300R90100
PROCEEDINGS
VOLUME I
VOLUME II
INTERNATIONAL
ENFORCEMENT
WORKSHOP
May 8-10, 1990
Utrecht, The Netherlands
Ministry of Housing,
Physical Planning
and Environment (VROM)
The Netherlands
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55
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14 January 1992
This is a reprint of the Proceedings Volume I and II of the International
Enforcement Workshop held in Utrecht, the Netherlands, May 8-10, 1990.
For your convenience and to distinguish this reprint from the originals both
volumes have been bound under a single cover.
The Organizing Committee
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I I
I I I I I I I I
PROCEEDINGS
VOLUME I
v> - -r \>,
ENFORCEMENT
WORKSHOP
May 8-10, 1990
Utrecht, The Netherlands
Ministry of Housing,
Physical Planning
and Environment (VROM)
The Netherlands
LU
CO
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INTERNATIONAL ENFORCEMENT WORKSHOP
PROCEEDINGS
May 8 - 10, 1990
Utrecht, The Netherlands
Organized by:
United States Environmental Protection Agency
Netherlands Ministry of Housing, Physical Planning and Environment
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INTERNATIONAL ENFORCEMENT WORKSHOP
CONTENTS
PREFACE .
THEME #1: DOMESTIC ENFORCEMENT PROGRAM STRATEGIES,
TOOLS AND MANAGEMENT SYSTEMS 5
1. Overview of Compliance and Enforcement in the United States:
Philosophy, Strategies and Management Tools, Cheryl Wasserman 7
2. Target Group Management Industry and Internal Company Environmental
Management, Jit Peters 47
3. A Survey of U.S. Environmental Enforcement Authorities, Tools and
Remedies, Edward Reich and Quinlan Shea 55
4. Small Business Compliance, the Role of Local Communities, Hans Schaap 87
5. Practical Applications of an Enforcement Management System,
Dale Bryson 103
6. Criminal Enforcement of Environmental Legislation, Hans Fangman 129
7. Legal and Technical Cooperation for Effective Environmental
Enforcement, Dale Bryson and David Ullrich 141
8. Another Country's System: Sweden, Agneta Melin 151
THEME #2: DOMESTIC INTERGOVERNMENTAL ENFORCEMENT
RELATIONSHIPS 155
1. Defining and Implementing Effective Federal/State Local Relationships:
the U.S. Experience, Lee DeHihns 157
2. State Perspective in U.S. Enforcement Relationship, Ken Alkema 167
3. European Community's Prospects for Enforcement of Directives,
Rolf Wagenbaur 173
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THEME #3: INTERNATIONAL TRANSBOUNDARY POLLUTION PROBLEMS 189
1. The Import/Export of Hazardous Waste and Toxic Substances:
the U.S. Enforcement Experience, Paul Thomson 191
2. Netherlands Case Study in Enforcement of Hazardous Waste
Import/Export, Jo Gerardu and Rob Bouma 199
3. Waste Movement: European Community and Outside, Carel de Villeneuve 223
4. Pesticide Export and Import Enforcement Programs in the United States,
Connie Musgrove and Angela Hofmann 237
THEME #4: ENFORCEMENT OF INTERNATIONAL AGREEMENTS 247
1. An Overview of Enforcement and Compliance Mechanisms in
International Environmental Agreements, Scott Hajost and Quinlan Shea 249
2. Challenge of Enforcing the Montreal Protocol on Protection of
Stratospheric Ozone, John Seitz and Sally Mitoff 275
3a. Ocean Pollution - Protection of the Seas, Rein van Dijk 283
3b. The U.S. Environmental Protection Agency Efforts to Control Ocean
Dumping, Tudor Davies and Rosanna Ciupek 297
4. Enforcing Environmental Agreements Within the European Community,
Rob Donkers 303
5 The Basel Convention and its Enforcement, Iwona Rummel-Bulska 313
6. The Example of the Chemical Weapons Convention, Bas ter Haar 321
LIST OF PARTICIPANTS 335
ACKNOWLEDGEMENT 349
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PREFACE
These Proceedings contain papers presented at the International Enforcement
Workshop held May 8 - 10, 1990 in Utrecht, the Netherlands. This Workshop,
organized by the Netherlands' Ministry of Housing, Physical Planning and Envi-
ronment and the United States Environmental Protection Agency under a Memo-
randum of Understanding, adressed four themes of enforcement policy. The
International Enforcement Workshop was organized to serve as a forum for an
exchange of environmental enforcement approaches, philosophies, procedures and
techniques. It was designed to impart practical, useful information and foster
debate and discussion among experts.
Participants included environmental officials from other countries and interna-
tional organizations. Topics covered both domestic and international enforcement
concerns.
Given ever increasing environmental requirements and the importance of compli-
ance with them to protect the public health and environment countries are now
grappling with the challenge of running effective environmental enforcement
programs to achieve compliance. However, many lack basic enforcement tools
and infrastructure. Moreover, the international concern over importation and
exportation of hazardous waste and toxic substances and the need to enforce
international agreements introduces new complexities and requirements for
cooperation into these programs.
The workshop sought to offer new insights into environmental enforcement as it
exists today, and how enforcement can be improved. The workshop was not
expected to result directly in any international accords or protocols in the
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environmental enforcement area.
Themes on which enforcement information was shared included two domestic and
two international areas:
Theme #1. Domestic enforcement program strategies, tools and management
systems, with an emphasis on implementation;
Theme #2. Domestic intergovernmental enforcement relationships;
Theme #3. International transboundary pollution problems, focusing on enforce-
ment of pesticide and hazardous waste import and export controls;
Theme #4. Enforcement of International Agreements, e.g. CFC's and ocean
dumping.
We expect these proceedings to provide new insights into each theme that was
discussed. We hope that the information will be useful to you. Additional infor-
mation is obtainable from the speakers and Workshop participants. A list of
participants is included.
The organizing committee.
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THEME #1: DOMESTIC ENFORCEMENT PROGRAM STRATEGIES, TOOLS AND
MANAGEMENT SYSTEMS
Chair: Paul Keough, United States
Goal: The workshop will explore ways to improve domestic enforcement programs and
levels of compliance through an exchange of information on enforcement and compliance
strategies, mechanisms and their use and how the function is managed to achieve compli-
ance goals.
1. Overview of Compliance and Enforcement in the United States: Philosophy,
Strategies and Management Tools
Cheryl Wasserman
2. Target Group Management Industry and Internal Company Environmental
Management
Jit Peters
3. A Survey of U.S. Environmental Enforcement Authorities, Tools and Remedies
Edward Reich and Quinlan Shea
4. Small Business Compliance, the Role of Local Communities
Hans Schaap
5. Practical Applications of an Enforcement Management System,
Dale Bryson
6. Criminal Enforcement of Environmental Legislation
Hans Fangman
7. Legal and Technical Cooperation for Effective Environmental Enforcement
Dale Bryson and David Ullrich
8. Another Country's System: Sweden
Agneta Melin
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AN OVERVIEW OF COMPLIANCE AND ENFORCEMENT IN THE UNITED STATES: PHILOSOPHY,
STRATEGIES AND MANAGEMENT TOOLS
Cheryl E. Wasserman 1
1 Acting Director, Office of Enforcement Policy, Office of Enforcement,
U.S. Environmental Protection Agency
SUMftRY
This paper provides an overview of how the United States enforcement
program is implemented, specifically what strategies, management systems
and tools are employed to make it work successfully. Section 2. examines
the philosophical basis for enforcement; Section 3. defines compliance and
enforcement strategy elements and planning systems; Section 4 reviews
management systems and tools; and Section 5 reviews the infrastructure
required for implementation. (1)
1. INTRDDUCnON
The United States Environmental Protection Agency (EPA) along with
its State and local counterparts is responsible for carrying out fourteen
major Federally mandated programs. (2) Environmental programs have grown
in number and scope since the early 1970's following Earth Day and well
publicized environmental episodes. These events were a powerful impetus to
the public outcry for stronger environmental and public health protection.
The International Enforcement Workshop in May, 1990 now closely follows the
anniversary of Earth Day, perhaps heralding a new era of shared recognition
of the importance of environmental enforcement and closer cooperation in
the international sphere.
The Workshop presents a welcome opportunity to share and reflect upon
EPA's enforcement philosophy, strategies and management tools. In the
late 1970's, EPA's focus shifted from putting a regulatory apparatus in
place in the air and water programs, to enforcement of those laws. This
natural shift in focus, coupled with some powerful new penalty authorities
under the Clean Air and Water Acts, spurred what was then called the Major
Source Enforcement Effort (MSEE). Major air and water facilities (defined
principally by their size) which had not yet installed pollution control
equipment were put on a list. That list was tracked nationally, and EPA
brought enforcement actions with penalties either itself or through the
States. The emphasis, however, was placed on a strong Federal enforcement
presence with significant influence wielded over State penalties and other
settlement terms, particularly for major steel and power plants. This
effort was highly successful in achieving its stated objectives, but
clearly was narrowly focused on initiating enforcement actions, and
negotiating settlement agreements.
In the early 1980's several changes happened simultaneously. EPA and
the States had virtually worked their way through the list of major air and
water sources. EPA was in crisis due to a changed philosophy,
reorganization, and widely shared perception that enforcement was no longer
emphasized by senior agency officials. In a much publicized turnaround,
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spurred by the Congress and a worried public, a new management team was
brought to EPA. One of their tasks was to correct what was a precipitous
decline in the number of Federal civil law suits, then and now a barometer
for the strength of the enforcement program. In response, enforcement
strategies were reconstructed in 1984, and enforcement was emphasized
repeatedly by the new Administrator and his Deputy. However, this was not
sufficient. So, a new management apparatus was put in place not only to
get enforcement back on its feet but also to systematize it and keep it
from being subject to the whims of management.
EPA now has well defined strategies, measures, and systems to manage
enforcement to an unprecedented degree, reaching into and directing a
highly decentralized organizational structure involving multiple levels of
government and ten Regions spread throughout the country. What is
different about these systems from those previously in place is that they
recognize new factors:
o The primary role of State and local governments over enforcement
in programs delegated or approved by EPA, balanced with a
continuing EPA oversight role;
o The expanding reliance on administrative and criminal enforcement
in addition to civil law suits;
o The need to focus increasingly stretched resources to address
compliance and environmental results; and
o The need for follow through on enforcement settlements until full
physical compliance is achieved.
Since the mid 1980's additional trends in environmental programs
challenge these measures and management systems:
o A changing universe of regulated sources that far exceeds Federal
and State resources, shifting from large individual pollution
sources to smaller, more numerous sources.
o More emphasis on pollution prevention, management and processes
rather than a singular focus on installation of pollution control
equipment.
o More emphasis on continuing operation and maintenance.
o More emphasis on toxic chemicals.
o High turnover among attorneys and inspectors hired away for their
expertise by a regulated community under increasing pressure to
comply.
The strategies and management systems put in place in the mid 1980's are
still evolving to become more targeted, (i.e. more strategic), more
leveraged (i.e. getting the greatest impact out of any one enforcement
action), and more flexible (i.e. more responsive to local conditions and
priorities) in response to these challenges. Although the strategies and
management systems are far from perfect, they are certainly the best
structure for managing enforcement the Agency has found to date.
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2. PKLD3SOPHICAL BASIS FOR ENFORCEMENT IN THE U.S.
2.1 Why do compliance and enforcement matter?
Perhaps the best place to start is to ask the fundamental question:
why are we concerned about compliance and enforcement activities? The
reasons include:
2.1.1 Program Effectiveness: Compliance is critical to realizing
the benefits envisioned by environmental policy, statutes, regulations,
standards and permits put in place to protect public health and the
environment. Compliance is the regulatory bottom-line.
2.1.2 Equity: A consistent and effective response to noncompliance
provides an essential element of fairness to the regulatory process that
would be missing if those who do not comply benefit relative to those who
do, or if violators are treated very differently depending upon their
location and circumstance.
2.1.3 Credibility: The rule of law and the credibility of our
governmental institutions require that laws that are put in force are taken
seriously. The expectation that violations will generate a predictable and
proportionate enforcement response is essential to sustaining credibility.
Most important, commitment to follow through by the government until
compliance is achieved is viewed as the ultimate test of the public will to
see a program fully implemented.
2.1.4 Economic Efficiency: To the extent requirements are
considered economically efficient, equitable enforcement preserves economic
efficiency; imbalance in compliance and enforcement can lead to economic
inefficiency.
2.2 What is the basis for the U.S. approach to enforcement?
Understanding the theories underlying environmental enforcement in
the United States is important to understanding the U.S. program. This
discussion will cover: 1) distinctions between compliance and enforcement;
2) deterrence theory; 3) economic theory; and 4) behavior theory, as they
shape the development of compliance and enforcement strategies.
2.2.1 Compliance and Enforcement Defined
Compliance, the ultimate goal of any enforcement program, is
essentially a state of being, a state in which environmental requirements
are achieved and maintained. Enforcement is defined as the application of
a set of legal tools, both informal and formal, designed to impose legal
sanction (e.g. penalty), to ensure a defined set of requirements is
complied with. An issue that is continually debated is whether compliance
can be achieved without enforcement. The answer, based on the U.S.
experience and theory, is that enforcement is a necessary, but not
sufficient means of achieving compliance. Although enforcement may not be
needed to achieve compliance in individual cases, in most situations some
level of enforcement is thought to be needed to create and maintain a
complying majority. In 1941, Chester Bowles, of the wartime Office of
Price Administration suggested the view that there will always be 5% of
individuals who will violate no matter what, 20% who will comply no matter
what, and 75% who will comply only if the violators are punished and/or the
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requirements are perceived as nonarbitrary. This, in concept, is the
philosophical underpinning of the U.S. enforcement program.
2.2.2 Deterrence Theory
Deterrence is perhaps the most important underlying theory of
enforcement. It justifies how a little well placed enforcement can go a
long way toward creating more widespread compliance. Simply stated,
deterrence means that sources are discouraged from violating requirements.
Theory identifies four ingredients to deterrence: 1) a credible likelihood
of detection; 2) swift and sure response; 3) appropriate sanction; and 4)
the perception of the first three. (3) Specific deterrence is deterring an
individual violator from violating again. General deterrence is deterring
the broader regulated community from violating.
Deterrence provides enforcement with its multiplier effect. Because
no enforcement program can provide sufficient presence all of the time, for
all violations, each program must rely upon and develop a complying
majority and focus on addressing the remainder that do not comply. For
each enforcement action, the magnitude of its deterrence effect in inducing
others not to violate the law depends on the strength of each of these four
factors.
Because an important element in creating deterrence through
enforcement is perception, how enforcement actions are taken is just as
important as the fact that they are being taken. The annals of military
history are filled with stories of military battles won where few in number
created an effective image of a formidable fighting force, thereby
successfully competing against superior forces. So must enforcement
actions, including inspections, be well placed and well publicized for
maximum impact.
2.2.3 Economic Theory
Pure economic theory argues that each owner/operator rationally
calculates whether it is in his or her economic self interest to comply or
to violate requirements, comparing the cost of coming into compliance with
the likelihood of getting caught times the penalty of violating. (4) To
remove economic incentives to violate the law it is the policy of the U.S.
EPA enforcement program to recover, at a minimum, the economic benefit of
non-compliance when imposing penalties on a violator in an enforcement
action. This is viewed as not only deterring deliberate economic decisions
not to comply, but also as creating more equitable treatment of compilers
and non-compliers. It is also considered criminal conduct to deliberately
decide not to comply with environmental requirements, such as one might do
if compliance decisions were driven by economics.
2.2.4 Behavior Theories
The U.S. approach, while dominated by deterrence and economic
theories, increasingly recognizes a broad array of motivations that may
explain compliance behavior. Compliance, like human behavior, generally
cannot readily be predicted. It is more likely to be the result of complex
motivations, all of which must be taken into account.
These other theories, which are conveniently labeled behavior
theories, stress cooperation, technical support, and personal relationships
between regulatees and government officials as effective means of creating
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widespread compliance. (5) The cooperative model stresses the regulatee,
the corporation, as a political citizen, the professional willing to comply
with the law if it is perceived to be reasonable. The personal motivation
model stresses moral and social values and sanctions, e.g. jail terms,
(incarceration), and personal fines that come directly out of someone's
pocket. It also stresses successful personal relationships between
government inspectors and the operators of regulated facilities. The model
which views the regulatee as "incompetent," or unknowledgeable, stresses
technical assistance, organization and procedures needed to comply.
2.2.5 Applying theories to Compliance and Enforcement strategies
The U.S. approach to enforcement strategies now recognizes that they
must reflect and respond to a mix of these theories. The range of actions
must include both the proverbial carrot and stick to gain compliance.
3. OCMPUANCE MOKITORING AND ENFORCEMENT SIKATEEIES
Elements of an effective compliance and enforcement strategy are well
defined in the United States. (6) An annual strategic planning process is
used to reassess program direction and priorities and refine priorities
over a two, three, and most recently, a four year planning horizon.
Improvements are constantly being made in the process of strategic planning
and in what is expected to address each of the basic strategy elements
singly and as they are implemented as a whole in any given program.
3.1 Elements of a Oonpliance and Enforcement Strategy
Each program is requested to address each of seven strategy elements
in written strategies and to develop different strategies where needed for
sub-elements of the regulatory program. (7) These strategies are developed
nationally in consultation with the State and local governments which also
must implement them. Regions will soon be asked to develop their own
tailored strategies in response to both national priorities and local
needs.
The strategies generally address the following elements:
- identifying the regulated community;
- establishing program priorities;
- promoting compliance;
- monitoring compliance;
- enforcement response to violators;
- clarifying roles and responsibilities of Federal and
State or local agencies; and
- establishing management accountability and evaluating results.
Each element of a compliance strategy is reviewed below in terms of
the current practice by government officials.
3.2 Identifying the Regulated Ooranunity
It becomes quite difficult to develop a strategy to address sources
or facilities about whom you have little information. Therefore, the first
and most obvious element of a compliance strategy defines the process that
will be used to gain a more complete picture of who is affected. Each
program has its own way of addressing how to identify the regulated
community. Some rely on inventories (e.g. the air program), some on permit
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applications (e.g. the water discharge program), some use a process of
registration, (e.g. the underground storage tank program). Prohibitions
from operating without a permit have proven to be an excellent means of
ensuring that most sources know they are subject to a requirement although
it is not foolproof. A good example is the PCB program where
identification is a weak link in the strategy. Because of the anticipated
burden on industry of completing a survey, none was required. As a result,
a large percentage of the initial government inspections were at facilities
that were not even subject to the regulations. Even when programs have
lists of facilities, they often have a difficult job in trying to maintain
current lists. Any inventory of the regulated community should ideally
lend itself to analysis so that the program can assess what types of
sources are in and out of compliance, and whether the regulatees are
sophisticated, etc. This information helps to shape the direction of other
elements of the strategy.
Recently a requirement that industrial operations prepare and submit
for public review a Toxic Release Inventory, has provided an unanticipated
benefit in helping Federal and State regulators identify sources of
pollution that should have been, but which had escaped inclusion, on
current lists. (8)
3.3 Establishing Program Priorities
Environmental requirements now cover virtually the full range of
activities involving production, transportation and consumption in our
society. As difficult as it is for the regulated community to keep up with
these requirements, it is even more difficult for environmental officials
to ensure there is compliance and to take the necessary enforcement
actions. Therefore, priorities must be set to focus enforcement
activities.
Enforcement priorities must include an effective mix of concerns for
not only the most obvious risk of public health or environmental harm, but
also for program integrity (e.g. requirements such as monitoring,
reporting, and record keeping can be essential to implementing the
regulatory scheme), and the integrity of enforcement presence (e.g. a
violation of an administrative order or court decree may not in itself be
significant but must be enforced to demonstrate the significance of a
legally imposed order). Current patterns of compliance also should be
taken into account to effectively target enforcement activities.
Enforcement priorities are currently defined through several
vehicles; each vehicle has a different impact on how the program is
implemented. At a very broad national level, annual Agency Guidance
specifies program priorities. EPA has placed a premium on fully
integrating enforcement into every aspect of program implementation. For
example, if a major thrust of the Toxics Program is pre-manufacture testing
of new chemicals, there must be a parallel enforcement component to that
priority which ensures that industry does indeed perform the necessary
testing and reporting of appropriate test data. Each year these
enforcement priorities are communicated not only through Agency guidance
but also receive wide dissemination through the National Environmental
Enforcement Journal funded by EPA and published by the National Association
of Attorneys General. (9)
More specifically, enforcement priorities are further established in
program measures of success which accompany the annual guidance, defining
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what constitutes Significant Non-Compliance (SNC) in each program. (9) How
effectively the Significant Non-Compliers are returned to compliance is one
measure of program success. Tracking of SNCs ensures that each and every
such violation is addressed. The guidance also identifies other program
areas for which an enforcement presence is a priority but which do not
necessarily reguire coverage of all violations. Many such priorities are
amenable to initiatives designed to send a clear message to the regulated
community without addressing most violators. Enforcement initiatives are
targeted and concentrated enforcement actions, timed to have a maximum
deterrent impact through press coverage, and packaged to gain economies of
scale in preparing cases for litigation.
In practice, the environmental programs have not been entirely
successful in establishing priorities on a national basis. When
significant violators were first defined in the hazardous waste program,
for example, an effort was made to establish enforcement priorities at land
disposal facilities for groundwater related violations. However, in
reality, all groundwater violations do not pose the same level of risk and
some very minor violations were included on the Significant Non-Complier
(SNC) list. This subsequently was corrected in revised guidance which
focuses on those violations which pose the greatest threat to human health
and the environment. The Air program has placed a high priority on
violations of pollutant standards in areas exceeding national ambient air
quality standards for that pollutant. However, the air program also has
included violations of any national new source performance standard.
Therefore, a violation of volatile organic compound (VOC) requirements in
area exceeding ozone standards has had the same priority as the failure to
conduct a performance stack test upon starting up a new source in an area
attaining national air quality standards, even if Federal or State
officials have reason to believe the source is otherwise in compliance.
Similarly, the water program's emphasis on major sources, the most
significant 10% of the 60,000 dischargers, is said sometimes to miss minor
sources that are locally significant contributors to water pollution and to
focus on some that may not be problem dischargers.
While refinements are being made, a priority setting scheme is never
fully satisfactory at the national level. Federal officials are currently
working with EPA Regions and States to more successfully supplement
national priorities to adjust to local circumstances, and to provide more
flexibility in accountability systems to permit these adjustments to be
made.
As EPA gets better at defining areas to target enforcement, it has
recognized the importance of balancing the need to maintain a broad
presence for all types of sources and violations, with the need to focus
enforcement without necessarily taking action against all such sources or
violations in a category. Increased emphasis is being placed on
statistical techniques for implementing targeting strategies. Further,
because most government agencies would prefer to respond in some manner
after they discover violations, enforcement priorities must focus first on
detection of priority violations, This issue is addressed below in Section
3. Compliance Monitoring.
3.4 Promoting Compliance within the Regulated Ccmnunity
Compliance programs at the Federal and State level offer a range of
mechanisms to disseminate information and provide technical assistance to
the regulated community. This includes regulatory "hot lines", brochures,
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conferences and the like. Well timed threats of enforcement also can
provide an incentive for sources to ensure sources avail themselves of
these sources of information and assistance.
Promotion activities have traditionally been underfunded and the most
expendable activity in a compliance and enforcement program. In recent
years, however, with regulatory activities reaching ever smaller and more
numerous sources, providing information to the regulated community (i.e.
on the requirements for compliance, on why the requirements are important,
on what is required to comply and the consequences of noncompliance) is
viewed as more essential by Federal and State regulators. Programs try to
work with trade associations and other groups such as university based
assistance programs to transfer technology and information needed to comply
with requirements.
Compliance strategies must seek the proper balance between
investments in promoting compliance versus enforcing requirements. Figure
1 offers one model for addressing this issue by postulating five stages to
gaining compliance with any requirement for three different program
scenarios. It suggests that the appropriate mix in emphasis between
promotion versus enforcement changes over time. That desired mix also
changes with the type of source e.g. its sophistication, the complexity of
the requirement, etc. For example, compliance promotion has been viewed as
a very high priority for small operators of drinking water supplies.
The form and nature of the regulation itself can enhance or impede
compliance. Clear, simple requirements, tailored to a source are most
amenable both to compliance by the source, and to monitoring and
enforcement by governmental officials. Design of the regulatory approach
also may involve choices between general rules versus individualized
permits, stringency and reliability, the form of the standards, and whether
monitoring, reporting and recordkeeping can be properly included in the
rule.
Individually tailored requirements in permits, while more resource
intensive, can make the facility or source far more aware of requirements
when the permit specifically interprets how they apply. New amendments to
the Clean Air Act try to overcome problems encountered where general rules
are virtually unenforceable because they cannot easily be applied to the
individual source. The proposed permit program should help avoid this.
At this writing, several new initiatives are under development to
enhance the enforceability of regulations and permits. One involves field
testing of regulations before they are final; another is the preparation of
enforcement impact analyses to accompany the regulation; another would have
inspectors participate in the review of a regulation.
Finally, stepping back from individual requirements, EPA has
recognized the importance of promoting sound environmental management and
the use of environmental auditing by the regulated community to enhance
their overall ability to comply with regulations. EPA has issued a policy
statement promoting environmental auditing, has developed resource
materials for industry to use, and staff is active in the professional
organizations devoted to environmental auditing. (10)
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3.5 Manitorinq Compliance
The term compliance monitoring is used to encompass activities
undertaken either by the government or regulated sources to collect and
assess information on compliance status. The information serves many
purposes:
- enables sources of pollution to take steps to achieve and maintain
compliance
- provides reliable and timely detection of violations
- provides evidence to support enforcement actions
- provides compliance statistics to evaluate program progress
There are three primary sources of compliance information:
1) source self-monitoring, reporting and recordkeeping, 2) inspections by
the government or independent third parties, and 3) citizen complaints.
The first two are the most important means of monitoring compliance in the
United States. (Ambient monitoring has been used infrequently to monitor
compliance because of the difficulty of attributing pollution to an
individual source; aerial surveillance also has been used as a valid
investigatory technique and has overcome court challenges that it is an
invasion of privacy). Each program strategy must make choices as to what
information is collected, by whom, and at what frequency. While there are
differences among the programs as to the approaches taken, there are also
important similarities and common principles.
In theory, compliance monitoring should be a statistically valid
indicator of compliance; the methods should be the same as or can be
related to those on which the standard was based.
3.5.1 Source self-monitoring, reporting and record-keeping
Regulated parties are expected to maintain compliance, and this
implicitly requires that they have a reliable means of keeping track of
their own compliance status. In addition, to the extent it is cost-
effective to do so, regulations and permits specifically require self-
monitoring, recordkeeping and reporting sufficient to assess compliance.
This provides important information on violations that would otherwise be
impossible to obtain by periodic, often infrequent government inspections.
It also increases the probability that the source will take seriously its
responsibility for its own compliance.
Self-reported monitoring information is sometimes used directly as a
basis for follow up enforcement actions but more fundamentally it helps to
screen and target inspections. Generally, self reported information is
supplemented by inspections to corroborate the accuracy of the reported
data.
EPA and the States establish standard procedures, methods,
instrumentation and minjunum frequency of data collection. Requirements are
subject to close scrutiny as a balance is sought between benefits, cost and
paperwork burden to government as well as industry. An issue related to
behavior theory and compliance monitoring is whether source self-monitoring
should be reported by exception or require complete reporting of all data.
Some argue for economic efficiency: only information absolutely needed by
regulators should be required. They also argue that reams of data are
unusable by agency officials and that agencies are better off with less
data and more information. Such exceptions reporting is used in the air
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program for results of continuous emission monitors. Others argue on
behavioral grounds that regulators can control the guality of data and
there is more management attention paid with routine reporting of all
monitoring data results. This is the approach adopted by the water
discharge program.
In practice, source self-monitoring is not as widespread as
regulators would like. The development of cost-effective monitoring
devices is lagging behind regulatory developments. Source monitoring is
used extensively in the water discharge (NPDES) program for all
dischargers, for drinking water supplies, and for groundwater protection
from hazardous waste land disposal and storage tanks, but to a far less
extent in the air program where continuous emission monitors are expensive
and until recently were less reliable.
Most of the environmental statutes ensure that self-reported data are
available to the public. The U.S. government and most States have laws and
regulations granting any citizen the right to examine or copy such agency
information. At the Federal level there are limited exceptions to prevent
the government from disclosing certain kinds of confidential business data
that have been duly labeled and submitted in confidence, but these
exceptions are never available for technical information describing the
physical nature and environmental impact of a violation. As a practical
matter, confidentiality is rarely at issue except in the pesticide and
toxics programs in which product formulation, production and distribution
data are submitted. Public availability and reporting have proven to be an
important deterrent to both violations and failure to report generally
particularly when coupled with the citizen right to sue to require
submission of mandatory reports and to return violators to compliance.
3.5.2 Inspections
Inspections remain the backbone of agency compliance monitoring
programs. Government officials make independent judgments as to the
compliance status of a facility. Even with widespread requirements for
self-monitoring, inspections play a major role in assuring quality and
lending credibility to self-monitoring programs. Government inspections
serve several functions: 1) they help to create an "enforcement presence,"
evidence of the government's interest in compliance at the site of
operation, 2) they can identify specific environmental problems, 3) they
serve to inform the source and agency as to the existence of the problems,
and 4) they serve to collect and preserve evidence of non-compliance in
support of enforcement cases.
Inspections are conducted either "for cause", meaning there is reason
to suspect that the particular source is violating environmental
requirements, or "routine", conducted under a "neutral" inspection scheme,
that is, one that does not unfairly single out a particular facility. The
requirement for a neutral inspection scheme has its basis in the
constitutional protection granted every citizen in the U.S.
Inspections also can be announced or unannounced. Most U.S.
inspections, and virtually all complex sampling inspections, are announced,
with advance notification detailing the kinds of information that should be
available to the inspector before or during the visit. This helps to
ensure that time will not be wasted, and essential plant personnel are
present. Unannounced inspections may be more likely to discover true
operating conditions, and are occasionally used where there is reason to
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18 INTERNATIONAL ENFORCEMENT WORKSHOP
believe the source is in violation or is misrepresenting its performance
data. Despite the grant of rights of entry under most statutes, inspectors
sometimes must obtain warrants from the courts if a facility owner or
operator does not freely agree to their entry for inspection purposes,
consistent with Constitutional guarantees against unwarranted searches and
seizures.
Most significantly, no agency can afford to conduct all the
inspections it needs. The question is therefore one of priorities and the
allocation of the scarce inspector resources. To date, priority schemes for
inspections are very unsophisticated. They are more focused on one element
of the program, the need for breadth of coverage, than they are on
targeting inspections on those sources and violation types most likely to
yield the greatest benefit from enforcement action. Environmental
inspection programs for air and water usually call for inspections of the
major sources, generally defined by size and potential environmental
impact, at least once per year, and biennially for minor sources. In the
hazardous waste program, the focus has been on land disposal facilities.
Recently, there has been some effort to assess how inspection
resources can be used more efficiently and effectively with applied
statistical techniques. The air program has been developing some
alternative models for directing inspections. (4)
EPA inspectors are usually trained in and focus on a single media
program. EPA recently established mandatory training requirements for
Federal inspectors including both generic and program-specific components.
A strategy issue is the extent to which inspections should be multi-media,
and/or more like environmental audits which take into account management
systems as well as compliance with specific limits and practice
requirements. In what circumstances does it make sense for enforcers to
inspect interrelated processes and environmental impacts to ensure the most
efficient outcome from the regulatory scheme? Many State and local
agencies perform multi-media inspections because they are small and their
programs have not been as specialized as EPA's has been at the national
level. The issue of management audits has really arisen with increased
emphasis upon chemical emergency preparedness, pollution prevention and
waste minimization.
3.5.3 Citizen Complaints
Citizen complaints are an important means of detecting certain types
of violations. Examples include wetlands protection requirements, where
illegal dredge and fill operations may take place in isolated areas under
the watchful eyes of neighbors, and criminal violations where illegal acts
may be reported by employees. Our Superfund (CERCLA) statute even provides
for a bounty for reporting of a criminal act that leads to a conviction for
non-reported hazardous substance releases. At the local level, how well an
agency responds to citizen complaints is very important to its support in
the community.
3.6 Enforcement Response to Violations
The U.S. enforcement program includes a wide range of potential
responses to violations both informal and formal. Each program prepares an
enforcement response policy which defines the appropriate range of
responses for each type and magnitude of violation. These enforcement
response policies are developed in consultation with State and local
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INTERNATIONAL ENFORCEMENT WORKSHOP 19
governments which also implement the enforcement programs. The approach to
defining acceptable response reflects concerns for:
correction of the violation as expeditiously as possible,
including the underlying cause of the problem
deterrence of future violations by the party or others;
equitable treatment of violators for similar violations and
circumstances
punishment of serious, willful wrongdoing with criminal sanctions
cost-effectiveness — by using the least resource intensive
response that permits the other national goals to be achieved.
This is accomplished by pursuing the objectives of timeliness,
appropriateness, escalation and follow through.
3.6.1 The range of enforcement responses
At one end of the spectrum of enforcement responses are the informal
responses to violations. These informal responses include phone calls,
site visits, warning letters, and notices of violations. Next are legal
remedies and sanctions imposed administratively, by EPA, and/or judicially,
by the courts. Often administrative remedies and sanctions are viewed as
actions which would precede judicial action, and judicial criminal
enforcement is viewed as the most severe form of action. Formal
administrative authorities, as distinguished from informal administrative
actions, define the violation, the required response, a date certain for
completion of required actions to achieve full physical compliance and are
independently enforceable, i.e. the government does not have to prove the
original violation and there are adverse legal consequences for failure to
comply with the administrative order. Figure 2 summarizes the various
tools under EPA's major statutes.
Most, but not all, administrative and judicial authorities include
the imposition of monetary penalties. The trend recently has been toward
legislation granting EPA authority to impose penalties administratively
because administrative enforcement is less costly and more quickly
iirplemented. There also have been significant enhancements to criminal
fines and jail terms for environmental enforcement since criminal penalties
and incarceration have proven to be such effective deterrents.
EPA also is able to list violators of Clean Water and Air Acts as
ineligible for receiving Federal grants, loans and contracts. This can be
a powerful tool in getting recalcitrant sources to correct their problems
and in gaining compliance at Federal facilities owned and operated by
contractors.
States and some EPA programs have a broader range of enforcement
responses, including permit revocation, pipeline severance, etc.
3.6.2 Timely and Appropriate Enforcement Response
U.S. enforcement programs have always employed enforcement response
guidance to define an acceptable range of responses to violations.
However, since 1984, each program issues specific guidance defining what
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20
INTERNATIONAL ENFORCEMENT WORKSHOP
Figure 2.
ENFORCEMENT PROVISIONS OF MAJOR ENVIRONMENTAL STATUTES
Types of Relief Explicitly Authorized and Forms of Action
CAA CWA TSCA RCRA CERCLA SDWA FIFRA
Stationary
Administrative Enforcement Actions
Administrative Order Authority
Type:
- Compliance Schedule
- Emergency Order
- Testing
- Monitoring
- Prohibition (i e , Construction/Manufacturing)
- Labeling, Limitations on use,
Distribution, etc.
Administrative Penalty Authority
Other Sanctions
- Contractor Listing
- Suspension of Permit
- Limitations on Financial Assistance
Civil Judical Action
Injunctive Relief
Penalty/Punitive Damages
Seizure
Emergency Powers
Cost Recovery
Criminal Judical Action
Penalty/Punitive Damages
Imprisonment
X
X
X
X
1
X
X
X
X
X
X
X
Mobile
X X
X
X X
X
X
X
X
X
X
X
X X
X X
X X
X X
X X
X
X
X
X
X
i.
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
2.
2.
2.
2.
X
X
X
2.
X
X
X
X
X
X
X
L
7_
X
X
X
7
7
X
X
X
2_
X
X
X
l_ Administrative Penalty Authority to recoup the economic benfit of non-compliance
2. Although not explicitly authorized, Section 106(a) of CERCLA is probably sufficiently broad
to cover these areas.
2. Only administratively imposed penalties can be collected through ajudical action
4_ For Public Water Systems, administrative penalties only if under $5,000 and only for
violations of an existing order.
5 Prohibition on use of lead pipes, solder or flux
£ States not enforcing may have grants withheld
7 Under the drinking water program, tampering with drinking water supplies
3190
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INTERNATIONAL ENFORCEMENT WORKSHOP 21
constitutes a timely as well as an appropriate enforcement response.
Timeliness, one of the three elements in traditional deterrence theory, has
been problematic. Often cases take years for negotiations with a violator.
Second chances, third chances, warnings, protracted discussions did not
bring about timely compliance, nor effective government action. Target
timeframes were first introduced operationally at the Federal and State
levels in 1984 through the Policy Framework for State/EPA Enforcement
Agreements and program-specific implementing guidance. (11) The Policy
Framework was the product of a Steering Committee of State and Federal
officials from all EPA programs charged with defining expectations, roles,
and relationships for an effective national enforcement program.
The Policy Framework defines the timeliness part of the concept in
terms of specific points in time by which there should be: 1) an initial
response to a violation; 2) a formal enforcement action if informal means
are not effective in returning the violator to compliance; and 3) timely
follow through and escalation in the event the violator fails to comply,
until full physical compliance has been achieved. The air program, for
example, defines the time period by which either compliance should have
been achieved or a formal enforcement action taken, as 120 days. The
hazardous waste program goal is 135 days for high priority violators from
the date of inspection. The appropriateness of exceedances from the
timeframes are reviewed annually. The target timeframes themselves are to
be reviewed periodically but it is politically difficult to change them
once established.
The timely and appropriate enforcement response system is built on
the concept that it is the willingness of government officials to follow
through on less costly enforcement responses, and to escalate responses in
a timely manner that gives weight and force to lesser responses. Each
higher order enforcement response carries with it a multiplier effect in
its deterrent value. In establishing the program, to build credibility,
officials may be forced to utilize more costly formal administrative or
judicial action, but when a track record is established, the expectation is
that in most instances a simple notice will send violators scrambling to
guickly resolve a compliance problem or cooperatively negotiate its
resolution.
The Policy Framework also defines "appropriate" enforcement response
as having three elements. First, there is the appropriate level of
formality of enforcement response. An initial violation can be addressed
through a full range of informal and formal enforcement tools. Any and all
approaches that the government official believes will be most cost-
effective are acceptable. The exception is where compliance problems
extend beyond a specified period of time and have not been resolved, i.e.,
it holds that at a certain point in time the response should be formal.
Another exception is the need for court-imposed action where a violator's
schedule to comply exceeds a statutory deadline.
A second element of "appropriate" enforcement response, is that it
has to correct the violation. A third element is that for defined
violations and circumstances it must include a penalty or other sanction as
appropriate to create the necessary deterrence for future violations by
that source or other sources. Because only certain enforcement mechanisms
can be used to impose a penalty or other sanction, for those more
significant violations, it means the more costly formal enforcement
responses would have to be used.
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22 INTERNATIONAL ENFORCEMENT WORKSHOP
Timely and appropriate enforcement response is a priority for
Significant Non-Compliers. This recognizes that requiring timely and formal
enforcement action for all violators would overburden limited resources.
How has this policy worked in practice? Studies coordinated by the
Office of Enforcement (12) repeated annually have found that the concept is
widely accepted as a management tool, and an important measure of how
effective the enforcement effort is, but with some exceptions we are far
from meeting its goals.
Some of the reasons for falling short of the mark include inadequate
resources, cumbersome enforcement procedures (particularly a lack of simple
administrative penalty authority), a reluctance to pursue formal
enforcement action, and/or goals which themselves may be very optimistic.
Nevertheless, these are the very problems that this system was designed to
identify and help address. By comparing those that are able to succeed
with those that are not, valuable lessons can be learned about how to
improve the enforcement process.
3.6.3 Imposing Civil Penalties and other Sanctions
Civil penalties (dollar fines) and other sanctions such as criminal
conviction (jail terms), shutdown of operations, sewer bans, denial of
government contracts, and the like play an important role in U.S.
enforcement actions. In the past, many enforcement actions merely set
forth tailored compliance agreements detailing remedies and schedules for
correcting the violation. However, it is now generally recognized that if
there is no consequence to violating an environmental requirement (except
having to meet with government officials to agree to do what was required
in the first instance), there is every incentive to delay compliance until
caught. This view is supported by observations that indeed compliance has
languished without enforcement even when it is broadly understood that
clean up costs will increase substantially if violations are not corrected
early and where there would be an actual cost savings from early compliance
activities.
Each environmental program identifies where a penalty or other
sanction is essential for an enforcement response to be effective,
recognizing that penalties cannot easily be sought in each and every case.
It is more costly to bring an enforcement action which seeks some sanction
both in terms of agency time and resources. This is due to the protection
our society affords individuals against governments depriving them of
property and/or personal liberties without due process of law. The
complexity of our enforcement procedures are therefore proportionate to the
potential severity of the sanction. Penalties also are more hotly
disputed by violators than the fact of the violation and/or needed
remedies.
The National Municipal Policy, (13) a strategy to gain compliance by
municipalities with treatment and discharge limits under the Clean Water
Act, is a good example of how effectively penalties may be used to achieve
compliance. Municipalities operating publicly owned treatment works for
treatment of sewage were subsidized through Federal grants to construct new
treatment works. Given a reluctance to impose penalties on municipal
governments, the political sensitivity of doing so, and the existence of
the subsidy program, compliance levels lagged behind those of industry.
Municipalities soon became the major sources of point sources of pollution
in our waterways. The National Municipal Policy changed all that by
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INTERNATIONAL ENFORCEMENT WORKSHOP 23
announcing, with the support of the State association of Water Directors,
that firm enforcement measures would be taken, including stiff penalties
for violations. Penalties on a level comparable to that imposed on
industry were imposed systematically and this community began to believe in
the importance of compliance. Communities became progressively more willing
to settle rather than resist compliance.
Since 1984, EPA penalty policies require a penalty amount which
recovers the economic benefit of noncompliance as well as the gravity of
the harm, considering the severity of the violation, its potential harm,
the compliance history of the violator, etc. (14) This calculation is
aided by BEN, a user-friendly computer model which makes it easier than
before to calculate the economic benefit. (15)
Finally, EPA and the Department of Justice tend to favor monetary
penalties. Efforts to accept environmental good works or clean up
alternatives beyond those required for compliance as credit for a penalty
or as a basis for mitigating a penalty are closely scrutinized to ensure
monies are not diverted from the government inappropriately, and that there
remains a real sanction. Recent initiatives to promote pollution
prevention and environmental auditing where appropriate in case settlements
put pressure on penalty policies to allow some reduction in penalties in
exchange for these commitments. For example, EPA is seeking to introduce
environmental audit provisions into consent decree negotiations in cases
where there is a clear pattern of environmental management problems or a
pattern of a given type of violation within a company. (16) The Policy
Framework explicitly recognizes that there are non-monetary sanctions which
can have a deterrent effect that may be more powerful than monetary
penalties, and that those will be acceptable substitutes. This is
particularly true at the State and local level. To prevent abuse and
foster greater acceptance of these alternative approaches to sanctions, the
Policy Framework calls for national guidance as to what alternative
sanctions would be acceptable for this purpose.
The criminal sanction is viewed by many as the most effective
deterrent in the environmental enforcement arsenal, and has gained
substantial public support. (17) Criminal sanctions are increasingly being
sought by Federal EPA, the Department of Justice and the Federal Bureau of
Investigations, and in a growing number of State programs. It is, however,
generally valid only for willful circumventing of a requirement with some
exceptions: criminal sanctions are included for negligence under the Clean
Water Act, for all instances of unpermitted dumping into our waterways
under the Refuse Act, and for fraudulent and false reporting generally
under the U.S. Criminal Code (18 U.S.C. Section 1001) which is important to
ensure accurate self-monitoring and reporting. Criminal cases can be
costly and involve complex procedures. A relatively small but growing
number of cases where jail terms have been meted out have begun to change
some corporate management ethics. A pronounced policy on compliance with
environmental laws that is no more than a cosmetic attempt to comply can
result in corporate officials being held liable for the wrongdoing of their
employees. The U.S. Sentencing Guidelines, which will mandate terms of
incarceration for Federal crimes, allows consideration of environmental
programs with strong oversight and follow through for the specific
activities in question to mitigate the degree of culpability. This seems
to be having a significant effect on prevention, internal compliance
systems and employee incentives within a corporation to comply.
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24 INTERNATIONAL ENFORCEMENT WORKSHOP
EPA is also making increasing use of its Contractor Listing authority
whereby a listed facility is deprived of the right to be awarded Federal
government contracts, loans or guarantees as long as it is on the list. For
most violations of Clean Air and Clean Water Act requirements, contractor
listing is mandatory for criminal convictions and is discretionary for
civil violations at specific facilities. The sanction has offered a lot
of economic leverage in several difficult compliance cases. In addition,
EPA is placing ever increasing attention on the use of publicity
surrounding its enforcement actions and in creative settlements requiring
violators to use publicity to enhance deterrence.
3.7 Clarifying the State/Federal Relationship
A key element in any strategy is defining roles and responsibilities
for carrying out the program. Based on the belief that those closest to
the environmental problems are most familiar with them and best able to
provide an effective enforcement presence in the field, compliance
monitoring and enforcement in the United States is a highly decentralized
operation. Significant authority and responsibility resides with States
and localities. For example, States perform anywhere from 70-90% of the
inspections depending upon the program and are currently responsible for
about 70% of the formal enforcement actions. Programs which are solely
national programs with an exclusive Federal role, such as enforcement of
automobile and fuel standards, toxic chemical production and pesticide
registration, are the exceptions because of interstate commerce
considerations.
Despite the fact that most Federal statutes are structured so that
EPA delegates its authority to or approves State or local programs, under
these same statutes EPA retains parallel enforcement authority and is held
accountable by Congress for enforcement activity within those States and
for overseeing State performance. Congress and the public have viewed a
continuing national enforcement presence as important to ensure local
politics do not influence compliance and that laws are carried out fairly
across the nation.
3.7.1 State/EPA Enforcement Agreements
As noted above, in 1984, EPA and the States drew up a Policy
Framework for implementing State/EPA enforcement agreements which set forth
clear roles and responsibilities in enforcement. The Policy recognizes the
importance of ensuring that enforcement is viewed as firm, effective, and
fair on a national basis, and that scarce Federal and State resources be
used most efficiently. It clarifies the expectations for good performance
in implementing a strong enforcement effort and a constructive oversight
approach. The criteria for sound program performance pertain to EPA as
well as to State programs. The criteria look very much like the elements
of a good compliance and enforcement strategy. The annual process serves
as a forum for reassessing both Federal and State priorities.
The Policy Framework also establishes protocols for advance
notification and consultation on all inspection and enforcement matters and
defines criteria for direct Federal enforcement in delegated programs. In
addition, it defines consistent national reporting of five key indicators,
for all programs, to assess how effectively the national compliance and
enforcement program is being carried out. These indicators, which are
described more fully in Section 5 are: compliance rates, progress in
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INTERNATIONAL ENFORCEMENT WORKSHOP 25
recover the economic benefit of non-compliance, but encourages this
practice.
3.7.2 New Challenges and New Relationships:
EPA is now undertaking further review of its relationship
with State and local governments. While traditional program relationships
with State agencies continue to strive for a complementary approach and
smooth working relationship in enforcement, reguirements of newer programs
are not well served by these relationships as they are now structured.
o State Attorneys General: State agencies often rely upon State Attorneys
General (AGs) to bring law suits which, given a lack of administrative
penalty authority, may be the only means available to the State to bring
formal enforcement action with a sanction. Despite this dependence, State
AGs are not accountable for program performance. They are often
independently elected, and can be a different political party from the
Governor. EPA guidance tries to address this very delicate relationship by
encouraging States to plan resources and develop effective means of
coordinating activities with State AGs. It has also permitted some pass-
through of funds to AGs if the State so desires.
o Strategic Planning: Although annual agreements are supposed to review
local priorities and joint efforts, the process has been weak in this
regard. As greater emphasis is being placed upon targeting resources,
geographically, by industry, by pollutant etc., ways are being sought to
improve State and local involvement in and commitment to that process.
o Criminal enforcement: State environmental agencies are generally not
responsible for criminal enforcement, particularly criminal enforcement
which is primarily pursued at the local level in many States.
Relationships have had to be built with State Attorneys General, and more
complicating, with local district attorneys.
EPA has sponsored the development of interstate organizations comprised of
senior officials from State agency and legal offices to share resources and
information on hazardous waste transport and other issues. This was one
response to the need for new institutional relationships.
o Local law enforcement and public health authorities: New program
requirements involve activities which neither the State nor EPA are well
suited to carry out. Programs such as demolition and renovation involving
asbestos are best tied to local building code enforcement or health agency
activities at the local level. Similarly pesticide applicator enforcement
ties in with local health authority activity. The Underground Storage Tank
program is working with local fire marshals and police to enforce tank
requirements. Despite the obvious advantages of tapping these resources,
none of the Federal statutes are structured to build these relationships.
3.8 Evaluating Performance and Accountability
Each strategy includes measures for assessing its successful
implementation. Formal reporting and accountability systems established
for all environmental enforcement programs set forth five key indicators of
performance, the very indicators agreed to by the States. These are
defined in Section 4 below. These indicators are tailored to ensure
effective implementation of program strategies.
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26 INTERNATIONAL ENFORCEMENT WORKSHOP
returning significant violators to compliance, number of inspections,
number of administrative enforcement actions, and number of judicial
referred and filed cases. Agreements are developed for each program, with
each State, and are updated annually.
EPA has interpreted its oversight role and the State/Federal
partnership differently at various times in its history, sometimes
emphasizing direct Federal enforcement, sometimes general oversight,
sometimes focusing on a narrow set of sources or environmental concerns.
The Policy Framework, annual State/EPA enforcement agreements, and the
ongoing work of the Steering Committee on the State/Federal Enforcement
Relationship, chaired by the Office of Enforcement are designed to
stabilize and continue to improve the relationship over time. The Steering
Committee is composed of about thirty individuals representing all EPA
Headguarters compliance office directors, Office of Enforcement, Deputy
Regional Administrators, Regional Counsels, Executive Directors of the
State associations and representative State officials. (18)
The criteria for direct Federal enforcement establish the policy
ground rules that EPA generally will take direct enforcement action in a
delegated or approved State only if the State is unwilling or unable to
take timely and appropriate enforcement response. Other limited
circumstances in which Federal enforcement will be pursued include: where a
state requests EPA action, where national legal or program precedent is
involved, areas where State authority may be inadequate or where there is a
violation of an EPA order or consent decree. In addition, if a State is
taking timely and appropriate action but it has a history of inability to
get a repeat violator back into compliance, Federal enforcement may be
undertaken to ensure results.
Where EPA believes that Federal enforcement is needed, policy
dictates staff should act to the extent possible in a manner that leaves
the State enforcement program respected and looking strong. EPA may offer
to take joint action with the State, use State inspection or other data and
witnesses as appropriate, involve States in creative settlements and to
participate in case development, arrange for division of penalties for
States whose involvement in the case warrants it, issue joint press
releases and share credit with the State, keep States continually apprised
of events and reasons for Federal actions and in rare instances to consider
withdrawing a Federal action in deference to subsequent or simultaneous
State action with equivalent effect. Even when there is national program
or legal precedent involved, EPA guidance on nationally managed or
coordinated cases sets forth a strong preference for working in partnership
with a willing State to ensure issues of national concern are adequately
addressed and to minimize the need to replace or disrupt a State action
undertaken in an approved program.
Agreements that enforcement response should be timely and appropriate
cut into some fundamental philosophical differences between EPA and the
States. Many States prefer informal enforcement actions for their lower
cost. They also prefer enforcement without a penalty or without a very
large penalty if compliance would otherwise be achieved. In other words,
many States have traditionally been more reluctant to accept deterrence as
a key component of resolving individual compliance problems. Over the past
few years of tracking progress in implementing timely and appropriate
enforcement response guidance, it is apparent that the philosophical gap is
closing, with a higher percentage of State action being formal, and
imposing a penalty. EPA has not gone so far as to require States to
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INTERNATIONAL ENFORCEMENT WORKSHOP 27
4.0 MANAGEMENT ACCOUNTABILITY AND EVAUUATICW
A distinguishing characteristic of the U.S. enforcement program is
the manner in which it holds its managers accountable for program success.
It is now accepted that enforcement can, and indeed must, be managed like
any other function; that it is not just a matter of discovering and
resolving individual violations on a case by case basis. Accountability
for program effectiveness and results also is a very public matter in the
United States.
4.1 Measures of success
Establishing appropriate measures and systems for management
accountability and continuing evaluation is as difficult and controversial
as it is essential to ensuring the health of the program. There is a
continuing search for and debate about how to define performance measures
and appropriate levels of performance expectations for those carrying out
enforcement.
Several measures are used to evaluate program effectiveness and
performance of personnel. Some measure results, some measure the levels of
activity, and some provide more qualitative assessments of program
performance and direction. The measures include:
- environmental results
- compliance rates
- progress in returning significant violators to
compliance
- number of inspections
- number of administrative and judicial enforcement
actions: referrals and fined cases.
- timeliness and appropriateness of enforcement
response
- level of penalties imposed
Figure 3 illustrates how the specific types of measures relate to
program goals, deterrence theory and current practice. Before addressing
each of the measures used to manage enforcement, there are two conclusions
that can be drawn from the U.S. experience:
o No single measure in isolation can adequately describe what is happening
in enforcement; they must all be used as a whole.
o Quantitative measures must be supplemented with qualitative assessments
and information.
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INTERNATIONAL ENFORCEMENT WORKSHOP
Figure 3a Relationship among Evaluation Measures, Oversight approach and
Deterrence theory
Deterrence:
Measure
Oversight
Approach
Credible likelihood of
Detection
Swift and sure
enforcement response
Appropriate Sanction
Perception of above
# inspections
Timeliness/Type of
Enforcement
Penalties:
Dollars Assessed
Years in Prison
Penalty Policies
followed
Quarterly targets
compared to actual
Annual Report
Performance standard
Annual Report
Annual Report
Annual file review
Individual Case review
# Administrative cases Quarterly estimates
# Judicial referrals Quarterly tracking
# Judicial Filings
Effort to publicize Performance Standards
Results:
Environmental results of
program (I)
Behavioral results of
requirements (II)
Progress in returning
significant violators
to compliance (III)
Compliance with formal
enforcement requirements
(IV)
Environmental measures
Compliance rate
Percent targeted
universe in compliance
or action taken
Compliance with
enforcement terms
Program Goals:
Hierarchy
I Environmental Goals of total program, both direct
enforcement and deterrence effects
II Program Integrity Goals: adherence to the law
III Environmental Goals of individual, direct, enforcement
effectiveness in returning violators to compliance
IV Enforcement integrity
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29
Figure 3b How Enforcement is Managed: Air Toxics example
Agency Management system
Strategic Planning Process
Regions and States
Operating Year Guidance
Strategic Plan
Regional Enforcement Plan
Quarterly Reports
Annual Reports
Periodic management reviews
Budget
Air program defines air toxics as priority
in process involving consultation with
Air toxics is priority, includes
enforcement of existing NESHAP (National
Emission Standards for Hazardous Air
Pollutants)
Defines outreach efforts, use of self-
monitoring reporting to target
inspections, enforcement response,
state/federal roles and measures of
success.
May call for special initiative to identify
targets for inspections/enforcement
% NESHAP universe inspected within past 12
months
# Administrative enforcement actions
# Judicial enforcement
Timeliness and use of Penalties in
responding to NESHAP violations
Evaluate reasons for non-performance or
particular success
Reviews compliance status, estimates # of
violators and needed enforcement
resources
Allocates resources to Regions by relative
need.
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30 INTERNATIONAL ENFORCEMENT WORKSHOP
4.1.1 Environmental results
Environmental results is the ultimate measure of success of any
environmental program. State and EPA officials alike view achieving the
environmental results anticipated by the standard, regulation or permit, as
the most desirable measure of success but as a measure of the success of
enforcement it has several shortcomings.
Some requirements do not have specific environmental results,
(e.g. training for employees, monitoring of groundwater, reporting
of compliance data etc.) or, the environmental results are
potential, not real (e.g. damages that could have arisen if the
violation would not have been corrected).
There can be a significant time lag between actions taken today
and when environmental results are manifest.
Data systems do not readily link data on the environment with
specific sources and actions.
Even if environmental results directly resulting from specific
cases could be measured, it is difficult to quantify environmental
results to the deterrent effect of bringing that case.
One cannot easily associate the environmental result with
enforcement related actions for accountability purposes e.g. was
an improvement in air or water quality a result of deliberate
action or could they be attributed to changing weather patterns or
economic conditions?
In the U.S., environmental results have been used only indirectly to manage
day to day enforcement. However, there is a concerted effort to make
greater use of environmental results in describing direct benefits of
individual enforcement cases as well as to build it into case selection and
management systems.
4.1.2 Compliance Rates
The rate of compliance is one of the best overall measures of
enforcement success and high rates of compliance are the ultimate goals of
most U.S. programs. Without at least some credible assessment of
compliance with environmental standards, regulations, or permit
requirements, it is impossible to claim a particular approach works.
Nevertheless, it too has shortcomings as a single measure of success.
A high compliance rate can be misleading if it is the most
significant sources which are out of compliance.
A lower rate of compliance may mean the program is doing a good
job of detecting violations, and/or requirements are more
stringent.
Compliance rates may not be reliable if, of necessity, they are
based upon infrequent inspections or faulty self monitoring.
It is difficult to isolate what influenced compliance, and whether
enforcement or other factors had an effect.
Although compliance rates are the closest measure of actual results of
enforcement, and for that reason are calculated for each program, it is
difficult to hold managers accountable for compliance rate improvements
because of these shortcomings.
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INTERNATIONAL ENFORCEMENT WORKSHOP 31
4.1.3 Progress in returning significant violators to compliance:
This measure was developed in 1985 to provide something more concrete
against which both to manage enforcement activity and direct and assess
results. Regions and States identify significant noncompliers (SNC) based
upon national definitions, and make commitments to addressing specific
numbers of them each quarter. Their performance is assessed for whether
the SNC is either returned to compliance or an enforcement action is taken
against it. National guidance on what is an acceptable resolution of the
noncompliance takes into account timely and appropriate criteria. For
example, if a formal enforcement action imposing a penalty is required to
address the violation, the violation would not be considered to be resolved
if the violator returned to compliance on its own accord. Over the past few
years, these measures have improved integration of the concepts of timely
and appropriate action with quarterly targets of progress against a
specific lists of sources.
4.1.4 Numbers of Inspections/Compliance Monitoring
This measure reflects the broad enforcement presence needed to ensure
some degree of integrity to the compliance rates that are reported. Some
programs just report total numbers of State and Federal inspections.
Others capture the required coverage of inspections by presenting the
percentage of sources within a category that have been inspected within the
year. This means that if major air toxic sources are to be inspected once
a year the target percentage should always be 100%. This enables
management to distinguish coverage from depth, i.e., those that are
inspected more than once.
There is no management reporting related to source self-monitoring
and reporting which is often the most important source of overall
compliance statistics.
4.1.5 Numbers of Administrative and Judicial Cases
This measure is the most closely watched indicator of enforcement
strength to the Congress and public at large. Specifically, great emphasis
is placed upon the number and type of court suits brought by EPA. This is
true despite the shift over recent years to a greater amount of
administrative enforcement, and an increase in State judicial enforcement
activity, with increased emphasis on building support from the State
Attorneys General for enforcement. EPA recognizes that reporting the
number of enforcement actions fails to address the significance of those
actions, in terms of severity of violation, number of sites involved,
multiple violations or repeat violators. EPA has been exploring new ways
of communicating this qualitative aspect of enforcement actions in ways
other than in reports and press releases.
4.1.6 Timely and Appropriate Enforcement response
Annual reports are prepared with breakdowns by Region, program, and
State on how timely and appropriate enforcement response has been to the
most significant violations. The Office of Enforcement coordinates a
consolidated report from separate reports prepared by each national
program. These reports reflect differences in how each program defines
timeliness and significant violations.
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32 INTERNATIONAL ENFORCEMENT WORKSHOP
4.1.7 Penalties
Annual reports are prepared with breakdowns by Region and program on
the assessment of penalties, both civil and criminal. These reports are
also consolidated by the Office of Enforcement from separate reports
prepared by each program. They do not address State penalties since this
information is not collected nationally. One of the reasons for this is
the differences in State authorities and difficulty of capturing the impact
of other non-monetary sanctions. Plans have periodically been discussed
for pilot testing a State penalty report to determine the feasibility of
capturing these differences.
4.1.8 Follow through on civil enforcement cases
EPA tracks, for internal purposes, the follow through on civil
judicial cases, to ensure that agreements that have been violated are
followed up with appropriate response.
4.2 Management systems and Accountability
Every organization has its own management culture. At the U.S. EPA,
there is a central management system which is used for all programs and
functions, and for both State and Federal actions. The system defines
quantitative measures, obtains commitments to achieve target levels of
performance, and evaluates performance against those targets. Performance
is very visible, and can be compared across Regions and programs. The
system, now called STARS, has quarterly reports and quarterly feedback to
identify problems and steps to address them. The Deputy Administrator of
EPA, its second highest official, holds quarterly management reviews in
Headquarters and semi-annual (two tiroes per year) visits to each Region to
review performance.
The Deputy also receives narrative reports describing what is
happening in implementation of the program. The Deputy raises concerns in
regularly scheduled meetings, and in memoranda and telephone calls
following each quarterly report. Effective enforcement is a major part of
the responsibilities of Regional and Deputy Regional Administrators.
Over the years, the system has been criticized as being too effective
in affecting performance. It has been perceived as too rigid because
managers interpreted it as requiring them to take some less effective
actions than others to avoid questions when targets are missed. There has
been an effort to provide greater flexibility to Regions and programs in
substituting other worthwhile activities for those called for by these
national management systems and measures. More emphasis is also being
placed on the supplemental qualitative evaluations of how the program is
being implemented.
The effectiveness of the management system starts with strong
evidence of its use by and importance to senior agency management in
evaluating management and staff performance. Without that senior level
attention to the information provided, and without the overall commitment
to enforcement, it would not work to ensure implementation of the program
we have outlined.
Collecting and processing reliable information on enforcement is a
constant challenge. National data systems are used, usually having to draw
on more inclusive State and regional data systems. Ideally, the national
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INTERNATIONAL ENFORCEMENT WORKSHOP 33
systems would be designed from the bottom up. Its utility to State and
local officials would guarantee its use and therefore the quality of the
data. In reality, national systems were designed to manage data for
national use, and compatibility with local data management systems has been
a problem. Recently the agency has been initiating projects to better link
local systems with the national systems so there is direct reporting. With
direct reporting and data system linkage, information and valuable time is
not lost as the information moves from level to level.
State reporting is a condition of grant agreements. A continuing
challenge is to ensure consistent definitions are used for what is
reported. For example, separating informal and formal enforcement
responses.
Itie Assistant Administrator for Enforcement supplements the national
STARS system with informal regional projections of the number of civil
referrals and administrative orders per quarter. This allows the attorneys
to anticipate workload and serves as an early warning if enforcement is
lagging behind.
Information, by itself, is a powerful management tool. How the numbers
are reported and used affects both its quality and impact. When national
totals are presented they are not useful in assessing regional and State
performance, and they are of less interest to regional and State officials.
When the numbers are disaggregated, to highlight regional and State
performance, the effect on performance can be significant. Managers are
motivated by reviewing their record against that of their peers. This
natural competition coupled with an ability to identify both problems and
successes, can spur needed improvements and sharing of sound approaches.
This will be the first year that data on a State-by-State basis will be
publically released and EPA expects improved performance to result.
Furthermore, public display of such data tends to improve its quality,
which is an ongoing problem.
Several examples may help to illustrate the point. In 1984, the
first report was prepared of Federal penalty practices and a new civil
penalty policy was issued. Penalties totaled over $6.9 million. Since that
time penalties have risen steadily in part because penalty practices were
given more visibility, and in part due to improved tools for calculating
penalties, and renewed emphasis on penalty policy implementation. 1985
penalties were more than three times those of 1984. In the following three
years, they increased from approximately 23 million to over 36 million
dollars. (18,19)
Similarly, since preparing annual reports on timely and appropriate
enforcement response, State use of formal enforcement and penalties
increased significantly and EPA and State timeliness have as well. For
example, in the air program, State use of penalties to address significant
violators went from 69% in 1984 to over 90% in 1988. In the hazardous
waste program, States increased their use of formal enforcement against
significant violators from 25% in 1980 to 47% in 1989, and imposed
penalties in 84% of such cases in 1989 as compared to only 33% in 1980.
(20) In the water discharge program States increased timeliness of return
to compliance from 75% in 1988 to 82% in 1989. Where improvements were not
being made, the programs just happened to be those in which the linkage
between response guidance and management systems was weak. Improvements
have been made recently in tying timeliness goals and management systems
more closely in the air and RCRA programs and the impact on performance
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34 INTERNATIONAL ENFORCEMENT WORKSHOP
will be closely watched.
Another factor in the impact of the system is the link to performance
standards. Personal accountability is a powerful incentive in government
and industry alike. A third factor is follow through by senior managers,
and careful oversight of results.
4.3 Public Accounting
EPA is continually scrutinized by Congress, directly through public
hearings or through reports commissioned by them through the General
Accounting Office. Internally, EPA performance is reviewed by the
independent review of an Inspector General and his staff. These detailed
evaluations involve, for example, extensive file reviews to ensure penalty
policies are followed.
The public also demands an accounting. EPA publishes annually a
national accomplishments report (19) and urges the Regions to publish
Regional reports in cooperation with the States in that Region. Publicity
about enforcement not only serves to reassure the public as to its
credibility and effectiveness, but it also enhances the deterrent value of
enforcement. Figure 4 contains excerpts from the Fiscal Year 1989 report
on selected measures described in this paper.
5.0 ENFORCEMENT INFRASTRUCTURE AND ORGANIZATION
The strategies and management tools utilized by the U.S. enforcement
program, will not be directly transferable to other cultures. However,
many of the elements are based upon human nature and sound management
practice and may therefore transcend cultural differences. To the extent
this overview suggests new ways of operating other nations' compliance and
enforcement programs, it is important to keep in mind what it takes to
implement them in terms of organization, budget, data systems, training,
and personnel.
5.1 Organization
Over the years, enforcement has been organized in many different
ways. It was once a separate office at Headquarters with counterparts in
the ten Federal Regions, combining attorneys and technical staff. It is
now decentralized within each program at Headquarters and the Regions with
central management of attorneys and of the criminal enforcement program,
and a strong oversight and leadership role in the single coordinating
office at Headquarters. This central Office of Enforcement directly
manages attorney staffs in both Headquarters and the Regions and the
enforcement component of agency-wide management accountability and
reporting systems. It does not, however, directly manage inspection
resources for civil enforcement, nor staffs devoted to administrative
enforcement nor to broad compliance oriented activities.
Through all the numerous changes in organization, the enforcement
function also has included the National Enforcement Investigations Center
(NEIC) in Denver. This is a technical support group which offers the
expertise of trained investigators, skilled in a broad range of technical
areas such as groundwater monitoring, hazardous waste sampling, etc.
It is a flexible, project-oriented workforce that enables the EPA and the
States to supplement their own inspection and laboratory staffs in response
to very large cases or to the need for special expertise and equipment that
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INTERNATIONAL ENFORCEMENT WORKSHOP
35
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INTERNATIONAL ENFORCEMENT WORKSHOP
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38 INTERNATIONAL ENFORCEMENT WORKSHOP
may not be needed for more routine enforcement cases. Most recently, NEIC
has managed EPA's criminal investigators as well.
The management systems described in this paper overcome what would be
an understandable reluctance of managers to pursue enforcement who may
neither be personally inclined in that direction nor sufficiently focused
on enforcement as a full time task. The management systems can serve any
organizational structure. There probably is no magic solution to
organizational issues in enforcement. While different organizational
structures can either expedite or impede communications and the enforcement
process, any organization for enforcement must of necessity involve the
participation of many groups with divergent interests to interpret
requirements, collect and analyze data, develop and approve agreements or
litigate.
5.2 Budget
Enforcement and compliance monitoring represent approximately 25% of
EPA's total budget. That budget includes grants to States which also
includes funds for enforcement activities. Over the years that percentage
has fluctuated, but the overall direction has been a steady increase
commensurate with the implementation phase of many EPA programs.
Figure 5 illustrates the number of workyears and dollars that are
spent on enforcement in each program area, and for comparison purposes,
includes an estimate of the universe of regulated sources that the program
is designed to address. Missing are estimates of State resources, which
could represent a sizeable addition to the total, depending upon the
statute and program. Note that enforcement resources include those needed
for permit issuance under the water and hazardous waste programs.
The split between technical and legal resources has run approximately
80 to 20 percent respectively of agency enforcement workyears.
5.3 Data Systems
Data reporting and systems to record and analyze data are critical to
producing quantitative information on performance and assessing progress in
meeting enforcement priorities and objectives. They are also essential in
maintaining a current inventory of regulated sources to target inspections
and assess appropriate penalties for repeat violators. Each program
maintains its own national data base, at considerable expense. It is now
recognized that a more sophisticated approach is needed to data management
that would enable enforcement personnel to identify violators in more than
one program, repeat violators, multiple violations by a single corporation
nationally, and the like. The proposed four year strategy for enforcement
(21) and recent budget submission by the Office of Enforcement establish an
integrated data analysis capability as a very high priority in support of
enhanced case screening and targeting of enforcement.
5.4 Training
EPA and the States have operated for many years without formal
training programs. Inspectors and Attorneys learned on the job by
consulting with and watching colleagues. EPA has now recognized the
increasing sophistication of the job, complexity of requirements and the
needs of staff with high turnover rates. In 1988, EPA adopted an Order
which mandates training, both generic skills training and program, statute-
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INTERNATIONAL ENFORCEMENT WORKSHOP
39
Fig. 5 Enforcement is a Significant
Percentage of Total EPA Resources
WORKYEARS
DOLLARS $000
25%(4242yrs.)
7% ($400)
EPA Resources
75%(16761 yrs.)
93%($5581)
Enforcement Category
Workyears Dollars
Fiscal Year 1991 Total
4242
400,003
Universe
Stationary Source
Mobile Source
Water Quality
Drinking Water
Hazardous Waste
Pesticides
Toxics
Emergency Preparedness
Underground Storage Tanks
Superfund
Management and Policy
362
120
742
100
576
157
188
11
6
1445
532
25,143
12,9%
53,117
5,000
60,587
10,434
12,271
3,056
280
179,654
37,366
14,790/40,000
millions
15,590/60,000
>230,000
1420/92,100
n/a
n/a
n/a
millions
1,170
Source: President's Fiscal Year 1991 Budget Request. Note that the Percentage that
enforcement workyears represents of total agency workyears has increased from 23 to
25% over the past three years Total EPA resources includes State grants.
Universe: first number is priority sources, e.g. water major dischargers and selected
municipal treatment works over a specified size, air sources subject to national
performance standards and those major facilities located in non-attainment areas, etc. The
second number is the total FY 89 estimated universe subject to requirements.
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40 INTERNATIONAL ENFORCEMENT WORKSHOP
specific training for all its field inspectors. EPA offers its training
materials and courses to the States. (22)
EPA is now exploring the integrated concept of a national training
institute which provides an umbrella training opportunity for inspectors,
attorneys and program staff. It would serve not only to train individuals
but should also help build the necessary team spirit and understanding
essential to carrying out an effective enforcement program. The national
enforcement training institute is also included in the proposed four year
strategy for enforcement.
5.5 Personnel
The vast majority of EPA civil inspectors are scientists or engineers
by training, and over 75% of the estimated 1600 persons performing
inspections do so less than 20% of the time. The remainder of their time
is usually devoted to other program activities. This profile is probably
in sharp contrast to State programs which conduct more of the routine
inspections and which have a more extensive field presence. Moreover, the
vast majority of EPA inspectors specialize in only one EPA program while
many State inspectors cover multiple program responsibilities. As
environmental problems reguire a more global perspective to ensure
pollution is not transferred from one medium to another and as EPA'S
emphasis shifts to pollution prevention and control of toxic chemicals,
demand will increase for personnel training and experience in more than one
program.
Contractors are sometimes hired by EPA to perform inspections. See
Figure 6 for percentage and number of inspections performed by EPA, States
and contractors. Under EPA's training order, contractors must complete the
same training as EPA personnel.
EPA's criminal investigators were originally drawn from traditional
law enforcement backgrounds, and have had to master the technical and legal
nuances of environmental regulations. More recently, EPA has tried the
opposite approach, training civil inspectors and program personnel in law
enforcement procedures and technigues in an attempt to maximize their
knowledge of technical fields and networking within the Agency and to
minimize some cultural differences between the two backgrounds. EPA has
found there are no easy answers to achieving the right skill mix to carry
out this complex task.
Most attorneys hired by EPA have both a law degree and technical
training in science or engineering and have had some work experience in
addition to law school. Because of the appeal of environmental issues, EPA
and the Department of Justice have been able to attract excellent
candidates who compete successfully with the best law firms in the country.
A turnover rate of over 25% in both enforcement attorneys and inspectors
has complicated the task of maintaining a skilled and experienced
workforce.
Because of the limited number of personnel carrying out State and
Federal inspections as compared to the universe of sources requiring
inspection, EPA, the Congress and some State legislatures have periodically
explored the use of third parties to perform inspections, paid for by the
regulated sources. However, to date, the reliance on third parties has not
materialized for several reasons: lack of credible substitutes for
independent government inspections, resource requirements of establishing a
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INTERNATIONAL ENFORCEMENT WORKSHOP
41
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42 INTERNATIONAL ENFORCEMENT WORKSHOP
credible certification or approval program for third parties, and the
extent to which environmental requirements are not easily and objectively
defined because they have been changing, complex and subject to
interpretation. Nevertheless, given its appeal, the search for such a
scheme for leveraging limited government resources will likely continue
until a successful formulation is found.
Similar concerns over the need to better leverage limited enforcement
attorney staffs have spawned a growing emphasis on alternative dispute
resolution techniques, such as mediation and arbitration, to supplement
attorneys and the litigation process in helping to resolve enforcement
cases more expeditiously.
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INTERNATIONAL ENFORCEMENT WORKSHOP 43
REFERENCES/FOOTNOTES
1 Wasserman, C.E. "Improving the Efficiency and Effectiveness of
Compliance Monitoring and Enforcement of Environmental Policies,
United States: A National Review," October, 16, 1984 prepared on
behalf of the Organization for Economic Oo-operation and Development.
Group of Economic Experts for a more detailed overview of the U.S.
enforcement program. Although somewhat dated, this works remains an
accurate and more comprehensive review of the U.S. program.
2 The Fourteen Federal statutes include: the Clean Air Act; Clean Water
Act; Resource Recovery and Conservation Act (solid and hazardous
waste); Toxic Substances Control Act; Safe Drinking Water Act;
Federal Insecticide, Fungicide and Rodenticide Act; Comprehensive
Environmental Response, Compensation and Liability Act (Superfund for
clean-up of orphaned hazardous waste sites); Medical Waste Tracking
Act; Shore Protection Act; Emergency Planning and Community Right to
Know Act; Rivers and Harbors Act; Marine Protection, Research and
Sanctuaries Act; National Environmental Policy Act; and Noise Control
Act.
3 Charlton, T. "Study of Literature Concerning the Roles of Penalties
in Regulatory Enforcement", September 1985, Compliance Policy and
Planning Branch, Office of Enforcement and Compliance Monitoring.
4 Wasserman, C. E. "Environmental Compliance and Enforcement:
Theory, Practice and the Challenge to Environmental Economists",
prepared for the Association of Environmental and Resource Economists
Workshop on Environmental Enforcement and Monitoring, August 13-14,
1987, University of Delaware.
5 See Note 4 above. Also see: Scholtz, J.T. "Cooperation, Deterrence,
and the Ecology of Regulatory Enforcement", Law and Society Review,
Volume 18, No. 2, 1984.
Kagan R.A. and Scholtz, J.T. "The Criminology of the Corporation'
and Regulatory Enforcement Strategies", Enforcing Regulation, edited
by Keith Hawkins, and John M. Thomas, Law in Social Context Series,
1984, Kluwer-Nijhoff Publishing.
Miller, D.T. "Psychological Factors Influencing Compliance",
February 7, 1985, Study for the Federal Statutes Compliance
Project, Department of Justice, Ottawa.
Meidinger, E., Boyer B., and Thomas, J. "Analysis of Environmental
Compliance Theories", June, 1987, SUNY at Buffalo. Unpublished draft
report submitted to EPA's Office of Policy Planning and Evaluation, .
Edwards, T. and Kuusinen, T. "Strategies for Improving Industrial
Environmental Compliance, a Draft Report", Regulatory Innovations
Staff, Office of Policy, Planning and Evaluation, U.S. EPA, December
1989.
6 United States Environmental Protection Agency (1984).
Agencywide Compliance and Enforcement Strategy and Strategy
Framework for EPA Compliance Programs. Unpublished internal
document.
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44 INTERNATIONAL ENFORCEMENT WORKSHOP
7 United States Environmental Protection Agency, Memorandum from
Alvin L. Aim, titled "Establishing a Compliance and Enforcement
Strategies Process", October 12, 1984.
8 The Emergency Planning and Community Right to Know Act (EPCRA)
requires, among other things a toxic release inventory to be
submitted to EPA by designated sources of chemicals above a certain
threshold number of employees and quantity of listed substances.
This inventory is a public document (except items protected as
confidential business information) and is accessible by computer
linkage to the National Library of Medicine data system to the
public.
9 Adams, T.L. Jr. and Braem, L.A. "EPA's Enforcement Priorities for
Fiscal Year 1988" National Environmental Enforcement Journal, July,
1988.
10 United States Environmental Protection Agency "Environmental
Auditing Policy Statement; Notice" Federal__Rectister Vol. 51, No. 131,
Wednesday, July 9, 1986, page 25004. See also Memorandum from Thomas
L. Adams Jr., titled "Final EPA Policy on the Inclusion of
Environmental Auditing Provisions in Enforcement Settlements".
(November, 14, 1986)
Little, A.D. Inc., Benefits of Environmental Auditing, Case
Examples, December, 1984, prepared for EPA's Regulatory Reform Staff.
Little, A.D. Inc., Benefits to Industry of Environmental Auditing,
August, 1983, prepared for EPA's Regulatory Reform Staff.
United States Environmental Protection Agency, Annotated Bibliography
on Environmental Auditing, Sixth Edition November 1986, EPA's
Regulatory Reform Staff.
Little, A.D. Inc. Annotated Bibliography on Environmental
Management, First Edition, November 1985, prepared for EPAs
Regulatory Reform Staff.
11 United States Environmental Protection Agency, Memorandum from
A. James Barnes, Deputy Administrator, titled "Revised Policy
Framework for Implementing State/EPA Enforcement Agreements",
August 26, 1986.
12 United States Environmental Protection Agency, Memorandum from Thomas
L. Adams, Jr. Assistant Administrator for Enforcement and Compliance
Monitoring, titled "Report on the Implementation of the Timely and
Appropriate Enforcement Response Criteria", Braem, L.A. et. al.
Compliance Policy and Planning Branch, Office of Enforcement, March,
1988.
United States Environmental Protection Agency, Memorandum for
Edward E. Reich, titled "Report on FY 88 Implementation of the Timely
and Appropriate Enforcement Response Guidance", Lee Braem, Compliance
Policy and Planning, OECM, June, 1989
United States Environmental Protection Agency, Memorandum from Gerald
A. Bryan, Director, Office of Compliance Analysis and Program
Operations, titled "Draft Report on the Implementation of the Timely
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INTERNATIONAL ENFORCEMENT WORKSHOP 45
and Appropriate Enforcement Response Criteria", Compliance Policy and
Planning Branch, Levenstein, David et. al., April, 1990.
13 United States Environmental Protection Agency, National Municipal
Policy, 49, Federal Register, 3832, January 30, 1984.
14 United States Environmental Protection Agency, Policy on Civil
Penalties, EPA General Enforcement Policy #GM - 21, February 16,
1984.
15 United States Environmental Protection Agency, BEN User's Manual,
1987 (2nd Edition).
16 Wasserman, C.E., "Environmental Auditing Provisions in Consent
Decrees and Orders," Section 8.03[4][b], pages 185-191, Law of
Environmental Protection, edited by Sheldon M. Novick, Environmental
Law Institute, 1989)
17 United States Department of Justice, Bureau of Justice Statistics
Bulletin, January 1984, in which 60,000 people were asked in a public
opinion poll, to rank the severity of particular crimes.
Environmental crimes ranked seventh after murder but ahead of heroin
smuggling and skyjacking.
18 Wasserman, C.E. "Oversight of State Enforcement", Section 8.02,
pages 8-103-127, Law of Environmental Protection edited by Sheldon M.
Novick, Environmental Law Institute, 1987.
19 United States Environmental Protection Agency, Memorandum
from Thomas L. Adams, Jr., titled "Report on Civil Federal Penalty
Practices", Carol Hudson Jones, Compliance Policy and Planning,
Office of Enforcement and Compliance Monitoring, July, 1987.
United States Environmental Protection Agency, Memorandum
from Edward E. Reich, titled "Report on FY 1986-88 Federal Penalty
Practices", Alderson, G. et.al. Compliance Policy and Planning,
Office of Enforcement, April, 1989.
United States Environmental Protection Agency, Memorandum
from James M. Strock, titled "Report on FY 1989 Federal Penalty
Practices", Alderson, G. et.al. Compliance Policy and Planning,
Office of Enforcement, March, 1990.
20 United States Environmental Protection Agency, "Enforcement
Accomplishments Report: FY 1989", Office of Enforcement, February
1990.
21 United States Environmental Protection Agency, "Enforcement Four Year
Strategic Plan: Enhanced Environmental Enforcement for the 1990's"
Office of Enforcement, March 1990.
22 U.S. EPA, Office of Compliance Monitoring and Enforcement, Compliance
Policy and Planning Branch; Fundamentals of Environmental Compliance
Monitoring Inspections, February, 1989.
U.S. EPA Order 3500.1, Training and Development of Compliance
Inspectors/Field Investigators, June 29, 1988.
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46 INTERNATIONAL ENFORCEMENT WORKSHOP
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INTERNATIONAL ENFORCEMENT WORKSHOP 47
TARGET GROUP MANAGEMENT INDUSTRY AND INTERNAL COMPANY ENVIRONMENTAL MANA-
GEMENT
L.M. Peters
Director for general policy and administrative affairs
Directorate-General for Environmental Protection
Ministry of Housing, Physical Planning and Environment
P.O. Box 450
2260 MB LEIDSCHENDAM
1. INTRODUCTION
It is indeed a rare occasion when a newspaper or specialist journal does
not carry articles about the environment. Water pollution, air pollution,
soil pollution, chemical waste problems and such like issues are more
often newsworthy.
Companies are involved in two separate modes. To begin with, they also
cause environmental pollution. Not enjoyable but explainable, for you
cannot make an omelette without breaking eggs. But in addition to this,
companies are also burdened by environmental pollution. Perhaps not the
first item which comes to mind but still logical, for to operate effi-
ciently companies require clean water, pure air and sufficient raw mate-
rials or energy. An example from the road transport business is the smog
problem. When air pollution has deteriorated seriously, traffic is forced
to a complete stop, which is very detrimental to this branch of industry.
But also to companies which depend on transport. In addition to this one,
other examples are not difficult to envisage.
Therefore, a clean environment is not only necessary to lead a healthy
life, but also to continue manufacturing or delivering products. This is
also the essence of the National Environmental Policy Plan which was
published May 1989.
2. NATIONAL ENVIRONMENTAL POLICY PLAN AND SUSTAINABLE DEVELOPMENT
The National Environmental Policy Plan (NEPP) is a strategic plan for the
medium-term and long-term period, to wit 1990 - 2010. It sketches the
main policy outlines which according to Government are required to make a
start in combating environmental issues.
The National Environmental Policy Plan indicates environmental problems
will only be brought under control if many emission reductions of 70 %-
90% are effected, including those for waste materials. This is necessary
to maintain environmental carrying capacity.
In addition the NEPP calls for the realization of sustainable develop-
ment. Sustainable development is:
"development which satisfies the needs of the present generation
without endangering the possibilites of future generations for satis-
fying their needs".
This means transference of environmental problems to other generations,
other areas or other scale levels must be stopped. In principle a soluti-
on must be found for environmental problems within one generation (20 to
25 years).
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48 INTERNATIONAL ENFORCEMENT WORKSHOP
This results in an imperative structural adaptation of the economic pro-
duction process as it is known up to now. Not for nothing the NEPP sta-
tes: "a clean and healthy environment is a prerequisite for sustainable
economic development".
This is also the cause why trade and industry should focus all attention
on present environmental issues!
The time frame in which we were concerned only with the detrimental ef-
fects of economic growth on the environment has really passed. Now it is
high time to worry about the disastrous effects to the economy of envi-
ronmental destruction. By that, the necessity is introduced for companies
to focus all attention on environmental issues. And with this a common
concern for all!
It is expected from trade and industry to cooperate in the execution of
the following NEPP measures:
1. In joint venture with Government deal with problems, such as:
* Branches of industry screening
* developing plans for:
- prevention or recycling of waste materials,
- reduction of energy consumption,
- soil cleanup,
- stimulation of clean technology.
2. Companies will take into account all environmental aspects when taking
investment decisions.
3. Adapt production processes by means of clean technology as quickly as
possible.
4. To start off environmental management systems in companies.
3. TARGET GROUP APPROACH
Broad endorsement of NEPP policy is of the utmost significance.
Further policy development will no doubt raise problems.
The acttractive long-term perspective is the glue which will bind indus-
try and government together.
Dealing with problems in joint venture with Government. To this end, the
target groups approach is reinforced also as a result of NEPP.
By this we aim to make operational the objectives of environmental policy
by means of a coordinated and structured target group approach. To this
end this policy should be based as broadly as possible with the target
group and other governments involved.
1. Agriculture, managed by Drinking Water, Water, Soil Directorate;
2. Traffic and transportation, managed by Air Protection Directorate;
3. Industry and other branches of industry, managed by Administrative
Affairs Directorate;
4. Chemical industry, managed by Administrative Affairs Directorate;
5. Energy sector, managed by Air Protection Directorate;
6. Refineries, managed by Air Protection Directorate;
7. Construction, managed by Noise Directorate;
8. Public waste utilities, managed by Waste Substances Directorate.
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INTERNATIONAL ENFORCEMENT WORKSHOP 49
4. TARGET GROUP MANAGEMENT INDUSTRY
The creation of a target management group Industry is motivated specifi-
cally by a multitude of environmental issues, interrelated or not inter-
related, within industry. In NEPP it is stated which task setting is
required for a defined theme (for instance acidification, diffusion). The
continued effects of this for the separate branches of industry are not
mentioned. The primary task of target group management is to translate
the objectives formulated by NEPP to reduction targets, per theme, on
the branches of industry level. Subsequently a consistent package of
measures is to be formulated for the separate branches of industry.
Target group management provides for:
a. The realization of a central point of address within the Directorate
General of the Environment (DGE) for the separate branches of indus-
try; this point ensures questions and problems are dealt with by the
appropriate office within the organization.
b. The reinforcement of coordination in respect of DGE target group
policy.
c. The fine tuning of policy measures to the target group;
d. Stimulation of internalization of environmental management with the
target group.
5. DEVELOPMENT TARGET GROUP MANAGEMENT FOR INDUSTRY
In what manner target group management for Industry is given it's concre-
te shape? A beginning is made by two inventories.
Firstly, the complete framework of all consultations between DGE and
Industry is mapped. Consideration is given which NEPP actions are already
in process of execution and if further consultation structuring is requi-
red.
Secondly, an inventory is made of present emissions per theme (acidifica-
tion, priority substances, air, etc.) and per branch of industry. As a
result a clear picture emerges.
The next step must be to translate the NEPP emission reduction objectives
to branch of industry level for the period 2000 - 2010. This discussion
should not impede us to forge ahead.
After all, if there are no other possibilities, distribution of emission
reductions over branches of industry, will have to take place by estima-
tion. Feasibility in advance is definitly not point of departure.
Subsequently target group policy should be further developed jointly by
governmental agencies and the branch of industry involved.
This process can start with a declaration of purpose with the branch of
industry and governmental agencies involved.
The declaration of purpose:
* Indicates consultation start
* Intended consultation objective
* Consultation structure with branch of industry
* Start publicity campaign for individual companies
Evidently it is important to involve the various governmental agencies.
In due course the competent authority will lay down the approach agreed
upon in licensing regulations which will be enforced, for the final step
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50 INTERNATIONAL ENFORCEMENT WORKSHOP
is the drafting of an implementation plan, in which the following items
may be described:
* Measures and applicable planning stages.
* Implementation method (who does what and when).
* Activities supporting implementation
* Research to be carried out and decisions to be taken on the basis of
this research.
* Further consultations within the implementation context
To make agreements on branch of industry level is one thing, individual
companies actually bringing measures into force is quite another.
Internal company environmental management is the pre-eminent instrument
aimed at bringing measures into force geared to the individual company.
6. NOTE ON INTERNAL COMPANY ENVIRONMENTAL MANAGEMENT
The government has recognized the importance of internal company environ-
mental management and has set down its point of view on the significance
and development of environmental management in a Note.
If we want to attain good environmental quality in the Netherlands, along
the NEPP lines of policy, it is advisable all companies, which cause
pollution or may cause pollution to the environment, will have at their
disposal an environmental management system geared to the company.
In the Note this conclusion has been translated into a clearly defined
objective. The government wants all companies which cause medium to large
sized environmental pollution or particular risks to the environment to
have at their disposal an integral environmental management system in
1995. For companies which cause limited environmental pollution the
objective is less far reaching. In this case the government wants all
relevant branch organizations pertaining to these companies, to have
taken clearly defined steps aimed at the introduction of an environmental
management system.
