.
SECTION 304: To provide for public notification of emergency releases of chemicals
potentially harmful to the community, the Executive Order states that, effective January 1,1994,
Federal agencies are subject to the reporting requirements of section 304.
SECTIONS 311 and 312: To enhance community awareness of chemical hazards and
provide information about the identity and amount of chemicals including storage conditions and
locations, the Executive Order requires Federal facility compliance with sections 311 and 312.
SECTION 313: and 313 establishes a nationwide inventory of toxic chemical releases to
all environmental media and provides affected communities and states with information about
chemical releases into the community. While section 313 has been applicable to the private sector
since 1987, the Executive Order now requires that federal facilities comply with the requirements of
this section. Moreover, in directing federal facility compliance with this section, the Executive Order
also removes qualifications which limit compliance by private industry primarily to facilities engaged
in manufacturing. Federal facilities which meet applicable thresholds must submit section 313 and
Pollution Prevention Act data on EPA Toxic Chemical Release Inventory Reporting Form R beginning
with calendar year 1994 with the first submission due to EPA and the states on July 1,1995.
4.3.1 Agency strategy highlights
Prior to the Executive Order, the Department of Energy voluntarily complied with Section
313 of the Act at several of its facilities beginning in calendar year 1993. This leadership initiative
provided a better understanding of the nature of toxic chemical releases from Federal facilities and
provided an incentive to Department of Energy reporting facilities to attain many of the goals of the
Executive Order before section 313 was applicable to federal agencies.
4.4 Executive Order pollution prevention goals
To underscore the federal government's commitment to environmental leadership, the
Executive Order directs that each Federal agency develop voluntary goals to reduce the agency's
total releases and transfers of toxic chemicals by 50 percent by the end of calendar year 1999. The
Executive Order establishes 1994 as the baseline year against which progress toward the agency-
wide goal is measured and emphasizes that reductions should be achieved through source reduction
practices. The Executive Order also allows agencies to expand the chemicals covered under the
reduction goal to include other toxic pollutants in addition to chemicals identified as toxic chemicals
under section 313.
A majority of federal agency pollution prevention strategies explicitly commit to the goal of
a 50 percent reduction in the release and transfer of toxic chemicals from their facilities by the end
of 1999. Further, many agency strategies endorse source reduction activities as the alternative of
choice for facility pollution prevention improvements.
-------
362 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4.5 Facility specific pollution prevention plans
The Executive Order directs that the head of each agency will ensure that its covered
facilities develop a written pollution plan that sets forth the facility's contribution toward the agency
50 percent reduction goal. Facilities which do not report under section 313, and are therefore not
likely to be included in the agency's baseline but are nevertheless "covered facilities" under the
Executive Order, are also required to prepare pollution prevention plans. Covered facilities are
defined in the Executive Order to include any Federal facility which meets one or more of the
threshold requirements for reporting set forth in sections 302, 303, 304, 311, 312 or 313. The
inventory of facilities covered under the Order encompasses nearly two thousand facilities from
fifteen different federal agencies and includes more than twelve hundred civilian facilities. The
plans that result from this requirement will assist federal facilities in assessing pollution prevention
opportunities and will serve as a mechanism for ensuring facility management decisions fully consider
and implement pollution prevention directives embodied in agency strategies. EPA has prepared
a document entitled Federal Facility Pollution Prevention Planning Guide, to assist agencies in
complying with this aspect of the Executive Order.
Nearly all of the federal agency pollution prevention strategy documents include an agency
commitment to ensure development of facility specific pollution prevention plans for covered facilities
and most strategies direct facilities to conduct formal facility pollution prevention opportunity
assessments to enhance the effectiveness of the plan.
4.6 Compliance through pollution prevention
The Executive Order states that the federal agency pollution prevention strategies should
reflect the federal government's commitment to utilize pollution prevention through source reduction,
where practicable, as the primary means for achieving and maintaining compliance with Federal,
State and local environmental requirements. This provision serves to ensure that where practicable,
agencies and facilities endorse and implement policies and practices which seek to prevent pollution
that results in non compliance with environmental requirements. As such, pollution prevention is the
alternative of first choice in achieving compliance with new environmental regulations or requirements,
ensuring compliance with existing regulations and requirements, and returning to compliance when
violations are identified.