All in all an ambitious objective. However, in the absence of such an
infrastructure to find a solution for environmental problems, we will not
succeed in defeating these problems.
7. WHAT IS COMPANY ENVIRONMENTAL MANAGEMENT?
By company environmental management we understand: all efforts and acti-
vities of a company to gain insight into and control of and - if possible
- decrease the effects on the environment of conducting business.
Quite a lot, but to what does it all boil down?
Companies have an independent responsibility to prevent impairing envi-
ronmental quality. Acknowledgement of this responsibility is also called
intemalization of environmental policy.
The responsibility of trade and industry is not limited to executing and
observing environmental regulations but also means improving environmen-
tal quality by voluntary reduction of environmental pollution and if
possible by preventing it entirely. To reach this, every company has to:
* take account of environmental aspects;
* pursue applying clean technologies on using and developing products
and processes;
* decrease the use of raw materials and energy;
* make efforts to reduce and recycle waste produced;
* to realize the possible environmental problems originating from the
use of its products and in the waste stage.
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INTERNATIONAL ENFORCEMENT WORKSHOP 51
For internalization as well as self control the necessary organizational,
administrative and technical provisions within each company are essenti-
al. These provisions are called internal company environmental manage-
ment.
8. WHAT IS A COMPANY ENVIRONMENTAL MANAGEMENT SYSTEM?
Environmental management demands systematic attention within trade and
industry. This necessitates a company environmental management system as
a tool.
A company environmental management system may be defined as: an internal
company control system aimed at controlling in a systematical and cohe-
rent manner the effects on the environment of conducting business and-
if possible - at decreasing those effects.
A company environmental management system contains the following basic
elements:
1. environmental policy statement containing the environmental policy;
2. environmental programme containing the planned activities in the field
of the environment and not only the compulsory but also the non-com-
pulsory activities;
3. integration of environmental management in conducting business ultima-
tely resulting in internal assignment of tasks and responsibilities
(e.g. environmental coordinator or an environmental service);
4. measurements and registrations according to internal and external
regulations. Besides emissions the consumption of f. i. raw materials
and energy will be registered;
5. internal supervision of company provisions and existing rules;
6. internal information and instruction;
7. internal and external reporting to render insight to management and
government and third parties in what is going on in the field of the
environment;
8. auditing of the system aimed at adapting - if necessary - of the
system or company management method.
A complete company environmental management system contains all these
basic elements. Such a system applies specifically to one company and is
necessary for the ten or twelve thousand larger companies in the Nether-
lands. For a much larger number of companies causing limited environmen-
tal pollution - there are about two hunderd and fifty thousand of those-
a partial environmental management system may suffice. In general this
consists of a more limited number of said elements or of a more simple
elaboration thereof. Simultaneously it will often be a question of a sort
of "blueprint" or a model system applicable to several similar companies.
Mostly such modelsystems may be drawn up by branch associations.
9. THE SIGNIFICANCE TO COMPANIES
The significance to companies boils down to the following items:
1. Concern for the environment enlarges the opportunity for continuity.
It is even a prerequisite. Not only because continuity depends on a
careful use of raw materials and energy, on a good environmental
quality, but also on a positive and trustworthy image of the company.
2. Environmental management is often a co-determinant for the quality of
the production m
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52 INTERNATIONAL ENFORCEMENT WORKSHOP
3. Through company environmental management financial advantages may be
gained. By lower production costs using less raw materials and energy,
producing less waste and removing them more efficiently, but also by a
lesser chance on claims for damages or high to extremely high cleanup
costs (f.i. soil pollution) and by lower insurance premium or lesser
environmental levies.
4. Company environmental management has a positive influence on motivati-
on of personnel. It is not very pleasant to work in a polluting compa-
ny. It is bad for the workers' health and people living in the plant
vicinity. But also for the work ethic and the trading results.
5. To focus on your own initiative on the environment may prevent being
unexpectedly confronted with governmental demands.
For instance by using already now impermeable floors in new buildings or
alterations, companies have a clear advantage over other companies having
to do so as a result of governmental regulations, mostly on an inopportu-
ne moment. By anticipating future regulations laborious procedures,
unnecessary costs or uncertainty about continuity of business may be
avoided.
In summary: It is of interest to companies to look not only to the quali-
ty of their final product but to look henceforth also to the way the
product is made. The environmental quality now has to be clearly reckoned
with!
10. WHAT ASSURANCE EXISTS THE OBJECTIVE WILL BE REACHED?
A statutory regulation for mandatory introduction of a company environ-
mental management system has been relinquished intentionally, in contrast
to for instance setting up a safety department in larger companies. The
organization of an internal company environmental management system is
understood to be the proper responsibility of trade and industry. In this
early endeavour voluntariness guarantees best, trade and industry will
find those company environmental management models which link up most
effectively with management culture and conducting of business of indivi-
dual companies.
11. THE SIGNIFICANCE FOR LICENSING, INSPECTION AND SUPERVISION
In short company environmental management does not formally change any-
thing in the position of government in regard of licensing, inspection
and supervision. Company environmental management does not replace licen-
sing. Nor does it replace the competent authorities as supervisors.
The possibilities already given in environmental legislation to include
in licenses regulations on organization will continue to be used, also
for indicating the development direction of company environmental manage-
ment. Simultaneously however the possibilities have to be examined to
adapt licensing to the existence of a developing company environmental
management.
By linking company environmental management system and licensing the
regulations may be adapted in such a way as to give a company more leeway
in shaping and substantiating its environmental management. This should
be feasible within the framework of a license on main points and target
directed regulations if necessary with an obligation to obtain certain
results. In such a way an environmental management system grows from
noncommittal to task setting.
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INTERNATIONAL ENFORCEMENT WORKSHOP 53
In regard of supervision and inspection the following applies.
In view of the increasing social importance of the factor environment it
is to the competent authority of growing interest to ascertain continu-
ously the environmental targets laid down in the licenses are fully
implemented. On the spot inspections by environmental officials alone are
not sufficient. There is also a need for a reliable flow of information
from company to authority and society on environmental achievements and
environmental company policy. For this reason the Note to parliament
(Lower House) gives relatively much attention to subjects as measurements
and registration and external reporting of environmental data. Environ-
mental accountancy in one form or the other and reporting thereof is a
necessary and inevitable development.
The issue for the coming years is to find a rational interpretation by
means of trial projects for these essential elements of the company
environmental management system.
12. ACTIVITY PROGRAMME 1989 -1994
To advance internal company environmental management and to make possible
a systematic evaluation of experiences, an activity programme has been
set up with dual task setting.
On the one hand projects and other activities aimed at developing and
applying environmental management in companies are supported.
On the other hand research is started on still unanswered questions and
evaluation will take place aimed at a further development of company
environmental management policy within environmental policy as a whole.
For implementation of the activity programme all in all thirty million
guilders are available. The programme comprises the following activities:
* stimulation and educational projects, such as:
* branch projects
These are aimed at introducing through branch-organizations company
environmental management systems to groups of similar companies indi-
vidually not being capable of setting up an adequate environmental
management system.
These projects are differentiated in three main phases:
a. developing a company environmental management system as a model for a
branch;
b. information about the system to all branch companies;
c. implementation in individual companies possibly demanding further
speci fication.
Advantages of this approach are an optimum use of branch level knowledge
within the trade and industry line, an increase of environmental knowled-
ge on branch level through practice, a sluicing of experiences in the
environment field by more advanced companies through the branch to less
advanced companies and finally but certainly as important the fact the
branch operates vis a vis its members with more prestige and confidence
than any governmental or advisory body.
For branch projects eight million guilders are set aside.
* Individual projects
To support development of integral company environment protection
systems, provided a link exists with a specific educational objective.
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54 INTERNATIONAL ENFORCEMENT WORKSHOP
Educational objectives are inter alia linking a company environmental
management system to the license, involvement of employees and repor-
ting.
Five million guilders are available.
Public enterprises
To formulate environmental management systems for public enterprises
such as drinking water and energy companies, waste dumping sites and
public transportation; four million guilders are made available.
Regional projects
In regard of information and implementation the Note foresees a sup-
plementary role for regional bodies such as chambers of commerce and
if possible still to be established regional services for company
environmental management.
For regional projects two million guilders are available.
Information activities
To provide general and specific information to companies, employees
and governmental bodies three million guilders are put aside.
Training and education
These activities are focussed on training environmental officials.
Also the integration of environment in vocational training is suppor-
ted. Contributions may be made available to developing courses for
managers, workscouncils etc. Four million guilders are available.
Specific themes
Research into themes such as using substances registration, monitoring
methods for environmental data and legal aspects of altered governmen-
tal actions. An amount of two million guilders is set aside.
National coordination
To fund acitivities by the project office two million guilders are set
aside.
13. CLOSING REMARKS
At the end two remarks have to be made;
Company environmental management will become a success, if it is done
in combined action. Introducing it, is primarily a trade and industry
responsibility. But to become really effective it is important to let
development and introduction take place in dialogue and co-operation
with the competent authorities.
In turn, governmental bodies will have to keep an open mind for envi-
ronmental management development in companies and for their part will
have to formulate a clear, transparant and effective environmental
policy. This requires a great change in mental attitude.
It is evident we can master environmental problems only through a joint
effort. Therefore we have to channel all our energy in the correct direc-
tion, already so much is lost.
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INTERNATIONAL ENFORCEMENT WORKSHOP 55
A SURVEY OF U.S. ENVIRONMENTAL ENFORCEMENT
AUTHORITIES, TOOLS AND REMEDIES
by
Edward E. Reich*
and
Quinlan J. Shea, III**
* Deputy Assistant Administrator, Office of Enforcement, United States
Environmental Protection Agency
** Special Assistant, Office of Enforcement, United States Environmental
Protection Agency
SUMMARY
To accomplish its mission of protecting human health and the environment,
the United States Environmental Protection Agency (EPA) promulgates
regulations to implement each of the environmental laws. Whenever members of
the regulated community fail to comply with one or more of these laws and
regulations, EPA utilizes a wide array of enforcement authorities to correct
noncompliance and punish violators. Prompt and effective action on the part
of the government is particularly imperative in this age of heightened
environmental awareness and public scrutiny of the federal government's
response to insults to the environment. This paper will examine the bases for
EPA's enforcement powers, some of the specific enforcement tools and remedies
available to the Agency, and a few of the more notable means being employed to
invigorate and streamline the enforcement process.
Section I addresses the sources of enforcement authority, EPA's
partnership with state governments, and the roles of Congress and the
judiciary in shaping and interpreting environmental laws. Section II begins
to explore the scope of EPA's administrative, civil judicial, and criminal
programs while focusing on the challenges associated with the simultaneous
pursuit of both civil and criminal actions (parallel proceedings). The
specific enforcement tools available under the environmental authorities are
covered in Section III. The various remedies EPA pursues, particularly
penalties and injunctive relief, are outlined in Section IV. Section V
outlines several of the unique internal resources and formal working
relationships maintained with other federal agencies. Finally, Section VI
examines the utility of using alternative dispute resolution technigues, an
increasingly popular means of streamlining the enforcement process, to
facilitate settlement agreements.
The authors would like to thank their colleagues for their review and helpful
comments and Pamela Proctor who attended to the problems of providing a
finished manuscript.
The views expressed in this article are the personal views of the authors. No
official support or endorsement by the EPA is intended or implied.
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56 INTERNATIONAL ENFORCEMENT WORKSHOP
1.0 Enforcement Authority in the United States, the Role of Legislative
Direction, and the Role of the Judiciary
1.1 Introduction
Under the U.S. Constitution, the federal government has no explicit duty
to protect the environment from polluters. Federal regulations affecting the
environment must come from one of four sources,1 the most notable of which is
the commerce power. An important case which demonstrates the ability of the
U.S. Congress to shape and the courts to interpret events in domestic
environmental policy-making is Hodel v. Virginia Surface Mining and
Reclamation Assoc., 452 U.S. 264 (1981). In Hodel, the surface coal mining
industry challenged a regulation that required strict performance standards,
including the restoration of mined lands, minimal disruption to waterways, and
careful disposal of wastes.2 The coal industry argued that the government was
attempting to regulate the use of privately owned land which was not subject
to the parameters of the commerce clause.
The Supreme Court disagreed, noting that the commerce power protected not
only the interstate channels of commerce, but also those "activities affecting
commerce," and therefore could come into play when several such activities
combined to affect commerce between the states.3 The Court held that there
was a "rational basis" for the Congress to find that strip-mining affected
interstate commerce and that regulation of the industry was a valid exercise
of Congressional authority."
In sum, Congress and the courts affect, directly and indirectly, the
formulation, implementation and interpretation of environmental laws even
though it is the task of the executive branch agencies to enforce them. This
section will examine enforcement authorities, the contributions of the
legislative branch in helping to craft them, and the role of the courts.
1.2 Environmental Federalism
In the United States, the traditional roles of the executive and
legislative branches have decreed that the former is responsible for
identifying the need for legislation, and the latter for the crafting and
passage of appropriate laws, whereupon the compromise reached by the two is
1 The power to regulate commerce between the states (U.S. Const, art. I,
§8, cl. 3); the power to regulate the use of publicly owned lands (U.S. Const.
art. IV, §3, cl. 2); the power to tax and spend (U.S. Const, art. I, §8, cl.
1), and the power to enter into treaties (U.S. Const, art. II, §2, cl. 2).
2 Hcdel. 452 U.S. at 269.
3 Id. at 277.
4 Id. at 281.
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INTERNATIONAL ENFORCEMENT WORKSHOP 57
then implemented by regulatory agencies.5 In practice, the actual
implementation and enforcement of environmental laws has taken the form of a
mixture of federal and state standards, goals, and enforcement authoritj.es.
This relationship is often referred to as the "state-federal partnership," or
"new federalism."6 The principal federal role is often described as being one
of oversight as the states are tasked with the direct application of the law
under most federal statutes.7 With few exceptions, environmental laws and EPA
policy give the states the primary role in environmental enforcement.8
These same laws, however, grant the Agency residual or concurrent
enforcement authority. Because EPA remains responsible to the Congress 3iw to
the public for ensuring overall compliance with and enforcement of federal
statures, the Agency is empowered to pursue its own direct enforcement action,
particularly when the state action is unreasonably delayed or perceived to be
inappropriate given the gravity of the violation. In the past several years,
EPA has formulated policies with regard to establishing criteria for direct
federal action and oversight of state enforcement programs, and has developed
protocols for notifying and consulting states in advance of any federal
5 In an article by James M. Strock, the recently-appointed Assistant
Administrator for Enforcement at EPA, the author argues that this balance had
been disrupted by 1987 such that it was the executive branch which
consistently opposed legislation, and the Congress which consistently proposed
legislation and dictated terms of implementation to the agencies. See Strock,
The Congress and the President; From Confrontation to Creative Tension, 17
Envtl. L. Rep. (Envtl. Law Inst.) 10006 (1987). This situation resulted from
a "two-edged assault on the regulatory process," with a well-intentioned but
scientifically and technically uninformed Congress on the one hand, and a
fiscally cautious but environmentally insensitive executive branch. Id.
6 See e.g.. Symposium, The New Federalism in Environmental Law; Taking
Stock, 12 Envtl. L. Rep. (Envtl. Law Inst.) 15065 (1982).
7 See McElfish, "State Environmental Law and Programs," in Law of
Environmental Protection §6 at 14 (S. Novick ed. 1989).
8 One exception, for example, is under the Federal Toxic Substances
Control Act (TSCA), 15 U.S.C. §§2601-2609, where state law is preempted and
states have no significant role in the federal program. Federal preemption is
a concept whereby Congress, acting under its delegated powers, has immersed
itself so completely that there is literally no room for any state action.
Historically, federal preemption has occurred only when Congress has perceived
a need for uniform, national standards (motor vehicle regulations are another
example). In the case of TSCA, Congress is keenly aware of public concerns
with respect to the development and disposal of new toxic chemicals.
Accordingly, only EPA is empowered to regulate any new toxic substance which
presents an "unreasonable risk of injury to health or the environment." 15
U.S.C. §2601(b).
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58 INTERNATIONAL ENFORCEMENT WORKSHOP
action.9 While the states and EPA have had disagreements on the meaning and
scope of environmental enforcement, both must work in partnership to ensure
the most productive use of limited resources in pursuing enforcement actions
and achieving compliance.
1.3 Statutory Scheme
The changing outlook in the United States as to the value of and threat
to the environment and, hence, the need for environmental laws, has
necessarily resulted in stronger enforcement provisions. The environmental
statutes now possess a wide assortment of enforcement authorities which
include: notices of violation, administrative orders, recourse to the courts
for civil penalties and injunctive relief, criminal sanctions, and citizen
suits to enforce the statutes in the absence of effective government action.
These provisions differ, however, from statute to statute. Perhaps more
significantly, the extent to which Congress has required EPA to actually
utilize these authorities differs from statute to statute.
1.3.1 Enforcement Discretion
EPA is often criticized by the public and environmental organizations for
not bringing enough enforcement actions, and by the regulated community for
bringing too many actions, or bringing the wrong actions, or seeking
unwarranted remedies. The nexus between the two opposing viewpoints is the
principle of enforcement discretion. In deciding whether to bring an action,
enforcement officials will typically examine the severity of the violation,
the potential deterrence value, the strength of the case, the available
resources, and so on.i0 Moreover, the concept of environmental federalism,
discussed above, may also factor into a decision to defer to a state's desire
to initiate an enforcement action.
The leading case on enforcement discretion is Heckler v. Chaney, 470 U.S.
821. After Heckler, there exists strong support for the principle that
decisions by the government whether to enforce are discretionary.11 The
presumption can be discarded only by explicit statutory language or
9 See Wasserman, "Oversight of State Enforcement," in Law of
Environmental Protection §8 at 105 (S. Novick ed. 1989). See also Policy
Framework for Implementing State/Federal Enforcement Agreements, April 9,
1984; Memorandum from A. James Barnes, Deputy Administrator, Revised Policy
Framework for Implementing State/Federal Enforcement Agreements. August 26,
1986.
10 See Miller, "Federal Enforcement," in Law of Environmental Protection
§8 at 17 (S. Novick ed. 1989).
11 Id. at 11.
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INTERNATIONAL ENFORCEMENT WORKSHOP 59
legislative history. The net result for environmental statutes is that
enforcement powers are, with few exceptions, generally discretionary/'
1.3.2 Congressional Action
Beginning with the passage of the National Environmental Policy Act
(NEPA) of 1969," and the creation of EPA in 1970, Congress has establish®:! in
the ensuing twenty years a comprehensive environmental protection regulatory
system by passing and amending a number of environmental laws. EPA has been
given suostantial discretion as to how best to implement those laws.
However, more recently, Congress has been less willing to vest wide
discretion in the Agency. An example of this phenomenon is the Resource
Conservation and Recovery Act (RCRA)," which addresses solid and hazardous
wastes. This statute has consistently been the subject of Congressional
interest and periodic revision.
12 The following examples provide a good reference:
Section 309 of the Clean Water Act essentially says that when EPA finds a
source in violation of the Act, it "shall" take some enforcement action
against the source by issuing an administrative order or commencing a civil
action." See CWA §309(a)(l). However, in cases where parties have sought to
compel EPA enforcement, courts have consistently ruled that the decision to
enforce is discretionary. See, e.g.. State Water Control Board v. Train. 559
F.2d 921 (4th Cir. 1977).
Section 113 of the Clean Air Act is less clear, stating that "whenever,
on the basis of any information available," EPA determines that a violation
exists, it "shall" notify the violator and thereafter "may" issue an
administrative order or "may" commence a civil action. Some courts have held
that the notification stage of enforcement is mandatory, but that the
initiation of an action is discretionary. See, e.g., Wisconsin's
Environmental Decade v. Wisconsin Power & Light Co; 395 F. Supp. 313 (W.D.
Wise. 1975). Other courts, however, have been critical of this holding and
have deferred to EPA's interpretation of the Act as including the presumption
of discretionary enforcement powers. See, e.g.. City of Seabrook v. Costle,
659 F.2d 1371 (5th Cir. 1981).
Section 3008(a)(1) of the Resource Conservation and Recovery Act states
that when EPA finds a violation, it "may" issue an administrative order or
"may" commence a civil action." Courts have found the use of the term "may"
dispositive in RCRA cases. See, e.g.. U.S. v. Liviola. 605 F. Supp. 96 (N.D.
Ohio 1985).
13 42 U.S.C. §§4321-4370.
14 42 U.S.C. §§6901-6987.
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Congress passed RCRA in 1976, which was before the full extent posed by
the dangers of hazardous waste disposal were known. As with most other
statutes, Congress prescribed only broad goals and timetables. The only
substantive direction was a requirement that EPA regulations "protect health
and the environment."15 As noted, the enforcement provisions of RCRA i-jere
deemed discretionary.16
By the 1980s, evidence of the seriousness and scope of the hazardous
waste problem mounted while, in the eyes of Congress, EPA floundered in its
efforts bo promulgate adequate regulations.17 In 1983, over five years after
the mandatory deadline for publication of RCRA standards and permits, Congress
began a reauthorization process for RCRA. There was still no enforceable'
system for regulating the disposal of hazardous waste.18 Congress responded,
over strong opposition from the executive branch, with a multitude of new
deadlines and statutory requirements. Much of EPA's regulatory discretion
with respect to regulated facilities and waste disposal processes was modified
or removed.
The case of RCRA suggests that Congress is increasingly willing to make
specific policy and implementation decisions, normally the provence of the
agencies, if more informal oversight mechanisms prove ineffective.19
1.3.3 Role of the Judiciary
Although the Supreme Court has indicated that the scope of review for
environmental matters is very broad, there are Congressionally-mandated
limitations, particularly where Congress has afforded agencies broad grants of
discretion. However, it is important to note that in the absence of clear
statutory language as to Congressional intent, courts will often seek to infer
Congressional intent, with a bias in favor of judicial review. The textbook
case that typifies this situation is Citizens to Preserve Overton Park v.
Volpe. 401 U.S. 402 (1971). A citizen environmental group sued in
15 Id. at §6924.
16 See supra note 12.
17 See J. Florio, Congress as Reluctant Regulator: Hazardous Waste
Policy in the 1980s. 3 Yale J. Reg. 351, 367 (1986).
18 Id.
19 James Florio, Governor of New Jersey and formerly Representative from
New Jersey and Chairman of the House Subcommittee on Commerce, Transportation
and Tourism, which has jurisdiction over hazardous waste issues, has
maintained that Congress will always seek to effect environmental policy
through investigations and appropriations review, before resorting to
statutory cures. Id. at 376.
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order to preserve a park that was facing imminent damage from a planned
federally-approved highway. The government argued that approval of the
highway was a discretionary activity which could not be reviewed by the
courts.20 The Supreme Court disagreed, holding that there was no indication
that Congress sought to prohibit review because the statute provided
"criteria" rather than "discretion," and that actions taken thereunder were
subject to judicial review.21
Aside from the pervasive issue of agency discretion, there are many other
areas where there is a judicial presence with respect to environmental
protection. The dominant vehicle EPA uses to implement federal environr.ental
laws is administrative rulemaking, which utilizes established public nctioa
and comment procedures.22 The procedures for rulemaking enunciated in tie
Administrative Procedure Act have been adopted almost without qualification in
each of the major environmental laws.23 In the early days of EPA's existence,
the courts played an important role by regularly insisting that EPA discuss
the technical questions it faced in acceptable technical detail if it wanted
its rules sustained in court.24 Once that discussion was provided, however,
the rules were generally upheld.
The review of final rules has been supplemented by an additional basis
for judicial review of EPA's activities. As discussed in the context of RCRA
reauthorization, Congress has begun to consistently provide deadlines for many
EPA actions which, if not met, allow citizen suits to compel the Agency to
perform such "non-discretionary" duties.25 Environmental groups have taken
full advantage of these opportunities, particularly to require the Agency to
20 Overton Park. 401 U.S. at 411.
21 Id. at 409-13.
22 The Administrative Procedure Act outlines the steps of the rulemaking
process for regulatory agencies. See 5 U.S.C. §553.
23 When EPA was created, most important Agency decisions were still made
by formal trial-type hearings before Administrative Law Judges. It quickly
became apparent, however, that the passage of additional major environmental
laws was placing a great strain on this system. Accordingly, there was a need
to provide a responsible forum for decisionmaking that could also yield a
record for judicial review. See Novick, "Administrative Agencies and
Procedures," in Law of Environmental Protection §4 at 9 (S. Novick ed. 1989).
24 See Portland Comment Ass'n. v. Ruckelshaus. 486 F.2d 375 (D.C. Cir.
1973).
25 See Novick, supra note 23 at 19.
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take specified rulemaking actions. EPA has never won a suit where the statute
in question provided a definite time for action by the Agency, the Agency
failed to act, and a citizen suit was initiated.26
In the enforcement context, virtually all of the environmental
enforcement authorities provide EPA with recourse to the courts for civil
penalties, injunctive relief and criminal sanctions. Though each type cf
authority will be subseguently discussed in more detail, it is interestLn:j to
note at this juncture that the courts have a significant role in the penalty
assessment process in that they are not limited to making determinations based
on the relevant statutory provisions. Courts are free to consider the
appropriate amount of civil penalties in each case.27 Even assuming some level
of uniformity in the assessment of penalties from court to court, there is
clearly the opportunity for an environmentally-conscious judge to make a
statement.
26 EPA has increasingly attempted to settle these types of cases.
Settlement with a party bringing a citizen's suit might take the form of an
agreement by EPA to act (e.g., promulgation of a rule) within a specified
period of time.
27 See Miller, supra note 10 at 81. There have been few such cases to
date, probably due to EPA's practice of attempting to negotiate the terms of
civil settlements prior to trial (or even prior to the filing of the
complaint). Id.
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2.0 Criminal and Civil Enforcement and Issues Raised by Parallel
Proceedings
2.1 Civil Enforcement
The decision whether to proceed in a given case through a judicial
complaint or administrative order often depends on whether the Agency is
seeking penalties for past violations, or injunctive relief which can best
utilize the equitable and enforcement powers of a federal court. While EPVs
largest enforcement cases, and particularly those involving precedential or
complex legal environmental restoration issues, are generally brought
judicially,28 the overwhelming number of federal environmental enforcement
cases are administrative civil penalty actions. The authority to bring
administrative actions is expressly set forth in most U.S. environmental
statutes. In FY 1989, EPA initiated 4,136 administrative cases which resulted
in significant penalties and actions to correct environmental violations.29
This number has steadily increased in the past few years because of new
administrative enforcement authorities given to the Agency in recent
amendments to the various environmental statutes.
Each EPA regulatory program establishes detailed criteria for determining
what sanctions are preferable in response to a given violation. While these
criteria differ between programs, EPA will usually initiate an administrative
action where the violation appears to constitute a fairly isolated occurrence
and has not resulted in extensive environmental harm. In such an action, the
Agency will seek correction of the violation (if necessary) and the payment of
a monetary penalty.
Though EPA has the authority under several statutes to order or prohibit
specific actions,30 there is no corresponding authority to compel compliance
with those same orders without resort to the courts. Accordingly,
administrative actions may not be appropriate where injunctive relief is an
28 By statute, the Attorney General represents U.S. agencies in court.
28 U.S.C. §§523, 528. Cases deemed appropriate for civil enforcement actions
by EPA are referred to the Department of Justice for approval and filing with
the proper court. The initiation, conduct, and termination of litigation are
controlled in this manner principally to ensure that the united States does
not take contradictory positions of law or policy in federal courts and to
ensure that the resolution of a lawsuit does not involve concessions that
would adversely impact other federal agencies in future litigation. See
Habicht and Hunt, "Negotiated Settlement of EPA Civil Enforcement Cases," in
Law of Environmental Protection §8 at 133 (S. Novick ed. 1989).
29 See Enforcement Accomplishments Report; FY 1989 (EPA, February 1990)
[hereinafter cited as Accomplishments Report1.
30 For example, pursuant to RCRA §3008(h) EPA may order corrective
remedial action at a site where a release of hazardous waste into the
environment has occurred.
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essential element of the remedy and compliance with the order is uncertain.31
Where immediate action is necessary to prevent continuing violations, and
especially so in a case where there is a grave threat to human health or the
environment, a civil action in federal court is pursued. Further, where the
injunctive powers of the court are necessary to ensure long-term compliance,
judicial action is again proper. Civil/administrative tools and remedies are
covered in more detail below in Sections III and IV.
2.2 Criminal Enforcement
The enforcement provisions in each of the environmental statutes provide
that persons who knowingly violate specified requirements or prohibitions
shall be fined, imprisoned or both. The standard for criminal prosecution
differs slightly from statute to statute.32 Each of these types of cases is
developed through an investigation by EPA's criminal investigators or the
Federal Bureau of Investigation and referred to the Department of Justice for
further grand jury investigation, and possibly prosecution.
EPA established its criminal office in the early 1980s. The number of
criminal case referrals to the Department of Justice, defendants charged, and
defendants convicted have increased steadily up to the present day.33
Indictments are sought against both corporations (including responsible
corporate officers) and individuals, as appropriate. As the Agency's criminal
program further develops, more states develop similar programs, and courts
become more familiar with the seriousness of environmental crimes and
implement new Sentencing Guidelines, penalties will become more severe and the
number of successful prosecutions will increase.34 Criminal sanctions are
covered in more detail in Section IV.
31 See Habicht and Hunt, supra note 28 at 159.
32 For example, the Federal Clean Water Act empowers criminal
prosecutions for "negligent" violations. 33 U.S.C. §1319(c). In determining
whether to initiate a criminal prosecution, EPA assesses whether the
violator's conduct was intentional, repeated, would cause extremely serious
environmental harm, is of a type which should especially be deterred, or
included direct involvement by policy level corporate officers or employees.
See H. Habicht, The Federal Perspective on Environmental Criminal Enforcement;
How to Remain on the Civil Side, 17 Envtl. L. Rep. (Envtl. Law Inst.) 10478
(1987).
33 See Accomplishments Report, supra note 29 at 16. In FY 1989, 60 cases
were referred to the Department of Justice, 95 defendants charged, and 72
defendants convicted - the highest totals since the inception of the criminal
program.
34 See Habicht and Hunt, supra note 28 at 99.
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2.3 Parallel Proceedings
EPA's mission is on occasion best served by the pursuit of simultaneous
civil or administrative enforcement actions and criminal investigations and
prosecutions of the same violator which relate to the same essential subject
matter. These are known as parallel proceedings and are discussed JP detail
in EPA policy memoranda.35
Despite a deluge of due process (fairness) arguments to the contrary, it
has been held unequivocally that parallel proceedings are constitution.:*!. In
United States v. Kbrdel, 397 U.S. l (1970), the Supreme Court established the
legality of these proceedings after recognizing that the government often oust
pursue both civil and criminal routes to protect the public. In the
environmental arena, a violator's misconduct may create a substantial danger
requiring immediate remedial relief through a civil action (e.g., a site
cleanup), and yet the misconduct itself (e.g., a willful violation) can only
be appropriately punished by a criminal prosecution.
Notwithstanding the legality of parallel proceedings, several
circumstances dictate that the use of these dual actions should be kept to a
minimum.36 In criminal cases, there are often opportunities for defense
counsel to obtain valuable information that would not otherwise be available
to them, to engage in procedural tactics that may delay or complicate the
prosecution, and to raise additional defenses. These defenses may include
allegations of abuse of the grand jury (criminal investigative) process, and
improper use of civil discovery to obtain information for the criminal case.
The presumption under the Federal Rules of Civil Procedure is that discovery
should be available to each party to the fullest extent possible. The
Federal Rules of Criminal Procedure, however, limit discovery to only that
information specifically covered within the rules.37
A second inhibiting factor in the pursuit of parallel proceedings is the
inherent cost.38 It would be an inappropriate use of Agency resources, as
35 See Guidelines on Investigative Procedures for Parallel Proceedings.
June 21, 1989 [hereinafter cited as Investigative Procedures]; Procedures for
Requesting and Obtaining Approval of Parallel Proceedings. June 15, 1989.
36 See Investigative Procedures, supra note 35 at 3.
37 Prior to trial, a criminal defendant has the right to obtain from the
government any statements alleged to have been made by the defendant to agents
of the government, the defendant's criminal record, and any documents or other
tangible evidence the government intends to use in its case.
38 Perhaps the most significant cost associated with parallel proceedings
is the need for two distinct staffs. EPA's guidelines dictate that the
civil/administrative staff, including supporting technical and legal
personnel, be separate from criminal investigation personnel to protect
against allegations of misuse of the discovery process. See Investigative
Procedures, supra note 35 at 13 and 18.
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well as a questionable exercise of enforcement discretion, for EPA to seek
criminal and civil sanctions in every case where both are legally permissible.
Where there is no need for injunctive or remedial relief, and the purpose of a
civil/administrative action would be limited to the assessment of penalties
for past misconduct, parallel proceedings will normally be avoided and the
civil action delayed while the criminal enforcement process unfolds.
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3.0 Enforcement Tools: Characteristics and Impacts
3.1 Introduction
When the regulated community fails to comply with environmental laws,
EPA, in partnership with state agencies, can call upon several enfororaaant
authorities provided under these laws. They include administrative actions,
civil judicial actions, and criminal prosecutions. There are also additional
enforcement "tools" available to EPA under specific statutes, such as penait
revocation and bars from future government contracts, which are used as
appropriate.
3.2 Selected Administrative Tools
Administrative actions are direct enforcement actions taken by EPA
without going through the courts. EPA uses administrative actions to order
companies to comply with regulations or to take other measures necessary to
protect the environment. Administrative actions are also used to assess
penalties, designed to remove the economic benefit gained by the violator and
reflect the gravity of the risk the violation poses to human health or the
environment.39
3.2.1 Administrative Orders
Most of the major environmental laws authorize EPA to issue
administrative orders. The Agency believes that administrative orders are an
efficient and effective means of promoting compliance, particularly for less
serious violations.40 They are also used to document and make enforceable
measures agreed to be undertaken by cooperative violators. EPA is careful,
however, to not rely on administrative orders to the exclusion of stronger
remedies because this could lead to a perception in the regulated
community that there is an unwillingness or inability to take court action.
Administrative orders are not self-enforcing, in that only courts can enforce
administrative orders in the event of noncompliance.41
39 See Guidance for Calculating the Economic Benefit of Noncompliance for
a Civil Penalty Assessment (EPA, November 5, 1984). See also Habicht and
Hunt, supra note 28 at 143-146.
40 It is important to note that these very real but less serious
violations may be less attractive to U.S. Attorneys and to federal district
court judges for purposes of prosecution and review, respectively. An
administrative order usually prompts compliance but, if not, a violator's
refusal presents a more compelling case to the same U.S. Attorney or federal
judge. See Miller, supra note 10 at 30.
41 See, e.g.. Student Public Interest Research Group of N. J.. IJK;. v.
Fritzchef Dodge & Olcott. Inc., 759 F.2d 1131 (3d Cir. 1985).
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All of the environmental laws contain administrative order provisions,
though there are significant differences from statute to statute.42 Most
require that an order state with reasonable specificity the nature of the
violation, contain valid evidence of a violation," and a schedule for
compliance. The order must also take into account the seriousness of the
violation and any good faith efforts on the part of the violator to comply.
3.2.2 Bars to Government Contracts
EPA is provided authority under the Clean Air Act and the Clean Water Act
to prohibit any facility owned, leased or supervised by a person convicted of
violating certain provisions of those Acts,44 or found to be a source of
continuing or recurring violations despite previous enforcement actions, from
receiving any federal contract or subcontract.45 Executive Order
42 See, e.g.. Clean Air Act §7413; CWA §§309 and 404; RCRA §3008.
However, it is noteworthy that while the administrative order provisions of
the Clean Air served as the model for many successive provisions in other
statutes, they themselves do not provide for the establishment of compliance
schedules and the assessment of penalties. Pending revisions to the Clean Air
Act would establish such authorities.
43 See, e.g.. United States v. Independent Stove Co.. 406 F. Supp. 886
(W.D. Mo. 1975).
44 Clean Air Act §115(c)(l) and Clean Water Act §309(c). See also 40 CFR
Part 15.
45 See Policy on Correcting the Condition Giving Rise to Listing Under
the Contractor Listing Program (EPA, October 8, 1987).
The legislative histories of the Clean Water and Air Acts provide that a
key purpose of the contractor listing program is to ensure that "the federal
government will not patronize or subsidize polluters through its procurement
practices and policies." See S. Conference Rep. No. 1236, 92nd Congress, 2d
Session, reprinted in 1972 U.S. Code Cong. & Ad. News 3776, 3824. The
regulations provide:
It is the policy of the federal government to
improve and enhance environmental quality.
This regulation is issued to ensure that each
agency in the executive branch that is empowered
to enter into contracts... undertakes such ...
activities in a manner that will result in effective
enforcement of the Clean Air Act ... and the Clean
Water Act .. and does not favor fines where
production costs may be lower due to noncompliance.
40 CFR §15.1
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1173846 authorizes EPA to issue the regulations necessary to carry out the
purposes of the Order, and provides criteria for when exemptions may be
granted. The prohibition is facility-specific in that it attaches to goods,
materials, or services only from the facility at which the offense wa,~
committed. EPA regularly provides other federal agencies (through the General
Services Administration) with notice of ineligible contractor facilities.
The prohibition against the use of specified facilities continues in the
case of a listing action resulting from a criminal conviction until EPA
certifies that the condition giving rise to the conviction has been
corrected." Once the condition is corrected, the facility is removed frcm 'Che
EPA List of Violating Facilities ("the List").
The contractor listing provisions of the CAA and CWA establish mandatory
and discretionary listing procedures.48 The statutes require mandatory listing
of a facility at which a violation occurs that leads to the criminal
conviction of a person vrfio owns, operates, or leases the facility. Such a
facility is automatically placed on the List and barred from contracting with
any federal agency until delisted.49
A discretionary listing action may be initiated when a facility has a
record of continuing or recurring noncompliance, and a civil violation of
federal or state clean air or clean water standards occurs.50 A facility with
a record of continuing or recurring noncompliance may also be subject to
discretionary listing when the facility has violated an administrative order
or is the subject of an administrative enforcement proceeding under either the
Clean Air or Water Act.
45 cont.
In addition to the general policy stated above, EPA policies note that
the contractor listing program should achieve three additional goals:
compliance with environmental regulations and swift resolution of
environmental problems; fair and equitable treatment for the regulated
community; and deterrence. See Policy on Correcting the Condition Giving Rise
to Listing Under the Contractor Listing Program, supra note 45 at 2.
46 38 Fed. Reg. 25161 (1973), reprinted in 42 U.S.C. §7606 at 314-315
(1982).
47 42 U.S.C. §7606, 33 U.S.C. §1368.
48 50 Fed. Reg. 36188, 36191 at 36193 (codified at 40 CFR §§15.10 and
15.11).
49 Id-
50 Id.
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3.2.3 Permit Revocation
The regulations established under the CWA, RCRA, and the Safe Drinking
Water Act (SDWA) authorize the discretionary revocation by EPA of permits
issued under these statutes in several circumstances.51 They authorise the
termination of a permit when the permittee fails to comply with a pemit
condition, a permit applicant fails to fully disclose all relevant facts in
the application or permit issuance process or any time thereafter, or EPA
determines that the permitted activity endangers human health or the
environment.1*
3.3 Civil Judicial Enforcement
Where administrative enforcement authority is not available, where
administrative remedies have not succeeded in achieving compliance, or where a
compliance schedule subject to the supervision and sanction of the court is
desired, EPA pursues civil actions in federal court with the assistance of the
Department of Justice. Court action is particularly appropriate when the
nature of the violation requires that the Agency initiate action to stop
further environmental damage or to force a company or individual to initiate
cleanups. A federal court has continuing jurisdiction over a case until a
violator completes all specified remedial actions.
After a complaint has been filed, a civil judicial action may be settled
only by a consent decree, or where appropriate, a stipulation of dismissal.53
Each EPA media program - air, water, hazardous waste, toxics, and so on - has
crafted enforcement policies which establish the parameters of what relief EPA
and the Department of Justice will seek in a given case. In approving
settlement agreements, it is not the function of the court to comment on the
merits of a case or determine if a violation has actually occurred.54 Rather,
the court's role is limited to assessing the decree's "overall fairness to
beneficiaries and consistency with the public interest."55 Approval is
51 40 CFR §§122.64, 270.43, 144.40.
52 Id.
53 See Form of Settlement of Civil Judicial Cases (EPA, July 24, 1985).
54 See Bauer, "The Distinguishing Characteristics of Judicial Consent
Decrees," in Law of Environmental Protection §8 at 163 (S. Novick ed. 1989).
See also United States v. Swift & Co.. 286 U.S. 106, 114 (1932).
55 See United States v. Allegheny-Ladlum Indus.. 517 F.2d 826, 850 (7th
Cir. 1975).
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conditional upon a determination by the court that the settlement is
consistent with the statute in question.5*
3.4 Criminal Enforcement
EPA considers criminal violations of environmental laws to be crlTies of
violence, warranting the imposition of tough sanctions. Each of the
environmental laws authorizes the use of criminal sanctions against firms or
individuals who knowingly or willfully violate environmental standards. As a
matter of policy, EPA will seek criminal sanctions against responsible
corporate officers as well as the corporation itself in dealing with ccj-porate
crimes. Because of the stigma that attaches to criminal prosecution, ani the
potential for jail terms, criminal enforcement is EPA's most powerful tool;
careful and selective use generates a strong deterrent impact. Federal judges
have increasingly been willing to sentence criminal defendants to large fines
and substantial prison or probationary terras.
56 See Bauer, supra note 54 at 163.
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4.0 Enforcement Remedies
4.1 Penalties
4.1.1 Administrative Penalties
The environmental laws generally authorize the administrative assessment
of civil penalties for most violations. Penalties are typically assessed
based on a computation derived from the total number of days during which a
violation continues multiplied by a constant figure which can be any amount up
to but not exceeding the statutory limit. The penalty authorities differ .from
statute to statute. The Federal Insecticide, Fungicide and Rodenticido Act
(FIFRA)" authorizes assessed penalties of only up to $5,000 per day of
violation, while the CAA and RCRA authorize penalties of up to $25,000 pat-
day. M
Recent amendments to several of the statutes have created distinctions
between different types of administrative penalty provisions, with differing
limits and procedures for assessment. For example, under the Clean Water Act,
there are Class I penalties which may not exceed $10,000 per violation and
$25,000 in total, and Class II penalties which may not exceed $10,000 per
violation and $125,000 in total.59 Procedures for assessing Class II penalties
are considerably more formal. The enhancement of the Agency's ability to
efficiently allocate time and resources is the rationale behind the
introduction of this system. The less serious the violation, the more
streamlined the process for assessing the penalty. Neither Class I nor Class
II proceedings will be initiated where a civil or criminal enforcement action
is needed to ensure compliance with the CWA.60
Despite considerable numbers of administratively assessed penalties,
there are very few reported cases challenging assessments. This is because
courts have required violators who have been assessed penalties to exhaust
their administrative appeals before seeking judicial review.61 Further, courts
have refused to overturn or remand penalty amounts even if they would not
have assessed as high a penalty had the action originally been brought in
court." In essence, the courts appear to be respecting the Congressional
57 7 U.S.C. §136(1).
58 42 U.S.C. §113(b), 42 U.S.C. §3008(g).
59 CWA §311(b)(6)(A).
60 See Guidance on the Implementation of Administrative Penalty
Authorities Contained in the 1987 Clean Water Act Amendments, August 28, 1987.
61 See, e.g., United States v. Beatty, Inc., 401 F. Supp.
1040 (N.D. Ky. 1975).
62 Id.
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delegation to EPA of the responsibility to set and compromise the penalty
amounts, and have remanded cases rather than judicially determining the amount
of the penalty in cases where they were unable to uphold the Agency's
action.63
4.1.2 Civil Judicial Penalties
Most, but not all, of the major environmental laws have civil judicial
penalty provisions; of those that do have them, there is a wide variance In
terms oL severity and impact. The first comprehensive penalty provision Wcis
under the Clean Water Act, which authorizes federal courts to assess civil
penalties of up to $25,000 per day of violation for most of the Act's
requirements.M
The Clean Air Act authorizes judicially assessed civil penalties of up to
$25,000 per day of violation for major facilities or "stationary sources,"65
and up to $10,000 per motor vehicle or vehicle engine which does not conform
to air pollution emission limitations.66
The Safe Drinking Water Act authorizes judicially assessed civil
penalties of up to $25,000 per day of violation by public water supply
systems.67
63 See Miller, supra note 10 at 45. See also Yafee Iron & Metal Co. v.
EPA. 774 F.2d 1008 (10th Cir. 1935).
64 33 U.S.C. §1319(d).
65 42 U.S.C. §7413.
66 42 U.S.C. §7424. In an effort to increase the effectiveness of EPA's
remedies, Congress has also authorized administratively assessed civil
penalties pursuant to CAA §120 which are intended to recover from the violator
the economic benefit from delayed compliance. The existence of two penalty
provisions in the Clean Air Act applicable to many of the same violations
(most §113 violations are susceptible to section 120 penalties) could lead to
duplicative penalties. See Miller, supra note 10 at 80.
67 42 U.S.C. §300(g). The SDWA carries the federalism theme of joint
responsibility for environmental enforcement between the federal government
and the states to an extreme. Congress has determined that states have the
primary interest in enforcing drinking water statutes. Before EPA can take
federal action against a public water supply system, EPA must notify the state
and provide technical assistance to the state and the violator. If the
violation extends past 30 days, EPA must issue an order. Only then, if the
violation continues, can EPA bring an action. Id.
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On the other hand, there are no provisions for judicially assessed
penalties under the Toxic Substances Control Act (TSCA)68 or FIFRA, and such
penalties must be assessed administratively.
Despite the disparities of the penalty provisions, there are scsro general
conclusions that can be drawn about how the courts address penalty questions,
regardless of the statute involved. Courts repeatedly refer to the "fairness"
of a penalty in their assessments, and usually refuse to assess large
penalties for violations of requirements that violators were unable to <:x:i,ply
with for "technical" violations, or for those which would result in
bankruptcy.69 Interestingly, substantial penalties might be warranted in such
circumstances if a court determines that Congress was either deliberately
intending to force the development of new technology or knew that the
requirements could in fact result in some bankruptcies.70
4.1.3 Criminal Penalties and Imprisonment
The criminal sanctions under each of the major environmental laws apply
to any "person" who violates the statute. Each statute's definition of
"person" provides for the potential criminal liability of corporate officers
as well as employees. With the exception of the Clean Water Act, where there
can be criminal responsibility for negligent violations, criminal sanctions
are applicable only where a violation is knowing or willful.
The Clean Air Act, Clean Water Act, and Toxic Substances Control Act all
provide for fines up to $25,000, up to one year in jail, or both, for each day
of violation. Under the Safe Drinking Water Act, fines range from $5,000 to
$10,000 with no imprisonment. Under the Resource Conservation and Recovery
Act, penalties range up to $50,000 in fines and up to two years in jail for
most violations. If a RCRA violation places another person in danger of death
or serious bodily injury, penalties increase to $250,000 ($1 million for
companies) and up to five years imprisonment.71
68 15 U.S.C. §2623.
69 See, e.g.. State Water Control Board., v. Train. 559 F.2d 921 (4th
Cir. 1977). See also Miller, supra note 10 at 82.
70 Id. Professor Miller has likened the inconsistencies of judicial
penalty assessment to the possible outcomes in a game of chance, but believes
that courts are, on balance, becoming more stringent each year with respect to
environmental violations.
71 RCRA §3008(d).
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In addition, most of the statutes provide for penalties in fraud-related
cases, such as under the Clean Air Act's false reporting provisions. Typical
examples include the deliberate filing of inaccurate information with the
Agency or tampering with air monitoring devices at a facility. It is
important to recognize that many of these cases are also violations of more
common provisions of the U.S. criminal code, such as mail fraud.72 Because the
latter are felonies rather than less serious misdemeanors, and are more
familiar to prosecutors, they have been used in the past as the basis for
criminal cases.73 With the passage of time, criminal sanctions of the various
environmental statutes have been generally amended to upgrade misdemeanor
provisions to felonies. It can therefore be anticipated that prosecutors will
begin -co rely more frequently on the environmental statutes to build their
cases.
4.2 Injunctive Relief
The most significant remedy available under most of the major
environmental laws is injunctive relief. Typically, EPA is authorized to
initiate an action for a temporary or permanent injunction and the courts are
granted jurisdiction to order the cessation of an ongoing violation and
require compliance.74 Once a violation of one of the environmental laws has
been proven to exist, thus providing the foundation for an injunction, a court
must require compliance but retains discretion in how to do so.75
Courts craft remedies on a case-by-case basis so that the individual
circumstances of each case are properly addressed. The concept of "fairness"
again enters the equation as courts have been reluctant to shut down
violators' operations where no real benefit would accrue to the environment at
that point in time, or where additional time would allow the violator to
72 See Miller, supra note 10 at 101.
73 However, it is equally important to note that the interplay of
environmental and other types of laws does not always work to the exclusion of
the former. In a recent case, federal and state narcotics-related
investigations were brought to trial as environmental crimes (illegal drug
labs and chemicals on the premises thereof posed a substantial danger to human
health) when it became clear that evidentiary problems threatened the
termination of an action based solely on drug-related statutes. EPA expects
that these types of relationships with other federal and state agencies will
continue to develop in the near future. See supra Section V, for a discussion
of EPA's working relationships with other organizations.
74 See, e.g.f §113(b) of the Clean Air Act.
75 See Miller, supra note 10 at 90.
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76 INTERNATIONAL ENFORCEMENT WORKSHOP
completely correct the violation.76 Where there is no other means of
compliance, however, courts will shut down a facility. In sum, courts Balance
the equities involved in determining whether to issue an injunction and what
the limits will be. Factors to be considered include the technical
feasibility of compliance, costs, the public importance of the violator's
operation, and the potential threat to human health.7" Injunctive orcterr? gre
enforced by contempt proceedings.
4.2.1 Compliance Requirements
Most injunctions mandate schedules of compliance to meet the requirements
being violated. The schedules are as detailed as necessary, often coim.iitting
the violator not only to a particular course of action by a final date, but to
interim actions as well.78 The compliance provisions of a consent decree will
also state the precise methods, such as testing or written reports, that EPA
thinks are appropriate to evaluate the violator's progress. EPA routinely
requires documentation of performance and seeks to stipulate its right of
access and entry to monitor compliance on an as needed basis.79 More stringent
monitoring provisions will be required by the Agency when the violator has a
history of repeated noncompliance. EPA policy also requires stipulated
penalties to be paid in the event of violations of key provisions of the
decree.
4.2.2 Restoration Provisions
Injunctions ordering restoration or cleanup of the environment to its
condition prior to the violation are common for certain types of violations.
These decisions normally consider the feasibility of restoration, the
financial ability of the violator, and the environmental benefits of
restoration. EPA invariably seeks restoration in Clean Water Act cases when a
violator has engaged in illegal dredge or fill activities in navigable waters,
76 See, e.g.. O'Leary v. Mayer's Landfill. Inc.. 516 F. Supp 517 (E.D.
Pa. 1981), where RCRA and CWA violations did not prompt closure of a landfill
because closure would not prevent pollutants from draining from the landfill
anyway. Instead the court required the company to design plans to stop the
drainage.
77 See Miller, supra note 10 at 93.
78 See Guidance for Drafting Judicial Consent Decrees 10-12 (EPA,
October 19, 1983). See also Verification of Consent Decree Provisions (EPA,
March 11, 1988); Habicht and Hunt, supra note 28 at 140-141.
79 Id.
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INTERNATIONAL ENFORCEMENT WORKSHOP 77
and particularly so where "wetlands" are involved.80 In those instances where
wetlands restoration is not feasible, courts will sometimes order the violator
to develop a comparable wetland at another location.81 The enforcement
provisions of several of the environmental laws authorize "appropriate"
relief, which could include restoration.82
4.3 Other Remedies
In the past several years, EPA and the states have increased considerably
xiie number of inspections, prosecutions, and penalty assessments sough1': arid
ordered. In view of this firmly established trend, EPA is always seeking new
methods to streamline its casework, to maximize the deterrent impact of
individual cases, and to develop creative yet effective initiatives designed
to benefit the environment. Two of the more promising ideas are environmental
auditing and "pollution prevention" projects.
4.3.1 Environmental Auditing
The environmental statutes provide EPA with broad authority to compel
regulated entities to collect and analyze compliance-related information.83 Cn
July 9, 1986, EPA announced its environmental auditing policy statement which
encourages the regulated community's use of environmental auditing to help
achieve and maintain compliance with environmental laws and regulations.84 The
policy states that EPA may propose environmental auditing provisions in
consent decrees and in other settlement negotiations where auditing could
provide a remedy for identified problems and reduce the likelihood of similar
problems recurring in the future.85
Environmental auditing provisions are most likely to be proposed in
settlement negotiations when a pattern of violations can be attributed, at
least in part, to the absence or poor functioning of an environmental
80 See, e.g., United States v. Lambert. 589 F. Supp. 366 (M.D. Fla.
1984). The preservation of wetlands is one of the key environmental
priorities of the Bush administration.
81 See, e.g., United States v. Board of Trustees of Fla. Community
College. 531 F. Supp. 267 (S.D. Fla. 1981).
82 See Miller, supra note 10 at 97.
83 See, e.g., CAA §§113 and 114, CWA §§308 and 309, and RCRA §§3007 and
3008.
84 51 Fed. Reg. 25004 (1986).
85 Id. at 25007.
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78 INTERNATIONAL ENFORCEMENT WORKSHOP
management system, or where it appears likely that similar noncomplianoe
problems may exist elsewhere in the facility, or at another facility operated
by the violator.86 In most cases, either a compliance audit or a
management audit is appropriate. The first is an independent assessment of
the current status of a party's compliance with applicable statutory and
regulatory requirements.87 The other is an independent evaluation of a party's
internal environmental compliance policies, practices, and controls.88 Whether
to seek a compliance audit, a management audit, or both will depend upon the
unique circumstances of each case.89
To date, Agency negotiators have achieved numerous settlements that
required regulated facilities to audit their operations. These innovacive
settlements are effective in ensuring future environmental compliance, and are
not simply means of rectifying violations once they have already occurred.
4.3.2 Pollution Prevention Projects
EPA recently published a proposed policy which identifies "pollution
prevention" as a major priority and commits the Agency to instituting
pollution prevention planning and implementation throughout every regulatory
program.90 Pollution prevention is defined as the "reduction or elimination of
environmental discharges and/or emissions to the environment through the
implementation of source reduction and environmentally-sound recycling
practices."91 The Agency's emphasis on preventing pollution at the source is
intended to reduce or eliminate root causes of some violations and thereby
increase the prospects for continuous compliance in the future. It is
anticipated that final EPA guidelines will explicitly encourage enforcement
personnel to incorporate pollution prevention conditions in enforcement
settlements . 92
86 See EPA Policy on the Inclusion of Environmental Auditing Provisions
in Enforcement Settlements (EPA, November 14, 1986).
87 Id., at 3.
88 Id..
89 Id. See also Wasserman, "Environmental Auditing Provisions in Consent
Decrees and Orders," in Law of Environmental Protection §8 at 185 (S. Novick
ed. 1989).
90 See Pollution Prevention Statement (EPA, January 26, 1989).
91 Id. at 1.
92 See Draft Interim EPA Policy on the Inclusion of Pollution Prevention
Provisions in Enforcement Settlements (EPA, September 29, 1989).
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INTERNATIONAL ENFORCEMENT WORKSHOP 79
5.0 EPA's Working Relationships with Special Organizations to Enhance
Enforcement Ef-ffyt^
5.1 Introduction
Given the intense public and Congressional scrutiny being focused en
environmental issues, as well as the increasing number of programs subject, to
environmental statutes, it is not surprising that EPA's enforcement program
has become the central means of implementing the Agency's regulatory goals.
In turn, the ability of EPA professionals to draw upon all available
enforcement resources is crucial to the success of the civil and crimiral
enforcement programs.
Preceding sections have outlined some of the specific "tools" used in the
day-to-day operations of EPA's enforcement program. No analysis of this
program would be complete, however, without noting both the important
organizational resources that exist within the enforcement-oriented
professional relationships maintained with other federal and state agencies.
5.2 Federal Agencies
5.2.1 Federal Bureau of Investigation (FBI)
As EPA began to develop a credible criminal enforcement program in the
early 1980s, it became necessary to discuss with the FBI the relative
responsibilities of the two agencies with respect to environmental-related
criminal investigations.93 Though EPA is the Agency with specialized expertise
in environmental issues, the FBI has independent authority to investigate all
criminal cases, regardless of subject matter, within the borders of the United
States. The agreement reached between the two agencies has proven beneficial
to both, as EPA volunteers the use of its laboratory and technical support in
return for being able to call upon the Bureau for agent support.*4 In the
ensuing years, EPA and FBI personnel have conducted hundreds of joint
investigations resulting in steadily increasing numbers of criminal referrals
to the Department of Justice.95 Investigative and technical personnel from
both agencies often engage in environmental enforcement and other training
sessions together.
In view of the tremendous growth in the criminal program in the past few
years, EPA and the FBI are currently preparing a new Memorandum of
93 See EPA-FBI Memorandum of Understanding. March 1982.
94 IcJ.
95 See supra, note 29 at 16.
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80 INTERNATIONAL ENFORCEMENT WORKSHOP
Understanding which will establish revised operating policy between the two
agencies.96
5.2.2 Army Corps of Engineers
EPA recently negotiated an agreement with the Department of the Anry's
Corps of Engineers (COE)9' concerning the enforcement of violations under the
Clean Water Act's provisions addressing illegal dredging and filling
activities in wetlands areas, which are considered U.S. waterways.98 Because
of the existence of overlapping regulatory authority, the two agencies are
interested in minimizing any waste of resources through duplication of
effort, and effectively support each other's efforts. Accordingly, the COE
will normally be the "lead enforcement agency" unless the violations are
flagrant and/or repeated, or if EPA requests the case.99
5.2.3 Other Agencies
Several other working relationships exist, including two which are
notable because of their emphasis on deterring the improper reporting of
financial liabilities associated with environmental violations. The first
involves the U.S. Internal Revenue Service (IRS), which now regularly receives
information relating to EPA penalty decisions and settlement agreements.100
The IRS can use this information in ascertaining the tax liability of
companies and individuals, particularly with respect to the verification of a
taxpayer's treatment of EPA penalties on tax returns, which are not
deductible.101
96 There has been an expansion in the number of EPA Special Agents who,
in 1988, were granted their own law enforcement powers by Congress. Also,
several criminal provisions in environmental statutes have been enhanced to
felony levels. These developments, coupled with new and stiffer U.S.
Sentencing Guidelines, means there will be an increased likelihood of more
cases going to trial. In addition, as the prominence of cases and violators
increases, there is certain to be more Congressional oversight, press
attention, and interest from state and local authorities.
97 See EPA-OOE Memorandum of Understanding on Enforcement of Clean Water
Act Section 404. January 19, 1989.
98 33 U.S.C. §1362. See supra, note 80 and accompanying text.
99 See supra note 97.
100 See Agreement Between the Environmental Protection Agency and the
United States Internal Revenue Service Concerning Disclosure of Penalty
Information, January 9, 1989.
101 Id..
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INTERNATIONAL ENFORCEMENT WORKSHOP 81
The second involves the U.S. Securities and Exchange Commission (SBC),
which requires publicly-held companies to report certain environmental.
liabilities so that investors have adequate access to relevant information
regarding the value of traded securities.102 The SBC has received compliance-
related information from EPA on an irregular basis for a number of years, but
this process has not been formalized.
EPA is currently assessing whether or not SEC shareholder disclosure data
could be of assistance in alerting the Agency as to whether a corporation had
found and resolved an environmental problem at any one of its facilities,, 'cut
had failed to report this information to EPA. This type of data could ba used
in conjunction with other facility data for targeting purposes, or to indicate
whether the corporation is in violation of any statutory self-reporting
requirements or those contained in a consent decree.103
5.3 State Environmental Enforcement Associations
Achieving a high rate of regulatory compliance is critical to the success
of both EPA's and the states' environmental protection efforts. Without
credible enforcement programs, there will be less incentive in the regulated
community to comply with environmental laws. In an effort to strengthen
national criminal enforcement efforts, EPA, in cooperation with state
environmental enforcement organizations,104 has formulated national criminal
program priorities.105
Though many of the states have initiated criminal enforcement programs,
there is an insufficient level of coordinated effort between the states,
particularly with respect to training programs. In addition, most state
enforcement programs lack the resources (lab support, technical expertise and
criminal investigators) that exist at the federal level.
102 See Memorandum to Thomas L. Adams, Jr., Assistant Administrator for
Enforcement and Compliance Monitoring, January 30, 1989.
103 Id. at 2.
104 A majority of states are members of one of four geographically-
oriented state enforcement organizations: the Northeast Hazardous Waste
Project, the Midwest Environmental Enforcement Association, the Southern
Environmental Enforcement Network, and the Western States Hazardous Waste
Project. These organizations provide an effective framework for negotiations
between states as well as the furtherance of the federal-state partnership.
105 See Memorandum from Carroll G. Wills, Acting Director, National
Enforcement Investigations Center, March 16, 1989.
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82 INTERNATIONAL ENFORCEMENT WORKSHOP
Recognizing these and other concerns, there is now a concerted effort
underway to develop a consensus national program. Key agenda items include
the drafting of model state environmental criminal enforcement legislation;
the enhancement of information exchange capabilities between EPA and t.he
states; the development of new training programs; determining the ro]o of
local governments, and finding additional sources of funding.106
106 Id.
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INTERNATIONAL ENFORCEMENT WORKSHOP 83
6.0 Hie Use of Alternative Dispute Resolution (ADR) Techniques to Facilitate
Compliance Agreements
6.1 Overview
In order to effect compliance with the nation's environmental laws, T!?A
has sought to develop and maintain a vigorous judicial and administrative
enforcement program. It is critical that cases instituted pursuant to the
enforcement program be resolved, either through settlement or decision fcy the
appropriate authority, as quickly as possible in order to ensure the integrity
and credibility of the program, and to reduce any backlog of cases.107 By
1985, EPA was initiating new enforcement cases faster than it was closing
existing ones, and the gap was widening. In the past couple of years alone,
over 6,000 administrative enforcement actions were initiated. Despite
aggressive attempts by EPA to streamline case initiation and settlement
practices, the Agency's docket of administrative cases grew to over 2,500
active cases.108 This situation forced the Agency to examine new ways of
making the enforcement program more efficient, particularly given that no
additional fiscal resources were forthcoming. The use of ADR processes was
suggested as a partial solution.109
In August of 1987, EPA published its internal memorandum, Guidance on the
Use of Alternative Dispute Resolution Techniques in Enforcement Actions. The
memorandum establishes as policy the use of ADR in the resolution of
appropriate civil enforcement cases; describes the various ADR processes
available; formulates Agency case selection procedures; establishes
qualifications for neutral third parties who hear cases, and formulates
internal Agency management procedures for cases submitted in whole or in
part for ADR. Significantly, this guidance establishes the only formal
program to date for the use of ADR in an enforcement program by a U.S. federal
agency.110
107 See Guidance on the Use of Alternative Dispute Resolution Techniques
in Enforoement Actions (EPA, August 6, 1987) [hereinafter cited as Guidance].
108 See T. Hunt, "Innovative Settlement Techniques: Use of Alternative
Dispute Resolution Tools in Resolving Environmental Litigation," in
Environmental Management Review 50 (Government Institutes, Inc. 1989).
109 See R. Robinson, "The Use of ADR in Enforcement Actions in the U.S.
Environmental Protection Agency," in Sourcebook; Federal Agency Use of
Alternative Means of Dispute Resolution (Administrative Conference of the
United States, June 1987). See also R. Mays, Alternative Dispute Resolution
and Environmental Enforcementf 18 ELR 10087 (1988), at 10088.
110 See The Administrative Dispute Resolution Act of 1989; Hearing on
S.971 Before the Senate Ooramittee on Governmental Affairs, September 19, 1989
(Statement of Edward E. Reich, Acting Assistant Administrator for Enforcement,
EPA) [hereinafter cited as Reich testimony].
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84 INTERNATIONAL ENFORCEMENT WORKSHOP
6.2 ADR Techniques
The ADR techniques currently employed by EPA include mediation,
arbitration, mini-trials, fact-finding, and the use of settlement judges. A
mediator is a neutral third party who monitors the exchange between disputants
and serves as a "facilitator," though not as a judge, of the positions taken
during negotiations.111 The mediator also schedules and structures
negotiations and acts as a catalyst when discussions falter. Nonetheless, as
in traditional negotiations, the parties retain the absolute power to resolve
the issues in dispute; the results of a mediated settlement are binding only
if all parties agree.
Arbitration involves the use of a third party to hear stipulated issues
pursuant to procedures specified by the parties. Depending upon the agreement
of the parties, the decision of the arbitrator may or may not be binding.
Factual and legal issues may be submitted to the arbitrator. Because the
process is less formal than a courtroom proceeding, parties usually relax
evidentiary rules in an effort to save time. There are severe restrictions on
the use of binding arbitration by federal agencies at the present time; the
process is rarely available and then only for factual issues. EPA's
experience with binding arbitration has been limited to a few small cases
under the Superfund law. Its future use for factual issues in other contexts
is currently being considered.112
Mini-trials permit parties to present their case, or some portion
thereof, to principals (e.g., company or EPA officials) who have the authority
to settle their dispute. Limited discovery and preparation precede the case
presentation which, with the consent of the parties, usually takes the form of
an abbreviated hearing with testimony and cross-examination.
Following the presentation, the principals reinstitute negotiations,
possibly with the aid of a neutral third party mediator. Mini-trials are
useful in narrowing factual issues or mixed questions of law and fact, and in
giving the parties a realistic view of the strengths and weaknesses of their
cases.U1
111 See Guidance, supra note 107 at 4.
112 See Reich testimony, supra note 110.
113 Discovery is a set period of time occurring prior to trial which is
used by parties to a dispute to ascertain relevant facts. This is usually
accomplished through oral depositions of potential witnesses and written
questions directed to the other parties.
114 See Guidance,, supra note 107 at 5-6.
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INTERNATIONAL ENFORCEMENT WORKSHOP 85
Fact-finding involves the investigation of specified issues by a third
party neutral who is acceptable to the parties and who has expertise in the
subject matter forming the basis for the dispute. The process may be binding
or nonbinding; moreover, if agreed upon, the results of the fact-finder's
investigations may be admissible as established facts in a subsequent, judicial
or administrative hearing. This process is often used in resolving technical
issues.115
The role of a settlement judge is similar to that of a mediator in that a
neutral, court-appointed jurist facilitates a settlement between the partiss
by focusing negotiations and offering opinions on the likely outcome of key
issues at trial.
6.3 Practical Applications
ADR processes may reinvigorate a pending case which has been in
litigation for several years and is apparently at an impasse.116 Impasses can
arise from personality conflicts between counsel, poor communication between
parties, inflexible negotiating stances, multiple parties with conflicting
interests, or even political or public policy interests. An experienced third
party neutral may be able to refocus and change the dynamics of the
negotiations, serve as an intermediary between conflicting interests, or
provide new perspectives on possible solutions.
Parties may choose to place technically complex issues before a neutral
with specialized expertise in an effort to foster resolution and avoid the
risk that a non-specialized judge may order an inappropriate or inadequate
remedy. A practical example where EPA might agree to ADR would be where a
determination was necessary as to the required level of cleanup at an
industrial plant with a chemical contamination problem.117
EPA's guidance memorandum notes that the government should perhaps
anticipate the referral of a complex issue to a third party neutral by a court
by suggesting that the parties themselves select a mediator to assist with
negotiations. It further notes the desirability of considering ADR in
instances where the parties demonstrate their good faith willingness to use
it."'
115 Id. at 5.
116 See Hunt, supra note 108 at 61.
117 Id.
118 See Guidance, supra note 107 at 10-11. It is equally true that a
routine case might warrant the use of ADR given the potential costs associated
with litigation.
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86 INTERNATIONAL ENFORCEMENT WORKSHOP
EPA has had several successful enforcement ADR experiences. In a case
involving the City of Sheridan, Wyoming, EPA and the city had been attempting
to resolve a violation of the Safe Drinking Water Act since 1979.119 The
violations of drinking water standards involved the water supply to 300
persons by the city. In 1986, EPA proposed ADR as a means of resolving this
long-standing problem. After considerable discussion, the parties agreed to a
process involving both mediation and fact-finding. One of the mediator's
first acts was to bring in additional parties not directly involved in the
enforcement action, but whose participation was essential to solving the
underlying environmental problem, such as the county government, relevant
state agencies, and citizen groups.
Because the negotiations with the city were considered to be in the
nature of settlement discussions to resolve potential litigation, they were
not open to the public.120 This obviated any posturing by either party which
undoubtedly saved time. A solution was reached after less than a year of
mediated discussions and included the formation of a joint city-county
committee to address long-range drinking water problems throughout the valley
where the city is located. This solution has since resulted in improved
drinking water for 5,000 people, far more than the 300 who were targeted in
EPA's original enforcement action. This resolution would have been unlikely
to emerge from the traditional adversarial process.121
EPA views ADR processes as means of resolving selected enforcement
disputes more efficiently. The Agency's willingness to consider the use of
ADR does not imply that EPA would settle a case using these techniques on
terms which would be less protective of human health or the environment than
if the case were resolved by the familiar approach of negotiation and
litigation. EPA's enforcement program is designed such that the use of ADR
will always be accompanied by an aggressive enforcement program utilizing all
administrative, civil and criminal sanctions available under the law.122
119 The case was referred by EPA to the Department of Justice for filing
in federal court in 1978. In view of concerns about evidentiary issues and
questions about the financial status of the city, the case was ultimately
withdrawn.
120 See Reich testimony, supra note 110 at 20.
121 In most cases, records and communications arising from ADR are
confidential and cannot be used in litigation or disclosed to the opposing
party without permission. Public policy interests in fostering settlements
conpel the confidentiality of ADR negotiations and documents. U.S. federal
courts have construed the Federal Rules of Evidence to preclude admission of
evidence regarding the defendant's settlement of similar cases. See, e.g.,
Scaramuzzo v. Glermore Distilleries Co., 501 F. Supp. 727 (N.D. In. 1980).
122 See Hunt, supra note 108 at 66.
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Hans J.A. Schaap
Deputy Inspector General
Inspectorate for Environmental Protection
P.O. Box 450,
2260 MB Leidschendam, The Netherlands
SMALL BUSINESS COMPLIANCE, THE ROLE OF LOCAL COMMUNITIES
SUMMARY
In the Netherlands the municipalities are responsible for issuing
licences and ensuring compliance with the regulations for the vast
majority of firms. The paper deals with the experience of the last
five years in stimulating the municipalities who in general were
well behind in the issue of licences and in their inspection
activities. Enforcement by local communities is given a special
boost by three developments which are outlined, the Public Nuisance
Act Implementation Plans, the programmed inspection projects
concerning chemical waste and the additional funds, which force
municipalities to cooperate with one another. The results of a more
systematic inspection and the use of civil law, criminal law and
administrative law are described. The importance of cooperation
between authorities and the necessity to interest the police and
judiciary in the subject is emphasized. Attention is paid to
environmental auditing and growing awareness in industry. The waste
problem is mentioned as a subject of special concern. The comments
have concentrated primarily on what is being done to force small
and medium sized firms to comply with the environmental
legislation.
1. LEGISLATION
Many laws concerning the protection of the environment have been
enacted in the Netherlands since the late 1960s, to add to the
Public Nuisance Act, which was originally passed in 1875.
Initially, each new Act was designed to tackle a separate
problem area, such as water pollution, pesticides, air pol-
lution, waste and noise pollution. For several years efforts
have been made to integrate the separate Acts into the
environmental Protection (General Provisions) Act. Proposals
specifically designed to replace the various licences required
of firms by the separate Acts with a single licence are now
before Parliament. For more detailed information on the Dutch
legislative system reference should be made to the review
article in the International Environmental Reporter of July
1989.1
LICENSING BY MUNICIPALITIES
In the Netherlands the provinces are responsible for issuing
licences to such large industrial units as refineries, power
stations and chemical-processing plants which cause serious
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INTERNATIONAL ENFORCEMENT WORKSHOP
pollution or pose a major threat to the environment and for
ensuring that they comply with the regulations, while central
government is responsible, for example, for nuclear power
stations and processors fo chemical waste, for which specialized
expertise is needed.
The vast majority of firms, however, are the responsibility of
the 650 or so municipalities in the Netherlands, which vary in
size from a few thousand to half a million inhabitants.
Until a few years ago the Public Nuisance Act required the
issue of a separate licence, with conditions attached, for
virtually anything that had an effect on the environment (from a
fire hydrant booster in a residential building to a cattle farm,
a joinery works, an electroplating plant or a chemical
laboratory). Since the Public Nuisance Act was amended, however,
simpler activities, like those of bakeries, garages, dry-
cleaning establishments, office buildings, LPG filling stations
and propane gas depots, have been governed by general re-
gulations adopted at central level and directly applicable to
such activities. Consequently, operators need notify only the
municipal authority before commencing an activity governed by
these regulations. This amendment to the Act greatly improves
the situation not only for operators but also for municipalities
since it means that the workload created by the issue of
licences can be reduced somewhat. This reduction was badly
needed, research carried out in 1977 having revealed that in
practice municipalities failed to issue firms with appropriate
licences in over two-thirds of all cases, owing partly to a lack
of capacity (too few staff), partly to indifference and partly
to unwillingness (they wanted to be kind to industry as a source
of employment). If the situation was bad where the issue of
licences was concerned, it can be imagined what the monitoring
of compliance was like. In general, and certainly until the mid-
1980s, inspections by the municipalities were almost entirely
confined to occasions when serious complaints had been received
from the public. As a result, all manner of insidious forms of
pollution, such as soil contamination and abuses involving
chemical waste, went undetected.
3. THE IMPORTANCE OF ENFORCEMENT
In the mid-1980's far more emphasis began to be placed on the
importance of enforcement. Pieter Winsemius, then Minister for
the Environment, presented his view of the environment policy in
the form of the life cycle of environmental problems he had
developed, indicating how, in the first stage, a period of
differing opinions on the nature and seriousness of the problem
slowly gives way to acceptance of the problem, after which the
development of policy is set in motion, culminating in the third
stage: the solution provided by legislation. This is followed by
the fourth stage, the administrative phase, in which prime
importance is attached to inspection and enforcement (see Figure
1). He also indicated the place of enforcement in the chain of
regulation (see Figure 2), referring to the serious danger of
its always becoming the weakest link. In this context he
stressed the importance of constant movement in this chain:
where regulation is found to be deficient, experience gained
from enforcement must stimulate the adjustment of legislation
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89
FIGURE 1
Policy life cycle
Perceived
magnitude
of problem
Recog-
nizing
Policy (Solving
making
Area
of dissension
I
Maintaining
control i
Target
Policy phase
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INTERNATIONAL ENFORCEMENT WORKSHOP
REGLHAIORY CHAIN
FIGURE 2
1. legislation «•
standard setting
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INTERNATIONAL ENFORCEMENT WORKSHOP 91
and the rules governing the issue of licences. The whole system
is, moreover, kept in constant motion by policy planning, which
is periodically adjusted.
A number of scandals, which drew attention to the poor
enforcement of environmental legislation, helped to prompt
several measures taken from the mid-1980s to raise the standard
of enforcement and strengthen the role played by the
municipalities in this respect.
4. HELP WITH THE PROGRAMMING OF MUNICIPAL ENFORCEMENT
As we have already said, many municipalities were well behind in
the issue of licences and in their inspection activities. As a
first step towards improving this situation, the Public Nuisance
Act Implementation Plans were devised in the early 1980s.
Municipalities were able to obtain money from central government
to draw up a plan to tackle environmental problems in their area
of jurisdiction. They could use the money to commission an
external consultancy firm or employ people to clarify two
aspects in particular: 1. what firms in the municipality were
governed by the Public Nuisance Act and which of them should be
given priority in the issue of appropriate licences and
systematic inspection, and 2. what organizational arrangements
needed to be made to ensure that municipalities achieved an
acceptable level in the performance of the tasks assigned to
them by the Public Nuisance Act? The municipalities took
considerable advantage of this scheme. About 90% of them
established a Public Nuisance Act Implementation Programme. For
a fair number of municipalities (especially the larger ones) the
programme acted as an incentive to pursue a sound policy on the
application and enforcement of the Public Nuisance Act. But
there were also a good many municipalities where the programme
was shelved, leaving noting but good intentions.
5. MUNICIPALITES AND TOXIC WASTE
A second incentive for the municipalities to take a greater
interest in the environmental aspects of firms in their area was
the stricter application of the Chemical Waste Act. A national
multi-year programme for the stricter enforcement of the
legislation on chemical waste (2) was launched in 1984. The
Chemical Waste Act requires firms to surrender chemical waste to
a limited number of collectors and processors licensed by the
central authorities. Not only did these licensees have major
shortcomings: it was also found that, instead of keeping their
chemical waste separate, many firms were storing it with
ordinary industrial waste, discharging it into the sewers and
sometimes even allowing it to drain away into the soil. While
the central authorities are responsible for monitoring
collecting and processing firms, a task they have been
performing far more systematically since 1984, the
municipalities seemed the obvious choice for the task of monito-
ring compliance with the Chemical Waste Act by the more than
150.000 firms in the Netherlands that generate chemical waste in
one form or another. As outlined above, however monitoring the
enforcement of the Act had not progressed very far at this
level. Inspection projects financed by the central authorities
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were set up to encourage the municipalities both to make checks
on firms in general to ensure compliance with environmental
legislation and to supervise the enforcement of the Chemical
Waste Act. In particular, municipalities were encouraged to
cooperate in their inspection activities and to adopt a sectoral
approach by checking, say, all the car respraying shops, all the
electroplating firms or all the shipyards in a given area. The
advantage of this approach is that municipal officials can be
taught inspection techniques together and attend joint courses
on the enforcement of criminal law, report-writing, social
skills, etc. The multi-year programme was therefore accompanied
by an extensive training programme and the development of
instruction manuals for the inspectors and of information
material to be left with firms at the time of the first
inspection. The information material was, moreover, geared
specifically to each sector in which checks are made. That this
exercise was no luxury is evident from the fact that the first
round of inspections showed some 80% of the firms in any sector
to be unaware of their obligations under the Chemical Waste Act.
6. THE POLICE AND THE PUBLIC PROSECUTIONS DEPARTMENT
The multi-year programme was also used to encourage the police
and the Public Prosecutions Department to take a greater
interest in the enforcement of environmental legislation. A
conscious decision was taken in the Netherlands not to set up a
separate environmental police force, because we were convinced
from the outset that the police, being on patrol 24 hours a day
and well versed in criminal law and having considerable
potential throughout the country, can play an extremely
important role in the enforcement of environmental legislation.
They must, of course, be appropriately trained and given
suitable sampling equipment, for example, and have the technical
support of environmental specialists. The aim in this connection
is close cooperation between the police and the municipal or
intermunicipal environmental service. This cooperation is
steadily taking shape and will be further intensified as a
result of the recent reorganization of the netherlands police
force, which entails the merging of the national and municipal
police forces and the formation of police regions (districts)
with expertise in special fields, including environmental crime.
The Department of the Environment has given the police a great
deal of support in the form of training courses, sampling
equipment and subsidies for inspection projects.
The careful approach to the programme for stricter enforcement
of the legislation, the improvement in the quality of the
official reports drawn up by environmental officials and the
police and the close cooperation on a number of major
environmental cases have led to a substantial increase in
interest and willingness to take out prosecutions in recent
years. This was one of the factors that prompted the current
reorganization of the Public Prosecutions Department and the
appointment of far more public prosecutors to deal almost
exclusively with environmental crime.
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7. THE NEED FOR BETTER FINANCING
The effectiveness of the multi-year programme for the stricter
enforcement of the legislation on chemical waste was evaluated
on several occasions while it was being implemented. To this
end, workshops were, for example, held in various parts of the
country for municipal, provincial and police administrators and
officials, public prosecutors, representatives of water control
and purification boards and civil servants so that they might
exchange experience, discuss working methods and identify
bottlenecks. The most important problem to emerge from all these
meetings, which were held at five places in the country, was the
lack of structural financing needed by the municipalities for
the satisfactory performance of their environmental tasks,
including enforcement. The temporary contributions towards the
cost of implementing inspection projects under the programme for
the stricter enforcement of the legislation did not attract the
new, permanent staff members who were badly needed. The
municipalities in the Netherlands receive their funds from
central government in the form of a general annual remittance
and effectively have no significant tax revenues of their own. A
study carried out by a private agency of the financial options
available to the municipalities for the proper performance of
their environmental tasks showed that their total annual
shortfall ran into tens of millions of guilders. This prompted
the Cabinet to take the political decision to allocate to the
municipalities additional annual amounts, which will rise to
some 50 million guilders (about 25 million dollars) in 1994.
This supplement is not simply added to the municipalities'
annual remittance, but earmarked for the development of a better
municipal environmental policy in the years to come.
Furthermore, the Department of the Environment has devised a
financing arrangement with the Union of Netherlands Munici-
palities. This arrangement encourages intermunicipal
cooperation and makes the municipalities directly accountable to
the municipal councils and the Inspectorate for Environmental
Protection. To ensure that the municipalities achieve
sufficiently high enforcement standards and are able to attract
well-trained and experienced people, the smaller municipalities
are now required to cooperate if they want to take advantage of
the financial arrangement. This requirement applies to alle
municipalities with fewer than 70,000 inhabitants.
Municipalities with a larger population are free to use the
money they obtain to improve their own administrative machinery,
but if they decide to cooperate with other municipalities, the
amount is increased by 25%. The arrangement was introduced this
year and .is already a success. Many municipalities are opting
for cooperation. The municipalities also have to contribute
funds of their own, especially when they have spent little on
environmental policy in the past. When applying for a subsidy,
they must show that they will have achieved the required
licensing and enforcement standards by 1995. The money
obtainable is far from always sufficient to fund these efforts.
A second requirement to be satisfied by municipalities is the
submission of an annual report to the municipal council on the
progress being made towards the proper performance of the
environmental tasks. They must obtain the opinion of the
Regional Inspector for Environmental Protection on the
application for a subsidy and on the draft annual report in each
case. The Inspectorate for Environmental Protection forms part
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of the Ministry of Housing, Physical Planning and the
Environment, whose involvement therefore signifies an assessment
by central government.
8. ENFORCEMENT IN PRACTICE
Enforcement is being given a special boost by the three
developments outlined here, the Public Nuisance Act
Implementation Plans, the programmed inspection projects
concerning chemical waste and the additional funds, which force
municipalities to cooperate with one another. An interesting
aspect in this context is that each municipality retains
administrative responsibility for any corrective action taken
against firms. As, however, a more professional civil service
apparatus with better trained people is at the service of each
municipality's administrators, enforcement can be better and
more efficiently organized. The administrators responsible for
environmental matters in the various municipalities are
required to meet periodically to discuss the management of
public services and both to establish plans of action and set
priorities and to monitor the various activities. This also
results in the administrators concerned influencing each other
in a positive sense. It can even be said that they teach each
other, for example, not to be too ready to let environmental
interests take second place to economic factors in their own
municipal administrations, which small municipalities in
particular are rather inclined to do. Cases of firms simply
being left to go on operating without a licence or even
illegally are consequently becoming less numerous. The process
of significantly raising the municipalities' licensing and
inspection standards must be completed in the first half of the
1990s.
9. SYSTEMATIC INSPECTION
We are now at the stage of building on the experience gained in
the past five years in programming and the setting of
priorities. During this period many municipalities have begun to
monitor firms more systematically (often for the first time). As
we have already said, the first round of inspections frequently
shows compliance with the legislation to be very poor. The
emphasis is then on warnings and information on what the law
requires. A second inspection often produces the opposite
picture: over three-quarters of the firms complying with the law
in most respects. A third visit results in sanctions being
imposed on those who continue to flout the law. An official
report is drawn up as the first step in the initiation of
criminal proceedings, or they are forced to comply by the threat
of periodic penalties. It often helps if a uniformed police
officer accompanies the environmental inspector on his third
visit. Many firms, particularly the smaller ones, then realize
that things are getting really serious, make the best of a bad
job and change their ways. It is confidently claimed that
systematic inspection can persuade more than 90% of all firms in
most sectors to comply with the regulations. The success rate is
highest in sectors where firms are generally very careful and
professional. Problems arise, for example, with scrapyards, used
oil collectors and processors and small electroplating firms. In
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general, it can be said that economically marginal firms pose
the most serious problems because they lack the money to
install the equipment needed to protect the environment. In
such cases, municipal administrations quite often take an
ambivalent view, especially if the firms concerned have been in
their area for many years. The problem is sometimes solved by
reorganizing or removing such firms using money earmarked for
urban renewal. Where a municipality has allowed a firm to
operate without a licence for years, it is also very difficult
suddenly to take a tough line because our supreme appeal body
in matters of administrative law, the Council of State, opposes
such action. It is also far from easy to initiate criminal
proceedings in such situations.
10. CIVIL LAW
In the Netherlands increasing use is also being made of civil
law to counter violations of environmental legislation.
Succesful prosecutions have been brought against firms guilty
of soil pollution in the past. Some 120 suits against such
firms are currently before the courts. The fact that the
authorities systematically prosecute any offender who does not
proceed to clean up the soil of his own volition has a twofold
effect. The number of cases of voluntary soil decontaminations
has increased enormously, and Dutch industry as a whole is now
working on a plan whereby it will itself systematically
identify and clean up all polluted industrial areas. The threat
of a special levy to form the equivalent of the American
"superfund" also helped in this respect. Secondly, the
knowledge that infringements of environmental laws may prove
very costly has a highly preventive effect: firms are generally
becoming more cautious about taking risks with the environment.
It has also proved effective in practice to resort to civil law
where, for example, toxic waste has been imported illegally.
Summary proceedings are initiated and periodic penalties
imposed to force foreign firms to take such waste back. This
type of civil action is also used quite frequently in
combination with criminal proceedings, when the object is, for
example, to stop the illegal storage of dangerous substances or
toxic waste without delay. There is then no need to await the
end of lengthy criminal proceedings to put an end to abuses.
11. CRIMINAL LAW
Penalties in the Netherlands are not high as a rule. Fines are
comparatively small. Custodial sentences, which are not easily
obtained, are of short duration. The requirements concerning
the onus of proof are, moreover, strict in criminal law. Few
cases involving chemical waste have resulted in custodial
sentences. Fines are imposed mainly for illegal discharges into
surface water, spreading manure on land during periods when
this practice is prohibited, causing noise nuisance, infringing
safety regulations, etc. The number of criminal cases is rising
steadily. The more active role played by the public prosecutors
is clearly discernible. Public prosecutors also close cases by
coming to an arrangement with the offender whereby the latter
buys off the prosecution. At one time the sums paid were often
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small. Now they run to hundreds of thousands of guilders. When
cases are brought before a criminal court, there is a growing
tendency for offenders to be not only fined but also required
to pay a sum equivalent to the economic advantage they have
derived from their illegal conduct, such as the costs saved by
not having chemical waste processed by a specialized firm.
12. ADMINISTRATIVE LAW
Administrative law provides for few penalties to discourage
illegal activities. Administrative fines like those in the USA
are unknown to the Dutch administrative system. It is only in
the last few years that the Public Nuisance Act has provided
for periodic penalty payments: a municipality may require a
firm to pay, say, a thousand guilders for each day it is in
breach of the regulations. This has proved to be an effective
weapon, particularly in the case of firms which fail, for
example, to install a certain piece of technical equipment to
limit emissions. A Bill seeking to insert a clause to this
effect in the other environmental Acts is now before
Parliament. The harshest penalty that may be imposed under
administrative law is the partial or complete closure of a
firm. In many cases, however, this is too drastic a measure,
especially where relatively minor offences are concerned. The
procedure is, moreover, complicated by all manner of appeal
options. In practice, closure is a penalty that is not used
widely, but with some regularity. It is more common for the
regulations with which a firm must comply to be tightened up
after complaints from people living nearby or as a result of an
inspection.
13. COOPERATION AMONG AUTHORITIES
In recent years the three levels of administration in the
Netherlands, national, provincial and municipal, have
increasingly taken to sharing responsibility for the
implementation of the environmental policy and, in particular,
enforcement. The abovementioned multi-year programme for the
stricter enforcement of the legislation on chemical waste
helped in this respect in that central government provided
money for inspection programmes. These programmes were drawn up
jointly by the provinces and the municipalities and led to
inspections of firms in certain sectors of industry where
chemical waste occurs in relatively large quantities. The
Inspectorate for Environmental Protection was also involved in
these projects and their preparation. It arranged training
courses, compiled inspection manuals, etc., and the
Environmental standby Team also offered the police its
assistance in serious and complex forms of environmental crime.
In addition, the National Information Centre for Environmental
offences attached to the Central Inspectorate acts as a vade
mecum for the local police, for example, when the environmental
conduct of certain individuals or firms is in question.
Now that more financial resources are available and
intermunicipal cooperation has begun, the intention is to
transfer as much of the responsibility for the application and
enforcement of the environmental legislation as possible to the
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intermunicipal associations, around 60 of which have been
established in the country. The aldermen responsible for
environmental protection, the public prosecutor and
representatives of the Inspectorate for Environmental
Protection, the water control and purification boards and the
police will participate in the administrative consultations at
this level, which have been discussed above. The consultations
are chiefly intended as an opportunity to coordinate the
various enforcement activities and to establish an annual
programme. Similar consultations already take place in the 12
provinces, and they will now be used principally to introduce
some coherence into the activities of the various
intermunicipal associations (regions). The priorities set at
national level in discussions between representatives of the
three levels of administration will influence programming at
provincial and intermunicipal level. The partnership model
outlined here must be taken as the basis for the further
development of the enforcement of the environmental legislation
in the years to come.
14. ENVIRONMENTAL AUDITING
A modest start has been made in the Netherlands on the
introduction of environmental self-care systems within firms.
Some very large firms have themselves recognized the need for
clarity and the coordination of the various measures taken by
individual firms to protect the environment. There is a growing
conviction that corporate environmental policy must be
integrated into overall corporate policy. Most medium-sized and
smaller firms, however, are still unfamiliar with the
phenomenon of environmental self-care. Pilot projects designed
to overcome this ignorance and enable firms to gain the
necessary experience are now being implemented. Clearly, many
small firms find it impossible to employ one or more people of
their own to ensure compliance with the environmental
regulations. To enable environmental self-care to be introduced
at this level, it has been suggested that environmental
advisers should be appointed in certain sectors to provide
firms with information from their own employers' organization
and to help them to set up simple environmental self-care
systems. Another experiment involves regional agencies run bij
industry intself, to which firms can turn for an inspection of
the environmental aspects of their operations and for advice on
any improvements that need to be made. The results of the first
environmental self-care trials have been evaluated, the
conclusion being that the time is not yet ripe for legislation
to be introduced in this area or for environmental self-care
systems to be made compulsory, for example. The trial period
has therefore been extended.
15. SUPPORT MEASURES
It is generally appreciated that stricter enforcement must be
complemented by measures relating to training, equipment,
information and research. Periodic evaluation is also
important. The programme of research on enforcement includes
regular studies of the effectiveness of all manner of legal
instruments, the number of prosecutions and their outcome, the
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functioning of the consultative bodies (e.g. those which
discuss enforcement at provincial level), the results of the
inspection projects, etc. These studies are urgently needed if
lessons are to be learnt from shortcomings. Direct feedback
from practical experience is also very important, especially
for policy-makers. It reveals, for instance, what can and what
cannot be enforced. An example to illustrate this: until
recently the masters of inland waterway vessels were able to
get rid of their used oil free of charge by handing it to
suppliers of new oil or by discharging into facilities in ports
or at locks. Now they have a pollution levy to have it properly
processed. The effect has been the opposite of that intended:
more oil than ever is being discharged into the water
illegally. The legislation will therefore have to be amended to
cater for this. The polluter-pays principle is fine, but it
does not always work. Small firms in particular sometimes make
it necessary to create facilities to ensure compliance with the
law. The municipalities, for example, have set up collection
points for small quantities of chemical waste, where the public
can deposit leftover paint, batteries etc. and firms too may
leave small quantities of chemical waste. This system proved
rahter succesful.
Effective enforcement stands or falls with the setting of the
right priorities for inspections of firms. As it is impossible
to keep a permanent check on every firm, inspections must be
made at reasonable intervals, related to the level of
environmental risks posed by the various types of firm. A
consultancy firm has drawn up a plan for the Inspectorate for
Environmental Protection whereby firms are divided into four
categories and inspected at different intervals, ranging from
an average of once a year for firms posing the greatest risk to
once every five to ten years for firms posing a minor risk.
This inspection system is being introduced in the
municipalities and is seen as the standard for meeting the
reguirement that the goal be an appropriate level of
enforcement. It should be noted that the intervals referred to
are average periods. Some firms will, of course, be inspected
by the municipality more frequently than once a year, where,
for example, their record of compliance indicates the need.
16. OBJECTIVE FOR THE NEAR FUTURE
With the system of financing, enforcement instruments and back-
up facilities described above the intention is eventually to
reach the stage in the latter half of the 1990s where
enforcement activities and, above all, penalties can be
confined to the small minority of wilful offenders (estimated
at about 10 to 15%, who are always to be found in any
situation. Well-organized enforcement must be capable of
dealing with these offenders, even though there will always be
individuals and small firms that go on trying to pollute the
environment without being detected. The vast majority will, it
is to be hoped, adhere strictly to the rules.
Detection will be important in the future developments which
have been outlined here and are considered desirable because a
quick reaction to deliberately illegal conduct makes it clear
to potential offenders from the outset that environmental
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offences do not pay and to habitual offenders that getting rich
at the environment's expense is a thing of the past.
Prosecutions have a strong preventive effect, as do regular
inspections. Inspection is also important because regular
contact between the authorities and persons under their
jurisdiction has a highly educational effect and, at the same
time, provides the necessary information on the impact of
statutory provisions in practice. The feedback mechanism is
therefore important for the policy. It is thus clear that
enforcement is not the last link in the chain of regulation,
just one of many: implementation and policy development are
joined by these links. The policy will become rigid and the
rules may be lose sight of reality if lessons are not learnt
from the results of inspections.
Enforcement is directed at factors which either undertake
activities in or outside a plant that act as a source of
pollution or market or use certain products that are likely to
have adverse effects. In the sphere of enforcement the
sourceoriented environmental policy can always be applied to
those who are responsible for this source. The facts still
emerging on the adverse effects which numerous human activities
have on the environment continually make it necessary for new
limits to be imposed. More legislation, unavoidable where an
environmental problem is growing, makes enforcement more
difficult. Where it is certain that the government cannot be
accused of pulling back where environmental policy is
concerned, enforcement is bound to make heavy demands on all
levels of administration.
17. ENFORCEMENT IN A PLURALISTIC SOCIETY
In a pluralistic society where there is a growing trend toward
individualization it is more difficult to get across the
message that every citizen and every firm has a duty to abide
strictly by the provisions of environmental legislation. A
great deal of effort is therefore needed to make it generally
understood that, given the wide variety of activities, the
rules that have been laid down are unavoidable. This also means
that the message cannot go out from just one or two
authorities. The prevention of pollution must be generally
accepted as the concern of every member of society. This calls,
above all else, for the highest possible number of enforcement
agents. In recent years all kinds of steps have been
successfully taken to interest the police and judiciary in this
subject. This work must be continued and stepped up. Only when
every policeman, every public prosecutor and every judge is
sufficently familiar with the environmental legislation can
both day-to-day inspection and the administration of criminal
justice be expected to have a strong preventive effect. It is
also extremely important to motivate supervisors from such
special services as water boards, the customs authority and the
Factory Inspectorate. The national, provincial and municipal
authorities must also perform their inspection tasks in such a
way that they have a highly educational effect. Building on the
experience gained from pilot projects forming part of the
multi-year programme for the stricter enforcement of the
legislation on chemical waste, administrators in particular
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must be persuaded of the need to give priority to the
enforcement of the rules laid down in the environmental
legislation. They must let it be known that these rules will be
enforced as a matter of course by not hesitating when
administrative action is required. In this they must have the
support of proper reports on appropriate inspection carried
out by the officials in their charge. Knowlegde of what is
wrong has a motivating effect provided that it is backed up by
sound facts and findings. Given the seriousness of the
environmental problem, a great deal of care will have to be
taken in the future to stimulate administrative action at all
levels throughout the Netherlands, because tackling problems of
a global nature will increasingly require more careful action
at local and regional level.
18. GROWING AWARENESS IN INDUSTRY
Firms and sectors of industry are becoming increasingly aware
of the need for some kind of environmental monitoring of the
activities of enterprises. This trend must be encouraged to
grow in the future. Inspection will primarily consist in
drawing firms' attention to their own responsibility. The
conviction in some sectors of industry that the distortion of
competition caused by contravention of environmental
legislation is unacceptable will grow if it is ensured that the
inspecting authorities provide satisfactory information on what
the law requires and effective action is taken against
offenders. The main aim is to have industry at large accept
that circumventing environmental legislation is inconsistent
with a professional approach and the code of conduct that well-
managed firms are expected to obey. If it is to be achieved,
this conviction must prevail throughout the firm, from board
level to middle management and the shopfloor. This will be
possible only if environmental studies are integrated into
vocational and company training courses and internal
environmental protection becomes an integral part of
management.
Education at a wide variety of strategic places in society must
teach how to make the whole population of a pluralistic society
with an increasing range of human activities understand that
prevention of pollution is a matter of life and death.
19. THE WASTE PROBLEM
The professionalization of industry in this respect means not
only monitoring direct emissions into water, soil and air and
taking great care over the products manufactured but also
giving as much thought as possible to the waste that is
produced. Waste has too long been regarded as an irrelevant
quantity in management. The damage and shame caused, for
example, by costly soil decontamination operations and abuses
involving chemical waste have made it increasingly clear how
much attention this subject requires. This attention must be
focused not only on what happens to waste on a firm's premises
but also on what is done with it after it has been removed. It
has been found that all too often waste then ends up in the
hands of traders or firms whose overriding objective is not to
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handle it professionally but to make - sometimes big - profits
by not treating or using it as they have led its originator or
the authorities to believe.
Refraining from discharging waste into water, soil and air
invariably exacerbates the problem. This imposes an additional
heavy burden of responsibility on industry and the authorities
to ensure that such waste is treated with extreme care.
Reducing the quantities by modifying processes, recycling, etc.
must, of course, be one of the first steps, but careful
monitoring of unavoidable waste until it reaches its final
destination is just as essential. A great deal still needs to
be done in this respect, as recent experience with enforcement
operations throughout the Netherlands and in other countries
has shown. Waste processors and transporters must be constantly
and more strictly monitored and consistently prosecuted, under
both criminal and administrative law, when they commit offences
so as to rid the waste disposal industry of firms which do not
belong in a professional sector which is aware that it plays a
key part in the protection of the environment.
Nor is this a task for the Netherlands alone. International
cooperation is badly needed here. This subject will be
considered at length when item 3 is discussed.
20. CONCLUDING REMARK
To conclude, it can be said that we are only halfway to our
goal of raising the enforcement of the environmental
legislation to an appropriate level. The above comments have
concentrated primarily on what is being done to force small and
medium-sized firms to comply with the legislation, and I have
also tried to make it clear that the municipalities have an
important role to play in our system and how we are in the
process of equipping them for this task. In addition, the
provinces and central government must take efforts to persuade
the large firms to adhere strictly to the regulations. That too
is no small task, and different strategies again are being
developed for it.
REFERENCES
1 The Bureau of National Affairs Inc., International
Environmental Reporter, July 1989
2 For further information see: The Dutch programme for
enforcing environmental legislation by Hans J.A. Schaap,
Ministry of Housing, Physical Planning and the Environment,
the Netherlands (1988).
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PRACTICAL APPLICATIONS OF AN ENFCKCEMEOT MANSOMENT SYSTEM*
DALE S. BRYSON1
l-Acting Director, Water Division, Region 5, United States Environmental
Protection Agency, 230 South Dearborn Street, Chicago, Illinois 60604
(The United States)
SUMMARY
Because most regulatory agencies are judged by their enforcement
record, the agency needs to have an effective enforcement system. The
practical applications of an enforcement management system are discussed
in this paper. After evaluating a number of water enforcement programs,
the United States Environmental Protection Agency developed the
Enforcement Management System (EMS). The EMS is a system for translating
compliance information into timely and appropriate enforcement actions.
After discussing the basic enforcement process, the six basic principles
to improve an existing enforcement program are explored. Special
attention is given to the development and use of the Violation Review
Action Criteria (VRAC) and the Enforcement Response Guide (ERG). The
VRAC establishes the violation sorting process and the ERG is the
guidance used in deciding what type of enforcement action should be
initiated in response to specific violations. Both of these tools can be
adjusted to reflect policy decisions, agency strategy and level of
resources available to the agency. The phased implementation of EMS is
discussed. Implementation of the EMS will result in a more disciplined
and effective enforcement program that returns violators to compliance
and achieves environmental improvement.
1. TWHOXJCTION
Maintaining a high level of compliance with environmental laws is
the most important goal of an enforcement program. The effectiveness of
an environmental regulatory agency is most often judged by its ability to
perform enforcement functions. Throughout the history of the United
States Environmental Protection Agency (U.S. EPA), the Congress of the
United States, the general public and environmental groups have judged
the effectiveness of the entire Agency by the numbers of enforcement
actions initiated. It has been the author's experience that each
enforcement agency must, therefore, be able to track the status of
compliance with the requirement contained in a license/permit, to uncover
violations where they occur and to then initiate timely and appropriate
enforcement actions to require full compliance with all provisions of the
applicable environmental law. In order to accomplish the above, each
* The views expressed in this article are solely those of the author;
they do not necessarily reflect the views or policies of the U.S.
Environmental Protection Agency-
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regulatory agency needs to develop an effective system. This paper
describes such a system.
A number of years ago, a Task Force of representatives from U.S.
EPA and State environmental agencies evaluated water pollution control
enforcement programs in a number of environmental agencies. Those
evaluations identified certain characteristics that an effective
enforcement program must possess in order to be successful. From that
Task Force effort, U.S. EPA developed the Enforcement Management System
(EMS). The EMS was eventually implemented in the water program in U.S.
EPA's Regional Office and the State environmental programs. Most of the
basic principles were also adopted by the other media enforcement
programs as well.
The EMS is a system for translating compliance information into
timely and appropriate enforcement actions. The EMS also establishes a
system for identifying enforcement priorities and directing the flow of
enforcement actions based on those priorities and available resources.
Finally, the EMS is a system that can be developed and implemented in
phases and can be transferred or be incorporated into other agencies or
sub-elements of agencies (i.e., Regional Offices) in phases. Most
importantly, full implementation of EMS will also facilitate the
achievement of very positive environmental results because of the
systematic efficient and effective enforcement against noncomplying
facilities.
2. THE ENFORCEMENT PROCESS
Before describing the Enforcement Management System in detail, it
is appropriate to discuss the basic general enforcement process. Figure
1 presents a schematic drawing of the process. The following very
briefly describes the process shown.
Referring to Figure 1, the enforcement process is depicted by a
series of boxes and diamonds. The boxes represent information gathering
activities or action steps and the diamonds represent decision points at
which point information is analyzed and a decision reached.
The enforcement process begins with a "compliance review" on a
facility. A "compliance review" consists of making a comparison between
the requirements contained in a facility's issued license/permit to what
the facility is actually doing with respect to meeting those established
requirements. For example, the license/permit may require the facility
to fully characterize any chemical waste that is shipped from that
facility to another facility for storage or treatment, or the
license/permit may set a limit on the quantity of pollution allowed to be
discharged. A compliance review would determine if a specific
requirement is being met.
In order to undertake a compliance review on a facility, it is
necessary to compile appropriate background information on that
facility. That information can come from many sources such as the
license/permit requirements, citizen complaints, reports from other
environmental programs and basic information contained in the agency file
on the facility.
Once the background information is assembled and reviewed, a
decision must be made as to whether the facility is "in compliance" or
in "noncompliance". If the determination is that the facility is in
compliance, appropriate information is placed in the source inventory for
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INTERNATIONAL ENFORCEMENT WORKSHOP
105
Figure 1
THE ENFORCEMENT PROCESS
Begin a compliance
review on facility
Source inventory (Basic
data about this facility)
Compile background
nformation on the facility
Besults of
field investigations
Reports from other agencies
that contain information
related to this source
enforceme
screening
Compile all available
enforcement related
information for a
technical review
Enforcemen
evaluation
Is an enforcement action
appropriate to correct
the noncompliance'
(ERG)
It the
license/permit
requirement
clear'
NOT S~ ls a
field investigation
SURE >v needed'
Provide information to the
license/permit authority
Should
an administrative
enforcement action
be issued'
Should a
judicial enforcement
action be
initiated'
Develop the
enforcement acttion
Issue the
enforcement action
Track compliance with
the enforcement action
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106 INTERNATIONAL ENFORCEMENT WORKSHOP
future reference. If it is not clear whether the facility is in
compliance, or it is clear that it is in noncompliance, a more detailed
evaluation is needed before initiating an enforcement action.
Based upon the detailed evaluation, another decision must be made:
Is an enforcement action appropriate to address the noncompliance? As
shown in Figure 1, that leads to a series of decisions on actions such as
determining what type of enforcement action to initiate, issuing the
action and tracking the results.
3. THE ENFORCEMENT MANAGEMENT SYSTEM
In reviewing the general enforcement process described above,
U.S. EPA has determined that certain basic principles emerge as being
necessary for an effective compliance tracking and enforcement system.
Those principles describe the Enforcement Management System (EMS). The
EMS is a system for systematically translating compliance information
into timely and appropriate enforcement actions. A "timely" enforcement
action is an action that is initiated within a set amount of time after
the violation is discovered by the regulatory agency. An "appropriate"
enforcement action is an action that results in the violator coming into
compliance in the shortest possible time.
There are six basic principles common to any effective EMS. An EMS
should:
1. Maintain a source inventory that is complete and accurate.
2. Receive and assess the flow of information available on a
systematic and timely basis.
3. Perform an enforcement evaluation using systematic criteria.
4. Initiate enforcement actions and follow-up as necessary.
5. Initiate field investigations based on a systematic plan.
6. Use internal management controls to provide adequate
enforcement information to all levels of the organization.
These principles are discussed in greater detail in the following
text. Each principle has certain subparts which describe the principle
in greater depth and, therefore, are integral elements of the entire
system.
3.1. Principle Number 1: Maintain a Source Inventory
At the foundation of the EMS is a complete and accurate compilation
of all pertinent information on all facilities regulated by the
environmental agency. The inventory should have appropriate basic
information concerning each source, such as name, location, license/
permit number, compliance dates specified, other license/permit require-
ments and related information. There should be a routine schedule for
updating the inventory to reflect changes in the basic information, such
as changes in compliance schedules, changes in the ownership/address of
the facility, etc. The more frequently the information is updated, the
greater the confidence in its accuracy. The inventory should be a ready
reference for historical information so that it can be used to assess
whether there is a pattern of noncompliance. For example, the source
inventory should show whether a facility previously missed or failed to
comply with a schedule requirement. The inventory should be kept in a
structured system-preferably an automated system. The maintenance of the
source inventory should be assigned to a specific, identified
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INTERNATIONAL ENFORCEMENT WORKSHOP 107
organizational entity so that responsibility for the completeness and
accuracy of the source information is clear. Data on facilities in the
source inventory should be accessible to all necessary parties. Finally,
there should be an identifiable process for determining which facilities
subject to the law have not applied for licenses/permits after being
required to do so.
3.2. Principle Number 2: Flow of Information
In order to ensure that the enforcement system is current, the flow
of information into the system is critical. With the growth in the
number of overlapping environmental regulatory programs and due to their
complexity, the need for rapid, efficient flow of information has became
more important. Therefore, it should be possible to integrate
information about individual regulated facilities obtained from various
sources into an effective information flow. That information is then
channeled into decision and control points in the system so that all
information on an individual discharger is available at any point in
time.
The following items are examples of the types of reports and other
data that are potential sources of information for use in an enforcement
system:
- Information from the source inventory.
- Data-related reports such as compliance reports, special
reports, etc.
- Inspection reports from field surveys.
- Reports from other ministries, other agencies or from
municipalities.
- License/permit modification requests.
- Information from other programs such as those implementing other
environmental laws.
- FJTvironmental audit reports provided by the company.
In order to effectively use the above information, procedures must
be established to integrate the information from various sources about
individual facilities into an effective information flow. The
information should be designed so that it is readily accessible at
appropriate points in the decision-making process. In other words, it
must be available to a technical person at the time a compliance review
is underway. Appropriate time frames for the information flow should be
established and incorporated into the above procedures to insure the
timely response to the information.
3.3. Principle Number 3: Enforcement Evaluation
The enforcement evaluation process is critical to the integrity of
the enforcement system because it is the sifting process that
efficiently sorts out noncomplying sources from complying sources. This
leads to later steps that place noncomplying sources into various
categories for subsequent enforcement action. Many of the steps in the
enforcement evaluation process can be accomplished by a compliance
analyst who is trained to identify noncompliance situations. This will
release more highly trained technical people to do the other priority
enforcement work.
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108 INTERNATIONAL ENFORCEMENT WORKSHOP
The enforcement evaluation process involves a number of procedures.
It should be clearly specified who is responsible for performing the
enforcement evaluation on each facility that requires an evaluation.
Because all facilities in the source inventory should be evaluated
periodically, the frequency of that evaluation should be established.
Specific guidelines for determining obvious compliance from noncompliance
should be developed. For example, a compliance analyst can determine
whether a required report was received or not. Procedures should be in
place for describing the follow-up action that must take place once a
determination of the compliance status is made. For example, in cases of
obvious compliance, no further review may be necessary and the
appropriate update of the source inventory can take place. The length of
time for responding to obvious noncompliance should also be established
as should the appropriate enforcement response as discussed below.
Determining what is "noncompliance" is a very important process.
In order to uniformly implement an environmental law across the country,
there should be a standard definition that establishes the criteria for
reviewing violations. The establishment of the Violation Review Action
Criteria (VRAC) is one of the most important features of an effective
enforcement system. In briefest summary, all violations are compared to
the VRAC. Based upon that review, certain violations are determined to
warrant an enforcement action. This will be discussed in greater detail
later.
At any point in time, it is very important to be able to assess the
entire compliance history of a facility. In that way, determinations
can be made as to whether a pattern of noncompliance is emerging and
whether to use an escalated enforcement action because of the persistent
nature of noncompliance. This chronological history of noncompliance
should be a part of the source inventory or at a minimum, the facility
file.
3.4. Principle Number 4: Initiate Enforcement Actions
Once the level of noncompliance is determined at a specific
facility and the number and frequency of violations are established, it
is necessary to determine how to respond to those violations with the
appropriate enforcement response.
When the decision is made to proceed with an enforcement
action to address an instance of noncompliance, several things must
happen. Interaction and coordination with other programs may be
necessary to prevent an untimely action by another group that would
adversely affect the enforcement action. For example, action on a
license/permit modification request may adversely affect the enforcement
action. Therefore, procedures for effective inter-agency and intra-
agency coordination must be established. Time frames for completing a
determination as to whether a violation is "actionable" and the
initiation of the appropriate enforcement response should be established.
This fully defines what is a "timely" enforcement action. Defining the
roles and responsibilities of the technical and legal staff is necessary
to insure the efficient development and follow-up of the enforcement
action.
Choosing the appropriate enforcement action to use in any given
situation is very important. As stated earlier, the "appropriate"
enforcement action is that action that will return the violator to
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INTERNATIONAL ENFORCEMENT WORKSHOP 109
compliance in the shortest possible time. Choosing the appropriate
enforcement response is therefore very important. In some cases, the
violation may be relatively minor and a simple warning letter to the
violator will result in compliance. In other cases, a judicial action
may be needed due to the seriousness of the violation. Guidance should
be developed to assist the enforcement staff in making the decision as to
which enforcement action to initiate.
The establishment of the Enforcement Response Guide (ERG) is one of
the most important steps in the entire enforcement process. Use of this
guide contributes significantly to the implementation of a nationally
uniform enforcement system. This will be discussed in greater detail
later. In briefest surnrnary, the VRAC screening process has resulted in a
list of facilities that have violated the law. The ERG establishes the
specific type of enforcement response for each violation that has
occurred.
At any point in this enforcement evaluation process, the decision
may be made that an enforcement action is not appropriate for some
reason. That reason should be documented in the file for future use. If
there is a problem with the basic license/permit requirement which
prevents effective enforcement, the licensing/permitting authority
should be notified and the appropriate correction made in this
license/permit and future licenses/permits.
Developing, issuing, and then following up on an enforcement action
is the heart of any enforcement program. It should be clearly
established in written procedures who has the responsibility to actually
fully develop and write the formal enforcement action. The enforcement
actions should have a standard form and contents so they are complete and
effective. The responsibilities of the legal and technical staffs should
clearly be delineated in this process. Written procedures on who has
responsibility to monitor the issued enforcement action must be
established. Should compliance not be achieved with an enforcement
action, an escalation process to a more severe enforcement action should
be developed so as to force compliance as soon as possible. Finally,
once compliance is achieved, the enforcement action should be formally
"closed out". In that way, a precise determination is made as to
compliance or noncompliance with the enforcement action. The facility
should be notified that compliance has been achieved and that the
enforcement action is over.
3.5. Principle Number 5: Initiate Field Investigations
Field investigations are an integral part of any effective
enforcement system. Field investigations can be very resource
intensive. For that reason, the field investigation program must be
carefully thought out and planned. Criteria and procedures for
selecting candidates for field inspections should be developed. The
types of field investigations utilized should be standardized to insure
that adequate information is gathered that reflects the type of
inspection being done. Field inspections are of no value to the
enforcement program unless the information gathered by the inspection is
made available as soon as possible. Therefore, time frames should be
established defining when the full inspection report must be available.
Because of the number of regulatory agencies that perform inspections at
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110 INTERNATIONAL ENFORCEMENT WORKSHOP
a facility, procedures for coordinating field investigations between
agencies should be developed.
3.6. Principle Number 6: Internal Management Control
Throughout the enforcement process, it is vital that all levels of
management be able to assess the effectiveness of the enforcement
program and to identify progress or deficiencies. Consequently, the
organizations' enforcement procedures should provide feedback to give
management the information it needs to ensure that the program makes
timely decisions and meets the enforcement objectives set. In order to
do that, management must receive periodic reports on the enforcement
process. For example, a tracking and reporting system should be
established that will tell what enforcement actions are in process at any
point in time, what is the status of those actions, when they will be
issued, what types of actions have been issued, i.e., administrative or
judicial, number and results of field investigations, etc. A system
should be established that will provide enough information to assess the
quality, timeliness, appropriateness, results, and accomplishments of the
enforcement actions that are issued.
This paper has described the basic enforcement process. In
addition, the six basic principles of an effective Enforcement Management
System have been given. Figure 2 shows how the enforcement process can
be defined by the Enforcement Management System principles. Principle
Number 1, Source Inventory covers the source inventory part of the
enforcement process. Principle Number 2, Flow of Information includes
the various sources of information that should be compiled in order to
assess compliance with the license requirements. Principal Number 3,
Enforcement Evaluation and Principle Number 4, Initiate Enforcement
Actions occupies the center of the enforcement process chart. Principle
Number 5, Field Investigations is shown on the right side of the figure.
Finally, Principle Number 6, Internal Management Controls overlays the
entire process because information from each step in the enforcement
process should be summarized and sent to management in the proper format
and at the appropriate times.
4. USING THE EMS TO IMPROVE AN ENFORCEMENT PROGRAM
As stated earlier, the EMS is a system for translating compliance
information into timely and appropriate enforcement actions. The EMS is
a process, a system for doing that. EMS is a tool to make the
enforcement program more systematic, more disciplined and more
accountable. EMS does not stand alone. It is a vehicle for
implementing agency priorities, strategies and work plans. EMS does not
establish priorities, policy or strategy. It allows for the systematic
and uniform application of enforcement priorities, policy and strategy.
All environmental enforcement agencies probably have in place as
part of their ongoing enforcement system many, if not all, of the items
described in this paper. When U.S. EPA has used the EMS principles to
evaluate an ongoing enforcement system, U.S. EPA has learned that the
individual principles and elements of those principles are often not
tied together into a system.
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INTERNATIONAL ENFORCEMENT WORKSHOP
111
Figure 2
THE PRINCIPLES OF THE ENFORCEMENT
MANAGEMENT SYSTEM
no. 1 Source inventory „
Does
source inventory
show a report
s due'
no. 2 Flow of information
Source inventory (Basic
data about this facility)
fiesults of
held investigations
Reports from other agencies
that contain information
related to this source
Pre
enforcement
screening ^_ N01
Is the facility in compliance
based upon the
VRAC?
License/permit
requirements
. 5;
Field investigations
no. 3 Enforcement evaluation
Compile all available
enforcement related
information for a
technical review
Enforcement
evaluation
Is an enforcement action
appropriate to correct
the noncompliance'
(ERG)
field investigation
needed'
Provide information to the
license/permit authority
Should
an administrative
enforcement action
be issued7
Should a
judicial enforcement
action be
initiated'
no. 4 Initiate enforcement
no 6. Internal management:
controls
This principle overlays all
of the above principles
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112 INTERNATIONAL ENFORCEMENT WORKSHOP
The first suggestion on using the EMS to improve an enforcement
program is to take each of the six principles and compare them to an
existing enforcement program. Based upon that comparison, impediments to
a systematic enforcement process will be uncovered. Those impediments
can be stressed and corrected.
r" -e discussion on Principle 3, Enforcement Evaluation, the
establiL •snt of a Violation Review Action Criteria was described as
being c ,, of the most important features of an effective enforcement
program.* Ihe other critical element is the establishment of the
Enforcement Response Guide as an element in Principle 4. The following
describes these in greater detail, how they are used and how they are
interrelated.
The VRAC consists of a listing of all possible violations of the
environmental law being enforced. If there were enough enforcement
resources in an agency, all violations could be addressed with a timely
and appropriate enforcement action. However, because of resource
constraints, the enforcement agency must establish some screening system
to sort the violation for priority enforcement. The vehicle for doing
screening is the VRAC. All violations are compared to the VRAC. This
can best be illustrated by an example.
For discussion purposes, assume there are 100 facilities being
regulated under an environmental law. Assume those facilities are
numbered 1 to 100 (see Figure 3). During a quarterly compliance review
of those 100 facilities, a comparison is made of the requirements in the
license/permit to what the facility actually did during the past quarter.
The screening criteria used in this process is the VRAC.
The size of the "mesh" in the VRAC "sieve" can be adjusted based
upon a number of factors such as available resources, policy decision,
enforcement strategy consideration and other reasons. The VRAC can be
very responsive in screening the violations to reflect management
decisions. It is important to note that just because a violation did
not "pass through" the VRAC sieve, it is not an excused violation. The
violation would be noted in the file for future use as necessary. In
fact, the VRAC may have a factor in the evaluation of a violation that
addresses infrequent violations.
Again, referring to Figure 3, by using the VRAC, a list of 13
facilities are found to be violating their license/permit. Those 13 are
then placed into priority categories for enforcement action.
As shown above, the VRAC establishes a sorting process. It is
important to understand that the VRAC can be adjusted to reflect policy,
strategy and available resources. As shown in Figure 3, by adjusting
the mesh size, you let more violations "through the sieve". Therefore, a
policy decision may be made that 100% of all violations of a certain type
will receive an enforcement response. The VRAC is adjusted to reflect
that policy decision and the mesh of the VRAC sieve lets those violations
through for an enforcement action.
The EMS also can be adjusted to reflect policy and strategy in
initiating specific enforcement actions. For example, as shown in
Figure 3, after applying the VRAC as a screening criteria, a master list
of facilities in noncompliance is developed. Two options are shown for
initiating enforcement actions based on the policy that is established.
One option is to initiate enforcement actions on all Class III violations
first, followed by the Class II and Class I violations. Another option
would be to focus all enforcement actions on an entire branch of industry
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INTERNATIONAL ENFORCEMENT WORKSHOP
113
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114 INTERNATIONAL ENFORCEMENT WORKSHOP
first (for example Branch A could be electroplaters). No matter what the
classification of the violation is, all violations of the Branch A
facilities would be addressed first, followed by Branch B, etc. Agency
strategy and agency policy would establish those priorities. It must be
clearly understood that the EMS does not set policy or determine
strategy. EMS is a tool to implement the policy and/or strategy in a
disciplined, systematic fashion. Attachment 1 presents a portion of the
VRAC used in the water pollution control program in the United States.
As stated in Principle 4, Initiate Enforcement Actions, the
establishment of the Enforcement Response Guide (ERG) is another of the
most important steps in the entire enforcement process. The ERG is the
guidance used in deciding what type of enforcement action should be
initiated in response to a certain type of violation. It provides a
guide to ensure a uniform application of enforcement responses to
comparable levels and types of violations. When making determinations on
the level of enforcement response, several items must be considered as
follows: degree of exceedence from the license/permit condition or legal
requirement; the duration of the violation; history of previous
enforcement actions taken against the violator; and the deterrent effect
of the enforcement response on the similarly situated regulated
community. Equally important are considerations of fairness and equity
to complying sources; national consistency of enforcement; and integrity
of the overall enforcement program. It is important to note that for any
given violation there may be a range of responses that can be used. For
example, a violator may have failed to submit a report on time. If it is
a very important report, in some instances it may be appropriate to issue
an administrative action to require the report be submitted. In other
cases, it may be a very important report and therefore the violation in a
significant violation that requires the initiation of a judicial action.
A major deciding factor in choosing which enforcement response to use in
a given situation is to remember the definition of "appropriate
enforcement action". An appropriate enforcement action is one which will
result in the violation being corrected in the shortest possible time all
things considered.
Figure 4 depicts how the ERG is used to sort the type of
enforcement action to be initiated. Note in Figure 4 that the ERG is a
tool to help the type of enforcement action to be initiated given a
certain violation. Attachment 2 presents a portion of the ERG that is
used in the water pollution control program in the United States.
U.S. EPA feels that if there are limited technical and legal
resources available in the enforcement program, they should be devoted to
the most significant sources of noncompliance. Ihe way U.S. EPA has
accomplished that focusing is to develop a violation classification
system that is applied to VRAC exceedences. U.S. EPA classifies this
special set of facilities as being in "significant noncompliance (SNC)".
Each facility in SNC must receive a formal enforcement response within a
set period of time.
The second and third suggestion on using the EMS to improve an
enforcement program is to have the enforcement agency develop and
implement a Violation Review Action Criteria and an Enforcement Response
Guide. These two items are the foundation of an effective enforcement
system. Once developed for an agency, their use results in the applica-
tion of enforcement in a uniform manner across the country. A national
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INTERNATIONAL ENFORCEMENT WORKSHOP
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116 INTERNATIONAL ENFORCEMENT WORKSHOP
law must have a high degree of uniformity in how it is enforced or else
similarly situated facilities may not be treated equally.
The fourth suggestion on using the EMS to improve an enforcement
program deals with implementing an EMS. The suggestion is to implement
the EMS in phases in an organization. The implementation can be tailored
to the existing organization structure and level of resources.
Implementation can be adjusted to reflect planned growth in the
organization. The EMS implementation can have the various Principles and
their sub-elements being developed and implemented singly or in
combination with each other. At any point in time, implementation of any
of the six Principles or their sub-elements can be done without adversely
affecting the others. For example, while the source inventory is being
compiled, perfected, and automated the development and full
implementation of the VRAC and ERG can proceed. Developing a systematic
approach to the use of field investigations can be done at any time. The
implementation of the EMS is entirely flexible. It can be tailored to
reflect any existing organization as it exist now and what it is hoped to
be when fully developed.
It is important to remember that there is no one "correct" EMS.
What has been described here are the minimum basic principles for an
effective enforcement program. The specific details of how these basic
principles are applied in a specific regulatory agency will vary widely
to reflect differences in organizational structure, level of resources,
degree of decentralization, and applicable laws. The EMS can be and must
be tailored to each specific agency.
5. OCNCDDSION
An enforcement program is effective only to the extent it is able
to systematically and effectively identify instances of noncompliance and
to then take timely and appropriate enforcement actions to achieve the
final objective of full compliance with the law. Therefore, each agency
that is administering an enforcement program should have management
procedures to track the status of compliance of all facilities regulated
by an environmental law, to surface violations of the law, and to take
timely and appropriate enforcement actions to achieve a return to
compliance. A national environmental law should have some national
uniformity in its implementation. This is especially true when the
environmental regulatory agency is decentralized. Full implementation of
the Enforcement Management System described in this paper will foster
national uniformity by the uniform application of basic elements of an
effective enforcement program. The System encourages the efficient use
of people. The System is geared to get summary reports of the most
significant information to senior management on a set frequency for
effective management decisions.
Implementation of the Enforcement Management System will result in
a more disciplined enforcement program that will encourage fairness and
equity in the regulated community. Most importantly, implementation of
the Enforcement Management System will result in violators returning to
compliance which in turn results in environmental improvement — the
desired objective of any environmental regulatory program.
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INTERNATIONAL ENFORCEMENT WORKSHOP 117
ATTACHMENT 1
VIOIAHCN REVIEW ACTION CRITERIA
General Information
Throughout the violation review process, it should be remembered
that any violation of a permit or any other requirement placed upon a
regulated facility is a violation of the environmental statute for which
the owner or operator is strictly liable. In administering agency's
decision regarding the appropriate enforcement action should be based
upon an analysis of all of the facts and relevant legal provisions
involved in a particular case. A decision to take no action in a given
situation is within the enforcement discretion of the administering
agency, so long as the reason for exercising the no-action alternative is
warranted and documented. Even though the decision is made not to
undertake an enforcement action against the violation, it should be noted
that the violation occurred and may be subject to a future enforcement
action if the noncompliance continues.
The Enforcement Management System encourages the administering
agency to take an appropriate enforcement response against all
violations. That may not be possible due to resource constraints.
Table 1 of this attachment identifies a portion of the Violation Review
Action Criteria (VRAC) that is applied by administering agencies in
screening performance against effluent limitations under the Clean Water
Act in the United States. This table identifies the VRAC to be applied
by administering agencies in screening performance against schedule,
reporting and other requirements for all permittees covered by the Clean
Water Act. Identification of a violation as meeting or exceeding the
VRAC does not establish the type of enforcement response which should be
taken or the time frame in which it should be accomplished. Those
decisions are covered elsewhere.
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118 INTERNATIONAL ENFORCEMENT WORKSHOP
TABLE 1
VIOIATION REVIEW ACTION CRITERIA
VIOLATIONS OF EFFLUENT LIMITS
a. Direct Discharger Permit Violations Criteria
30 Day Average Violations* Two violations in 6 months
7 Day Average Violations Two violations in a month
Daily Maximum Violations* Four violations in a month
• PH <4.0 or XL1.0, or if continuous
monitoring criteria are exceeded
. Storm Water Four times the effective limit
Whole Effluent Toxicity Limit Any violation or any test result
which triggers further testing,
evaluation, planning or corrective
action
Any Limit Causes or has potential to cause a
water quality or a health problem
or the violation is of concern to
the Director
b. Enforcement Order Violations
Any Limit Cited in the Any violation during the quarter
Enforcement Order**
c. Violations by Significant Industrial
Users
Violations of 30 day average 33% or more of the measurements
or daily maximum limit (4 day exceed the same daily maximum or
average is applicable for the same average limit in a 6
industries subject to electro- consecutive month period
plating standards)
* Excludes bacteriological counts (e.g., fecal coliform), color, and
thermal parameters for which criteria are discretionary.
** In the absence of interim effluent limits in an enforcement order
permit limits should be tracked and evaluated based on the criteria
for permit violations.
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119
Violations causing interference
or pass through
Violations causing imminent
and substantial danger or
causing the POTW to exercise
its emergency authority
Any violation
Any violation
VTOIATTONS OF COMPLIANCE SCHEDULE, PERMITS AND ENFORCEMENT ORDERS
Submit TRE Plan/Schedule 60 days past schedule date
Initiate TRE
Complete TRE
Submit Corrective Action Plan/
Schedule
Start Construction
End Construction
Attain Final Compliance
All Additional Milestones
90 days past schedule date
90 days past schedule date
VIOLATIONS OF REPORTING REQUIREMENTS IN PERMITS, PRETREATMENT
REGULATIONS, ENFORCEMENT ORDERS AND CLEAN WATER ACT 308 REQUESTS FOR
INFORMATION
DMRs
Pretreatment Reports (by
POIW or Industrial Users)
Compliance Schedule Report
Final Progress Report
Failure to provide "24 hour"
report as required
Failure to file required report
on a violation
Failure to report slug loading
(pretreatment report)
Failure to file required report
on biological testing and/or
corrective action relating to
whole effluent toxicity
requirements
All Additional Reports
30 days overdue or incomplete
or not understandable
30 days overdue or incomplete
or not understandable
30 days overdue or incomplete
or not understandable
Any violation
More than one time during 12
month period
Any violation
30 days overdue or incomplete
or not understandable
30 days overdue or incomplete
or not understandable
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INTERNATIONAL ENFORCEMENT WORKSHOP
VIOLATIONS OF OTHER REQUIREMENTS
a. POTW Pretreatment Programs
b. General Permit Conditions
- Record Keeping, O&M
- BMPs
c. Enforcement Order
Any other requirements cited
in the Enforcement Order
d. Discrepancies found in the
course of inspections,
audits or review of annual
reports
e. Other Violations
ANNUAL REVIEW
Any uncorrected failure to
implement an approved pretreatment
program which meets the require-
ments for being reported on the
Quarterly Noncompliance Report
Any violation of narrative
requirements (inaccurate
recordkeeping, inadequate
treatment plant O&M
Any failure to follow BMPs (i.e.,
requirement to develop spill
prevention, containment and
countermeasures plans and
implement BMP)
Any violations during the review
period
Any violation
Violations for which a formal
enforcement action is recommended
by the Enforcement Response Guide
The file of any major permittee or minor permittee of concern should be
reviewed at least once in a 12 month period, regardless of whether or not
any of the above criteria have been exceeded.
BMPs = Best Management Practices
O&M = Operation and Maintenance
POTW = Publicly Owned Treatment Works
TRE = Toxicity Reduction Evaluation
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INTERNATIONAL ENFORCEMENT WORKSHOP 121
ATTACHMENT 2
ENFORCEMENT RESPONSE GUUSE
General Information
The Enforcement Response Guide (ERG) is for the use of
administering agency officials who are responsible for determining the
appropriate enforcement response to a specific violation of the relevant
sections of the Clean Water Act in the United States. This guide is
intended to use two main purposes:
1. It recommends enforcement responses that are timely and
appropriate in relation to the nature and severity of the
violation and the overall degree of noncompliance;
2. It provides a guide to ensure a uniform application of
enforcement response to comparable levels and types of
violations, and it can be used as a mechanism to review the
appropriateness of responses by an enforcement agency.
This guide should be used to select a most appropriate enforcement
response to instances of noncompliance. When making determinations on
the level of the enforcement response, the engineer and attorney should
consider the degree of variance from the permit condition or legal
requirement, the duration of the violation, previous enforcement actions
taken against the violator, and the deterrent effect of the response on
the similarly situated regulated community. Equally important are
considerations of fairness and equity, national consistency and the
integrity of the Clean Water Act.
A key element in all enforcement responses is the timeliness with
which they are initiated and how they affect compliance. Given the many
types of violations and the variation in resources available to the
administering agencies, no specific time frame is established in which to
initiate and complete a given enforcement response. The measure of
"timeliness" applies to the initiation of the enforcement action. For
example, within 30 days of the identification of any violation, the
appropriate enforcement response should be determined, and the
enforcement action initiated. The measure of the effectiveness of an
enforcement response includes:
- whether the noncomplying source is returned to compliance as
expeditiously as possible;
- whether the enforcement response establishes the appropriate
deterrent effect for the particular violator and for other
potential violators; and
- whether the enforcement response promotes fairness of
government treatment as between comparable violators, as well as
between complying and noncomplying parties.
As is noted in the attached table, there is a range of response for
each type of violation. As stated above, the selection of the
appropriate enforcement response reouires judgement on the part of the
administering agency considering the nature of the violation, the
severity of the violation and the overall degree of noncompliance. The
more serious the violation the stronaer the enforcement action will be.
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122 INTERNATIONAL ENFORCEMENT WORKSHOP
NOTE: The following table is an extract from the Enforcement
Response Guide for the Clean Water Act in the United States. The
enforcement actions listed reflect those available to the United States
Environmental Protection Agency
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123
TABLE 2
ENFORCEMENT RESPONSE GUIDE
PERMIT COMPLIANCE SCHEDULES
NONCOMPLIANCE
Missed Interim Date
Missed Final Date
Failure to make
timely corrective
control/treatment
decision as part of
THE
CIRCUMSTANCES
Will not cause late
final date or other
interim dates
Will result in other
missed interim dates;
violation for good or
valid cause
Will result in other
missed interim dates.
No good or valid cause
RANGE OF RESPONSE
Phone call, LOV
LOV or AD
Contact permittee
and require
documentation
of good and valid
cause
AO, APO or
judicial action
Will result in missed APO or judicial
final. No good or action
valid cause
Violation due to force
majeure (Strike, act
of God, etc.)
90 days or more
outstanding. No
good or valid cause
Late with good or
valid cause
Continued violation,
with no good or valid
cause
Contact permittee and
require documentation
of good or valid cause
and date/schedule for
compliance
APO or judicial action.
Consider Contractor
Listing
LOV
APO, judicial action
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INTERNATIONAL ENFORCEMENT WORKSHOP
ENFORCEMENT RESPONSE GUIDE
PERMIT EFFLUENT LIMITS
NONCCMPLIANCE
Exceeding Final
Limits
Failure to meet
final whole
effluent limits
Exceeding Interim
Limits
Failure to meet
interim whole
effluent limits
Discharge without a
permit
CIRCUMSTANCES
Outside permittee's
control, e.g., upset
or bypass
Infrequent or isolated
minor violation
Infrequent or isolated
major violations of a
single effluent limit
Frequent violations of
effluent limits
Isolated or infrequent
violation; no known
harm
Isolated or infrequent
known harm
Continuing violations
with or without harm
Outside permittee's
control, e.g., upset
or bypass
No known harm
Known harm
Isolated or infrequent
no known harm
RANGE OF RESPONSE
Contact permittee and
require proof of good
and valid cause
LOV
LOV, AO, APO, or
judicial action
AO, APO or judicial
action. Consider
contractor listing
LOV or AO
AO, APO, judicial
action
AO, APO, judicial
action. Consider
Contractor listing
Contact permittee
and require proof of
good and valid cause
LOV, AO, APO
APO or judicial action
LOV, AO
Isolated or infrequent AO, APO
known harm
Continued violation;
with or without harm
Unintentional. One
time without harm
Intentional, one nr
moi e t i rnes with or
without harm
AO, APO, judicial action,
including TRO
AO, APO
Consider onminal prosecution.
If not, APD or judicial action.
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125
ENFORCEMENT RESPONSE GUIDE
NONCOMPLIANCE
CIRCUMSTANCES
Intentional, one or
more times with or
without harm
RANGE OF RESPONSE
Consider criminal
prosecution. If not,
APO or judicial action
ADMINISTRATIVE ORDER INTERIM LIMITS
Exceeding Interim
Limits contained
in AO
Isolated or infrequent AO, APO (on basic
violation violation)
Frequent or continued
violations within the
control of the
permittee or known
environmental damage
STATE/EPA COMPLIANCE INSPECTION
Minor violation of Any instance
sampling or analytical
procedures
Major violation of No evidence of intent
sampling or analytical
procedures
Evidence of negligence
or intent
Violation of permit
permit conditions
other than (numerical)
effluent, schedule, or
reporting violations
(e.g., EMP, O&M,
unauthorized
discharge/bypasses,
record retention/
availability, etc.)
QUALITY ASSURANCE
Non-submittal of
DMR/QA data
No evidence of
negligence or intent
Evidence of
negligence or intent
Consider criminal
prosecution. If
not, APO or judicial
action
LOV
IDV, AO, APO
Consider criminal
prosecutive. If not,
APO or judicial action
LOV, AO (Immediate
correction required)
Consider criminal
prosecution. If not,
APO or judicial action
Isolated or infrequent
Continued Violation
LOV or AO
AO, APO, judicial action
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INTERNATIONAL ENFORCEMENT WORKSHOP
ENFORCEMENT RESPONSE GUIDE
SAMPUNG, MONITORING AND REPORTING
NONOOMPUANCE CIRCUMSTANCES
Failure to sample,
monitor or report
(routine reports,
EMRs)
Failure to sample,
monitor or report
(Clean Water Act
308 request)
Failure to sample,
monitor, or report
(one-time requirement)
Failure to perform
biological testing
as required
Failure to report
biological testing
results
Failure to submit
final TRE planning
or implementation
report as required
Isolated or infrequent
Permittee does not
respond to letters,
does not follow
through on verbal or
written commitments or
commits frequent
violations
Any instance
Any instance
RANGE OF RESPONSE
Phone call, IDV.
Report to be
submitted
immediately
Consider criminal
prosecution. If not,
AO, APO, or judicial
action
AO, APO, judicial
action
IDV, 308 request,
AO, APO
Isolated or infrequent LDV or AO
Frequent or continued
Submitted within
30 days of due date
30 days or more late
Submitted within
30 days of due date
30 days or more late
APO, judicial action
IDV
IDV, AO, APO,
judicial action
IDV
IDV, AO, APO,
judicial action
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AO = Administrative Order
APO = Administrative Penalty Order
BMP = Best Management Practices
I£fV = Letter of Violation
O&M = Operation and Maintenance
QA = Quality Assurance
IKE = Toxicity Reduction Evaluation
TRO = Temporary Restraining Order
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128 INTERNATIONAL ENFORCEMENT WORKSHOP
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INTERNATIONAL ENFORCEMENT WORKSHOP 129
Hans Fangnan, puoiic prosecutor
National coordinator of enforcement of environmental legislation for
the Public Prosecution, The Hague.
P.O. Box 20302
2500 EH DEN hAAG
Criminal enforcement of environmental legislation.
The Public Prosecutor in The Netherlands and the tools he needs for
enforcement of environmental legislation.
Introduction.
The position of the Public Prosecution.
In the Netherlands the Public Prosecution has the monopoly of prosecu-
tion,only the public prosecutor can bring a case before a criminal
court, police ana citizens cannot.
A citizen however, who has any interest in prosecuting a particular
offence, has some influence:if the public prosecutor remains inactive,
he can lodge a complaint at the Higher Court. The Court can order the
public prosecutor to prosecute a case.
The public prosecutor has a wide range of possibilities when dealing
with a criminal case.
He can put the case aside for "technical" reasons (such as lacK of
evidence or lapse of time) or for reasons of "public interest" (for
instance in the case of minor offences or if the damage is repaired by
the offender). The public prosecutor can also settle the case out of
court on condition that a certain amount of money is to be paid by the
offender (sometimes there are more or other conditions such as repair
of damage). If it is not appropriate to put a case aside or settle it
out of court, the suspect is prosecuted.
Systems of sanctions in environmental legislation.
Three systems can be distinguished here-
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130 INTERNATIONAL ENFORCEMENT WORKSHOP
A. The administrative systenuthe administration, mostly the local or
provincial government, is the authority that issues licenses for
environment-endangering activities and is in charge of supervision and
control of compliance with provisions, connected to most licenses. The
administration has several sanctions, varying (depending on the
environmental legislation on hand) from official warning and penal sums
to closing of industrial plants or installations, withdrawal of a
license and "restitutio in integrum" (restoring to the pre-damage
situation) at the expense of the offender
B. Criminal law:there is a very wide range of sanctions;for most of
environmental offences terms of imprisonment ranging between maxima
from six months to two years and fines ranging between maxima from df1.
10.000,- (US $ 5,000.-) to df1 . 100.000.-. (US $ 50,000). Dutch
legislation has no special minimum-sanctions, only very low general
minima.
A not very often imposed sanction is closing the plant or part of it,
where the offence has been committed. An important measure is depriva-
tion of the estimated illegal profits, obtained by committing the
offence.
In criminal law as well an offender can be obliged to restore the pre-
crime situation
In the pre-trial stage provisional measures can be ordered, such as
abstinence of certain activities and also temporary closing of a plant
or enterprise.
For a small category of very serious environmental crime (where
evidence is required that danger has been caused to public health)the
law provides more severe punishment (up to 12 years). Often grievous
environmental crime is strongly connected to common Rinds of crime,
especially fraud. Then stronger sanctions can be applied ;in the pre-
trial phase arrest can be followed by remand in custody.
In general, police-powers according to environmental law are somewhat
more extended than in the regular code of criminal procedure : even
when there is (still) no suspicion of any offence (some degree of)
inspection is permitted, and the possibilities for search and seizure
are larger.
Dutch criminal law acknowledges not only criminal liability of natural
persons but also corporate liability. In environmental practice very
often corporations are prosecuted.
C. Civil law. Recently very often applied in cases of serious environ-
mental damage, and very succesfully. Especially in suits of the State
versus polluters of soil. Often cases of soi1-pollution are involved
that are beyond criminal prosecution because of lapse of time.
It is generally assumed that the possibilities of civil actions are
great, especially compared to the output of criminal procedures. Crimi-
nal law requires observance of many formalities and technicalities for
the sake of protection of the rights of the defendant ; lack of
observance of these rules can easily be fatal for the prosecution.
In administrative law on the other hand there is a strong tendency with
judges to protect economic interests of offenders.
Civil law is considerably less formal and attribution of the burden of
proof is less strict, depending on reasonableness, and can be in favour
of the plaintiff (in environmental cases often the State).
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INTERNATIONAL ENFORCEMENT WORKSHOP 131
It is important that in enforcement of environmental law administrati-
on, public Prosecution and the lawyer for the State strengthen their
cooperation, especially the exchange of information (They should form a
"triple al1 lance").
Relationship between administrative and criminal sanctions.
Criminal enforcement of environmental law has been hampered for a long
time by discussions about the relationship between administrative
enforcement and criminal enforcement.
It has always been generally accepted that enforcement of environmental
law is primarily the task of the administration since by law supervisi-
on and control of observance of environmental rules have been attribu-
ted to government authorities { especially local and provincial
authorities) and since administrative sanctions are instruments, desig-
ned to put an end to an illegal situation.
But as a consequence it was traditionally claimed that criminal law had
to operate only as a last resort (as "ultimum remedium"). i.e. if all
administrative sanctions had been tried and had failed to sort any
effect.
Of course this issue inevitably in many cases led to discussions
between government authorities and the Public Prosecution concerning
the question whether the stage of last resort, i.e. of the necessity of
criminal sanctions had been reached or not. If authorities did not
agree there was always a risk of passivity on both sides, a not so rare
phenomenon.
It seems that these discussions now finally have come to an end.
Now it is generally assumed that both authorities, government and
Public Prosecution have their OWN responsabi1ity towards environmental
crime and their own functions in subduing it; lack of activity on one
side cannot be an alibi for passiveness on the other side. And equally
accepted is the idea that there are situations where administrative
sanctions certainly are not very appropriate, so there criminal
enforcement must be considered as the one and only tool.
Fighting serious environmental crime is primarily the task of police
and public prosecutor;confront ing smaller offences is primarily the
duty of local and provincial government. But in both fields authorities
have to cooperate and lend support to their mutual activities.
Police.
Authority on the police is dualistic in The Netherlands, i.e. divided
according to the two main duties of the police:maintaining public order
and crime control. The mayor has authority on the police as far as
public order is concerned;the public prosecutor commands the police as
far as crime control and investigation of offences is concerned.
It is therefore necessary that the mayor, the public prosecutor and the
police agree on the use that has to be made of the (limited) capacity
of the police. Thus, in the eighties everywhere in The Netherlands the
so-calJed triangle-negotiations have been introduced in order to make
(periodically) agreements between the said partners on the most
desirable execution of police-duties in the both fields.-publ ic order
and crime control. It is clear that duties in both fields easily can
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132 INTERNATIONAL ENFORCEMENT WORKSHOP
over lap;there is no strict boundary.
It is important to mention that during the last decade more attention
has been focused on prevention of crime;this is seen primarily as a
duty of the local government and the society as a whole, but a task for
the police in this domain is assumed as well (monitoring during police
patrol).
The regional Inspectorate for the Environment.
A highly specialized branch of the Ministry for the Environment.
Principal duties: Supervision of enforcement by way of advising (local
and provincial) government authorities, police and public prosecutor.
Participation in monitoring and investigation. An invaluable source of
ecological and juridical expertise and considered the foremost
"partner" of the public prosecutor in enhancing enforcement of
environmental legislation.
Some figures.
The Netherlands have 15 million inhabitants.
In 1988 about 5000 environmental criminal files have been registered in
the offices of the Public Prosecution, i.e. about 2 % of all registered
criminal cases (Minor environmental offences and traffic offences, both
regarding the competence of judge of the sub-district Court not
included. There are no precise figures about minor environmental
offences available, as registration within the Public Prosecution up to
1990 was mainly not yet computerized).
Largest category of criminal environmental cases concerned the Water-
Pollution Act(mainly spilled waste-oil from ships and manure, spilled
or deliberately discharged in watercourses by farmers). Another
important category, rather new and evergrowing, are offences against
the Manure Act (providing restrictions on the production and the use of
manure in bio-industry).
The other cases (Nuisance Act, Waste Act and Chemical Waste Act) mainly
pertain to industrial plants, small and large, which need an environ-
mental license for their activity;there are an estimated 500.000 of
such companies in The Netherlands. Control and inspection must still be
considerably improved in this field.
Some tools the Public Prosecution needs for intensifying enforcement of
environmental legislation.
1.Good coordination with local and regional government.
A large number of environmental offences requires attention from local
and regional government as well as from the Public Prosecution ;
especially offences concerning illegal activities of license-bound
companies. This is the field of non-compliance with restrictions
connected to the license or absence of the required license; very
numerous offences, the so called "bulk" of environmental offences.
Mostly due to neglect or ignorance of the rules.
Of course where duties coincide good coordination is necessary.
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INTERNATIONAL ENFORCEMENT WORKSHOP 133
In the introduction already a few remarks nave been given on tnis
subject.
It must be added however that the above-described general opinion on
the right application of administrative and criminal sanctions and
their mutual relationshio is of an abstract nature. It is very impotant
that abstract and more or less general concepts about different tasks
of more authorities in the same field be elaborated in the concrete
situation of the (category of) offences on hand and lead to well
defined choices of "who does what".
2.Systematic supervision, inspection and investigation.
Systematic enforcement of environmental legislation is developing in
The Netherlands, but generally the performance of the competent
authorities is still rather poor.
Mostly it still depends on sheer chance or coincidence whetner an
environmental offence is followed by any action on the part of the
local government or the police and the public prosecution:of course the
category of manifest and easily detectable offences dominates in
police-reports on environmental crime and even then the official
reaction is often slow and inadequate.
Victims of nuisance-causing industrial activities often must battle for
years before finally some change is reached.
Supervision and monitoring are primarily the duty of the administrati-
ondocal and regional government), combined with their appliance of
adminstrative sanctions in case an offence has been found. The police
can contribute with findings during their patrol .
It must be said that experience in systematic enforcement-programs
during the last years has taught that for a beginning prevention, i.e.
adequate monitoring, followed by good information and eventually by
official warnings to offenders prove an excellent tool for banning a
large part of what could be called the bulk of petty environmental
crime.
Stubborness of an offender who despite being informed or warned
continues to offend the law must certainly lead to administrative
sanctions. If administrative sanctions fail or simply are not imposed
criminal prosecution is considered necessary in such cases.
Chance will always be a determining factor in fighting crime. But from
now on systematic inspection and enforcement should prevail. Enforce-
ment-programs during the last years have shown encouraging experiences.
Those experiences can be translated in criteria for success, which one
for one can serve as an indispensable tool for good enforcement,
criminal enforcement included.
Those criteria are summed up here. It is clear that most of them seem
very obvious. But bringing them into practice on a large scale yet has
to be done.
3. Planning.
Local and regional government and the Public Prosecution must plan
together how to handle environmental crime.
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134 INTERNATIONAL ENFORCEMENT WORKSHOP
They must choose which laws are going to be enforced against which
target-groups and in whicn order (priority-setting). They must decide
upon which sanctions will be used in which cases. They must establish
what capacity (government-officers and police-officers) Mill be
deployed to implement the enforcement program.
In enforcement programs a series of inspection-visits of administrati-
on-officers to industrial plants etc must be exactly planned Programs
furthermore must indicate when police-interference will be required for
investigation and report.
Experience has taught that first rounds of inspection lead to detection
of an enormous number of offences in all degrees of seriousness. But
information and warnings have shown much success: the second visit
already produces less offenders. An official warning from the admini-
stration can be useful then
Of course detection of serious crime must immediately lead to more
severe sanctions.
Result of further visit-rounds is the so called "selection of malevo-
lent recidivists". Government officials and the Public Prosecution
must decide what to do with this category. In principle they must be
prosecuted and possibly confronted as well with severe administrative
sanctions (closing of plant, repair of damage at the expense of the
offender).
Since the Public Prosecution has a responsabi1ity of his own concerning
recidivists administration and public prosecutor must agree on
participation of the police in the program, for the sake of police-
reports enabling criminal prosecution. In The Netherlands there is a
growing opinion that police has to participate at least in the third
round of visits.
It seems desirable that regular combined teams be formed of government
officials and police-officers.
The enforcement program must be based on a step-by-step concept
indicating on forehand what will be done for several categories/degrees
of offences that are foreseen to appear as a result of good inspection.
These programs must include a time table and a systematical evaluation.
It is desirable that well-coordinated enforcement programs, local and
regional, are worked out, on an annual basis.
4.Negot i at i ons/consu11 at i ons.
Making plans together of course requires good consultation.
Over the whole country a real patchwork is spread of all kinds of mixed
governmental-judicial committees for regular consultation in the domain
of environmental enforcement.
There is an enormous investment in time for talks, often without
matching results.
Often negotiations in large committees are limited to an exchange of
information, not leading to clear decisions because not all partici-
pants dispose of the power (mandate) to decide for the institu-
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INTERNATIONAL ENFORCEMENT WORKSHOP 135
tions/author itles they represent. These kinds of free talks were
significant in the seventies when enforcement of environmental rules
was just in the very first stage of development ana partners in
enforcement still had to "find" each other
But what is necessary now is that all those committees be screened on
their efficiency and real output Especially needed is A good link
between preparatory talks and the "triangle"-partners ( government, pu-
blic prosecutor and police) where decisions can be made.
Complementary to preparatory and deciding platforms of consultation
/negotiation there is still needed a third form of regular contact
between the authorities involved, i e. contact on workfloor-level. the
level where programs are implemented and individual cases can be
handled. This is the concrete form of daily contact, which often is the
most satisfactory.
5. Enforcement-networks.
The regular and institutionalized forms of contact and consultation as
mentioned under 4 can be seen as a large part of the necessary network.
But for every-day implementation of enforcement-programs those gremia
are not adequate. Therefore a limited numoer of persons with key-
positions within local governement, Regional Inspectorate for the
Environment, police and public prosecutor are necessary. They must have
an overview of everyday implementation and steer the development of the
implementation. Of course they must take care of regular feed-back to
the above-mentioned gremia.
Models of networks depend on the contents of the enforcement programs
and on the range of authorities involved.
6. Inspection and investigation must go deep en be integrated.
Integrated means in this context that inspection of plants and
enterprises on compliance with environmental legislation must include
all important legislation. Experience has taught that inspection
limited to just one selected environmental law can entail negative
results:inspect ion in only one sector can have for consequence that
compliance in that sector improves but that at the same time pollution
is moved to another sector (from air-emissions to soil or water-
pollution and vice versa).
These integrated inspections require cooperation of all the authorities
concerned, and coordination of technical know-howe. The Regional
Inspectorate for the Environment has an important role as a technical
expert.
7.Good infrastructure with the police.
Inspection and investigation of environmental offences by the police is
still too often assigned to just one specialized officer. Sometimes
those specialists have a function as coordinator:they should extend
their knowledge and experience to other members of the policecorps,
stimulate their colleagues to enforce environmental legislation and
take care of contacts with external authorities.
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136 INTERNATIONAL ENFORCEMENT WORKSHOP
But most police-coordinators still are soloists- they get little
support from their superiors and little response from col leagues.Slow!y
this situation ii cnanging.Pol ice-managers have accepted environment as
s field for serious attention .
Broad support within police-organisations is aDsolutely necessary for
an acceptable level of repression of environmental crime, petty crime
as well as very serious crime
Serious environmental crime.
Grievous crime cannot be confronted on a local level alone:therefore
regional police detective-teams have been formed. Their target must not
only be "common" organised crime but also serious environmental crime,
which by the way mostly is connected with other kinds of crime, t".i.
fraud.
Up to now investigation and fight of serious environmental crime has
been the special duty of a special national investigative network of
the Ministry of the Ministry of Housing, Physical Planning and Environ-
ment (VFtOM): the Environmental Criminal Investigation Support Team
(MET) .
The main task of this team is to give support to local or regional
po1iceforces, especially in the domain of environmental expertise,
information-processing and accountancy.
Practice however is that this team often just is compelled to direct
(and not only support) the investigations done and sometimes even has
some trouble in motivating passive local officers into some cooperati-
on! Finally trus situation is changing since the attitude of local
police management towards environmental jobs is improving.
Serious crime is not limited to national boundaries of course.Good
control includes cooperation with Customs, ensuring inspection of
transnational traffic.
8.Information.
Enforcement requires adequate collection and exchange of information.
Computerized systems must channel information between local government-
agencies, police and Public Prosecution.
In the domain where duties converge the governmental controlling agency
must inform police and the public prosecutor on results of inspection-
visits and taken act ions.Pol ice and public prosecutor must inform
government-agencies about police-reports and outcome of criminal
prosecut ion.
The police must have their own data-processed information system, where
information and intelligence on criminal activities is stored.For the
purpose of good investigation and privacy-aspects this information can
be passed to others (including the government-agencies) only on certain
conditions.Data-systems must enable the police to make good crime-
analysis for more serious crimes.
In The Netherlands data-processed information is yet in a stage of
development.
The police is developing regional information systems .There is a
national police service, the Central Detective Information-service,
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INTERNATIONAL ENFORCEMENT WORKSHOP 137
wnicn has a small sector for environmental crime and which cooperates
with a larger system of information, set UD by the Ministry for the
tnvironment.This is tne National Information Center for Environmental
Offences, (CLIK).
The Public Prosecution is working on a data-processeo system steering
administrative proceedings but the section that is meant to produce
general statistical information, for the purpose of making policy is
still SODIG years away A great deal of the work in the office of the
public prosecutor is still hand-processed.
An experiment.
In the province of Utrecht (where this workshop is being held)
provincial and local authorities, the public Prosecution and police
have installed a data-processed informationsystem, subsidized by the
Ministry for the Environment. Here exchange of information between the
partners is provided (administrative actions, police reports and
criminal procedures) This is the socalled REMM-system (dutch abbrevia-
tion for :regional reporting center environmental offences) installed
in the office of the public prosecutor. Purpose of the system is not
only to exchange information but also to enable the public prosecutor
to decide in which stage of any action, taken by the government-
agencies against offenders, police and public prosecutor should
participate and give support (police-investigation and prosecution)
9.Feed-back and follow-up.
Of course feed-back ana follow-up can be seen as part of good informa-
tion-exchange as descrioed under 8.But these tools might need some
emphasis.Feed-back should not only include information on enforcement,
i.e the outcome of administrative and criminal procedures, but as well
include exchange of information to partners about for example; case-
law; any experiences which can further the continuing process of
learning by doing.An example of special problems is taking of samples
and producing a reliable analysis.
Feed back must not be limited to the level of local authorities;good
nationwide networks between enforcement officials must enhance
spreading of valuable expertise.
A very important example of feed-back that deserves special attention
is feed-back between "practice and theory", i.e. between enforcement
officials and legislators .It has been acknowledged that many environ-
mental regulations give problems when applied in practice:too often the
definition of an offence in law or other regulations impedes finding
sufficient evidence or at least demands disproportional efforts in
producing enough proof. Sometimes problems can be solved just by
changing the definition of an offence; but sometimes criminal enforce-
ment remains so hazardous that it must be seriously considered whether
a rule should be criminally sanctioned at all and whether other
instruments (administrative rules, civil actions or even taxes or
subsidizing) would not be more appropriate tools to guide the conduct
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138 INTERNATIONAL ENFORCEMENT WORKSHOP
of citizens.
ftn example of necessary follow-up is structural checking of compliance
of the convict with conditional sentences.Such control is mainly absent
and enforcement of not observed conditions, imposed by sentences is
almost fully based on sheer coincidence.
10. Standardization of police-reports.
Intensified enforcement will bring forth a lot of reports on routine
cases. Standardized and computer-processed police-reports can be an
efficient tool for speeding up routine procedures.
11.Good sample taking and analysis.
Sample-taking and analysis must meet standards of due process;defen-
dants tend to contest more and more analytic results and critical
attention of judges will require representative sample-taking and
thorough analysis.lt is important that well-handled and conserved
contra-samples for centra-analysis are obtainable for the defendant.
Analyzing should be done more speedily : the capacity of the laboratory
of the Ministry of Justice must be considerably increased.
12.Good legislation; good license-provisions.
Laws and license provisions must be appropriate for effective applica-
tion in criminal proceedings. See point 9.
13.Penalties must be more adequate.
Penalties in environmental cases are generally still rather arbitrary
and 1ight
Guidelines for penalties, agreed upon within the Public Prosecution on
a national scale, have proven to be of good use:of course they can
apply only to more or less comparable routine cases.They cannot oblige
any judge, but reference to guidelines can make a requisitory more
convincing to a judge, because observance of such guidelines gives more
or less a guarantee of equality in sentencing comparable cases.
Guidelines in environmental practice are scarse and not all of them
offer a satisfactory tariff.They must be improved and extended to more
categories of offences.
When it comes to penalties special attention is needed for:
a.illegally obtained profits,
b the damage to the environment.
These aspects are investigated in very big cases, but this approach
should be applied to minor cases as well .Of course it requires expert
calculations, and thorough investigations in suspects'files. For
serious crime (in general) there are experimental "Bureaux for
Financial Support", recently set up and specializing in investigation
into illegal profits and in bringing them to the surface, even abroad
where they can be seized via rogatory commissions.These services
already have proven to be very successful.
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What is said about developing better standards for penalties applies to
out-of-court settlements as well -public prosecutors are trying to
settle for higher aums in case of environmental crimes
14.Newpapers and protesting citizens.
These can be important sources for a public prosecutor, especially in
the still many cases where local authotiries are reticent.
15.Expertise.
Knowledge of tne instruments of environmental legislation is insuffi-
cient, not only with the police, but sometimes .*iso within the Public
Prosecution and with judges, who are supposed to handle environmental
crime -
This lack of knowledge hampers of course good investigation, good
criminal procedure and adequate punishment
Most public prosecutors Know little about administrative law and the
possibilities and range of administrative sanctions. Equally they have
little insight in ecological backgrounds of environmental legislation.
Yet it is clear that only sound knowledge and insight in juridical as
well as in ecological matters can enable the public prosecutor to bring
a case to a good end and to build up a wel1-motivated requisitory for
adequate punishment.
16.Specialization and career.Continuity.
flaking a career within the public Prosecution requires a general
background and management-qualities.Fot that reason only few prosecu-
tors desire to work in a specialist function for a long time. Yet this
is necessary for good environmental enforcement because it takes a
rather long time to gather sufficient experience to do a good job.Fur-
thermore it is desirable that prosecutors-environmentalists do not
change jobs too often, because this implies that gradually built-up
relations with government officials and experts will be Broken up and
have to be renewed by successors.Government authorities complain that
the public Prosecution be no "faithful" organisation because of the
frequent change of public prosecutors they have to deal with and
because of differences in style and opinions between succeeding
prosecutors.
Something must be done to make a long period of specialisation in
environmental law attractive, for instance by increased salaries for
specialists.
With the police as well there must be created attractive prospects for
specialists.
17.Annual programs of the Public Prosecution.
It seems desirable that public prosecutors make annual programs for
their activities in the field of environment.Such programs should not
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140 INTERNATIONAL ENFORCEMENT WORKSHOP
only include enforcement programs (as described under 3) but also :
like building up a good network of consultation with government
authorities, police-infrastructure, information-networks and data-
processing, speeding up criminal procedures etc.
18. Money and time.
The Public Prosecution is - or was until recent times- permanently
understaffed Norms for staffing were not adjusted to the special
requirements of environmental cases wnich very often demand intensive
work- for a longer period and which imply relatively much time tor
consultations with police, the Inspectorate for the environment and
local government officials.Most DUD In: prosecutors lust spend a very
little part of their time on environmental cases, they have many other
duties, often requiring priority
As tne pollution of our environment requires intensified enforcement,
one begins to realize finally that handling environmental cases must
be a full time job .within the public Prosecution.
The government has taken steps to strengthten the police and the public
Prosecution.lt is preferable that a special budget is allocated for
enforcement, to be attributed to concrete programs
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UBGAL AND TECHNICAL O»HI«ITCN PCR EFFECTIVE ENVIRONMENTAL ENPCKCEMENT*
DALE S. BRYSON1 and DAVID A. ULLRICH2
-^Acting Director, Water Division, Region 5, United States Environmental
Protection Agency, 230 South Dearborn Street, Chicago, Illinois 60604
(The United States)
2Acting Director, Waste Management Division, Region 5, United States
Environmental Protection Agency, 230 South Dearborn Street, Chicago,
Illinois 60604 (The United States)
SUMMARY
This paper addresses the issue of effective working relationships
between legal and technical staff involved in enforcement. The nature of
the enforcement process is described including the types of formal and
informal enforcement actions available to the United States Environmental
Protection Agency. The nature of the legal and technical disciplines are
discussed, along with the types of people in and the training of the
legal and technical professions. The barriers to effective cooperation
are discussed. The detailed responsibilities of the engineer and
attorney in specific enforcement actions are explored. The critical
elements in the day-to-day cooperation between the engineer and attorney
on an enforcement action are discussed including case communication, case
management and several other important items that affect the outcome and
the management of an enforcement action. The engineer and attorney are
the key to successful enforcement. While there are many barriers that
exist between the two professions, those barriers must and can be
overcome in order to achieve desired results-environmental protection.
i.
Environmental agencies are facing problems of ever increasing
complexity. In order to deal with those problems, these agencies must
assemble the most highly skilled people available from a number of
professions. This is especially the case in the area of environmental
enforcement. Extensive work over a number of years goes into developing
environmental laws, publishing regulations, and issuing permits. For
that process to be worthwhile, there must be a strong enforcement program
to insure that the regulated community complies with the laws,
regulations, and permits. Because so much is at stake, both for the
environment and economically, enforcement can be exceedingly
controversial. In addition, complex issues relating to environmental
damage, the nature and extent of violations, the type of compliance
* The views expressed in this article are solely those of the authors;
they do not necessarily reflect the views or policies of the U.S.
Environmental Protection Agency.
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142 INTERNATIONAL ENFORCEMENT WORKSHOP
program to be implemented, and the legal issues must be handled very
effectively. Ihere must be the best possible group of engineers,
attorneys, and managers working in full cooperation with one another to
have a fully effective enforcement program.
This paper addresses the issue of effective working relationships
between legal and technical staff involved in enforcement. There are
many barriers to achieving the full degree of cooperation managers would
like to see, but there are ways to overcome those barriers. Perhaps most
importantly, managers must bring to the program an enforcement mentality,
where violations of the environmental laws are taken very seriously
because of their threat both to our legal system and to the environment
we are trying to protect. By attracting and developing engineers and
attorneys with this enforcement attitude and with a clear sense of what
they want from their cases, managers of environmental enforcement
programs are much more likely to achieve success.
2. NATURE OF THE ENFORCEMENT PROCESS
In order to put this discussion in the proper context, there must
be an understanding of the enforcement process within which we are
working. The process starts well before an enforcement action is
brought, with the underlying laws, regulations, and permits which impose
the environmental requirements. These requirements not only establish
what the regulated community must do, they also create a process for
dealing with people who violate them. Most importantly, they must be
clear and both legally and technically sound. Thus, the importance of
effective work by engineers and attorneys begins well before an
enforcement action is even considered. There must be good, enforceable
requirements established in the law, regulations and subsequent permits
for there to be an effective environmental protection program.
With a set of enforceable requirements, the people in the program
can begin the process of enforcement. It begins with a determination of
who is subject to what regulations. Only with the establishment of an
accurate universe of regulated facilities can a program be managed
effectively. Many programs have never achieved the success they would
like because of the failure to take this essential first step.
Developing an accurate universe is generally the task of administrative
staff, with support from the technical staff and limited participation by
the attorneys.
With an accurate universe, the process continues with the
systematic gathering of information through inspections and document
submissions to determine the compliance status of the regulated
facilities. The engineers generally take the lead at this stage of the
process, gathering the necessary information about each facility to make
a compliance determination. The engineers are in the lead, and the
attorneys have a limited role. The attorneys will often help develop the
necessary information requests, and also may help obtain access to the
facility by obtaining a search warrant through the court system. Good
communication is also important to insure that the engineer and attorney
are in agreement as to the type of evidence necessary to demonstrate the
violation and to evaluate the types of compliance programs that can be
implemented.
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Upon the identification of violating facilities, there must be a
determination of the appropriate enforcement action to be initiated.
USEPA has extensive guidance on timely and appropriate enforcement in
response to a variety of violations. Generally, the more serious the
violation the more formal the response. Informal responses include such
things as warning letters and notices of violation. The more formal
responses include administrative orders and complaints. The most formal
actions are civil or criminal matters taken to the courts. Generally,
the engineers in the program office make the initial assessment of the
seriousness of the violation, and the appropriate enforcement action.
The more serious the violation and the more formal the enforcement
action, the greater the participation by the attorneys.
The engineers develop informal enforcement actions and the managers
in the technical program office issue them. The response to these
informal actions will often be a letter, and then possibly a face-to-face
meeting. A large percentage of these matters are resolved quickly.
The preparation and issuance of the more formal administrative
orders and complaints require more cooperation by the engineers and
attorneys. The engineers will develop these orders and complaints, and
the attorneys will review them. Once the Agency issues the action, the
attorneys and engineers will engage in settlement discussions with the
representatives of the violating facility. In most situations these
cases are resolved with an agreed order, which includes a requirement to
pay a penalty and return to compliance. Throughout this process, the
attorney and engineer must work very closely with one another.
The most formal enforcement action is a civil or criminal matter
that goes before the courts. Although these cases also originate with
the engineers, the attorneys become involved early in the process. The
attorney and engineer develop all of the information necessary to support
the case prior to bringing it before the courts. Attorneys and engineers
from outside the initiating office may also be involved, expanding the
need for cooperation. Once the case is filed before a judge, the
cooperative work continues. The attorney and engineer must develop
documents to file before the court, conduct settlement negotiations with
the regulated facility, prepare for hearings in front of the judge, and
take all the necessary additional actions to bring the matter to
conclusion. Most of these matters are settled with a consent agreement
without going to a full trial before the judge. However, the attorney
and engineer must continue to prepare the case as though it will go to a
full trial.
In criminal cases, there is often a special investigator involved,
in addition to the attorney and engineer. This investigator has the
expertise to gather the type of information that can show the criminal
intent of the people involved in violating the law. The engineer and
attorney have an important role of gathering and assessing the evidence
that demonstrate the violation of the environmental law. The evidence is
usually presented to a grand jury, which determines if there is a
sufficient basis to return an indictment against the violator. If this
happens, then the matter is taken before the judge, and often a jury, to
determine if the person is guilty. The standards imposed in criminal
cases are very high, and the technical evidence and legal arguments must
be absolutely sound.
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Regardless of the type of enforcement action or the stage of the
process, attorneys and engineers are involved and must work well
together. They must communicate effectively with one another, and with
all those involved in the process. With the proper enforcement attitude,
the common purpose of bringing the facility back into compliance, and by
holding the violator accountable for its actions, there can be very
successful enforcement.
3. ENGINEERS AND ATTORNEYS: THE DISCTPUNES, THE PB3FQZ, AND THE
BARRIERS
The nature of the legal and technical disciplines, and the people
who are part of them, present inherent difficulties that create barriers
to effective working relationships. In order to overcame those barriers,
managers in environmental agencies must recognize the differences and
deal with them effectively.
The legal discipline works primarily with a set of laws developed
by institutions that apply to the interaction of people and
organizations in society. They apply these laws in situations where one
party feels that another is not operating within those laws. Thus, there
are the makings of a dispute, and the attorneys became involved to
resolve the dispute. This dispute resolution process is one generally
characterized by complexity and requires time to run its course. The
legal process has many rules, and the attorneys must be familiar with
those rules and the process. The process is often oriented towards
making a final determination of who is right and who is wrong. Attorneys
argue strongly for their clients, relying extensively on communication
skills, both written and spoken. The attorney must be an effective
advocate; able to persuade a judge and others of the merits of his
position.
Attorneys tend to be very outgoing, aggressive, and communicative.
They are quite conscious of the status of their profession, and
particularly emphasize the importance of their role as an officer of the
court. They are convinced of the legality and correctness of the
positions they maintain, and sometimes have a stronger desire to win on
their position than to resolve the dispute. Attorneys most often come
from humanities and social sciences backgrounds, and may not be well
versed in technical matters. They tend to be more formal in many
respects.
The engineering and other technical professions involved in
environmental enforcement work within a different professional
structure. Rather than working with a set of standards developed by
society, they work with a set of more fundamental standards, either
naturally occurring or established by scientific inquiry and accepted
over a long period of time. Engineers deal less with who is right or
wrong, and more with what is considered to be the solution to a problem.
They often view the intervention by other parties, especially attorneys,
as impediments to the process of finding the solution. They approach
problem solving as an exercise in gathering the appropriate technical
evidence, applying the correct scientific principles, and thereby
resolving the problem. It is a more objective process of resolving a
dispute, and does not rely as heavily on how well someone can present the
case. There is less emphasis on who wins or loses, and more on finding a
solution. The personal traits of engineers are often different from
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those of attorneys. Engineers tend to be less outgoing and aggressive,
with stronger analytical than communication skills. Most of their
formal education is in the sciences. Engineers are usually more
oriented toward the final product, than the process one follows to get
there.
Given these differences between attorneys and engineers, there is a
natural tension which can impede the enforcement process. There is a
fundamental difference in background and training. Engineers and
attorneys are often of different personality types, and they speak a
different language. They have different approaches to problem solving
and perspectives on the issues. They bring very different skills to the
enforcement process. Because all of these skills are essential to
effective enforcement, the key for the enforcement managers and the
attorneys and engineers themselves, is to overcome their differences and
integrate their skills. By maintaining a commitment to environmental
protection, compliance with the law, and a clear sense of what they want
from their cases, they will develop a strong enforcement mentality which
forms the basis for an effective working relationship.
4. ACOOUNTABItriY AND RFyrmNSTRTT.TTY FOR ENGINEER AND ATTORNEY
From the start to the finish of an enforcement action, there are
certain responsibilities that must be carried out by the engineer and
the attorney. While many responsibilities are carried out individually,
both share responsibilities on others. These responsibilities are
discussed below.
4.1. Responsibilities of the Engineer
Throughout the process, the engineer is responsible for all
technical aspects of the enforcement action. The engineer must prove
what violations of the law have occurred on the basis of the evidence.
The engineer must be able to determine what caused the violation and what
actions could have been taken by the violator to prevent the violation.
A great deal of judgement must be exercised in determining the cause and
prevention of the violation. Best professional judgement is essential in
arriving at necessary conclusions to support the enforcement action. The
engineer cannot know all of the technical details associated with the
violators operation, but must know enough to make a reasonable,
supportable judgement to support the enforcement action. The engineer
must develop the technical solution to correct a violation. The
engineer must be prepared to defend the technical judgments in writing to
the violator, in negotiation sessions and before a judge.
Other technical support may be necessary to help answer the
technical questions that may arise. That support may come from technical
experts from within the agency, other experts in other agencies, from
consultants and from academia. The engineer must get that support and be
aggressive, thorough and imaginative in order to build the strongest
possible technical case. Management expects the engineer to address all
technical issues that arise during the enforcement action by personally
responding or providing the response after consultation with others.
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4.2. Responsibilities of the Attorney
The attorney is responsible for all legal aspects of the
enforcement action throughout the process. The attorney must assess
whether a violation of the law or regulation has occurred. That is
acconplished by reviewing the requirements of the law as applied to the
violator. Ihe attorney relies upon the technical facts provided by the
engineer and makes an individual assessment of the nature and extent of
the violation of the law. Based upon the violations, the attorney must
determine what remedies are available under the law and, in consultation
with the engineer, recommend the appropriate enforcement action for the
agency to undertake. It is expected that the attorney will know
thoroughly all of the legal elements associated with the case. The
attorney must consult with others as necessary in order to develop the
best legal position possible in support of the enforcement action. The
attorney must be aggressive, thorough and imaginative in the use of the
law.
Often the environmental agency in a government relies on legal
representation from another agency in enforcement actions. The
environmental agency may or may not have its own attorneys on its staff.
The above discussion on responsibilities applies equally to attorneys on
the staff or from another agency.
In the case where an environmental agency has its own legal staff
but must still rely on another agency for legal representation, the
agency's attorney must establish and maintain effective communication
between the agencies on all aspects of the enforcement action.
When the defendant in the enforcement action is represented by
legal counsel, all communications with the defendant must be through the
attorney. Ihe exception occurs when the attorneys on both sides agree
the technical staffs should communicate directly with each other.
4.3. Shared Responsibilities of the Engineer and Attorney
A number of responsibilities are shared by the engineer and
attorney. Both the engineer and attorney must thoroughly know the facts
of the case. They must be able to communicate effectively those facts in
all situations that arise. They both must be fully prepared for any
meetings that occur associated with the enforcement action. Those
meetings may be strategy sessions with agency management or meetings with
the violator. The engineer and attorney must discuss and agree on
necessary activities to support the case. They must focus on the common
purpose they have in the enforcement action - getting the violator into
compliance as soon as possible.
5. EftY-TO-DMr OOOPERATICN BETWEEN THE ENGINEER AND ATICKNEy
There are a number of critical elements in the day-to-day
cooperation between the engineer and the attorney on an enforcement
action requiring their full attention.
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5.1. Case Caranunication
The greatest area for stress and tension between the engineer and
the attorney is coramunication. Without effective cxammunication between
them, it will be very difficult for the enforcement action to achieve the
desired result. The responsibility for effective communication rests
with both the engineer and the attorney. Each must communicate on all
aspects of the enforcement action. That includes telling each other
about communications with others involved that have an interest in the
enforcement action, such as their managers and other agencies. It means
talking about problems on the case as they arise and exchanging opinions
and facts that need to be considered. It requires working out solutions
to problems together with open, candid conversations. Reasonable people
will disagree and that is expected in the conduct of enforcement actions.
Those disagreements must be brought into the open, discussed by the
engineer and the attorney and be resolved. This is very difficult, but
it must be done.
The engineer and attorney must keep each other informed on emerging
policies, existing policies, and other information that would be useful
in the enforcement action. Communication between the two must be
complete and timely. They should strive for mutual education of each
other for the benefit of the case and the environment.
Communication with and the role of the management structure above
the engineer and attorney are very important. While the engineer and
attorney have day-to-day responsibilities in managing the enforcement
action, others must be kept informed of case progress for policy reasons
and other considerations. The managers should participate in major
decisions dealing with strategy, timing and resource allocation.
Management must also communicate with the engineer and attorney to
provide consultation and support.
Communication with others connected with the case is also critical.
As mentioned earlier, if the environmental agency works with another
agency, such as the Department of Justice or a state, it is imperative
that all of the principles discussed above are followed in the
communication with the representation from the other agency. That
representative is also expected to reciprocate.
Communications should also take place with other personnel within
the environmental agency. For example, the agency may be processing a
permit or some other document in another program associated with the
defendant of the enforcement action. The case engineer and attorney must
be aware of that and stay in close communication with the other parts of
the agency that are dealing with that defendant.
A key to the successful communication between the engineer and
attorney is for them to speak a common language. They must avoid
"legalese" and "technicalese" and "bureaucractese". They must learn to
use words commonly understood by both. The same is true in
communications with the defendant, other outside parties, and
management.
5.2. Case Management
Bringing an enforcement action to a successful conclusion does not
happen on its own. It requires skillful management of the case. The
first level of case management rests with the engineer and attorney.
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They must know what they want out of a case and how to get it. The best
way to make sure they understand where they are going with a case is
through the development of a case plan. Such a plan tells each other who
will do what by when on all activities associated with the case. The
plan also lays out a target schedule for accomplishing those activities.
In addition, the plan will identify additional legal or technical needs
on the case and how those needs will be satisfied.
The second level involved in case management is with management
above the engineer and attorney. As discussed above, the two-way
communication between the supervisors and the engineer and attorney is
critical to the success of the enforcement action. The managers must be
involved in case management to a degree, depending upon the complexity of
the enforcement action.
5.3. Other Important Items
There are several other important items that affect the outcome and
the management of an enforcement action. One of these items is the
desirability of cross training between the engineer and attorney. They
should visit the site of the enforcement action to see the situation
first hand. The engineer should explain the production process at issue,
the expected causes of the violations, and the likely technical
solutions. That will greatly assist them in discussing the details of
the situation with the violator. There is no substitute for first hand
knowledge and observations, especially if there are obvious adverse
environmental effects caused by the violator. In that way, they can
observe what is necessary to achieve and maintain compliance. The
attorney should arrange for the engineer to observe court or formal
administrative proceedings before a judge to learn how the process works
and to be better prepared for the ongoing enforcement action.
Before any meeting or negotiation session with the defendant, the
engineer and the attorney must be fully prepared. They should have an
agenda prepared, should have agreed on how they want to structure the
meeting by agreeing on who will lead the discussion on which items, what
their position is on the issue, and most importantly, agree on what
outcome they want from the meeting.
In almost all meetings, they should prepare a document in advance
to vise as the proposed settlement position to present to the defendant.
By doing this, the agency is controlling the process and the defendant is
responding to the agency's position. At the conclusion of the
negotiation session, the person in charge of the meeting, usually the
attorney, should summarize the areas of agreement, the areas of
disagreement, and where and when the next meeting will take place.
Subsequent to the meeting, the engineer and the attorney must decide who
is responsible for the necessary action items including preparation of a
new settlement document to reflect the latest position in the
negotiations.
6. aoNcmsioNS
The engineer and attorney are the key to successful enforcement.
They must always remember that enforcement must be firm and fair. Firm
means the law must be obeyed. Fair means that all noncomplying
facilities must be treated equitably. They must remember that initiating
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an enforcement action is easy; completing it is the hard part. Without a
clear management plan, the enforcement action will not progress and not
be concluded. They must always know what they want from the enforcement
action. They must be able to explain it, support it and negotiate the
details of what they want. The engineer and attorney must always
remember that their final objective is to get the violator into
compliance as soon as possible. The environmental contamination will
continue until full compliance is achieved. It is often easy to forget
that the final objective of an enforcement action is full compliance.
Without keeping that in focus, success will not be achieved as measured
by environmental clean-up.
The engineer - attorney partnership is difficult. In environmental
enforcement, the problems are very complex and require a number of
skills to address them. Many barriers exist between the engineers and
attorneys because of the nature of their training and the types of people
they are. Those barriers can and must be overcame. If the individual
team members, the engineer and the attorney, remember to maintain an
enforcement perspective that will hold them together, and they will
achieve the desired result - environmental protection.
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THE SWEDISH SYSTEM FOR COMPLIANCE AND ENVIRONMENTAL ENFORCEMENT.