Each of the federal agency strategies includes a specific commitment to pollution
prevention as the primary means of achieving and maintaining compliance with environmental
requirements.
4.7 Pollution prevention in acquisition and procurement and facility management
The Executive Order states that federal agency pollution prevention strategies must reflect
a commitment to pollution prevent through source reduction at the facility management and acquisition
level. This facility level directive ensures that consideration of pollution prevention is incorporated
into the routine of federal facility management decisions. This commitment to pollution prevention
"at the source" is a cornerstone of the Executive Order and not only prevents pollution and conserves
natural resources but also reduces wastes and creates markets for environmentally sound products
and technologies. Further, integrating pollution prevention concepts such as total cost accounting
and life cycle analysis into the acquisition and procurement process underscores the economic
benefit of pollution prevention that should be recognized as a standard component of fiscal
responsibility and proper federal facility management.
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 363
Like the endorsement of pollution prevention for achieving and maintaining compliance
with environmental requirements, all of the federal agency pollution prevention strategies contain a
commitment to pollution prevention in both facility management and acquisition.
4.8 Development, testing and support of innovative pollution prevention
technologies
Executive Order 12856 calls for federal leadership in supporting innovative pollution
prevention technologies and programs and develop strong market incentives for those programs
and technologies. The Executive Order encourages Federal agencies to develop partnerships
with other federal agencies and with other groups such as industry and academia forthe development
and implementation of pollution prevention technologies. This provision of the Executive Order
recognizes the unique role of the federal community as both a national leader in pollution prevention
research and development and the Nation's single largest consumer of goods and services.
Over half of the federal pollution prevention strategies contain specific commitments
endorsing the development, testing and support of innovative pollution prevention technologies
and programs.
4.9 Involving the public in planning and decision making
Public involvement, open communication and a general good neighbor approach from
Federal facilities are basic tenets of the Executive Order. To support these goals beyond the reporting
requirement of the Act, the Executive Order encourages Federal agencies to involve the public
during the preparation of agency strategies and plans related to the Executive Order and in monitoring
the progress toward meeting the goals established by agency strategies and plans.
The General Services Administration pollution prevention strategy commits the agency to
conduct community-wide environmental conferences highlighting compliance with the Executive
Order at their facilities, other federal facilities and private industry.
AGENCY COMMITMENTS BEYOND COMPLIANCE: While the Federal agency pollution
prevention strategies discussed in this summary were prepared in response to provisions of
Executive Order 12856, many federal agencies took the opportunity to delineate agency intentions
for compliance with other environmental Executive Orders and outline improvements in agency
and facility environmental management and policy. The summary for each agency provides a review
of the strategy elements beyond compliance with Executive Order 12856. Below are highlights of
efforts and proposals that are similar.
NATURAL RESOURCE CONSIDERATIONS: While Executive Order 12856 clearly embraces
protection of natural resources through conservation, pollution prevention activities also reduce
potential adverse environmental impacts to natural resources. Several federal agencies pledged
to further pursue natural resource protection through limiting the use of pesticides and applying
integrated pest management techniques at federal facilities.
4.10 Implementation of Executive Order 12856 — accomplishments
INTERAGENCY POLLUTION PREVENTION TASK FORCE In accordance with the
Executive Order, a Task Force has been formed to ensure appropriate and uniform implementation
of the Executive Order. The Interagency Pollution Prevention Task Force is composed of senior
level representatives from the Central Intelligence Agency, Departments of Agriculture, Defense,
Energy, Health and Human Services, Interior, Justice, Transportation, Treasury, Veterans Affairs,
Environmental Protection Agency, General Services Administration, National Aeronautics and
Space Administration, Smithsonian Institution, Tennessee Valley Authority, and US Postal Service
-------
364 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
as well as the Federal Environmental Executive Office and representation from the Office of Federal
Procurement Policy at OMB. The Task Force meets four times a year and has endorsed several
actions described below.
INTERAGENCY POLLUTION PREVENTION TASK FORCE CHARTER: Through a group
established by the Task Force, a Charter has been prepared which delineates the roles and
responsibilities of the Task Force in implementation of the Executive Order. The Charter provides
each agency an opportunity to formally recognize the goals of the Executive Order and pledge to
faithfully implement the provisions of the Order.
GUIDANCE AND IMPLEMENTATION ASSISTANCE: In coordination with other agencies
on the Interagency Task Force, EPA has prepared and released general guidance for implementation
of Executive Order 12856. Additionally, EPA has prepared assistance documents focusing on
Federal agency pollution prevention strategies and facility level plans required by the Executive
Order. In the fall of 1995, EPA will release a document designed to assist field level personnel in
addressing life cycle accounting concepts at the facility level.
ENVIRONMENTAL MANAGEMENT: EPA has prepared a draft of the "Code of
Environmental Principles," called for in section 4-405 of the Executive Order as part of the "Federal
Government Environmental Challenge Program," and has circulated that document to other agencies
for review and comment.
EFFECTIVE IMPLEMENTATION A work group established by the Task Force has
prepared a plan to address crosscutting Federal management issues which affect implementation
of the Executive Order. The work group is capitalizing on the collective knowledge and resources of
the 16 Task Force agencies to ensure a coordinated and effective effort. The Task Force has
established subcommittees composed of representatives from the various Task Force member
agencies to assist in implementation of specific aspects of the Executive Order. The following is a
list of each subcommittee:
• revising acquisition and procurement procedures;
• coordination pollution prevention research and development and technology
diffusion;
• information transfer and technical solutions;
• standardize method for data gathering for Executive Order 12856;
• outreach and showcase federal governments progress on Executive Order
12856 and pollution prevention;
• substitute chemicals and alternative processes; and
• training.
5 FUTURE DIRECTION OF ERA'S FEDERAL FACILITY ENFORCEMENT
PROGRAM AND CONCLUSIONS
EPA is committed to continually improving the performance of Federal facilities in protecting
human health and the environment, not only through traditional enforcement activities, but through
the use of innovative compliance assurance and assistance efforts. EPA's federal facilities
enforcement program has a sector orientation, uses strong enforcement combined with compliance
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 365
assistance, and promotes pollution prevention and multi-media enforcement. The Office of
Environmental Compliance Assurance's Federal Facilities Enforcement Office (FFEO) manages
a national program to ensure that Federal facilities and government-owned-contractor-operated
facilities conduct their activities in an environmentally sound manner and comply with all applicable
environmental statutes and regulations.
The Federal facilities enforcement program will emphasize these major program areas in
FY1996: environmental reinvention activities at Federal facilities; implementation of a multi-media
enforcement strategy, including targeted multi-media inspections, to improve Federal compliance
rates; work with other Federal agencies and States to assist agencies in adopting and implementing
environmental management standards in their operations, using "model facilities," as examples of
how to review and improve current practices, e.g., pollution prevention, at Federal facilities.
In FY 1996, EPA will continue to emphasize aggressive enforcement of environmental
use its authority under the 1992 Federal Facilities Compliance Act against federal facilities. The
Agency will build on our successes in calendar 1995, and build on its Federal Facility Compliance
Act efforts in regard to civilian Federal agencies (Civilian Federal Agencies), as exemplified by
four major cases in calendar 1995 involving the Agriculture Department, the Bureau of Indian Affairs,
the Bureau of Reclamation, and the Bureau of Land Management.
In FY 1996, along with our emphasis on traditional enforcement against Civilian Federal
Agencies, EPA will focus on special assistance to Civilian Federal Agencies which have less
expertise, through implementation of the new EPA Civilian Federal Agencies Environmental
Improvement Strategy and by conducting Environmental Management Reviews at Civilian Federal
Agencies facilities.
EPA will work with Federal agencies through Project XUENWEST to ease requirement
burdens for environmental compliance—reduce less significant requirements (e.g., record keeping,
labeling, etc.) and focus on those activities that achieve high-level environmental results. This initiative
is a partnership to test affirmative environmental management strategies at selected DOD facilities.