Agneta Melin
Supervision Department, Swedish Environmental Protection Agency,
S-171 85 SOLNA, Sweden
SUMMARY
Since the Environment Protection Act came into force on the 1
st of July 1969 the disturbances from polluting activities in
Sweden have diminished through regulations required in the permits
for these activities. The effectiveness of compliance and
enforcement programs is becoming more and more important for the
success of the environmental protection efforts. A presentation
about the Swedish System for Compliance and Enforcement will be
given in this paper.
1. ADMINISTRATION
At Government level, responsibility for environmental
questions is largely vested in the Ministry of Environment. The
Swedish Environmental Protection Agency (EPA) is the cental
authority in the environmental sector in Sweden. The Agency is
expected to execute the decisions of the "Riksdag" and the
Government in this field, keep well - informed of new developments
and propose necessary measures to the Government. One of the duties
of the Agency is to deal with matters falling under the Environment
Protection Act from 1969.
The permits for the most polluting activities are given by an
independant board, the National Franchise Board for Environment
Protection. Permits for other less polluting activities are given
by the County Administrative Boards.
EPA is the central supervisory authority that coordinates the
supervisory activities of the County and the Local Administrative
authorities and if necessary gives assistance. Continuous
supervision is carried out by the County Administration for the
most polluting activities and by the Local Administration for the
rest.
2. LEGISLATION
Legislation of direct environment protection includes the
Nature Conservancy Act (1964), the Environment Protection Act
(1969f 1981, 1987, 1989) and the Act on Chemical Products (1973,
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152 INTERNATIONAL ENFORCEMENT WORKSHOP
1985). All three of these acts are vitally important to the
protection of the environment.
The Nature Conservancy Act is primarily concerned with the
management of natural assets, the Environment Protection Act
concerns environment nuisances such as air and water pollution,
noise etc and the Act on Chemical Products regulates the handling
of poisons and pesticides, among many other things.
In Sweden the perfomer of a polluting activity have to apply
for an environmental permit. The performer needs a permit when
starting up a new facility, when significant modifications are
planned or when increasing production is expected. If ten years
have passed since a permit was given the Franchise Board may
prescribe new or stricter conditions for the activity.
When stipulating the terms for a permit the authorities take
into consideration what internal and external measures that are
technically and economically feasible in order to prevent and/or
minimize the effects in the environment. Environmental permits
mostly contain conditions in the form of upper limits for
discharges. Permits can also contain conditions for measures to be
taken such as an installation of a biological treatment plant. Each
industry is given an individual permit. Although the regulations
are individual a certain practice has been developed.
3. PLANT SUPERVISION
The Swedish system for monitoring and inspection is based on
self-monitoring at source in combination with a decentralized
system for inspections carried out by regional and local competent
authorities. A self-monitoring program is suggested by the
performer and then decided by the regional or local authority. In
amendments to the Environment Protection Act 1987 and 1989 the
requirements for monitoring have been strengthened. In principle
all point sources that have continuous emissions of any
significance should have a monitoring program. Guidelines are being
developed for monitoring emissions and discharges from different
kinds of industrial and domestic sources. Variables to be monitored
and methods to be used are stipulated. The self-monitoring program
ought to have the following content:
- administrative information
- description of the polluting activity
- list of permits, conditions etc
- monitoring program for air, water, waste, noise and chemicals
used
- frequency of inspections made by private inspectors
- frequency of reports to authorities and content of the reports.
Inspection campaigns are carried out by the authorities in
diferent industrial sectors. Recently a campaign was carried out in
the surface treatment industry. A significant portion of all
surface treatment plants were inspected. Many discharges above
permitted limits were discovered and measures were taken to reduce
these. Awareness of routines to reduce discharges was increased,
which is an important result in an industry that consists many of
small plants. Other inspection campaigns are also carried out, such
as
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INTERNATIONAL ENFORCEMENT WORKSHOP 153
- iron and steelmaking factories
- bleached sulphate pulp mills
- flow monitoring systems
- special areas that are heavyly polluted
4. RECEIVING WATER MONITORING
4 .1 Local Recipient Monitoring
According to the Environment Protection Act it is the
responsibility of the polluter to ensure that the discharges or the
emissions do not effect the environment in an unacceptable way. In
practice this has lead to the establishment of local monitoring
programs in all recipients where the discharges can not be
neglected. For practical reasons the local programs are often
coordinated to cover relatively large areas. For example on the
Swedish west coast there are two larger coordinated programs, one
covering the whole coast of Gothenburg and Bohus county and the
other one covering the Oresund. Normally the programs contain
measurements of physical and chemical variables in the water,
measurements in sediments and in organisms of toxic metals and
organic compounds that are discharged, and surveys of flora and
fauna.
4.2 The National Swedish Environmental Monitoring Program (PMK)
The objectives of this program are to monitor longterm and
large-scale changes in the environment, to collect environmental
conditions data in relatively unaffected parts for reference
purposes and to illuminate how pollutants are transported in the
environment. The program contains a wide variety of different
investigations and studies, rangeing from counts of migratory birds
to analyses of dioxins in different organisms. The total amount of
sampling stations is well over 200.
5. COMPLIANCE AND ENFORCEMENT
The results from the self-monitoring programes are reported to
the supervisory authorities. A central computerized data-base for
follow-up of the monitoring results is introduced. It will be in
full operation from 1991 providing data on permit holders and their
emissions. Since the 1 st of July 1989 every permit-holder has to
give in an annual report to the supervisory authorities. The report
should be signed by the vice president of the company that runs the
polluting activity.
In case of non-compliance a sentence of fines or imprisonment
for a maximun term of two years could be condemned. A special fee,
the environment protection fee, could be imposed in case of non-
compliance if it has resulted in economic gain for the permit-
holder. The fee should be imposed on the physical or legal person
who has carried out the activity causing the infringement. The
amount of the fee should equal the economic gain resulting from the
infringement. Staffing for inspections made by the authorities has
so far been inadequate. Staffing is to be increased at all levels
and measures are being taken to provide training and guidelines for
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154 INTERNATIONAL ENFORCEMENT WORKSHOP
the staff doing the field inspections. The increased resources for
field inspections are expected to lead to better control over non-
compliance. Measures have also been taken to further strengthen the
sanctions in case of non-compliance. A special training course for
police investigators and prosecutors has been carried out. To
improve methods for monitoring emissions a system for accrediting
analytical laboratories for water analysis will be introduced from
the 1 st of July 1991. In the future accreditation will also be
considered for control of emissions to air.
To emphasize the importance of compliance and enforcement a
new department within EPA, the Supervision Department, come into
being from mid -1989. The Ministry of Environment also clearly
declares that supervison is one of the major tasks for the
environmental authorities in Sweden today.
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INTERNATIONAL ENFORCEMENT WORKSHOP 155
THEME #2: DOMESTIC INTERGOVERNMENTAL ENFORCEMENT
RELATIONSHIPS
Chair: Marbeth Bierman
Goal: The workshop will explore ways to improve domestic enforcement programs through
an exchange of information on effective relationships among supranational/federal, state,
provincial/regional,and municipal/local authorities and their respective roles in enforce-
ment. This includes a discussion of the emerging relationship between the European
Economic Community and member states.
1. Defining and Implementing Effective Federal/State Local Relationships: the U.S.
Experience
Lee DeHihns
2. State Perspective in U.S. Enforcement Relationship
Ken Alkema
3. European Community's Prospects for Enforcement of Directives
Rolf Wagenbaur
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DEFINING AND IMPLEMENTING EFFECTIVE FEDERAL/STATE LOCAL
RELATIONSHIPS: THE U.S. EXPERIENCE
L.A. DEHIHNS, III
Deputy Regional Administrator, U.S. Environmental Protection Agency,
Region IV, 345 Courtland Street, Atlanta, Georgia 30365
SUMMARY
The Federal Government's relationship with States on enforcing
the nation's environmental laws is currentiy very good. It hasn't
always been that way. The U.S. Congress enacted federal legislation
beginning around 1970 to address a new environmental ethic in the
U.S. and to assert federal leadership in the environmental areric;
because of uneven appl(cation of existing laws by the stateu. J.M
now has a framework for managing environmental compliunce activit les
with the States. Those relationships are an important ^art of tne
future effort of enforcing compliance with env i rorir,ental laws in the
1990s.
1.0 OVERVIEW OF FEDERAL AND STAT£ I.O^ES IN REGULATION
For most of the history of the United States, the lead role in
environmental protection was assigned or left to states and their
political subdivisions. They led both in controlling pollution and
land use. The Federal Government was always active in preserving
wilderness and wildlife and in providing parks largely because of
its immense land holdings. It was not until the mid - 1950's that
the Federal Government mounted a significant water quality program
and not until the early 1960's did it become involved with air
pollution. (CEQ Report 1971, 1985) The Federal Government's role
in national pollution leadership escalated substantially in 1970,
with the effective date of the National Environmental Policy Act in
January, the Earth Day celebration in April, the formation of EPA in
December and the enactment of the Clean Air Act in December.
The appropriate role for the Federal Government in environmental
legislation needs to be understood first in the context of the
U.S. Constitution. The Federal Government according to familiar
constitutional theory, is a creature of limited authority, able to
act only on the basis of specific enumerated powers. The "commerce"
clause of the U.S. Constitution grants Congress power "to regulate
commerce... among the several States." Article I, Sec. 8.
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158 INTERNATIONAL ENFORCEMENT WORKSHOP
It is from this particular provision that the strongest support
comes for the current set of federal environmental laws in the U.S.
The application of the Commerce Clause to the environmental arena
results in a picture of congressional power that appears practically
unbounded in the control over the typical areas of pollution. For
example, the emission of air pollutants may be regulated on the
theory that since "ambient air" cannot be confined to the borders
of a state, emitted particles may be seen as themselves constituting
articles moving in commerce and hence directly subject to regulation.
Air pollution control is also supported by its impact on other
branches of interstate commerce. The congressional findings in the
Clean Air Act itself say:
The growth in the amount and conplexity of air pollution
brought about by urbanization, industrial development, and
the increasing use of motor vehicles, has resulted in mounting
dangers to the public health and welfare, including injury
to agricultural crops and livestock, damage to and the
deterioration of property, and hazards to air and ground
transportation. (Federal Environmental Law, p. 24)
Similar theories are applicable to water pollution as it relates
to navigability of waterways as well as recreational and interstate
travel impacts. These same sorts of theories in time came to support
regulation of pesticides, solid and hazardous waste, toxics and other
forms of pollution.
It is difficult to imagine potential problems of pollution that
have not been reached by federal control. The interrelationship of
environmental problems, the recognition that ecological damage in one
area may well have "ecosystem" effects which extend well beyond the
point of initial intrusion, and the inevitable economic impact of
pollution control - with the possibility of competitive havens if
"intrastate" activities are excepted from control - all combine to
present an extremely broad Commerce Clause base for congressional
control of pollution wherever and however it occurs. (Federal
Environmental Law p. 27)
Our Constitution does begin to address the proper allocation of
roles between state and federal levels of government in controlling
pollution concerns common to both. While Congress has the "commerce"
powers discussed earlier, the States retain all powers "not delegated
to the United States". Tenth Amendment U.S. Constitution. This
constitutional issue usually manifests itself in pollution control
legislation where Congress has acted to control a problem and states
want to exercise authority over the problem as well. Except when the
Federal Government pre-exempts states from acting, many federal
environmental statutes expressly reserve to the States the right to
be more stringent than EPA. That action by Congress allows EPA
and the States to fashion the necessary working relationships without
constant conflict over the appropriate approach to the vast array of
environmental problems facing the country.
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In light of this constitutional setting, when the major
environmental laws were passed in the 1970's, the Congress observed
that States had uneven and, in some cases inadequate, capability to
undertake aggressive, effective environmental protection programs.
Legislators felt, too, that some states might be motivated more by
economic rivalry than by the environmental ethic, and that the
resulting competition would threaten the national cleanup that most
considered essential. Consequently, these laws assigned to the
Federal Government, in the institution of EPA, most of the key
functions involved in the design and delivery of environmental
services. Where states were involved, they were assigned carefully
circumscribed functions.
For example, Congressional concerns about the ability of States
to adequately enforce water pollution violations is seen in the
legislative history of the Federal Water Pollution Control Act
Amendments of 1972, P.L. 92-500. The Senate committee, concerned
about poor enforcement under prior Federal Water Pollution laws
and drawing on their experience in considering the Clean Air Act
of 1970, concluded:
"...the enforcement presence of the Federal government shall be
concurrent with the enforcement-powers of the States. The
Committee does not intend this jurisdiction of the Federal
government to supplant state enforcement. Rather the Committee
intends that the enforcement power of the Federal government
be available in cases where States and other appropriate
enforcement agencies are not acting expeditiously and
vigorously to enforce control requirements.
The Committee again, however, notes that the authority of
the Federal Government should be used judiciously by the
Administrator in those cases deserving Federal action because
of their national character, scope, or seriousness. The
Committee intends the great volume of enforcement actions
be brought by the State." (U.S. Code Cong, and Admin. News,
Vol. 2, p. 3730, 1972).
With such statutory backing, and with public expectation
reinforcing the need for a strong, central environmental authority,
it is not surprising that we at the federal level soon concluded that
EPA, rather than the states, was the critical vehicle for preserving
the integrity of the Nation's air, water, and land resources.
We are in the Nineties now, and EPA has recognized the
re-emergence of states as central players in the environmental
movement. For one thing, the Congress has now stipulated that the
lion's share of the administration of environmental statutes will
be carried on by states. Right now, most of the responsibilities
eligible to be delegated by EPA are being managed successfully by the
States. Also, state staffs and authorities have grown enormously in
both dimension and sophistication since 1970. We know, for example,
that for every person employed by EPA, many times more are employed
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by the states and localities in the administration of environmental
programs; and these people are, by all accounts, highly motivated and
we11-trained.
This maturing of responsible action by the States has made EPA
recognize that states must continue to play a much larger and
distinct role. Workers at the federal, state, and local level are
al1 part of a complex and interdependent national network for
environmental protection. The essential conceptual work of refining
roles to ensure that the States and EPA work effectively together
is a dynamic process as decentralization constantly takes place.
Most of our environmental statutes provide for delegation to
states of the lead role for day-to-day program operations, including
enforcement. To discharge their responsibility, States now write the
permits, perform the inspections and take necessary action to ensure
that individual pollution sources comply with applicable national
standards. States must now also report accurately on environmental
progress, meet commitments on use of federal funds, and make
consistently sound environmental decisions that justify public
conf Ldence.
EPA, on the other hand, remains accountable to the Congress and
the President for national environmental progress. It will always
retain those functions related to program direction, coordination,
and consistency that are better performed at the national level.
EPA must continue to set the environmental standards that are the
framework on which state programs are built. EPA must apply its
critical mass of central resources to conduct research, to develop
tools for use in the field, and to provide technical services where
needed to avoid wasteful, duplicative investment by the States. EPA
must provide the residual enforcement clout to make sure compliance
is achieved in the most environmentally significant areas, often
playing the role of the "gorilla in the closet" to foster stronger
state enforcement efforts. And, to fulfill its accountability for
national environmental progress, EPA must conduct constructive
oversight of state programs.
Strong state programs result in environmental improvement and
make EPA successful. A technically proficient EPA, with public
support and credibility, helps the state in an operational sense
and gives the public confidence in all environmental control
programs. Clearly, one of EPA's major goals must be to bring
about conditions in which states can be most successful in their
daily management of national environmental programs.
2.0 HISTORICAL PERSPECTIVE IN FEDERAL/STATE RELATIONSHIP IN
ENFORCEMENT
Delegated states have the lead responsibility for compliance
and enforcement activities, and EPA expects delegated states to
conduct strong compliance and enforcement programs. The Agency's
enforcement role is shifting from a primary focus on performing
inspections and taking enforcement actions to an emphasis on
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conducting reviews and evaluations and providing states with guidance
and technical assistance, in order to assure adequate performance of
state compliance and enforcement programs.
While delegated states have primary responsibility for com-
pliance and enforcement, EPA cannot abdicate its responsibilities to
the Congress to ensure that national goals and objectives are met.
EPA also has a role in the enforcement area as a strong back-up to
states to provide direct enforcement actions when needed. EPA will
endeavor to assist state compliance and enforcement programs when
requested, but the Agency may also take direct enforcement action in
those cases where a state demonstrates it is not willing to establish
a strong enforcement presence or is unable to do so due to a lack of
necessary resources or requisite legal authority.
EPA should establish in advance with the states the general
criteria or guidelines for when EPA will take independent enforcement
action. Such criteria could identify, for example, cases involving
national precedents or other factors of national significance,
unusually large environmental impacts, imminent hazard situations,
or state enforcement responses that are not "timely and appropriate".
We must also coordinate our enforcement actions with states,
notifying states in advance, and taking direct action in accordance
with agreed-upon criteria and not in a way that appears to states
as random and arbitrary or that duplicates state action.
EPA and the state should conduct annual joint planning for
compliance and enforcement activities, in order to establish and
coordinate priorities and strategies.
For EPA's enforcement role to be effective, states must provide
the Agency with prompt and accurate information on pollution sources
not in compliance and on state plans concerning enforcement actions;
such information should be focused especially on mutually established
annual priorities. Frequent and accurate state reporting of compli-
ance information is extremely important for both EPA and the states.
Having an accurate nationwide picture of compliance and enforcement
activities improves our collective ability to assess our progress
toward environmental protection goals and to make informed
adjustments and improvements in national program direction and state
implementation.
The way in which EPA has developed a blueprint for our State/EPA
enforcement relationship has been the result of a number of standing
cooperative groups that both establish a framework for ongoing
operations as well as provide an opportunity for fine tuning the
operations through evaluation and recommendations for having.
The group that is most critical to our current way of operating
is the steering committee on the State/Federal Enforcement Relation-
ship chaired by the Office of Enforcement.
That Committee recommended and EPA Adopted a "Policy Framework
For State/EPA Enforcement Agreements" The original framework was
developed in 1984 with a subsequent revision in 1986. Each year the
EPA Regional Offices and the States negotiate enforcement agreements
establishing clear oversight criteria for assessments of State and
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EPA compliance and enforcement programs. The agreements also
establish the criteria for direct Federal enforcement in delegated
States (including procedures for advance consultation and
notification), and they put into place procedures for State
reporting of management information to EPA. The Policy Framework
clearly establishes Federal oversight of State civil penalty
assessments. The Policy also strongly encourages greater involve-
ment by State Attorneys General in the enforcement agreements
process, communication on priorities and case status, and planning
resource needs. The FY 1989 State/EPA Agreement process sought to
improve Regional consistency in addressing areas covered by the
agreements, and reiterated the need for the EPA Regional Offices
to reach an understanding with their states on Federal facility
compliance issues.
Another group that provides support for ongoing State/EPA
enforcement is the National Environmental Enforcement Council.
The Council membership consists of EPA enforcement officials, State
Attorneys General, U.S. Department of Justice officials, and State
environmental managers. The group focuses primarily on practical/
legal enforcement issues as contrasted with the operational aspects
of the Steering Committee.
A third set of groups that aid enforcement relationships are
the four multi-state enforcement organizations. Because of concerns
about the need for greater cooperation on criminal enforcement in
the environmental field, EPA worked closely with the National
Association of Attorneys General and State environmental officials
to form the multi-organizations to work cooperatively on such
matters. The groups are organized on geographic bases around the
country with 43 states participating in one of the four groups.
3.0 STATE/EPA POLICY FRAMEWORK
The Policy Framework, mentioned above, sets out the essential
groundrules for annual enforcement activities by the States and EPA.
The framework is divided into six sections: State Agreements - Form,
Scope and Substance; Oversight Criteria and Measures; Oversight
Procedures and Protocols; Criteria for Direct Federal Enforcement in
Delegated States; Advance Notification and Consultation; and State
Reporting.
Due to the length of EPA's Policy Framework this portion of
the paper will highlight certain aspects of the Policy.
The section on State Agreements permits EPA Regions and the
States much flexibility in defining the form and duration of the
agree-ment. The most important feature of the agreement should be
that it cover all aspects of the civil compliance and enforcement
programs, including activities involving Federal facilities.
Frequently, the agreements are blended in with workplans and grant
agreements that are executed annually as part of the Agency policy
on management of the state grants awarded annually. The amount of
State grants in FY 1990 was $387 million with an expected growth
to $456 million in FY 91 under the President's budget.
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The Agreement section of the Policy Framework essentially
incorporates the remaining five sections because they are usually
covered in the annual State/EPA Agreement. Oversight criteria are
probably the most critical part of an Agreement in the sense that
measurements of success affect the essence of the State/EPA
relationship.
The criteria are primarily used to address EPA's national
program objectives as well as defining good performance generally
applicable to any compliance and enforcement program whether
administered by EPA or a State. The criteria must be tailored to
address environmental and other priorities of the Region or State
as well as other concerns unique to individual States.
Perhaps the most well known criteria understood not only by
EPA and the States, but the regulated community as well, are the
"timeliness" and "appropriate response" factors. " Timeliness"
refers to key milestones and timeframes applied to all states with
adjustments to accommodate each state's legal system. The timeframes
are intended to: (1) be general targets to strive for; (2) trigger
points that EPA and States should use to review progress on
individual cases; and (3) presumptions that, if exceeded, may
prompt EPA to take direct federal enforcement action. "Appropriate
response" refers to the nature of the response to individual
violations consistent with national policies. In essence, the
response should achieve expeditious correction of the violation,
deterrence to future noncompliance and fairness (taking into
account the gravity of the violation), the circumstances of the
violation, the violator's prior record and the economic benefits
derived from noncompliance.
Appropriate response also requires a clear role for civil
monetary penalties and other sanctions to achieve deterrence of
future noncompliance. Penalties and sanctions contribute to greater
equity among the regulated community by recovering the economic
benefit a violator gains from noncompliance over those who do
comply. EPA prefers the use of cash penalties to other types of
sanctions, but works with states to make appropriate use of other
sanction mechanisms such as license revocation or criminal fines or
incarceration.
Two sections of the Policy Framework that are essentially
inseparable are the sections on oversight process and criteria for
direct federal action. The goal of oversight should be to improve
the state (or Regional) compliance and enforcement program. Over-
sight should be tailored to fit State performance and capability.
The guiding principle has to be that positive oversight findings
should be stressed as well as as appropriate use of negative
findings.
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164 INTERNATIONAL ENFORCEMENT WORKSHOP
The most critical determinant of whether EPA wi]l take direct
enforcement action in a State is whether the State has or will
take timely and appropriate enforcement action as defined by the
Agreement. In all other situations, primary responsibility for
action will reside with state and local governments. There are
three ways other than timely and appropriate situations when EPA
will consider direct federal action. They are: when a State
requests action; there is a national precedent demanding federal
action; or there is a violation of an EPA issued order or consent
decree.
Finally, because timing is important in enforcement actions, a
policy of "no surprises" must be the centerpiece of any effort to
ensure the productive use of federal and state resources in achieving
compliance. The annual agreement should specify the "who", "how" and
"when" of the notification process.
4.0 IMPROVEMENTS EXPECTED IN THE 1990's
EPA has drafted a four-year strategic plan titled "Enhanced
Environmental Enforcement for the 1990's" that sets forth the
role that enforcement has to play in accomplishing the national
environmental mission in this last decade of the 20th century.
The plan makes it clear that EPA and the States have a strong
base enforcement program that has produced record levels of activity
resulting in improvements in environmental quality that were not
possible without a strong Federal/State program.
The plan also notes, however, that despite these gains —
both in establishing rules and assuring compliance with them —
there are challenges ahead. There are still places where the air
is unhealthy and the water dirty. The failure of some facilities
to maintain eguipment properly will undo past environmental gains.
The regulatory agenda is expanding annually, although the Agency
has not yet achieved 100% compliance with existing requirements.
Neither the regulatory nor enforcement process can, in the near
term, address every discharge which causes a risk.
Our joint (Federal/State) enforcement efforts must become
more sophisticated if they are going to solve the most pressing
environmental problems through direct action to achieve comp]iance.
Implementation of the enhanced approach will only succeed if the
federal, state and local efforts mutually build the necessary
enforcement and compliance capacity.
The plan contains seven broad goals, one of which is titled
"Improving EPA Relationships with other Units of Government."
The major governmental institution focused on in that goal is
the States.
More specifically, the goal says that there is still room
for improvement in the State/Federal relationship. It is impor-
tant that the Agency review its oversight function to assure
it is as constructive as possible. It is also important that
the Agency work with the States in explaining and refining this
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strategy. This approach requires the mutual understanding that
the appropriate State/Federal relationship (e.g., degree
of oversight or delegation) may vary over time and between
individual programs.
This will require more emphasis on delivering to States
the generic and program-specific training materials developed
pursuant to EPA's basic inspector training and development program.
At the same time, the Regions and States will need to make better
use of State-by-State data (both quantitative and qualitative)
to make more refined evaluations of the overall effectiveness of
their individual States' enforcement programs and help facilitate
identification of areas for program improvement.
The "Enforcement for the 1990's Project" is analyzing the
State/Federal relationship and the approach to oversight. The
strategic planning process will define any adjustments which should
be phased in by the Regions and States in the FY 1991-95 timeframe.
The annual State/EPA Enforcement Agreements process will take on
added significance as the formal mechanism for working with the
States and localities and defining new responsibilities and roles.
State involvement in EPA strategy efforts needs to become more
formalized. Minimum guidelines, standards, and capabilities for an
acceptable State program could be developed that address such aspects
as enforcement procedures, resource levels, and State training.
In closing, let me say that effective management by and over-
sight of state enforcement at EPA are both a must. However, an
enforcement program with powerful authority and efficient compliance
tracking cannot achieve its best results unless the "requisite will
to enforce, the management framework to articulate objectives and
hold all officials accountable for achieving them" is in place.
(Law of Environmental Protection, ELI p. 8-127). We are moving
steadily in the right direction and have no choice but to do as
the four-year plan says: we "will have to become 'smarter'".
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INTERNATIONAL ENFORCEMENT WORKSHOP 167
STATE PERSPECTIVE IN U.S. ENFORCEMENT RELATIONSHIP
Kenneth L. Alkema
Director of Environmental Health, State of Utah, 150 West Temple, P.O. Box 2500,
Salt Lake City, Utah 84110-25000
I. Introduction
States and local governments have been in the business of environmental
protection, including enforcement since statehood and even earlier. Most of
this effort began with water quality and general sanitation issues but evolved
into all environmental media. Because of the inconsistency among states on
the level of environmental protection provided and the growing concern that
many people in the United States were not being protected, federal laws were
passed to insure that human health and the environment received equal
protection throughout the country. The federal statutes set the minimum level
of protection that would be provided. States are allowed to, and in many
cases do, have more stringent requirements. The only major exception to
allowing states to be more stringent is in the area of radioactive materials
management where the federal government pre-empts states from independently
regulating many radioactive materials.
It is also important to note that many of the federal requirements for
environmental protection were patterned after programs developed in
progressive states. While the need for national requirements and involvement
to protect public health and the environment is essential, the fact that the
federal government stepped into an area that for many years was left to the
states to regulate complicated the development of a partnership.
Further, it must be kept in mind that there were already state/federal
relationships that had been developed over many years that impacted
relationships for environmental programs. These relationships vary from state
to state, depending on the specific history, needs, and circumstances within
each state. For example, Utah was settled by Mormon pioneers who fled the
United States seeking religious freedom. Later when the territory became part
of the United States, soldiers were sent to Utah to make sure the Mormons did
not create any problems. The philosophy that any federal person has been sent
to Utah to squash a rebellion has not totally been eliminated. Trust has not
come easy.
In addition, more than 75 percent of the land in Utah is federally owned.
Historically, Utah has a mistrust of the federal government and has resented
the fact that the federal government manages much of the land within the
State. Utahns, as are many westerners, are very independent and innately
resent anyone from outside the State suggesting that they know what is best
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168 INTERNATIONAL ENFORCEMENT WORKSHOP
for Utah. Obviously, there are many other factors that affect a
state/federal relationship. Given that each state has a different history and
different concerns and priorities (as I am sure does each province within the
Netherlands) developing a successful partnership between the states and the
federal government is more difficult than many of the environmental problems
that we must solve. However, it is essential that it be done.
II. Utah's Compliance/Enforcement Program
Before getting into the specifics of Utah's program, it is important to
understand a little bit more about Utah. Utah is the second driest state in
the United States. As such, water resource management has been a priority in
Utah. Systems of dams, reservoirs, canals, and pipelines have been built to
maximize the use of the water that is available for agriculture, industry and
municipalities, recreational use, and wildlife. Utah is about seven times
bigger than the Netherlands with only 1.7 million people. Eighty percent of
the people are located in a relatively small basin 100 miles in length, and 5
to 20 miles wide, surrounded by mountains. The scarcity of water and the
inversions thai trap dirty air within our populated area have heightened the
awareness tViat we have on the value of clean water and clean air.
Utah has independent authority to pass state laws to protect the environment.
Federal involvement is seen as an opportunity to support through federal
resources and federal assistance the state's efforts to protect public health
and the environment. Less than 40 percent of our budget is from federal
grants. This support has been much higher in the past but is dropping as
state funding grows and EPA funding shrinks. Support in Utah for
environmental protection is growing. Our agency has doubled in size during
the last five years and is expected to double again in the next five.
Therefore, more important to us than the money that the federal government
provides is the technical support and direction they give to us. It makes
good sense to us to use this support.
The Utah Legislature is responsible for defining the authority we have to
develop rules for protecting the environment. Each program must provide for
planning, permitting, monitoring, and compliance. In Utah, as in many states,
the specific, authority for promulgating rules and taking enforcement actions
resides with a board or committee. Within the Division of Environmental
Health, there are four such committees covering air, water pollution, drinking
water, and solid and hazardous waste. These boards are composed of people
representing the regulated community, the general public, local governments
and myself as a voting member. The structure of the Air Conservation
Committee is typical:
o a practicing physician and surgeon licensed in the state not
connected with industry;
o a registered professional engineer who is not from industry;
o a representative from municipal or county government;
o a representative from agriculture;
o a representative from the mining industry;
o a representative from manufacturing;
o a representative from the fuel industry;
o three representatives of the public not representing or connected
with industry; and
o the director.
These committees are intended to provide a balanced point of view in rule
making and enforcement but also represent an important factor in how an
environmental program will be managed. For enforcement, the executive
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secretary of a committee has the authority to initiate enforcement actions.
Any actions of the executive director can be appealed to the committee. Any
final action of the committee can be appealed to the appropriate court.
Although the process may appear to create additional time delays in taking,
enforcement action, in reality it moves very fast. The process is kept as
simple as possible. If we choose, we can file a complaint within a few days
of a violation.
Judicial actions must be filed by the State Attorney General. The attorneys
general of most states are independently elected. An effective enforcement
program is dependent on a good working relationship between the Attorney
General's office and the state environmental agency. Violations warranting
penalties can be quickly negotiated prior to filing a complaint. In the last
five years, we have gone to court only a few times to actually compel the
payment of a penalty. More than 100 actions involving penalties have been
completed through negotiations during, the same time period.
III. Responsibilities
Most states have utilized their authority to develop arid to protect the
environment. States also have the option of seeking federal delegations or
authorizations to manage federal environmental programs. States have taken
different positions on whether or not it is to their benefit to seek these
federal delegations. All have sought and received authorization to manage one
or more federal programs. Utah has taken the policy that it is better for
both the environment and the regulated community for the state to manage
environmental programs. We have authorizations for basically all federal
programs within the State. States see their role as the primary enforcers of
environmental laws. The bulk of the inspections, permit writing, monitoring,
and compliance activities are performed by the states. In fact, more than 80
percent of all the resources and activities in enforcement are at the slate
and local level. States see EPA being responsible for:
o Performing research;
o Setting standards for compliance and enforcement;
o Providing constructive oversight;
o Providing training and technical assistance; and
o Insuring consistency among states implementing federal programs.
IV. Differences in priorities
State priorities are established by the people within each stale while EPA's
reflect a more national perspective. States must be responsive lo those
issues that the people of a state see as priorities. These issues are usually
identified by the Legislature, the Governor, the public directly, or by
individual complaints. Any set of priorities must be based on the comparative
environmental risks within a state. For example, a Utah mining company which
moves 70,000,000 tons a years of material operates a dump leaching operation
which has had significant impacts on ground water. The ground water
contamination study has covered a 200 square mile area. Federal priorities
at the time did not recognize that ground water priorities existed. Meeting
federal priorities meant protecting limited surface water quality at the
expense of valuable ground water. Resources at the state level were diverted
toward the ground water issue and enforcing state priorities. Fortunalely,
ground water protection is now considered a federal priority.
Because of EPA and State efforts, most of the state/federal issues over
priorities have been resolved. State and federal strategic planning at both a
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national and state basis is being done. Annual work plans are jointly
negotiated. Real environmental issues within a state are identified. Goals
and objectives are. developed based of those real environmental issues.
Enforcement priorities are developed in the same way. In the Resource
Conservation Recovery Act (RCRA) for example, it was determined that certain
closure plan violations were more important than identifying new generator
violations, although a national priority was being placed on generator
inspections.
V. Agreement
The U.S. state/federal relationship has come a long way towards being the
partnership that it needs to be. There are still additional issues that, must
be resolved but the successes are many and the direction of the stale, arid EPA
is on target. The success of our improving relationship has been built
through much effort. Some of those efforts include the State/Federal Task
Force on Roles and Responsibilities, the Steering Committee on the
Stale/Federal Enforcement Relationship, the State/EPA Committee, numerous
regional EPA/state meetings and initiatives, opportunities that EPA provides
lo states to participate in policy making, recognition that states in general
have developed tremendous capabilities and have the desire and the
determination to get the job done, much individual effort, emphasis among top
management to improve relationship, EPA people going to work for the state and
state people going to work for EPA, innovations in EPA management such as
state offices, and a lot of plain hard work.
VI. How is the Relationship Working?
Typically, when a significant or unusual violation is found, the stale people
call EPA to seek their advice and support. EPA's input is valued and used.
On routine violations, there is probably no contact. Regular reports are
provided to show that Utah is identifying and resolving noncompliance quickly
and appropriately. Compliance information is on a real time basis and has
been a key to the success of the partnership. The state is responsible for
maintaining the state/federal data base.
Specific enforcement agreements have been developed to provide ongoing
communications. Efforts are underway to reward performance through the
application of appropriate oversight, depending on the quality of the state's
compliance efforts. Where expectations have been clearly documented,
performance and relationships are excellent. As long as we have carefully
agreed to what needs to be done on compliance and follow the agreed plan, it
is easy. Most discussions and conflicts arise where the understanding is
vague or poorly defined. Regular meetings are held to work through these
conflicts. An informal dispute resolution process raises the issues to the
appropriate individuals for action. As EPA receives reports, deviations from
the state plan are discussed and resolved.
VII. Differences
The best way to illustrate the difference between federal and state compliance
activities other than enforcement is to look at bringing small communities
into compliance. There is a real difference in enforcing regulations for
major and even minor industries than there is for small municipalities or
government units. For several years I was responsible for the water
compliance program throughout a six-state area. One of the communities,
Marmouth North Dakota, failed to submit information on monitoring and a
schedule for
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improving their waste water treatment. Because of this failure, a form lei.Lei-
was sent out to the town asking, them to explain why the informal ion had nol
been submitted. One of the routine paragraphs included in the letter
explained that failure to meet a condition in the permit could result in a
penalty of up to $10,000 per day. The response from the town clerk in
Mac-mouth is reflective of small town problems. She stated, "that for $10,000
we could buy the whole town of Marmouth." The letter did not work.
In the Drinking Water program, small communities represent the majority of
those facilities that have trouble complying. Elected officials or voluntary
water managers just quit if a noncompliance problem cannot be quickly resolved
or if assistance is not provided. Several years ago Utah's noncompliance in
drinking water was over 30 percent. Mow it is below 5 percent. This success
has not been achieved through typical enforcement techniques but through
education, hand holding, peer pressure, recognition of excellence, and
cooperation of other agencies techniques. State and local programs seem to be
much more successful in finding these alternative methods than do federal
programs mainly because these entities are closer to the people and the
problems. The Safe Drinking Water Committee is the committee responsible for
regulating drinking water in Utah. The Committee has three mayors from small
communities. These mayors understand the problems that small communities
have. However, they also are very effective and credible in censoring the
mayors who have not done what is necessary to meet the drinking water
requirements.
VIII. Lessons Learned
The following are the keys to the success of a state/federal partnership on
enforcement:
A. Most important are the people. The individuals on both sides must be
well trained and experienced. They must recognize and accept the
identified federal and state roles. They must be knowledgeable and
understanding of each entity's concerns and the realities of the
constraints and interactions each must consider. They must have a
respec.l and a trust for each other.
B. Real time information systems must be in place. The states must be
accountable for the information and the quality of their compliance
program.
C. EPA expectations must be clear and measurable.
D. Performance must be based on environmental factors. We must not loose
sight of the purpose of compliance and enforcement.
E. Oversight should be based on performance. Excellent performance should
be recognized.
F. A thorough state compliance plan must be developed and implemented.
G. Training of state and federal people must be provided.
H. Compliance people must take ownership of compliance. Each person
involved in compliance should be responsible for insuring that a
facility returns to compliance and stays in compliance.
I. Federal and state people must both be committed to improving the
state's compliance program rather than replacing it.
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EUROPEAN COMMUNITY'S PROSPECTS FOR ENFORCEMENT OF DIRECTIVES
Rolf WXGENBAUR
European Economic Community
Wetstraat 200
1049 BRUSSEL - Belgie
Let me start by saying how much the EEC-Commission welcomes the
initiative of the United States Environmental Protection Agency and the
Dutch Ministry of Housing, Physical Planning and Environment
establishing this International Enforcement Workshop. This opportunity
enables us to discuss important issues on environment legislation.
These issues may have different features in different states or
communities, but they do all have a number of points in common. As
concerns the European Community I can assure you that we do have
serious problems with the implementation of Community law and we are
prepared to discuss them, even if we are perhaps more conscious of the
problems than of suitable solutions which might help to solve the
problems. But we can all learn from other countries' experiences, and
perhaps adequate solutions for the Community's problems will emerge
from to-day's session. Therefore, in the name of the EEC-Commission to
which the EEC-Treaty entrusted the enforcement of all Community
legislation I would like to express my gratitude to the organizers for
the opportunity to have this exchange of views.
As my own contribution I am glad to give you an outline of our
experiences with the enforcement of the Community's environment
directives. I will start with some general remarks on this legally
binding instrument; I wiI I turn then to the necessity of implementation
by Member States and explain the role attributed to the Commission and
the Court of justice. The final remarks will outline a series of
initiatives which might be envisaged to improve the Community's
performance.
I• Ihfi EEC-Directive as a legal instrument of the Community's
Environment legislation.
The Directive is - besides the Regulation - one of the most widely
used legal instruments of the EEC. As far as Environment protection is
concerned, it has become the most important instrument from the outset,
that is since the Community took an interest in this field of activity.
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You will be aware of the fact the Single European Act (SEA) modified
the legal basis of the Treaty so far. Perhaps I should add that the
Community has no general power to legislate. Instead the EEC works
under the principle of limited powers which are conferred upon it. This
means that for all legislative acts there must be a legal basis in the
Treaty. For quite a long time, under the original Treaty in the field
of environment, we could only rely upon articles 100 and 235. The
situation changed under the SEA. It introduced two new provisions. One
is article 100a, a provision which enables the Community to adopt
measures of approximation of laws also in the field of environment
protection under simplified conditions, as compared with article 100.
In addition, Article 130s provides the Community with a totally new
basis for measures in the field of Environment protection. Whilst
Article 100 gives only the possibility to adopt directives, neither
Article 100a nor Article 130s mention the legal acts which can be
adopted. This means that in principle it will not be impossible to
forsee the adoption of Regulations instead of Directives. Nevertheless,
there are indications that nevertheless the Directive will keep its
privileged position, unless the Community's policy undergoes a thorough
change.
Even if statistics are sometimes difficult to handle, I would like to
mention at least two figures in order to show the Community's current
practice. So far, the number of Directives adopted in the field of
Environment protection amounts to a total of about 140, as compared
with about 20 Regulations and 50 Decisions.
These figures show that it is greatly in the Community's interest and
indeed a necessity that Directives become an efficient legal
instrument.
I I. The Directive and the necessity of implementation
Article 189 of the EEC-treaty provides the following with regard to the
legal nature of the Directive :
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"A directive shall be binding, as to the result to be achieved,
upon each Member State to which it is addressed but shall leave to
the national authorities the choice of form and methods".
This is to say that the Directive normally implies that legislation
takes place in two steps. As a first step, the competent Community
institution adopts a Directive following the procedure indicated in the
relevant legal basis. In the field of Environment protection, this
institution is always the Council of Ministers, acting on a proposal of
the Commission. The Directive is notified to the Member States
(Art. 191 par. 2). In principle, one of the final articles of the
Directive states the date or the time available to Member States for
implementation into national law. This Is to be the second step. Member
States are bound to implement the contents of the Directive in such a
way as to guarantee that the contents of the Directive be enforced for
the territory of each Member State and the existing law modified in
consequence. The manner in which Member States will achieve this result
is up to them to choose : they decide on the choice of "forms and
methods".
Even if the Directive has been implemented in national law under this
two-step procedure, it would be wrong to conclude that the rights of
private parties could never be affected under the first step. The
Directive might be called a chamaleon (Wdgenbaur, Die Unsetzung van EG-
Recht in deutsches Recht und ihre gesetzgeberische Problematik, in :
Zeitschrift far Gesetzgebung, 1988, p. 303). It has been held that if a
Member State did not implement a Directive in due time (.Case 148/78,
Ratti, ECR 1979, p. 1629, 1642) or as required (Case 102/79, Belgium,
BCR 1980, p. 1473, 1487), or If the national law establishes
discretionary measures the application of which could give rise to
conflicts with the Directive (Case 41/74, Van Duyn, ECR 1974, p. 1337,
1349), this Directive may under certain conditions produce legal
effects in favour of private parties who may rely upon these effects
before the national Courts and administrative bodies. This takes place
when the Directive contains provisions which - following their
structure and wording - are in principle appropriate to establish
direct legal relations between Member States and their citizens. This
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can only be the case if the relevant provision is drafted in a clear
and unequivocal manner and if no supplementary measures of a
discretionary nature are necessary under Community or national law
(Case 102/79, quoted above). In cases where this condition appears to
be fulfilled, the EC-Commission frequently requires national
authorities to obey to the relevant Directives. I would like to add
that meanwhile the Courts of all Member States accept the principle of
direct effects of Directives as a consequence of supremacy of Community
law, with the sole exception of the French Conse i I d'Etat, which
continues to stick to the attitude it adopted in the well known Cohn-
Bendit-case (judgment of 22.12.1978, Rec. Lebon 1978, p. 525). It is
hoped that this has now changed since the Nicolo judgment but this
case did concern, it is true, a provision of the Treaty itself and not
subordinate legislation such as a Directive. Notwithstanding this
general approval of national courts, one cannot help the feeling that
the direct effect of Directives is not taken into account very
seriously by a number of administrative bodies in all our Member
States. It is only to a very limited extent that this principle means
therefore a practical improvement of the enforcement of Directives in
the field of Environment protection.
The case-law of the Court of Justice provides us with very interesting
clarifications as to Member States' obligation to implement Directives.
Case law concerning the "forms and methods" of implementation.
On several occasions, the Court had to address the question which
regional entity of Member State is competent for implementing
directives. These occasions occured in general, when the Member State
objected that under national constitutional law implementation had to
be accomplished by regional or local entities. The answer of the Court
to this objection was without ambiguity : "Each Member State is free to
delegate powers to its domestic authorities as it considers fit and to
implement the directive by means of measures adopted by regional or
local authorities" (Case 96/81, Netherlands, ECR 1982, p. 1791, 1804;
Case 97/81, Netherlands, ECR 1982, p. 1819, 1833; Cases 227, 228, 229
and 230/85, Belgium, ECR 1988, p. 1; p. 11).
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It is obvious that this is of particular relevance for Member States
with a federal structure or with decentralized legislative competences.
This means that the Commission has always to dialogue with the Member
States' central authority, notwithstanding the question of which
authority is competent for the implementation of the directive under
national constitutional law.
The Court of Justice has clarified to a large extent in which way the
implementation has to be accomplished. For instance, it has been
clearly stated that the implementation has to take place through
national provisions having the same legal status, as those which
regulated the particular subject beforehand (Case 102/79 quoted above,
p. 1486).
It has also been held that "each Member State should implement the
directives in question in a way which fully meets the requirements of
clarity and certainty in legal situations" (Case 102/79, quoted above,
p. I486; case 96/81, quoted above, p. 1804 f. ). The Court followed
that "these administrative practices, which by their nature can be
changed as and when the authorities please and which are not publicized
widely enough cannot be regarded as a proper fulfilment of the
obligation imposed by Article 189 on Member States (Case 102/79, quoted
above, p. 1486; case 96/91, quoted above, p. 1804). The Court in
general considers as the first guideline "that according to the
consistent case-law of the Court, each Member State must implement
directives in a manner which fully meets the requirement of legal
certainty and must consequently transpose their terms into national law
as binding provisions" (Case 239/85, Belgium, ECR 1986, p. 3645, 3659;
with conclusions by Adv. Gen. da Cruz Vilaqa, p. 3652; Case 96/81,
quoted above,p. 1804.
b) The "binding nature" of the directive
Quite rightly, the Court has underlined on several occasions the fact
that the "correct application" of directives Is particularly important
since the implementing measures are left to the discretion of the
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Member States. If implementation is delayed, the directive would remain
without effect besides the fact that the existence of differences in
the rules applied in the Member States after the periods allowed for
implementation have expired might result in discrimination (Case 52/75,
BCR 1976, p. 277, 284). In this context it is not surprising that the
Court rejected a great number of justifications which Member States
tried to put forward for their defense when accused before the Court of
non implementation of directives. This is for instance the case of the
following arguments :
The Member State concerned attributes direct effect to the
provisions of the directive concerned and therefore alleges that
this is equivalent to normal implementation (case 102/79, Belgium,
BCR 1980, p. 1473, p. 1487; case 301/81, Belgium, ECR 1983, p. 467,
478).
The time allowed for implementation is too short (Case 52/75,
quoted above);
Other Member States did not implement the directive either in due
time (Case 52/78 , quoted above; case C-38/89, Blanguernon,
Judgment of 11.1.1990 (not yet published);
A governmental crisis prevented implementation (Case 52/78, quoted
above);
- The non-implementation was due to the anticipated end of the
legislature (Case 79/72, quoted above, p. 671; case 91/79, ECR
1980, 1099, 1105);
- Non-implementation was due to other internal difficulties or
national provisions, which are part of the national constitution
(Case 102/79, quoted above, p. 1487);
The internal difficulties which prevented Implementation In due
time were to be attributed to constitutionally independent
institutions (Case 77/69, Belgium, ECR 1970, p. 237);
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The Member State alleges that it conforms de facto with the
Directive and all that remains to do is to establish conformity
between the established practice and the relevant provisions (Case
102/79, quotad above, p. 1484; case 29/84, Germany, ECR 1985, p.
1661).
As I said, none of these points have ever been accepted by the Court of
justice. This means, in other words, that Member States have the
obligation to adopt the measures which are fit to give full effect
("effet utile") to the Directive following the aims pursued (Case
48/75, Royer, ECR 1976, p. 497, 516; case 14/83, von Colson, ECR 1984,
p. 1891). It would be inconsistent with this principle to refer to
"provisions, practices or circumstances" existing in a Member State's
legal system in order to justify a failure to comply with the
obligations and time-Mm its under Community directives (Case 52/75, ECR
1976, p. 277, 285). This does not exclude, however, that "general
principles of constitutional or administrative law" can render
superfluous implementation by specific legislation (Case 29/84, ECR
1985, 1661; case 363/85, Italy, ECR 1987, p.1737, p. 1742; case 247/85,
Belgium, ECR 1987, p.3029, p.3060; case 262/85, Italy, ECR 1987,
p.3097; case 236/85, Netherlands, ECR 1987, p.3989, p. 4007).
III. The enforcement of Directives.
As compared with the "Regulation" - which plays a very minor role in
Environment protection law - the "Directive" has decisive weaknesses.
A regulation implies the adoption of truly Community law with direct
effect. Its purpose is to grant direct rights and impose charges to
private parties without any interference of national law (Art. 189 par.
2 EEC-Treaty). The feature which the Directive has in common with the
Regulation is that it imposes binding law. However, as already
mentioned, the Directive must be implemented and the national law has
to be changed accordingly. We will try to explain which institutions
intervene in order to check if the implementation has duly taken place
and which are the achievements of the Community so far.
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1. Following Article 155 EEC Treaty, it is part of the tasks
attributed to the Commission to "ensure that the provisions of the
Treaty and the measures taken by the institutions pursuant thereto
are appI led".
The control of the implementation, in due time and correct in
substance, of Directives forms part of this activity. The
attribution of this competence to the Commission is an exclusive
one : the Treaty gave a comparable mandate neither to the Council
nor to the European Parliament. Besides, this attribution of
competence is strictly reserved to 11 : the Commission is not
allowed to delegate this power partially or totally be it to
another institution of the Community, or be it to any new authority
which might be created. We will examine later how far it could be
envisaged to entrust auxiliary functions to other institutions.
The Commission takes very seriously its duty of monitoring the
implementation of Directives. It controls whether the deadline for
implementation is respected and whether the measures adopted comply
with the terms of the Directives. It also verifies whether the
national provisions are a correct and complete implementation of
each D i rect i ve.
The Commission needs information and assistance from third parties
in order to be in a position to control if, I n oract Ice. Member
States stick to the provisions of the Directives after or before
implementation, if the time given to them has already expired and
provided the text or parts of it deploy direct effect. It is well
known that the Commission has no administrative structure in the
Member States which would enable her to make systematic checks.
Increasingly, the Commission receives relevant information from
private complainants (private parties or Environment protection
associations) or via questions put to it by members of the European
Parliament. The complaints received from all parts represent a
precious source of information. The number of these complaints has
been rising considerably : in 1984, for instance, the Commission
received a total of 9 complaints; it
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received 460 in 1989. Let me add that most of these complaints
concerned the quality of drinking water (Directive 80/778/EEC), the
environment impact assessment (Directive 85/337/EEC") and the
protection of wild life birds (Directive 79/409/EBC).
In the case of an infringement - be it the non implementation of a
Directive in the time which had been forseen, be it an incorrect
implementation or an incorrect application, the infringement
procedure under Article 169 EEC Treaty may be decided by the
Commission. This procedure comprises three stages. During the first
stage, the Commission puts down in writing the allegation that the
Directive may be infringed - without indicating its sources in the
case of a complaint - and gives the Member State the opportunity
to express its views normally within a period of two months. This
is the subject of the so-called letter of formal notice. After
having received the answer - or in case the time has run out
without result - the Commission is to decide as to the next step.
If it remains convinced that there is an infringement, it may
decide to deliver what is called a "reasoned opinion". This means
that it prepares a somewhat more detailed analysis of the facts and
concludes that in legal terms the Member State has committed an
infringement, requiring the Member State to remedy this within a
given time. Only after expiration of this deadline without a
remedy - as a rule another two months - has the Commission the
possibility to go ahead and send an application to the Court of
Justice (art. 169 par. 2 EEC-Treaty).
3. This is not the appropriate moment to go into the details of the
rules of procedure before the Court. It may be enough to say that
the Member State concerned is given sufficient possibility to
express its views on the matter, in writing as well as during the
oraI hear i ng.
If the Court reaches the conclusion, after having heard its
Advocate general, that the application of the Commission is well
founded, the procedure finishes with a declaratory judgment. The
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Court usually decides along the following wording : "The Court
hereby declares that by not bringing into force within the periods
prescribed the provisions needed to ensure the full implementation
of Council Directive NT the [Federal Republic of Germany] has
failed to fulfil its obligations under the Treaty".
The consequences resulting from such a statement are limited :
according to article 171 EEC-Treaty, the Member State "shall be
required to take the necessary measures to comply with the judgment
of the Court of Justice".
There is no kind of enforcement nor are there any financial or
other consequences linked with the judgment. If the Member State
does not comply with the obligation stated in article 171 EEC
treaty within appropriate time, It commits another violation of the
Treaty. This might lead to another infringement procedure, another
application to the Court of Justice and another judgment, of a
declaratory nature.
It may be mentioned at this point that in the field of Environment
protection there are practically no requests from national courts
for preliminary rulings under Article 177 EEC Treaty. This
situation Is most deplorable the more as In other areas of
Community action rulings under article 177 EEC-Treaty have proved
very important for the Interpretation and enforcement of Community
law.
4. The Commission reports on the way it fulfills its obligation to
check the implementation of Directives in its annual Report as well
as in special reports to the European Parliament on the control of
application of Community law (Sixth annual report, 1988, cf. O.J.C.
330/1 of 30.12.1989). The latter are provided with statistical
annexes giving detailed Information on the infringement procedures
in the different sectors of activity. They also contain information
on the judgments of the Court which have not yet been executed by
Member States and on the implementation of the different Directives
in the Member States.
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It was because he considered the implementation of Environment
protection Directives and the execution of the relevant judgments
of the Court to be most unsatisfactory that the Member of the EEC
Commission in charge of Environment protection, Mr. RIPA Dl MEANA,
"went public" on 8th February 1990. In a press conference he
stressed the omissions and negligence of Member States. He
mentioned the pertinent figures and stated how many infringement
procedures the Commission has had to undertake so far. His
declarations had considerable political impact and raised criticism
both as concerns the procedure adopted and the figures which were
thought Incorrect. Via the press, public opinion got a picture of
the present situation, the Commissioner insisting that the figures
given proved correct :
Procedures under article 169 decided UP to 31.12.1989
State
Formal not ice
F .R .Germany
Be I g i urn
Denmark
Spa in
France
Greece
I re land
Italy
Luxembourg
Nether lands
Portuga I
Uk
TOTAL
13
27
5
45
28
37
16
17
9
18
10
18
242
8
8
-
9
6
5
5
16
2
5
4
8
76
to the Court
8
7 (+ 4)
-
3
7
3
-
7
1
2
-
5
44
29
46
5
57
41
45
21
40
12
24
14
31
362
IV. How to improve the present situation
Every Directive constitutes a direct appeal to Member States and their
authorities - an appeal to fulfil their obligations under the EEC-
Treaty. But as neither legal proceedings nor political interventions
achieved much so far, it is indeed necessary to ask - as did Mr. RIPA
Dl MEANA in his press conference of 8th February 1990 - how the present
situation could be improved.
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184 INTERNATIONAL ENFORCEMENT WORKSHOP
1. A first idea might be to avoid the problems of implementation in
the future by choosing Regulations as legal instruments, instead of
directives, whenever seems suitable.
In other fields of Community activity, this idea has already
produced good results. The harmonI sat ion of customs laws, for
instance, has largely been accomplished through Directives, unless
the divergences on national level after implementation of these
Directives gave rise to too many difficulties. With general consent
of Member States, the Community started to produce uniform customs
law by way of regulations and even replaced existing Directives by
Regulations. As we explained a moment ago, in the field of
Environment protection, articles 100 a and 130 s do provide the
Community with legal basis allowing to act by way of Regulations. A
short while ago, the Community missed a good opportunity to try
this approach. The Council of Ministers has agreed during its March
session on a Directive on freedom of information In the field of
environment. Instead of a Directive, the Council might easily have
adopted a Regulation. It is not sure at all that Member States
would have followed that line at the time. It is more likely that
such a step will need a preliminary rethinking of the legislative
activity of the Community in the field of Environment protection.
The aim to be reached might be that Commission and Council examine
closely every draft In order to check if a regulation can be
envisaged instead of a directive.
2. As long as Directives remain the most important legal instrument of
the Community in the field of Environment Protection, one way of
becoming more independent of implementation in national law would
be to emphasize direct effect. This implies that directives would
have to be drafted more closely in the style of Regulations. What
is more, it could be necessary to inform public opinion that one
could claim that the competent authorities obey Directives once the
delay for implementation has expired. If this idea were accepted,
the problem would not be solved as such, but in practice the
situation would be improved.
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INTERNATIONAL ENFORCEMENT WORKSHOP 185
3. Another idea on the same line is that it might help the
enforcement of directives if Environment protection associations
and the like were given standing as plaintiffs before national
courts with regard to matters related to environment protection.
At present, the legal possibilities differ widely from one Member
State to another and even within certain Member States. This
question should give rise to thorough investigation. Environment
protection and the enforcement of Directives might both benefit if
these associations were given the appropriate rights under national
law. At first sight, it seems that such an initiative might be
founded on article 130 s EEC-Treaty.
4. In his press conference, Mr. RIPA Dl MEANA rightly mentioned how
the Commission might assist Member States during the implementation
process, contributing thus to easing and accelerating this process.
Until now, the implementation was entirely in the hands of Member
States. The Commission intervened only when it appeared that
implementation did not take place in due time or was incorrect. In
the future, the Commission should be involved more closely in the
implementation process. A first step in this direction might be
that Member States and the Commission start discussing
implementation problems and possible solutions before the time set
down has elapsed. Pursuing this dialogue - and as part of the
procedure - the Commission would have the possibility to give its
opinion on early drafts of national legislation. This might help to
stop erroneous developments which would later on lead to
infringement procedures.
5. Another possibility for stronger commitment to the Community
also mentioned by Mr. RIPA Dl MEANA - would be to create a
Community Environment Fund following the model of the existing
Funds (Regional, Social and Agricultural Fund). In the past,
European Parliament had claimed several times that such a fund
should be created. The fund would have the task to assist Member
States financially when implementing important EEC Directives. Some
of these Directives require very considerable expenditure. This is
for instance the case of a recent proposal of the Commission for a
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186 INTERNATIONAL ENFORCEMENT WORKSHOP
directive on waste water -. It seems pretty certain that the
adoption of this draft directive by the Council would be greatly
facilitated and accelerated if such an Environment Fund were
available for financing the heavy expenditure which the directive
will necessi tate.
6. The EEC has accomplished considerable progress on the road to
better enforcement of Directives when the Council agreed at its
March session on the Regulation on the European Environment Agency.
In the European Parliament, the rapporteur, Mrs. B. WEBER,
criticized the tasks, too restricted in her view, which the
Commission wished to entrust to the Agency. In her view, the new
authority should be entrusted the role of a kind of inspectorate in
charge of having a close scrutiny of the enforcement of Community
direct ives.
However, even the Resolution adopted by Parliament on 14th March
1990 claims only that the field of activity of the Agency should be
extended in such a manner within the new next two years. The
remarkable thing is that the Council at its March session has
accepted this amendment. Article 20 of the Regulation states that
"No later than two years after the entry into force of this
Regulation, and after having consulted the European Parliament, the
Council shall ... decide on further tasks for the Agency in
particular in the following areas :
- associating in the monitoring of the Implementation of
Community environmental legislation, in cooperation with the
Commission and existing competent bodies in the Member States".
The implementation of this provision would provide precious
assistance to the Commission with regard to its role of control ing
the enforcement of directives. The decision adopted by the Council
is therefore to be welcomed, even if it will take at least two more
years to make progress and despite the fact that it had not been
possible - as forseen at a certain stage - to decide on these
future tasks of the Agency with qualified majority.
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INTERNATIONAL ENFORCEMENT WORKSHOP 187
7. In addition, one might consider the possibility of increasing the
powers of the Court of Justice in the context of the infringement
procedure under article 169 EEC-Treaty. The possibility to launch a
second procedure for violation of article 171 EEC-Treaty - because
the Member State did not execute the first judgment - is not really
of much help. Again the Court can only make a declaration as to the
violation of the Treaty. The idea of going beyond this stage and to
provide for real sanctions has already been put into practice.
Under the ECSC-Treaty of 1951, the High Authority has in particular
the possibility, if the State has not fulfilled its obligation by
the time limit set by the High Authority, or if it brings an action
which is dismissed, with the assent of the Council acting by a two-
thirds-majority, to suspend the payment of any sums which it may be
liable to pay to the State in question under this Treaty.
Should equivalent possibilities be introduced in the EEC Treaty'
This needs thorough examination. Especially the suspension of
payments, for instance due under the Environment Fund mentioned
earlier, might well be counterproductive to the Environment as
such. Another possibility to provide for adequate sanctions could
he to give the Court the right to impose fines if requested, by
the Commission, if a Member State does not put an end to an
Infringement within acceptable time limits after the judgement of
the Court. However, at all events, and what ever the merits of such
a clause in the EEC Treaty might be, one should bear in mind that
Member States may not look at such changes with great enthusiasm.
Their chances of adoption should therefore be regarded as rather
doubtful.
8. Finally, and if all else fails, the Commission may always appeal
to public opinion and draw its attention to the situation. In his
press conference of 8th February 1990, Mr. RIPA Dl MEANA has
already opted for this possibility. He announced that the
Commission would "go public" every year with a report on the
application of Community environment law. This announcement shows
that in the view of the Commission pressure stemming from public
opinion can perfectly help to improve the enforcement of
environment directives. What is more, under pressure from public
opinion our environment might improve in general.
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188 INTERNATIONAL ENFORCEMENT WORKSHOP
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INTERNATIONAL ENFORCEMENT WORKSHOP 189
THEME #3: INTERNATIONAL TRANSBOUNDARY POLLUTION PROBLEMS
Chair: Leo Jansen, The Netherlands
Goal: The workshop will focus on particular examples of enforcement problems that cut
across national borders: hazardous waste, and toxic chemical and pesticide product import
and export without sound environmental safeguards. Various attitudes and approaches will
be explored to address these issues, including trends in international cooperation and
sharing of data and the need for innovative strategies and investigative techniques for
detecting violations.
1. The Import/Export of Hazardous Waste and Toxic Substances: the U.S. Enforcement
Experience
Paul Thomson
2. Netherlands Case Study in Enforcement of Hazardous Waste Import/Export
Jo Gerardu
3. Waste Movement: European Community and Outside
Carel de Villeneuve
4. Pesticide Export and Import Enforcement Programs in the United States
Connie Musgrove and Angela Ilofmann
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190 INTERNATIONAL ENFORCEMENT WORKSHOP
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INTERNATIONAL ENFORCEMENT WORKSHOP 191
of Hazardous Waste and Toxic Substances ?_
States Enfor
Paul R. Thomson, Jr.*
Hazardous chemical wastes - solvents, PCBs and
waste oil - have been mixed clandestinely into fuels .in
the past four years and sold to unsuspecting customers
in Southern Ontario, Quebec and Western New York State,
The Globe and Mail has learned.
A sophisticated criminal conspiracy operating in
Buffalo and Toronto has illegally blended several
nl.llion gallons of toxic wastes into gasoline, diesel
and industrial heating fuel, participants in the scheme
and law enforcement sources said.
The Globe and Mail, May 8, 1989
A Toronto newspaper.
Clearly, experience shows that criminal enforcement of
national environmental laws involving international incidents
are, more often than not, a case of an immovable object meeting
an unstoppable force. A country's authority, on the whole, to
enforce its laws or investigate environmental non-compliance
stops at its borders. The environmental harm caused to that
nation, however, may have originated or been facilitated by
events and actions that occurred beyond that country's
jurisdiction.
With the rise of storage, treatment and disposal costs,
there is a perceived incentive to clandestinely dispose of waste
by dumping it on the ground, in the air, or in the water. While
each country tries to deal with such illegal activity in its own
way, increasingly such activity is having an international
effect. This increased international effect results from, among
other things, the illegal transportation of wastes between
countries, and the conveying of such wastes via air and water
currents. Greater coordination and cooperation among countries
in environmental enforcement could, in a very short time, have a
significant impact on deterring the illegal disposal of wastes.
* The author is the Deputy Assistant Administrator for
Criminal Enforcement within the Office of Enforcement. He wishes
to thank Howard Berman, Senior Attorney within the Office of
Criminal Enforcement Counsel, for his significant contribution to
this article. In addition, the author wishes to acknowledge Jim
Vincent of EPA's National Environment Investigations Center for
his contributions from which parts of this paper were drawn. The
views expressed in this Article are solely those of the author;
they do not necessarily reflect the views or policies of the U.S.
Environmental Protection Agency.
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192 INTERNATIONAL ENFORCEMENT WORKSHOP
The consequences of illegal environmental activities know no
boundaries. The perception that developing nations can be used
as a dumping ground hurts not only that country, but also the
world. All countries share a responsibility in limiting
industrialization impacts on the environment in general.
A similar coordinated enforcement response would also be
useful in ensuring that safety standards are met in regarc! to the
transportation of oil on the world's waterways. By establishing
standards for safety and ensuring their enforceability - by
information sharing and coordinated enforcement actions -
countries can force the use of oil tankers in the world market to
be a safer, well run means of transportation.
Criminal and civil enforcement can assist in stemming this
trend of environmental mismanagement on the international level.
In the international arena of environmental laws, the most
certain way to ensure compliance is through criminal enforcement.
Because all enforcement efforts are limited by jurisdiction,
criminal enforcement has an advantage of using international
tools such as INTERPOL, extradition treaties, specific agreements
involving the cooperation of law enforcement agencies among the
various nations, and the trust and kinship experienced by
criminal investigators in expanding United States jurisdiction.
Furthermore, in the international enforcement arena, foreign
nations are very concerned with stopping criminal (either here or
in the foreign jurisdiction) transboundary movement of toxic
substances.1
Domestically, the United States' primary law concerning the
treatment, storage, and disposal of hazardous waste was enacted
in 1976. It was intended to be a tough regulatory scheme with
very severe penalty provisions. The Resource Conservation and
Recovery Act (RCRA) established a cradle-to-grave regulatory
system focused on generators, transporters, and disposers of
hazardous waste. The system is an expensive one for the affected
industries. Recognizing that penalties would have to be
significant and that economic penalties can and often are passed
through to the consumer, stiff criminal penalties were enacted.
Incarceration is the maximum deterrent.
Under the 1984 Hazardous and Solid Waste Amendments to RCRA,
Congress recognized exports of hazardous waste as a significant
issue that EPA must address. Two provisions of this Act, 42
U.S.C. §§ 6928(d)(6) and (e)2, set forth the criminal sanctions
of violating the statutory framework for exports of hazardous
waste.3
Regulations governing the exports of hazardous waste were
promulgated, pursuant to 42 U.S.C. § 6938, on August 8, 1986 and
effective November 8, 1986, and are found in 40 CFR Part 262
Subpart E. Related regulations are found in 40 CFR Parts 260,
261, 263 and 271.
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INTERNATIONAL ENFORCEMENT WORKSHOP 193
42 U.S.C. S 6938: This section establishes the framework
for the exports of hazardous waste. In order to export a
hazardous waste, certain conditions precedent must be satisfied.
The threshold step in the hazardous waste export process is the
notice of intent to export. This notification, filed 60 days
prior to the initiation of the export and valid for a 12 month
period, for which EPA provides the following information:
• (name, address, telephone number, and EPA ID number of the
exporter),
« the consignee (the treatment, storage, disposal facility
in the receiving county (TSD)),
• the type of hazardous waste to be exported, the frequency
of export,
• the estimated total quantity of hazardous waste,
• the points of entry and departure from each foreign county
through which the hazardous waste will pass,
• a description of the means of transportation,
• how it will be contained and how it will be treated,
stored or disposed of in the receiving country,
• the consignees's name and address, and the name of any
transit countries and the appropriate time the hazardous
waste will remain their,
• how it will be handled during its staff. (See 40 CFR Part
262.53).
EPA's Office of International Activities via the State
Department and Embassies, cables this information to the proposed
receiving country. The national government of the proposed
recipient country is asked to consent. If consent is given, a
cable sent to EPA by the United States Embassy in the receiving
country acknowledging the consent and setting forth any
conditions serves as the EPA Acknowledgment of Consent. EPA then
sends this Acknowledgment of Consent to the exporter, who must
attach a copy of it to each export shipment. If the foreign
jurisdiction objects to receiving hazardous waste or withdraws
prior consent, EPA notifies the exporter in writing.
In order to be consistent with RCRA's "cradle to grave"
mandate, exporters are to comply with special manifest
requirements, such as the name of the exporter and the point of
departure from the United States. Like the domestic
requirements, a manifest must accompany all hazardous waste
shipments, with the slight variation in the information contained
there in so as to make it more useful for exports.
Although not statutorily mandated, regulations require
exporters to deposit a copy of the manifest with United States
Customs at the point of departure from the United States. The
primary purpose of this is to provide a "paper trail" in the
event of an international incident. The manifest is then
forwarded to EPA to be used for tracking and exporter profiles,
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194 INTERNATIONAL ENFORCEMENT WORKSHOP
and other purposes.
The transporter, upon completing his role in the export, is
required to send a copy of the signed manifest (containing the
date and place of the departure from the United States) to the
exporter within 45 days from the date it was accepted for
transport. Likewise, within 90 days from the date the hazardous
waste was accepted for initial transport, the consignee irust
confirm, in writing, to the exporter that the hazardous waste was
received. It should be noted that there is no authority to
compel the foreign TSD facility to comply with this provision.
Finally, by March 1 of each calendar year, all exporters are
required to file with EPA an Annual Report. This report must
contain exporter identification information, the calendar year
covered by the report, consignee identification information,
certain details of the hazardous waste exported to each
consignee, and a description of the efforts taken to reduce the
volume and toxicity of the waste generated, and a description of
the changes in volume and toxicity of waste actually achieved
during the past year. This report must be signed and contain a
certification as to its truth and accuracy.
42 U.S.C. S 6938; This section also allows for the United
States and foreign government exports of hazardous waste as long
as that agreement contains requirements similar to that above
and, in addition, enforcement procedures.
42 U.S.C. S 6928(d)(6); This section prohibits the export
of hazardous waste without the consent of the receiving country
or in a manner not in conformation with an international
agreement. The penalty for violating this prohibition is 2 years
in jail and/or $50,000 in fine, footnote [Under 18 U.S.C. § 3571,
the fine may be enhanced to $250,000 for an individual and
$500,000 for an organization, or turn the pecuniary gain to the
defendant]. It should be noted that exporting without the
consent of the receiving country can be interpreted broadly -
exporting a substance different from that stated in the notice or
sending the hazardous waste knowing that it is going to be
disposed of differently from what is stated on the notice changes
the premise under which consent was given.
In addition to the regulations governing exports of
hazardous waste, the United States has signed two international
agreements - one with Mexico and the other with Canada - that
directly deal with this matter. The one
with Mexico was signed November 12, 1986. This agreement
slightly modifies the notification procedures and also covers the
import of hazardous waste into the United States from Mexico and
transit shipments through the United States and Mexico. Special
provisions apply to hazardous waste generated by United states
companies with manufacturing facilities in Mexico.
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INTERNATIONAL ENFORCEMENT WORKSHOP 195
The agreement between the United States and Canada was
signed October 28, 1986, and became effective November 8, 1986.
This agreement also sets forth slightly different requirements
for several aspects of export shipments and, in addition, covers
imports of hazardous waste into the United States from Canada and
transit shipments of waste routed through Canada between two
United States points.
There have been two developments that are in the process of
changing the way the United States deals in transboundary
shipments of hazardous waste. On March 10, 1989, President Bush
announced that he would seek legislative authority to ban exports
of hazardous waste from the United States, except where there is
a bilateral agreement with the receiving country that provides
for the environmentally sound management of the waste. As of
this time, that legislation is under review by the
Administration.
The other event is the 1989 Basel Convention On The Control
Of Transboundary Movement Of Hazardous Wastes And Their Disposal.
In March 1989, negotiations on a global
convention on the transboundary movement of waste were concluded
in Basel, Switzerland under the auspices of the United Nations
Environmental Program. Almost 40 countries have signed the
convention. To date, the United States has not yet signed. The
Convention applies to transboundary movement of wastes defined as
"hazardous" by its terms, as well as to certain "non-hazardous"
waste, including household waste and municipal incinerator ash.
The Convention allows a country to enter into separate bilateral
agreements or arrangements provided "that such agreements or
arrangements do not derogate from the environmentally sound
management of the subject wastes as required by the Convention".
What the Convention provides, from an enforcement view, is
uniformity of baseline requirements for exports. With that
uniformity would come the potential for revelations of non-
compliance.
Enforcement of these laws and regulations involves the close
cooperation of various federal Departments and Agencies including
EPA, Customs Service, the FBI, State Department and the Justice
Department, and the foreign country involved in a particular
export. This cooperation is mandatory for the United States to
have any chance of monitoring compliance across its vast borders
with Mexico, Canada, and its shipping ports. The purpose of the
paperwork requirements is to limit the need for actual
inspections of exports. The best way that this cooperation can
be shown is to discuss the incident involving improperly blended
fuels.
On May 9, 1989, EPA's Office of Criminal Enforcement Counsel
(OCEC) and the National Enforcement Investigations Center (N2IC),
both within the Office of Enforcement and Compliance Monitoring
(OECM), learned of articles appearing in Canadian newspapers
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196 INTERNATIONAL ENFORCEMENT WORKSHOP
alleging criminal exports of PCBs and hazardous waste from
upstate New York to Canada and that organized crime was involved.
Specifically, these articles alleged that over the past four
years, PCBs, solvents, and waste oil have been mixed into fuels
(gasoline, diesel and industrial heating fuel) and sold to
customers in Southern Ontario, Quebec and Western New York State.
One purpose of this alleged scheme is to cheaply dispose of toxic
materials originating here in the United States, inasmuch as the
distributors and blenders could make more money by selling a
diluted product of fuel blended with these PCBs and solvents to
create a chemical "cocktail". Concurrently, the participants
would perpetrate a tax fraud against both Canadian and United
States governments. By paying tax on the smaller amount (the
undi.lut.«d fuel), but selling the larger volume (the diluted
fuel), the perpetrators were avoiding paying the appropriate tax
on the difference between these two amounts. Given the
quantities involved, the tax revenue involved would be
significant.
Canada responded promptly to these allegations by decreasing
the number of ports of entry/exit for such shipments from 170 to
31 and closely monitoring shipments through the 31 permitted
points of entry. The shipments that did cross the border were
closely tracked. Canadian Provincial and Federal Environmental
officials did extensive sampling of current shipments and of
locations to which shipments had been delivered in the 90 days
preceding May 8.
The true picture about these allegations comes to light
through almost a daily exchange of information between those who
deal in environmental enforcement on a high level, and, more
importantly, between those who deal in environmental enforcement
on the staff level. The lesson to be learned is that the best
tool in these situations is fast communications. Enforcement
must be able to talk to enforcement directly. If the purpose is
to act against the environmental harm, diplomacy and protocol,
while having their place, have to be subservient, in the short
term, to the needs of enforcement cooperation, information
exchanges, and assisting in finding the "smoking gun".
While most abuses in this area stem from cost avoidance,
there exists the probability that, due to the large amounts of
cash involved, that waste can be used in laundering drug or other
illegally derived, money. For example, if the normal cost of
disposing of a certain hazardous waste is $500 per ton, but two
people contract to have the waste disposed of at a rate of $3000
per ton, and there is no different disposal method involved, then
$2500 in cash has been "laundered-". That is, what may have been
$2500 in illegally obtained money is now carried on the ledgers
of a firm as legitimate. It would not be difficult to set up
such a scheme involving large sums of money masked as legitimate
cash transactions. Given the large volumes of waste production,
significant amounts of money can be "laundered". In such
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INTERNATIONAL ENFORCEMENT WORKSHOP 197
situations, different agencies must come into play to ensure
enforcement - in the United States it would mean that the Drug
Enforcement Agency and the Internal Revenue Service would join
the enforcement team. Furthermore, while the United States has
certain tracking procedures for bank transactions involving large
sums of money, there are many nations that do not. If these
transactions were to occur in one of those countries, the
difficulty of discovery is notably increased.
Time after time, those who use or affect the storage,
movement, or disposal of wastes try to minimize their costs and
efforts by violating established rules. This activity has market;
effect on many countries, not just the nation where the illegal
activity occurs, either because the wrongdoer traveled across
national boundaries to accomplish this deed, or because currents
below or above the surface carry these poisons across continents.
The ability to gather information in a timely manner is
significant in enforcing each country's environmental laws and
regulations. In addition, the ability to have an international
coordinated enforcement response to a specific or perceived crime
is a well established tool that can easily be applied to the
environmental arena. Each country here has the ability, by
establishing environmental enforcement protocols, to greatly
increase environmental compliance in each nation and on a world-
wide level. Establishing lines of communications between our
enforcement offices would greatly assist in establishing these
goals.
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198 INTERNATIONAL ENFORCEMENT WORKSHOP
Endnotes
1. See Canadian Environmental Enforcement Act, §§ 111 - 333, for
its use of a penal approach in ensuring compliance. For oxarople,
§ 113(b) states that
Every Person who conducts any false or misleading test in
purported compliance with a notice ... is guilty of an
offense and is liable
(o) on summary conviction, to a fine not exceeding
three hundred thousand dollars or to imprisonment for a
term not exceeding six months, or to both,
(p) or on indictment, to a fine not exceeding one
million dollars or to imprisonment for a term not
exceeding three years, or to both.
2. 42 U.S.C. § 6928(d)(6) States
Any person who knowingly exports a hazardous waste
identified or listed under this subchapter (A) without the
consent of the receiving country or, (B) where there exists
an international agreement between the United States and the
government of the receiving country establishing notice,
export, and enforcement procedures for the transportation,
treatment, storage, disposal of hazardous wastes, in a
manner which is not in conformance with such agreements
shall, upon conviction, be subject to a fine of not more
than $50,000 for each day of violation, or imprisonment not
to exceed two years ....
42 U.S.C. § 6928(6) states
Any person who knowingly . . . exports any hazardous waste
. . . who knows at that time that he thereby places another
person in imminent danger of death or serious bodily injury,
shall, upon conviction, be subject to a fine of not more
than $250,000 or imprisonment for not more than fifteen
years, or both. . . .
3. Presently, there are no RCRA restrictions on the export of
solid waste. In addition, PCB exports are regulated under the
Toxic Substances Control Act, which by regulation the Agency has
prohibited, as having imports. Violation of this prohibition is
punishable by up to one year in jail and/or a fine of up to
$25,000 for each day of violation. 15 U.S.C. § 2615(b).
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INTERNATIONAL ENFORCEMENT WORKSHOP 199
NETHERLANDS CASE STUDY IN ENFORCEMENT OF HAZARDOUS WASTE IMPORT/EXPORT
J.R. Bouma and J.J.A. Gerardu
Ministery of Housing, Physical Planning and Environment
Enforcement Division
Postbus 450
2260 MB Leidschendam (The Netherlands)
SUMMARY
Some years ago publicity was given to the fact that hazardous waste was
transported on a large scale from the rich industrialized countries to
the developing countries. It became also clear that this was not happe-
ning occasionally, companies were planning to expand these activities.
Also forced by publicity, treaties have been made between a lot of coun-
tries in order to put an end to these unwanted transports.
The European Community has drawn up directives, which have been included
in the legislation of a lot of member states.
This also happened in the Netherlands. The basic assumption is: In prin-
ciple no export of hazardous waste. In spite of the fact that it is
emphasized nowadays to reduce the development of hazardous waste and to
stimulate re-use and to expand the incinerator capacity, it will take a
lot of time to realize this, in consideration of the fact that a third of
the Dutch hazardous waste is exported.
In order to prevent the export of hazardous waste, it is essential to
control the strict compliance with the rules considering transfrontier
shipments (1).
In the Netherlands a special office (Office for the Enforcement of E.C.-
Directives) has been established within the Ministery of Housing, Physi-
cal Planning and Environment in order to enforce the Regulation.
This office will finally provide work for 18 staff members. The experien-
ces which have been made in the first year of enforcement will be dis-
cussed, as well as the conclusions which could be drawn on behalf of the
development of enforcement activities.
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200 INTERNATIONAL ENFORCEMENT WORKSHOP
1 INTRODUCTION
As a result of reporting and inspection by mainly environmental organiza-
tions, from half of the eigthies it became clear, that intercontinental
transports of hazardous waste took place on a large scale. In particular
the transports of hazardous waste from the rich industrialized countries
to the developing countries were mentioned.
The reason of this kind of transports must be clear. The processing of
these waste substances without negative environmental effects can be very
expensive. The developing countries were not aware of the risks,
therefore they almost didn't have requirements to control the way of
processing. They needed the foreign exchange, which could be earned by
importing hazardous waste on a large scale.
The companies which were involved with this kind of 'trade' could earn a
lot of money. Contrary to the environmental organizations, the authori-
ties in question were hardly aware of these activities. As far as they
knew about this trade, it was not judged and the will and the judicial
possibility to take active measures were lacking.
Thanks to the reporting of the environmental organizations, international
attention was paid to this kind of activities. International Organizati-
ons like the European Community and the United Nations Environment Pro-
gramme have formulated points of view, which were subscribed by lots of
countries. There was a universal will to do something.
As a result, some countries adapted their regulation, in order to take
action against unwished transports of hazardous waste.
It remains to be seen whether this has been succesful or not. A lot of
countries are subscribing to the viewpoints. However, both the will to
act and the implementation organization are still lacking.
An international exchange of information and international co-operation
will be necessary in order to take effective measures. This has hardly
been realized yet.
Environmental organizations could sometimes act more effectively.
Compared with a lot of national authorities they are better informed and
they are co-ordinating their activities. Finally they can take effective
measures by bringing their conclusions to public attention.
Measures will be necessary because companies are still trying to dump
waste substances into developing countries, in order to gain financial
advantage at the cost of the environment; measures will be necessary.
IT CAN NOT BE THAT OTHERS ARE SUFFERING FROM THE REMAINDERS OF OUR
AFFLUENT SOCIETY.
This contribution is giving a picture of the regulation of international
hazardous waste transports from the Dutch point of view.
The Dutch regulation came into being on the basis of an E. C.-directive
pertaining to the import, export and transit of hazardous waste. In addi-
tion, an enforcement organization has been established, which provides
work for 18 staff members. On the basis of experiences made by this
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INTERNATIONAL ENFORCEMENT WORKSHOP
201
enforcement organization, suggestions are made in order to get unwanted
transports of hazardous waste under control.
In order to get a clear understanding of the Dutch circumstances, annex 1
shows the Dutch environmental situation.
2. DEVELOPMENT AND REMOVAL OF HAZARDOUS WASTE IN THE NETHERLANDS
In the Netherlands the companies are producing about 1.000.000 tons of
hazardous waste yearly. Annex 2 shows the complete list of hazardous
waste according to Dutch regulation. About 500.000 tons are processed by
these companies themselves. The remaining 500.000 tons must be processed
by specialized processing companies in- and outside the Netherlands.
Processing can be: burning, dumping, detoxifying and re-using.
As a result of the requirements in order to protect the environment, as
well as geohydrological circumstances (like deep polders, high ground-
water levels) and the limited available space (the Netherlands are one of
the most densely populated countries in the world), processing of this
kind of hazardous waste is very expansive.
Some hundreds of guilders can be earned by processing hazardous waste in
foreign countries. Burning as well as dumping is cheaper outside the
Netherlands. The distance or the costs of the transport do not play an
important part (bulk quantities are transported cheap).
Processing in foreign countries is cheaper, because there are no tight
requirements.
For this reason a considerable part of the Dutch hazardous waste is pro-
cessed in foreign countries. This quantity is increasing slowly and came
to 190.500 tons in 1989. This is almost 40% of the waste that should be
processed by specialized companies. Figure I shows the quantities of
waste which have been exported in 1987, 1988 and 1989 and the way of
processing.
1989
dutnpang
Figure 1: Export of hazardous waste from the Netherlands during the
years 1987-1989
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The destinations of the hazardous waste are:
COUNTRY Tons
Belgium 34.000
Federal Republic of Germany 20.500
Great Britain 17.000
France 27.500
German Democratic Republic 89.500
Others 1.500
100
9O
BO
70
S 60 -
§ 50
5 40
^ 3O -
| 20
c§ 1O
O
BELGC BFO GB FFWXRkK CCM
Export to country of destination ,1987, 1988, 1989
Dumping
Burning
Figure 2: Export to the country of destination in 1987-1989
Figure 2 shows in a diagram the exported quantities to each destination
and the way of processing during the years 1987,1988 and 1989.
burning 29.1 %
physical/chemical 1.9
letal recycling 7.2
destination 2.7 %
dumping 36.1 **,
Figure 3: Removal of exported hazardous waste in 1989
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INTERNATIONAL ENFORCEMENT WORKSHOP 203
Figure 3 shows how the exported hazardous waste has been processed in
1989 (%).
We still have a long way to go, in order to reach the Dutch aim of having
finished the export of hazardous waste in about 1992.
In order to reduce the export, attention should be paid to the reduction
of the development of hazardous waste, re-use, development of incinera-
tors and dumping possibilities for hazardous waste.
In Rotterdam two rotary tumble furnaces are in running, to a small degree
some categories of hazardous waste can be dumped.
Besides, about fifty companies are dealing with storage, treatment and
processing of hazardous waste.
However, it is difficult to develop new processing companies. On the one
hand strong resistance has been felt against these companies, in spite of
the advanced technics in order to protect the environment. On the other
hand the business community is not willing to realize expensive ways to
process hazardous waste, because there are cheaper possibilities in
foreign countries.
Recently a dumping ground for hazardous waste has been finished. There
are advanced plans to build a new incinerator and it is tried to fit
industrial waste dumping grounds for some categories of hazardous waste.
However, it is difficult to realize and it remains to be seen whether
realization of the processing companies can compensate the growing
quantities of hazardous waste following from the open borders within the
European Community in 1992 (freedom of goods, included hazardous waste).
Considering the above-mentioned, it will be clear that the import of
hazardous waste to the Netherlands is limited.
In 1989 about 88.000 tons were imported, 17.500 tons from Belgium, 61.500
tons from the Federal Republic of Germany (in particular polluted
ground). Figure 4 shows how these waste is processed in the Netherlands.
storing 4200 burning 13300
metal recycling 4100
physical/chemical 6100
destination 1700
ground cleaning 59200
Figure 4: Import of hazardous waste into the Netherlands in 1989
(1000 kg)
The transit is considerable, given the fact that the Netherlands are an
important country with regard to transport and transit (50.000 tons/
year).
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INTERNATIONAL ENFORCEMENT WORKSHOP
It is remarkable, that the official statistics do not mention any export
of hazardous waste to the developing countries. Are they not taking place
(anymore) or do we not know about it? A possible export to these coun-
tries pales into insignifance, when compared to the above-mentioned
quantities, possibly within the margin of error of the estimations.
However, we can not be sure that this export will be zero.
Will there be no containers loaded with waste, among the thousands of
containers which are putting in at Rotterdam?
Those who have ever visited such a ship will confirm that it is almost
impossible to control everything.
It is not considered impossible, that large quantities of hazardous waste
are transported under very creative raw material names.
The trade in the so-called secondary raw materials is growing enormously.
It can be asked what is happening with the remainders, is everybody hand-
ling them without negative environmental effects?
3 REGULATIONS CONSIDERING TRANSFRONTIER SHIPMENTS OF HAZARDOUS WASTE IN
EUROPE
As a result of problems, which were caused by dioxin-holding waste after
the explosion in the factory in Seveso, Italy, 1984 the European Communi-
ty made guidelines in order to control the processing and the transfron-
tier shipments of hazardous waste.
This hazardous waste disappeared and was found accidentially in a shed in
the North of France.
These guidelines imply, among other things, that the authorities in ques-
tion should approve the transfrontier shipment of hazardous waste before
the actual transport is taking place. These transports should be notified
(notification of disposal and notification of receipt) and should be
accompanied by special accompanying documents.
Each member state is bound to include these guidelines in national legis-
lation.
Six years later several countries still have not adopted these guide-
lines, in particular France, Spain, Portugal and Greece. Although the
other countries in the European Community did include the European direc-
tives in national legislation, the situation is not as bright as it
should be. Figure 5 shows this situation in a diagram.
EC COUNTRIES
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INTERNATIONAL ENFORCEMENT WORKSHOP 205
Each country has its own definition of waste and hazardous waste. There
is neither an effective implementation organization in each country in
order to approve the transports, nor an enforcement organization in order
to control the performance.
Besides, several regulations are not brought into agreement with each
other. Co-operation and exchange of information and experiences are
minimal.
4 ADAPTATION OF THE REGULATION IN CONNECTION WITH THE TREATY OF BASEL
(THE UNEP-TREATY)
In the beginning of 1989 appointments have been made in Basel about the
transfrentier shipments of hazardous waste. This treaty has been signed
by a lot of countries and the points of view should be incorporated into
national law. It is expected that the European Community will do this by
a regulation which will have direct legal force.
Consultation and approval between the governments should still take place
(each E.C.-memberstate should agree), so it will take a lot of time.
Besides, appointments about the way of checking will be necessary. First
of all, before starting an implementation organization, all these
conditions should be fullfilled.
5 REGULATION ON IMPORT, EXPORT AND TRANSIT OF HAZARDOUS WASTE
The Regulation on import, export and transit of hazardous waste entered
into force on 15 October 1988 (1).
This regulation came into being on the basis of the E.C.-directives per-
taining to the import, export and transit of hazardous waste (2).
The Regulation does not only imply procedures for permission, notifi-
cation and accompanying documents, the competent authorities may also
object to the export as such is in the interest of effective waste pro-
cessing in the own country.
This could stimulate the building of new processing installations,
because use is guaranteed in spite of cheaper processing possibilities
in other countries.
However, (future) neighbourhoods are still opposed to the development of
new installations, besides it is not known for certain if it will be
possible to object to the export in the interest of effective waste pro-
cessing in the own country after 1992.
5.1 Implementation organization for the Regulation
Dutch politicians have emphasized from the beginning, that the Regulation
should not be a "paper tiger".
Implementation should be effective, the testing of the notification for
the intended transports as well as the check on compliance with the Regu-
lation.
In the Netherlands, an implementation organization consisting of three
departments has been established.
* Hazardous Waste Notifications Bureau (BMGA)
This department is responsible for registration and administration of all
notifications and the procedures which the Regulation requires in order
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INTERNATIONAL ENFORCEMENT WORKSHOP
to judge the applications. This part of the implementation has been put
out to contract.