A major focus will be on near-term investments in pollution prevention approaches that reduce
compliance and clean-up costs in the long run. It is always cheaper, and cleaner, to prevent pollution
in the first instance, instead of dealing with it after-the-fact. XL/ENNVEST is an exciting opportunity
to try management alternatives at federal facilities that will seek to achieve better environmental
results at less cost to the taxpayer.
In July 1994, Administrator Browner announced the Common Sense Initiative to mark a
new approach to environmental protection at EPA. The overall goal of this Initiative is to identify and
implement cheaper, and smarter, means of pollution prevention and environmental compliance,
while ending up with a cleaner environment. The primary theme of the CSI Initiative is "Cleaner-
Cheaper-Smarter" environmental protection:
• Cleaner because EPA will require participating industries to commit to
improving their environmental performance to show real, measurable
environmental protection.
• Cheaper because EPA is committed to looking for opportunities to increase
flexibility in its regulations, compliance assurance and permitting programs.
• Smarter because cleaner, cheaper environmental management is a winning
proposition for everyone.
Six industrial sectors are participating in Phase I of the Initiative: Auto Assembly, Computers
and Electronics, Iron and Steel, Metal Plating and Finishing, Oil Refining, and Printing.
-------
366 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The Common Sense Initiative represents a commitment by all of the participants, both
from government and from the private sector. It is a commitment to do better—to write our regulations
better, to understand and comply with them better, and to better achieve real reductions in pollution,
which will benefit us all.
One way to be smarter, and cleaner, is to anticipate problems before they occur, identify
them when they do, and correct them right away. This approach makes sense for business and
government alike. After all, the most effective place to ensure compliance is at the source. EPA's
Environmental Leadership Program is working with selected private, and federal, facilities, to pilot
ways of enhancing compliance. These demonstration pilot projects will show new, and sound, ways
of self-policing - of checking the system, and fixing anything that is broken. This is truly a partnership
between the EPA and the participating facilities, to show that compliance assurance is a two-way
street.
Two federal facilities have been selected to participate in the first phase of our
Environmental Leadership Program. At the McClellan Air Force Base in California, the base will
develop and share multi-media inspection protocols which will improve environmental management
systems in both federal facilities and in industry. At the Puget Sound Naval Shipyard, they will
conduct assessments of pollution prevention opportunities. Both of these projects will help us, the
federal government, be a true leader in the field of environmental compliance and protection.
The Penalty Incentive Policy for Self-monitoring, Disclosure, and Correction, commonly
known as the "Audit Policy" allows the regulated community to take responsibility for themselves,
and make sure that they comply with the laws. The goal of the policy is simple: EPA wants to
promote responsible behavior by the regulated community. Self evaluation, disclosure, and prompt
correction make sense for business, make sense for government, and make sense for the
environment.
One way that we will promote responsible behavior and compliance with the law is by
maintaining strong enforcement. Federal laws and regulations set minimum standards for protecting
human health and achieving environmental protection goals such as clean air and clean water.
EPA will continue to uphold these laws through tough enforcement actions that appropriately penalize
violators.
The new policy is based on several principles:
1. Self-policing by regulated entities can play a crucial role in finding, fixing and
preventing violations.
2. Violations discovered through self-policing should be disclosed and promptly
corrected.
3. Regulated entities that self-police and that self-disclose and self-correct
violations should, in appropriate circumstances, pay penalties that are
consistently and predictably lower than penalties for those who do not.
4. Regulated entities that self-police and self-disclose and self-correct violations
should, in appropriate circumstances, also not have to fear prosecution for
criminal violations.
5. Providing predictable rewards for voluntary disclosure and correction of
violations identified through self-policing is a positive alternative to establishing
new statutory privileges that promote secrecy, expand litigation and
compromise enforcement actions.
6. EPA should not seek information obtained by regulated entity solely through
an audit to trigger an investigation of a civil or criminal violation of environmental
laws.
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 367
7. The Agency should encourage innovation by states while ensuring that federal
laws are fairly and consistently enforced.
Finally, we will continue our emphasis on the development and implementation of pollution
prevention techniques. By providing assistance which promotes pollution prevention, and
encouraging pollution prevention projects in the litigation context, we are helping to build the capacity
of federal facilities to move toward cleaner, cheaper and smarter methods of environmental
management. EPA will continue to take a leadership role in implementing the Pollution Prevention
and Right-to-Know Executive Order.
The Federal Facilities Enforcement Office has grown from its original Resource
Conservation and Recovery Act/Comprehensive Environmental Response, Compensation &
Liability Act focus into a sector based multi-media office. We are committed to working with our
sister agencies to address their environmental problems and to make our government an
environmental leader as envisioned by the Integrated Management Strategy. Our role as the Federal
Government's principal environmental regulator and enforcer demands this.
Combining traditional enforcement and compliance assistance, and the host of approaches
in between, provides the Office of Enforcement and Compliance Assurance with unique opportunities
and challenges. EPA must continue strong enforcement of the environmental laws. The Agency's
enforcement program helps ensure the integrity of all of the Federal government's programs and
missions.
-------
368 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
CHEATHAM, R. B.; EDWARD, J. R.; FRANK, W. H.; AND SATTERFIELD, R. J. 369
ANNEX 1
GUIDE TO POLLUTION PREVENTION OPPORTUNITIES AT NAVAL BASE
USA (NBU)
As part of the Federal Facilities Multi-media Enforcement/Compliance Initiative (FMECI),
the EPA Federal Facilities Enforcement Office (FFEO) is providing this guidance package to
assist enforcement personnel in identifying and documenting pollution prevention (P2) opportunities
that can be incorporated into settlement agreements with the above-mentioned Federal facility.
This package consists of two parts: a "Federal Facility Pollution Prevention Field Reporting Form"
(Attachment A), and a "Pollution Prevention Opportunities Profile" (Attachment B). Both of these
parts are specifically prepared for use at the above-mentioned Federal facility.
Part I. Federal Facility Pollution Prevention Field Reporting Form
The field reporting form presented in Attachment A provides a mission statement for the
facility, which can be used by inspectors to predict the types of processes and wastes that may be
present at the facility. In addition, this reporting form provides a consistent format for inspectors to
record information on pollution prevention activities and opportunities at the facility. Parts I through
IV of this form are provided by the Federal Facility Enforcement Office (FFEO), and include the
facility name, address, and identification number, and a facility mission statement. Parts V through
VIM are filled out by the inspector, and are to be maintained as part of the inspection record.
Part V.A is used by the inspector to record information about wastes that may present
opportunities for pollution prevention. Part V.B allows inspectors to record the types of pollution
prevention opportunities that they know or suspect are relevant to each waste identified in V.A.
Inspectors may use the Pollution Prevention Opportunities Profile (Attachment B) as an aid in
completing Part V of the field reporting form.
Part VI of the field reporting form allows the inspector to record detailed information about
ongoing pollution prevention activities at the subject facility. This information may be used by EPA
to propose the wider application of certain pollution prevention techniques implemented at the
facility.
Part VII of the field reporting form allows inspectors to record violations occurring at those
waste generation activities that have pollution prevention potential as determined pursuant to Part
V of the field reporting form. These types of violations may allow the EPA to introduce pollution
prevention requirements into settlement agreements.
Part VIM of the field reporting form allows inspectors extra space to nominate one or more
pollution prevention opportunities at the subject facility that are most likely to be incorporated into a
settlement agreement.
Part II. Federal Facility Pollution Prevention Opportunity Profile
The Federal Facility Enforcement Office investigated a number of EPA information sources
to identify potential pollution prevention opportunities at Naval Base USA (NBU). These sources
and the types of data they provided are listed below:
• Resource Conservation and Recovery Act 3016 database: Annual quantities
for each Resource Conservation and Recovery Act hazardous waste.
• Aeronomic Information Retrieval System (AIRS) database: Annual quantities
of Federal air pollutants.