In 1989 about 1450 notifications of intended shipments (import or export)
and 25.000 notification forms (notification of disposal and notification
of receipt) have been handled by this department. It should be mentioned,
that one notification of intended import/export can be used for a lot of
transports.
These activities provide work for five staff members.
I
1.quarter 2 quarter 3 quarter 4 quarter
Figure 6: Proportion between notification of disposal and receipt in 1989
Figure 6 gives in a diagram the number of notifications of import, export
and transit in 1989.
* Policy Department Waste Products (BA)
This department is responsible for the decisions whether to allow a
transfrentier shipment of hazardous waste.
This department is part of the Chemical Waste Section of the Ministery of
Housing, Physical Planning and Environment (VROM). In 1989 this depart-
ment has prepared 868 decisions, of which 100 negative.
These activities provide work for three staff members.
* Office for the Enforcement of E.C.-Directives (BHER)
This department is responsible for inspection and control on trans-
frontier shipments of hazardous waste. This office forms a part of the
Main Department Enforcement of Environmental Legislation, part of the
Main Environmental Inspection, Directorate-General Environment.
After the initial period, this office will employ 18 staff members.
5.2 Enforcement of the Regulation on import, export and transit of
hazardous waste
The Office for the Enforcement of E.C.-Directives will finally provide
work for 18 staff members, of whom 15 are/have been trained especially
for control tasks and direct support of the control tasks (solicitor and
data analyst).
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INTERNATIONAL ENFORCEMENT WORKSHOP 207
This office has been established during 1989 and it is almost at full
strength now.
For the purpose of the control tasks, staff members have been engaged
consciously from the police organization, the customs and the Corps
Inspectors Hazardous Waste.
These people, with a clear inspection background, have attended special
training courses in the field of chemistry, safety, environmental legis-
lation and behaviourial skills.
They are checking companies, which are active in the field of trans-
frontier shipments of hazardous waste (producers, carriers, agents and
processing companies), making and maintaining contacts, collecting infor-
mation from other control organizations (police, customs, environmental
control and investigation services), checking the transports on the road
or at the border at random and taking action as a result of reportings
about potential illegal transports.
In particular the last mentioned appears to be very effective.
In connection with the specific character of the companies being active
with waste substances, the necessary knowledge and experience as well as
the necessity to show results in the short term (politicians and public
are interested and want to know this), the choice has been made
consciously to commission a special, well-educated and trained group
with this task, instead of bringing this task under the control of
another organization in the field of environmental legislation.
5.3 Instruments on behalf of enforcement of the Regulation
In case of infringements, it is necessary to act directly, effectively
and clearly.
For this purpose the Dutch Regulation gives the following judicial in-
struments: In addition to information and warning, it is possible to take
administrative, criminal and civil action.
Experience has shown that criminal and civil action can be effective,
however, in general the effects are indirect.
It appears to be most effective to stop transports (if necessary by
persuasion) and to forbid transfrontier shipments, however, it is not
always possible to give a judicial basis to these actions.
Strongly missed is the direct competence to stop all transports, which do
not comply with the Regulation, to forbid transfrontier shipments or to
suspend licenses in the case of regular nonobservance of the Regulation.
5.4 Difficulties of enforcement
In the Netherlands we have both the judicial possibility to take action
against unwanted transports of hazardous waste, and an effective enforce-
ment organization in order to control observance.
Nevertheless, as a result of some problems the desired result has not
been achieved completely.
This is partly due to the fact that the use of the Regulation has brought
some deficiencies to light, on the other hand problems are caused by the
fact that some countries even do not have a regulation. When they have
regulations, the active performance is often lacking and there is no
co-ordination (differences in definition, among other things).
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208 INTERNATIONAL ENFORCEMENT WORKSHOP
The lack of transfrontier competences for control officials is a large
bottleneck, as well as the lack of an international reporting and
co-ordination centre.
The above-mentioned is felt in particular in the case of transports of
hazardous waste to developing countries and transports of the so-called
secondary raw materials.
The insight into transports of (classic) hazardous waste seems to be
quite complete.
The system is getting incredible however, as a result of the fact that
transports to developing countries are hardly found anymore.
Environmental organizations are better informed (3) and can better
acquaint themselves with the truth.
Unfortunately it should be mentioned that correcting by official means
will take a lot of time.
Would it not be possible for the active control organizations to come to
an (informal) co-operation and exchange of information.
Within four countries (Federal Republic of Germany, Belgium, Luxembourg
and the Netherlands) a consultative body has been established.
This example should be copied on a large scale.
6 EXAMPLES OF ENFORCEMENT
Annex 3 to 6 give a description of four cases which have been found in
the Netherlands during the past period. Besides the above-mentioned
information on the working of the E.G.-Regulation, some important
conclusions are:
Several transactions on paper can complicate the control by
authorities.
Re-use is hard to define.
In order to make enforcement effective, contacts between authorities
should become more effective.
- It still is lucrative to transport waste of little value from great
distances.
An authority can not always take legal correcting measures, without
paying the costs itself.
The list of hazardous waste does not have to be the same for every
country.
It is not clear what kind of effects 1992 will have on the trans-
frontier shipments within the E.G.
7 CONCLUSIONS
The above-mentioned describes the Dutch situation concerning the enforce-
ment of the legislation in regard to import, export and transit of hazar-
dous waste.
The Netherlands have included the E.C.-directive in national legislation.
An enforcement organization has been established, which provides work for
18 staff members. Besides the necessity to reduce the development of
hazardous waste (preventive), it is necessary to realize enough proces-
sing possibilities within the Netherlands.
The enforcement organization has examined a large quantity enforcement
cases.
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INTERNATIONAL ENFORCEMENT WORKSHOP 209
In conclusion we can say that even though this organization works very
succesfully, it will be necessary to fill in some prior conditions. In
particular the co-operation with other public bodies is important, like
the customs, the police and the Corps Inspectors Hazardous Waste.
There is uncertainty about the enforcement possibilities after 1992, when
the internal borders within the European Community will disappear.
8 REFERENCES
1. Regulation on import, export and transit of hazardous waste, Ministry
of Housing, Physical Planning and Environment, 1988, The Hague.
2. E.G.-richtlijn betreffende de afgewerkte olie, afvalstoffen, grens-
overschrijdende overbrenging van gevaarlijke afvalstoffen.
Publicatiebladen van de Europese Gemeenschappen o.a. nr. L 194/31, L
194/47, L 108/41, L 326/31, L 272/1, L 181/13, Europese Gemeenschap,
Wetstraat, Brussel.
3. Greenpeace, The International Trade in Wastes, A Greenpeace Inventory
by Jim Valette, Washington, U.S., 1988.
4. Jaaroverzicht 1989, In-, uit- en doorvoer van gevaarlijke afvalstof-
fen, Directoraat-Generaal Milieubeheer, maart 1990 Leidschendam
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INTERNATIONAL ENFORCEMENT WORKSHOP
flNNEX 1, p.l
Brief outline of the Netherlands and the environment
The Netherlands are a small country with a surface area of about 37.000
km2.
About 15 million people live here and they have about 5 million cars.
Besides there are some 93 million chickens, 15 million pigs, 5 million
cattle, 1 million sheep, 1 million turkeys and half a million ducks.
Besides, there are all industrial activities, which can cause
considerable pollution as well.
In the Netherlands the implementation of Environmental legislation is
highly decentralized. The levels of government are as follows:
14 ministries
12 provinces
50 water(management)boards
700 municipalities
60 intermunicipal groups
23 police districts
16 districts of the Public Prosecutor and railway police, Ministry of
Transport, Customs, fire brigade, Labour Inspection.
Through the years a large quantity of environmental regulations came into
being.
This environmental legislation and the bodies who are responsible for
implementation are given.
Environmental Legislation
Act
Nuisance act
Nuclear energy act
Pesticides act
Surface waters protection Act
Air pollution act
Sea water protection Act
Chemical waste act
Waste disposal act
Noise abatement act
General environment
Provisions act
Soil sanitation act
Soil protection act
Toxic substances Act
Environmental Impact
Statement act
year
1952
1962
1962
1970
1972
1975
1978
1979
1979
1980
1982
1987
1987
1987
imp
m
c
c
c,w
P
c
c
P
p,m
p,m
P
cpm
c
cpm
imp = implementation
c = central government
p = provincial level
m = municipal level
w = waterboards
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INTERNATIONAL ENFORCEMENT WORKSHOP 211
flNNEX 1, p.2
The organization of the environmental policy is broadly divided among the
different public bodies.
Environmental policy development at central government
* Ministry VROM (Housing, Physical Planning, Environment)
air, waste, soil, noise, radiation, risk
coordination, standards, enforcement
* Ministry Transportation + Water Works
water quality management
transport risks
* Ministry Agriculture + Fishery
nature conservation
agricultural quality management
* Ministry Economic Affairs
mining activities
The other public bodies are responsible as follows:
* Provinces
Licensing and control major polluting installations (± 2000)
Regional physical planning
Coordination rehabilitation programmes (soil, noise, water, air,
city renewal)
* Municipalities (700)
Licensing and control small/medium scale pollution
Physical planning/city renewal
Collection, recycling solid waste
Sewage systems
* Water management boards (50)
Polder and inland water control
Quality surface waters (inland)
* Environmental inspectorate
Supervision enforcement environmental policies
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INTERNATIONAL ENFORCEMENT WORKSHOP
ANNEX 1, p.3
The organization of the Inspectorate of the Environment is as given in
the following diagram:
Minister
Housing,
Planning,
Environment
Directorate
General
Environment
Directorate
General
Housing
Inspector-General
Deputy
Policy
Directorates
9 Regional
Inspectorates
Emissions
Registration
With the nine Regional Inspectorates and the Main Department Enforcement
Environmental Legislation, it is possible to come to an optimal implemen-
tation of the enforcement of environmental legislation.
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INTERNATIONAL ENFORCEMENT WORKSHOP 213
ANNEX 2, p.l
LIST OF HAZARDOUS WASTES IN THE NETHERLANDS
1. Wastes, including objects which have reached the waste stage, which
by virtue of the Substances and Processes Decree under the Chemical
Waste Act (Bulletin of Acts, Orders and Decrees 1977, 435) are deemed
to be chemical waste on the grounds of the concentration of one or
more of the following substances in those wastes:
Class A; 50 mg/kg
- antimony and its compounds
- arsenic and its compounds
- beryllium and its compounds
- cadmium and its compounds
- cadmium and its compounds
- chromium VI and its compounds
- mercury and its compounds
- selenium and its compounds
- tellerium and its compounds
- thallium and its compounds
- inorganic cyanocompounds (cyanides)
- metal carbonyls
- aromatic polycyclic compounds
- halogenated polycyclic aromatics, such as polychlorinated
biphenyls, polychlorinated terphenyls and their derivates.
Class B: 5000 mg/kg
- copper compouds
- lead compounds
- organic halogen compounds
- organic fluorine compounds
- organic chlorine compounds
- organic bromine compounds
- organic iodine compounds
- organic phosphorus compounds
- organic peroxides
- isocyanates
- phenol and phenolic compounds
- asbestos (dust and fiber)
- lead.
Class C: 20.000 mg/kg
- in organic peroxides
- chlorates.
2. Chlorinated and organic solvents which have entered the waste stage,
unless they are being regenerated by meand of distillation for the
purpose for which they were orginally intended, provided:
- a written contractual agreement can be submitted which demonstra-
tes that the substances are being distilled, and
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214 INTERNATIONAL ENFORCEMENT WORKSHOP
ANNEX 2, p.2
- the concentration in the substances of halogenated polycyclic
aromatics, such as polychlorinated biphenyls, polychlorinated
terphenyls and their derivates, is less than 50 mg/kg.
3. Spent mineral lubricating and system oil wich, on the grounds of the
concentration of polychlorinated biphenyls or the concentration of
organic halogen compounds, is regarded as chemical waste in the sense
of the Chemical Waste Act by virtue of section 2a of the Substances
and Processes Decree under the Chemical Waste Act.
4. Residues of pesticides and medicines.
5. Waste containing ether in concentrations of 50,000 mg/kg or greater
of the dry substance content of the waste.
6. Waste produces by chemical processes in research or educational labo-
ratories .
7. Acids and base substances which are used in the treatment of metal
surfaces and which have reached the waste stage, containing concen-
trations of the dry substance content of the waste of
- 50,000 mg/kg or greater of inorganic acids, or
- 50,000 mg/kg or greater of oxides or hydroxides, with the excepti-
on of those of: hydrogen, carbon, silicon, iron, aluminium, tita-
nium, manganese and magnesium.
8. Fly-ash and flue gas cleaning residues from incinerators for house-
hold waste or for chemical of non-chemical industrial waste.
9. Shredder waste.
10. Polluted blasting grit.
11. Polluted soil.
12. Dredging spoil except for dredging spoil which is dumped into the
sea.
13. Batteries and car batteries.
14. Construction and demolition waste containing concentrations of non-
bound asbestos (dust and fiber) of 5000 mg/kg ore more.
15. Waste produced duringthe demolition of industrial installations
which are part of ovens and furnaces, excepting gas-fired boilers.
Non-ferrous metals wastes
Non-ferrous metals wastes are designated as:
solid wastes containing the following metals of metal compounds:
1. Arsenic or its compounds
2. Mercury or its compounds
3. Cadmium or its compounds
4. Thallium or its compounds
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INTERNATIONAL ENFORCEMENT WORKSHOP 215
ANNEX 2, p.3
5. Beryllium or its compounds
6. Lead or its compounds
7. Antimony or its compounds
8. Selenium or its compounds
9. Telluriom or its compounds
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216 INTERNATIONAL ENFORCEMENT WORKSHOP
ANNEX 3, p.l
Case 1
Transport of waste substances containing zinc from Europe to South-
America.
Company X made a contract with the South-American Company Y, concerning
delivery of materials containing zinc and copper. Company Y should
produce micro-elements in order to fertilize agricultural land. These
micro-elements could be obtained from waste which is containing copper
and zinc, according to the wet-chemical procedure.
The English company X asks Dutch company Z to deliver these materials.
The Dutch company buys waste containing zinc from the steel producing
Danish company A and the Belgium company B and slag containing copper
from the Italian company C.
All substances should be transported to Rotterdam, from where they will
be transported to South-America, after being mixed.
The Dutch company buys the materials at minimal prices, sometimes the
delivering companies even have to pay themselves in order to get rid of
their waste.
These materials are being sold at lucrative prices to the South-American
company.
The first transport can leave the Dutch port without problems.
The control authority for the transfrontier shipments of hazardous waste
has been informed. The ships' manifest is talking about zinc ore. Samples
have been taken in order to analyze the materials.
After analyzing it became clear that the materials were not only contai-
ning zinc and copper, but relatively high concentrations of lead, cadmium
and other heavy metals as well. Processing in Europe is not expected to
be possible, due to the very low concentrations of zinc and copper.
Concerning the second transport, the authorities are asking for further
details, in order to determine whether these materials should be
considered as hazardous waste and whether the materials will be re-used.
If such is the case, the transport only has to be reported, approval is
not necessary, according to the regulation. In this case, there is no
reason to stop the transport.
Greenpeace has been informed about the second transport and is trying to
prevent the loading, by public happenings. The liner can not wait and is
leaving without the cargo.
At the same time, the first transport is arriving in South-America.
The local environmental organisations have been well informed and are
carrying on a campaign against this transport, together with the striking
labourers.
Besides, a judicial decision is asked. Therefore, the South-American
company Y refuses to accept the waste. As a result, the ship is returning
to the Netherlands.
The Dutch authorities are confronted with about 1.000 tons waste
containing zinc in the port and a ship which is returning to the Nether-
lands with another 1.000 tons, no possibility to get rid of the materials
in the short term and possible soil pollution which is caused by careless
storage. A civil action is started in order to keep the waste out of the
Netherlands and to send it back to the first owner.
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INTERNATIONAL ENFORCEMENT WORKSHOP 217
ANNEX 3, p.2
Partly due to actions in South-America and information given by the local
Dutch Embassy, doubts have arisen about the actual re-using of the
materials. It is not impossible that a limited part will really be re-
used, but it is not sure what will happen to the other part (70%).
A summary proceedings decision orders that the Dutch company Z should
transport the materials back to Denmark, Belgium and Italy within two
weeks, in case of non-compliance the fine will be 100.000 guilders a day.
Frantic efforts are made to realize this decision. The producers refuse
to accept the waste and the concerning authorities refuse to force them.
As a result, the imposed fine can not be implemented.
This happened almost one year ago, the materials are still in the Nether-
lands and there are no prospects in order to process the materials in a
safe way. Even when this would be possible, nobody is willing to accept
this waste because of the publicity given to this case.
Besides, company Z should pay a lot of money, instead of making a profit.
Anyway, the judicial procedures which have been started are continued.
The lawyer of the Dutch company gives his opinion:
The English company X should deliver 2000 tons zinc-residue.
The Dutch company Z should look for the right materials, at the request
of the English company X. The Italian company C could deliver the waste,
which has been transported to Rotterdam on behalf of the English company
X. Here the materials are mixed with zinc-residue from the Danish
company A, by order of the English company X.
The South-American company Y would receive the waste in Rotterdam, aiming
to transport it to South-America.
The second transport has been resulted as well by mixing materials coming
from foreign suppliers, through the agency of the Dutch company Z.
The lawyers of company Z are using the above-mentioned in order to demon-
strate that they have no responsibility. In their opinion the English
company X and the European companies A,D and C and the Brasilian company
Y are responsible.
The Dutch company has only acted by order of the English company X. The
contacts with the several authorities and the search for solutions were
fully voluntary, without any obligation or responsibility.
Besides, it was a matter of re-using in South-America. The South-American
company should have all necessary licences and the remainders should be
processed without negative environmental effects. This was confirmed by
the statement of a professor, who made an investigation in South-America
at the request of the Dutch company.
The materials should be considered as positive valued raw materials
instead of hazardous waste.
Anyway, this explanation does not explain neither why the South-American
judge imposed a ban on the acceptation, nor why the South-American
company did not want to accept their own materials.
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ANNEX 3, p.3
Furthermore it would be a matter of transit instead of import followed by
export, in that case it would be impossible for the Dutch authorities to
take action. The question is however, if this transport can still be
considered as transit. The waste has not been accepted by the South-
american company, as a result it is returned to the Netherlands.
What can we learn from this?
Activities can be made untransparent and unverifiable for the authorities
in question by transactions on paper.
The fact that a substance has a positive value, and will be re-used
(partly), does not imply a safe way of processing.
It is really difficult to get an insight in what is going on in foreign
countries. Formal contacts between authorities are often to slowly to be
effective.
In such cases emotions are playing an important role.
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ANNEX 4
Case 2
The car-shredder in Boston does not function well. The released non-ferro
fraction has been polluted (till 70%) with laquer, plastics, rubber, wood
etc. Investigation has showed the harmfulness for the environment, caused
by the extraction.
Therefore the materials are considered as hazardous waste under the Dutch
Regulation.
The company in Boston sells these materials to a Dutch company, which has
an installation to extract the non-ferro metals. Transport goes via
Canada and Belgium. At the Dutch-Belgium border it is found out that the
necessary approval is lacking (the materials are considered as hazardous
waste), as a result the transport is stopped.
Considering the low (possible even negative) value, it is impossible to
return the materials to the United States.
What can we learn from this?
Apparently it is profitable to transport very low-valued materials from a
great distance as well.
It is difficult for both companies and authorities that there is no
unanimity in the several countries about the definition of hazardous
waste.
Even when you have the right to take correcting measures, execution is
often only possible when the authorities are paying the costs.
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ANNEX 5
Case 3
An Italian company collects in Italy all kinds of polluted solvents,
dumps them in large containers and transports this shipment to England,
accompanied by all necessary documents. No problems, untill liquid is
leaking out of a container, polluting the soil at a railway emplacement
in the Netherlands.
On inspection it appeared that the soil has been polluted with PCB's,
which has obviously been caused by the waste substances.
However, this has not been filled in on the documents, so the authorities
did not know about it.
The Italian company did not report, because the Italian limit concerning
PCB's (lOOOmg/kg) has not been exceeded. However, the Dutch limit is 50
mg/kg, the English limit is 100 mg/kg.
England is informed and decides immediately to forbid all waste coming
from this Italian company and to return all materials which have not been
processed yet.
Clear action, with far-reaching consequences.
The board of directors, accompanied by Italian experts travels all over
Europe to settle the dispute.
All goods coming from Italy are staying in Rotterdam, all waste substan-
ces coming from England are returned to Rotterdam.
The Dutch authority orders to return these waste substances to Italy.
However, the Italian authorities refuse to accept the import.
As a result, large quantities of hazardous waste have been stored in
Rotterdam, with possible negative effects for the environment.
After many weeks, all procedures have been finished, so the waste can
return to Italy.
What can we learn from this:
The use of different definitions is very difficult.
Vigour action should be accompanied by consultation with other authori-
ties.
The forms do not always show reality.
The reporting system gives only an insight into legal actions. Tips and
real inspection are necessary to show illegal activities as well.
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ANNEX 6
Case 4
The owner of a Dutch company has an unemployed cousin, who likes to have
an additional income. He is sent to Germany, where he should collect
batteries from jewelers.
Regarding the Regulation, batteries are considered as hazardous waste in
the Netherlands.
On a fridaynight the cousins' caravan is stopped in a routine customs
action.
It turned out that he has 400 kg of batteries in the boot, without the
necessary accompanying documents.
The control instantion is informed and an official report has been made.
Transfrentier shipment is not allowed.
The car goes back to Germany and returns to the Netherlands at another
border crossing.
The batteries are graded in the Netherlands and sold to England.
Silver oxide batteries cost a lot of money.
The public prosecutor comes to a compliance of 600 guilders with the
company in question.
What can we learn from this:
Open borders in the European Community will complicate the control. How
could we have discovered the above-mentioned transport?
It is very difficult to discover small quantities of hazardous waste.
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INTERNATIONAL ENFORCEMENT WORKSHOP 223
WASTE MOVEMENTS: EC AND OUTSIDE
C.H.V. deVilleneuve
Commission of the Kuropean Communities
200 Rue de Laloi
B-1040 BRUSSEL
1. The waste policy of the Community
Waste policy was one of the first fields of action of the Community relating to the
environment. As early as 1975, two Directives were established by the Council:
75/439/EEC on waste oils (1), and 75/442/EEC on wastes (2), the latter creating
general rules to be observed by those dealing with wastes: producers, holders,
carriers, disposal operators. They were closely followed by two other Directives,
dealing in a more specialised way with specific waste categories offering particular
threats to the environment: 76/403/EEC concerning PCB's and PCT's (3), and
78/319/EEC on toxic and dangerous wastes (4). Inter alia, these Directives submit
disposal of the waste to authorization by the public authorities of the Member
States. Uncontroled discharge is strictly forbidden, on the producer's site or
elsewhere. Disposal plans must be established, and carriers of toxic and dangerous
wastes are to be made subject to regular control by the public authorities. This
relatively early interest of the EEC in waste management - the First
Environmental Action Programme only dating back to 1973 - can not be considered
to be a coincidence. Scarcely anywhere does the interrelation between environment
and common market present itself as clearly as in the waste management field. As a
matter of fact, waste disposal has become a very active source of industrial activity.
Treatment, incineration, transport on the one hand; recovery, re-use and recycling
on the other hand. Community-wide legislation in this field therefore may be
considered to be clearly in the interest of both those operators in these branches of
industry who are acting in good faith and the environment, even if the accents put
are not always the same on both sides. The waste management policy of the
Community, is very transparent, and may be said to be directly based on the EEC
Treaty itself since the coming into force of the Single European Act on 1 July 1987.
This policy has recently been stated in the Commission's "Community strategy
paper for waste management" (5) and was subsequently endorsed by the
Environment Council of 22 March by means of a Resolution (not yet published).
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Firstly: the creation of wastes should be prevented, if possible (prevention being the
first principle of Community action in the field of the environment, according to
article 130R, paragraph 2, of the Treaty). Thus, the development of clean
technologies and of clean products is being stimulated actively by the Commission.
Secondly: existing wastes should be re-used or recycled as much as possible, such as
to limit to the utmost the burden on the environment caused by wastes. In
consequence, the Commission also stimulates recovery, re-use and recycling.
Thirdly: the wastes that nevertheless continue to be created will have to be disposed
of in an environmentally sound way. This means foremost, of course, that adequate
disposal facilities should be created. Preferably, to be sure, as near as possible to the
place of generation. But we must recognize that even if environmentally sound
disposal is technically possible, it often is not feasible on the spot, be it for
economical or for ecological reasons, and a too large capacity for disposal might
serve as a disincentive for prevention and recycling.
Fourthly, waste to be landfilled should be reduced to the utmost possible by pre-
treatment (incineration, physico-chemical treatment etc) before, in order to prevent
them from constituting the "burden of the future".
Finally, very important: disposal facilities, as well as the shipment of wastes from
the producer to the disposal faclity, ought to be kept under close scrutiny by the
public authorities.
To be sure, we continue to speak of "wastes" in case of materials being technically
apt for recycling or re-use, as long as their destination is not absolutely sure.
Indeed, wastes may well be re-usable or recyclable without ever being re-used or
recycled; for instance, if their market value is not competitive comparing to that of
raw materials. Therefore, until the recycling or re-use of the wastes in question is
fully ensured (which amounts to the moment the wastes have reached their
destination), they will have to be considered being wastes.
If not, a flaw in the legislation would exist.
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The principles on which the EEC waste management policy are based may thus be
resumed as follows:
1. The creation of waste has to be prevented;
2. Unavoidable wastes should be recycled or re-used if possible;
3. Disposal and transport of wastes can only be allowed if taking place in an
environmentally sound way;
4. The existence of wastes should be controlled from cradle to grave;
5. Movements of wastes within the Community should not be made subject
to quantitative restrictions to export or import or to measures having
equivalent effect.
The foreseen internal market of course is a very forceful argument for the last
principle stated just now. The removal of internal barriers does not match with
Member States following a "neo-protectionistic course" in this field. Yet, quite a few
of them indeed appear rather inclined to follow a policy of closing their frontiers for
waste movements.
Nevertheless, let us imagine such a policy being adopted within the Community.
This would mean, in fact that each Member State would have to create facilities for
all wastes produced on its own territory.
Now, we have to recognize that certain types of waste need highly advanced
disposal facilities; and that not all Member States have the size, the physical
characteristics and the industrial infrastructre that enable them to have their own
highly specialized disposal facilities for all categories of waste they produce. A
number of their disposal facilities not being able to work in an economically sound
way, the authorities may have to sustain them, thus creating a political
involvement in the management of the enterprise which conflicts with the distance
needed for effective government control, while at the same time the "polluter pays
principle" is being affected. The alternative, of course, would be to make life
impossible for some industrial activities through a lack of outlet for their waste,
though meanwhile such activities can continue to take place without any trouble at
the other side of the frontier. Thus, "environmental protectionism" of one Member
State in the waste management field would cause the waste burden in other
Member States to become much heavier, while at the same time creating unequal
conditions of competition. It would be much better, in such cases, for Member States
to share activities and disposal facilities where appropriate, in order to attain
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Community-wide a higher standard of environmental protection, in stead of
working towards a limited number of clean islands amidst a polluted, but
industrially more competitive surrounding.
2. Directive 84/631/EEC, or the "Post-Seveso-directive"
In the little northern italian locality of Seveso, the soil around a chemical factory
had been contaminated most seriously with dioxines. The consequences of this
contamination for public health in the surroundings appeared to be disastrous. A
Directive on major accident hazards of certain industrial activities (82/501/EEC) (6)
was established by the EC Council as a reaction to this calamity.
But the Seveso incident did not end right there. A number of barrels with dioxine-
containing wastes from Seveso were carried abroad, and suddenly disappeared
without leaving any trace. More than half a year later, however, some suspect
looking barrels were found in France, and identified as being those same Seveso
barrels.
The public outcry occasioned by this discovery was huge, international and well-
founded. Politicians felt something ought to be done, and within a short period, a
Directive was drafted in Brussels, aiming at guaranteeing a cradle-to-grave control
for hazardous wastes passing frontiers within the Community.
This Directive was adopted by the EC Council on 6 december 1984 under number
84/631/EEC (7). It was modified in 1986 (directive 86/279/EEC) (8) in order to be
equally applicable to movements of hazardous wastes leaving the Community. The
annexes of the Directive have thrice been adapted to technical (and other) progress
by the Commission (9). Familiarly, the Directive continues to be called the "Post-
Seveso-directive".
In order to prevent misunderstandings, I want to insert here a remark on the legal
EC terminology. An EEC-Directive is not what it suggests to be at first reading:
some kind of advice given by the EEC-institutions to the Member States; it is a
legal act with a clear-cut binding character for the Member States. It leaves them,
to be sure, the liberty to choose the means for attaining the common purpose, but
they have to elaborate their legislation within a time limit fixed by the directive
itself. In case a Directive is sufficiently precise in establishing rules that confer
rights on the citizens vis-a-vis the Member States, such provisions are deemed by
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the Court of Justice of the EC to be directly enforceable by the national courts, if the
time limits have elapsed without implementation having taken place.
The Post-Seveso-Directive indeed does not leave much of a margin of appreciation to
the Member States. However, the Council refused to follow the Commission's
proposal to have it entitled a Regulation (which would have been directly binding
on and conferring rights upon the citizens from the moment of its coming into force,
without necessitating an intervention by the national legislative machineries).
This refusal later proved to have complicated very much the implementation of the
Directive by the Member States, as we will see.
The supervision and control system instituted by the Post-Seveso-Directive can be
roughly described by the following ten characteristics:
1. All hazardous wastes passing the frontier of a Member State have to be traceable
from the moment they left the producer to the moment of their arrival at the
disposal facility. This control is being realised through notification by means of a
uniform shipment document. This document, or copies of it, is to be sent to the
competent authorities of all countries concerned by the shipment (be they
Member States or not).
2. The holder of the wastes gives exact information on the document or its Annexes
concerning the source and composition of the wastes; the identity of the
producer(s); the route of the shipment; the measures to be taken to ensure safe
transport; and the contractual agreement with the consignee of the wastes. This
last person must possess adequate technical capacity for the disposal of the
wastes in question under conditions presenting no danger to human health and
the environment.
3. No shipment can be undertaken without the prior written consent of the
competent authority of the Member State of destination, given on the document
itself ("the aclnowledgment of receipt"). Even if this authority is formally
obliged to react within a month, the non-observance of this time limit does not
authorize the shipment to take place.
4. The competent authorities of the country from which the shipment originates
may raise objections against it within 20 days after receipt of the notification on
the grounds that it adversily affects the implementation of a waste disposal
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plan, or that it conflicts with obligations resulting from previously concluded
international agreements on the same subject. But after expiry of these 20 days
without objections having been raised, the shipment may proceed.
5. The competent authorities of the countries of transit and of dispatch may within
15 days lay down conditions in respect of the shipment. These conditions
however are not allowed to be more strict than those laid down in respect of
similar shipments taking place entirely within the country in question. After
expiry of these 15 days without any condition having been imposed, the
shipment may proceed.
6. A copy of the document has to accompany the wastes during the entire shipment,
and must be signed by all its respective carriers.
7. upon receipt of the wastes, the consignee shall inform the competent authorities
of all countries concerned by means of a copy of the shipment document.
8. In case of export from the Community, the acknowledgment of receipt is being
given in principle by the authority of the country of dispatch. In case of transit
through the Community, this is being done by the authority of the last Member
State of transit. In both cases, this authority has to verify the information given
by the holder as to the environmental soundness of disposal, as well as the
existence of prior written consent to the shipment by the country of destination.
These dispositions are aimed foremost at protecting the developing countries.
9. In case of several similar shipments taking place from the same holder to the
same consignee via the same customs offices, one notification per annum will
suffice. But each shipment has to be accompanied by a copy of the shipment
document.
10.The procedure is applicable to shipments of all wastes being considred to be toxic
and dangerous by the aforementioned directive 78/319, with the exception of
solvents, and to PCB's and PCT's.
A simplified procedure may be followed for wastes from non-ferrous metals
intended for re-use, regeneration or recycling: only the Member State of
destination receives a notifiacation, and the possibility to raise objections or to
impose conditions is not foreseen.
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Other wastes intended for re-use, regeneration or recycling have to follow the
normal procedure.
For more details about the rules laid down in the Post-Seveso-Directive I refer to its
text. I just want to mention that the international rules on transport of dangerous
goods and the directive are complementary to each other.
3. The implementation and application of the Directive
In a burst of boundless optimism, the Council - put under pressure by public
opinion, to be sure - fixed the time limit for implementing the Directive on 1
October 1985 (less than a year after its adoption!), and that for its modification on 1
January 1987 (scarcely half a year after its adoption). Of course, these limits were
unattainable. As I said earlier, the Directive does not leave much room for separate
Member State policies. Nevertheless, its implementation into Member State
legislation proved to be particularly difficult.
On 1 January 1987, only the FRG had implemented the original Directive, and not a
single Member State had implemented its modification. Only in august 1987 did the
first complete legislations to this effect come into force: those of Belgium and
Denmark. Other countries intimated they met difficulties that impeded them from
performing their duties.
Although belated implementing of EC legislation is nothing new, certainly in the
environmental field, in this particular case it proved to be particularly
embarassing. Indeed, as the Directive usually deals with shipments concerning
more than one Member State, its application presupposes the cooperation of all of
them. Implementation by one country does not solve much, as all countries
concerned by one shipment will have to use the same shipment document, to
observe the same time limits, etc. etc. Strange as it may seem, the retardation thus
only causes further delays, as several Member States were waiting for each other to
implement before doing anything themselves, while those who had implemented
became increasingly frustrated by the lack of cooperation from authorities of other
Member States.
Which were the impediments that hampered implementation? Different reasons
were invoked. Among them of course some often heard arguments like the intricate
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internal legislative process, the internal distribution of competences, and
conflicting policy priorities. None of these are valid, by the way, as the Council did
legally bind the national governaments and even fixed time limits much more
stringent han usual. Note also that these decisions were taken unanimously, and
thus supposed to be backed by all governments of the Member States!.
To be sure, the implementation of this Directive - which should have been a
Regulation, as governmental officials now generally agree upon! - was far from
being an easy task. While on Community level the construction was more or less
transparent, the Member States had to elaborate different sets of rules for import,
export and transit movements. As a result, their legislations tended to become
intricate and hardly accessible.
Another reason, invoked by some Member States, was the alleged vagueness of the
definitons of "wastes" and "Hazardous wastes". To be sure, Directive 78/319 leaves
it to the Member States to determine the quantities and concentrations above which
the listed wastes are deemed to be hazardous. But this problem already dated back
from 1978, and, was perfectly well known when the Directive was adopted. Still
another reason for the inertia of some Member States was that within the OECD,
an agreement was being prepared on the same subject, aiming besides at developing
a new definition of the concept of hazardous wastes. The OECD system would in due
time most certainly have led to an adaptation of the Post-Seveso-Directive; maybe
some countries even would have preferred to start all at once with a finally accepted
OECD-system, leaving aside the Directive...
Anyhow, the Commission was heavily displeased about this state of affairs, but
decided that it should not merely start infringement procedures against the
Member States being remiss. As a matter of fact, the Commission had just
formulated its new policy with respect to the observance of Community
environmental law in its Fourth Environmental Action Programme (10). And one
of the methods foreseen there was the intensification of the dialogue with national
administrations.
Thus in the case of the Post-Seveso-Directive, the Commission organized by the end
of 1987 a high-level meeting with Member State officials in order to break through
the vicious circle by confronting them with one another and with the Commission
itself. This confrontation appeared to be helpful, as most of the Member States
declared themselves ready to intensify their efforts for implementing the Directive.
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The Commission, on the other hand, promised to discuss the national
implementation problems bilaterally with those Member States that expressed
their wish to do so. Quite a number of such discussions has taken place since then.
The results were reasonably satisfactory. A year later, 10 Member States had
passed legislation, and they by now all apply the notification and control system of
the Directive. Only Spain and Portugal have not yet caught up.
Of course, even if a Directive has been implemented by all Member States, this will
not be the end of it. In the first place, the adopted legislations have to be verified on
their conformity with the Directive (and with Community law in general). In the
second place, the legislation may be perfect, but its application unlawful.
As to the first point - the quality of the implementation-, here the intensified
dialogue with national officials during the implementation process has proven to be
rather fruitful. Indeed, the bilateral discussions at least contributed to eliminate
errors due to carelessness or lack of understanding. What then remains are
intentional divergences from the system of the Directive. Some of these may be
considered to be compatible with the Directive, others as contrary to it.
A close scrutiny of the preamble, the explanatory memorandum and the legal and
economic context may be necessary to be able to determine if the divergence is
compatible or not.
Would appear to be contrary to Community law anyhow:
general import or export bans of waste vis-a-vis felow EC Member States;
- specific refusals to admit waste from a fellow EC Member State because of its
national origin;
- specific refusals to ship waste to a fellow EC Member State essentially based on
a policy aimed at disposing of hazardous waste at the Member State of
production;
- national definitions of hazardous waste exempting secondary raw materials
from the EC notification procedure;
modifications introduced to the uniform shipment document, be they but slight
(this, indeed, could lead to the refusal of the correct document, in good faith, by
authorities of the Member State that modified the document!).
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As to the application of the Directive, even if it has been not applied for much more
than a year's time in by far the largest part of the Community, we can already identify
a number of problems that do necessitate the reconsidering of some important aspects
of the Directive:
* The actual EC definition for hazardous waste leaves much to be determined by the
Member States. As a consequence, substantial difference among Member States
exist as to the wastes subject to the common notification scheme. This hampers the
application of the scheme; moreover, the data collected by the Member States are
incomparable. Therefore, no reliable statistics exist on Community level.
* The additions made to the scope of the scheme by different Member States. Quite a
few include organic solvents; some even include household waste.
* A particular problem has risen concerning waste containing non-ferrous metals
destined for re-use, regeneration or recycling. The Directive provides for a
simplified procedure consisting of a notification duty without a possibility for the
public authorities to interfere. But this may give a free hand to shipments to
developing countries that burden these countries with important quantities of
remaining residues after the recycling operations have been finished.
* Next, the question which person is to be held responsible in case a notification
procedure has not taken place appears to lead to some confusion, even if the
directive does establish a general responsibility of the waste producer for the lawful
and environmentally sound disposal of his waste.
* And, last but not least, the problem raised by the failure of Member States to
implement the scheme at the same time. The Member States who did impose the
scheme on their industry did not know to whom the EC form had to be sent, and
anyhow, if a form was sent it was not returned. This of course very much frustrated
industry and administration at the same time.
4. Future developments
The Post-Seveso-Directive treats a subject which enjoys an ever increasing public
awareness. Cases like the salvage of the Herald of Free Enterprise, the Odyssee of
Vulcanus IT and all subsequent scandals of waste tourism to developing countries
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catched Community-wide attention and incited European Parliamentarians to
formulate caustic questions on the adequacy of the Directive.
The OECD Council, as I mentioned before, agreed upon to bring about new common
definitions (11) on waste, hazardous waste and disposal (definitions substantially
endorsed by the Basel Convention). The EEC-definition will have to be adapted to
this definition, being more precise than the former. The Commission's proposals to
the EC Council in August 1988, containing a wholesale modification of the general
waste Directive of 1975 and the hazardous waste Directive of 1978, contains
provisions to this effect.
The draft OECD-agreement on transboundary movements of hazardous wastes has
been mentioned as well. Eventually, this agreement was not adopted, even if it
finally came very close to adoption. The reason for this was that in the framework of
UNEP, the environmental branch of the UN, a world wide agreement in this field,
was adopted, taking away the necessity of a system merely covering the OECD
countries. The Basel Convention, which will be dealt with later on by Mrs Rummel-
Bulska, anyhow necessitates an overall reconsidering of the provisions of the Post-
Seveso-Directive, and the Commission's services are giving a very high-ranking
priority to the adaptations required.
The adaptations will take duly into account at the same time:
- the Community's commitment, in the framework of the Lome FV-Convention, to
issue a general ban on the export of hazardous waste to ACP-Countries;
the application problems described above;
- the consequences of the specific position of the Communtiy, gradually
establishing an internal market without border controls between Member
States.
The last two aspects do merit some final remarks.
As for the application problems, a number of those will be solved by the
implementation of the Basel Convention. Apart from that, these problems will be
likely to be dealt with in the following way:
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the Directive will be superseded by a Regulation; this will ensure that this time
the whole system will be applicable and applied in time and at the same time
throughout the Community;
the Regulation will in principle be applicable to all wastes, and not only to
hazardous wastes: the demarcation line between hazardous and other wastes,
indeed, is too vague for to allow for a different treatment of both categories, and
at the same time, the problem of longer national lists will be tackled;
- the simplified non-ferrous metal procedure will be strenghtened, by introducing
the possibility of a check on the environmental beneficiality of the recycling or
re-use operation;
the responsibilities of producers, holders and other private operators will be
made more transparent.
As regards the specific position of the Community, this will have to be seen as one
single entity, at least from an external point of view.
The most substantial provisions of the Basel Convention, as well as those of the
Post-Seveso Directive, make use of classical instruments of external trade (export
and import prohibitions, conditions, notifications), which, according to art. 113 of
the EEC Treaty, come under the exclusive competence of the Community.
While hazardous waste movements between the Community and third countries
vice-versa will be strictly subject to the rules of the Basel Convention, waste
circulation among EC Member States can be only subject to limitations that are
irrespective of internal frontiers. In its Community strategy for waste
management, the Commission opted for the "proximity rule", i.e. that waste should
as far as possible be "disposed of in one of the nearest suitable facilities, making use
of the most appropriate technologies to guarantee a high level of protection for the
environment and public health"; which means, in fact, that objection could only be
made on basis of the distance intended to be covered and the means of disposal
foreseen, and not on the crossing of borders between Member States. As concerns
waste intended for recycling or re-use, objections could only be made as to the
environmental soundness of these activities.
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CONCLUSION
A such EC policy, aiming at self-sufficiency in waste disposal on Community scale and
at rational allocation of waste disposal facilities with the Community, has manifold
advantages:
1) creating a buffer zone for waste disposal between the region of production and third
countries that renders waste exports from the Community less necessary and less
frequent;
2) short-distance shipments between Member States will not be put at a disadvantage
vis-a-vis long-distance shipments within one Member State;
3) in spite of high treatment or landfill charges, the outlets of new, technologically
advanced facilities at a high level of protection will be secured;
4) increasing the possibility of joint use of scarce resources within the Community;
thus:
a) regions put at a disadvantage because of particular geological, geohydrological
or demographical conditions will be able to make use of other regions' capacities;
b) a flexible regime for border regions is being ensured -already, with the
Commission's assistance, a joint waste disposal plan is being developed in the
Saarland-Lorraine-Luxembourg region- comprehending parts of four Member
States meeting with very much the same economical and environmental
problems;
c) certain waste streams require a specialised treatment necessitating a combined
approach of several Member States;
5) for waste intended for re-use or recycling, a flexible procedure can be followed, that
all the same will be better controllable.
Of course, next to this, particular efforts will have to be made:
on Community scale, in order to harmonize as soon as possible treatment and
disposal standards;
on regional or interregional scale, in order to further develop an adequate network
of treatment and disposal facilities;
on national scale, in order to make sure that the polluter pays principle be fully
integrated into treatment and disposal charges, involving all economic, social and
environmental costs. In close relation with the proximity principle, this might
eventually prove to be a decisive incentive towards the ultimate objective of waste
policy: WASTE PREVENTION
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236 INTERNATIONAL ENFORCEMENT WORKSHOP
(1) OJ Nr. L 194 of 25.7.75, p. 23, modified by Council Directive 87/101/EEC,
OJNr.L42ofl2.2.87,p.43
(2) OJNrL 194 of 25.7.75, p. 39
(3) OJ Nr L 108 of 26.4.1976, p. 41. An amending Directive was proposed by the
Commission, published in OJ Nr C 319 of 12.12.1988, p. 57.
(4) OJNrL 84of31.3.1978, p. 43
(5) Doc. SEC(89) final of 18 September
(6) OJ Nr L 230 of 5.8.1982, p. 1, modified since
(7) OJNrL 326 of 13.12.1984, p. 31
(8) OJNrL 181 of 4.7.1986, p. 13
(9) Commission Directive 85/469/EEC (OJ Nr L 272 of 12.10.1985, p. 1);
Council Directive 86/121/EEC (OJ Nr L 100 of 16.04.1986, p. 20); and
Commission Directive 87/112/EEC (OJ Nr L 48 of 17.2.1987, p. 31)
(10) OJNrC328of7.12.1987,p. 5
(11) Decision C(88)90 (Def.)
(12) OJNrC 295 of 19.11.1988, p. 3/8
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INTERNATIONAL ENFORCEMENT WORKSHOP 237
PESTICIDE EXPORT and IMPORT ENFORCEMENT PROGRAMS
in the United States of America
Connie Musgrove1 and Angela F. Hofmann2
1Chief Executive Officer, Office of Compliance Monitoring,
Office of Pesticides and Toxic Substances, U.S. Environmental
Protection Agency, 401 M Street, S.W. (EN-342), Washington,
D.C. 20460 (USA)
Environmental Protection Specialist, Policy and Grants
Division, Office of Compliance Monitoring, Office of
Pesticides and Toxic Substances, U.S. Environmental Protection
Agency, 401 M Street, S.W. (EN-342), Washington, D.C. 20460
(USA)
SUMMARY
This paper discusses the enforcement programs in the
United States regarding the export and import of pesticide
products. This discussion includes an overview of the legal
requirements, their corresponding policies, and enforcement
programs, as well as a discussion of recent trends and
proposed changes. The views expressed in this article are
solely those of the authors and do not necessarily reflect the
views or policies of the United States or the
U.S. Environmental Protection Agency.
1. THE U.S. ROLE IN THE INTERNATIONAL TRADE OF PESTICIDES
The United States Environmental Protection Agency (EPA)
estimates that approximately 4.2 to 4.5 billion pounds of
conventional pesticides (measured as active ingredients) are
produced and used in the world each year, approximately 3.4
billion pounds for agricultural purposes and approximately 1.1
billion pounds for non-agricultural purposes.(1) In 1988, the
United States exported approximately 450 million pounds of
pesticide active ingredients for agricultural purposes (i.e.,
not including wood preservatives and disinfectants), valued by
the United States Department of Commerce at almost 1.7 billion
US dollars, and representing approximately 10 percent of total
world consumption.(2) The United States, along with other
countries which also export a large amount of pesticide active
ingredients (e.g., the Federal Republic of Germany, Japan,
France, and the United Kingdom), acknowledges the
responsibility it has to provide information about the risks
of such pesticides.
There has been increasing awareness and concern regarding
the use of pesticides and their effect on human health and the
environment. As a result, the world has turned its attention
to the international trade of pesticides and the roles and
responsibilities of exporting and importing countries, as well
as the industry and public sector groups, to communicate
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238 INTERNATIONAL ENFORCEMENT WORKSHOP
information about the potential risks involved with pesticide
use. In addition, since the United States imports
approximately 15 percent of the agricultural products it
consumes, attention has also increased significantly within
the United States, resulting in increased pressure on EPA to
ensure compliance with the pesticide export and import laws,
as well as on the United States Food and Drug Administration
(FDA), the United States Food Safety and Inspection Service
(FSIS) , and EPA to ensure compliance with the food safety laws
of the United States.
2. PESTICIDE EXPORT POLICIES AND ENFORCEMENT PROGRAM
As a major exporter of pesticides, as well as a major
importer of foods which may be treated by pesticides, the
United States believes that it has a responsibility to help
reduce potential adverse affects from pesticides, to actively
monitor pesticide use, and to promote food safety world-wide.
In the United States, pesticides are subject to the
requirements of the Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA) and the regulations issued under its
authority.(3) FIFRA section 17, 7 U.S.C. § 136o, gives EPA
the authority to regulate American exportation and importation
of pesticides, devices, or active ingredients used in
producing a pesticide. FIFRA section 17 also delineates EPA's
international responsibilities regarding the exchange of
information and assistance to other countries in developing
pesticide regulations.
In addition to FIFRA, other laws in the United States may
effect pesticide use by regulating residue levels on food
products imported into the United States. For instance, the
Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. § 301
et seq., requires EPA to establish maximum permissible residue
levels (tolerances) for pesticides in or on food and feed
crops. Imported and domestic food and feed products are
monitored by the United States for residue levels which exceed
established tolerances.
2.1. Summary of Export Requirements and Policies.
All pesticide exporters, pursuant to FIFRA section 17(a),
must comply with certain minimal requirements regarding
product labeling, establishment registration, and
recordkeeping. In addition, an exporter of an unregistered
pesticide is required to obtain a signed statement from the
foreign purchaser acknowledging that the pesticide is not
registered and cannot be sold for use in the United States.
The acknowledgement statement must be obtained prior to export
and submitted to EPA within seven days of receipt by the
exports, or by the date of export, whichever occurs first.
EPA then transmits a copy of the acknowledgement statement to
an appropriate government official in the importing country.
A 1980 policy statement for FIFRA section 17(a) informed
the public of the scope of the labeling provisions, including
a bilingual requirement for certain information, and the
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INTERNATIONAL ENFORCEMENT WORKSHOP 239
procedures that an exporter of an unregistered pesticide must
follow in obtaining the purchaser acknowledgement
statement.(4) The policy also specified what information
would minimally be expected to be included on the statements;
clarified that the statements need only be submitted prior to
the first shipment each year to a specific purchaser in a
particular country; and stated that a product would not be
considered unregistered for the purposes of the
acknowledgement requirement, if the exported pesticide is
substantially similar in composition and use to a pesticide
registered by EPA.
The purpose for requiring exported pesticides to be
minimally labeled under FIFRA, is to provide important and
useful information to anyone who handles or comes in contact
with the product and to provide basic information to end
users. In addition, the purpose of the purchaser
acknowledgement statement requirement is both to inform the
purchaser of the product's registration status in the United
States and to notify the government of the importing country
that a pesticide judged hazardous to human health or the
environment, or for which no such hazard assessment has been
made, will be exported to that country.
Whenever a pesticide registration, or a cancellation or
suspension becomes effective, or ceases to be effective, FIFRA
section 17(b) requires EPA to provide notification to other
governments. In a 1975 policy statement, EPA interpreted this
requirement as applying to "information having international
significance," and published criteria for the
interpretation.(5) Whenever a significant regulatory action
is taken, EPA transmits a section 17(b) notice of control
action, explaining the health or environmental concerns that
prompted the action, through the United States Department of
State (State Department) to the appropriate officials in other
governments.
The monitoring of exports in the United States is
achieved through the inspection of the exporter's books and
records. Pesticide exporters may be identified through the
monitoring of production reports under FIFRA section 7,
7 U.S.C. § 136e, while others may be identified through the
Port Import/Export Reporting Service (PIERS) database of the
Journal of Commerce. Once identified, EPA then randomly
selects a statistically significant number of chemicals or
production establishments for target compliance monitoring.
2.2. The 1989 Comprehensive Review.
As a result of increased concern regarding the potential
adverse effects of the international use of pesticides, and in
light of EPA's goal to have a more effective enforcement
program for pesticide exports which is in harmony with
international efforts, EPA conducted a comprehensive review of
its pesticide export program. Included in this review was an
evaluation of EPA's current export enforcement program; the
policy on the FIFRA section 17(a) labeling provisions and
requirement to obtain a purchaser acknowledgement statement;
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240 INTERNATIONAL ENFORCEMENT WORKSHOP
the policy on FIFRA section 17(b) regarding notification to
other governments whenever a pesticide registration,
cancellation, or suspension becomes effective, or ceases to be
effective; the confidential nature of information collected on
pesticide exports; and EPA's international efforts regarding
pesticide activities and technical assistance.
A primary achievement of the comprehensive review was the
publication on February 12, 1990, of two proposed policy
statements regarding EPA's pesticide export policy. The
public comment period for both policies ends on May 14, 1990.
A proposed policy statement entitled "Pesticide Export Policy
Review" presents the results of the comprehensive review, a
description of the proposed options for expanding the FIFRA
section 17(b) notification system, a new evaluation of the
confidential nature of information collected by the export
programs, and a discussion of other international pesticide
activities and their relationship to EPA's goals in this
area.(6) Another proposed policy entitled "Statement of
Policy on the Labeling Requirements for Pesticides, Devices,
and Pesticide Active Ingredients Intended for Export and
Procedures for Exporting Unregistered Pesticides" presents the
proposed amendments to the FIFRA section 17(a) policy.(7)
The major changes proposed to the FIFRA section 17(a)
policy included: a) the elimination of or amendment to the
exemption from the purchaser acknowledgement statement
requirement for unregistered pesticides considered to be
"similar in composition and use" to EPA registered pesticides,
or requiring substantiation of such claims; b) requiring
acknowledgement statements to be multilingual; and c) allowing
products shipped purely for research and development purposes
to be exempt from the purchaser acknowledgement statement
requirement, but requiring records and/or reports to
substantiate such claims. The proposed policy also solicits
comments on whether the timing of the submission of the
purchaser acknowledgement statements should be changed,
whether the current bilingual labeling statements should be
required to be multilingual, and proposes that the purchaser
acknowledgement statements be transmitted directly to
appropriate importing government officials, rather than
through diplomatic channels. The proposed policy also
clarifies that the labeling provisions apply to all exported
pesticides, including those unregistered pesticides that may
be exempt from the purchaser acknowledgement statement
requirement.
In addition, EPA has reviewed the effectiveness of the
existing notification scheme for FIFRA section 17(b) and is
proposing to improve the notification system by greatly
expanding the number of pesticide regulatory actions requiring
the transmission of an international notice. The control
actions which will trigger a section 17(b) notice, go beyond
those adopted by FAO and UNEP under the PIC system which is
described below. Rather than issuing notices on a
case-by-case basis, EPA would notify other governments of all
actions taken on the basis of health and environmental
concerns. As a result, notices would be issued immediately
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after an action was taken for all final and proposed
cancellation and suspension actions taken for health or
environmental reasons, and for all denials of a tolerance
following a formal finding that risks outweigh benefits.
Notices for other regulatory actions would be compiled into a
single notice to be transmitted annually. To reduce delays,
EPA is proposing to transmit notices directly to other
countries rather than sending them through the State
Department. Copies would be forwarded to the State
Department, as well as to the Food and Agricultural
Organization of the United Nations (FAO). In addition, EPA is
proposing to clarify the confidential nature of certain
information submitted as a result of the export programs.
EPA believes that these proposed changes are necessary to
improve the ability of EPA to enforce the export requirements
of FIFRA, as well as to provide other governments with
necessary information about pesticides. The information
provided is intended to help other governments develop or
administer their own scientifically-based, comprehensive
pesticide regulatory programs. These programs are needed to
help ensure that pesticides are used safely and that pesticide
use does not result in harmful residue levels in food or the
environment.
2.3. Inspection/Enforcement Program.
As a part of the comprehensive review, EPA also undertook
an inspection program during the summer of 1989 to evaluate
compliance with the FIFRA section 17(a) requirements. Because
unregistered pesticides are intended solely for export and are
subject to the purchaser acknowledgement statement requirement
of section 17(a)(2), EPA compiled a list of unregistered
pesticide products utilizing the 1987 production reporting
forms, which are required to be submitted to EPA under FIFRA
section 7, in order to identify potential violators and
targets for the inspections. The list resulted in the
identification of 312 unregistered pesticide products and the
establishments responsible for their production. From this
group, a total of twenty-six producing establishments were
then randomly selected and targeted for inspection using a
neutral administrative inspection scheme. The establishments
inspected produced 215, or 69% of the 312 products from the
list.
Based on a preliminary review of the inspections
conducted, it appears that several exporters are not in full
compliance with the requirements of FIFRA section 17 (a). In
fact, during the first quarter of 1990, EPA filed
administrative complaints against eight companies, charging
them with unlawfully exporting pesticides and seeking
penalties totaling 2,835,200 US dollars.(8) The charges
against the companies include: the export of pesticides
labeled only in English to countries in which English is not
the official language; failure to obtain the purchaser
acknowledgement statement for pesticides not registered in the
United States; and failure to label unregistered pesticides
with the statement, "Not Registered for Use in the United
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242 INTERNATIONAL ENFORCEMENT WORKSHOP
States of America."(9)
This initiative, aimed specifically at unregistered
exported pesticide products, was EPA's first experience with
conducting an export specific enforcement program. In the
past, compliance with the export requirements was just one of
the many components of routine, chemical specific, and/or for
cause inspections. In order to continue with an active export
compliance monitoring program, EPA counterparts at the State
level, which conduct the majority of EPA's FIFRA compliance
inspections under the State Cooperative Enforcement Agreement
Guidance, will be requested to continue to actively monitor
compliance with the export policy. We are still in the
process of evaluating our experiences and the information
obtained from the inspections, in order to identify
improvements to our export enforcement program.(10)
2.4. International Obligations.
EPA's principal goal in international pesticide
activities is to improve the protection of public health and
the environment from unreasonable adverse effects of
pesticides throughout the world. EPA is committed to its
responsibilities under FIFRA section 17(d) of assisting other
countries in the assessments of specific pesticides under the
conditions of use in their country, and in the development of
the capabilities to make such decisions on their own. In
furtherance of this goal, and in cooperation with
international organizations such as FAO and the United Nations
Environment Programme (UNEP), EPA is actively engaged in
training programs for developing countries and other
organizations to assist them in building or strengthening
their pesticide regulatory infrastructures. The Agency has
also participated in the development of an environmentally
sensitive control strategy for the locust plague in Africa and
will soon be training Peace Corp volunteers and their host-
country counterparts to teach farmers and dealers in
developing countries how to handle and use pesticides safely.
UNEP and FAO adopted programs in 1989 of prior informed
consent (PIC) for the international trade of chemicals which
have been banned or severely restricted.(11) Under the PIC
system, participating countries will be obligated to: a)
inform an international organization whenever a pesticide is
severely restricted or banned in their country; b) advise the
organization of their decisions on the importation of a
pesticide being added to PIC; c) take measures to inform the
export industry of the decisions of other countries; and d)
take actions within their legal authority to help ensure that
their exporting industry complies with the decisions of
importing countries.
In this regard, the United States supports the efforts of
FAO and UNEP, and EPA will be reviewing its statutory
authorities regarding exports to determine the extent to which
it can develop and implement an effective enforcement program.
EPA welcomes ideas from the regulated industry and other
governments on techniques and experiences they may have with
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INTERNATIONAL ENFORCEMENT WORKSHOP 243
policing similar export programs.(12)
Prior to adoption of the PIC procedure, both FAO and UNEP
provided for information exchange on regulatory actions taken
to ban or severely restrict a pesticide for health or
environmental reasons, and on the export of these pesticides,
which are continued in the revised guidance incorporating PIC.
The program in the United States, under FIFRA section 17,
complies with the information exchange provisions of the two
international organizations and goes further by including
unregistered pesticides, more frequent export notifications,
and by expanding control actions which trigger the
notification. As the United States develops programs for
compliance with PIC, EPA will continue to meet the information
exchange provisions of the international organizations, as
well as those self imposed.
3. PESTICIDE IMPORT POLICY AND ENFORCEMENT PROGRAM
The United States believes that a strong import
enforcement program is one of the best defenses against the
importation of unwanted pesticides. In order to be able to
regulate the importation of pesticides, it is essential to
know when they initially arrive, enabling officials with
sufficient legal authority to take any immediate action that
may be necessary in order to prevent adverse exposure.
Pursuant to FIFRA section 17(c), and the corresponding
regulations promulgated by the United States Customs, 19
C.F.R. §§ 12.112 - 12.117, an importer of pesticides or
devices into the United States is reguired to submit a Notice
of Arrival, EPA Form 3540-1, prior to the arrival of the
shipment in the United States. EPA reviews the Notice of
Arrival, providing specific directions to the U.S. Customs
Officials, and returns the form to the importer so that it can
be presented by the importer to United States Customs at the
port of entry.
By providing EPA with advance information about the
import of the pesticide, the Notice of Arrival is an important
enforcement tool. The Agency may direct U.S. Customs
Officials to release the shipment, detain it for inspection by
EPA officials, release it under bond for inspection, reguest a
sample, provide specific directions, or refuse entry entirely.
All pesticide products imported into the United States,
and the establishments in which they are produced, must meet
the same reguirements under FIFRA as domestic producers.(13)
As such, the imported pesticide product must be registered
with EPA and must meet all the labeling reguirements of FIFRA.
The producer must also register those establishments in which
the imported product is produced and submit annual production
reports on the types and amounts of the pesticide product
shipped to the United States. In addition, for materials
shipped to the United States, a producer must maintain certain
records, i.e., of production and shipments to the United
States, inventories, and tests conducted. Records must be
maintained for two years, or as specified, and are subject to
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244 INTERNATIONAL ENFORCEMENT WORKSHOP
inspection and reproduction by authorized EPA representatives.
Failure to present a Notice of Arrival will result in the
prohibition of the import. In addition, imported pesticides
which do not meet the requirements of FIFRA will be refused
entry into the United States. If the shipper does not
retrieve the merchandise within the specified period, the
shipment may be destroyed or disposed of by U.S. Customs
Officials.
As mentioned earlier, the United States also monitors
imported food and feed crops for illegal pesticide
residues.(14) To enforce the tolerances established by EPA,
the FDA monitors residue levels in all food and feed crops and
the United States Department of Agriculture (USDA) monitors
residue levels in poultry and meat products. Imported
shipments which contain illegal pesticide residues may be
detained at the port of entry and an automatic detention for
future shipments from the same source may be invoked.
4. INTERNATIONAL COOPERATION AND COORDINATION OF ENFORCEMENT
The quality and safety of the American food supply is a
high priority for the United States Government, and the United
States intends to place a greater emphasis on the monitoring
of pesticide exports and food imports. In addition, EPA is
actively participating in the development of practical
environmental protection programs world-wide to promote the
safe handling and use of pesticides and in order to help
reduce adverse affects to public health and the environment.
The international trade in pesticides has created both
opportunities and responsibilities for all countries involved
in the trade of pesticides, as well as in the trade of
pesticide treated products. The resulting risks and
consequences of pesticide misuse can be catastrophic to all
concerned. Fear of competitive disadvantages, varying export
regulations, regulatory abilities, and philosophies regarding
pesticide regulations fragment efforts to minimize potential
adverse effects. It is necessary to approach this issue on an
international level, harmonizing individual country actions
with those of the international community, developing a
uniform policy regarding pesticides, and an international
enforcement program.
This can best be achieved by cooperation among all the
countries, by sharing information on regulatory actions, and
by enhancing international enforcement. As George Bush, the
President of the United States said, "If our response [to
global environmental problems] is to be effective, then all
the nations of the world must make common cause in defense of
our environment."(15) The international community is being
pulled together by the increasing awareness of the potentially
global adverse effects of pesticide use and the importance of
a world-wide effort to minimize these adverse effects.
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INTERNATIONAL ENFORCEMENT WORKSHOP 245
REFERENCES
1. U.S. EPA, Pesticide Export Policy Review: Proposed Policy
Statement, 55 Fed. Reg. 4956, 4956 (February 12, 1990).
2. Id.
3. 7 U.S.C. §§ 136 et seq. . codified at 40 C.F.R. §§ 152 et
seq.
4. 45 Fed. Reg. 50274 (1980).
5. 40 Fed. Reg. 20987 (1975).
6. 55 Fed. Reg. 4956 (1990).
7. 55 Fed. Reg. 4967 (1990).
8. Equivalent to 5,330,176 G (Netherlands), 4,743,289.60 DM
(Federal Republic of Germany), 16,071,331 Fr (France), or
equivalent to 2,320,044.10 ECUs (European Currency Unit).
(Rates are based on the New York Foreign Exchange rates
on Thursday, February 22, 1990.).
9. Since these cases are still pending, the final
resolutions were unavailable at the time of printing.
The speaker, however, will mention any final resolutions
at the Workshop.
10. Although at the time of printing this information was
unavailable, the speaker will include some of our
experiences in the oral presentation.
11. FAO, International Code of Conduct on the Distribution
and Use of Pesticides, Rome, 1989; UNEP, London
Guidelines on the Exchange of Information on Chemicals in
International Trade, 1989.
12 . Any comments or suggestions may be addressed to
Edwin L. Johnson, Director, International Issues
Division, Office of International Activities (A-106) ,
Telefax: (202)382-4470 or to Cathleen Barnes, Office of
Pesticide Programs (H7501C) , Telefax: (202)557-8244, U.S.
Environmental Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460, USA.
13. See FIFRA, 7 U.S.C. §§ 136 et seq. , and its accompanying
regulations at 40 C.F.R. §§ 152 et seq.
14. See the Federal Food, Drug, and Cosmetic Act (FFDCA) ,
21 U.S.C. § 301 et seq.
15. President George Bush, What I believe about the
Environment. 16 EPA Journal 3 (1990) .
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246 INTERNATIONAL ENFORCEMENT WORKSHOP
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INTERNATIONAL ENFORCEMENT WORKSHOP 247
THEME #4: ENFORCEMENT OF INTERNATIONAL AGREEMENTS
Chairman: Mr. Mike Alushin, United States
Goal: The workshop will explore compliance and enforcement provisions in international
agreements and causes for success and failure. Programs to address transboundary
environmental problems may draw on some parallels from other international agreements
or from enforcement experiences across state and provincial borders within federal
governments.
1. An Overview of Enforcement and Compliance Mechanisms in International
Environmental Agreements
Scott Hajost and Quinlan Shea
2. Challenge of Enforcing the Montreal Protocol on Protection of Stratospheric
Ozone
John Seitz and Sally Mitoff
3a. Ocean Pollution - Protection of the Seas
Rein van Dijk
3b. The U.S. Environmental Protection Agency Efforts to Control Ocean Dumping,
Tudor Davies and Rosanna Ciupek
4. Enforcing Environmental Agreements Within the European Community
Rob Donkers
5. The Basel Convention and Its Enforcement
Iwona Rummel-Bulska
6. The Example of the Chemical Weapons Convention
Bas ter Haar
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248 INTERNATIONAL ENFORCEMENT WORKSHOP
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INTERNATIONAL ENFORCEMENT WORKSHOP 249
AN OVERVIEW OF ENFORCEMENT AND OCMFUANCE MEORNISMS IN
INTERNATIONAL ENVIRONMENTAL AGREEMENTS
by
Scott A. Hajost*
and
Quinlan J. Shea, III**
* Senior Attorney, Environmental Defense Fund (Former Acting Associate
Administrator, Office of International Activities, united States Environmental
Protection Agency)
** Special Assistant, Office of Enforcement, United States Environmental
Protection Agency
The authors would like to thank their colleagues for their review and comments
and particularly Deborah Good, Pamela Proctor and Regina Lee who patiently
attended to the problems of providing a finished manuscript.
The views expressed in this article are the personal views of the authors. No
official support or endorsement by the EPA or EOF is intended or inplied.
SUWAKY
The purpose of this paper is to provide an overview of the enforcement
and compliance-related provisions in selected international environmental
agreements. It will not address international organizations per se, although
it will reference customary international law, i.e., international law created
through state practice, as necessary. Several non-environmental international
agreements will also be discussed for comparative purposes.
In particular, this paper will review some of the specific tools that are
embodied in international environmental agreements to seek and monitor
compliance. These include: reporting requirements, obligations to adopt
requisite domestic implementing legislation, monitoring and review provisions,
specific compliance and detection of noncompliance provisions, and dispute
settlement mechanisms. All these tools facilitate the ability of states to
ascertain whether or not other parties are meeting their international
commitments and, if not, to take appropriate steps to seek compliance.
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250 INTERNATIONAL ENFORCEMENT WORKSHOP
1. Introduction
The years since the 1972 UN Conference on the Human EnvironmEsit in
Stockholm have witnessed ever increasing priority given to environmental
protection and an increasing recognition of the need for international
cooperation to this end. This cooperation has been undertaken in a
variety of contexts not the least of which is the codification of new
legal obligations in the form of an impressive array of global, regional
and bilateral international environmental agreements. These agreeiiants
address all forms of pollution of the marine environment, conservation of
wildlife and habitat, transboundary air pollution, protection of the
stratospheric ozone layer, waste exports and protection of the Arctic and
Antarctic environments. Together with related international
developments, and the efforts of international organizations and the fIGO
coiraiiunity, international environmental agreements prescribe basic
obligations of states. The agreements also frequently establish
rulemaking procedures intended to supplement those agreements.
At the outset, it is important to note the distinction between
international law and domestic law. This distinction has a direct
bearing on enforcement issues. International law, despite the quasi-
legislative nature of some international organizations and agreements,
does not have the same hierarchical structure as do national legal
systems. National legal systems have legislative bodies, courts, and
government officials that create, define, and enforce legal obligations.
Notwithstanding the establishment and operation of the International
Court of Justice and the United Nations, international law has been
characterized by one commentator as a "horizontal system" without
enforcement mechanisms that operate from above.1 Although the
international system has a relatively developed structure of
institutions, there is no international police force, and international
bodies do not possess ultimate sanction authority to issue and enforce
decisions.
In general, international law, including agreements, is based on
the voluntary acceptance of sovereign states that recognize it to be in
their interest to sacrifice some degree of sovereignty in return for
commitments from others. At the same time, states comply with
international legal obligations in order to maintain good standing in the
international community.
for the most part, states do comply with their international
obligations. They consider the longer term advantages of compliance to
outweigh shorter term gains obtained as a result of noncompliance in any
specific instances. In many ways, these motivating factors are not
dissimilar from those of individuals responsible for complying with
domestic laws at the national level. Nonetheless, although governments
are created in part to ensure adherence with the rule of law, at the
international level many facets of "government" exist only on a "good
faith" or rudimentary level. As a general rule, international
environmental agreements have not yet evolved to the extent of having
sophisticated, centralized enforcement mechanisms to ensure strict
compliance. As a result, their viability remains dependent upon the good
faith efforts of parties to comply with stated obligations with respect
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INTERNATIONAL ENFORCEMENT WORKSHOP 251
to both the agreement itself, and decisions by bodies established
thereunder.
While states generally comply voluntarily with their international
obligations, there is an additional, supporting principle of
international law that treaties must be observed.2 That principle lias
been codified in the 1969 Vienna Convention on the Law of Treaties.'
Article 26 of the Convention, entitled "pacta sunt servanda" providas
that every treaty in force is binding upon the parties to it and incnt be
carried out by them in good faith. This principle of customary anc!
conventional international law underpins all the other mechanisms
embodied in international agreements concerning compliance and is the
most i-undamental legal basis for the requirement that states meet their
treaty obligations.
Before turning to the formal panoply of tools for facilitating
compliance with international environmental agreements, it is worth
noting the informal means that states use to seek compliance from other
parties to agreements. These means include informal persuasion and
consultation, as well as what has been termed the "mobilization of shame"
— the public identification and dissemination of specific acts of
noncompliance or questionable compliance.'1 States generally prefer to
settle their differences through dialogue and quiet diplomacy,5 and
usually resort to more formal and public means only after all other
methods fail. Under these less formal procedures there may be dialogue
and consultation among the parties to an agreement, identification of
potential problems by a Secretariat to an agreement, and possibly
discussions concerning a state's compliance with the findings
subsequently published in a report.
2. State Tji^frvi \jLty and Compliance with International EJrviim mental
Agreements
2 . 1 Background
The concept of an international law of the environment is
relatively new. It is principally a result of twentieth century
technological advances and a corresponding increased understanding of the
environmental consequences of those advances. In the last twenty years,
this area of international law has developed rapidly as problems such as
oil and chemical spills, acid rain, stratospheric ozone depletion and
polluted waterways have clearly demonstrated that environmental
degradation does not respect man-made boundaries. There has been a
growing recognition that "pollution and other sorts of environmental harm
are propagated regardless of state sovereignty and its limits," and that,
accordingly, "the struggle against it must be international."6
Furthermore, "the quality of the environment and natural resource
management are no longer regarded as solely domestic concerns, for
environmental impacts may be much more wide-ranging: they may
dramatically affect foreign economies, or public health, and they may
even ignite belligerent actions."7
Focusing specifically on the past solutions available to address
insults to the environment, legal actions were originally taken withr.ri
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the existing structure of international law which placed little emphasis
on the environment. For example, in older treaties involving
environmental-related disputes, established principles of international
law were extended to cover the issues in question, rather than legal
concepts being modified to incorporate environmental concepts.8 In
essence, two principles of international law traditionally have brs?ji
applied to environmental issues. First, "a nation should not permit
action within its territorial jurisdiction to harm the interests of other
nations."9 Second, "nations should cooperate to serve the mutual
interests of their respective peoples."10 In recent years, there har-
evolved the concept that international cooperation should, when
necessary, take the form of legal efforts to protect the environment and
that international law should recognize the human right to a "clean,
pure, liealthy, and even decent environment."11
2.2 Gtneral Characteristics of State Liability
There exists no universal treaty governing liability for
transboundary environmental damage. In the absence of a binding
agreement between nations, injured parties must look to customary
international law, one cornerstone of which is treaty law. The
advantages and necessity of bilateral and multilateral agreements for
international environmental issues are obvious. There are limits to the
scope of environmental harm to which even the most powerful country can
respond unilaterally. For example, global media such as the oceans are
particularly difficult to protect exclusively on the national level given
the existence of borders and the right of free passage for foreign
vessels through coastal waters. As such, some form of international
standard-setting is required; international agreements between countries
provide the most direct means of prevention and control as they can
include precise environmental standards.12 Upon ratification, the
provisions containing these standards immediately acquire an obligatory
character under the terms of the agreement.
While treaties offer the opportunity to address specific
noncompliance with environmental standards, they contain significant
limitations. The most obvious is the fact that the group of interested
or affected states must arrive at a consensus as to the scope and
contents of the agreement. Differing perceptions of national self-
interest and the historic reluctance to commit to overly restrictive
rules can make this a difficult process.13 Common environmental standards
may be seen as imposing unfair economic burdens, for example,
particularly on developing countries. Thus, the net result of
negotiations may be weak obligations that reflect the "lowest common
denominator" among the signatories.11
Once agreement is reached, a breach of the agreement, particularly
a multilateral agreement, may affect one country in particular or even a
group of countries as a whole. Whenever the rights and interests of one
state are "specifically affected," that state suffers a particular injury
which under the law of international responsibility is supposed to be
treated exactly as is any other particular injury.15 The affected state
is an "injured state" that is owed an obligation to make "reparation in
an adequate form."16 The problem becomes more complicated when the breach
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of a multilateral agreement does not affect one state in particular, but
all the signatory countries. It is well established that the affected
states collectively suffer an injury and are entitled to claim adequate
reparation. There is, however, a distinction between those instances in
which the consequences of the violation are organized by the treaty
itself and those in which they are not."
Though the types of specific enforcement and compliance provisions
usually found in international environmental agreements will be discussed
in more detail below, it is important to note at this juncture that
treaties provide for collective and unilateral remedies against a
violating state. Collective reparation can be found in the provisions of
the constitutive charters of international organizations which provirt*?
for resnedies against a defaulting party. For example, Article 19 of thr=
United; nations Charter provides for a collective remedy insofar as the
General Assembly may suspend the voting rights of a state in default of
payment.18
When a treaty does not include provisions addressing the
consequences of a violation, the situation is more complex. In many
instances, one of the affected states might choose to take steps to
unilaterally rectify the violation. The traditional approach to this
eventuality links the lawfulness of any unilateral action to an actual
and identifiable injury to the aggrieved country.19 Unfortunately, this
approach is flawed with respect to its application to treaty law. The
concept of "injured state" is elusive because it is inexorably
intertwined with the notion of "moral damage" in international law.20
Even though the outcome of a violation of a multilateral agreement under
this approach is usually a finding of injury, the result "does not
advance international legal reasoning very far."21
An alternative approach, which is consistently employed by the
United States, separates the right to take unilateral steps from the
existence of an actual injury. The U.S. addresses violations strictly as
a matter of enforcement and not simply as a matter of international
responsibility. A statutory example of this practice by the U.S. in the
environmental arena is found in the Fishery Conservation and Management
Act of 1976 which provides for reductions in fishing allocations within
the U.S. 200 mile fishery conservation zone to countries deemed to be
compromising the effectiveness of the International Convention for the
Regulation of Whaling.22
Some scholars have speculated that the U.S. position may be a
response to a problem that was tactfully avoided in the Vienna Convention
on the Law of Treaties, i.e., whether general international law compels
nations not to hinder the execution of valid agreements concluded by
other states.23 The Vienna Convention makes such an obligation binding
upon third parties only after the provisions of a treaty have turned into
customary rules of international law. The U.S. approach, however, has
the effect of enforcing against all states rules which are not truly
customary.24 It is the U.S. perception of effective enforcement and
compliance mechanisms in any given agreement that prompts these
unilateral steps.
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2.3 An Overview of Enforcement and Compliance Mechanisms
2.3.1 Reparations
Whatever the legal approach, once it is determined that a sliafcs Is
out of compliance or has otherwise violated a substantive provisior: of an
agreement, a variety of legal consequences may follow. The general rule
stated by the Permanent Court of International Justice in the Chorzow
Factory case, namely that a breach of an obligation triggers a second
obligation to make reparation, is applicable.25 Reparation should, as far
as possible, erase the consequences of the violation and reestablish the
situation which would have existed if that violation had not been
coHiaitted.26 Because restoration of the status quo ante is usually not
possible or feasible once environmental damage has occurred, other ravens
must be found to satisfy injured parties.
International agreements often contain provisions governing the
settlement of disputes, discussed in more detail below, which often arise
in the context of reparation negotiations.27 One relatively infrequently
used means of reparation worth noting is a declaratory judgment which,
when made by an appropriate international tribunal, may provide
satisfaction to an injured party. Though a simple finding in favor of
the injured state may not restore the environment, it may have a
deterrent effect on the violating state for purposes of future behavior.
Though compliance mechanisms such as reporting requirements can come into
play as forms of reparations, they will be addressed separately because
these mechanisms are commonly present as independent provisions of
international environmental agreements. By far, the two most effective
forms of reparation are the payment of compensation for damage already
done and pollution abatement, which involves the cessation or
modification of the violator's behavior.
2.3.1.1 Compensation
Compensation is a common form of reparation where restitution in
kind is not practical. The general rule is that a monetary payment for
damage suffered is appropriate.28 There are, however, variances,
particularly to provide some new benefit to the injured party to make up
for its loss. For example, the Finland-USSR frontier treaty allows the
two countries to "make reparation for any loss or damage caused. . .by
granting the Party suffering the loss or damage certain privileges in the
watercourses of the other Party."29 The criteria for determining the
actual award when monetary compensation is given are complex and, of
course, depend on the forum in which a claim is presented.30 It may also
be difficult to assess the value of the affected environmental resources.
further collateral considerations merit brief attention. The
first is the possibility of assessing punitive damages as a deterrent in
especially egregious cases. Though the decisions of international
tribunals offer little support for such an approach,31 the International
Law Commission (ILC) has attempted to define a category of "international
crimes" whose commission might warrant more than normal reparation.32
Further analysis by the ILC and interested countries is necessary to
determine what value punitive damages may present. At this time
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international environmental law appears to be insufficiently developed to
support such a concept. In this regard, to the extent that international
environmental agreements address liability, they typically do nothing
more than call upon the parties to develop liability systems.
A second collateral issue is the role of liability-limiting
agreements which are attempts by countries to limit the potential far
huge claims following events such as the Bhopal disaster, or the Ai>oco
Cadiz and Exxon Valdez supertanker spills.33 Some countries, such as the
United States, have refused to ratify conventions whose liability
provisions they consider to be inadequate according to their legal and
political judgment, and instead utilize the enforcement provisions of
domestic legislation to govern liability for spills from vessels entering
their ports.34
2.3.1.2 Pollution Abatement
Compensation, while an important means of making an injured party
whole, will not in and of itself prevent a reoccurrence of identical or
similar activities by the violating party. It is reasonable to expect
that provisions will be made to eliminate or modify environmentally-
detrimental behavior. At the same time, the total cessation of an
injurious activity may not be necessary except in extreme circumstances
such as where there is a need for a prohibition on the manufacturing and
export of dangerous substances, or the dumping of hazardous wastes in a
certain body of water.
Because of the potential economic and social value of behavior that
has the effect of causing pollution, it is far more common for states to
agree to liability regimes that entail an obligation to minimize or
reduce those detrimental effects rather than cease the activity.
Typically, the violator's abatement obligation is qualified by language
such as "in so far as such measures are economically feasible."35 The
Finland-Sweden Frontier Rivers Agreement, which calls for the cessation
of construction that "injures a substantial public interest," is modified
to the extent that it provides that construction can resume "on the
condition it is of particular importance for the economy."36
2.3.2 Compliance Monitoring
Growing international concern over environmental problems has led
to the inclusion of a wide array of enforcement and liability provisions
in bilateral and multilateral agreements which govern the behavior of
states after environmental injuries have already occurred. Scholars have
increasingly noted that by approaching environmental problems from a
liability perspective, adversarial confrontations are regulated but not
reduced.37 Furthermore, there is no corresponding benefit to the
environment. Accordingly, it is appropriate that enforcement provisions
should be supplemented by provisions whose goal is the prevention of
environmental damage. In these cases, states are required to take some
preventive measures even before commencing environmentally-threatening
activities.
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In the United States, preventive measures are, cumulatively, termed
"pollution prevention."38 It is anticipated that pollution prevention
planning will be implemented throughout every environmental regulatory
program in the near future. The emphasis on preventing pollution at the
source is intended to reduce or eliminate root causes of pollution and
thus many violations, thereby increasing the prospects for minimal
pollution and continuous compliance in the future. It is further
anticipated that final environmental guidelines will explicitly encourage
enforcement personnel to incorporate pollution prevention conditions in
enforcement settlements.39
As noted previously, the rules governing state liability once
environmental damage has already occurred are imprecise. Rules
addressing preventative or reporting requirements may be more advancsc1.
2.3.2.1 Evaluation Requirements
The duty to make an environmental evaluation of certain activities
is relatively noncontroversial and is probably an element of
international law*0 despite the lack of universally accepted evaluation
criteria. The essential issue is the weight that a state must give in
its internal management decisions to the transboundary impact of
environmentally-dangerous activities.
The need for proper environmental planning was a constant theme at
the 1972 Stockholm Conference on the Human Environment; Principle 17 of
the declaration states that "appropriate national institutions must be
entrusted with the task of planning, managing or controlling the
environmental resources of states with a view to enhancing environmental
quality."41 General state practice reflects the concern that states share
with respect to boundary and frontier resources. Many early treaties,
however, are exceptionally vague in defining the obligations entailed in
applicable provisions; the 1960 Frontier Treaty between the Netherlands
and Federal Republic of Germany only references the "due regard" each is
expected to give to the other's "interest in the boundary waters."42 The
Nordic Convention is more precise in that parties must treat the damaging
effects that environmentally-threatening activities might cause in
another country as if they were created domestically.43
At the present time, the institution of the environmental impact
assessment process is a basic principle which is reflected in a multitude
of international agreements which vary in the degree to which they are
legally binding. The following, for example, have the force of treaty:
the 1985 Agreement of the Association of South-East Asian Nations on
Conservation of Nature and Natural Resources (Articles 14, 19, and 20);44
the 1983 Convention on Protection and Utilizing the Aquatic Environment
of the Caspian Region (Article 12),45 and the 1982 United Nations
Convention on Maritime Law (Article 206).K
2.3.2.2 Notification Requirement
The duty to notify states of possible transboundary harm is an
emerging principle of international environmental law. In the context of
the Chernobyl incident, the United States concluded that the Soviet Union
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had a duty to notify. (After Chernobyl, the IAEA rapidly concluded die
1986 Convention on Early Notification of a Nuclear Accident.)" OBCD
policies promulgated by the Nuclear Energy Agency (NBA) often serve as
the basis for some international organizations as well as a means of
raising public awareness." The OECD has attempted to expand
international law relating to transboundary air pollution by deve?.oping
further the principles of notification and consultation.49 Requircsrants
for notifying others in risk of environmental harm have been most
developed in the marine environment context.50
Many international agreements require there to be a certain level
of potential damage before there is a duty to inform, a threshold often
loosely described only as "significant harm."51 Further, while some
agre2;i«nts contain standards as to the timeliness of notification, others
do not." An exception to the general rule is the Moon Treaty which does
not suffer from vagueness in that it obligates all parties to notify the
Secretary General of the united Nations before any radioactive materials
can be placed on the moon, regardless of the level of environmental
damage posed.53
2.3.2.3 Consultation Requirement
The duty to consult theoretically also arises when a proposed
activity is expected to cause a level of damage that may be higher than
that required for the duty to inform.5* Because consultation can involve
extensive discussions and potential liability, it is a duty which states
may in some cases be unwilling to comply with other than to supply
rudimentary information to the affected states.
Most of the consultation standards that exist in international
agreements lack specific guidance as to the degree of environmental
damage that needs to be threatened before there is a duty to consult
other states. While the normal presumption is that a state requesting
consultations must demonstrate standing,55 the consultation procedure that
would be established by the Council of Europe in the draft European
Convention for the Protection of International Watercourses Against
Pollution adopts a significantly different approach. Article 12 requires
automatic consultations among all relevant parties at the request of any
one party.* The burden is shifted to any state that wants to avoid
consultations to demonstrate that it is not "bound to enter into
negotiations. "57
While the ultimate objective of consultation is the resolution of
disputes between parties, the provisions of various international
agreements require different results. For example, the UN Economic
Council for Europe 1979 Convention on Long Range Transboundary Air
Pollution (LRTAP) does not envision any particular goal with regard to
its requirement of consultation; a state planning an activity covered by
this provision would appear to be obligated only to discuss the matter in
good faith with other affected parties.58 Though many conventions do
refer to the negotiation of an explicit agreement as the objective of
consultation, it is often unclear what the results will be if the parties
are unable to agree. Some form of third-party intervention to facilitate
an agreement may be appropriate.
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2.4 An Overview of Dispute Resolution Mechanisms
2.4.1. Introduction
Article 2, paragraph 3 of the U.N. Charter requires that: "Ml
Members shall settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not
endangered." The U.N. General Assembly, in adopting the 1982 Manila
Declaration on the Peaceful Settlement of Disputes, emphasized the "need
to exert utmost efforts in order to settle any conflicts and disputes
between states exclusively by peaceful means" and that "the question of
the peaceful settlement of disputes should represent one of the central
concerns for states and for the United Nations.'"*
Wien national governments engage in activities which irreparably
damage the global environment and threaten human health, their behavior
may give rise to disputes. As noted earlier, claims brought by other
states for breach of obligations under international law or under treaty
can usually be handled through traditional interstate dispute resolution
processes such as diplomacy and adjudication. As to treaty agreements,
there frequently exists not only general obligations of peaceful
settlement, but requirements or recommendations related to the use of
specific dispute resolution techniques such as negotiation, conciliation
and arbitration. At the present time, there are over 250 bilateral and
multilateral agreements60 that incorporate "compromissory clauses" or
other obligations to settle disputes peacefully. Many identify the
International Court of Justice as a possible forum for resolving disputes
as to the interpretation or application of the agreements.61
The principal element differentiating the various dispute
resolution techniques is the extent to which third parties can
legitimately participate in helping to bring about or determining the
settlement and, conversely, the extent to which the parties can reject a
settlement proposed by the third party.62 In practice, distinctions
between these techniques may be more theoretical than real, and a
particular process of dispute settlement may combine elements of several
techniques.
2.4.2 Settlement Procedures
2.4.2.1 Negotiation
Negotiation is a process whereby the parties directly communicate
and bargain with each other in an attempt to agree on a settlement of the
issue. By choosing to employ this technique, parties retain maximum
control of the dispute resolution process and outcome. Negotiation is
clearly the predominant and preferred method of resolving disputes. Ihe
use of other techniques, including adjudication, is invariably preceded,
accompanied by and arranged through some sort of negotiation process.63
Many existing environmental agreements require negotiation, and it
may be considered part of the state's consultation duty.64 In most
instances, negotiation is required only in response to a specific problem
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and only when it has reached a certain threshold of seriousness.65 Tills
permits an early identification of potential areas of disagreement as
well as an opportunity to agree on temporary measures should conditions
warrant such.
Third parties can play an important role in facilitating
negotiations. Through investigation and analysis, they provide a neutral
body of data to serve as the basis for negotiations and, as appropriate,
recommend technical measures." Third parties can also encourage dispute
resolution through mediation and conciliation and are apt to discuss?
political as well as technical issues.
2.4.2.2 Arbitration
This technique involves the referral of the dispute by agreement of
tht: pisrties, or at the request of one party depending on the agreement,
to an ad hoc tribunal for a decision usually on the basis of
international law.67 The parties to the dispute establish in advance the
issue or issues to be arbitrated and the machinery and procedure of the
tribunal, including the method of selection of the arbitrator. While
arbitration is normally binding, the parties can agree in advance that
the tribunal's opinion will only be advisory.68
Although there are few arbitral decisions on record involving
environmental disputes, many international environmental agreements rely
on arbitration as the primary means of dispute settlement should
negotiations between the parties prove unproductive. The Baltic Sea
Convention declares that states "shall" use arbitration if negotiation
and mediation fail.69 However, the agreement further notes that this will
require "common agreement" among the parties to the dispute and goes no
further in describing the arbitral process.™ Nonetheless, a number of
agreements outline in detail an arbitral process that must proceed at a
prescribed time, even if one party is uncooperative. Under these
circumstances states are able to commence the proceedings despite the
recalcitrance of one party.71
2.4.2.3 Adjudication
This technique involves the referral of the dispute, by agreement
or consent of the parties, to the International Court of Justice or some
other standing and permanent judicial body for a binding decision,
usually on the basis of international law. As in the case of
arbitration, and if the rules establishing the court allow, the parties
may agree to an advisory or non-binding opinion rather than a binding
decision, or to a declaratory judgment specifying the principles which
the parties should apply in the settlement of their dispute.72 A
declaratory judgment was issued in the North Sea Continental Shelf
case.73
Several environmental agreements contain provisions encouraging
parties to submit their disputes to the ICJ, though usually as a last
resort." Disputes normally come before the court only after the parties
agree to refer their differences to the court. Provision is made in
Article 36 of the ICJ Statute, however, for compulsory jurisdiction when
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both parties have previously submitted declarations accepting the cdort's
jurisdiction with regard to that agreement or dispute, or when treaties
in force between them authorize referral to the court.75 The right of t.fte
court to determine its own jurisdiction enhances its ability to hear
cases even when one of the parties refuses to appear.76
3. EtiToroammiL and Compliance Provisions; Practical Applications''
The following sections will review several additional requirennrvts,
such as reporting obligations and the duty to adopt appropriate dranestic
legal measures, that may be found in international environmental
agreements. With the exception of liability provisions, which are rarely
encountered, these additional requirements generally track the mechaiisiTS
discussed in preceding sections, such as consultation, monitoring and
dispute settlement.
3.1 Duty to Legislate
As noted, parties to international agreements are bound by general
international law to carry out their treaty obligations, which includes
the adoption of appropriate and necessary domestic legal measures. This
helps to assure other parties that each state has taken the required
domestic steps to review and implement obligations. Many agreements
contain explicit language obligating states to adopt national legislation
aimed at preventing and punishing violations of the agreement.
For example, the 1972 Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matter (the London Dumping
Convention or LDC) provides that each party is to take "appropriate
measures to prevent and punish conduct in contravention of the
Convention."77 Under the 1978 Protocol Relating to the International
Convention for Prevention of Marine Pollution from Ships (MARPOL),
parties are obligated to provide the Secretariat with texts of laws,
orders, decrees, regulations and other instruments promulgated for
purposes of the convention, and to establish sanctions pursuant to their
domestic laws in the event of violations thereof.78 Under the 1973
Convention on International Trade in Endangered Species of Wild Fauna and
Flora (CITES), parties are obligated to report biennially on all
legislative, regulatory and administrative measures taken to enforce the
convention and to take measures to penalize trade in violation of the
convention.79
The 1972 Convention for the Protection of the World Cultural and
Natural Heritage requires that parties take appropriate legal and
administrative measures for the identification and conservation of
"natural heritage," including the habitats of threatened species, and
that they report to the General Conference of the United Nations
Educational Scientific and Cultural Organization (UNESCO) information on
the legislative and administrative provisions they have adopted in
accordance with the convention.80
The United Nations Environment Programe (UNEP) Regional Seas
Agreements for the Mediterranean and the Wider Caribbean generally
provide that parties shall take appropriate measures to discharge tneir
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obligations, as well as report regularly to the meetings of the
parties.81
The LKTAP Convention generally provides for the development of.
"policies" for combating air pollution, and for the exchange of
information thereon, including major changes in national policies likely
to cause significant changes in long-range transboundary air pollution.82
National policy reports are a regular agenda item at meetings of t?is
parties.
The 1985 Vienna Convention on the Protection of the Ozone Layer,
which is patterned after the UNEP Regional Seas agreements, obliges the
parties to adopt appropriate legislative or administrative measures .-rd
to transmit such iirformation to meetings of the parties.83 (In response
to the concerns of developing countries, the obligation to legislate,
among ether general obligations, was qualified by a party's
capabilities.) Interestingly, while the 1987 Montreal Protocol on
Substances that Deplete the Ozone Layer contains more detailed
obligations than its parent Vienna Convention, it does not contain a
specific provision on adopting and reporting on legislative measures.84
Finally, the 1989 Basel Convention on the Control of Transboundary
Movement of Hazardous Wastes and their Disposal requires that each party
undertake the appropriate legal and administrative measures necessary to
implement and enforce the convention including measures to prevent and
punish conduct in violation thereof.85
3.2 Reporting Obligations
International environmental agreements generally jjicorporate
reporting requirements which affect specific aspects of the agreement's
implementation including the collection of data, record keeping, and
other activities, such as the reporting of national legislative actions
previously discussed. In general, reports are prepared and submitted by
states at specified intervals and in a specified format for distribution
to other parties. Not only does the information provide assurances as to
the compliance status of states, it promotes future effective
implementation by virtue of access to an expanding data base.
The LDC provides a good example of contemporary reporting
requirements. Parties are required to inform the Secretariat, inter
alia, of any acts of dumping that occurred without a permit in cases of
force majeure, of any acts of dumping of prohibited wastes in non force
majeure emergency situations (Article V, 1 and 2), and of all dumping
permits issued, including the nature, quantities, location and timing of
permissible acts of dumping (Article VI, 1 and 4).06
CITES requires that records be kept of all transactions involving
protected species, including the types of permits authorized.
Furthermore, a party must report annually to the Secretariat (Article
VIII, 6 and 7). Such reports allow the parties to CITES to ascertain the
volume of trade in a given species as well as to review the propriety of
permits issued.
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MARPOL mandates that parties report on required certificates, such
as for the seaworthiness of vessels, provide a list and description of
reception facilities (as they are required to provide adequate
facilities), and report the penalties ijmposed annually (Article 13.'i.
The IKTAP Convention contains one general reporting obligation,
namely that parties exchange data on the emissions of air pollutants and
the amount of emissions that cross national borders (Article 8). On the
other hand, the Convention's NOx Protocol contains detailed reporting
obligations, including the reporting of levels of national annual
emissions, and calculations on progress made in establishing required
national emission standards for pollution control measures and the
availability of unleaded fuel (Article 8).
Ihe Montreal Protocol also contains precise reporting requirements
relating to annual production and imports and exports of controlled
substances (Article 7), and requires that parties notify the Secretariat
of any allowed transfer of production between parties and of any addition
to calculated production levels allowed by the Protocol. Reporting of
the data enables the Secretariat and the parties to be assured that other
parties are meeting their consumption level under the defined baselines.
Finally, the Basel Convention requires parties to report annually
to the Secretariat information relating to the amount and types of wastes
governed by the convention which are exported and imported. More
specifically, information is required on disposal operations and efforts
to reduce the amount of waste subject to transboundary movements. As one
of the objectives of the convention is to minimize waste generation and
transboundary movements, this information is of particular interest.
It is important to note that reporting requirements address many
concerns, and not simply that of enforcement, and may indeed serve a dual
purpose. Information provided under the agreement serves not only as a
basis for determining compliance, but also as a basis for determining
whether the objectives of the agreement are being met, or whether new
policies need be developed.
3.3 Specific Compliance Procedures
A number of international environmental agreements contain specific
procedures relating to the review and detection of compliance and
noncompliance. These procedures may take a variety of forms, including a
specific role for the Secretariat. For example, under CITES, the
Secretariat is empowered to study reports of the parties and request any
information it deems necessary to ensure the implementation of the
Convention and to focus the attention of the parties on any pertinent
matter (Article XII, 2(d) and (e)). Ihe Convention also provides for the
Secretariat to notify a party directly if it believes that the Convention
is not being effectively implemented, whereupon the party in question is
to respond. (It may also request an inquiry, with information from the
inquiry being furnished for the next meeting of the parties) (Article X).
The CITES example represents one of the more independent Secretariats in
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the environmental field. Frequently, the Secretariat's authority is more
limited.
The marine field incorporates some of the most highly developed
enforcement and compliance procedures. It is in marine environment:tl
agreements that actual inspection procedures involving other parties have
been developed. Other environmental agreements must rely on report.uvj
rather than individual or collective "on-site" verification. MARK?..
provides that the parties should cooperate in the detection of violations
and in the enforcement of the agreement with respect to environmental
mDnitoring, reporting, and the accumulation of evidence (Article 61).
MARPOL also establishes a port state enforcement regime whereby the port
state inay inspect on its own volition, or where the flag state has
concurred after appropriate notification (Article 6, (4) and (5)).
Finally, MARPOL sets out detailed requirements for the reporting of
discharges of harmful substances, including reporting requirements for a
party's maritime inspection authorities (Article 8 and Protocol I). The
U.S. Coast Guard, for example, conduces routine surveillance operations
and reports discharges through the U.S. State Department to flag states.
This is consistent with the obligations placed on all parties to furnish
flag states information on violations committed by their vessels (Article
6(3)).
The Secretariat of the London Dumping Convention is also
responsible for consulting with the parties by providing recommendations
(Article XIV, 3) and has, in the past, brought a number of implementation
issues to the parties attention. The LDC also requires the parties not
only to punish violators of the Convention (Article VII), but also to
cooperate in developing procedures for the reporting of vessels which are
observed dumping in violation of the Agreement (Article VII, 3).
(Procedures have been proposed but never adopted.) Regarding radioactive
waste disposal at sea, in 1977 the members of the OECD set up within the
NBA a multilateral consultation and surveillance mechanism to promote the
objectives of the LDC.87 It sets out detailed notification, assessment,
reporting and inspection procedures. It is consistent with the IAEA's
revised recommendations on the disposal of low level radioactive waste
under the LDC, and calls for international observation of the loading and
disposal of such waste to ensure compliance with the Convention.88
The air pollution field has not yet experienced the development of
detailed compliance procedures. The Montreal Protocol contains an
article on noncompliance (Article 8), which requires parties at their
first meeting to consider and approve procedures and institutional
mechanisms for establishing noncompliance and the treatment of parties in
noncompliance. (This article was the result of the inability of the
negotiators to agree on such procedures during the conclusion of the
Protocol.) To resolve the issue, the parties set up a working group
which has recommended the establishment of an "Implementation Committee"
which will report to the meeting of parties with recommendations.
Finally, the Basel Convention contains a specific article on
verification which provides that a party suspecting a breach inform the
Secretariat and the offending party. The Secretariat, in turn, will
inform other parties. This provision, while general, may assist in
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264 INTERNATIONAL ENFORCEMENT WORKSHOP
detecting illegal traffic, a major preoccupation of many of the
convention's negotiators.
3.4 Dispute Settlement
Ultimately, in cases where states have not been able to resolve
questions relating to compliance, they may have recourse to some form of
third party dispute resolution process. As discussed, this can range
from some form of consultation, to mediation, or even formal
adjudication. For the most part, dispute settlement mechanisms are
fairly general in many international environmental agreements. Some
simply reiterate Article 33 of the UN Charter which calls upon parties to
resolve their disputes through peaceful means including, inter alia.
negotiation, conciliation, or arbitration.89 There is no mandated
procedure and a party is free to decline a third party settlement. (Seo,
for axa/jple, Article 13 of the IJRTAP Convention.) On the other hand, the
1969 International Convention Relating to Intervention on the High Seas
in Cases of Oil Pollution Casualties (Article VIII),9C and its 1973
Protocol Relating to Intervention on the High Seas in Cases of Marine
Pollution by Substances other than Oil, provide for consultation
procedures and arbitration. MARPOL provides for conciliation and binding
arbitration (Article 10). The LDC provides for the parties to consider
dispute settlement mechanisms (Article XI); in 1978, the parties adopted
amendments to the convention providing for compulsory and binding
arbitration. (These amendments have not, however, entered into force,
and may never enter into force.)
The Vienna Convention and its Montreal Protocol employ a
conciliation procedure and an "opt in" procedure, whereby states must
affirmatively accept compulsory arbitration or referral to the
International Court of Justice.91 UNEP Regional Seas agreements generally
have non-compulsory dispute settlement procedures with the potential for
referral to arbitral procedures if the parties agree. Finally, the Basel
Convention (Article 20) contains an "opt in" procedure like the Vienna
Ozone Layer Convention.92
In conclusion, in the field of international environmental
agreements, dispute resolution mechanisms are largely employed on a
state-to-state basis rather than as part of an institutional process. It
is also worth pointing out that, for the most part, the dispute
settlement mechanisms contained in these agreements are rarely
activated and more effort goes into their negotiation than their use.
4. Selected Non—Envin«vi»-^'bal Agreements
The final section of this paper will summarize several important
agreements from other fields which are relevant to the present
discussion. These include the Law of the Sea, Antarctica-related
treaties, and arms control agreements.
4.1 Law of The Sea
The 1982 UN Convention on the Law of The Sea, which is not in
force, is generally regarded as reflecting customary international law,
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INTERNATIONAL ENFORCEMENT WORKSHOP 265
with the exception of its deep-seabed provisions. It contains a numbs: of
obligations including the protection of the marine environment.93 In the
simplest terms, the Convention contains a mix of flag, port and cca:-;tal
state enforcement provisions which greatly expand the enforcement
authority of coastal states in the Exclusive Economic Zone (EEZ) boyoivl
the scheme contained in MARPOL.*1 Generally, coastal states are
authorized to enforce international standards in their EEZ. (These
international standards are understood to be those adopted by the TMO.)
With respect to foreign flag vessels, including inspection and actual.
detention, these powers are governed by a system of procedural safeguards
embodied in Section 7 of Part XII and ultimately by Part XV's compulsory
dispute settlement procedure.
4.2 Antarctic Treaty System
The Antarctic Treaty System comprising the 1959 Antarctic Treaty
and its recommendations and subsidiary agreements is an important
environmental regime in its own right.95 Designed to defuse the issue of
claims to sovereignty in the Antarctic and to preserve it for peaceful
purposes, the Antarctic Treaty contains unilateral rights of inspection
(Article VII) to ensure that its peaceful purposes and environmental
protection regime are maintained. Reports of such inspections are an
increasingly important topic of discussion at treaty meetings. It also
contains a rather unique provision calling upon the contracting parties
to exert appropriate efforts consistent with the UN Charter to ensure
that no state engages in activities in Antarctica contrary to the terms
of the treaty (Article X).
Under the 1980 Convention for the Conservation of Antarctic Marine
Living Resources, there is established an ecosystem approach to fishery
activities in Antarctic waters; reporting requirements on harvesting
activities (Article XX); a role for the Commission in monitoring
compliance whereby it can draw to the attention of all parties an issue
of implementation by a party (Article X); an obligation to ensure
compliance with the convention including the imposition of sanctions
(Article XXI), and a provision calling for the development of observation
and inspection procedures for harvesting activities (Article XIV) ,96
Finally, there is the 1988 Convention on the Regulation of
Antarctic Mineral Resource Activities (the Antarctic Minerals or
Wellington Convention), which, though not in force, establishes a regime
to regulate mineral resource exploration and exploitation in
Antarctica.97 The Convention establishes a variety of institutions that
have the responsibility of deciding on whether to allow mining activities
to go forward. There are detailed reporting, monitoring inspection and
enforcement provisions (Articles 37-38, 47 and 52) with a mix of
institutional and state compliance mechanisms including procedures for
suspension and cancellation of exploitation rights. There are also
detailed compulsory and binding dispute settlement procedures involving
state-to-state and institutional mechanisms. Many enforcement and
compliance procedures worked out in the Convention were the result of
compromises between states claiming, and states not recognizing,
sovereignty in Antarctica.
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266 INTERNATIONAL ENFORCEMENT WORKSHOP
4.3 Weapons
The 1968 Treaty on the Nbn-Proliferation of Nuclear Weapons sets
forth a regime for preventing the spread of nuclear weapons.98 Inclttded
are procedures for scrutinizing the transfer of nuclear materials,
including a detailed system of IAEA managed inspections and safeguTirds.
One of the best examples of a contemporary international agreement
incorporating extensive compliance monitoring mechanisms is the 1571 Sea
Bed Treaty." While not strictly an environmental convention, one cf ths
express purposes of the prohibition on the placement of nuclear and other
weapons on the ocean floor is the furtherance of exploration and other
peaceful purposes. Environmental protection motivations thus are clearly
preeminent. Article III of the treaty provides for verification of
conjpliance by any party through direct observation and other means. If
nor .compliance with any provision is suspected, parties are reguired to
consult with a view to resolving any doubts. If any party still remains
dissatisfied, other states shall be notified whereupon they will seek
collectively to ensure verification of compliance.100 If necessary, on-
site inspections are appropriate, upon the conclusion of any collective
action, a report outlining the findings of the parties is published for
the benefit of all parties.101 In addition to the provisions addressing
collective action, Article III, paragraph 4 permits referral of the
dispute directly to the UN Security Council in the event the signatories
are unable to resolve their differences.
The Convention on the Prohibition of Military or any Other Hostile
Use of Environmental Modification Techniques102 resulted principally from
the realization that scientific research into environmental modification
techniques, such as the genetic engineering of chemical neutralizing
agents, could be adapted for military use. Compliance with this
agreement is accomplished primarily through consultation,103 though the
lodging of a complaint with the UN Security Council is also
facilitated.10* While neither of these provisions is particularly unique,
the agreement also provides for the formation of a consultative Committee
of Experts, which consists of technical experts in the field who
represent each of the parties.105 The Committee is responsible for making
appropriate findings of fact with respect to any dispute that arises
between the parties. While the role of the Committee is purely advisory
in nature, the experts have the right to request relevant data from any
party.106
4.4 South Pacific Nuclear Free Zone Treaty
On August 6, 1985, the South Pacific Forum, a body comprising the
countries of the South Pacific region, endorsed the South Pacific Nuclear
Free Zone Treaty and opened it for signature. The principal goals of the
agreement are the maintenance of a prohibition on all nuclear weapons in
the region and the continuance of the ecological status quo. For the
purposes of verifying compliance with all provisions of the agreement,
the parties have established a "control system" which provides for the
regular exchange of technical information, consultation, and a complaints
process.107
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If a dispute is not resolved after negotiations between two or more
parties, any party may bring a complaint before a Consultative Committee,
which consists of one representative from each state.106 If the Conralttce
determines that a complaint has merit, that body will initiate an
inspection to determine all relevant facts.109 The agreement provides for
unconditional free access to members of the inspection team. At fJ-ts
conclusion of an inspection, the inspection team must provide a written
report to the Committee indicating whether or not a breach has occurred.
If so, the parties to the agreement are required to "meet promptly at a
meeting of the South Pacific Forum.""0
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268 INTERNATIONAL ENFORCEMENT WORKSHOP
BTdnptes/References
1. See F. Kirgis, Current International Law (1985).
2. See N. Leech and C. Oliver, Materials on the International Legal
3. A/Conf. 39/27. While the United States is not a party to the
convention, the convention is regarded as being generally reflective of
customary international law.
4. 3ae F. Kirgis, International Organizations 433-43 (1983).
5. Consider, for example, the U.S.-Canada acid rain dispute which, wftjle
public, has not been brought to formal dispute settlement procedures, or
the French-New Zealand dispute over the sinking of the Greenpeace vessel
the "Rainbow Warrior."
6. See A. Kiss, survey of Current Developments in International
Environmental Law 12 (1976). See also Benedick, "Environment in the
Foreign Policy Agenda," Department of State Bulletin 55 (June 1986).
7. See Lutz, "Directions of Environmental Law in the International
System: An Assessment of Tasks and Challenges for Lawyers," in
Environmental Pollution and Individual Rights: An International
Symposium 192, 194 (1978).
8. See L. Caldwell, Concepts in Development of International
Environmental Policies. International Environmental Law 12 (1974).
9. See Corfu Channel Case (U.K. v. Alb.), 1949 ICJ 4. See also
Principle 21 of the Stockholm Declaration.
10. See Caldwell, supra note 3 at 12-13.
11. See w. Gormley, Human Rights and Environment; the Need for
International Cooperation 217 (1976).
12. See, e.g.. "Convention on the Protection of the Marine Environment of
the Baltic Sea Area," 22 March 1974, in ILM 13 at 547.
13. See, e.g.. A. Springer, The International Law of Pollution 32 (1983).
14. See J.L. Hargrove, "Post-Stockholm: Influencing National
Environmental Law and Practice Through International Law and Policy," in
Proceedings 66 (American Society of International Law) (1972).
15. Article 60(2)(b) of the Vienna Convention on the Law of Treaties.
16. See Chorzcw Factory (Jurisdiction) (1928), P.C.I.J., Series A, no. 8
at 21.
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INTERNATIONAL ENFORCEMENT WORKSHOP 269
17. See E. Zoller, Enforcing International Law Through U.S. Legislation
66 (1985).
18. Id.
19. See supra note 10.
20. See Zoller, supra note 12 at 67.
21. Id.
22. 1C U.S.C. §1821(e)(2)(A), (B).
23. Se
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270 INTERNATIONAL ENFORCEMENT WORKSHOP
37. See, e.g., J. Schneider, World Public Order of the Environment:
Toward an International Ecological Law and Organization (1979) at l?7.
38. See Pollution Prevention Statement (EPA, January 26, 1989).
39. See Draft Interim EPA Policy on the Inclusion of Pollution Prt
Provisions in Enforoeiasnt Settlements (EPA, September 29, 1989).
40. See Lake Lanoux Arbitration (1957), in "Lake Lanoux Case," in AJJI. 53
at 169.
41. Soe supra note 14 for further discussion on point.
42. See Ruster and Sirama, vol. 11, "Netherlands and ERG: Frontier
Treaty," The Hague, 8 April 1960, Art. 58 at 5589.
43. See "Nordic Convention," Stockholm, 19 February 1974, in ILM 13,
Prin. 17 at 6.
44. See Agreement cm the Conservation of Nature and Natural Resources. 15
Envt'l. Pol'y & L. 64 (1985).
45. See "Convention for the Protection and Development of the Marine
Environment of the wider Caribbean Region," reprinted in 22 ILM. 227
(1983).
46. See "United Nations Convention on the Law of Ihe Sea," UN Doc.
A/CONF.62/122 of October 7, 1982, reprinted in 21 ILM 1261 (1982).
47. See 25 ILM 1369. It should also be noted that the Economic
Commission for Europe is developing an environmental impact assessment
convention, and that the Antarctic Treaty parties have adopted a binding
recommendation on environmental impact assessment.
48. See Westone and Rosencranz, Transboundary Air Pollution: The Search
for: an. International Response. 8 Harv. Envt'l. L. Rev. 89, 90 (1984).
See also S. Hajost, Acid Rain Symposium, 17 u. Tol. L. Rev. 107, 107
(1985).
49. Id. at 96.
50. See Article 198, UN Convention on the Law of the Sea.
51. See A. Levin, Protectingthe Human Environment 9 (1977).
52. Id.-
53. UN General Assembly Res. 34/68, 5 December 1979, "United Nations
Agreement Concerning the Activities of States on the Moon and Other
Celestial Bodies," in ILM 18, Art. 7 at 1436-37.
54. See supra note 13 at 149.
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INTERNATIONAL ENFORCEMENT WORKSHOP 271
55. Id. at 166.
56 See Ruster and Simma, vol. 11, "Council of Europe, Consultative
Assembly: Draft European Convention for the Protection of International
Watercourses Against Pollution," 4 April 1974, Art. 12 at 5790.
57. Id.
58. See "Convention on Long-Range Transboundary Air Pollution," Geneva,
13 November 1979, in IJM 18, Art. 5 at 1444.
59. UN General Assembly Res. 37/10, 15 November 1982.
60. See generally, Sohn, "Settlement of Disputes Relating to the
Interpretation and Application of Treaties," 150 Recueil Des Cours 155
(1S76).
61. See 1983-84 ICJYB 51-56, 92-108 (1984).
62. See R. Bilder, An Overview of International Dispute Settlement. 1
Emory J. of Int'l. Dis. Res. 1, 22 (1986).
63. Id. at 24.
64. See, e.g.. "Transboundary Air Pollution Convention," supra note 48,
Art. 13 at 1448.
65. See, e.g., Ruster and Simma, vol. 9, "Czechoslovakia and Poland:
Agreement Concerning the Uses of Water Resources in Frontier Waters,"
Prague, 21 March 1958, Art. 9 at 4593.
66. See, e.g.. UNTS, vol. 66 (1950), no. 860, "Protocol Between France,
Belgium and Luxembourg to FJstablish a Tripartite Standing Committee on
Polluted Waters," Brussels, 8 April 1950 at 285-91.
67. See Bilder, supra note 52 at 25.
68. Id..
69. See "Convention on the Protection of the Baltic Sea Area," 22 March
1974, in IIM 13 (1974), Art. 18 at 552.
70. Id.
71. See Ruster and Simma, vol. 1, "International Convention Relating to
Intervention on the High Seas in Cases of Oil Pollution Casualties,"
Brussels, 29 November 1969, Arts. 15 and 18 at 468-69.
72. See Bilder, supra note 52 at 25.
73. See North Sea Continental Shelf (Fed. Rep. of Germany v. Denmark,
Fed. Rep. of Germany v. Netherlands), 1969 ICJ 10.
74. See, e.g., "Baltic Sea Convention," supra note 59, Art. 18 at 55.7.
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272 INTERNATIONAL ENFORCEMENT WORKSHOP
75. See A. Springer, supra note 44 at 157.
76. See "IGJ Statute," 25 October 1945, Art. 36 at 1186-87.
77. TIAS 8165, 1046 UMTS 120. Article VII, par. 2.
78. See International Maritime Organization (IMO) publication 52077. 14E
and 088 78. 09. E Article 11, par's. l(a) and 4.
79. TIAS 8249, 993 UNTS 243, Articles VII, par's. 7 (b) and 1 (a).
80. TIAS, 8226, Articles 5, (d) and 29.
81. See A. Kiss, "Convention for the Protection of the Mediterranean Sea
Against Pollution," in Selected Multilateral Treaties in the Field of the
Environment 448, Articles 4, 1 and 20, and the Convention for the
Protection and Development of the Marine Environment of the Wider
Caribbean Region, U.S. Treaty DOC. No. 98-13, Articles 4,4. and 22. See
also "Convention for the Protection of the Natural Resources and
Environment of the South Pacific Region" (not in force), which provides
in Article 5 that states shall endeavor to establish laws and regulations
for the effective discharge of Convention obligations. 26 ILM 38. It
should be noted that in the Caribbean Convention negotiations, a number
of states were reluctant to spell out a precise legislative
responsibility using the more general term "measures."
82. See supra note 1, Kiss, Articles 3,4 and 8(b). For a more explicit
obligation, refer to the 1988 Protocol to the 1979 Convention on Long-
Range Transboundary Air Pollution concerning the Control of Emissions of
Nitrogen Oxides of Their Transboundary Fluxes (not in force), which
provides in Articles 7 and 8 for development without undue delay of
national programs and policies to implement the Protocol, and that
parties must report on such programs and policies.
83. U.S. Treaty DOC. 99-9, Articles 2, 2.(b) and 5.
84. 26 IIJJ 1541.
85. UNEP/IG. 80/L.12, Article 4, par. 4.
86. The Sixth Consultative Meeting Under the IXC adopted specific
procedures for notification of permits.
87. OECD/C(77) 115 (Final), July 22, 1977.
88. IAEA/GOV/2218/Augjst 5, 1985, Annex II, at 41.
89. 55 Stat 1600, 3 Bevans 697.
90. DO document 402 77.15.E.
91. ICJ - Article II.
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INTERNATIONAL ENFORCEMENT WORKSHOP 273
92. As does CITES (Article XVII), which provides for non-compulsory
referral to the Permanent Court of Arbitration at the Hague.
93. United Nations Publication E.83.V.5 (Part XII).
94. MARPOL, Part, Section 6.
95. TIAS 4780; 402 UNTS 71.
96. TIAS 10240. The parties have now developed inspection procedures
which are patterned in part after other fisheries agreements and those of
the International Whaling Commission.
97. 26 HM 1700.
98. TIAS 68 39; 709 UNTS 161.
99. "Treaty on the Prohibition of the Emplacement of Nuclear Weapons and
other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and
in the Subsoil Thereof," London, Moscow, Washington, 11 February 1971.
100. Article III, par's. 2 and 3.
101. Id.
102. Geneva, 18 May 1977.
103. Article V, par. 1.
104. Article V, par. 3.
105. Article V, par. 2 and Annex, 1-5.
106. Id. at par. 5.
107. Article VIII.
108. Annex 3.
109. Annex 4.
110. Id.
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274 INTERNATIONAL ENFORCEMENT WORKSHOP
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INTERNATIONAL ENFORCEMENT WORKSHOP 275
CHALLENGE OF ENFORCING THE MONTREAL PROTOCOL ON PROTECTION OF STRATOSPHERIC
OZONE
JOHN S. SEITZ1 and SALLY D. MITOFF2
1. Director, Stationary Source Compliance Division, Office of Air &
Radiation, U.S. Environmental Protection Agency, Washington, D.C. 20460
(United States)
2. Environmental Engineer, Stationary Source Compliance Division, Office of
Air & Radiation, U.S. Environmental Protection Agency, Washington, D.C. 20460
(United States)
The views expressed in this article are solely those of the author; they do not
necessarily reflect the views or policies of the U.S. Environmental Protection
Agency.
SUMMARY
In September, 1987, under the auspices of the United Nations Environmental
Programme, the United States and 23 other nations signed the "Montreal Protocol
on Substances that Deplete the Ozone Layer." (1) To implement the requirements
of the Protocol within the United States, the Environmental Protection Agency
(EPA) has developed regulations for protection of stratospheric ozone.
Development and administration of the program to enforce an international
agreement such as the Montreal Protocol carries with it a unique set of
challenges, but is underscored by the same enforcement principles that govern
domestic environmental regulations.
This paper addresses the challenge of enforcing the Montreal Protocol in
four parts. Section 1.0 presents an overview of the basic requirements of the
Protocol, followed in Section 2.0 by a description of how the U.S. regulation
on Protection of Stratospheric Ozone was structured to facilitate implementation
and enforcement of the Protocol. Section 3.0 highlights the EPA's strategy for
monitoring compliance with the regulation and the Protocol, and Section 4.0
discusses the impact of other nations' enforcement strategies on the success of
the U.S. program and the Montreal Protocol.
1. OVERVIEW OF THE MONTREAL PROTOCOL
The September, 1987, Montreal Protocol on Substances that Deplete the Ozone
Layer sets forth a timetable for reducing ozone-depleting chemicals. This
international agreement is designed to address the global health and
environmental risks of increased levels of harmful ultraviolet radiation due to
stratospheric ozone depletion. The Protocol, which entered into force on
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276 INTERNATIONAL ENFORCEMENT WORKSHOP
January 1, 1989, has been ratified by 52 nations; these nations are referred to
as Parties to the Protocol.
The Montreal Protocol contains control measures, trade provisions, reporting
requirements, and noncompliance provisions pertaining to the production and net
importation of ozone-depleting substances. Each of these provisions is discussed
below.
The control measures in the Montreal Protocol apply to two distinct groups
of ozone-depleting chemicals, termed "controlled substances." Group I consists
of five chlorofluorocarbons (CFCs), whereas Group II is comprised of three
halons. The Group II controlled substances are stronger ozone-depleters than
Group I chemicals, but some question exists about the halons' exact ozone
depletion potential, and they are currently emitted in relatively small
quantities. The Montreal Protocol restricts the production and consumption of
these substances. Production is simply defined in the Protocol as the amount
of controlled substances produced minus the amount destroyed by technologies to
be approved by the Parties, whereas consumption is defined as production plus
imports minus exports.
As of July 1989, each Party to the Protocol must limit their production and
consumption of Group I substances to their 1986 levels of production and
consumption. These CFCs are scheduled for further reduction to 80% of 1986
production and consumption levels starting July 1, 1993, and a 50% reduction
starting July 1, 1998. The Group II controlled substances are to be frozen at
1986 levels of production and consumption, beginning January 1, 1992.
The means by which Parties to the Protocol are to meet these mandated
restrictions on production and consumption are not specified in the Protocol.
However, the Protocol does require that these limits be met on a specified annual
basis, termed the "control period."
Since the production of controlled substances is straightforward In
definition, it can be relatively simple to regulate. Consumption, on the other
hand, is inherently more challenging to control. Nations must regulate the
balance of production, import, and export to meet the consumption cap. One of
the challenges created by the Protocol, therefore, is how to design a system to
monitor and regulate the consumption of controlled substances.
Also restricted by the Montreal Protocol is trade with non-Party nations.
A ban on the import of controlled substances from nations which are not Parties
to the Protocol commenced January 1, of this year. Similarly, the Protocol
contains provisions which would ban the import of products containing controlled
substances. Still further restrictions on import and export are contemplated
in the Protocol. Consequently, the Protocol presents an array of import and
export limitations which must be monitored and verified.
To establish each Party's compliance with the Protocol, annual reporting of
production, import, and export activity is required. Procedures for determining
noncompliance with the Protocol, and for addressing the treatment of Parties
found to be in noncompliance, will be considered at future meetings of the
Parties.
Revisions to the Protocol are therefore likely, not only with respect to
treatment of noncompliers and establishment of trade restrictions, but also with
respect to the basic control measures. A complete phaseout of
chlorofluorocarbons, and the inclusion of additional chemicals as controlled
substances are currently contemplated. As revisions are made to the Protocol,
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each nation must revise their own regulations or policies accordingly. Hence,
another challenge of implementing an international agreement such as the Montreal
Protocol, is maintaining consistency between the ensuing domestic regulations
and the international agreement.
2. THE U.S. REGULATION FOR PROTECTION OF STRATOSPHERIC OZONE
To implement and enforce the Montreal Protocol within the United States,
the EPA developed, and issued in August 1988 under Clean Air Act authority, final
regulations for Protection of Stratospheric Ozone. The following discussion
summarizes the requirements of the U.S. regulation, with respect to compliance
monitoring and enforcement.
The Stratospheric Ozone Rule sets forth limitations on the production and
importation of controlled substances, and adjusts allowable levels of importation
based on export activity. (2) This rule is essentially a marketable permit
system, with compliance focusing on the valuation of production and importation
rights as assigned by EPA. The rule currently applies to approximately twelve
production plants, eighteen importers, and thirty-five exporters.
Ensuring compliance with the Montreal Protocol necessitates the development
of an easily administered and readily enforced regulation. Enforceability of
the United States' rule for Protection of Stratospheric Ozone is ensured in four
ways.
The rule uses a simple regulatory system, which minimizes the size
of the regulated community, and clearly defines the applicable
limits.
The rule contains specific recordkeeping and reporting requirements.
which enable and facilitate compliance monitoring.
The rule makes use of existing mechanisms for monitoring imports,
exports, and production.
The rule provides strong incentives for compliance, by including
clear prohibitions for unauthorized production and import, and a
clear definition of a violation.
Each of these points is discussed in more detail below.
First, EPA resolved to design a simple, and thereby enforceable, regulatory
program. Because the Montreal Protocol does not specify the means for meeting
the production and consumption caps, one of the first issues addressed in the
U.S. rulemaking was how to best restrict production and use of CFCs and halons.
From the enforcement perspective, the U.S. needed a regulatory system that would
give the greatest degree of assurance that the Protocol's production and
consumption caps could be achieved. The system had to be easy to administer and
enforce. The EPA considered several regulatory systems, including auctions or
allocation of user rights, adjustable fees, mandated engineering controls, and
caps on CFG and halon production and importation. The ultimate choice of the
regulatory system depended on many considerations, including economic costs,
equities, administrative costs, legal certainty, and small business impact, in
addition to enforceability. Yet, the final rule resulted in a system that was
deemed to be the most enforceable, that being allocated caps on production and
importation. (3) This system minimizes the number of sources with which we must
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278 INTERNATIONAL ENFORCEMENT WORKSHOP
monitor compliance, and sets a clearly defined cap on production and consumption
which meets the Protocol's limits.
A second example of how enforceability was addressed in development of the
regulatory system is in the administration of trading production and importation
rights between companies. It was decided to allow trading, for example buying
and selling, of allowable levels of production and importation, to alleviate the
inflexibility that unadjustabie caps would impose on businesses. Since trading
does add complexity to the rule, EPA minimized the potential for error when
structuring the trading provisions. Therefore, all transfers of production or
importation rights must come into EPA for approval or denial, accompanied by data
from which EPA can evaluate the transfer request, before the transfer may occur.
In this way, companies will not be erroneously or intentionally trading rights
which they do not hold.
These two examples illustrate ways to structure a rule to allow for high
rates of compliance; namely, by keeping the regulatory system as simple as
possible, by minimizing the size of the regulated community, and by keeping a
clear definition or control of the applicable limits.
Also essential to monitoring compliance and thereby enhancing compliance
rates, is requiring the regulated community to keep records and make reports
which document their compliance status. The Stratospheric Ozone Rule requires
companies to keep dated records and make periodic reports of the quantity of
controlled substances they produce, import, and export, and further requires
records which enable inspectors to check that data.
Importers, for example, must record the quantities they import, the date
of import, the port of exit and entry, and the country of origin, along with the
commodity code and importer number for the shipment as appears on U.S. Customs
Entry Summary forms. This information must be reported quarterly, thereby
enabling EPA to compare the reported values to import records collected by U.S.
Census. EPA may then assess the likely compliance status of the importer every
three months. Since compliance with the Protocol is determined on an annual
basis, this quarterly reporting allows for identification and possible correction
of problems before they lead to noncompliance with the Protocol. Importers are
required to maintain additional records on site, namely bills of lading and
invoices for each import, as a further check on the quantities reported as
imported. It is essential that regulations contain the recordkeeping and
reporting requirements that allow early identification of potential
noncompliance, and allow some means of verifying reported production and import.
In accordance with the third means specified for ensuring enforceability,
it is beneficial when developing a regulation to consider existing monitoring
programs. For example, in the analysis of the quarterly import reports required
by the Stratospheric Ozone Rule, EPA compares the quantities of controlled
substances reported as imported, to records collected by U.S. Census. However,
to make that Census information most useful to EPA, it was necessary to request
the International Trade Commission to assign specific Commodity Codes to the
controlled chlorofluorocarbons and halons. With this minor revision to Census'
data collection technique, EPA has created an independent check on import
records.
As another example, to facilitate EPA's review of import and export data
and to minimize confusion among the regulated community, import and export
reports required under the Stratospheric Ozone Rule use the same parameters and
terminologies already used by U.S. Customs. Similarly, the Stratospheric Ozone
Rule defines importer as the "importer of record" as listed on U.S. Customs
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INTERNATIONAL ENFORCEMENT WORKSHOP 279
Service forms. Early consideration of other agencies' existing monitoring
requirements enabled the writing of more cohesive and stronger import and export
provisions.
Likewise, in the development of the recordkeeping system for production,
EPA reviewed producers' current means for measuring and monitoring production.
Use of these existing procedures facilitates accurate monitoring by the regulated
industry.
Providing incentives for compliance is the fourth way the EPA addressed
enforceability of the Stratospheric Ozone regulations. Compliance with the U.S.
regulation is enhanced by the inclusion of clear prohibitions and penalty
authority. The U.S. rule contains a specific section on prohibitions, which
clearly states that it is a violation to produce or import at any time without
sufficient allowances. The rule specifies that every kilogram produced or
imported in excess of the authorized amount is a separate violation, subject to
penalty assessment of up to the $25,000 statutory maximum under the Clean Air
Act. These conditions provide a strong incentive for compliance.
3. COMPLIANCE MONITORING STRATEGY
With the promulgation of the final rule for Protection of Stratospheric
Ozone, the legal mechanism was in place to monitor and enforce the applicable
provisions of the Montreal Protocol. However, in order to ensure that violations
of the rule would be discovered and enforced, EPA established a compliance
monitoring strategy. (4) In summary, that strategy includes:
the use of quarterly reports to evaluate compliance,
annual inspections of each producer and importer to verify the data
sent in the quarterly reports,
comparison of Customs data with import reports to identify
discrepancies and potential violations,
development of a personal computer system to track production and
importation activity as gleaned from reports and inspections.
This strategy enables EPA to monitor compliance throughout the control
period, thereby allowing early identification of problems which, if not noticed
in time, might lead to noncompliance with the Protocol. Through this strategy
and the careful review of Customs data, EPA has already identified several
potential importer violations, and is working towards resolving those situations
before the end of the control year. Through the development of the computer
system, EPA has facilitated reporting for those companies choosing to report
electronically. This electronic reporting can deliver more timely information,
thereby enhancing the Agency's enforcement capabilities. These initiatives,
along with the development of an enforceable regulation, optimize the United
States' ability to meet the Protocol limits.
Violations of the Stratospheric Ozone Rule will be addressed as quickly and
as early in the control period as possible, to avoid noncompliance with the
Montreal Protocol. Violators will be required to obtain the production and
importation rights from other companies necessary to compensate for their excess
production or importation. If violations cannot be remedied prior to the end
of the control period, EPA may need to reduce the number of production and
importation rights allocated the next year, to ensure achievement of the long
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280 INTERNATIONAL ENFORCEMENT WORKSHOP
term goals of the Protocol. Alternatively, the Parties to the Protocol may in
the future specify acceptable techniques for destroying controlled substances.
The EPA will assess penalties for violations, within the statutory limits of the
Clean Air Act, based on the seriousness and economic benefit of the particular
violation.
4. IMPACT OF OTHER NATIONS' ENFORCEMENT PROGRAMS ON THE U.S. AND THE MONTREAL
PROTOCOL
Although it is still prior to the end of the first control period, it is
possible to anticipate the impact other nations' programs may have on
implementation of the U.S. Stratospheric Ozone Rule and the Montreal Protocol.
Since the U.S. rule is designed to function independently from other nations'
rules, the effect of other nations' programs on our ability to monitor compliance
is minimal. Nonetheless, varying import and export requirements may have an
indirect effect on compliance. Differences in the way countries define who is
the importer, and what constitutes an import may cause misunderstandings among
the regulated community, thereby creating unintentional violations of the U.S.
regulation. The Parties of the Protocol do, however, strive to avoid this
ambiguity, and achieve consistent implementation where plausible.
For example, countries have varied in their interpretation of whether used
and recycled CFCs and halons should be counted for exports. The U.S. in the 1988
final rule for Protection of Stratospheric Ozone did not allow exporters of used
or recycled controlled substances to claim credit for those exports. However,
during the 1989 Protocol meeting in Helsinki, Parties agreed that trade of
recycled or used controlled substances should be included in the consumption
calculation. Therefore, EPA is revising its rule to ensure the international
consistency of this provision.
The effect of other nations' enforcement programs on the success of the
Protocol overall depends on the complexity of each nation's control measures,
and how readily they are enforced. Many nations will be able to achieve the
initial freeze on CFG production and consumption by limiting use of CFCs as
propellants in aerosols; an action taken by the United States in 1977. Since
a ban on CFC use in aerosols is straightforward to implement, and will allow many
countries to come well within their 1986 levels of production and consumption,
these countries are likely to achieve compliance with the Protocol's initial
control measures. Through periodic meetings of the Parties to the Protocol, and
the worldwide effort to limit use of ozone-depleting substances, reduction of
CFCs and halons to the levels required by the Protocol will likely be achieved.
CONCLUSION
In summary, the Montreal Protocol is a comprehensive agreement for
addressing the global threat of stratospheric ozone depletion. The Protocol
establishes a framework of production, import, and export restrictions, to
achieve worldwide reductions in ozone-depleting chemicals. The Protocol gives
nations discretion as to how best meet those restrictions, and requires annual
reporting to monitor each country's progress in meeting the restrictions. Future
revisions to the Protocol may necessitate that countries revise their own
regulations and policies regarding the control of ozone-depleting chemicals.
The U.S. has initially chosen to implement the Protocol through adjustable
caps on production and importation. The Environmental Protection Agency will
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INTERNATIONAL ENFORCEMENT WORKSHOP 281
enforce and monitor compliance with these caps through: annual inspections of
producer and importer records, review of quarterly compliance reports, and
comparison of quarterly reports with Census and Customs data. The U.S.
compliance monitoring strategy should enable quick identification of violators,
which, combined with clearly defined limitations and strong enforcement
provisions, will minimize noncompliance. Similar emphasis on enforcement of
the Protocol worldwide will successfully reduce the levels of ozone-depleting
chemicals, and help achieve protection of the stratospheric ozone layer.
REFERENCES
1 Montreal Protocol on Substances that Deplete the Ozone Layer; Final Act,
United Nations Environmental Programme, 1987.
2 United States Federal Register, Protection of Stratospheric Ozone; Final
Rule. Vol. 53, August 12, 1988, pp. 30566-30602.
3 United States Federal Register, Protection of Stratospheric Ozone; Final Rule
and Proposed Rule, Vol. 52, December 14, 1987, pp. 47486-47523.
4 U.S. Environmental Protection Agency, Office of Air Quality Planning and
Standards, Stationary Source Compliance Division, Compliance Monitoring
Strategy for the Stratospheric Ozone Rule, April 18, 1989.
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282 INTERNATIONAL ENFORCEMENT WORKSHOP
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Ocean pollution - protection of the seas
Author: R.J. van Dijk, Rijkswaterstaat, North Sea Directorate
P.O. Box 5807, 2280 HV Rijswijk, The Netherlands
0. Summary
The following international agreements and instruments concerning ocean
pollution are especially of importance for Western Europe: London
Dumping convention, MARPOL, Oslo convention, Paris convention,.E.E.C.
legislation, North Sea ministers conferences.
In principle the international agreements and instruments are implemented
in national laws or in national actionplans.
Almost all dumping operations in the North Sea have finished or will
terminate in a very short time.
Compliance with MARPOL means that ships will have to pay for the
disposal of liquid waste to shore reception facilities, while moreover disposal
may cause costly delays.
Many ships therefore still prefer illegal discharge of their wastes at sea.
Registrations of oilspills in the North Sea are obtained by a remote sensing
equipped airplane.
Court procedures against suspected ships were very difficult and hardly ever
resulted in decisions to convict the ships' master.
Actions are taken internationally which will result in the near future in a
better enforcement of MARPOL in the W. European Seas.
As an additional tool the Netherlands will carry out intensified inspections
of suspected offenders. Costly delays resulting from such inspections will
undoubtebly act in a very preventive manner.
Discharges from offshore operations are discussed in the Paris Commis-
sion. Discharges of oil contaminated cuttings from exploration and appraisal
wells will be prohibited from 1994, and in 1992 a date will be set for the
prohibition of discharges of these cuttings from all offshore operations.
The agency of the minister of Economic Affairs responsible for the mining
activities is also responsible for the enforcement of the environmental
requirements. In practice operators have to report on their discharges
(operational and accidental) and little enforcement activities are carried out.
But there are no indications that offense of discharge rules is a regular
phenomenen.
The impression is that for the UK Continental Shelf the situation is worse,
almost all registrations there from airborne surveillance show large spills of
oil around the platforms.
Enforcement of measures to reduce pollution of landbased sources is carried
out in a number of ways which can generally be described as the classical
ways to enforce enviromental regulation on industrial and community
pollution. Nowadays much attention is paid at the improvement of co-
operation of all the agencies involved. More and more separate enfor-
cement units are established.
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284 INTERNATIONAL ENFORCEMENT WORKSHOP
1. Overview of international agreements in W. Europe
Early civilizations living near the water of oceans, seas and rivers must
undoubtedly have recognized the ease with which wastes can be dumped.
Severe and unacceptable pollution of the waters by activities of man
however began during the industrial revolution. Sewage-systems, including
streams and rivers became overburdened by industrial wastes and sludges.
So it became necessary for industrial countries to seek for control of waste
water discharges and waste dumping in inland waters, rivers, seas and
oceans.
Discharges and dumping in rivers and inland waters were controlled in most
industrial countries by national legislation, the regulation of discharges and
dumping in seas and oceans was looked upon as being subject of interna-
tional agreements, for which consultations started in the late 1960's.
An overview of existing international agreements and instruments con-
cerning the control and prevention of ocean pollution and especially of
importance for Western Europe:
1. London Dumping convention/LDC - 1972)
This convention is still the only world wide convention for the control of
the input of wastes and harmful substances dumped into the sea from
sources other than from normal ships-operations.
Dumping is defined in the London Dumping Convention to include any
deliberate disposal at sea of wastes or other matter from vessels, aircraft
or other man-made structures at sea, or any deliberate disposal at sea
of vessels or other man-made structures at sea.
2. International Convention for the prevention of pollution from ships
(MARPOL-1973)
This convention covers all the operational discharges from ships.
3. Oslo convention (Oslo - 1971)
This convention can be considered as a regional component for the
control of Ocean Dumping, and applies geographically to the North
East Atlantic Ocean, from Iceland to Spain.
As it became clear, that land based sources play a major if not a dominant
role in man introduced pollution of the sea, in Western Europe interna-
tional agreements were also concluded in this respect. An example is:
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INTERNATIONAL ENFORCEMENT WORKSHOP 285
4. Paris convention (Paris - 1974)
This regional convention concerns the protection of the North East
Atlantic (same area as the Oslo convention) against pollution from land
based sources. It covers discharges into the sea either directly via
pipelines or via rivers, estuaries and coastal waters. It also covers
discharges that reach the sea by way of the atmosphere. In addition
direct discharges from offshore operations are also covered.
There are more regional conventions covering the same items but there
is no comparable world wide convention.
From recent years the following developments have to be noticed:
5. E.E.C. legislation.
More and more regulation covering input into surface waters (rivers) is
now laid down in (for member states) binding EEC- directives.
6. North Sea ministers conferences.
As some countries felt the need for a political impetus for the regional
bodies as Oslo and Paris commissions, periodical North Sea Ministers
Conferences (1984, 1987, 1990) werd held. These conferences resulted in
so called "agreed actions" laid down in the "final declarations" of these
conferences.
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286 INTERNATIONAL ENFORCEMENT WORKSHOP
2. Commitments of the Netherlands to implement the international agree-
ments
In principle the international conventions like LDC, MARPOL, Oslo and
Paris conventions have to be implemented in national laws. In the Nether-
lands the relevant laws are:
- W.V.O. (Wet verontreiniging Oppervlaktewater - Inland water pollution
act): Paris conv. and EEC-directives.
- W.V.Z. (Wet Verontreiniging Zeewater - Ocean dumping act): LDC and
Oslo convention.
- W.V.V.S. (Wet Voorkoming verontreiniging door scheepvaart - Preven-
tion Pollution from ships act): Marpol.
- M.C.P. (Mijnwet Continentaal Plat - Continental Shelf mining act): Paris
convention in as far as the marine environment is concerned.
In the Netherlands W.V.O. and W.V.Z. implement the legally binding
decisions from Oslo and Paris commissions.
The decisions of the Oslo commission are generally speaking more stringent
than the guidelines from LDC, therefore in the Netherlands LDC-decisions
generally do not require separate implementation..
In MARPOL the decisions are laid down in annexes, which have to be
ratified by contracting parties. In the Netherlands amendments of existing
annexes can be accepted by pacid procedures in parliament. For new an-
nexes, however, exphcid approval by parliament is required which means
time consuming procedures.
The "agreed actions" from the North Sea Ministerial Conferences are
politically binding. They may have to become legally binding through de-
cisions of the Oslo and/or Paris commissions, MARPOL requirements, IMO
decisions, EEC directives or national legislation. In the Netherlands an
"actionplan", presented to parliament illustrates the way the Netherlands will
implement the "agreed actions".
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287
3. Actual situation of ocean dumping and other sources of ocean pollution in
N.W. Europe
Ocean dumping can be divided in several categories, which are shown
hereafter, followed by the actual situation in N-Western Europe.
a. dumping of industrial waste -
b. dumping of sewage sludge
c. Sea incineration
d. dumping of (polluted) dred-
ged materials
e. dumping of nucleair waste
N.W. Europe:
terminated end 1989 (all countries
except U.K.)
terminated end 1993 (U.K.)
terminated 1990 (all countries except
U.K.)
terminated 1998 (U.K.)
terminated 1991
guidelines have been developed and
are under review
terminated since the LDC morato-
rium (1986).
The MARPOL annexes 1 (oil); 2 (transport of liquid chemicals in bulk); 5
(shipsgarbage) and from 1991: 3 (hazardous goods in packed form) are in
force for the North Sea.
For the pollution of the sea via rivers and atmosphere in the last North Sea
ministers conference generally speaking a 50% or more reduction of input
of hazardous substances via rivers and estuaries between 1985 and 1995 was
agreed and for some dangerous substances (dioxines, mercury, cadmium,
lead) a 70% or more reduction was agreed in the same period.
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288 INTERNATIONAL ENFORCEMENT WORKSHOP
4. Enforcement of ocean dumping and ocean pollution regulation in The
Netherlands
4.1. Dumping
As it will be clear that almost all dumping operations in the North Sea
have finished or will terminate in a very short time, enforcement of
dumping regulations will not be dealt with in detail in this paper. From
,the recent past it is just noticed that a sophisticated device has been in
use for about 10 years for remote control of sea incineration activities.
For the only remaining dumping activity, dumping of (polluted) dredged
materials, enforcement activities are carried out in a more general way.
It is considered to be sufficient to have periodically checks of the degree
of pollution of the dredged material to be dumped in sea in combina-
tion with a more permanent check of the spots where the relevant
actual dredging activities are carried out.
4.2. MARPOL
More interesting is the enforcement of MARPOL regulations. Here
severe problems have been encountered. Generally speaking compliance
with MARPOL will mean that ships will have to pay for the disposal of
oily sludges, washwaters from tanks, garbage etc. to shore reception
facilities. Moreover in many cases disposal to shore reception facilities
causes delays.
In practice it has been found therefore that many ships still prefer
illegal discharge of their wastes at sea. In fig. 1 a picture is shown of
the registered oil spills in the North Sea in the year 1988. If compared
with the dominant sealanes (fig. 2) a remarkable coherence is found.
These registrations have been obtained by the remote sensing equipped
airplane of the Netherlands Coastguard (fig. 3). Such airborne surveil-
lance is carried out in the North Sea area along the Dutch coast about
700 hours per year, about 3-4 flights per week (irregular time scedule).
It can be considered as the only usefull tool to register illegal ships dis-
charges at sea, but mainly oil and oily liquids can be registered.
As an average about 80 ships per year are spotted during visual
discharge of oil.
In several cases the registration of the discharge of oil (photographs and
on remote sensing recordings) have been used in order to start court
procedures against the captain of the ship. It was noticed that these
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INTERNATIONAL ENFORCEMENT WORKSHOP 289
procedures were very difficult and hardly have resulted in court
decisions to convict the ships' master. The encountered difficulties are:
Most of the ships involved were sailing outside the territorial
waters and thus outside the jurisdiction of the coastal state
Court procedures against the ship have then to be initiated by
the flag state, this has been proven to cause very difficult
international juridical procedures
The registration of the discharge of oil by the airplane was in
many cases not considered as sufficient evidence in court
proceedings
If there were court sentences, the penalties were relatively low
(less than $ 10.000,-).
In the recent years a number of actions have been taken which will
result in the near future in a better enforcement of MARPOL in
the W. European Seas:
The European memorandum of Port State Control (MOU) was
concluded to ensure regular inspection of ships for compliance
with the operational requirements for pollution prevention as
contained in the Marpol convention
Actions are undertaken to harmonize control procedures under
this MOU by all states in all ports and to link the actions under
the MOU with the airborne surveillance activities
A manual will be produced explaining all methods to identify
offenders, including the evidence produced by airborne surveil-
lance, to be used in court proceedings.
As an additional tool the Netherlands is considering within the near
future to carry out intensified inspections of suspected offenders.
For example if a ship has been caught by airborne surveillance in
(probably illegal) discharging oil, the first time it calls upon a Dutch
harbour a wide ranging and intensified inspection is carried out,
despite of the delay caused thereby.
It will be made clear to the ship why the inspection is there and
afterwards the inspection will be widely convocated in shipping
newsletters etc. Costly delays resulting from such inspection will
undoubtebly act in a very preventive manner.
During the 3e North Sea ministersconference (1990) it was agreed
that North States will investigate possibilities to increase coastal
state jurisdiction including the possibility of establishing Exclusive
Economic Zones (E.E.Z.) in the North Sea.
When EEZ's are established possibilities for the Coastal State to
take action against ships suspected of offense of international rules
will be increased (law of the sea art. 211 and 220).
Finally it may be stated that currently in the Dutch ports intensified
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290 INTERNATIONAL ENFORCEMENT WORKSHOP
control is carried out on compliance by chemical tankers with the
regulations of Annex II of Marpol. This is to ensure that chemical
tankers dispose of their cargo residues according to the said Annex.
Herewith it will be ensured that chemical tankers are only allowed
to proceed to sea with such residue quantities which are allowed te
be discharged at sea by virtue of the discharge requirements of the
Annex.
4.3. Discharges from offshore operations
Discharges from offshore operations are on an international level
discussed in the Paris Commission. Here standards like allowable
concentrations of oil in operational discharges are set, and procedu-
res to report accidental discharges are agreed. Within the Paris
Commission rules for discharges from offshore have been strengthe-
ned in the last decade, a process that will continue in the following
years.
The allowable oil content in operational discharges is at this
moment 40 ppm, while a further reduction is considered.
In the last North Sea Ministersconference (1990) it was agreed that
discharges of oil contaminated cuttings from exploration and
appraisal wells will be prohibited from 1994, and that in 1992 a date
will be set for the prohibition of discharges of these cuttings from
all offshore operations.
Discharges of offshore installations for the Netherlands part of the
North Sea Continental Shelf (fig. 4) are covered by the Continental
Shelf mining law. The minister of Economic Affairs is responsible
for the implementation of the law. In the implementation of this law
the standards agreed in the Paris Commission are applied.
The law has the provision that the minister of Economic Affairs can
give specific rules. In permits the maximum oil concentration is
prescribed, as well as the kind of oil based muds and the kind
chemicals which are allowed to be used.
For individual drilling operations permission has to be obtained for
the use of oil based muds, which is granted according to the
circumstances.
The agency of the minister of Economic Affairs responsible for the
mining activities is also responsible for the enforcement of the
environmental requirements. In practice operators have to report on
their discharges (operational and accidental) and little enforcement
activities are carried out by authorities. But for the Dutch Continen-
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INTERNATIONAL ENFORCEMENT WORKSHOP 291
tal Shelf there are no indications that offense of discharge rules is a
regular phenomenen or that the required reports from offshore
operators are inadequate.
The impression is that for the UK Continental Shelf the situation is
worse, almost all registrations there from airborne surveillance show
large spills of oil around the platforms.
Discussion about this with the UK takes place in the Paris Commis-
sion.
4.4. Pollution from landbased sources
The 50-70% reduction of input of hazardous substances from 1985
to 1995 via rivers, estuaries and atmosphere will be implemeted by
all North Sea States for their own territories.
The reduction in percentages was chosen for political reasons,
experience in the past showed that the process to set internationally
agreed emission standards for hazardous substances turned out to be
a goal that was almost impossible to reach.
In choosing the percentage approach it was unspoken accepted that
in the various countries the reference situation could differ con-
siderably, and so accordingly the efforts to meet the agreed targets.
In inplementing the agreed reductions the following actions are
taken by the individual North Sea States:
reduction of point sources from industries, communities etc: the
existing framework to apply the water and air pollution acts and
the permits based on those acts will be used
reduction of diffuse sources. These sources become more
dominant. Possibilities to reduce these imputs are mainly still
subject of studies
reduction of nutrients. Negative effects of nutrification of the
North Sea are observed more and more frequently in the last
decade. Effects are desatoration, poisonous algeablooms, foam
on beaches caused by algea etc. Nutriens mainly are discharged
by industry, municipal sewageplants, and agriculture (fertilizers).
In many countries nutrient removal at sewageplants will have to
be generally applied. Measures to reduce output from agri-
culture are still under discussion, but far reaching steps will be
unavoidably.
Enforcement of measures to reduce pollution of landbased sources
is carried out in a number of ways which can generally be described
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292 INTERNATIONAL ENFORCEMENT WORKSHOP
as the classical ways to enforce enviromental regulation on industrial
and community pollution. Different governmental agencies in the
Netherlands have tasks in this field. Nowadays much attention is
paid at the improvement of cooperation of all the agencies involved.
More and more separate enforcement units are established.
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INTERNATIONAL ENFORCEMENT WORKSHOP
293
O = Registrated
sea pollutions
with oil in
1988
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294
INTERNATIONAL ENFORCEMENT WORKSHOP
55
55'
54'
Continental Shslf Border
Shipping Lanes
Shipping Separation Zones
Producing Installation
Drilling-platform
Shipstraffic separation zones and
off-shore activities FIG.2
rijkswaterstaat
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INTERNATIONAL ENFORCEMENT WORKSHOP
295
o
H
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C
0)
a,
a Ti
•H ^
D (0
tr 3
0) O
c in
H (T3
tn o
c o
0)
co ,c
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296
INTERNATIONAL ENFORCEMENT WORKSHOP
Ireland
Dutch continental shelf
Fig. 4
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INTERNATIONAL ENFORCEMENT WORKSHOP 297
THE U.S. ENVIRONMENTAL PROTECTION AGENCY EFFORTS
TO CONTROL OCEAN DUMPING
Tudor T. Davies1 and Rosanna B. Ciupek2
1 Director, Office of Marine and Estuarine Protection, U.S. Environmental
Protection Agency (WH-556F), 401 M.Street S.W., Washington, DC 20460, USA.
1 Enforcement Program Manager, Office of Marine and Estuarine Protection,
U.S. Environmental Protection Agency (WH-556F), 401 M.Street S.W., Washing-
ton, DC 20460, USA.
Summary
The U.S. Environmental protection Agency (EPA) is committed to halting
ocean pollution. Recent years have brought about an increased emphasis in the
U.S. on the control and elimination of ocean dumping activities. Sewage sludge
and industrial waste dumping must cease by law (the "Ocean Dumping Ban Act")
by 1992. No new permits may be issued for these wastes and, in fact, the last
permitted dumping of industrial wastes occurred in September 1988. The U.S.
took its first action against illegal ocean disposal of dredged materials in
1989. Pollution caused by marine debris, plastics in particular, is increasin-
gly becoming a focus of U.S. pollution control efforts. In all of these areas,
enforcement will continue to be an effective tool to assist in EPA efforts to
protect the ocean environment.
Overview
Little more than 20 years ago, the United States (U.S.) did not have
active programs to curb dumping activities. With the help of international
agreements, such as the London Dumping Convention (LDC), the U.S. along with
other nations have focussed on control of ocean disposal activities through a
framework of site designation, permits, monitoring, management and enforce-
ment. In the last few years, the U.S. has increased emphasis on eliminating
dumping of industrial and municipal wastes in ocean waters.
This emphasis towards protecting the oceans exists at the highest levels
in the United States. U.S. president George Bush recognized the importance
placed on our ocean resource in his statement, "Pollution is uniquely perso-
nal, for when we think about pollution, we think first of man's insults to the
places we love: plastic six-pack rings floating in the ocean, trash washing
upon our shore." Utilization of enforcement to achieve greater protection of
the oceans as envisioned by President Bush was later emphasized by the Admini-
strator of the EPA. In a statement made on March 3, 1989, William Reilly noted
that EPA will pursue criminal enforcement actions of illegal ocean dumpers and
issue major fines against ocean discharge permit violators. Clearly, the U.S.
is committed to halting ocean pollution.
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298 INTERNATIONAL ENFORCEMENT WORKSHOP
Today, I will be speaking on regulatory authorities and enforcement
activities by the EPA relating to ocean disposal of municipal sewage sludge,
industrial wastes, dredged materials, and marine debris. In these areas, the
EPA is taking enforcement measures to assure that disposal activities meet
ocean dumping regulatory requirements.
IMPLEMENTATION OF INTERNATION OCEAN DUMPING ENFORCEMENT AGREEMENTS
The London Dumping Convention and the Marine Protection Research, and
Sactuaties Act.
The London Dumping Convention (LDC) established general guidelines for
governing ocean disposal activities from vessels, platforms, and other struc-
tures seaward of the inner boundary of nations' territorial sea. The LDC is
implemented in the U.S. under the Marine Protection, Research, and Sanctuaries
Act (MPRSA) which became law in 1972.
The MPRSAA, better known as the Ocean Dumping Act, regulates the ocean
dumping of all types of materials that may adversely affect human health, the
marine environment, or the economic potential of the ocean. Titles I and II
make EPA and the U.S. Army Corps of Engineers (CE) responsible for administe-
ring the Act, the National Oceanic and Atmospheric Administration (NOAA)
responsible for monitoring the long term effects of ocean dumping, and the
U.S. Coast Guard (USCG) responsible for enforcing the Act. Title III gives the
Secretary of Commerce the authority to establish marine sanctuaries.
The specific responsibilities of EPA and the CE in administration of the
ocean dumping program are as follows:
° EPA designates sites for ocean dumping of materials. The designation
process examines physical, chemical, and biological parameters to assure
that the selected site is environmentally acceptable. An Environmental
Impact Statement is prepared and undergoes public review.
o Permits for ocean dumping are issued either by the EPA or CE, depending
upon the type of material to be dumped:
The EPA has responsibility for permits for municipal and industrial
wastes.
The CE has responsibility for permits for dredged materials.
° Management, monitoring, surveillance, and enforcement are split between
EPA, CE, NOAA and USCG. These activities are to ensure that ocean
dumping meets permit conditions which include criteria to protect
against adverse environmental impacts; the criteria were set forth in
U.S. regulations in 1977.
In November 1988, the Ocean Dumping Ban Act (ODBA) amended the MPRSA by
prohibiting the issuance of new permits for ocean dumping of sewage sludge and
industrial wastes. Also, dumping of such materials by existing dumpers must
cease by December 31, 1991.
Municipal Sewage Sludge
In the U.S., only nine municipalities continue to dump sewage sludge in
the oceans. These nine are located in New York and New Jersey, all of which
dump their sludge at an EPA designated site about 100 miles off the coast of
NPW Jersey. These nine municipalities have entered to cease dumping by Decem-
- 31, 1991, with one exception who will cease by June 30, 1992.
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To prevent illegal dumping of municipal sewage sludge and ensure compli-
ance with proper disposal practices, all nine existing sewage sludge authori-
ties are required to notify USCG prior to any dumping operation. Each sludge
disposal activity is assigned a reference number which is then used to identi-
fy the specific activity throughout the course of the operation. An indepen-
dent shiprider must also be on board to provide surveillance and, as further
back-up, all vessels are equipped with a computerized tracking system (i.e.
Ocean Dumping Surveillance System (ODSS)) to monitor the vessel's activities.
The ODSS consists of an on-board computer that communicated with a computer
system at a USCG on-shore federal installation. The vessel computer, assisted
by a LORAN-C navigation system, reports the latitude and longitude of the
vessel at any given time. Sensors in the hull of the vessel detect the initia-
tion of any dumping activity.
In July 1988, EPA issued administrative complaints against all nine
existing sludge dumpers for violating permit conditions for sludge disposal.
Violations included discharging the sludge beyond their approved discharge
rate and failing to comply with approved vessel tracklines at the disposal
site during discharge operations. The combined penalties proposed by the EPA
exceeded U.S. $1.25 million.
Industrial Hastes
Throughout the last decade, it became increasingly apparent in the U.S.
that ocean disposal of industrial wastes was not environmentally acceptable.
In addition, the need for ocean disposal declined as industries implemented
materials recovery, on-site waste treatment, and land based disposal alter-
natives were available. The number of permitted industrial waste disposals at
designated ocean sites decreased from a maximum of approximately six million
wet tons in 1973 to zero today. In 1988 with passage of the ODBA, no new
industrial waste permits may be issued. For the record, the last U.S. permit-
ted dumping of industrial waste occurred in September 1988.
The ODBA also prohibits the issuance of new permits for incineration of
industrial waste at sea. EPA has viewed the incineration-at-sea (IAS) program
as experimental and presently has only one site designated for such activity.
We are currently in the process of de-designation of this one site.
Dredged materials
For the regulation and management of dredged materials, EPA is currently
developing, in consultation with the CE, the following:
o Revision to the 1977 Ocean Dumping Regulations
° Revised dredged material testing procedures (i.e., the "Green Book")
o Dredged Material Management Guidelines
o Site Designation, Management, and Monitoring Guidelines.
These regulations and guidelines will facilitate consistent decisions on
issuance of permits and designation of sites for dredged materials across the
country. EPA has designated by regulation approximately 70 sites of the 110 in
use in the U.S. in ocean waters. The remaining sites will be officially desig-
nated over the next few years.
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With the growth of merchant shipping operations and the construction of
increasingly larger vessels, the current dredged material ocean disposal rate
of approximately 60 million cubic yards per year may rise. It is anticipated
that this increase in disposal amounts, along with mounting evidence that such
waterways provide a "sink" for potentially toxic materials, will cause dispo-
sal of dredged materials to increase as a concern within the U.S.
EPA is currently involved in an enforcement case for violation of permit
conditions regarding dredging and disposal activities in a port on the Cali-
fornia coast. EPA investigated allegations that sediment was excavated outside
the authorized dredging area and, as a result, contaminated sediment disposal
may have occurred in a deep ocean site in violation of the permitted require-
ments. In addition, it is alleged that the dumper failed to discharge within
the designated site location. The case is presently under consideration by a
U.S. Administrative Law Judge.
International Convention for Prevention of Pollution from Ships and the
Act to Prevent Pollution from Ships
The discharges of harmful substances and other items from ships or ves-
sels are addressed in the International Convention for Prevention of Pollution
from Ships, or MARPOL Agreement. MARPOL prohibits discharge into the sea of
all plastics including but not limited to, synthetic ropes, synthetic fishing
sets, and plastic garbage bags. It also prohibits discharge of food wastes and
other floating materials within specified distances from land. The MARPOL
Agreement was enacted into U.S. law by the Act to Prevent Pollution from Ships
(APPS).
To address land-based sources of plastic materials in the marine envi-
ronment, the APPS was amended in 1987 by the Marine Plastic Pollution Research
and Control Act (MPPRCA). As required under the MPPRCA, EPA completed a study
of the sources, fates and effects of plastics in the marine environment and on
the solid waste stream. The study showed a number of sources of marine debris:
ships, offshore oil platforms, fishing boats, combined sewage overflows, storm
drains and litter from human activity on land.
One type of plastic pollution discovered during marine debris/floatables
surveys (conducted in response to the MPPRCA) of marine and coastal waters was
millions of small "plastic pellets", (i.e., raw material used in manufacturing
of plastic products). Due to the extent to which these pellets exist (both in
amount and geographic location), we initiated discussions with the Society of
Plastics Industries in the U.S. As a result of these discussions, we have
reason to believe that such pollution could be significantly reduced if manu-
facturers used stronger packaging when shipping the "plastic pellets". We are
encouraging the industry to voluntarily change their shipping and packaging
practice to eliminate the improper release of this pollution source into
marine waters.
Such voluntary compliance is encouraged by our Agency, thus reducing the
need for activity in the enforcement arena. It is expected that any new
packaging requirements or handling procedures instituted by the industry will
be required for foreign plastic material shippers dealing in the U.S.
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OTHER U.S. EFFORTS TO SUPPORT INTERNATIONAL ENFORCEMENT GOALS
The U.S. also has a number of ongoing activities which, although pursued
independently of international agreement discussions, do support the goals of
these agreements regarding enforcement for the protection of oceans.
The Ocean Dumping Enforcement Improvement Act
The U.S. Congress is currently considering a proposal which would enhan-
ce enforcement authorities under the MPRSA. The proposed "Ocean Dumping
Enforcement Improvement Act" would strengthen many MPRSA enforcement tools.
For example, administrative penalties would be increased by 50%. Criminal
penalty provisions also would be increased and administrative subpoena power
and access to documents and premises would be authorized. Clarification would
be given with respect to preventing a wide range of ocean dumping activities,
not only those where the sole purpose of transport is for dumping. The bill
would also authorize administrative orders by federal agencies to require
compliance as well as authorize civil judicial actions. Each of these amend-
ments would enhance EPA's enforcement capabilities under the MPRSA.
The Shore Protection Act of 1988
Other recent U.S. legistation aimed at reducing pollution to ocean and
coastal waters concerns solid waste transportation facilities. The Shore
Protection Act of 1988 (SPA) addresses waste disposal practices at coastal
waste transfer stations as well as off-shore mineral exploration mining and
drilling platforms.
The SPA requires that all vessels used in the transport of solid waste, as
well as the on-loading and off-loading facilities involved in these operati-
ons, are permitted and that solid wastes are not deposited in coastal waters.
Under the EPA, we are currently developing regulations which will establish
proper waste handling procedures for solid waste, including incinerator ash.
One of the key objectives in the development of these regulations is to ensure
that the requirements are easily enforceable.
Public Outreach Efforts
Under MPPRCA, the U.S. is developing public education and outreach
programs which will aid in enforcement. In addition to a nation-wide public
information campaign on marine debris, we are evaluating the sponsorship of
citizen pollution patrols and bay/beach keeper programs. It is expected that a
number of demonstration programs for such patrols will be funded next year. It
is hoped that citizen patrols along coastline areas and designated bay or
beach keeper staff can help to identify obvious violations of pollution regu-
lations.
° In one example information collected by a citizen in an on-going EPA
enforcement case appears to have provided the elements necessary to
pursue a violation in U.S. waters by a foreign vessel.
° Funding for these citizen pollution patrols may also be innovative. Some
laws recently passed in the U.S. (e.g., the Shore Protection Act) allow
for allocation of portions of penalties assessed upon violators to be
given to citizens or local groups who assisted in identifying as illegal
act.
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The challenge for the Agency is to educate interested citizens to
correctly identify violations and collect information which can be used in
enforcement actions.
Technology and Future Efforts
My office is currently involed in a number of enforcement cases aimed at
deterring illegal ocean dumping activities of wastes by vessels in open waters
and by foreign vessels in U.S. waters and U.S. vessels in foreign waters.
Although I am not at liberty to discuss the particulars of these on-going
enforcement cases, I will state that tracking information obtained from
satellite data may help to establish a case for conviction on high-seas
dumping activity. Detection of such actions is difficult given the breadth of
waters involved and the limited personnel resources available for monitoring
and surveillance activities. The use of advanced electronic equipment, such as
satellite technology, will likely increase in the future and help to identify
violations in open waters across the world.
Conclusion
In closing, let me emphasize that enforcement has a significant role in
EPA's pollution control programs, but we have found it to be resource intensi-
ve. Therefore, we are also moving forward on other fronts, such as voluntary
compliance and public education, in order to effectuate an holistic approach
to protecting our oceans. We think that we are making significant progress as
we have stopped industrial waste dumping in the ocean, we are not permitting
incineration at sea, and dumping of sewage sludge will soon end. However,
other tasks remain. Our focus in the years ahead will be on proper disposal of
dredged materials and controlling pollution caused by marine debris. Enforce-
ment will be utilized in these areas where appropriate. It has been, and will
continue to be, an effective tool to assist in efforts to protect our ocean
environment.
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ENFORCING ENVIRONMENTAL AGREEMENTS WITHIN THE EUROPEAN
COMMUNITY
Robert H.Donkers, EC coordinator in the Ministry of
Housing, Physical Planning and Environment, Director of
the Brussels' Office
General introduction
This paper will discuss the way in which environmental
agreements within the European Community (EC) and those
between the EC and other states or groups of states are
implemented and enforced. Further, it will look at which
difficulties arise in implementing and enforcing these
agreements, and finally, the scope for improvement will
be investigated.
First, the nature of EC environmental legislation should
be adressed. In Article 189 of the Treaty of Rome,
several types of Community legislation are set out. They
are Regulations, which are directly applicable laws in
the Member States; Directives which are binding as to the
results to be achieved but leave Member States to choose
the form and methods in which these are to be reflected
in their national legislation, and Decisions, which are
directly binding in their entirety upon those to whom the
decision is adressed.
The vast majority of EC environmental legislation is in
the form of Directives, enabling Member States to
accomodate -if necessary- already existing legislation.
To date. Regulations and Decisions have been used only
rarely for environmental matters except for some measures
in connection with international agreements. The
Commission of the EC has, for example, recently tabled a
draft regulation for the implementation of the Montreal
Protocol in view of the possible revision in 1990. It is
expected that later this year a draft Regulation will be
tabled on the implementation of the Basel Convention on
transboundary shipments of chemical and toxic waste.
If one compares the different types of EC legislation it
becomes clear that Regulations and, if certain conditions
are met, also Decisions have a self-executing character,
where Directives, as such, are not self-executing.
However jurisprudence of the European Court of Justice
shows that the self-execution of a Directive can be
invoked by the public in cases where a directive
adequately implemented and/or not implemented within
a set of time.
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1. Formal and practical compliance with EC legislation
Formal compliance
As referred to above, Directives usually require Member
States to implement them in national legislation.
Directives indicate the period for implementation. This
period varies from 1 to 3 years. Member States have to send
to the Commission within a given period any (new) national
legislation that gives formal effect to a Directive. As
'Guardian' of the Treaty, the Commission has the duty to
control whether the measures adopted are adopted in time
and whether they are adequate.
Recent reports of the Commission indicate that Member
States seriously fail to (adequately) implement EC
environmental legislation. In 60 cases Directives were not
implemented at all; in 90 cases only partly and in 213
cases not adequately. Cases on legislation on water (104)
and on nature protection (129) form the largest part of
these cases. These figures seem very serious, but are very
relative. As will be shown later, the Commission is
unnecessarily strict in controlling the texts of national
legislation. On the other hand these figures do not
indicate how poor the practical implementation in Member
States, actually is.
As the paper on the European Communty's prospects for
enforcement of directives already deals with the procedural
steps in cases of no (adequate) formal compliance, it needs
only to be stated here that the final step in the procedure
is a verdict of the Court of Justice in Luxemburg stating
that non-compliance has occured and, in urgent cases,
summoning a member state to immediately introduce the
necessary (provisional) measures. If a member state
continues to fail to adopt the legislation required, the
Commission can only yet again bring the state before the
European Court. At the present time no other sanctions are
available.
In addition, no correspondance between the Commission and
the Member States on the implementation of Directives is
available to the public. However, the Commission has
indicated in the 4th EC Action Programme that it will allow
public access to its data base (CELEX) which stores
information on the national legislation which formally
implements Community law.
Practical compliance
Environmental quality does not improve as a result of
formal compliance as demonstrated in the Public Journal.
Indeed the interest of EC legislation goes beyond formal
compliance.
Usually, however, Directives do not ask Member States to
inform the Commission of any practical steps taken. Some
Directives oblige Member States to set up programmes to
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reduce pollution and most Directives ask for regular
report on the experiences in executing the obligations of
the Directive. More specifically it may be asked to
enumerate and evaluate any exemptions of the provisions
granted (assuming a Directive introduces possibilities and
criteria for granting exemptions). In some Directives it is
stated that the Commission, on the basis of these reports
will inform the Council of Ministers and the European
Parliament as to the results and effects of the legislation
concerned and may put forward any proposals necessary to
modify European legislation. Most Directives have set up a
committee with representatives of the Member States and the
Commission, which discuss the scope for any modifications
of a Directive, necessary on the basis of scientific and
technical progress. Some committees even have power to vote
on these modifications. In these committees experience on
the application of Directives is being exchanged.
It should be noted here, however, that the Commission has
no inspectorate to monitor the practise in the Member
States.
To date the Commission has put its limited available energy
and manpower toward the control of the formal compliance of
the legislation in spite of the fact that the 4th Action
Programme has announced that more emphasis will be put on
the control of practical implementation. Until now the
Commission has only reacted to complaints put to the
Commission by the public.
Problems experienced by Member States in the implementation
process
As the texts of most Directives represent, in the final
analysis, political compromises reached by 12 Member
States, the usual occurence is that certain obligations are
intentionally not clearly formulated and therefore are not
easy to implement. Further, the final legislation is a
compromise in the sense that it is the result of 1000 years
of Common Law practice and 150 years of the Napoleonic
Code, which means that Directives are never easily
implemented in the existing national legislative structure
and culture of Member States.
In the case of the Netherlands the relatively long
legislative process, including the consultation of a wide
variety of interests, is a definite obstacle for the timely
introduction of EC legislation. Furthermore in the Dutch
situation, a vast amount of environmental legislation
already exists. It has been shown that it is much more
difficult to change existing legislation and practice than
to introduce EC legislation where no national legislation
has been adopted. Where national legislation is already in
place, one often finds lack of political interest in
giving priority to the timely implementation of EC
legislation which would add little to national legislation.
However, even where practical compliance with EC
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legislation already exists, for example, on the basis of
permits granted on the basis of the not yet modified
national legislation, the Commission regards any delay in
implementing Community law to be a violation of the
Treaty. To give an example: the Commission is considering
taking the Netherlands to the European Court because formal
legislation to implement a directive on the introduction of
lead free petrol is not yet in place. The practical
situation, however, is that, in advance of the necessary
legislative measures, on the basis of voluntary agreements
with industry a year before the Directive came into force,
more than 6000 filling stations were supplying unleaded
petrol. Another example is provided in the field of
environmental impact assessment. On the basis of a
complaint the Commission has sent the Dutch Government a
letter asking to adapt the legislation on environmental
impact assessment because of the fact that on some very
minor points, the Dutch legislation differs from the EC
Directive text. The Dutch government is of course willing
to remedy this situation. However, it may be understood
that since the Dutch law and practice with EIA are
considered exemplary (particularly in the European context)
and go far beyond the minimum requirements set out in the
Directive, the political pressure to change the law
quickly, is not existent. There are other priorities. The
Netherlands may, therefore, be taken to the European Court
by the Commission for non-compliance with the Directive,
where at same time the European Commission takes use and
advantage of the progressive nature of the Dutch
legislation and practice in this field.
Another example: Luxemburg has officially adopted
legislation to control the titaniumdioxide industry
although no such industry is forseen in that country. The
Commission has considered in the past to take Ireland to
the Court because it refused to implement the same
Directive, even though such industries do not exist in
Ireland either.
These examples show that it is possible to have formal
compliance without practical compliance and vice versa.
Recently the Commission has started to call for meetings
with national authorities responsible for the execution of
the provisions of a Directive, with a view toward having
experience exchanged on the problems raised in implementing
these provisions into national law and on any practical
experience.
2. Enforcement provisions in EC legislation
Article 5 of the Treaty of Rome states that Member States
have the obligation to take all measures to ensure the
compliance with the provsions of the Treaty and with the
legislation based on the Treaty. They have to refrain from
any measures which might jeopardize the realisation of the
objectives of the Treaty. No sanctions are mentioned in
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case of non compliance.
On the basis of an overall analysis of EC legislation it
can be concluded that apart from provisions with
obligations for Member States to adopt legislation and take
administrative measures to comply with the Community
legislation and the obligation to report regularly to the
Commission on the experiences with the execution of the
Community legislation, no other enforcement provisions yet
exist on the policing of the legislation adopted. The
enforcement and policing are left completely to the Member
States. The same is true for decisions on agreements in
relation to third states or groups of states. Sofar the
Commission has not acted to control the formal and
practical compliance of Member States with international
agreements which the EC and therefore directly or
indirectly the Member States, are Party to. As was shown
before in one of the preceding papers, only a few
international agreements have included provisions on the
control or the execution of the agreement, as in the case
of the Conventions on the Protection of the Medditeranean
Sea (Barcelona and Athens Conventions), where a system of
permanent control is introduced on the basis of programmes
or for example the Rhine Convention where a monitoring and
warning system has been set up. The EC is Party to the
Conventions mentioned. To date the Commission has not
checked the compliance with these Conventions.
In the draft Regulation on the implementation of the
Montreal Protocol a provision has been introduced on the
inspection/monitoring on the execution of the Regulation.
It includes inter alia, the assistance of EC officials to
national officials, if the member state gives its consent,
in cases involving the investigation of a company producing
CFC's, regarding the practical compliance with the
Regulation.
3. Scope for improvements
Inclusion of enforcement provisions in EC legislation
It is recommended that, as far as possible, specific
provisions be included in Directives and Regulations
related to the practical enforcement of EC legislation. For
example, the Council is currently considering is a
Commission proposal on the adaptation of the European
testcycle for passenger cars as part of the type approval
procedure. This proposal also includes the setting of
standards for exhaust emissions, specificaly on CO, NOx, HC
and particulates. In addition, some durability requirements
are proposed. The Dutch delegation has proposed that
requirements also include provisions for allowing
authorities to introduce a callback system whereby random
tests of cars already brought in circulation can be
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conducted to check whether the cars perform as they should
perform on the basis of the type approval.
Furthermore a periodic technical control-system should be
introduced in all Member States. (This already takes place
in the Netherlands on an annual basis).
The creation of an Inspectorate
As was previously mentioned, the Commission has no
inspectorate to monitor the practical compliance with EC
environmental legislation. This is left to the Member
States. The Treaty prescribes the division of powers
between the Community institutions themselves and between
the EC and the Member States. Member States play a very
crucial part: they have legislative capacity in the Council
of Ministers; they must execute the legislation and finally
they have to control the practical implementation. The
Commission can only control the formal implementation.
Sanctions, other than a verdict on non- compliance by the
Court of Luxemburg, are not existent.
In another Treaty of the Community, the Euratom Treaty,
Article 77 and subsequent Articles give the Commission
powers to control the compliance with the licences granted
to use nuclear material. The Commission may, for example,
send a team of inspectors to a country with the consent of
the government concerned.
The system applied under the Euratom Treaty might, with
certain modifications, be useful in the EC environment
context as well.
At the same time the EC could help Member States to set up
an adequate inspectorate themselves for the monitoring of
compliance (This is already happening on a bilateral basis.
For example, on the basis of a Memorandum of Understanding
between the Ministries of the Environment of Portugal and
the Netherlands, Dutch inspectors are assisting their
Portuguese counterparts in setting up an inspectorate. The
Commission should have an interest in promoting and
supporting such initiatives).
The Provision of Country reports
A system of country reports, which for example already
exists in the framework of the OECD, might be introduced on
a voluntary basis to monitor, via an environmental audit,
the state of the environment in a member state. The
Commission and the member state concerned could then react
on the basis of the recommendations of the audit team. More
specifically, a pool of experts could be created at the EC
level to help competent authorities to adequately formulate
the conditions in permits and/or give a second opinion on
the practical compliance by a certain branch of industry.
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Making information available to the public
As was mentioned above, the Commission has, to date, only
reacted on practical non-compliance on the basis of
complaints from the public. This right of complaint is, in
theory a powerful instrument. However, the public does not
always have in every state the right of access to the
information needed to check the compliance or non-
compliance of for example, industry, ftt its meeting of 22
March 1990 the EC Council of Ministers adopted a Directive
which introduces the right of access for the public. In
certain circumstances this right can not be invoked, for
example where information on national security, information
on private persons or commercial information is concerned.
The Council of Ministers also recently decided on the
creation of a European Environment Agency which will set up
a network in the EC on the exchange of information,
building further on the already existing CORINE programme
and will assist the Commission and Member States in the
gathering and scientific evaluation of data which are
necessary for the development of environmental policy.
The European Parliament has, inter alia asked that an
inspectorate be included as part of the new Agency. For the
time being the Council has decided to return within two
years after the creation of the Agency to consider other
possible tasks of the Agency. In principle other European,
non EC-states may become part of the Agency.
These new initiatives which come into force within a few
years may play an important role in the practical
enforcement of EC legislation.
Financial sanctions
It is clear that non-compliance with EC legislation might
create considerable damage to the environment as well as to
property both in the physical and in the financial sense.
Non- compliance can also create distortions in competition
between industries.
It is, therefore, suggested that in the environment field
provisions used in other areas of Community policy also be
applied. Such provisions would include those provisions
based on the Coal and Steel Treaty, where industry has to
pay considerable fines when, for example, they produce and
sell more steel than they are allowed. If a company
pollutes more than allowed and is not willing to take
appropriate measures, a fine should be possible. In very
serious cases a (temporary) shut down could be introduced.
These economic sanctions already exist in Dutch
legislation and could be introduced on the EC level.
The Community can grant some subsidies on the basis of the
so called structural funds, for example the Regional Fund
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and the Agriculture Fund. One might consider the
possibility of delaying certain payments or even
introducing the possibility of penalties as long as a
Member State is not willing to take the appropriate
measures in the environment field. Certain types of
projects which are subsidized under the structural funds
can have significant impact on the environment such as the
construction of roads, tunnels, ports etc. or the
restructuring of industry.
It is difficult to understand why the EC is subsidizing
projects which might increase pollution on the one hand
and, on the other hand, is not using the same financial
mechanism to enforce EC legislation in the environment
field.
Cooperation between national police forces and the Courts
With the internal market and therefore the abolishment of
frontiers near at hand, the necessity of cooperation
between national police forces and the Courts is
increasing.
On the basis of "the European Legal Assistance Convention"
(Rechtshulpverdrag) of 1959 to which all Western European
Countries are Party, the competences of and the
coordination between the competent authorities in the EC
countries could be improved and extended.
4. Final remarks
It is clear from the preceding paragraphs that politicians
and lawyers have created an impressive amount of EC
legislation without taking into account how it is actually
implemented. It is like adopting a law to abolish the law
of gravity without having considered how to enforce such
legislation in practice.
If EC environment policy wants to maintain support from the
public or even improve its credibility, it is time to
commit much more manpower to the enforcement of EC and
international agreements through the introduction of
specific provisions and control to that end as in the case
of disarmament control or the non-proliferation agreement.
It is doubtful, however, whether politicians are prepared
to provide for such provisions in the environment field.
Most states do not yet appear to be ready to relinguish any
of their sovereignty in this area. Losing some of their
sovereignty, however, may be the price states have to pay
for the maintenance of the planet earth.
The proof of the cake is in the eating not the recipe. The
forthcoming discussions on the revision of the Montreal
Protocol and the negociations on a world climate convention
are some testcases for politicians as well as for experts
to take up their responsibility.
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Literature
Hannequart, J.P., Enforcement of and compliance with EC
environmental law, European Environment Bureau,
Brussels, 1986
Pallemaerts, M. and A. Kallia-Antoniou, Report of the
Seminar on the implementation and enforcement of EC
environmental legislation, European Environment Bureau,
Brussels, 1986
Haigh, N, EEC environmental policy and Britain, Longman,
Harlow, Essex, 1984/1987
Donkers, R.H. in : Europees Milieurecht, Colloquium
Asser Instituut, The Hague, 1987
4th EEC Environmental Action Programme (1987-1992),
Public Journal C 70, 1987
Donkers, R.H. e.a., De uitvoering van EG
milieurichtlijnen, Tjeenk Willink, Zwolle, 1988.
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THE BASEL CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS OF HAZARDOUS
WASTES AND THEIR DISPOSAL
DR. I. RUMMEL-BULSKA1 and MS. K. RUMMER2
1 Chief, Environmental Law Unit, UNEP
2 Programme Officer, Environmental Law Unit, UNEP
1. INTRODUCTION
After 18 months of negotiations, the Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and their Disposal was adopted on
22 March 1989 by 116 States participating in the Conference of
Plenipotentiarities on the Global Convention on the Control of Transboundary
Movement of Hazardous Wastes, which was convened by the Executive Director of
the United Nations Environment Programme (UNEP) and held in basel at the
invitation of the Government of Switzerland. The Final Act of the Basel
Conference was signed by 105 States and the European Economic Community (EEC).