-------
370 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• Permit Compliance System (PCS) database: Annual quantities of Federal
water pollutants.
• Resource Conservation and Recovery Act Biennial Reporting System (BRS)
database: Types and annual quantities of hazardous wastes.
• Toxic Release Inventory System (TRIS) database: NBU was not found on this
database.
Data from the above-mentioned sources were used to prepare the profile for Naval Base
USA which is presented in Attachment B. This profile does not represent all wastes that may have
pollution prevention potential at Naval Base USA. Furthermore, this profile may include wastes that
have little or no potential for pollution prevention. This profile was prepared to provide the inspectors
with an initial list of wastes that, based on data from the above-mentioned sources and the information
depicted by the facility mission, appear to present the best opportunities for pollution prevention.
The inspector is encouraged to investigate these potential opportunities during upcoming
inspections. If the opportunities in the profile are confirmed during the inspection, the inspector
should obtain as much additional information as possible on these opportunities and record all
such findings in Parts Vthrough VIII of the field reporting form (Attachment A).
-------
I.
II.
III.
IV.
V.
A.
Facility Name:
Attachment A
Federal Facility Pollution Prevention Field Reporting Form
Naval Base USA
I
O
(D
Facility Address (City, State) Anytown, Alaska
EPA ID No.:
AK 1240098136
Mission Description:
Naval Base USA is involved in the overhaul and maintenance of surface ships up to attack
carriers, attack submarines, and ballistic missile submarines. NBU services include conversion,
overhaul, repair, alterations, and drydocking. The base also provides support for air and
submarine warfare weapons systems. NBU is the homeport to an aiResource Conservation
and Recovery Actft carrier, two cruisers, and two ammunition ships. NBU occupies 1,760
acres in Anytown, Alaska, and employs approximately 16,200 permanent staff (270 officers,
4,390 enlisted personnel, 11,520 civilians, and 20 students).
O
m
3J
P
m
1
p
c_
o
Tl
3D
Wastes with P2 Potential (observed):
Waste Description (include waste
sources,12 chemical compositions,
physical properties, and quantities)
B. P2 Opportunities (See Attachment B)
a
CO
m
3)
m
5
-------
S ro
o
2
a 3
i
"o"
o
VI. Current P2 Activities §. §
>
i—
A. Waste Description (Sources and Quantities) B. Initiative Description
m
33
O
VII. Violations affecting Waste Sources with P2 Potential (see Part V of this form):
O
A. Waste Source B. Violation C. Status of Violation ' ~
O
m
o
m
z
-n
O
O
VII. Recommendations for Modifications to Current Programs
-------
I
n
CD
Attachment B: Federal Facilities
Pollution Prevention (P2) Opportunities Profile at Naval Base USA (NBU)
Waste Description"
Spent hydraulic fluid
(propylene glycol)
Ignitable wastes
(D001)
EPA 33/50
Program
Target
fY/N)14
N
N
Annual Waste
Quantity
1.55 tons (1989)
6.6 tons (1989)
Assumptions on Waste Origin
and/or Composition"
I lydraulic fluid drained from
equipment during routine
service
Mineral spirits from degreasing
operations
Potential Pollution Prevention Opportunities
• Determine whether hydraulic fluid can
be replaced in the equipment after
servicing has been completed
• Identify secondary uses for spent
hydraulic fluids
• • Minimize rates of sol vent use
• Replace organic solvents with water-
based solvents
• Extend solvent life by filtering or
setting accumulated solids
Data
Source"
BRS
BRS
O
m
DO
CD
33
O
CO
-------
374 FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Attachment B (continued)
a
3
8- f 1
111
g.8-1
111
1SI
O - U
2 §-|
•i * -1
g-j= J
a « 2
00.2
.S -°
S o
.S
00
SI
!!
I
u i
J
M
5 ^
=
I.S1 a
Wast
tity
- -
ns
so
An
1
1=
= i
Waste Des
J a
&2
li
2 ?
SI
S -3,'
IT
a i= >
eo •— i) j*
ir.*
Mil
li 11
S'S-g*
i!
X C
S s ^ 8
u S |