The Conference also adopted eight resolutions relating to the further
elaboration and the implementation of the Convention.
The Basel Convention is the result of negotiations in an organizational
meeting and five sessions of the Ad Hoc Working Group of Legal and Technical
Experts with a Mandate to Prepare a Global Convention on the Control of
Transboundary Movements of Hazardous Wastes, which were held between October
1987 and March 1989. Experts from 96 States participated in the sessions of the
Working Group and representatives of over 50 Organizations attended as
observers.
As of 22 March 1990, 53 States and the EEC have signed the Basel Convention. In
accordance with Article 25 of the Convention, it will enter into force upon
ratification by 20 States. To date, three States have ratified the Convention
and a number of others have initiated the ratification process.
2. OUTLINE OF THE GENERAL PRINCIPLES OF THE BASEL CONVENTION
The Basel Convention is based on the following principles regarding the
generation, management and disposal of hazardous wastes and other wastes.
(1 ) The generation of hazardous wastes and other wastes must be reduced
to a minimum in terms of quantity as well as hazard potential (Preamble,
para.3, 17; Article 4, para 2(a)).
(2) Where the generation of hazardous wastes or other wastes is un-
avoidable, they must be disposed of as close as possible to their source of
generation. (Preamble, para 8; Article 4, para 2(b) and (d)). Moreover, the
environmentally sound management of the wastes must be guaranteed, whatever the
place of their disposal (Preamble, para 4, 5; Article 4 para.8).
Hazardous wastes shall be exported only if the state of export does not have
the technical capacity and facilities to dispose of them in an environmentally
sound manner (Article 4, para. 9(a)). The export of hazardous wastes and other
wastes is prohibited if the exporting state has reason to believe that their
environmentally sound management and disposal would not be guaranteed in the
prospective state of import (Preamble, para 23; Article 4, para 2(e)).
Likewise, a state shall prohibit the import of hazardous or other wastes into
its territory if it has reason to believe that they would not be managed in an
environmentally sound manner (Article 4, para. 2(g)).
In other words, the ultimate aim of the provisions of the Basel
Convention is to provide an incentive for the reduction of the generation and
transboundary movements of hazardous wastes and other wastes to a minimum, and
for the environmentally sound management and disposal of such wastes (Preamble,
para 9, 10, 17, 18, Article 4, para 2(d)).
(3) Every state has the sovereign right to ban the import of hazardous
wastes or other wastes (Preamble, para 6.). A state exercising this right shall
inform the other states, through the Secretariat of the Convention, of its
decision. No state shall allow any transboundary movement of hazardous wastes
or other wastes to a state which- has prohibited their import (Article 4, para.
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314 INTERNATIONAL ENFORCEMENT WORKSHOP
1(a), (b); Article 13). The parties shall also prohibit the export of hazardous
or other wastes to a group of states belonging to an economic and/or political
integration organization if the national legislation of theses states prohibits
such imports (Article 4, para. 2(a)).
(4) The export of hazardous wastes to a state which is not a party of
the Basel Convention, as well as the import of hazardous wastes from a non-
party state, is prohibited (Article 4, para. 5). Parties have the right,
however, to enter into multilateral, bilateral or regional agreements with
other parties or with non-parties, provided that such agreements establish
requirements no less environmentally sound than the Basel Convention and their
provisions are no less stringent. The Secretariat of the Convention must be
informed of any such agreement entered into by a party (Article 11).
(5) Any transboundary movement of hazardous wastes or other wastes which
is permissible under the provisions of the Basel Convention must be carried out
in accordance with the control measures stipulated by the Convention. A summary
of these control measures is given in paragraph 3 below.
(6) Hazardous wastes or other wastes subject to transboundary movement
must be packaged, labelled and transported in conformity with generally
recognized international rules and standards and due account must be taken of
relevant internationally recommended practices (Article 4, para 7(c)).
3. THE PROBLEM OF ENFORCEMENT
The above outline already gives an idea of the importance of appropriate
enforcement mechanisms. In fact, enforcement is one of the most essential
problems in connection with international treaties. Without strong enforcement
measures, the principles outlined above would be in danger of remaining a mere
declaration of intentions.
The importance of enforcement measures is particularly evident in the
case of the Basel Convention. Unlike some other international agreements, this
treaty puts a very strong emphasis on monitoring and control. It obligates
States to adopt specific control measures and sets up a control systems which
shall be co-ordinated by the Convention Secretariat.
(1) The international level: The Convention contains various provisions
related to enforcement. A number of these outline the procedures in some
detail, spelling out the responsibilities of the Party States towards each
other. The Convention Secretariat has the function of co-ordinating and
monitoring these efforts.
(2) The national level: Some provisions of the Convention provide a
framework for enforcement and delegate the elaboration of concrete measures to
Party States. Measures also have to be adopted which are not explicitly spelled
out in the Convention. In both cases relevant measures have to be adopted by
national legislation, and government authorities have to be established to
assume the responsibility of carrying out enforcement measures. The role of
industry in this context will also need to be examined.
Since the Basel Convention has not as yet entered into force and no
country has completed the establishment of relevant rules, regulations and
enforcement mechanisms, this paper cannot give an account of practical achieve-
ments in this field. The following paragraphs provide a summary of the main
provisions of the Convention and discuss, in outline, enforcement measures
which will need to be adopted in the light of each provision.
4. FOCAL POINT AND COMPETENT AUTHORITY
The Basel Convention obligates each state tot establish two governmental
bodies, the functions of which shall be related to carrying out and monitoring
the enforcement of its provisions:
(1) one as more "competent authorities" whose main function shall be the
handling of the notification procedures (Art. 5, art. 2 para. 6). This
procedure is outlined in para. 6 below.
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INTERNATIONAL ENFORCEMENT WORKSHOP 315
(2) one "focal point" which shall be in charge of receiving and trans-
mitting the information which states are required to provide to each other
under the provisions of the Convention (art. 5, art. 2 para. 7). The exchange
of information is referred to in para. 6 below.
The legal character of these bodies and the exact definitions of their
functions must be determined by the national legislation of each party. Since
additional enforcement measures will have to be adopted by states, other
functions may be attributed to these agencies, or additional government
agencies may be established to carry out enforcement measures provided for by
national laws and regulations.
5. DEFINITION OF HAZARDOUS WASTES AND OTHER WASTES COVERED BY THE BASEL
CONVENTION
The Basel Convention defines wastes as "substances which are disposed of
or are intended to be disposed of or are required to be disposed of by the
provisions of national law" (Article 2 para. 1). Disposal is defined in Annex
IV. Besides operations leading to final disposal of the wastes, such as
landfill, incineration or release into a waterbody, the definition includes
operations leading to resource recovery, recycling, reclamation, direct re-use
or alternate use. Thus, not only wastes intended for disposal but also wastes
subject to the recycling operations contained in Annex IV are subject to the
provisions of the Convention.
The scope of the Basel Convention includes two categories of wastes:
(1) Hazardous Wastes: this category is defined in two of the technical
annexes of the Convention. A waste is considered hazardous for the purposes of
the Convention if it belongs to any category contained in Annex I, unless it
does not possess any of the characteristics listed in Annex III (Article 1 ,
para. 1(a)). A waste which is not covered by the Annexes is also considered
hazardous for the purposes of the Convention if it is defined as, or considered
to be, hazardous by the national legislation of one or more of the parties
involved in a movement of the waste in question (Article 1, para. 1(b)).
(2) "Other wastes": Annex II lists two types of wastes - household
wastes and incinerator ash - which are not defined as hazardous wastes but are
also included in the scope of the Convention (Article 1, para. 2).
Radioactive wastes and wastes covered by the International Convention
for the Prevention of Pollution from Ships (MARPOL) are excluded from the scope
of the Basel Convention (Article 1, para. 3 and 4).
In this instance, it is very important that the list of wastes covered
by the Convention (Annex I and II) and the list of hazardous characteristics
(Annex III) be made available to the relevant enforcement agencies of the Party
States. In addition, every Party State should incorporate into its national
legislation comprehensive lists of wastes defined as hazardous in addition to
the wastes contained in Annexes I - III of the Convention. These lists must
also be made available to enforcement agencies.
In every case of an intended transboundary movement of hazardous wastes,
it will have to be determined whether or not the waste in question is
considered hazardous and is therefore within the scope of the Convention.
Article 4 para. 7(a) provides that States shall prohibit all persons
under their national jurisdiction from transporting or disposing hazardous
wastes unless such persons are authorized to perform this type of operations.
In practice, this means that States will have to introduce a licensing or
permit system. Such a system could take different forms. It could either
provide for a general licenses or permits to be issued to a limited number of
persons to carry out such operations, or it could provide for a licence or
permit to be issued for every intended shipment. In any event, such a system
could provide a mechanism to establish which wastes are covered by the
Convention and are therefore subject to the control system. Among other things,
it would provide the agency with the relevant information on intended waste
transports which would enable it to verify the compliance with the regulations
by the holders of permits or licenses.
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316 INTERNATIONAL ENFORCEMENT WORKSHOP
6. CONTROL MEASURES
As noted above, transboundary movements of hazardous wastes and other
wastes are permissible only if there does not exist a more environmentally
sound alternative, and if they take place between parties to the Convention,
none of which has prohibited the import of such wastes. Where transboundary
movement are generally permissible, the Convention provides for an elaborate
control system which is based on the principle of prior informed consent (PIC).
The following is a summary of the rights and obligations of the states of
export, import and transit in this context.
The state of export has the duty to inform the competent authority of
the state of import off any intended transboundary movement of hazardous wastes
or other wastes. The state of export can provide this information itself or
require the generator or exporter to do so. The information provided must be
sufficiently detailed to enable the authorities of the state of import to
assess the nature and the risks of the intended movement. Among other things,
it must specify the reason for the export: the exporter, the generator, the
site of generation and the process by which the wastes are generated, the
nature of the wastes and their packaging as well as the intended itinerary, the
site of disposal, the disposer and the method of disposal as per Annex IV
(Article 6, para. 1; Annex V A).
As noted above, the handling of these requirements are within the competence of
the "competent authority" which shall be established by every state under
article 5 of the Convention. A system will have to be established by the
competent authority under which the relevant information can be obtained from
individual shipping companies or any other person designated to be responsible
by the authority. Since the exporting state has the responsibility to transmit
comprehensive and correct information on each shipment to the state of import,
a system will also need to be established by which the information provided
will be verified. This, of course, means that substantive technical expertise
would have to be made available to the competent authority. In this context,
the possible involvement of industry would have to be examined. A feasible
approach would be, for example, to licence private companies having the
relevant technical expertise to assess the contents of hazardous waste ship-
ments and their conformity with the information provided by shipping companies
in accordance with the licensing system.
The state of import must respond to the notifier in writing, consenting
to the movement with or without conditions, denying permission for the movement
or requesting further information. The state of export may not allow the
movement to commence until written consent has been given and confirmation of
the existence of a contract between the exporter and the disposer, specifying
the environmentally sound management of the wastes in question, has been
received (Article 4, para. 1(c); Article 6, para. 2 and 3).
A transboundary movement of hazardous wastes or other wastes can take
place through one or more states other than the state where the wastes are
finally disposed. Unlike the states of export and import, a transit state can
be a state which is not party to the Convention. Regarding the rights and
duties of transit states, the Convention provides for the following:
The state or states of transit, whether or not parties to the
Convention, must be given prior notification containing the same information as
is given to the state of import (Article 6, para. 1 and 4; Article 7).
If the state of transit is not a party to the Convention, the subsequent
procedure is the same as for the state of import, namely that the movement of
hazardous wastes may not be allowed to commence unless the transit state has
given prior written consent (Article 7; Article 6, para. 2).
In the case of a transit state which is a party to the Convention, the
transit state must also be given prior notification of any intended movement.
After receiving the notification, the transit state which is a party must first
provide the notifier with an acknowledgement on receipt of notification. It
shall then respond to the notifier within 60 days, granting or denying
permission for the movement to take place (Article 6 para. 4). However, a state
which is a party to the Convention can also decide to waive the requirement of
prior written consent for transit transboundary movements of hazardous wastes,
either generally or under specific conditions. Notice of such a decision must
be given to the other parties through the Secretariat. IF a party state has
waived the requirement of prior written consent, the state of export may allow
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the transit movement to proceed through that state if it has received no
response within 60 days after receipt of a given notification by the state of
transit (Article 6, para. 4; Article 13).
In other words, every transit state has to be given prior notification
of an intended hazardous waste movement. A transit state which is a party can
waive the requirement of prior written consent, whereas a non-party transit
state has to reply to the notification, otherwise the transit cannot proceed.
The Convention specifies modifications of the procedure of prior
informed consent in a case where the wastes in question are not considered to
be hazardous by all the states involved in the movement (Article 1, para.
1(b)). The principle is that every state which considers the wastes to be
hazardous is accorded the rights pertaining to its position in the transaction,
even if other states concerned do not define the wastes as hazardous (Article
6, para. 5(a) to (c>).
*(Transit states have to adopt the same measures as import states. For
states which are export states as well as import or transit states, the
enforcement system would have to be modified accordingly) ,
Every person who takes charge of a transboundary movement of hazardous
wastes or other wastes must be required to sign a movement document. The
disposer must inform the exporter and the state of export of the receipt of the
wastes and the completion of their disposal. Insurance coverage must be
provided for every transboundary movement of hazardous wastes or other wastes
(Article 6, para. 9 and 11, Annex V B).
*(Movement document is extremely important for assessment and enforce-
ment. Ideally it would be standardized or a multilateral basis to facilitate
co-operation between states).
*(Insurance: guidelines to be adopted).
7. ILLEGAL TRAFFIC
Any transboundary movement of hazardous wastes or other wastes which
does not conform to the provisions of the Convention is deemed illegal traffic.
Specifically, any movement carried out in contravention of the control system
as outlined above is illegal under the Convention (Article 8, para. 1 (a) to
(d)).
The Convention states that illegal traffic hazardous wastes or other
wastes is criminal (Article 4 para. 3). Every party has an obligation to
introduce national legislation to prevent and punish illegal traffic in
hazardous wastes and other wastes (Article 4, para. 4; Article 9, para. 5) .
In the context of illegal traffic, the state of export is responsible
for the actions of the exporter and the generator, and the state of import is
responsible for the actions of the importer and the disposer. The state
responsible for the action leading to an illegal movement has the obligation to
ensure the environmentally sound disposal of the wastes in question, by re-
importation into the state of export or otherwise, within 10 days of receiving
information about the illegal movement. If the responsibility cannot be
assigned to any state, the states involved in the movement must co-operate in
ensuring the environmentally sound disposal of the wastes (Article 9, para. 2
to 4) .
The parties may request the Secretariat of the Convention to assist them
in identifying cases of illegal traffic. The Secretariat shall immediately
circulate any information on such cases to the parties concerned (Article 16,
para. 1(i)).
*(Role of Secretariat in this to be discussed - very important).
8. DUTY TO RE-IMPORT
If a transboundary of hazardous wastes or other wastes which is
otherwise carried out in accordance with the provisions of the Convention
cannot be completed according to the contractual agreement, the state of export
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has a duty to ensure the re-importation of the wastes if alternative
arrangements for their environmentally sound disposal cannot be made within 90
days from the time the exporting state and the Secretariat have been informed
(Article 8).
9. INTERNATIONAL CO-OPERATION, TECHNICAL ASSISTANCE AND TRANSMISSION OF
INFORMATION.
In accordance with the aim to reduce the generation as well as the
transboundary movements of hazardous wastes and other wastes to a minimum, the
Convention calls for international co-operation between parties in areas
related to environmentally sound waste management, such as development of low-
waste technologies and environmentally sound waste management systems, transfer
of technology and know-how, training of technicians, harmonization of technical
standards and guidelines, and monitoring of the effects of waste management on
human health and the environment. Special consideration is to be given to
assisting developing countries which are parties in these areas (Preamble, para
20, 21, Article 10). Every developing country which is a party is entitled to
receive technical assistance from developed countries which are parties,
without differentiation between developing countries consenting to import
hazardous wastes from the industrialized world and countries banning such
imports. In accordance with Articles 4 para. 8 and 15 para. 5(e), the
Conference of Plenipotentiaries adopted Resolution 8, which calls for the
establishment of a working group to develop technical guidelines for the
environmentally sound management of hazardous wastes, taking into account the
situation of developing countries in particular. UNEP is currently working on
the preparation of a first draft.
The effectiveness of the control measures provided by the Convention
depends largely on the accessibility of relevant information. The Convention
therefore calls for transmission of information related to the control system,
such as national definitions of hazardous wastes, authorities responsible for
giving and receiving notifications of transboundary movements, decisions made
by parties to ban the import and/or export of hazardous wastes and other
wastes, decisions by transit states not to require prior written comment, and
bilateral, multilateral or regional agreements entered into by parties. The
parties shall also inform each other on particulars of transboundary movements
in which they have been involved, accidents occurring during transboundary
movements, and measures adopted by them in implementation of the Convention
(Preamble, para. 11; Article 4 para. 2(h); Article 13).
10. PROTOCOL AND LIABILITY
The Basel Convention obligates the contracting parties "to co-operate
with a view to adopting, as soon as practicable, a protocol setting out rules
and procedures in the field of liability and compensation for damage resulting
from the transboundary movement and disposal of hazardous wastes and other
wastes" (Article 12). The Basel Conference also adopted a resolution requesting
the Executive Director to establish a working group of legal and technical
experts to develop elements for inclusion in a protocol on liability (Resoluti-
on 3) . The UNEP secretariat is currently preparing a first draft for submission
to the groups of experts.
11. CONVENTION SECRETARIAT
The Convention provides for the establishment of a Secretariat, the main
functions of which shall be to ensure the co-operation between Parties and the
transmission of information required under the provisions of the Convention. It
shall also assist parties in the implementation of the Convention, mainly by
identifying sources of technical assistance, training and know-how related to
the environmentally sound waste management and the handling of the notification
system, as well as consultants or consulting firms qualified to assist them in
the assessment of notifications, hazardous wastes shipments and disposal
facilities. The Secretariat shall also assist parties, on request, in
identifying cases of illegal traffic and co-operate to assist parties in
emergency situations (Article 16 para. 1). Thus, the Convention Secretariat has
an important monitoring function in the implementation of the provisions of the
Convention.
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In accordance with Article 16 para. 2, UNEP carries out the duties of
the Secretariat on an interim basis. The interim Secretariat is located in
Geneva (Switzerland). The conference of the parties, at its first meeting after
entry into force of the Convention, will designate the Secretariat from among
the competent intergovernmental organizations which have indicated their
willingness to assume its functions (Article 16 para. 3). It will also adopt
financial rules to determine the financial participation of the parties
(Article 15 para. 3). During the interim period of operation, the costs of the
Secretariat shall be met by voluntary contributions from signatory states and
parties. To this end, Resolution 6, adopted by the Basel Conference, calls upon
all states to consider voluntary contributions towards the costs of the interim
Secretariat.
12. THE POSITION OF DEVELOPING COUNTRIES
Developing countries as well as non-governmental organizations, have
repeatedly expressed their concern about the fact that the Basel Convention
does not, in principle, ban transboundary movements of hazardous wastes and
other wastes. Concern has also been expressed regarding the adequacy of the
control system provided by the Convention. It is feared that many countries,
especially developing countries, do not possess the necessary technical
capacity and know-how to make appropriate use of the control system, and that
illegal practices will therefore continue.
The Convention emphasizes the sovereign right of every state to ban the
import of hazardous wastes into its territory. This right is enforced by the
notification of such decisions to the other parties, who then have a legal
obligation to prohibit any exports of hazardous wastes and other wastes to such
a state. The monitoring function of the Secretariat is important in this
context.
The Basel Convention, as a global legal instrument, must meet the needs
and requirements of all the regions of the earth. A total ban of all trans-
boundary movements of hazardous wastes and other wastes would be inappropriate
in cases where it is more environmentally sound to dispose of a certain type of
wastes in another country where the necessary disposal facilities are
available. A general prohibition of such movements would be contrary to the
principle of environmentally sound waste management. It would, for example,
prevent the transfer of hazardous wastes from one developed country to another
which has special disposal facilities for that particular type of wastes. It
would also prevent the establishment of joint disposal facilities by a group of
neighboring countries, and would force every country to provide its own
disposal facility for every type of wastes. This would lead to inappropriate
situations, for example if a factory was located near a border and the wastes
generated by it could best be disposed in a facility on the other side of the
border, or if the amount of a certain type of waste generated within one
country was so small that the establishment of a special disposal facility for
that country alone would not be justified. In this context, it should be noted
that the vast majority of the transboundary movements of wastes generated in
developed countries take place between one developed country and another, in
accordance with bilateral agreements.
However, the specific needs of groups of states or regions with similar
conditions and aims can be met under the provision of Article 11 of the
Convention. This provision allows parties to enter into bilateral, multilateral
or regional agreements with other parties or non-parties, provided such
agreements establish requirements no less environmentally sound than those of
the Basel Convention.
Any group of states could, for example, adopt an agreement providing for
a total ban of imports of hazardous wastes and other wastes into their
territories. Such an agreement would then be notified, through the Secretariat,
to all parties to the Basel Convention, who would have the obligation to
prohibit exports to or through any of the states party to the agreement.
Article 4, para. 2(e) specifically prohibits exports of hazardous wastes or
other wastes to a group of states belonging to an economic and/or political
integration organization - particularly developing countries - which have
banned the import of such wastes. Thus, the provisions of the Basel Convention
would ensure that such a collective ban would be respected by all its parties.
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The control system, which is one of the cornerstones of the Basel
Convention, ensures the enforcement of import bans and provides for strict
control of such movements as are permissible under environmental aspects. The
monitoring function of the Secretariat is essential in this context. Without
such a system, transboundary movements of hazardous wastes would continue
uncontrolled.
The justified concerns of developing countries regarding the lack of
technical capacity and know-how which would enable them to handle the control
system are take into account by the strong emphasis on international co-
operation between parties in technical matters related to environmentally sound
waste management. Special consideration is given to assisting developing
countries in such matters. Therefore, the Convention facilitates the improve-
ment of developing countries' capacities regarding the management of wastes,
including wastes generated within those countries. This is of particular
importance, given the growing industrialization of developing countries.
The Basel Convention is the only existing global legal instrument
regulating transboundary movements of hazardous wastes. As noted above, its
provisions ensure protection of countries against uncontrolled dumping of toxic
wastes and promote environmentally sound waste disposal and minimization of
waste generation. The control system ensures that the Convention does not
remain a mere declaration of intentions, but that the rights of countries are
respected. It is therefore important that as many countries as possible become
parties to the Basel Convention to achieve effective control of transboundary
movement and disposal of hazardous wastes world-wide.
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INTERNATIONAL INSPECTIONS : THE EXAMPLE OP THE CHEMICAL WEAPONS
CONVENTION
B. ter Haar
On sabbatical leave from the Ministry of Foreign Affairs,
P.O. Box 20061, 2500 EB Den Haag (Netherlands)
Summary
Effective functioning of an international agreement requires
compliance by the parties. A verification regime might help to
build confidence in compliance and deter parties from violating.
Arms control agreements such as the envisaged Chemical Weapons
Convention comprise elaborated verification regimes that might
contain useful precedents for future environmental agreements.
1. Introduction
Low flying international inspection airplanes might monitor air
pollution and verify whether agreed measures have been taken.
International inspection teams might inspect plants to verify that
emissions of certain compounds have stopped or are below agreed
limits. Satellites might be used to verify an agreement to limit
forest burning . These are a few examples of the possibility to use
the experience of international arms control for strengthening
international environmental agreements. The objective of this paper
is to present an overview of relevant aspects of the projected
Chemical Weapons Convention. In the first paragraphs (2 and 3) some
of the general problems involved in ensuring compliance with
international agreements are discussed. In the next two paragraphs
(4 and 5) an overview is given of the projected Chemical Weapon
Convention, with emphasis on the envisaged regime for international
monitoring of the chemical industry. Finally those elements that
might be most relevant for verifying environmental agreements are
discussed in somewhat more detail.
2. Can international agreements be enforced?
Enforcement could be considered to consist of two elements :
monitoring compliance
effective sanctions against violations
Enforcement of international agreements implies enforcement at both
the national and the inter-national level. As set out below,
monitoring compliance by states involves many problems, but is
feasible. But it is very doubtful whether a system of effective
sanctions against violators will be feasible in the near future.
2.1 Enforcement at the national level
National enforcement of international agreements is not basically
different from enforcement of national regulations. A government
that is Party to an international agreement has to take all
necessary measures to ensure compliance by everybody within its
jurisdiction and control . The history of national enforcement of
regulations for the protection of the environment and for labour
safety is much older than arms control agreements. The Geneva
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Conference on Disarmament has made extensive use of this experience
to develop a regime for international inspections3.
2.2 Enforcement at the international level
Enforcement at the international level, that is between States
Party to the agreement, poses problems of a totally different order
than national enforcement does. In the international world the
willingness and possibility to "force" another state into
compliance usually does not exist. It can therefore be argued that
use of the term "enforcement" is often less appropriate in an
international context, could easily give rise to false expectations
and should possibly be reserved for the relation between a central
government (or a supra-national authority) and its subjects.
2.3 Why do States observe international agreements?
The lack of a central power to enforce observance of international
agreements does not imply that between States only complete anarchy
is feasible. When states enter into agreements it can be assumed
that they have decided that it is in their interest to observe the
agreement. This decision is however often based on the condition
that other Parties to the agreement will also comply. It is here
that arms control agreements and international environmental
agreements might have a few things in common:
- observance of the agreement has disadvantages (loss of
military options, higher production costs etc.)
- if no regime exists for verifying the agreement, states might
be tempted to violate the agreement (e.g. by instigating or
tolerating violations within their jurisdiction)
2.4 The necessity of monitoring compliance
Observing an international agreement might put a country at a
comparative disadvantage against countries that violate it5. The
effective functioning of such international agreements therefore
requires that the States Parties feel confident that other Parties
are honouring their obligations. To build such confidence the
following types of measures could be considered:
- international exchange of relevant information
opening facilities for international routine inspections
a regime to solve doubts about compliance
These three types of measures have been developed to strengthen
confidence in the effectiveness of the Chemical Weapons Convention,
but they could probably also serve to build confidence in
observance of environmental agreements.
To avoid any misunderstanding it should be pointed out that
although the object of inspection often is a private company,
verification is in principle a matter between the international
inspection team and the government on whose territory the
inspection takes place. The purpose is essentially not to verify
whether the company in guestion is in violation (national
enforcement is a prerogative, and obligation, of the national
government), but to verify whether the State is violating the
international agreement by not enforcing it nationally.
3. What to do against violators?
As mentioned above, enforcement does not only reguire the ability
to determine the facts, but also the ability to take effective
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punitive measures against whoever is guilty of violating the
enforced agreement. Taking punitive measures against a state that
has been found violating an international agreement is however even
more difficult than ascertaining that a violation has taken place.
3.1 Sanctions against states violating international agreements
The present experience with international sanctions is
disappointing and the near term future of an effective
international sanction regime is not very promising. The history
of the use of chemical weapons by Irag in its war with Iran is a
good example of the difficulties involved. Even when a United
Nations team of experts had found irrefutable evidence of repeated
violations by Iraq of the Geneva Protocol of 1925 (that prohibits
the use in war of chemical and biological weapons) , the world
community was not able or willing to take any measures other than
an official condemnation of the use of chemical weapons. For many
states eguilibrium in their relations with Iran and Iraq weighed
heavier than upholding the Geneva Protocol. Most nations seem to
agree that this is a bad precedent for other arms control
agreements. Efforts are therefore undertaken to devise a regime for
sanctions against violators of the prospective Chemical Weapons
Convention. These efforts have however so far not led to a credible
system of sanctions.
Major violations of international environmental agreements will
probably be of a totally different character than the use of
chemical weapons, but in one respect the situation might be
comparable : many states might be unwilling to react because of
political considerations that are not related to the violation.
3.2 Deterrence by early detection and threat of publication
Efforts to develop a satisfactory sanction regime should of course
continue, but observance of international agreements should not be
made solely dependent on sanctions. Confidence in the Chemical
Weapons Convention will have to be built on the combination of
routine inspections and the possibility of challenge inspections.
The verification regime is designed to deter a Party from violating
the Convention by maximizing the risk that a violation will be
detected in an early stage, that is to say, not only before
chemical weapons have actually been used, but even before a
substantial stock of chemical weapons can be employed among the
armed forces.
The experience gained during 20 years of implementing the nuclear
Non Proliferation Treaty of 1968 seems to indicate that countries
are not willing to take the risk of detection. Countries that were
not willing to forego the option of nuclear weapons simply did not
become party to the Treaty. Disquieting irregularities have almost
never been reported. In the very small number of cases that
inspections could not be concluded satisfactorily, the mere risk
of publication of the unsatisfactory conclusions induced the
countries in question to take measures to the satisfaction of the
inspectorate. If silent diplomacy fails, public diplomacy can
sometimes be effective, like in the case of the Krasnoyarsk radar
built by the Soviet Union in violation of the Anti Ballistic
Missile Treaty .
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4. The basic structure of the Chemical Weapons Convention
The projected Chemical Weapons Convention can be considered to
consist of the following 5 main parts:
1 a comprehensive ban on chemical weapons
2 an obligation to destroy CW-stocks and production plants
3 a regime to give Parties confidence in compliance
4 a regime to resolve doubts about compliance
5 an international organization to implement the Convention
The central provision of the CW-Convention is a prohibition of
developing, producing, retaining, transferring and using chemical
weapons.
The logical consequence of this ban is the obligation to destroy
chemical weapon stocks and chemical weapon production plants. To
assure all parties that such destruction indeed takes place, all
plants and stockpiles will have to be declared shortly after the
convention enters into force and be sealed and put under a system
of international on site inspection until they are destroyed.
The heart of the problem of verifying a ban on chemicals weapons
is that many civil chemical plants have, to a lesser or greater
degree, a capability to produce chemical weapons. The obligation
to destroy plants that have been making certain chemicals for
chemical weapon purposes makes sense only if Parties can feel
confident that civil plants that have comparable capabilities are
not used for the same purpose. To give Parties such confidence an
elaborate verification regime is foreseen. This regime might in
some respects be a model for international environmental
agreements. It will be discussed into somewhat more detail in
paragraph 5.
If a Party wants to violate the Convention, it will probably try
to keep the plants where it would produce its chemical weapons
outside the scope of the routine inspection regime. To deter such
behavior all parties will have the right to request inspection of
any location or facility on the territory of another State Party.
This system of challenge inspections will work only if inspections
can take place anytime, everywhere, at very short notice and can
never be refused.
The inspections will have to be carried out by the inspectors of
the Technical Secretariat. This Technical Secretariat will be part
of an international organization for the implementation of the
Chemical Weapons Convention. The highest organ in this organization
will be the Conference of (all) States Parties, but an Executive
Council (with limited membership) will supervise the implementation
of the convention on a more frequent basis.
5. Verification of non-production
5.1 Feasibility and cost effectiveness are required
In theory it might seem possible to collect data on all chemicals
that can be used for chemical weapon purposes and to inspect all
relevant chemical plants regularly. This would require an enormous
inspectorate with thousands of inspectors. Even if this were
feasible it would certainly not be cost effective. The efforts of
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a relatively small international inspectorate will have to be
concentrated at the chemical plants that are considered to present
the largest risk.
5.2 The Annex on Chemicals and the three Schedules
The backbone of the regime is a classification of the most relevant
chemical compounds into three lists (or Schedules) that will be
subjected to three different regimes. All three lists contain both
chemicals that can be used as warfare agents and precursors of such
agents. List (Schedule) 1 contains the most dangerous compounds
that have no legitimate applications except in very small (gram)
quantities. List 2 contains chemicals that present a somewhat
smaller risk and are (often) produced in small commercial
quantities. List 3 contains chemicals that are considered to
present an even smaller but still substantial risk and are produced
in large quantities (quantities of 100,000 tons and more).
Production, storage and use of the chemicals on Schedule 1 is
permitted only for a limited number of purposes (such as research
and protection against chemical weapons) and even then only in very
small quantities under strict rules of declaration and
verification. On list 1 are the nerve agents, the mustard gases and
a few key precursors for binary7 nerve agents.
Production and use of the chemicals on Schedule 2 for other
purposes than chemical weapons is not subjected to limitations, but
if the quantity is above a certain threshold, declaration is
compulsory and will be verified through on-site inspections. On
Schedule 2 are mainly key precursors of the warfare agents on
Schedule 1. Commercial use of Schedule 2 chemicals is relatively
small.
Civil production of Schedule 3 chemicals is so large that it was
not considered useful to try to verify declarations of such
production. The regime for these chemicals is therefore limited to
an obligation to report to the Technical Secretariat the quantities
and purpose of production and use. Among the chemicals on Schedule
3 are toxic chemicals that have been used as warfare agents such
as hydrogen cyanide and phosgene, and widely used precursors such
as phosphorus oxychloride and sulphur dichloride.
5.3 Ad hoc checks and ad hoc inspections
The system described above encompasses only production plants that
produce, process or use chemicals on one of the three lists.
However, many other plants have similar capabilities. But due to
the large variety in chemical plants and the big diversity of
chemical warfare agents, no clear and objective criteria can be
devised to distinguish plants that are "capable" of producing
chemical weapons from plants that are not.
The Federal Republic of Germany therefore proposed in 1988 to bring
the whole chemical industry under a regime of routine ad hoc checks
as a supplement to the more intrusive routine inspections. The only
purpose of these checks would be to verify on a routine basis
whether, at the time of the check, any chemicals on one of the
lists were produced without being reported . The basis of these
checks would be a register of all chemical plants. The proposal did
however not satisfactorily answer the question how the enormous
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number of chemical plants in the world could be inspected often
enough to make the system a credible deterrence against violations.
As a possible answer, Czechoslovakia proposed to give the
international Technical Secretariat the discretion to choose the
objects of, what was now called ad hoc inspections. This would open
the possibility to direct the ad hoc inspections at plants that are
considered most relevant. Such ad hoc inspections would not have
to be limited to registered chemical plants, but could take place
wherever the Technical Secretariat would think it useful. Several
delegations believe however that this would give too much power to
the Technical Secretariat. The United Kingdom therefore proposed
to limit the right to request ad hoc inspections to the States
Parties. The number of inspections a Party would be allowed to
request in a year would be limited by quota, just as the number of
ad hoc inspections a Party would have to allow. It is not yet clear
what the synthesis of these ideas will look like, but it might very
well include the right of Parties to request an ad hoc inspection
limited to registered chemical production facilities.
5.4 Challenge inspections
The system of ad hoc checks or inspections will in principle cover
every chemical plant, provided Parties register all their chemical
plants. However a country that wants to acquire a clandestine
stockpile of chemical weapons, will probably not register that
plant. The regime of challenge inspections is designed for such
situations. It therefore deserves mentioning here, although it
usually is not grouped under verification of non-production,
because its scope is wider than that. International environmental
agreements can possibly do with a somewhat less radical regime9.
6. Analogies between disarmament and environmental protection
The differences between chemical disarmament10 and protection of
the environment are numerous and obvious. For the purpose of this
paper it will do to mention only the following points :
Chemical disarmament aims at preventing intentional damage
caused by toxic chemicals, whereas the purpose of
environmental protection (among other things) is the
prevention of unintended damage.
- Violating a ban on chemical weapons is difficult, time
consuming and very expensive. Violating an environmental
agreement is usually easier , quicker and cheaper (at least
for the short term) than complying.
A clandestine chemical weapon plant will probably be
characterized by unusually few traces outside the plant ( to
hamper detection). A chemical plant that is violating
environmental regulations will probably be characterized by
unusual large traces outside the plant.
However, the similarities are of more interest to us. As set out
above, a similarity between arms control agreements and most if not
all international environmental agreements is that their effective
functioning is dependent on the Parties having confidence that
other Parties will also observe the agreement. A mere declaration
of observance will not always be enough to build such confidence11,
certainly not when undetected violation would seem to be in the
(short term) interest of the violator. It is here that verification
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of arms control agreements might form a useful example for
international environmental agreements. It goes without saying that
arms control does not have a set of prescriptions ready that only
have to be followed to have an effective regime for monitoring
compliance with environmental agreements, but certain elements can
probably be useful.
7. Preconditions for effective verification
The two cornerstones of effective verification are openness and
adequate protection of confidential information. These
preconditions are closely connected because it is very difficult
to demand the necessary openness if confidentiality is not
guaranteed. On the other hand, if adeguate measures are taken to
protect confidential information, no good reason exists to deny the
international inspectors access to sensitive information, if they
reguire such information.
7.1 Openness
There is hardly a better way to call suspicions on oneself than by
secretiveness. It is therefore crucial that States Parties make
sure that all the information an international inspection team
needs is made available.
7.2 Protection of confidential information
Representatives of the chemical industry have repeatedly stated
that the chemical industry would worry less about on site
inspections, if they felt assured that their commercial and
technical secrets will not be compromised. To give such assurance
a special Annex on the Protection of Confidential Information was
added to the draft text of the Convention. The 6-page annex
consists of four parts :
General principles for the handling of confidential
information, such as criteria for classification and
publication;
Employment and conduct of personnel in the technical
secretariat, such as limiting access to confidential
information;
Measures to protect sensitive installations and prevent
disclosure of confidential data during on-site verification
activities. The inspected State Party may also propose such
measures, but the inspection team has to adopt such proposals
only when it considers them appropriate;
Procedures in case of breaches or alleged breaches of
confidentiality. In serious cases the diplomatic immunity of
inspectors may be waived by the Director-General of the
Technical Secretariat.
Protection of confidential information is also ensured by the
following provisions:
A state will be inspected only by inspectors that had
previously been accepted, silently or explicitly, by that
state.
All inspections will be conducted according to the rules of
an elaborate inspection protocol.
Routine inspections (with the possible exception of the less
intrusive ad hoc inspections) will be based on a facility
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attachment that will be negotiated between the Technical
Secretariat and the inspected Party on the basis of a model
agreement that is appended to the Convention.
7. 4 The need of flexibility
The more detailed an agreement is, the more certain it is that the
Parties to the agreement will want to change it as soon as it comes
into force. However, amending an international agreement is such
a cumbersome process that usually nobody dares to propose it. Any
agreement with verification provisions will by necessity include
many small details, such as precise definitions of the items that
are to be verified, and descriptions of verification procedures.
As scientific and technological developments proceed, some of these
details will need revision. This will probably be as true for
environmental agreements as for the projected Chemical Weapons
Convention.
The solution proposed for the Convention on Chemical Weapons is to
set different revision rules for different parts of the Convention
and its annexes. What the amendment and revision procedures
eventually will look like is not yet precisely known, but probably
(at least) the four following types of procedures will be
instituted :
-1- By unanimous decision of the Conference of States Parties
Some provisions are considered to be so crucial for the
Convention that amendment should be made virtually
impossible.
-2- By a highly qualified majority (3/4 to 9/10) of the Conference
of States Parties entering into force only for State Parties
that ratify the amendment. This is the usual way of amending
treaties.
-3- By a qualified majority of the Conference of States Parties,
entering into force for all States Parties.
-4- By silent acceptance of a proposal. Such a proposal could be
made by every State Party and by the Executive Council. This
procedure would apply for additions to and deletions from the
lists of items that are subjected to verification. In case one
or more Parties object, the procedure mentioned under 3 would
apply.
7.5 Trial inspections
A complicated verification regime will not work effectively simply
because the Parties to the agreement have reached political
agreement. The effort needed to reach general agreement on a regime
that on paper looks logical and effective seems to be so big that,
at least in the field of arms control, negotiators and governments
sometimes easily overlook the fact that political will is not
always sufficient for making an agreement work. To test out the
verification procedures of the Chemical Weapons Convention, trial
inspections are being conducted. The first of these was organized
in 1986 in the Netherlands with the cooperation of the Netherlands
Ministry of Housing, Physical Planning and Environment.
8. An international organization
8.1 An institute for information exchange
An efficient exchange of information is not feasible without some
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sort of international institute that collects, processes and
distributes the information. If nothing more than information
exchange is required for the effective implementation of an
agreement, this task could be assigned to an existing international
organization. For example, the exchange of information in the
framework of the Biological Weapons Convention has been assigned
to the Department for Disarmament Affairs of the United Nations.
It would however not seem wise to follow the example of forgetting
to arrange for the financing of this task
8.2 An international inspectorate
An exchange of information will not always suffice to give
confidence, and sometimes international inspections will be
required. If an agreement is basically bilateral in character these
inspections can be conducted by representatives of the other Party,
such as in the case of the INF agreement between the United States
and the Soviet Union. Under certain circumstances the inspections
in the framework of a multilateral agreement might also be
conducted by national inspectors of the Parties. The verification
of an agreement on conventional arms reductions in Europe might be
an example. However in many cases international inspectors will be
required. These inspectors will have to be hired and trained. They
will need headquarters with legal, technical and other staff
departments to back them up. To do their work properly, they will
require some kind of diplomatic immunity during their work. If
problems rise between the inspectorate and inspected Parties, a
mechanism should exist to solve them. It is clear that all this
requires the set up of an international organization for the
verification of the agreement.
8.3 One or more organizations?
If international verification is considered to be a useful manner
for strengthening certain international environmental agreements,
it is to be expected that more than one agreement will require such
inspections. It might seem self-evident that all these inspections
should be conducted by the same international organization, but it
is not, because the membership of different agreements will
probably not be identical. As an example might serve the
International Inspectorate that will be set up as part of the
Technical Secretariat to implement the Chemical Weapons Convention.
This Inspectorate will be governed by the Executive Council and the
Conference of States Parties to the Chemical Weapons Convention.
It has been suggested that this same Inspectorate should also
verify compliance with the Biological Weapons Convention. However
this could result in a situation in which Parties to the Chemical
Weapons Convention could decide on the implementation of the
Biological Weapon Convention without being Party to it, while
countries Party only to the Biological Weapons Convention could
not. The solution might be to establish the verification
organization separately from the Chemical Weapons Convention. The
precedent for such a set-up is the role of the International Atomic
Energy Agency (IAEA) in conducting inspections in the framework of
the (nuclear) Non Proliferation Treaty (NPT). The IAEA has its own
Statute and in fact even predates the Non Proliferation Treaty.
8.4 The cost of verification
Although the costs of verification are low in comparison with those
of major weapon systems or with the costs of non-compliance with
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environmental agreements, they should not be underestimated. The
costs of the verification division of the IAEA (the so called
safeguards department) are about $ 60 million per year, including
all overhead costs concealed in other parts of the budget of the
IAEA. In view of the large task of the safeguards department this
is cheap, possibly too cheap . A verification regime for the
chemical industry that gives the same degree of certainty as the
system of safeguards on nuclear materials is, however, not
feasible, and would be far too expensive. An adequate verification
regime seems possible for something between $100 million and $200
million a year
9. Verification technology
An overview of all the verification technologies that have been
developed or are in development for arms control purposes and could
possibly be used for verification of environmental agreements would
require a separate paper. Here the main types and principles will
be only mentioned.
9.1 National technical means and cooperative verification
Until recently verification of the arms control agreements between
the two superpowers was mainly based on the use of national
technical means of verification, such as observation-satellites.
However, on-site and near-site inspections and sampling require
the active cooperation of the inspected country. This cooperative
type of verification is probably more relevant for verification of
environmental agreements than the use of national technical means.
9.2 Negative verification
One of the main requirements of cooperative verification is that
it should be as little intrusive as possible. Negative verification
is therefore a very attractive concept. This means analyzing only
that a restricted item is not present, without figuring out what
the analyzed sample actually consists of. Such a technique could
be used for example during an ad hoc check to verify that no
restricted compounds are produced at the inspected plant.
9.3 On-site, near-site and off-site verification
Another manner to limit the intrusiveness of inspection is by
staying away as far as possible from the inspected object. A
typical off-site method of verification is by satellite. As the
resolution of advanced reconnaissance satellites approaches 10
centimeter, a lot of information can be gathered this way. An
example of a near-site verification technique is analysis of
effluent water outside a plant. In the case of arms control
agreements off-site and near-site verification will often not be
sufficient and on-site inspection will be necessary.
9.4 Open skies
Currently negotiations are taking place between the NATO and
Warsaw-pact countries about opening their skies for reconnaissance
by aircraft. This would greatly facilitate near-site verification.
By flying over a plant and taking air samples much can be learned
about the activities that take place in the plant. The open skies
proposal is meant for arms control purposes, but it might also be
very useful for verification of environmental agreements.
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9.5 Use of instruments
Instruments can facilitate verification in two ways. In the first
place inspectors will need instruments during inspections to
analyze samples. As it is important to prevent disagreement about
applying different standards for different countries, the
instruments used will have to be standardized. They should be light
and robust because inspectors will have to carry them around.
Instruments can also be used for automatic continuous monitoring.
An example is the SNAL (Sample Now, Analyze Later)17 that could be
used for retrospective verification of non-production of chemical
weapons. On-site instruments could in principle also give real time
information by using telephone connections or satellites.
9.6 Keep it simple
The literature about possible verification techniques is almost as
fascinating as the literature about possible weapon techniques.
What is needed for cooperative verification efforts however is
instruments and techniques that are accepted and understood in all
parts of the world where they have to be used. On-site monitoring
instruments will have to be understood by the technicians of the
plant, otherwise they will probably not function long. Instruments
that inspection teams take with them should be understood by the
inspected country, otherwise the country might not be willing to
allow the instruments brought into the country for fear of
espionage.
10. On negotiating a multilateral verification regime
Environmental protection can possibly learn something from the
accomplishments of arms control, but probably also from the
mistakes made. The negotiations on a world wide ban on chemical
weapons have been dragging along now for more than 20 years, partly
because the participants in the negotiations did not always have
the necessary political will, but partly also because the problems
involved were grossly underestimated and the negotiations were not
undertaken very efficiently.
10.1 A permanent and efficient negotiating forum
Travelling around the world from conference to conference has, at
least for some time, many attractions, but it is probably not the
most effective manner of negotiating. Almost all world wide
disarmament negotiations are therefore concentrated in Geneva in
and around the Conference on Disarmament. This made it possible for
the United Nations and many states to have arms control experts
permanently in Geneva. Now that we seem to have entered an era of
permanent negotiations on international environmental agreements
it might be advisable to institute a permanent negotiating forum .
Such a Conference on the Protection of the Environment should avoid
two flaws in the set up of the Conference on Disarmament :
In May and from August to February the Conference on
Disarmament does not convene, because most delegations and the
permanent UN staff have to attend meetings of the United
Nations Disarmament Committee and the United Nations General
Assembly, both in New York. These periods could more
effectively be used by preparing for the next round of
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negotiations. Furthermore the recess period of 5 months in
autumn and winter is too long to be efficient1 .
Every year the Conference on Disarmament has two sessions of
12 weeks each, with a 5 week break in between. This is an
inefficient use of time, because most delegations need a break
after 4 to 6 weeks, to evaluate their positions and to seek
new instructions.
10.2 Direct involvement of all concerned parties
On the face of it involvement of everybody that is interested in
the outcome of the negotiations would seem only to complicate the
process. The history of the negotiations on a Chemical Weapons Ban
seems on the contrary to prove that involvement of all interested
parties might be essential for the success of the negotiations. In
the first place, it proved impossible to develop an effective
inspection regime without the close cooperation of representatives
of the objects of inspection. Nobody is better aware of the
complications of inspecting a certain location or facility, and of
the ways to deceive an inspection team, than the people working at
such a facility or location. In the second place, effective
implementation of a verification regime is greatly facilitated if
it is accepted by the people that will be inspected. Building such
a consensus, or at least acceptance, among all parties concerned
requires involvement of them all at the earliest possible time.
To prevent any unnecessary differences and misunderstandings the
lines of communication between the negotiators and those directly
affected by inspections should be as short as possible. The result
of the long time absence of such direct links in the CW-
negotiations was that certain preoccupations of the chemical
industry were sometimes blown up to dimensions that did not have
any direct relation with reality, not because of some conspiracy
to hamper the negotiations, but just by sheer lack of knowledge .
10.3 Practical preparation for implementation
Negotiations on international environmental agreements should avoid
the mistake to think that the only objective of negotiations is to
reach political agreement. The negotiations on a CW-ban have long
struggled and are still struggling with this delusion. As set out
above, a complicated agreement, like one involving international
inspections, will not work simply because the political will exists
that it should. A lot of practical work, like developing and
testing instruments and procedures, needs to be done before an
agreement will function well.
REFERENCES
1. See for example the satellite photograph on page 778 of the
National Geographic magazine of december 1988 (Vol.174, No.6).
2. It should be noted however that the question what exactly a
State is required to do to implement an international agreement can
be more difficult than it might seem. Especially the question of
jurisdiction and control poses problems. Should, for example, a
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State be held responsible for the activities outside the territory
of that state of a company that has its headquarters in that State?
3. See for example the working papers of the ad hoc Committee on
Chemical Weapons of the Conference on Disarmament CD/CW/WP141, 142
and 143.
4. The exception to this rule is the European Community that has
certain supranational features.
5. This does not automatically mean that a country in such a
situation would be better off if it also stopped complying with the
agreement. It might very well be that this would only make the
situation for that country even worse (e.g. because it would induce
more countries to stop complying and would lead to a complete break
down of the agreement).
6. At first the USSR denied that the radar installation (that was
still being build) would be in violation of the ABM Treaty,
subsequently it offered to stop the building process, and finally
it agreed to tear the installation down.
7. Binary chemical weapons contain two components that, when mixed,
react and form a chemical warfare agent. Until the moment of
delivery the two relatively non-toxic components are kept separate
which facilitates transport, storage and handling.
8. The latest version of the proposal of ad hoc checks was
published as document of the Conference of Disarmament on 6
September 1988 (CD/869).
9. The military security of a state might be in jeopardy if another
state produces or hides chemical weapons in a single building. Thus
adequate verification requires that an inspection team has the
power to enter any building that it considers relevant. In the case
of environmental agreements it might be easier to accept certain
limitations of the mandate of an inspection team, as possible
clandestine activities within one single building that can not be
verified from the outside of the building will probably be much
less relevant.
10. The terms arras control and disarmament are used interchangeably
in this paper.
11. The necessity of verification and confidence building is
especially clear in the case of arms control agreements, as these
agreements are usually made between countries that consider each
other as potential adversaries. It would however seem naive to take
compliance with environmental agreements for granted.
12. For details see the rolling text of the draft Convention CD/961
p. 49-51 and 197.
13. An example is the obligation to destroy all stocks within 10
years after the entry into force of the Convention.
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14. The Second Review Conference of the Biological Weapons
Convention agreed on the exchange of information on certain types
of biological laboratories and unusual outbreaks of diseases to
build confidence in compliance with the Convention. The information
was to be forwarded to the Department of Disarmament Affairs of the
United Nations in one of the official languages of the United
Nations (Arabic, Chinese, English, French, Russian and Spanish) .
However no arrangements were made for translating or otherwise
processing the information.
15. As a result of the policy of many nations to limit the budget
growth of the United Nations and affiliated organizations to zero,
the budget growth of the safeguards department within the IAEA has
grown very little in the recent past, whereas the number of plants
under safeguards and the amount of safeguarded material grew
quickly.
16. A balance will have to be struck between the requirements of
adequate verification and the need to keep the costs manageable.
In view of the fact that the chemical industry is distributed much
more widely over the world than the nuclear industry, and that the
nuclear weapon states will be inspected in the same manner as other
states (under the NPT the nuclear weapon states are not really
inspected) it would seem reasonable and acceptable to project the
costs for verification of non-production at twice the costs of
verifying the NPT, that is at about $ 120 million a year. However,
more than a vague estimate is not possible as long as neither the
outcome of the negotiations, nor the number of facilities to be
inspected is known.
17. This system consists of a tape recorder on which at certain
intervals a very small sample is stored. A commercially available
tape could contain 24000 samples and keep them during several
months. From time to time an inspection team could pass by and
verify whether any restricted compound had been present in the
sampled product or effluent flow. This system is described in
CD/CW/WP.204.
18. It could be considered to collocate this forum with the UNEP
in Nairobi as many nations do already maintain environmental
protection experts in Nairobi.
19. The ad hoc Committee on chemical weapons of the Conference on
Disarmament does however reconvene in one way or another during
three weeks at the end of November and during three weeks in
January.
20. One delegation for example maintained that a chemical that was
produced in many parts of the world in quantities of millions of
tons and a chemical that was in experimental civil production of
a few hundreds of kilograms a year should, for the purpose of
inspection, both considered to be of large commercial interest.
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LIST OF PARTICIPANTS
BELGIUM
Witte, Mr. S. de
Ministerie v.d. Vlaamse Gemeenschap
Bestuur voor Leefmilieu
Markiesstraat 1
B-1000 BRUSSEL, Belgium
CANADA
1 Jacob, Ms. Gisele
Environment Canada
351 St. Joseph Blvd
Hull Quebec K1A OH3, Canada
2 Neville, Mr. Bryan
Environment Canada
351 St. Joseph Blvd
Hull Quebec K1A OH3, Canada
3 Wein, Ms. Bonnie
Director of Legal Services
Ontario Ministry for the Environment
135 Saint Clair Ave. West 10th floor
Toronto Ontario M4V1P5, Canada
EUROPEAN COMMUNITY
1 Cramer, Mr. L.
European Economic Community
Wetstraat 200
B-1049 BRUSSELS, Belgium
2 Villeneuve, Mr. C.H.V. de
Commission European Community
200 Rue de Laloi
B-1040 BRUSSEL, Belgium
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336 INTERNATIONAL ENFORCEMENT WORKSHOP
Wagenbaur, Mr. R.
European Economic Community
Wetstraat 200
B-1049 BRUSSELS, Belgium
HUNGARY
Bakacs, Mr. Tibor
Ministry for Environment
Department for International Relations
P.O. Box 351
H-1394 BUDAPEST, Hungary
INDONESIA
Soeriaatmadja, Mr. R.E.
Ministry of State for Population and Environment
Jl. Merdeka Barat 15
JAKARTA 10110, Indonesia
NETHERLANDS
1 Bar, Mr. J.G.W.
Dutch National Police, Naval Branch
P.O. Box 117
NL-3970 AC DRIEBERGEN, Netherlands
2 Bakker, Mr. Leen
National Police
P.O. Box 958
NL-2270 AZ VOORBURG, Netherlands
3 Beijen, Mr. Geo
Regional Inspector Zeeland
P.O. Box 7073
NL-4330 GB MIDDELBURG, Netherlands
4 Bierman-Beukema toe Water, Ms. Marbeth
Regional Inspector Zuid-Holland
P.O. Box 5312
NL-2280 HH RIJSWIJK, Netherlands
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INTERNATIONAL ENFORCEMENT WORKSHOP 337
5 Boer, Mr. Ingwer J. de
Head Water Policy, Ministry of Traffic and Public Works
Hoofddirectie Rijkswaterstaat
P.O. Box 20906
NL-2500 EX DEN HAAG, Netherlands
6 Bok, Mr. A.J.
Ministry of Justice
Vermeerweg 13
NL-9761 HV EELDE, Netherlands
7 Bos, Mr. Jan Tom
Ministry of Justice
P.O. Box 20301
NL-2500 EH DEN HAAG, Netherlands
8 Bouma, Mr. Rob
Ministry VROM, Enforcement Division
P.O. Box 450
NL-2260 MB LEIDSCHENDAM, Netherlands
9 Briick, Mr. Wim van
Municipality Tilburg
P.O. Box 90155
NL-5000 LH TILBURG, Netherlands
10 Dijk, Mr. Rein van
Ministry of Traffic and Public Works
North Sea Directorate
P.O. Box 5807
NL-2280 HV RIJSWIJK, Netherlands
11 Donkers, Mr. Robert H.
Coordinator EC Affairs
Ministry of VROM
Boslaan 46
B-1900 OVERUSE, Belgium
12 Dop, Mr. Dick van
Head of Environmental Ass. Team, Enforcement Division, Ministry VROM
P.O. Box 450
NL-2260 MB LEIDSCHENDAM, Netherlands
13 Dordregter, Mr. Peter
Director Society of Dutch Municipalities (VNG)
P.O. Box 30435
NL-2500 GK DEN HAAG, Netherlands
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338 INTERNATIONAL ENFORCEMENT WORKSHOP
14 Ekeren, Ms. Anneke van
Ministry of Housing, Physical Planning and Environment (VROM)
P.O. Box 20951
NL-2500 EZ DEN HAAG, Netherlands
15 Enthoven, Mr. Marius
Director General, Ministry VROM
P.O. Box 450
NL-2260 MB LEIDSCHENDAM, Netherlands
16 Erkelens, Mr. Paul van
Municipality of Hengelo
P.O. Box 18
NL-7550 AA HENGELO, Netherlands
17 Fangman, Mr. Hans
Ministry of Justice, Stafbureau Openbaar Ministerie
P.O. Box 20302
NL-2500 EH DEN HAAG, Netherlands
18 Gerardu, Mr. Jo
Head of Enforcement Program Office, Enforcement Division, Ministry VROM
P.O. Box 450
2260 MB LEIDSCHENDAM, Netherlands
19 Gijsbertsen, Mr. Karel
Direction Substances, Ministry VROM
P.O. Box 450
NL-2260 MB LEIDSCHENDAM, Netherlands
20 Glaser, Mr. Rob
Regional Inspectorate Zeeland
P.O. Box 7073
4330 GB Middelburg, Netherlands
21 Griend, Mr. Jaap v.d.
Provincial Environmental Delegate
P.O. Box 90602
NL-2500 LP DEN HAAG, Netherlands
22 Haar, Mr. Bas ter
Georgetown University
6215 Redwing Court
Bethesda MD 20817, USA
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INTERNATIONAL ENFORCEMENT WORKSHOP 339
23 Helten, Mr. Nick van
Chief of Police Leeuwarden
P.O. Box 8535
NL-8903 KM LEEUWARDEN, Netherlands
24 Houterman, Mr. Gerard
Direction Public Authority, Ministry of the Interior
P.O. Box 20011
NL-2500 EA DEN HAAG, Netherlands
25 Hurenkamp, Mr. Henk
Regional Inspector Utrecht
P.O. Box 13154
NL-3507 LD UTRECHT, Netherlands
26 Jansen, Mr. Leo
Director Waste Department, Ministry VROM
P.O. Box 450
NL-2260 MB LEIDSCHENDAM, Netherlands
27 Kessel, Mr. Hans van
Regional Inspector Utrecht
P.O. Box 13154
NL-3507 LD UTRECHT, Netherlands
28 Kesselaar, Mr. Huub
Head Enforcement Division, Ministry VROM
P.O. Box 450
NL-2260 MB LEIDSCHENDAM, Netherlands
29 Klein, Mr. Wout
Regional Inspector Gelderland
P.O. Box 9013
NL-6800 DR ARNHEM, Netherlands
30 Klouwen, Mr. Herman
Regional Inspector Groningen, Friesland, Drenthe
P.O. Box 30020
NL-9700 RM GRONINGEN, Netherlands
31 Koorenneef, Mr. Cor
Provincial Environmental Delegate
P.O. Box 90151
NL-5200 MC DEN BOSCH, Netherlands
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340 INTERNATIONAL ENFORCEMENT WORKSHOP
32 Kraaij, Mr. Eric
Ministry of Traffic and Public Works
P.O. Box 20906
NL-2500 EX DEN HAAG, Netherlands
33 Lefevre, Mr. Hans
Head of Enforcement Policy, Enforcement Division, Ministry VROM
P.O. Box 450
NL-2260 MB LEIDSCHENDAM, Netherlands
34 Maat, Mr. Han ter
Provincial Environmental Delegate
P.O. Box 9090
NL-6800 GX ARNHEM, Netherlands
35 Metz, Mr. Bert
Netherlands Embassy-Washington
4200 Linnean Avenue
NW DC 2008 WASHINGTON, USA
36 Ommen, Mr. Cees van
Enforcement Division
Head of Compliance Monitoring, Ministry VROM
P.O. Box 450
NL-2260 MB LEIDSCHENDAM, Netherlands
37 Peters, Mr. Jit
Director for Policy and Planning Ministry VROM
P.O. Box 450
NL-2260 MB LEIDSCHENDAM, Netherlands
38 Rossum, Mr. Geert van
Director Police, Ministry of the Interior
P.O. Box 20011
NL-2500 EA DEN HAAG, Netherlands
39 Rus, Mr. Jaap
Ministry of Traffic and Public Works
P.O. Box 17
NL-8200 AA LELYSTAD, Netherlands
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INTERNATIONAL ENFORCEMENT WORKSHOP 341
40 Schaap, Mr. Hans
Deputy Inspector-General Ministry VROM
P.O. Box 450
NL-2260 MB LEIDSCHENDAM, Netherlands
41 Schreurs, Mr. Jos
Regional Inspector Limburg
Huskensweg 17 b
NL-6412 SB HEERLEN, Netherlands
42 Smit, Mr. Tom
Union of Polderboards
P.O. Box 80200
NL-2508 GE DEN HAAG, Netherlands
43 Sourbag, Ms. M.B.M.
Ministry of the Interior
P.O. Box 20011
NL-2500 EA DEN HAAG, Netherlands
44 Teders, Mr. J.
Ministry of Traffic and Public Works
P.O. Box 25
NL-6200 MA MAASTRICHT, Netherlands
45 Verkerk, Mr. Pieter
Inspector-General,
Ministry of Housing, Physical Planning and Environment (VROM)
P.O. Box 450
NL-2260 MB LEIDSCHENDAM, Netherlands
46 Vogelzang, Mr. Peter
Police Utrecht
P.O. Box 8300
NL-3503 RH UTRECHT, Netherlands
47 Vries, Mr. Hugo de
Regional Inspector Noord-Brabant
P.O. Box 90134
NL-5200 MA DEN BOSCH, Netherlands
48 Waque, Mr. W.
Ministry VROM
Direction Air
P.O. Box 450
NL-2260 MB LEISCHENDAM, Netherlands
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342 INTERNATIONAL ENFORCEMENT WORKSHOP
49 Werf, Mr. Ab van der
Police Rotterdam
P.O. Box 70023
NL-3000 LD ROTTERDAM, Netherlands
50 Westerman, Mr. Klaas
Ministry of Justice, Public Prosecuter
P.O. Box 16005
NL-3500 DA UTRECHT, Netherlands
OECD
Lieben, Mr. Pierre
Environment Directorate
2 Rue Andre Pascal
F-75775 PARIS Cedex 16
France
POLAND
Jarzebski, Mr. Lechoslaw (or replacement)
Director of the "vojevodstvo" Inspectorate for Katowice
UL. Wita Stwosza 31
PL-40-042 Katowice, Poland
SENEGAL
Kante, Mr. B.
Director de 1'environnement, Min. de la Protection de la Nature
104 rue Carnot
DAKAR, Senegal
SWEDEN
1 Melin, Ms. Agneta
Swedish Environmental Protection Agency
Englundavagen 13
S-171 85 SOLNA, Sweden
2 Thunved, Ms. Birgit
The Regional Public Prosecutor Authority
P.O. Box 22027
10422 STOCKHOLM, Sweden
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INTERNATIONAL ENFORCEMENT WORKSHOP 343
UNEP
1 Kummer, Ms. K.
United Nations Environment Programme
Environmental Law and Machinery Unit
P.O. Box 30552
NAIROBI, Kenya
2 Rummel-Bulska, Ms. Iwona
United Nations Environment Programme
Environmental Law and Machinery Unit
P.O. Box 30552
NAIROBI, Kenya
UNITED STATES OF AMERICA
1 Alkema, Mr. Ken
Utah State Division
Environmental Health
288 North 1460 West
Salt Lake City, Utah 84119, USA
2 Alushin, Mr. Michael S.
Associate Enforcement Counsel for Air Enforcement
Office for Enforcement and Compliance Monitoring
(LE-134A)
U.S. Environmental Protection Agency
401 M St., SW.,
Washington D.C. 20460, USA
3 Blazey, Mr. Douglas R.
Regional Counsel
U.S. Environmental Protection Agency
Jacob K. Javitz Federal Building, room 437
26 Federal Plaza
New York, NY 10278, USA
4 Bryson, Mr. Dale
Acting Director, Water Division, Region 5
U.S. Environmental Protection Agency
230 South Dearborn St.
Chicago, IL 60604, USA
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344 INTERNATIONAL ENFORCEMENT WORKSHOP
5 Cleve, Mr. George W. van
Deputy Assistant Attorney General
Department of Justice
10th & Constitution Ave.
N.W. Room 2134
Washington D.C. 20530, USA
6 Davies, Mr. Charles
Office of Inspections and Control
1301 Constitution Ave., N.W.
Washington, D.C. 20229, USA
7 DeHihns, Mr. Lee A.
Deputy Regional Administrator
U.S. Environmental Protection Agency
345 Courtland St., N.E.
Atlanta, GA 30365, USA
8 Diamond, Mr. Bruce M.
Office of Waste Programs Enforcement
(OS-500)
U.S. Environmental Protection Agency
401 M St., SW.,
Washington D.C. 20460, USA
9 Elder, Mr. James R.
Office of Water Enforcement and Permits
U.S. Environmental Protection Agency (EN-335)
401 M. St., SW.,
Washington D.C. 20460, USA
10 Frank, Mr. William H.
Special Assistant
Office od Enforcement and Compliance Monitoring
U.S. Environmental Protection Agency
401 M. St., SW.,
Washington D.C. 20460, USA
11 Hajost, Mr. Scott
Associate General Counsel
Environmental Defense Fund
1616 P. Street NW
Washington D.C. 20036, USA
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INTERNATIONAL ENFORCEMENT WORKSHOP 345
12 Hourcle, Mr. Laurent R.
Attorney Environmental Law
Department of Defense
Office of General Counsel
OAGC (L), 3D 973 DOD
Pentagon, Washington B.C. 20301-1600, USA
13 Keough, Mr. Paul J.
Deputy Regional Administrator
U.S. Environmental Protection Agency
John F. Kennedy Federal Building Room 2203
Boston, MA 02203, USA
14 Lash, Mr. Jonathan
Agency of Natural Resources
Center Building
103 So Main Street
Waterbury, Vermont 05676, USA
15 Lynch, Mr. Jim
Office of Investigations
Indiana Dept. of Environmental Management
105 S. Meridian
Indianapolis, IN 46204, USA
16 Madonna, Mr. Steven J.
Environmental Prosecutor
CN118 Trenton, New Yersey 08625, USA
17 Mielke, Mr. Donald
District Attorney
1726 Cole Boulevard, Suite 300
Golden Colorado 80401, USA
18 Milliken, Ms. Christine T.
Exec. Director and General Counsel
National Assoc. of Attorneys General
444 No. Capitol Street, N.W.
Suite 403
Washington, D.C. 20001, USA
19 Mulkey, Ms. Marcia E.
Regional Counsel
U.S.-Environmental Protection Agency
841 Chestnut Building
Philadelphia, PA 19107, USA
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346 INTERNATIONAL ENFORCEMENT WORKSHOP
20 Musgrove, Ms. Connie
Office of Compliance Monitoring
(EN-342)
U.S. Environmental Protection Agency
401 M St., SW.,
Washington D.C. 20460, USA
21 Paddock, Mr. Lee
Asst. Attorney General
Minnesota Attorney General Office
102 State Capitol
St. Paul, MN 55155, USA
22 Reich, Mr. Edward E.
Deputy Assistant Administrator - Civil
Office of Enforcement and Compliance Monitoring
(LE-133)
U.S. Environmental Protection Agency
401 M St., SW.,
Washington D.C. 20460, USA
23 Seitz, Mr. John S.
Stationary Source Compliance Div.
(EN-341)
U.S. Environmental Protection Agency
401 M St. SW.,
Washington D.C. 20460, USA
24 Strock, Mr. James M.
Assistant Administrator
Office of Enforcement and Compliance Monitoring
U.S. Environmental Protection Agency
(LE-133)
401 M. St., SW.,
Washington D.C. 20460, USA
25 Thomson, Mr. Paul
Deputy Assistant Administrator-Criminal
Office of Enforcement and Compliance Monitoring
(LE-134X)
U.S.-Environmental Protection Agency
401 M St., SW.,
Washington D.C. 20460, USA
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INTERNATIONAL ENFORCEMENT WORKSHOP 347
26 Ullrich, Mr. Dave
Acting Director
Waste mangement Division, Region 5
U.S. Environmental Protection Agency
230 South Dearborn St.
Chicago, Illinois 60604, USA
27 Wasserman, Ms. Cheryl
Chief, Compliance Policy and Planning Branch
Office of Enforcement and Compliance Monitoring
(LE-133)
U.S. Environmental Protection Agency
401 M St., SW.,
Washington D.C. 20460, USA
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348 INTERNATIONAL ENFORCEMENT WORKSHOP
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INTERNATIONAL ENFORCEMENT WORKSHOP 349
ACKNOWLEDGEMENT
The first International Enforcement Workshop devoted to the environment was
the result of significant effort from both the Netherlands' Ministry of Housing,
Physical Planning and the Environment and the Unites States' Environmental
Protection Agency. The two co-chairmen, Mr Pieter J. Verkerk and Mr. James M.
Strock, were assisted by an Organizing Committee. From the Netherlands, the
Organizing Committee was comprised of Mr. Pieter Verkerk, Mr. Huub Kesselaar
and Mr. Jo Gerardu, of the Inspectorate for the Environment, with contributions
from Mr. Bert Metz of the Netherlands Embassy in the United States, and sup-
port from Mr. Jeroen Bartels of the Study Center for Environmental Research
TNO. From the United States, the Organizing Committee was comprised of Mr.
Ed Reich and Ms. Cheryl Wasserman of the Office of Enforcement and Mr. David
Strother of the Office of International Activities, with support from Mr. David
Levenstein, also of the Office of Enforcement. Mr. Jo Gerardu and Ms. Cheryl
Wasserman served as principal coordinators and drafters of the workshop materi-
als.
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I I I I I I I I I I I I
PROCEEDINGS
VOLUME II
!.% rf-i. WWfi i3? *% *», <%*
ENFORCEMENT
WORKSHOP
May 8-10, 1990
Utrecht, The Netherlands
Ministry of Housing,
Physical Planning
and Environment (VROM)
The Netherlands
I
55
%
LU
CD
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INTERNATIONAL ENFORCEMENT WORKSHOP
PROCEEDINGS PART 2
May 8 - 10, 1990
Utrecht, The Netherlands
Organized by:
United States Environmental Protection Agency
Netherlands Ministry of Housing, Physical Planning and Environment
VROM: P.O. Box 450, 2260 MB Leidschendam, the Netherlands, tel. (31) 70 317 4174, fax (31) 70 317 4697
EPA: 401 M Street S.W., Washington DC 20460, United States, tel. (1) 202 382 7550, fax (1) 202 382 7883/7884
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INTERNATIONAL ENFORCEMENT WORKSHOP iii
CONTENTS
PREFACE
OPENING SPEECHES 9
PIETER VERKERK, CO-CHAIR 9
MARIUS ENTHOVEN, DIRECTOR GENERAL 13
JAMES STROCK, CO-CHAIR 19
ADDITIONAL PAPERS 21
THEME #1: DOMESTIC ENFORCEMENT PROGRAM STRATEGIES,
TOOLS AND MANAGEMENT SYSTEMS 21
1. Environmental Law Enforcement and the Police, Nic van Helten 23
2. State Environmental Prosecutor's Role, Steve Madonna 27
3. Criminal Prosecution in Environmental Matters -
The State Perspective, James Lynch 29
THEME #2: DOMESTIC INTERGOVERNMENTAL ENFORCEMENT
RELATIONSHIPS 43
1. Intergovernmental Relationships in the Netherlands, Peter Dordregter 45
2. Environmental Law and their Execution in the Federal Republic of
Germany, Prof. Dr. Obing and Dr. L. Kropp 53
3. Compliance and Environmental Enforcement System in Poland,
L.S. Jarzebski 73
THEME #3: INTERNATIONAL TRANSBOUNDARY POLLUTION PROBLEMS . 77
1. Third World Perspective on Hazardous Waste, Bakary Kante 79
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iv INTERNATIONAL ENFORCEMENT WORKSHOP
THEME #4: ENFORCEMENT OF INTERNATIONAL AGREEMENTS 81
(no additional papers received)
SUMMARIES OF THEMES AND DISCUSSION SESSIONS 83
SPEECH MINISTER OF HOUSING, PHYSICAL PLANNING
AND ENVIRONMENT 105
HANS ALDERS 105
CLOSING REMARKS 107
PIETER VERKERK, CO-CHAIR 107
JAMES STROCK, CO-CHAIR 115
WORKSHOP EVALUATION 117
LIST OF PARTICIPANTS 121
ACKNOWLEDGEMENT 133
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INTERNATIONAL ENFORCEMENT WORKSHOP
PREFACE
The International Enforcement Workshop
The International Enforcement Workshop was held May 8 - 10, 1990 in Utrecht,
the Netherlands. This Workshop, organized by the Netherlands' Ministry of
Housing, Physical Planning and Environment and the United States Environmental
Protection Agency under a Memorandum of Understanding, was organized to
serve as a forum for an exchange of environmental enforcement approaches, phi-
losophies, procedures and techniques. It was designed to impart practical, useful
information and foster debate and discussion among experts.
Participants included environmental officials from other countries and interna-
tional organizations. Topics covered both domestic and international enforcement
concerns.
Given ever increasing environmental requirements and the importance of compli-
ance with them to protect the public health and environment countries are now
grappling with the challenge of running effective environmental enforcement
programs to achieve compliance. However, many lack basic enforcement tools
and infrastructure. Moreover, the international concern over importation and
exportation of hazardous waste and toxic substances and the need to enforce
international agreements introduces new complexities and requirements for
cooperation into these programs.
The Workshop sought to offer new insights into environmental enforcement as it
exists today, and how enforcement can be improved. The Workshop was not ex-
pected to result directly in any international accords or protocols in the environ-
mental enforcement area.
Themes on which enforcement information was shared included two domestic and
two international areas:
Theme #1. Domestic enforcement program strategies, tools and management
systems, with an emphasis on implementation:
Theme #2. Domestic intergovernmental enforcement relationships:
Theme #3. International transboundary pollution problems, focusing on enforce-
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INTERNATIONAL ENFORCEMENT WORKSHOP
ment of pesticide and hazardous waste import and export controls:
Theme #4. Enforcement of International Agreements, e.g. CFC's and ocean
dumping.
The Workshop Proceedings are published in two Parts. Proceedings Part I contains
most of the papers delivered at the Workshop and was available at the Workshop
for the participants. Part II includes late papers, remarks delivered at the Work-
shop, a summary of the discussions, and a list of speakers and participants. We
hope that the information will be useful to you. Additional information is obtain-
able from the speakers and Workshop participants. A list of participants and
speakers is included.
The Organizing Committee
Republication of Workshop Papers
The Organizing Committee encourages republication of papers delivered at the
Workshop as furthering its basic purpose to promote exchange of environmental
enforcement expertise. Papers from the Proceedings Part I and II may be repub-
lished by others with written permission of the author(s) and attribution to the
"International Enforcement Workshop" in Utrecht, the Netherlands, May 8 to 10,
1990, co-sponsored by the United States Environmental Protection Agency and
the Netherlands' Ministry of Housing, Physical Planning and the Environment.
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INTERNATIONAL ENFORCEMENT WORKSHOP
The Workshop Program
Day 1 - May 8th 1990
09.00 - 09.10 Welcome, Pieter J. Verkerk, Inspector General, HIMH
(co-chair)
09.10 - 09.35 Opening, Marius Enthoven, Director General for the Environ-
ment, for the Minister of the
Environment of the Netherlands
09.35 - 10.00 Welcome, James M. Strock, U.S. EPA, Assistant Administrator
for Enforcement (co-chair)
Theme #1: Domestic Enforcement Program Strategies. Tools and Manage-
ment Systems
Chair Mr. Paul Keough, USA
Reporter Mr. Hans Lefevre, The Netherlands
10.30 - 11.00 Overview of Compliance and Enforcement in the United States:
Philosophy, Strategies and Management Tools
Ms. Cheryl Wasserman, USA
11.00 - 11.30 Target Group Management Industry and Internal Company Envi-
ronmental Management
Mr. Jit Peters, The Netherlands
11.30 - 12.00 A Survey of U.S. Environmental Enforcement Authorities, Tools
and Remedies
Mr. Edward Reich, USA
02.00 - 02.30 Small Business Compliance, the Role of Local Communities
Mr. Hans Schaap, The Netherlands
02.30 - 03.00 Practical Applications of an Enforcement Management System
Mr. Dale Bryson, USA
03.30 - 03.45 Criminal Enforcement of Environmental Legislation
Mr. Hans Fangman, The Netherland
03.45 - 04.00 Environmental Law Enforcement and the Police
Mr. Nic van Helten, The Netherlands
04.00 - 04.30 Legal and Technical Cooperation for Effective Environmental
Enforcement
Mr. Dave Ullrich, USA
04.30 - 05.00 Another Country's System: Sweden
Ms. Agneta Melin, Sweden
05.00 - 05.30 Discussion
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INTERNATIONAL ENFORCEMENT WORKSHOP
Day 2 - May 9th 1990
Theme #2: Domestic Intergovernmental Enforcement Relationships
Chair Ms. Marbeth Bierman, The Netherlands
Reporter Mr. Henk Hurenkamp, The Netherlands
09.00 - 09.30 Intergovernmental Relationships in the Netherlands
Mr. Peter Dordregter, The Netherlands
09.30 - 10.00 Intergovernmental relationships in another European Country:
The Federal Republic of Germany
Prof. Dr. Obing, BRD
10.30 - 11.00 State perspective in U.S. Enforcement Relationship
Mr. Ken Alkema, USA
11.00 - 11.30 Defining and Implementing Effective Federal/State Local Rela-
tionships: the U.S. Experience
Mr. Lee A. DeHihns, USA
11.30 - 12.00 European Community's Prospects for Enforcement of Directives
Mr. Rolf Wagenbaur, European Community
12.00 - 12.30 Discussion
Theme #3: International Transboundarv Pollution Problems
Chair Mr. Leo Jansen, The Netherlands
Reporter Mr. Rob Bouma, The Netherlands
02.00 - 02.30 The import/export of Hazardous waste and toxic substances:
the U.S. Enforcement Experience
Mr. Paul Thomson, USA
02.30 - 03.00 Netherlands Case Study in Enforcement of Hazardous Waste
Import/Export
Mr. Jo Gerardu, The Netherlands
03.30 - 04.00 Waste Movement: European Community and Outside
Mr. Carel de Villeneuve, European Community
04.00 - 04.30 Other perspectives on Hazardous and Solid Waste Enforcement
Mr. M.B. Kante, Senegal
04.30 - 05.00 Pesticide Export and Import Enforcement programs in the
United States
Ms. Connie Musgrove, USA
05.00 - 05.30 Discussion
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INTERNATIONAL ENFORCEMENT WORKSHOP
Day 3 - May 10th 1990
Theme #4: Enforcement of International Agreements
Chair Mr. Mike Alushin. USA
Reporter Mr. Bill Frank, USA
09.00 - 09.45 An Overview of Enforcement and Compliance Mechanisms in
International Environmental Agreements
Mr. Scott Hajost, USA
09.45 - 10.15 Challenge of Enforcing the Montreal Protocol on Protection of
Stratospheric Ozone
Mr. John S. Seitz, USA
10.45 - 11.15 Ocean Pollution: Protection of the seas
10.45 - 11.00 Mr. Rein van Dijk, The Netherlands,
11.00 - 11.15 Mr. Jim Elder, USA
11.15 - 11.45 Enforcing Environmental Agreements within the European Com-
munity
Mr. Rob Donkers, The Netherlands
11.45 - 12.15 The example of the Chemical Weapons Convention
Mr. Bas ter Haar, The Netherlands
12.15-01.00 Discussion
02.15 - 04.30
05.00 - 05.30
Closing sessions: Open Discussion
Parallel sessions on each of four themes
Closing remarks by both co-chairpersons.
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INTERNATIONAL ENFORCEMENT WORKSHOP
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INTERNATIONAL ENFORCEMENT WORKSHOP
OPENING SPEECHES
Pieter Verkerk
Good Morning ladies and gentlemen,
First of all, a special word of welcome to our Director General for the Environ-
ment whose presence here, on behalf of the Environment Minister, underlines the
importance of this Workshop.
Next, a warm welcome to all our guests who have responded to the invitation to
take part in this Workshop. I should particularly like to welcome James Strock,
the new Assistant Administrator for Enforcement of the EPA. From a number of
recent experiences I think I can safely say that, in the future, we can count on
continuation of the contacts between the EPA and the Ministry of Housing,
Physical Planning and Environment.
I am particularly pleased that we have been able to run this Workshop together.
As the Organizing Committee, we have attempted to put together a program
which reflects the state-of-the-art in the field of the enforcement of environ-
mental legislation. I hope you agree that the choice of topics and speakers re-
presents a wide-ranging mix of the subjects relevant to this Workshop. We have
relied, to some extent, on experiences gained with the enforcement of environ-
mental legislation in the USA and in the Netherlands.
A first exchange of experiences in this field took place in the early eighties, as
part of a Memorandum of Understanding between the Netherlands Ministry of
Housing, Physical Planning and Environment and the American Environmental
Protection Agency. U.S. EPA staff visited the Netherlands for a workshop on the
same subject as part of a practical training in the American approach to enforce-
ment, reworking it to make it suitable for Dutch conditions. Two Dutch delegati-
ons, comprising representatives of various tiers of government, attended work-
shops in the United States and were very impressed by the American approach to
enforcement. Much was suitable for application in the Netherlands as well.
So I think I may conclude that in the enforcement field we have already learned
a lot from each other. But we are not there yet. In many areas, enforcement
activities will have to be stepped up further, once the environmental measures
we are planning to introduce have taken shape. This will be a very demanding
process for al those involved in enforcement.
The Netherlands has a long history in the environmental field. The first piece of
legislation dates from the time of Napoleon, 1810, and was really the forerunner
of the Nuisance Act. The latter Act was indeed introduced to restrict or prevent
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10 INTERNATIONAL ENFORCEMENT WORKSHOP
danger, damage or nuisance caused by installations to those in the vicinity.
Permits were the method adopted to enforce the regulations.
In most cases the implementary agency, and thus the enforcement agency, was
the local authority. The Nuisance Act and its enforcement taught people in the
Netherlands how things can work, but equally, what can go wrong if enforcement
is inadequate.
Alongside the Nuisance Act, a great many other pieces of environmental legisla-
tion have been introduced in the Netherlands since the early seventies. Having
learned by trial and error, enforcement started to be stepped up in the early
eighties. In the first instance, chemical waste was the focus of attention. By now
we have gained a great deal of experience with this in the Netherlands.
At the moment we are considerably behind in some areas when it comes to the
granting of permits and, certainly, the enforcement of environmental legislation.
We have learned a lot about this from our American colleagues at the Environ-
mental Protection Agency. Fortunately, we will have the opportunity of showing
you some of our activities during this Workshop.
The aim of the Workshop, which is due to start shortly, is first of all to find out
what the state-of-the-art is on the enforcement of environmental legislation in
the various participating countries. But it is also the idea that we see how
enforcement can be improved through the exchange of knowledge and ideas
among international experts. This has been the underlying idea of the Organizing
Committee in arranging the programme. And, fortunately, we were able to find
experts from the United States and the Netherlands, along with experts from
other countries, who were willing to exchange their know-how and experience.
The Workshop, we hope, will also offer countries whose enforcement is at a less
advanced stage, a unique opportunity of gaining some valuable tips and experien-
ce.
The Workshop will consist of papers on aspects of enforcement of environmental
legislation, with the last afternoon being earmarked for pai cicipants to discuss
issues freely among themselves.
The themes to be dealt with will be:
Theme 1. Domestic enforcement programme strategies, tools and management
systems, with an emphasis on implementation.
Theme 2. Domestic intergovernmental enforcement relationships.
Theme 3. International transboundary pollution problems, focusing on enforce-
ment of pesticide and hazardous waste import and export controls.
Theme 4. Enforcement of Internationa! Agreements, e.g. CFC's and ocean dum-
ping.
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INTERNATIONAL ENFORCEMENT WORKSHOP 11
It is important that this first international workshop on the enforcement of
environmental legislation produces good results. We are not out to reach interna-
tional agreements. One of the general principles of enforcement is that we do
not talk about it, we do it. I think it is a principle we would do well to bear in
mind during this Workshop.
It Is vital that we all try to gain as much as we can from the Workshop, by way
of consolidating and deepening our further contacts.
If we do so, you as participants, and we as the Organizing Committee, that is the
Environmental Protection Agency and the Ministry of Housing, Physical Planning
and Environment, can count this Workshop a success.
We hope that the Workshop will provide you with a chance to exchange informa-
tion and learn from each other's experiences, and thus an opportunity to explore
new openings for the continuing challenge of a better enforcement of environ-
mental legislation.
Ladies and gentlemen, I should like to leave it there and hand over to Mr. Entho-
ven, who, on behalf of the Environment Minister, will be performing the official
opening and talking to you about Dutch environmental policy.
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12 INTERNATIONAL ENFORCEMENT WORKSHOP
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INTERNATIONAL ENFORCEMENT WORKSHOP 13
Marius Enthoven
Pieter Verkerk, thank you for your opening speech. I completely agree with you
about the growing cooperation between the Netherlands and, among others, the
USA. The aim of this Workshop is quite clear, the importance of the international
exchange of knowledge and information in the field of enforcement is rightly
emphasized.
Ladies and gentlemen,
It is a great pleasure and honor for me, as Director General for the Ministry of
Housing, Physical Planning and Environment, to be able to speak to the partici-
pants at the start of the International Enforcement Workshop. Let me first of all
take you back in time by quoting a few lines from the Dutch poet, Marsman:
Thinking of Holland
I see broad rivers
slowly winding their way through the endless landscape,
rows of inconceivable
thin poplars
as tall feathers standing on the horizon
This is how the Netherlands was described in the thirties. Happiness was still
taken for granted. Much changed after the Second World War: large-scale indus-
trialization took place, other economic activities began to flourish. The Nether-
lands took its place in these developments which affected the whole of the
western world. But there was the downside: smell, noise, smog, polluted surface
water, great streams of hazardous waste. Towards the end of the sixties, the
Netherlands too began to realize that there is another side to prosperity: the
burden on the environment. The concept, "environment", was acknowledged, pres-
sure groups and large environmental organization were set up, research was ini-
tiated. People also began to think about how to approach environmental pollution;
which lead to a governmental environment policy. So, in 1971, a year after the
US-EPA , a Directorate-General for Environmental Protection was established in
the Netherlands.
The Netherlands is a small country with a relatively large population and a great
deal of economic activity: agriculture/intensive animal farming, chemical indus-
try, petrochemical industry, electronics industry, transport and distribution. The
environmental problems associated with these activities deserve an increasing
attention. The governments (divided administratively in the Netherlands among
the national, 12 provincial and 674 municipal governments as well as 30 water
boards) take this task seriously.
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14 INTERNATIONAL ENFORCEMENT WORKSHOP
Almost a year ago, May 25th 1989, the previous Cabinet presented the National
Environmental Policy Plan to the Parliament. A clear relationship exists between
this NEPP and the report "Our Common Future", published in 1967 and compiles
by a United Nation's Special Commission. The Commission consisted of represen-
tatives both from industrialized and Third World countries and was chaired by the
then Prime Minister of Norway, Mrs. Brundtland. The report ascertained two re-
lated crises: an environmental crisis and a development crisis. More and more
people are becoming poorer while at the same time the quality of their environ-
ment is worsening.
As exponents of the environmental crisis, the Brundtland Report listed such
issues as acid rain, the gap in the ozone layer, the greenhouse effect, the erosion
and exhaustion of fertile agricultural soil and the extinction of more and more
plants and animal species. According to the Brundtland Commission, attempts
must be made to achieve sustainable development: a development that provides
for the needs of today without endangering the potential of future generations in
providing for their own needs.
This message was heard and taken seriously in the Netherlands among other coun-
tries. A year later, at the end of 1988, the National Institute of Public Health
and Environmental Protection published its report "Concern for Tomorrow", a
background document which examines the long-term effects of the development
of environmental problems. The Dutch report shows that great efforts are being
undertaken and that in a few fields the quality of the environment has improved.
But it is also apparent - and that is far more important - that the qualit}' of the
environment will deteriorate still further if existing trends continue. Moreover, "-
Concern for Tomorrow" showed that a reduction of an individual source of envi-
ronmental pollution (a factory, a car, a substance) is very often cancelled out
because of the growth of the number of sources.
In addition there is the danger that a solution in a certain sector may turn out to
cause problems in another sector. Finally, the report observes a "lag effect":
although you take measures, it sometimes takes a few decades before any posi-
tive effects are noticeable. The report concludes, in common with Brundtland,
that sustainable development should be achieved and that in the coming period
profoundly drastic measures are necessary. In this connection, emission reductions
for certain environmentally-harmful substances, to the order of 70-90%, are
being discussed.
The National Environmental Policy Plan provides a policy answer to the Brundt-
land report and "Concern for Tomorrow". It selects three categories of measures:
aimed at emissions (end-of-pipe techniques);
aimed at volume (e.g. fewer raw materials and products, fewer cars on the
roads);
aimed at the structure of production and consumption (such as clean technolo-
gy)-
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INTERNATIONAL ENFORCEMENT WORKSHOP 15
Three scenarios have been developed, the annual costs of which, in 2015, would
amount to approximately 10 billion, 13 billion and 17 billion dollars respectively,
that is 2% and respectively 3.5% and 4% of the Gross National Product of the
Netherlands. The coming June, the new Cabinet is planning to submit a more
detailed and accentuated version of the National Environmental Policy Plan to
parliament.
Great challenges for the nineties, challenges for environmental policy in the
Netherlands and in the world. In order to achieve the ambitious objections of the
National Environmental Policy Plan, besides all sorts of implementation plans for
the responsible sectors of trade and idustry, environmental regulations need to be
accentuated and better implemented, which means that the National Environmen-
tal Policy Plan also presents an extra challenge in enforcing environmental
regulations.
This sketches the importance of enforcement. Enforcement is one of the key fac-
tors or links in the regulatory chain which consists of, consecutively, legislation,
setting standards, providing permits, implementation and enforcement. Not only
enforcement but also all of the other links must function sufficiently if there is
to be adequate execution of environmental policies.
How have these links been developed in the Netherlands? There has been an ex-
plicit environmental policy since the late 1960s. At first attention was devoted to
drafting the environmental legislation, then to setting standards, after that to
permitting and finally, from the mid-eighties, to enforcement. Nowadays there is
still a sizeable backlog in some areas of permissibility in the Netherlands.
Enforcement is still in a developmental stage in general.
It is interesting to see how all the links in this regulatory chain function in
various countries that are represented at this Workshop. It is my impression that
the other countries have followed the same sequence as the Netherlands in terms
of attention to the various links. So enforcement has been the last link to attain
a place on their political agendas too. Furthermore, the various countries are not
all in the same phase. There are countries where the "earlier" phases (legislation,
standard setting, permissibility) are still the focus of attention.
Within the national government of the Netherlands there are three departments
charged with environmental management. The Ministry of Housing, Physical Plan-
ning and Environment (known as VROM) has the largest share of the responsibility
and also carries out the general coordination. The Inspectorate for the Environ-
ment functions within VROM. It plays an important role in compliance monitoring
and enforcement.
I want to note here that the provinces and the municipalities have a large share
in the implementation of the environmental policies in this country. This is not
the case everywhere in Europe and certainly not in the United States.
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16 INTERNATIONAL ENFORCEMENT WORKSHOP
The "last" and latest link in the regulatory chain - enforcement - came clearly
into the spotlight in the mid-1980s. After about five or six years of extra effort
in this area, during which a great deal has been set in motion, this link is still in
the development and pioneering phase. For a variety of reasons it was concluded
in late 1980s that the three levels of government (State, province, municipalities)
should reconsider their position and strengthen their joined cooperation in the
enforcement area:
1. Large enforcement backlog: too little monitoring, too little enforcement, too
little administrative attention/priority, also minor a role by the Public Prose-
cutor and the police, too few well-trained enforcement officials.
2. The National Environmental Policy Plan means new and more stringent rules;
thus there is an even greater need for compliance monitoring and enforce-
ment.
3. The National Environmental Policy Plan provides increased manpower for
enforcement for the municipalities, the provinces, the Public Prosecutor and
the police.
4. More cohesion is needed in the planning of enforcement and in the organizati-
onal structure for carrying out enforcement activities in the Netherlands.
At the initiative of the Inspectorate, a model was designed earlier this year with
representaties of the provinces and the municipalities. Elements in this model
include:
• joint annual programming of enforcement by the three levels of government,
which includes the programming at the provincial and "regional" scales (a
region is comprised of a number of municipalities which cooperate structural-
ly in so-called municipal cooperatives);
• the core of the enforcement implementation is provided by the municipal co-
operatives;
• financing the cost of enforcement on the basis of performance commitments
("businesslike partnerships"): programma - performance obligation - binding;
• there must be structural consultation platforms at the three levels of govern-
ment.
Increasingly, international agreements are being made in relation to environmen-
tal protection. Such agreements can only increase, because of the scaling up of
environmental problems. Acidification, climate changes and the impairment of
the ozone layer cannot be solved without an international aproach. These pro-
blems are so urgent, that introducing measures of a more binding character than
have hereto been customary, must be seriously considered. Monitoring compliance
with international agreements is practically virgin territory. It is also necessary
that this important phase in the regulatory chain be developed internationally. In
the future, the realization of treaties will have to consider, more carefully than
has been the case so far, the aspect of compliance control and enforcement.
Moreover, on a regional and global scale, mechanisms are necessary, for example
in the form of international inspectorates, to carry out the actual work of
control. As far as the settlement of differences is concerned, the International
Court of Justice could serve a purpose here by setting up a Chamber for the
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INTERNATIONAL ENFORCEMENT WORKSHOP 17
Environment.
The Netherlands will certainly include these ideas in the preparations for the UN
Conference on the Environment and Development which will take place in Brazil
in 1992. During this conference concrete steps will have to be taken to organize
more effectively the control of international environmental problems. Here too,
enforcement will be an essential element.
Finally, I would like to mention some of the features of Dutch environmental
policy in general, and enforcement in particular.
1. The environmental regulations in the Netherlands do not only concern the
larger companies and other activities that cause serious harm to the environ-
ment, such as is the case in some other countries. Regulations are also aimed
at small business (farms, garages and even office blocks and shops) and
certain activities of the individual citizen (such as the domestic waste which
is aimed at the separate collection of batteries, leftover paint, cosmetics and
unwanted medicines). This is not only due to the small scale of the Nether-
lands, but certainly also to the fact that the Netherlands has a Nuisance Act,
which applies to every branch of trade and industry. Therefore, in principle,
enforcement covers every business.
2. In the Netherlands enforcement only began to be effective from the mid-80s
onwards; especially after a number of scandals concerning the dumping and
discharging of chemical waste. The first priority for enforcement was, there-
fore, chemical waste, although other sectors and activities were kept under
supervision. By the end of the 80s we came a step closer to the window that
overlooks environment land and there we saw still other target groups in need
of more supervision and enforcement. I mean agriculture, the automobile
sector, specific branches of the chemical industry, the transport sector and
shipping.
3. In the Netherlands environmental policy is not only the concern of the central
government but certainly also of the provinces and municipalities. This also
includes enforcement. The National Environmental Policy Plan indicates that
as far as enforcement is concerned, the role of local authorities will further
increase. Local authorities do not fulfill this important role in every country.
4. In the Netherlands the local police play an important role in enforcing envi-
ronmental legislation, a role, according to the NMP, which will expand consi-
derably. It was recently agreed that the police, the Public Prosecutor and the
Courts will give more attention to environmental offences.
5. The aim, in the Netherlands, is to carry out enforcement on a multimedia
scale as far as possible: when a certain plant is inspected, in principle all
environmental aspects are to be investigated (integral enforcement). This also
means that inspectors from the various government departments should either
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18 INTERNATIONAL ENFORCEMENT WORKSHOP
coordinate their work or agree to work together. Furthermore, optimum
cooperation should be reached between the inspectors and the government de-
partments. By so doing, each case is viewed separately and the best approach
chosen (whether administrative or criminal prosecution) in ensuring the com-
pliance of the business in question.
I would like now to summarize. As an essential link in the regulatory chain,
enforcement must be strengthen in the Netherlands as well as in other countries.
The regulatory chain must be closed in this very area. As enforcement is in
different stages in different countries, and as closing the chain will sometimes
require a great effort, this International Enforcement Workshop provides an
excellent opportunity to exchange insight and experience, so that participating
countries can benefit from the front runners. I think this is an essential step,
before even considering enforcement at the supranational level, as is under
consideration in the European Community and under discussion in various interna-
tional negotiations: no effective international enforcement without a sound
national enforcement system!
I have seen the programme for these three days and I am impressed by the im-
portance of the subjects and thorough preparation. I hope and trust that it will be
a meaningful workshop, that its significance will be felt far across the Dutch
borders, and that the results will influence the enforcement policy of the parti-
cipating countries and hopefully of other countries also. In particular I would like
to develop and broaden the co-operative ties between my ministry and the US
Environmental Protection Agency. Adequate enforcement is an important and
completely indispensable part of environmental policy. Environmental policy is
not only necessary to protect our ecological inheritage, we, the people who live
on this planet, need to pursue a tough policy so that we can face the 21st cen-
tury with hope and optimism. I wish you a very productive workshop.
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INTERNATIONAL ENFORCEMENT WORKSHOP 19
James Strock
Good Morning. It is a distinct pleasure to be here today with so many distinguis-
hed colleagues from across the globe, gathered together for the first Internatio-
nal Enforcement Workshop.
While the representatives of the diverse nations represented here bring varied
perspectives and experiences, we have come together because of important issues
that bind us.
The first is our shared commitment to environmental protection and environmen-
tal improvement. The Netherlands has a long tradition of environmental leader-
ship, and the United States is proud to be associated with the Dutch in this
effort. The United States is also proud of its own commitment to the environ-
ment, which President Bush has made a centerpiece of his Administration. The
President has shown leadership in seeking to have the Environmental Protection
Agency elevated to full membership in the Cabinet. The President has proposed a
strong Clean Air Act reauthorization, breaking a legislative deadlock of more
than a decade in duration. And I am here today because the President, along with
Administrator William Reilly, has made a strong commitment both to vigorous
enforcement of our country's environmental laws, and to a greater emphasis on
the international aspects of environmental issues that were in the past viewed
solely through a domestic prism.
Second, all of the nations here today are brought together by a recognition of the
centrality of enforcement to all nations' efforts toward environmental protection.
Enforcement is not an end in itself, but it stands as the most powerful means we
have to achieve environmental improvement. Enforcement assures compliance
with the laws, which must be achieved in order to meet environmental goals. In
the absence of enforcement, environmental statutes would be little more than
wish lists; with enforcement, they become action plans. Enforcement rewards
good corporate citizenship and aims to remove any competitive advantage or
economic benefit that might otherwise acrue to those acting outside the law.
Enforcement prevents pollution, generally through creating incentives to stay
outside of the regulatory structure, and in specific cases through the inclusion of
source reduction strategies in legal agreements settling litigation. And enforce-
ment creates and undergirds new markets for environmentally sensitive and bene-
ficial products and services.
Third, the prosecutorial aspects of enforcement presented by government vis-a-
vis the regulated community must be accompanied by cooperation among the go-
vernments of various nations, and among the various levels of government in any
single nation. At one level, this Workshop is demonstrative of the increasing shift
of environmental concern from a national to an international emphasis. Pollution
knows no boundaries; it respects no differences of ideology or history. It concerns
all of us. And, as economic integration across the world accelerates, it is absolu-
tely essential that nations act in concert to avoid the creation of a self-defeating
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20 INTERNATIONAL ENFORCEMENT WORKSHOP
chase of capital toward areas which, through ignorance or inadvertence, do not
impose the cost of environmental protection as a cost of doing business.
At the next level, enforcement within countries depends upon cooperation among
various parts of national governments dealing with distinct parts of the environ-
mental challenge. This will be a necessity, no matter how much authority is
reposed in an environment ministry or department or agency, because the more
we learn about the environment, the more we can see that environmental protec-
tion must become a part of the mission of many, if not all of the other national
programs. For example, in the United States, environmental matters are in the
portfolios of the Environmental Protection Agency, the Department of State, the
Department of Defense, the Department of Energy, the Department of Agricultu-
re, the Department of Interior, the Department of Commerce, the Peace Corps,
the Department of Health and Human Services, the Department of Justice, the
Department of Labor, and the Securities and Exchange Commission, to name a
few. In turn, there are environmental enforcement implications in most of these
relationships.
There must also be cooperative effort between national governments and their
constituent units, such as state, county, provincial and local governments. These
issues are of paramount significance to the United States, as well as to many
other countries in Europe and across the world.
In order to make best use of our common goals and experiences, this Workshop
will have four themes: Domestic enforcement program strategies, tools and
management systems; Domestic intergovernmental enforcement relationships;
International transboundary pollution problems, focusing on enforcement of pesti-
cide and hazardous waste import and export controls; and enforcement of inter-
national agreements, such as those concerning chlorofluorcarbons and ocean
dumping.
Many of the presentations and much of the discussion ahead will rely upon the
great expertise brought together here in the Netherlands this week. But because
we are embarking upon new territory — the applicability of enforcement in the
international context — we do not seek merely to exchange expertise, as impor-
tant as that is. We hope that a greater mutual awareness of our shared commit-
ment to environmental protection generally — and environmental enforcement in
particular —- will allow us to see our cultural and legal differences not as impedi-
ments to cooperation, but as new sources of understanding and, ideally, insight.
Now, let's get to work !
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INTERNATIONAL ENFORCEMENT WORKSHOP 21
THEME #1: DOMESTIC ENFORCEMENT PROGRAM STRATEGIES, TOOLS AND MANA-
GEMENT SYSTEMS
Chair: Paul Keough, United States
Reporter: Hans Lefevre, The Netherlands
Goal: The workshop will explore ways to improve domestic enforcement programs and
levels of compliance through an exchange of information on enforcement and compliance
strategies, mechanisms and their use and how the function is managed to achieve compli-
ance goals.
Additional Papers:
1. Environmental Law Enforcement and the Police
Nic van Helten
2. State Environmental Prosecutor's Role
Steve Madonna
3. Criminal Prosecution in Environmental Matters - The State Perspective
James Lynch
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22 INTERNATIONAL ENFORCEMENT WORKSHOP
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INTERNATIONAL ENFORCEMENT WORKSHOP 23
ENVIRONMENTAL LAW ENFORCEMENT AND THE POLICE
H.E. van HELTEN
Chairman of the Environment Working Party of the Co-ordination Police Counsel.
Gemeentepolitie Leeuwarden, P.O. Box 8535, 8903 KM Leeuwarden (The Netherlands)
One of the objectives of the National Environmental Policy Plan (NMP) is
to intensify the enforcement of environmentel legislation. The police are invol-
ved in administrative as well as criminal law enforcement. Enforcement of spe-
cial laws, including rules protecting the environment, already belongs to the
regular police duties.
On Wednesday 20 December 1989, the Co-ordinating Police Council organi-
sed a congress on the subject of "Experience in Enforcement" in co-operation
with the Inspectorate for the Environment and the Department of Justice. For
some time now the Ministry or Housing, Physical Planning and Environment (VROM)
provides funds to the police for specific projects to intensify the enforcement
of environmental laws. This intensification has to be continued in the future,
but will be integrated gradually in the daily execution of police duties (the
basic police care).
To a large extent the enforcement of environmental legislation will be
carried out in an administrative way and mainly by local and regional authori-
ties. Extra funds are allocated to municipal authorities to intensify enforce-
ment, to improve co-operation with other authorities and organisations and to
give more information and better training to people charged with environmental
duties. Environmentally directed policing will have to link up with administra-
tive enforcement.
To the police the efforts of enforcing environmental legislation have by
now become a matter of course at all levels of the organisation although they
are relatively new to most forces. Externally these efforts are - independently
as well as in support of other agencies - aimed at prevention and repression.
Internally they are aimed at giving an example to others in environmental care
within the organisation.
This means that:
1. enforcement of environmental legislation must be a fixed item on the
agenda of the local triangular counsel of the mayor, the public prosecu-
tor and the police chief.
2. at all levels in the police force adequate quantities and qualities must
be available in order to perform the necessary environmental law en-
forcement .
3. environmental enforcement by the police starts at the level of the local
execution of basic police duties and can furthermore take place:
a. at regional, national and international levels, where geographical as
well as organisational support can be given, if necessary through
enlarging the scale of the capacity in manpower and recources to be
deployed;
b. at levels of operation defined by criteria of efficiency and (more
than local) importance;
c. at the levels needed for an efficient co-operation with other orga-
nisations involved in judicial investigations.
4. the regular police with their specific expertise and experience in the
performance of their duties can take care of operational co-ordination
and attune all criminal investigations in the field of environmental
enforcement.
5. the co-operation in the execution of environmental law enforcement
between the various police departments, the administrative agencies
(monitoring officials) and the specialised law enforcement agencies will
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24 INTERNATIONAL ENFORCEMENT WORKSHOP
be based on parity.
6. a network is developed through which the necessary information for an
optimal execution of environmental enforcement will become available at
local, regional, national and international levels.
7. with reference to the exemplary function the internal conduct of affairs
will be screened for environmentally damaging aspects and measures will
be taken to minimise this kind of damage.
8. with reference to the limited possibilities within the actual police
budget the necessary means must be found by rearranging the objectives
and priorities to be able to invest in:
a. manpower
b. training
c. equipment
d. information and communication structures.
The respective authorities are all faced with the demands of the NMP to
intensify the execution of environmental legislation in the fields of permitting
(tightening the rules), monitoring and controlling. Environmental law enforce-
ment requires close co-operation between the administration, the police and the
judicial authorities.
Because of the administrative primacy in environmental enforcement the
efforts of the police and the public prosecution must be attuned to get the
highest possible return for the eighty million guilders budget. This combined
effort must most of all be made locally and regionally.
Meanwhile the Dutch Society of Local Communities, the Public Prosecution
and the Co-ordinating Police Counsel have advised to provide the proper conditi-
ons on the national level. For example guidelines to choose between and attune
administrative and penal actions in regard of environmental crimes.
Police activities will be accounted for in two-yearly progress-report on
environmental law enforcement. A major increase in police efforts is necessary
and can be effected at several levels simultaneously.
The Co-ordinating Police Counsel has suggested to make an obligatory
effort of one percent of the actual organisational strength as a commitment of
the respective police forces. On this basis planning - linked with existing pro-
jects - of local and regional activities becomes a practical possibility. At
local level this may result in a chapter on environment in the police policy
plan and at regional level this could lead to agreements on environmentally
directed policing in the regions.
The planned budgets could be spent as follows:
a. To execute the basic police duties in the sense of environmentally
directed monitoring at least seventy-two million guilders can be made
available of which at least thirty-six million will be reciprocated
financing of the extra efforts to implement the NMP. So extra funds
totalling 36 million will go to the respective police forces under the
condition that they spend the same amount themselves on environmental
enforcement.
b. The regional police co-operation concerning environmental duties will be
supported by an additional twelve million. So in addition of the
existing stimulation of expertise and co-ordination, each region will
get an extra five hundred thousand guilders a year for environmental
enforcement.
c. On the national level again an additional twelve million guilders will
be put into the central police budgets to finance training and education
directed at the local, regional and central police activities concerning
the environment. We are very much aware of the need to develop our know-
how and expertise.
The provincial aspect is only a slight complication as far as the police
are concerned, because some provinces have more than one police region.
The working-group Environment of the Central Police Surveillance Commit-
tee will continue to advise on the development of environmentally directed
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INTERNATIONAL ENFORCEMENT WORKSHOP 25
police work. The developments within the other central police committees, espe-
cially on Traffic and Criminal Investigation, will be taken into account as well
as the experiences and views of the police chiefs, who are responsable for the
regional environment portfolio, the regional and local co-ordinators and other
police officials involved in environmental enforcement.
The police have to make clear what they already are doing for the envi-
ronment and what they plan to do in the near future. Essential elements are:
local planning of activities
a specific chapter on environment in the respective policy plans for the
police
- regional agreements on joint efforts of police forces directed at the
environment
- a specific chapter on environment in the annual reports of the respecti-
ve police forces.
The EPA-workshop in the United States in October 1989 taught me the
difference between compliance and enforcement. Compliance can be attained by
negotiations, permitting and controlling. Enforcement is the repressive approach
to violations of the environmental legislation.
We are very happy to get the opportunity to send police officers to the Federal
Law Enforcement Training Centre in Glynco, Georgia, USA where they hope to learn
from EPA and FBI how they deal with problems concerning policing the environ-
ment.
As I said we are very much aware of the extra training needed. Next
month a police education workshop will be aimed at a combined effort of all
police training institutes.
So you can see that the Dutch police are intensifying their activities
in the field of environmental law enforcement. The bulk of their activities will
lie in patrolling the environment, directed specifically to violations of the
rules protecting the environment and to report imminent threats to the environ-
ment to the proper authorities. Next to that further improvement of police
expertise is also important.
We have asked politicians and administrators to issue guidelines for
police activities and to tell us how our enforcement programme should like like
locally, regionally, nationally and even internationally. That will help us to
find our way in the tangle of environmental regulations and to make choices:
Where do you want the police to hit really hard? On which priorities do you want
us to concentrate our efforts?
Although we know, what we are only one of the agencies involved, the Co-
ordinating Police Counsel and the Environment Working Party will do their bit to
develop the police role attuned to the policies and efforts of the administrati-
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26 INTERNATIONAL ENFORCEMENT WORKSHOP
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INTERNATIONAL ENFORCEMENT WORKSHOP 27
STATE ENVIRONMENTAL PROSECUTOR'S ROLE
Steven J. Madonna
Environmental Prosecutor, State of New Jersey,
25 Market Street, CN118, Trenton, N.J. 08625-0118
The following will serve to outline in a summary fashion the uniqueness of
the responsibilities and jurisdiction of the newly-created position of the New
Jersey State Environmental Prosecutor - the first of its kind in the nation.
Responsibilities
The position of State Environmental Prosecutor is a Gubernatorial appoint-
ment created in 1990 by Executive Order of the newly elected-Governor, James
Florio. The Prosecutor is an Assistant Attorney General within the New Jersey
Department of Law and Public Safety and heads the Office of the Environmental
Prosecutor. He answers on a day-to-day basis to the State Attorney General and
additionally to the Governor. As an Assistant Attorney General he has access to
the State Grand Jury and to all criminal intelligence information. His responsi-
bilities extend beyond those which the name might readily suggest and include
criminal, civil, and administrative aspects of environmental enforcement mat-
ters. He is tasked to coordinate and prioritize the use of these resources in
conjunction with his responsibility to oversee prosecutions in priority cases
and to create a comprehensive environmental enforcement program. He has the
authority, jurisdiction, and mandate to cross all State Department and Division
lines to direct the use of State resources in order to effectively coordinate
the State's environmental enforcement efforts to the end that the most effective
and efficient result is accomplished. This expressly includes the enforcement
activities of the Department of Environmental Protection, Board of Public Uti-
lities, Division of State Police, Division of Criminal Justice, Division of Law,
and the Department of Health. He is further charged with the responsibility to
coordinate the State's environmental enforcement effort with other states and
with appropriate Federal agencies.
In order to achieve an effective coordination and prioritization of the
civil, criminal and administrative aspects on the State level, the State Envi-
ronmental Prosecutor will work with the various County Prosecutors (District
Attorneys) to ensure the proper prioritization and coordination of civil and
regulatory aspects with the County Prosecutors' criminal cases, and to further
ensure that they receive the necessary support and resources to complete county-
level investigations, and to further ensure that matters of multi-county or
statewide impact are referred to the State Grand Jury and the State Division of
Criminal Justice, either as the sole prosecuting agency, or in cooperative mode
with the County Prosecutors. A corollary to this interrelationship with the
County Prosecutors will be the ultimate task forcing of county level environmen-
tal enforcement components, such as the County Health Department, the County
Sheriff's Office, and local health officers, code enforcement officers, fire
inspectors, police officers, environmental commissions, and other appropriate
representatives from each of the local governments within their respective coun-
ties. These county task forces will be ultimately regionalized into two or three
geographic regions.
The State Environmental Prosecutor will work in concert with established
environmental groups to harness and focus their eyes and ears as environmental
enforcement "deputies" and to utilize their insights, energies and expertise.
Informal citizens groups, and those organized groups not traditionally identi-
1 Matters involving either a chronic environmental offender, syndi-
cated criminal involvement. Situations which pose a serious threat
to public health or to the environment, or high profile environ-
mental enforcement matters.
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28 INTERNATIONAL ENFORCEMENT WORKSHOP
fled as environmentally oriented, will be sensitized and informally made a part
of the State's overall environmental enforcement effort.
The initiatives of the State Environmental Prosecutor will be publicized through
successful criminal, civil and administrative enforcement actions, general news
releases, speeches and public appearances, and the natural dissemination resul-
ting from momentum and involvement of formal and informal citizens groups.
The foregoing will be accomplished not by the establishment of a whole new
enforcement bureaucracy, but by the supervision and coordination of currently
existing resources and by ready and complete access to, and use of, the person-
nel of the Department of Law and Public Safety. This would include the assign-
ment of Deputy Attorneys General to assist the State Environmental Prosecutor on
a case by case basis. It is anticipated at the outset that the Office will be
staffed with several senior level Deputy Attorneys General recognized as accom-
plished attorneys in the area of their assignment, two or three experienced
investigators to accumulate sufficient data to allow for the assignment of case
lead information to the appropriate agency, and necessary clerical and admini-
strative support personnel.
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INTERNATIONAL ENFORCEMENT WORKSHOP 29
CRIMINAL PROSECUTION IN ENVIRONMENTAL MATTERS - THE STATE PERSPECTIVE
James H. Lynch
Senior Environmental Investigator, Indiana Department of Environmental
Management, Indianapolis, Indiana
SUMMARY
This paper provides a state perspective on criminal prosecution in
environmental matters as well as practical advice in how to operate a
successful criminal enforcement program and bring successful criminal
prosecutions within the larger context of environmental management
agencies. It gives an introductory perspective in historical terms of
issues in criminal enforcement for environmental protection, in particular,
the legislative evolution of the Indiana Department of Environmental
Management's criminal enforcement program. The Office of Environmental
Investigations is reviewed in terms of its statutory basis, the rationale
for *criminal investigations', and the conduct of proper investigations.
In order to understand the work of the Office, the paper provides an
overview of what is Being Enforced. It then goes on to describe the
investigative methodology and complexities, the added dimension to
traditional investigations, and new issues related to safety, costs
and access to sites.
Finally, the paper explores the investigator - prosecutor
relationship, and how targets are selected.
1.0 An Introductory Perspective.
"I have seen the enemy, and he is me." I'm not sure who said that, or
that it's important. What is important is that we recognize (and accept)
that as a society, serious, often life-threatening environmental issues,
confront us, NOW!
Throughout history, until very recently, the management of hazardous
(industrial) chemicals and it's hazardous waste by-products has been
primarily left to the hands of those people in industry (and government)
who handled it. The simple rationale being, who better to deal with it
than those who know the most about it.
Time has borne out the fact, that those who handle it, and often
regularly, in many, many instances don't know (or care) how to PROPERLY
manage and dispose of hazardous materials and hazardous wastes. This
ignorance and/or callousness has led us to catastrophes such as the Love
Canal (New York), where hundreds have been evacuated from their homes
''forever' and often with life-threatening illnesses. Times Beach
(Missouri), where an entire town has been evacuated and fenced off
presumably 'forever', due to contamination. Seymour (Indiana) Recycling
where thousands upon thousands of drums of hazardous waste were improperly
managed until an environmental disaster occurred. The list goes on, and
the issue facing us is, how long can we continue to allow this?
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30 INTERNATIONA^ ENFORCEMENT WORKSHOP
2.0 The Indiana Department of Environmental Management
The Legislature enacted into existence in 1985 (P.L. 143-1985, Sec.
96), the Indiana Department of Environmental Management (IDEM). A question
might be asked, "why?" Environmental matters had up until that time been
handled by personnel from the Indiana State Board of Health, and separate
"boards" overseeing policy. There was however, no cohesiveness in an
overall environmental "management" sense. Additionally, federal
regulations, having impact on the states, needed research, policy decision-
making, investigation, and enforcement. Federal and state law(s), some in
existence for a long time, would/could no longer be ignored and taken for
granted.
2.1 The Office of Environmental Investigations
Included in the creation of the IDEM, is a specific criteria
that there be "an office to conduct investigations" (1C 13-7-2-13(a)(5)).
The Office of Environmental Investigations (OEI) is tasked with conducting
*criminal1 investigations of state and federal environmental laws. Another
question asked may be, "why criminal investigations, what's wrong with the
traditional civil investigations and enforcement historically conducted?"
First, there is nothing wrong with those xtraditional' civil efforts.
There is a necessity for their continuance, and a place for their
application. There is, however, cited specifically in Title 13 of
Indiana's statutory law (1C 13-7-13-3 and 1C 13-7-13-4) provisions that
make certain violations Class D felonies or Class B misdemeanors.
Proper investigations, including application and understanding of
'criminal law', and the criminal justice system is, rationally speaking,
better done by competently trained and experienced police investigators.
All investigators within the OEI are trained, experienced investigators.
2.2 What is being enforced?
As previously cited, Title 13 is included within the body of Indiana
statutory law. Title 13 is simply, "the Environment." Primarily, Title 13
addresses air, water, and solid and hazardous waste. Additionally, there
are subparts that deal with surface mining, interstate agreements, soil and
water conservation, minerals, and legal actions.
Article 7 of Title 13 addresses "Environmental Management."
Specifically, 1C 13-7-4-1 (long overlooked) is "Acts Prohibited."
From a law enforcement and prosecution perspective, it's a good place
to start to understand and apply basic (enforcement) protection to
our environment.
Title 13 addresses the xgeneral' perspective to our environment.
Specific (technical) enforcement is accomplished through enforcement
of the Indiana Administrative Code (IAC). The 1988 Indiana
Legislature recodified the IAC. Title 326 addresses "air", Title 327
addresses "water", and Title 329 addresses "hazardous waste." There
are other xtitles' in the code that may apply in some situations, but
generally xcriminal1 enforcement will be from within these three. As
per 1C 13-7-13-3 violation(s) of " any rule or standard
adopted " are criminal violations.
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INTERNATIONAL ENFORCEMENT WORKSHOP 31
2.3 Investigative methodology and complexities.
Traditional police investigative techniques are standard in
environmental 'crimes.' However, there is added, a dimension of knowledge,
techniques, and safety not generally associated with police investigations.
First, the knowledge and understanding of environmental law and regulations
cases only after study, training, and research by investigators. Next,
special techniques surrounding a *crime scene1 that may be (or likely is)
contaminated and hazardous must be learned. Collection, preservation, and
handling of evidence (including samples of contaminants), that are
dangerous to health and safety are realities.
laboratory analysis of 'evidence' is NOT done through police
laboratories who are accustomed to 'handling evidence' with very stringent
consideration of chain of custody, etc. Contract laboratories must be made
aware of their now 'heightened1 role in this scenario. Clearly defined and
articulated standards MUST be adhered to. Quality control/assurance of
samples (evidence) is an absolute must.
Finally, the issue of personal safety cannot be understated. Working
in a toxic atmosphere, collecting (or directing the collection of) evidence
is critical. Some chemicals are so lethal, that the mere inhalation can be
fatal. For investigators, and others involved in an investigation,
understanding their role, capabilities, and limitations is NOT an area for
doubt or confusion.
A brief mention of cost is necessary. Conducting environmental
investigations can be, and usually is very costly. Private contractors and
laboratory work is very expensive. Local, state, and federal resources
(and options) should be considered. Most county prosecutors budgets could
not sustain a major environmental investigation^ IDEM investigators are
familiar with costs associated with these types of investigations.
Another issue that is traditional, but offers some variations is
access to 'sites.' Often tims the 'crime scene1 is a site on private
property involving s#me implied responsibility of the property cwner. The
property owner may also be a victim (e.g., illegal dumping), but may incur
some liabilities. The law in this area is very complex, and could affect
access to a site. Development of probable cause, early, is an issue that
cannot be overlooked in an investigation, since access permission may or
may not be granted. While access is being 'debated1, evidence could come
up missing or gone. Proper 'control1 of a site, sometimes even before
entry is very important.
3.0 Investigator - Prosecutor Perspective.
A reasonably assumed premise is that environmental crimes
investigation and enforcement is both relatively new and very complex. As
with any comparable situation, early and effective communication between
the prosecutor and the investigator is very important. The investigator
should be reasonably able to advise the prosecutor (fairly early on) what
he (or she) perceives the 'case1 is about and where it will likely go. The
investigator should be prepared to give 'timely' updates on the status of
the investigation to the prosecutor. There should be discussion and
research of issues and likely charges filed (depending on the complexity of
the case), before the preparation of probable cause and obtaining arrest
and/or search warrants.
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32 INTERNATIONAL ENFORCEMENT WORKSHOP
4.0 Selecting a *Target1.
Selecting a target or subject for criminal investigation is not always
an easy task. Many factors must be considered during the pre-investigation
assessment. First and foremost, is the issue of, "are there perceived
violations of either state or federal environmental law?" If so, to what
degree or magnitude? Another consideration is the statute of limitations.
Since for environmental crimes, there is a five (5) year limitation to deal
with, consideration of not only when did the crime occur, but how soon can
it be filed must be assessed.
Another factor is the prior history of the potential target.
Sometimes past non-compliance issues (civil), become relevant. Another
consideration is the knowledge and effort to comply with environmental
standards by the potential target. Sometimes, obvious blatant disregard,
could be a factor in assessing a vsituation.'
Interaction and discussion amongst 'regulators (civil) and
investigators (criminal)' is important. These types of investigations are
generally too complex for an investigator to proceed without input from the
regulatory community. Discussion of the issues, and a proper evaluation of
individual, and municipal, state and/or federal government concerns and
priorities, before reaching any conclusions or recommendations should
occur. Many times these investigations will proceed in a 'team' approach,
for best results.
lastly, is the acceptance of the case by the prosecutor.
Investigators are charged to ensure the information they bring before a
prosecutor meets the 'standards' necessary for the furtherance of a
criminal investigation. Since the criminal justice system is already
overburdened, presentation and prosecution of environmental crimes must be
judicious, yet aggressive.
5.0 A Closing Analogy.
Visualize the 'Scales of Justice.' On one side is a traditionally
perceived 'criminal1, a burglar. On the other side is an environmental
criminal. One forced entry into your home and stole your television, while
you were gone, a property crime for which you will either get your TV back
or replaced by your insurance. The other, however, dumped a chemical waste
that got into your drinking water, and you didn't know it. The waste
likely may be harmful to you and your family's health. If the latter 'act1
was done intentionally, knowingly, recklessly, or negligently, I submit to
you, which act is really criminal?
Historically, the burglar goes to jail, and the environmental criminal
goes uninvestigated and unprosecuted. People are dying TODAY in our state
and in our country. It's time!!
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INTERNATIONAL ENFORCEMENT WORKSHOP 33
APPENDIX
SOME INFORMATIONAL OCJNSIDERAnONS
1. Almost three million (3,000,000) tons of hazardous
waste are generated in Indiana annually.
2. Approximately two-thirds (2/3) of that waste is disposed of in-
state, the remaining exported for disposal.
3. Almost two-hundred thousand (200,000) tons of hazardous waste
is sent to Indiana from out-of-state for disposal annually.
4. Items 1-3 (above) is information that is known from reporting
sources.
5. Nobody knows how much hazardous waste is illegally disposed of
in Indiana, from all sources. General information, intelligence sources,
and common sense indicate the total is significant.
6. There are many thousands of regulated and unregulated
generators of hazardous waste in Indiana. Many in a category known as
*small quantity generator1 (SQG).
7. The average disposal cost (per drum) of hazardous waste is
approximately $100. Some products cost significantly more, others less.
Disposal of hazardous waste is not cheap. Economics has been determined to
be a prime motive for illegal activities (but that's no surprise).
8. Most 'complaints1 regarding alleged illegal activities come to
the Office of Environmental Investigations from internal referrals.
9. Within the Office of Environmental Investigations, there are
five (5) investigators, that includes the Director of Investigations.
10. Due to the limited number of manpower resources available to
investigate environmental crimes, the Department of Environmental
Management, the Department of Natural Resources, the State Police, and the
U.S. Environmental Protection Agency work very closely together in Indiana.
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34 INTERNATIONAL ENFORCEMENT WORKSHOP
"CONDUCTING AN ENVIRONMENTAL CRIMINAL INVESTIGATION"
The investigation
As with any criminal investigation, the development and preparation
of a hazardous materials or environmental case requires the same
professional effort by the investigator(s). Traditionally, law
enforcement has not conducted these types of investigations, because
they were not perceived as in "our bailiwick". They are! With the
recent emergence in the last few years of federal and state laws more
stringently addressing our environment and chemical safety,
COMPLIANCE AND ENFORCEMENT lERSONNEL MUST NOW WORK TOGETHER!
We in law enforcement, are part of a necessary "team approach" in
responding to the 'now1 challenges of our environment. The hazardous
materials and environmental laws and regulations have an inherent
complexity that will both challenge and tax your abilities.
Experience has shown that the most effective way to work with these
laws and "regulatory conmunity". They can guide you through the maze
of technical criteria and clarify issues.
However, as with any investigation, the ultimate responsibility and
accountability is yours, the investigator. You must decided (with
advice and guidance), what the priorities are, and the direction an
investigation will take. You should actively seek council as you
proceed, keeping predetermined case objectives in sight. Research
and review should be incorporated into your efforts. Understanding
the legal requirements of a "target" (corporation or person), will
significantly aid you in getting the best advice and support from
others.
You should anticipate and expect the "unexpected" as your case
develops. When you initiate an investigation of an environmental
complaint, it is not inconceivable your investigation may uncover
corruption, organized crime, white collar crime, RIOO violations,
fraud, and/or theft. Be prepared for these contingencies.
As you proceed into this quagmire of requirements that (usually)
include exceptions, exemptions, exclusions, however, unless otherwise
indicated, on condition of, immunity, impunity, limited to,
prohibited, authorized/not authorized, qualifying criteria,
specifications, etc, etc, etc, you must be conscious of
these "little qualifiers". Often time the success of your case will
depend on how well YOU know the laws and regulations.
It goes without saying, it would be a terrible waste
(no pun) to prepare a case for court and there be confronted by a
defense attorney who introduces you to a small but overlooked
''exception to the law1.
Finally, remember that the effort you undertake is the enforcement of
E^IVIRONMENTAL laws. As (police) investigators it's easy to 'slip1
into the investigation of the more traditional violations "after"
starting an environmental case. Remember your case objectives along
the way, and don't get sidetracked away from the issues. A good case
manager should be able to keep the issues in perspective, and
prioritize (and if necessary delegate) appropriately.
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INTERNATIONAL ENFORCEMENT WORKSHOP 35
POLICE ARE INVESTIGATING ALL TYPES OF CRIME EVERYDAY, BUT VERY FEW
ARE ENFORCING ENVIRONMENTAL IAWS. IF WE DON'T. WHO WILL?
II. Development of Probable Cause
After you have conpleted you initial investigation, you case must be
prepared for further execution. Usually this means development of
probable cause (see below) for search and/or arrest warrants. When
you get to this part of your investigation and an arrest is
impending, you should establish:
(1) who's going to be charged,
(2) with what,
(3) who can testify to the charges, and
(4) what evidence do you have?
(If no arrest occurs during search warrant execution, these questions
will have to be raised after the post-warrant execution evaluation.
Note - see IV. Post-Execution of Search and/or Arrest Warrants)
GENERAL PROBABLE CAUSE CRITERIA
1. Basis of knowledge
2. Reliability
A. Information and/or
B. Source
3. Timeliness of Information
4. Tieing Probable Cause to the person to be arrested and/or the
place to be searched
PROBABLE CAUSE CHECKLIST
1. Who is source of information
A. Source 'presumed' credible
(1) Law Enforcement officer
(2) government Regulatory personnel
(3) Victim
(4) Eye-witness
(5) Participant in crime (caution on motive for
providing information)
B. Sources whose credibility MUST be proven
(1) Informant
C. How to prove credibility
(1) Corroboration
(a) independent investigation
(b) other sources
(2) Past reliability
(a) "track record"
2. Information necessary for Probable Cause
A. Who
(1) who committed crime
(2) who has the information - who told you
B. What
(1) what crime was committed - state FACTS, not
conclusions
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36 INTERNATIONAL ENFORCEMENT WORKSHOP
C. When
(1) when was crime ocanmitted
(2) when were you told
(3) must shew timeliness of information - it
cannot be old or *stale1
D. Where
(1) where was the crime committed
(2) where did the source learn the information
(3) "where" must show venue - the crime
occurred in a specific jurisdictional venue
E. How
(1) How the crime occurred (method, activity,)
etc)
(2) How the source knows the information
(3) How did you obtain the information
(4) How do you know the completeness and
validity of information utilized
F. Why *
* NOT required for Probable Cause, although the
why (or motive) can be very helpful (and
sometimes necessary) ultimately in the
prosecution of a violator
Note - Be aware of obligation NOT to divulge
motive to media during conduct of investigation.
3. Do you have SPECIFIC information
A. Specific description of person/place to be
searched
B. Specific description of person to be arrested
C. Specific description of items to be seized
D. What statute was violated
E. What reasons are there to believe that evidence
of a crime is NOW concealed on the person/in the
place to be searched
The legal (including evidence handling) requirements DO NOT change
because you are investigating environmental crimes. As the case
officer, it is your responsibility to ensure AIL established
procedures are complied with, and, evidence and witnesses are handled
appropriately. Often the collection, handling, transport, and storage
of various chemical evidence presents a challenge to you. PRE-
PLANNING for such contingencies is usually the best way to deal with
these issues (utilizing "technical" personnel in the regulatory
community would be appropriate and practical).
Note - Many State Police or other crime laboratories have a policy
regarding hazardous waste. They often will NOT accept for
analysis or storage any evidence that falls in this category.
This type of evidence is generally handled by other state or
federal agency laboratories. Common also, is the utilization of
a predetermined 'contract' laboratory. (Those jurisdictions
who use them, normally will have a listing of the laboratories
who are qualified contractor's, with that particular
jurisdiction).
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INTERNATIONAL ENFORCEMENT WORKSHOP 37
III. Execution of Search and/or Arrest Warrants
As you prepare your investigation for the execution of search and/or
arrest warrants, may considerations must enter your planning process.
During this stage of the investigation your management skills should
become heightened. Depending on the scope of your case, you could
have many personnel (police and civilian) from several different
agencies and contract personnel under your control. Additionally,
there is always the omnipresence of the media. This goes on, of the
many and varied issues you will need to anticipate.
The below included listing is a suggested guide to aid you in
development of an OPERATIONAL PLAN during the planning stage of your
warrant execution. It is not intended to be all encompassing, but
rather 'food for thought1. Each investigating must be approached on
it's own merit. What is applicable in one case, may not be in
another.
1. SITUATION
Write a concise, but thorough synopsis of the case (usually a couple
of pages). Often time various executive staff (including your
Superintendent, Commissioner, Director , or know about your case.
They could be confronted by the media or public interest groups after
you execute your warrant. Your synopsis is in essence a written
briefing.
2. MISSION
What is your mission when you execute the warrants? Write down (and
discuss) what you expect to accomplish. This is normally a broad
based operational scenario. From this 'plan', you should develop a
TASK LIST. Document what specific duties will be accomplished by
what specific people. Through the development of this task list, you
will be able to better assess your operational and logistical
requirements (personnel, equipment, communication, safety and
security, aviation, media relations, etc) and other support like
medical and fire stand-by notification.
Your task list should eventually be organized into 'teams'. Specific
personnel assigned specific duties should be grouped in small teams
(depending on duties), with a 'team leader' in charge of each group.
Remember, your operation is the execution of "criminal" warrants. A
police officer should be with each team initially, and with them as
long as necessary thereafter!
3. EXECUTION
When you execute your warrants, do not be*lulled1 into the theory
that "these type of crimes ain't n big deal". If you're going to
arrest someone, and/or cause others to become unemployed, proper
security and safety awareness is a must! Often you will be in a
dangerous or hazardous location (chemicals, hazardous waste,
machinery, etc). You must maintain absolute control of the
situation. Properly briefing ALL personnel prior to the warrant
execution is absolutely essential.
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38 INTERNATIONAL ENFORCEMENT WORKSHOP
You must insure that all personnel react only to the dictates of the
warrant. If other issues surface during your search, usually it's
best to contact the prosecutor and modify your warrant or obtain
another one. Violation of strict warrant guidelines could
jeopardize your entire case.
4. COMMAND AND CONTROL
The CN-SCENE COORDINATOR is generally the case officer. However,
overall command and control should be determined based on the size
and scope of the operation (and agency policy). Because of the
complexities of these types of cases, it's best to have both a
police and technical person share operational decisions during the
warrant execution. Each would have primary responsibility for their
'discipline', but occasionally they may have to confer (e.g. -
security during sample collection).
Properly established COMMUNICATION procedures must be followed. ALL
personnel should know *there' chain of command and communication for
the duration of the operation. Team leaders should know the
location and activities of all their personnel at all times.
A SITE SAFETY OFFICER should be functional and available to the ON-
SCENE COORDINATOR. The site safety officer must monitor and ensure
all site activities are in compliance with established safety
procedures. The safety office is normally a *technical1 person who
is knowledgeable of "chemical safety", etc. A SITE SAFETY PLAN are
should be prepared prior to warrant execution.
MEDIA RELATIONS are very important at the time of and following
warrant execution. Because of the implied or actual public health
considerations, as well as the execution of criminal warrants,
communications with the media must be planned. Often, spontaneous
unplanned statements can be very damaging to an investigation. The
PROSECUTOR should primarily be responsible for media relations. A
prepared xpress release" should be developed prior to warrant
execution.
5. CONTINGENCIES
Murphy's Law is "if anything can go wrong, it will". During
development and preparation for the warrant service, all of the
"what if's" should be discussed. Contingency plans should be
developed for any xreasonable' anticipated situation. DO NOT SHY
AWAY FROM "WORST CASE SITUATIONS" IN YOUR PLANNING.
6. PERSONNEL AND LOGISTICS
When your operational plan has been developed, you should compile a
complete list of ALL personnel who will participate. The list
should include:
a) NAME, RANK
b) AGENCY (OR COMPANY)
C) BUSINESS TELEPHONE NUMBER
d) EMERGENCY: NAME AND TELEPHONE NUMBER
(who to notify in case of emergency)
e) TEAM OR DUTY ASSIGNMENT
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INTERNATIONAL ENFORCEMENT WORKSHOP 39
ALL personnel who are participating in the operation, certain
'selected' nonparticipant personnel, and 'local1 Indiana State
Policy (or other appropriate agency) radio, should be provided a
copy of the list BEFORE the warrant execution begins.
Remember, effective communications and safety are paramount!
You should keep one 'reality1 in mind during the planning phase of
your warrant execution. Your final plan will have a QOST FACTOR
that must be considered. Obviously, a plan must be developed that
is reasonable and practical. The accomplishment of the 'mission1,
safely, and efficiently with the fewest support requirements (again,
reasonable and practical), is what you as the CASE MANAGER should
strive for.
IV. Post-Execution of Search and/or Arrest Warrants
During the execution of the search and/or arrest warrants, new
information or additional criminal charges may have developed.
During the warrant execution the case office must be cognizant of
any and all changes or developments. Upon completion of the warrant
execution a thorough evaluation must be made of all evidence and
information collected. An updated assessment of the case should
then be presented to the prosecutor of evaluation.
Many prosecutors and deputy prosecutors (currently), are unfamiliar
with hazardous materials or environmental laws and regulations. You
should actively assist them in the preparation and development of
your case, thus ensuring all your investigative efforts have not
gone in vain.
REMEMBER, A PROPERLY PREPARED CASE USUALLY IS THE DIFFERENCE BETWEEN
SUCCESS AND FAILURE IN COURT.
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40 INTERNATIONAL ENFORCEMENT WORKSHOP
"CONDUCTING AND ENVIRONMENTAL CRIMINAL INVESTIGATION"
SAFETY
THERE CAN BE NO MISUNDERSTANDING AS TO THE IMPLIED AND/OR IN FACT, HEAIHH
AND SAFETY RISKS WHEN INVOLVED IN HAZARDOUS MAIERIAIS/ENVIRONMENTAL
INVESTIGATIONS!
Understanding your role and responsibilities, understanding and accepting
your capabilities AND limitations, are key to safe and successful
operations in a hazardous and dangerous environment. Training, proper
equipment, realistic planning, effective communications, and common sense
are the essence of safety. These component factors are the same, as those
in any other area of endeavor.
When conducting an investigation or other related enforcement effort at a
site determined to be dangerous or hazardous, proper planning and
evaluation must occur 'prior to site entry'.
A SITE SAFETY PLAN, which establishes policies and procedures to protect
all personnel (including the public), from the potential hazards posed by a
*hazardous waste site1, must be developed before site activities proceed.
The SITE SAFETY PLAN must provide measures to minimize accidents and
injuries that may occur during normal daily activities or during adverse
conditions such as hot or cold weather.
The development of a written SITE SAFETY PLAN helps ensure that all aspects
of site operations are thoroughly examined prior to commencing site field
work. The SITE SAFETY PIAN should be modified as needed for every stage of
site activity.
Because planning requires information, planning and 'site characterization1
should be developed so that the preliminary site assessment can proceed in
a safe manner. The information from this assessment can then be used to
refine the SITE SAFETY PIAN so that further site activities can proceed
safely. PLANS should be revised whenever new information about site
hazards is obtained.
Development of a SITE SAFETY PIAN should involve both the 'offsite and
onsite1 management personnel and be reviewed by properly qualified
technical personnel.
At a minimum, the PLAN should include:
Name of key personnel and alternates responsible for safety.
Describe the risks associated with each operation conducted.
Confirm that personnel are adequately trained to perform their job
responsibilities and to handle the specific hazardous situations they
may encounter.
Describe the protective clothing and equipment to be worn by personnel
during various site operations, (see attachment re: Level A-B-C-D
protection)
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INTERNATIONAL ENFORCEMENT WORKSHOP 41
Describe any site-specific medical surveillance requirements.
Describe the program for periodic air monitoring, personnel
monitoring, and environmental sampling, if needed.
Describe the actions to be taken to mitigate existing hazards (e.g.,
containment of contaminated materials) to make the work environment
less hazardous.
Define site control measures and include a site map.
Establish decontamination procedures for personnel and equipment.
Set forth the site's Standard Operating Procedures (SOP's). SOP's are
those activities that can be standardized (such as decontamination and
respirator fit testing), and where a checklist can be used. These
procedures should be:
Prepared in advance.
Based on the best available information, operational principles,
and technical guidance.
Field-tested (as appropriate) by qualified health and safety
professionals, and revised if necessary.
Appropriate to the types of risk at the site.
Formulated to be easy to understand and practice.
Provided in writing to all site personnel, who should be briefed
on their use.
Included in training programs for site personnel.
Set forth a Contingency Plan for safe and effective response to
emergencies.
To ensure that the SITE SAFETY PLAN is being followed, the SITE SAFETY
OFFICER should conduct a safety meeting prior to initiating any site
activity and before and after each work day. The purpose of these meetings
is to:
Describe the assigned tasks and their potential hazards.
Coordinate activities.
Identify methods and precautions to prevent injuries.
Plan for emergencies.
Describe any changes in the SITE SAFETY PLAN.
Get feedback on conditions affecting safety and health.
Get feedback on how well the SITE SAFETY PLAN is working.
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42 INTERNATIONAL ENFORCEMENT WORKSHOP
The SITE SAFETY OFFICER should also conduct frequent inspections of site
conditions, facilities, equipment, and activities to determine whether the
SITE SAFETY HAN is adequate and being followed. The minimum frequency at
which inspections should occur varies with the characteristics of the site
and the equipment used on site. Factors that need to be considered are:
The severity of risk on site.
Regulatory requirements.
Operation and maintenance requirements.
The expected effective lifetime of clothing, equipment, vehicles, and
other items.
Recommendations based on professional judgment, laboratory test
results, and field experience.
Anyone who enters a *hazardous waste site1 MUST recognize AND understand
the potential hazards to health and safety associated with the site. As an
investigator (and probable ON-SCENE COORDINATOR) it is your job to ensure
the development and compliance of a properly prepared SITE SAFETY PLAN.
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INTERNATIONAL ENFORCEMENT WORKSHOP 43
THEME #2: DOMESTIC INTERGOVERNMENTAL ENFORCEMENT RELATIONSHIPS
Chair: Marbeth Bierman, The Netherlands
Reporter: Henk Hurenkamp, The Netherlands
Goal: The workshop will explore ways to improve domestic enforcement programs through
an exchange of information on effective relationships among supranational/federal, state,
provincial/regional,and municipal/local authorities and their respective roles in enforce-
ment. This includes a discussion of the emerging relationship between the European
Economic Community and member states.
Additional Papers:
1. Intergovernmental Relationships in the Netherlands
Peter Dordregter
2. Environmental Law and their Execution in the Federal Republic of Germany.
Prof. Dr. Obing
3. Compliance and Environmental Enforcement System in Poland.
L.S. Jarzebski
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44 INTERNATIONAL ENFORCEMENT WORKSHOP
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INTERNATIONAL ENFORCEMENT WORKSHOP 45
Mr. Peter Dordregter, director Association of Netherlands Municipalities (VNG)
P.O. Box 30435, NL-2500 GK Den Haag, Netherlands
Intergovernmental Relationships in the Netherlands
I. Enforcement is the upholding of the policy determined by the municipal
council. The process of enforcement assumes that those bound by it are
aware of the conditions it imposes, and this should be set down in the
form of a licence. A licence is a scheme of limiting conditions within
•*hich a firm must operate in order to obviate unacceptable
environmental damage. In one sense, a licence may be regarded as a
statutory contract, which must be continually renewed whenever new
conditions arise within the firm, or if the government, through the
gaining of new insights, can no longer accept a policy previously
agreed upon. The carrying out of controls, and any penalties which may
be imposed, require the existence of an up-to-date licence.
Unfortunately, research has shown that municipalities in the
Netherlands were severely behind in introducing such measures. Very
many companies were either operating without a licence at all, or else
under an inadequate licence. This was partly due to lack of interest
on the part of municipalities, but also to a not insignificant degree
to factors which lay outside their scope. In order to elicit the will
and ability to conduct a successful environmental policy, it is
necessary to present an inviting prospect:
a. environmental policy must be placed high on the political agenda;
b. the level of government concerned must be given a recognised role
in the policy;
c. it should, moreover, command adequate funds;
d. where necessary, other authorities and governmental institutions,
such as the police force and the Public Prosecutor, should co-
ordinate their activities with those of the municipality.
These conditions are increasingly being fulfilled.
Environmental policy has now been placed high on the political agenda,
with the national environmental policy document being the seal on this
development, and motoring policy -- including the question of whether
or not to build five road tunnels in the Randstad area -- the test
case.
Municipalities have a central role to play in ensuring the success of
environmental policy. The enormous number of environmentally-damaging
activities taking place simply cannot effectively be tackled by only a
few large institutions. Moreover, environmental policy should be drawn
up in conjunction with the drafting of policies on transport, physical
planning, building and housing. This role for municipalities is being
expressly acknowledged by the provision of additional funding to
enable them to work together, to jointly equip themselves adequately
and to aim in four years' time to introduce a full system of licence-
granting and an effective enforcement programme. For the first ti-r.e,
municipalities are receiving funding to enable them to finance their
own environmental tasks, and extra money has also been promised by
national policy documents and the government coalition accord, in
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46 INTERNATIONAL ENFORCEMENT WORKSHOP
order to cover the costs of increased burdens. The first steps in a
co-ordinated approach to environmental problems by different leve.] s of
government are thus beginning to get off the ground.
The organisation of enforcement is central to our workshop. As I said
at the beginning of my talk, enforcement is the capstone of the
policy. Inspection controls of firms can reveal infringements of the
policy resulting from a series of causes, each of which requires its
own specific approach. Many contraventions come about vhrough
ignorance or human error. The foremost, and possibly most important
instrument of enforcement must therefore be public information and the
changing of attitudes.
To begin with, the policy will need to be clearly set out and Lhe
licence brought up-to-date. The licence-granting authority will need
to explain its proposed aims in local newspapers and by means ol
brochures. It must win commitment for the policy from employers
organisations and Chambers of Commerce, so that the necessary
information is also disseminated by means of internal channels, both
formal and informal. Officials and politicians should make specific
enquiries and give equally specific clarifications during visits to
firms. Those working within industry should be willing to co-operate,
motivated by the desire to contribute to a clean environment. This
means that it will also be necessary to try to influence corporate
culture in such a way that employees will be encouraged to contribute
to finding solutions, to come up with ideas and not be inhibited about
drawing attention to deficiencies or faults. This should be the task
of industrial management. It is important to stimulate industries to
set up a system of internal environmental management, since in this
way environmental policy will become company policy.
Obviously, for that matter, trade unions should also be motivated to
include an environmental policy in their collective labour agreement
negotiations. It may seem superfluous to be concentrating so much
attention on the need to change attitudes and on the transfer of
knowledge. Let me therefore take a different example to illustrate
what I mean.
Ordinary households use chemical substances every day -- creating a
total buildup of waste products which could cause enormous
environmental pollution. Chemicals used in photographic development,
paint thinners, paintbrush cleaning fluids and so forth, can be
disposed of in the home by thoughtlessly flushing them down the
lavatory, whereby they eventually interfere with the sensitive
bacteria cultures used by water purification plants, causing these
plants to break down and their surface water to become seriously
fouled. People also dispose of these substances in their garbage bins,
thereby polluting waste tips or flue gases from waste incinerators.
These activities cannot be monitored, nor can they even be
ascertained. It is therefore necessary to motivate people to dispose
of such waste attentively, carefully, and, above all, in what must
come to be seen as a self-evident way. Municipalities in the
Netherlands have established a network of depots for the disposal of
domestic chemical waste. Numerous municipalities have even gone as far
as organising door-to-door collections of chemical waste, which
involves householders having to be prepared to separate it, and keep
it separated, from ordinary waste. This measure has been so
successful, that the authorities have had to devise emergency
solutions to process all the household chemical waste collected.
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INTERNATIONAL ENFORCEMENT WORKSHOP 47
My subject is intergovernmental co-operation: in this situation, too,
then, activities undertaken by different levels of government should
complement one another. The dissemination of information should be
identically focused at all levels, and the various authorities shcul d
each be in a position to attain their desired aim, namely:
municipalities collect waste individually and store it in their
respective depots, following which the provinces arrange for it to be
picked up by properly-qualified firms, to be taken to waste-proc'f;ssing
plants or chemical waste incinerators; the government ensures Lhe
willingness of the various branches of industry to co-operate, for
example by processing rechargeable batteries or by building large-
scale waste incinerators.
lo begin with, the public must be willing to realise the policy in
tneir everyday activities: this includes not only the public in
general as members of households, but also employees and company
bosses. A constant stream of information must provide a continual
motivation. Such information should include publication in a
stimulating way of the results of environmentally-friendly activities
undertaken by citizens. Industries above a certain size should be
stimulated to do the same in their own internal information campaigns,
even perhaps rewarding individuals for outstanding performances in
environmental management.
Publicity is an important instrument for bringing about the required
environmentally-conscious behaviour. Enforcement strategy proper can
also play a role here. Some municipalities deliberately use publicity
as a threat, in order to force companies to quickly conform to the
conditions of their permit. In the Netherlands, the example of the EPA
could be followed in making agreements on publicity with the judicial
authorities. This strategy aims exploit specific stages in an
enforcement procedure, in order to communicate a deterrent message.
Those potentially at risk of infringement or negligence are thus able
to evaluate more clearly the risks they are running, the intention
being that compliance will obviate the need for disciplinary action.
Why am 1 devoting so much attention to this subject? It is, I repeat,
because there are countless possibilities for potential infringements,
and because it is not generally possible in the majority of cases, to
establish that an infringement has taken place, or at least not
legally provable. Moreover, enforcement is a highly costly and labour
intensive business, a process which can sometimes drag on for years,
passing through many different authorities. Penalties will therefore
have to be the exception rather than the rule. And so the most
important enforcement tasks are therefore the following: the
establishment of a clear policy, instruction, guidance and warnings.
II. Now let us turn to enforcement proper. Many public authorities and
organs in the Netherlands are required to carry out enforcement tasks.
In addition to general administrative public authorities, such as the
state, (inspectorate), provinces and municipalities, there is also the
police force and the Public Prosecutor, as well as a group of special
investigation departments, of which examples are the General
Inspectorate at the Ministry of Agriculture, and the Monitoring Unit
for Dangerous Substances at the Ministry of Transport and Public
Works.
Different services within the municipality can also exercise
investigative powers, such as the police sanitation department. In
addition to this, the district water boards -- functional corporations
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48 INTERNATIONAL ENFORCEMENT WORKSHOP
with their own direct elections -- also have monitoring
responsibilities in their capacity as water quality supervisors. In
exercising their environmental tasks, municipalities have dealings
with all of these bodies, and sometimes, depending upon the particular
instance, with all of them simultaneously. The National Environmental
Policy Plan will result in a considerable growth in the nunbcT of
active enforcement bodies, both within and outside the municipalities.
Without adequate consultation or good working agreoypnts,
municipalities and industries will end up in an inextricable Langle
reminiscent of a plate of spaghetti, but one without the Bolognese
sauce. Not only must we contend with additional enforcement agencies,
v.'s must also cope with the prospect of increased autonomy, a virtual
''Alleingang" , in traditional enforcement bodies: the police and
justice department. Police forces in certain municipalities are
alxeady going their own way where they feel the administration has
been too slow in formulating and implementing a good environmental
policy.
The National Environmental Policy Plan could strengthen this tendency.
It has placed 60 million Dutch guilders at the disposal of the police
and the Public Prosecutor over a period of time. A policy document
issued by the Ministry for the Interior (responsible for
municipalities and municipal police forces) and the Ministry of
Justice (responsible for law enforcement) opts for an intrinsic
conflict of interests. It assumes that the police should not exercise
an autonomous responsibility in enforcing environmental legislation.
Environmental enforcement should form part of normal policing duties
and should be incorporated into them as far as possible. This
assumption is one I readily share. Nonetheless, the intensification
programme is being pushed forward in the form of a national project
with a project planning bureau, where municipalities can present
applications for permission to undertake development projects. Work
will be undertaken with contract management, whereby beforehand,
projected results will be formulated in measurable quantities. A
distinctly "top down" approach, which elicits tension between national
priorities and local insights; an approach, too, which releases
various elements and allows them to become more autonomous, and which
could undermine local integration. At national government level, the
project management does not even provide for any involvement of the
Ministry of the Environment. We are therefore faced with an increased
autonomy in both a vertical and horizontal direction, which will lead
to a great many problems of co-ordination.
In the US, similar moves towards autonomy may be regarded as normal,
while in the Netherlands such a move would be contrary to
administrative concepts.
The need for adequate consultation is increasing rapidly. In the
Netherlands, the mayor is head of the police force and is responsible
for public order. The Public Prosecutor also administers the police,
where prosecution for activities punishable by law is concerned.
Naturally, this creates a conflict of priorities. The fight against
serious crime, because of its ramifications beyond and above the scope
of municipalities, is not always seen as a local policing priority. In
order to ensure good consultative agreements, regular so-called
tripartite discussions are held between the mayor, the public
prosecutor and the local chief of police. Environmental matterr, are as
yet seldom raised in the talks. In only a few municipalities does ths
alderman responsible for environmental matters take an active part in
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INTERNATIONAL ENFORCEMENT WORKSHOP 49
the discussions. Nonetheless, the state police force, which operates
at district (regional) level in municipalities with a population of
below 25.000, has appointed environmental co-ordinators (in an
advisory capacity). Throughout the country, the formation of
environmental regions is currently being implemented, through the
availability of the additional government funding which I met7tioned
earlier, since municipalities can only act concurrently to provide
themselves with the necessary professional know-how in the aanner
required. Some 60 regional forms of co-operation will be set up AS a
result. They will provide a basis for co-operation between
municipalities in accordance with policy. Because this therefore
removes the problem of scale for the municipalities, it also creates
an appropriate level of communication with other authorities and with
the judiciary and police on the matter of how to agree to activities
iri accordance with policy, at exactly the point where these activities
overlap as a result of different laws.
To emphasise once again the fact that the consumers of the policy will
benefit from greater attunement between authorities, I shall offer two
examples of widely-represented simple businesses:
A butcher's shop, which falls within the framework of a Nuisance Act -
AMvB (Order in Council), also falls within the terms of a municipal
discharge regulation covering discharges into sewers. The butcher has
to deal with only one competent authority. A livestock farmer, on the
other hand, may have to contend with the investigative activities of
perhaps as many as four competent authorities, namely:
1. the municipality, responsible for the Nuisance Act;
2. the province, for the Decree on Animal Waste Products, under the
Soil Protection Act;
3. the General Inspectorate, Ministry of Agriculture, in charge of
accounting of animal waste products under the Animal Waste Products
Act, and
4. the district water boards, should any discharges find their way
into surface water.
In addition, the regular police force can become involved as part of
their powers to conduct general investigations.
It seems clear to me that separate and individual action is not
particularly effective, as well as being impossible to "sell" to those
affected by it, who will faced with a stream of officials coming and
going. It is far better to benefit from mutual information and
insights, and to operate as far as is possible, a common inspectorate.
It is a well known fact that if a discrepancy is located in one area,
others are likely to be found elsewhere, and this being so, a better
result can be achieved through concerted action.
III. What conclusions, then, can be drawn from the situation which I have
outlined? One is that legislation is too disjointed. It is certainly
most inefficient for simple businesses, which constitute around 50% of
the total number of industries covered by a Nuisance Act, to have to
contend with a multiplicity of authorities from the very outset. An
integral environmental licence, to be issued under the shortly-to-be-
revised Environmental Protection (General Provisions) Act will do inurrh
to improve matters, though still not enough. In any case, implementing
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50 INTERNATIONAL ENFORCEMENT WORKSHOP
orders and water quality covered by the Surface Waters Pollution Act
will be exempted from it. But precisely because legislation is so
disjointed, co-operation in the area of enforcement is so urgently
needed.
The following matters should form subjects for co-operation:
1. Minimal co-ordination between the various proposed activities and
projects. To use the example of the livestock industry once again:
an attempt should be made to prevent a situation in which week 1
sees the arrival of representatives from the municipality, followed
by provincial inspectors or the general inspectorate in week 2. As
far as possible, a visit should be arranged by several authorities
in conjunction, or (better still), a visit by one or two bodies
could be made on behalf of the other(s);
2. The necessary co-ordination outlined under paragraph 1. almost
automatically means that during mutual consultation, priorities are
laid down which are subsequently translated into specific
enforcement measures. However, these priorities should be
incorporated in a general environmental policy. Enforcement is only
part of the integral regulatory process: without a valid licence,
little can be achieved by enforcement. Naturally, monitoring
activities, too, afford more insight into whether a permit is
operating adequately. Both permit-granting and enforcement
activities should, in addition to other activities (such as
information and communication), be translated jointly into
priorities as well as posteriorities.
3. Collaboration can then be translated into agreements on the
allocation of roles between the relevant bodies in the
implementation of various projects.
4. Obviously, co-operation should be chiefly directed towards tackling
activities which pose a threat to the environment or at industries
which attract the concern of more than one particular body. It does
not yet seem practical to make those industries which, for example,
only have dealings with municipalities, the subject of combined
activity. Think of the example of the butcher in this instance. For
the so-called "bulk" of enforcement tasks, general guidelines at
regional level could be given. The police, too, will play an
important role in the "bulk" of the tasks. Administrative
enforcement is the main priority here. It will also be useful if
the question of where specific tasks could most efficiently be
carried out could be discussed. It may, for example, turn out that
specific executive tasks are not being applied in the most
appropriate place. So, for example, municipal authorities or the
police force might be a better choice for keeping an eye on the
operations carried out by a scrap dealer than would the provincial
authorities, even though they are the appropriate authority to do
so under the law.
5. Municipalities should organise themselves into regional
associations, in order to be able to fulfil their environmental
tasks adequately. This would give an impetus to horizontal co
ordination. The vertical intergovernmental dialogue necessary to
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INTERNATIONAL ENFORCEMENT WORKSHOP 51
successful enforcement can be allied to this. In addition, special
tripartite consultations between mayors and aldermen with
responsibility for environmental matters on the one hand and the
Public Prosecutor and police chiefs on the other can also b
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52 INTERNATIONAL ENFORCEMENT WORKSHOP
present form. The process of legislation, too, has not made the
process of co-operation any easier. One could, therefore, quite
readily imagine that the provinces will begin to take over some of
the tasks of, for example, the district water boards or the special
investigative services, such as the General Inspectorate. Tn this
way, an integral environmental (enforcement) policy would be given
a more satisfactory impetus (functional organisations operate by
definition in a disintegrative manner), and in so doing, the number
of instances in which co-operation would be required would be
drastically reduced.
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ENVIRONMENTAL LAWS AND THEIR EXECUTION IN THE FEDERAL REPUBLIC OF GERMANY
Prof. Dr. D. tibing and Dr. L. Kropp
TUV Rheinland, Am Grauen Stein, 5000 Koln 91, Federal Republic of Germany
1 . Introduction and fundamentals
The modern industrial society generated a great wellbeing of man due to the use
of technology. This, however, also leads to environmental impact and safety
risks to a large extent.
Safety and environmental policy must therefore intend to reduce impact, hazards
and risks to man and nature as effective as possible.
The main principles of environmental policy in the Federal Republic of Germany
are
the prevention principle
the "polluters pay" principle
the cooperation principle
The COOPERATION PRINCIPLE, requires the joint activity of official parties, the
plant operators and the public to avoid environmental damage, hazards or
molestations. It also requests international cooperation in environmental
policy.
The "POLLUTERS PAY" principle requests that whoever has caused a damage must pay
for its consequences. It therefore is an economic means to reduce emissions at
the sources.
The PREVENTION PRINCIPLE asks to avoid environmental impact, hazard or damage
instead of repairing damages. This goal shall be reached by
Setting Uniform Emission Standards
Setting Environmental Quality Objectives
Applying Cross - Media Approaches
UNIFORM EMISSION STANDARDS mean maximum emission standards or emission limits
which can be attained when applying the state of the technology or even the
state of the science. Prevention also requires revision of these emission
standards from time to time.
ENVIRONMENTAL QUALITY OBJECTIVES mean maximum environmental standards being set
so that e.g. pollutants do not harm critical receptors like man and nature as
well as the quality of air, of water and of soil.
Applying CROSS-MEDIA APPROACHES mean that different media like air, water, soil
and their interrelationship are considered together - not separately. A very
concrete tool for this is the guideline of the European Community of the German
law on Environmental Impact Assessment for certain and private projects.
Therefore, when fixing environmental quality objectives the consequences with
respect to other media have also to be taken into account.
The measures to achieve environmental protection policy in the FRG are in
general:
measures with respect to plants
measures with respect to products
measures with respect to regions.
Environmental protection with RESPECT TO PLANTS is practiced via the strong
performance of licensing procedure for every plant. Especially emission stand-
ards must be met and modern technologies must be employed. More details will be
presented later.
Environmental protection with RESPECT TO PRODUCTS is for instance done by
applying the law and its regulations for the introduction of chemical substances
(Chemikaliengesetz, Gefahrstoff-Verordnung). Each chemical substance has to be
checked in advance that adverse effects will not arise before the substance is
brought into use. Another example of measures with respect to products is the
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INTERNATIONAL ENFORCEMENT WORKSHOP
limitation of sulfur content in fuels and of lead content in petrol.
Environmental protection with RESPECT TO REGIONAL ASPECTS is attained by e.g.
clean air plans or noise reduction plans as they are required by the environmen-
tal protection laws and its regulations. Sorting from the actual environmental
situation the dominant responsible sources are evaluated where reduction
measures yield the highest effect on environmental impact.
Whereas these instruments are more reactive measures, there are also obligatory
preventive instruments with respect to regional aspects as the water handling
plans (Wasserwirtschaftsplan), the waste handling plans (Abfallwirtschafts-
plane), regional planning (Regionalplanung und Raumordnung), land use plans
(Bauleitplane), preventive site planning (Standortvorsorgeplane) and others.
2. Organisation and legislation
The responsibility in the frame of the environmental policy is with the federal
government (figs. 1 and a). The federal government or the respective ministry
define contents and procedures of the different objectives as well as emission
and quality standards. So, the federal government is the legislative organiza-
tion while the federal states are the executing ones. They have to watch over
and to advice the licensing and supervising bodies when performing their tasks.
The licenses for chemical plants, waste handling plants and similar plants are
given by the regional administration (e.g. Regieringsprasident), while licenses
for smaller industrial works or power stations are given by the Factory Inspec-
torates (Gewerbeaufsichtsamter).
Fig. 1
Environmental Responsibilities
Legislation:
Federal Government
Federal Ministries
Execution: State Ministries
(licensing) President of Regional Administration
(Regierungsprasident)
(supervision) Factory Inspectorates
(GewerbeaufsichtsSmter)
Technical and
scientific
assistance:
Environmental Protection Agency
(Umweltbundesamt)
State institutions on environmental
protection
Technical and
scientific
support:
Independent experts or expert
institutions (e.g. TUV)
TOV Rheinland
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INTERNATIONAL ENFORCEMENT WORKSHOP
55
Fig. la
Law binding
for everyone
2.
Binding only
for administr.
authories,
not for courts
3.
Scientific
information
Federal Parliament
and Second Chamber
BImschG
Federal Governm.
and Second Cham.
Implementation
Ordinances
(total: 6 BIschV)
Federal Governm.
and Second Cham.
Technical
Instructions
• TI Air
• TI Noise
VDI, DIN
Technical
Guidelines
TtJV, Institutes
Expertises
State Government
State
Parliament
State Immission
Protection Laws
Planning Laws
State Ministries
Regulations
» Statutes
• Guidelines
TClV Rheinland
The supervision of all plants mentioned before is in the responsibility of the
factory inspectors. This supervision concerns the environmental aspects, the
safety aspects as well as the working place aspects.
Assistant technical and scientific bodies to the environmental ministries are
the federal environmental protection agency (Umweltbundesamt) and the federal
state institutions for environmental protection (Landwsanstalten fur Umwelt-
schutz). The latter ones give scientific advice as well to the state ministries
as to the licensing and supervising bodies, they also are responsible for the
establishing of e.g. clean air plans and regional data collection on environmen-
tal impact. The Environmental Protection Agency give scientific advice to the
federal government and coordinates research and development projects of environ-
mental concern.
All the official bodies are supported, e.g. in the licensing procedures by
independent experts or expert organizations like the TUV which are accepted by
the state ministries as qualified and independent.
The administrative tools for achieving the environmental policy are the corres-
ponding laws (about 20), ordinances, regulations (more than 40) and administra-
tive guidelines, examples of which are listed in figs. 2, 3, and 4.
The requirements of ordinances are compulsory for the plant operators while the
administrative regulations are obligatory for the licensing or supervising
authorities.
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56 INTERNATIONAL ENFORCEMENT WORKSHOP
Fig. 2
Environmental Laws
Bundes-lmmlsslonsschutzgesetz Waschmlttelgesetz
(concerns air, noise, radiation, light, heat, vibration) (detergents)
Wasserhaushaltsgesetz Pflanzenschutzgesetz
(concerns water, groundwater, wastewater) (protection of plants)
Abwasserabgabengesetz Bundes-Naturschutzgesetz
(water cess act) (protection of nature)
Abfallgesetz Bundes-Waldgesetz
(concerns solid, liquid, special wastes) (protection of forest)
Chemikaliengesetz Bodenschutzkonzeption
(introduction of chemical substances) (protection of soil)
DQngemittelgesetz yvp - Gesetz
(fertilizers) (environmental Impact statement)
TOV Rheinland
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INTERNATIONAL ENFORCEMENT WORKSHOP 57
Fig 3 Environmental Ordinances
GroBfeuerungsanlagen-Verordnung
(large combustion plants)
Verordnung genehmigungsbedQrftige Anlagen
(plants/installations to be licensed)
Verordnung Genehmigungsverfahren
(principle of licensing procedure)
Storfall-Verordnung
(major accident hazards)
Gefahrstoff-Verordnung
(handling of dangerous materials)
Abwasserherkunfts-Verordnung
(sources and origins of waste water)
Artenschutz-Verordnung
(protection of species of plants and animals)
. , Administrative Regulations
- Technical Instruction for maintaining air quality of 1986
(TA Luft)
- Technical Instructions for protection against noise of 1968
(TA Larm)
- Plant specific regulations on waste water levies
- Technical Instruction for avoiding and handling wastes
(TA Abfall)
«*-•»-—
TOV Rheinland
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3. Current
Industrial and economic development lead to environmental and ecological impact,
molestations, hazards or even damages. Some remarkable events of public and
official concern on environmental aspects were:
The Seveso accident with high air and soil pollution and - some years later
- with problems of waste tourism.
Flixborough incident with high damage within the plant.
The forest damages in the German black forest and in Czekoslowakia as well
as the acidification of
Scandinavian seas.
The Chernobyl accident with increased radioactivity in Europe.
The Sandoz incident with heavy hazards to aquatic life in the Rhine.
Actually, the soil contamination at sites of old plants raise problems when
reusing these areas especially for living or recreation.
All these events raised the necessity and engagement of administration and
public in environmental affairs and initiated revisions and amendments of laws
and regulations. The most important shall be discussed in the following.
3.1 Main Environmental Law (Bundesimmissionsschutsgesetz)
The fundamental law for the protection against air pollution is the Federal
Environmental Protection law of 1974, a successor of the old Trade Ordinance of
the 19th century. The main administrative regulation to this law are the techni-
cal instruction to protect air quality (so called TA Luft or TI Air) and the
technical instruction for the protection against noise (so called TA Larm or TI
Noise).
The objectives of the TA Luft (fig. 5) were to restrict the release of polluting
substances by setting emission limits and to reach air quality standards. The
first TA Luft came into force in 1964 even 10 years before the Environmental
Protection law was introduced. In the mean time the TA Luft was revised three
times.
Fig. 5 Contents and Requirements of TA Luft
(Regulation on procedures of licensing)
- Basis of procedure
- Emission limits dust
gases
carclnog.
- Air quality "standards
- Measurement of
ambient air quality
aera depending on
- Continuous emission
supervision
- Special requirements
for plant types
1986
yes
3 classes
20 components
3 classes
107 components
3 classes
25 components
13 components
yes
stack height
9 components
- 50
1983
yes
3 classes
48 components
3 classes
122 components
3 classes
13 components
yes
stack height
9 components
» 15
1974
yes
3 classes
56 components
3 classes
127 components
-
8 components
yes
4 x 4, 8 x 8,
12 x 12 km2
9 components
« 15
1964
yes
dust
-
-
8 components
yes
radius 3 km
dust/S02
7
TOV Rheinland
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INTERNATIONAL ENFORCEMENT WORKSHOP 59
The 1964 version requested formalized licensing procedures for such industrial
plants listed in a catalog of environmentally relevant plants. Aft that time it
was introduced to measure the ambient air quality in the surrounding of the
plant (circle with 3 km radius). Ambient air quality standards were set for 8
pollutants. Emissions were to be released via stacks with special requirements.
Emissions standards were fixed for the main components dust and sulfur dioxide.
Special requirements were requested for 7 plant types.
The first revision of the TA Luft in 1974 introduced further emission limit
values for 3 classes each of (56) dust and (127) gaseous pollutants. Continuous
emission measurements were asked for 9 air polluting components. Special
requirements were requested for 8 more plant types.
The 1983 revision of the TA Luft then included ambient air quality standards for
5 more components. These standards were stronger by two means: Firstly, the
figures were reduced and secondly, the differential geographical area of judge-
ment (Beurteilingsflach) was reduced from 4kmx4kmto1kmx1km size.
The latest amendment of 1986 extended the special emission requirements to 35
more plant types. It included also that bad smell and its molestation impact had
to be taken into account. Finally, the 1986 version requested the retrofitting
of existing plants and installations until 1994 under the following conditions:
If emissions exceeded the new emission standards by a factor of 3, of 1.5 or of
1 the maximum time available for reduction was set to 3, 5 or 8 years.
Some typical emission standards are shown in fig. 6.
Fig. 6 Emission limits - General Requirements
(TA Luft 1986)
pollutant
carcinogenic
class I
class II
class III
dust
dust (inorganic)
class I
class II
class III
gaseous (inorganic)
class I
class II
class III
class IV
gaseous (organic)
class I
class II
class III
massflow
g/h
> 0,5
* 5
>25
f- 500
< 500
* 1
* 5
*25
;> 10
> 50
> 300
>5000
* 100
>2000
»3000
concentration
mg/m3
0,1
1
5
50
150
0,2
1
5
1
5
30
500
20
100
150
A
TUVRheinland
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60 INTERNATIONAL ENFORCEMENT WORKSHOP
Depending on the mass flow of pollutant concentration limits are set as the
example for dust illustrates: below a mass flow of 500 g/h the emission limit is
150 rag/m maximum.
Three years before this last TA Luft revision came into force a reduction
program of the main pollutants was initiated for the large combustion plants. A
corresponding ordinance was elaborated with strong emission limits of S02 and NOX
for new plants.
Stringent measures had to be realized on due course at operating plants (so
called "old" plants).
The objectives of the 1983's ordinance on large furnaces were to reach emission
values of less than 400 mg SO^/m3 and about 800 to 350 mg N0x/nr for new plants.
The goals for old existing plants depended on the expected life times. A time
schedule correlated with more or less strong emission limits were set up in the
large combustion plant ordinance. While the S0,-limit was fixed one, the NOX-
reduction should follow the dynamic principle or best reachable means (Dynami-
sierungsklausel). Some data on emission limits are given in (fig.7) for orienta-
tion. The environmental minister's conference some months later fixed the goal
for the N0x-emission limit to less than 200 mg N0x/m3.
Fig. 7 (Strongest) Goals for Emission Limits (mg/m3)
according to Large Furnace Ordinance
fuel type
new plants
S02
NOX (NO2 )
dust
HF
HCI
solid
400
800/200
50
15
100
liquid
400
450/150
50
5
30
gaseous
35
350/100
5
-
-
old plants
S02
NO, (N02 )
dust
400
1000/200
80
400
700/150
50
-
500/100
-
TUV Rheinland
Finally, until 1993 old plants ought reach the requested emission limits or
should be replaced by new plants.
It is expected that due to these measures the sulfur-dioxide emission of power
plants will be reduced until 1993 at the latest against 1982 as follows:
Sulfur dioxide by about 2/3
nitrogen oxide by about 50% and
dust by about 1/3.
A third regulation in the field of air pollution deals with the reduction of air
pollutant emissions from motor vehicles and domestic heating by fixing maximum
pollutant content in fuels (fig. 8).
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INTERNATIONAL ENFORCEMENT WORKSHOP 61
Lead and Sulfur Content in Fuels
lead content effective from
0,4 g/l 01.01.1972
0,15 g/| 01.01.1986
0,015 g/l (limit) (leadfree)
= 0,001 g/l (real)
sulfur content
0,55 %
0,5 %
0,3 %
0,2 ... 0,15
effective from
05.1975
05.1976
01.1979
under discussion
The law on the lead content in gasoline of 1971 (rev.1976)
requested maximum permissible values of
0,4 Pb/1 from 01.01.1972 and
0,15 Pb/1 from 01.01.1986 onwards.
The ordinance on gasoline quality of 1985 defines lead-free qualities of fuels
with, values of 0,015 Pb/1, in practice the lead contents amounts to 1 or 2
mg/m , only.
The ordinance on the sulfur content in fuel of 1975 requested values of 0,55 %
als per May 1975, of o,5 % as per May 1976 and 0,3 % as per January 1979. At
present a value of 0,15 % is discussed as goal in the Fed. Rep. of Germany while
in the European Community a reduction to 0,2 % is seen as strongest limit.
These measures and the introduction of low pollution vehicles shall reduce the
emissions from the car traffic as follows:
Nitrogen oxide by about 50 % and
hydrocarbon by about 2/3.
Taking all aforementioned measures together due to the
large furnace ordinance
technical instruction on air pollution (TA Luft-emission reduction
measures)
introduction of lead free petrol with N0x-reduction
reduction of sulfur content
will lead to an overall r
and dust as shown in Figure 9.
The objectives of the technical instruction on noise protection (TA Larm or TI
Noise) are:
measure for the protection against noise must be in accordance with the
actual state of technology of noise abatement.
environmental noise load objectives in the plants's neighbourhood must be
met.
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62
INTERNATIONAL ENFORCEMENT WORKSHOP
o -1
1 .
1
n .
^m
':.:;-
i ,
•P«
i
•••
i ,
•¥•
..'.
i
s-jm
^m
i =^»
NOX
Fig. 9
Dust
'66
'74
'78
'82
'86
year
Development of Air Pollution
TUV Rheinland
Otherwise a license to operate industrial facilities cannot be given. The
environmental noise laid objectives are different with respect to night and day
levels and with regard to the use of the areas to be protected. These values
cover a range between 70 dB (A) and 35 dB (A).
In contrast to the TA Luft (TI Air) the TA Larm (TI Noise) do not state emission
limits.
3.2 Law ont the Water Protection and Waste Water Handling
Though the highest environmental concern was with the air the water was the
second important medium to be protected. There was the first Water Act set up in
Preussia (Preussen) in 1935. It was then superseded by the German law on Water
Protection and Waster Water Handling in 1957. Meanwhile it was amended or
revised 5 times (the latest revision is of 1986). The objective of the water and
waste water law is to regulate the handling and taking care of all kinds of
water: surface waters, coastal waters and ground water. As the water is one
important part of the natural ecosystem it must be handled economically and
pollution shall be avoided. The law also regulates the licensing procedure for
pipelines to carry substances dangerous for the waters.
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INTERNATIONAL ENFORCEMENT WORKSHOP
63
Other requirements of the law are:
to supervise the state of the water and waste waters
to name responsible persons in the operator's plants for water affairs
(Wasserschutzbeauf tragter)
to charge pollution load in the waste water in order to introduce public
measures e.g. water cleaning plants
to control pollution according to the rules of technology and in case of
dangerous substances according to the state of technology.
Especially the last mentioned requirement of water control with respect to
dangerous substances was introduced in the 1986 version. That means also that
primary measures to reduce emissions at the sources must be performed in
addition to cleaning measures.
The 5th revision of the water use law of 1986 introduced new parameters and more
substances (fig 10):
From 01.01.1989 levies are raised for organic halogen-compounds and for the
heavy metals chromium, nickel, lead and copper from 01.01.1990 onwards. This
waste cess act has come into force in 1989.
Fig. 10
Waste Water Cess Law of 1986
substances "pollution unit" concentration amount level
as per 01.01.1989
organic
halogene
compounds 2 kg (as CD
metals
as per 0101.1976
mercury (Hg)
cadmium
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64 INTERNATIONAL ENFORCEMENT WORKSHOP
Further compounds to be included in the ordinances in the next future (01.01.19-
92) will be ammonia and phosphorus.
Following the prevention principle technical requirements for the water protec-
tion will also be asked for plants and installations for production, handling
and use of dangerous substances in addition to the present requirements for
plants for storage, trade and filling.
3.3 waste law
Another concern is the waste handling and disposal. We remember the problematic
with the contaminated soil from the Seveso accident and we know about the
problem of milk powder we have as radioactive contaminated substance stored in
the Fed. Rep. of Germany since the Chernobyl accident.
The former German waste (removing) law of 1976 primarily regulated the handling,
removing and depositing of wastes with lowest environmental impact. The most
important new requirement of the waste law of 1986 is to avoid and to reuse
wastes as effective as possible. So, the priorities for waste handling are
to avoid wastes
to reduce wastes
to recycle wastes or waste components.
to remove wastes
The main objectives of the law are to avoid any hazards or damages to the health
of human beings, to animals, to soil, water and plants as well as to avoid
environmental impact due to air pollutants or noise. In order to manage the
waste law a technical instruction on waste handling iTA Abfall or TI Waste)
especially with respect to depositing areas, to waste burning plants, to
chemical physical and biological handling of wastes and other problems is in
preparation.
It is also introduced in the law for the first time that residues or waste
components must be taken back by the producer or it must be guaranteed that
products are reused or deposited without environmental damage. So, for instance,
the suppliers of motor oils are obligated to take back the used oil.
The waste law asks the federal states (Bundeslander) to establish plans for
removing wastes and for the siting of waste handling, waste burning and waste
depositing plants. The operator of such plants has to document kind and amount
of wastes handled. He also must name a person responsible for wastes (Betriebs-
beauftragter fur Abfall). The law asks for licensing procedures for these types
of plants.
The technical instruction on waste handling (TA Abfall) is under discussion. The
implementation of this regulation shall fix licensing and handling procedures
and this shall help to reduce environmental risks. The means to reduce the
amount of wastes and their reuse and recycling shall be implied as much as
possible. Wastes shall be collected, handled, stored and removed following the
best available technics.
3.4 Soil protection
Another part of environmental concern is connected with the problematic of
pollutant impact in the ground and soil from former industrial activities and
former depositing. A sanitation concept for the old impacts in the soil is
necessary.
Therefore, strongly correlated to the waste handling is the protection of soil.
Beu also air pollution and water polluting influence the soil quality. Though it
is not the intention to introduce a "SOIL LAW" the federal government establis-
hed a soil protection program (Bodenschutsprogramm).
Two main fields of activity are mentioned.
to economically use the soil
to avoid or minimize the input of pollutants from industry, trade, traffic,
agriculture and households into the soil.
Whereas air pollution and water pollution is recognized quite soon after release
pollution of the soil is perceived only wit delay because pollutants are accumu-
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INTERNATIONAL ENFORCEMENT WORKSHOP
65
lated over long times until the damage is experienced. In our country we by now
have knowledge of more than 40,0000 contaminated sites with high impact (in
Germany named Altlasten, Altstandortre, a term that stands for a burden handed
down from the past). It must be expected to find about 30 to 40,0000 more
problematic sites. About 30 % of all will have to be reactivated or sanitation
is necessary.
The protection of soil was thought in the past to be sufficiently regarded upon
by introducing limit values in the other laws e.g. dust fall emission standards
in the air laws and regulations on quality standards of deposited wastes from
water cleaning installations (Klaranlagen). The latter data however are only
valid for areas of agricultural use.
Some more experience is also necessary with respect to soil impact with persis-
tent substances. We only have rough knowledge about soil pollution values as
orienting data like the data given in (fig. 11). There are mentioned somewhat
"tolerable limits" for heavy metals from German, Dutch an AU-practices.
The German data define the tolerable limits to bring out wastes from water
cleaning plants into agriculturally used soil. The Dutch data correspond to
limits when (1. value) further investigations of the soils are necessary and
when (2. value) there is a sanitation necessary. The US-date are values of
measured background contents in the soil.
Fig. 11
Limit Values of Heavy Metals in Soil (tng/kg)
heavy metal
arsenic
cadmium
cobalt
chromium
copper
mercury
molybdenum
nickel
lead
antimony
selenium
tin
titanium
vanadium
zinc
FRG
20
3
SO
100
100
2
5
50
100
5
10
50
1
50
300
NL*
30
S
50
250
100
2
40
100
150
50
500
/ 50
1 20
1 300
/ 800
/ 300
710
/200
/ 300
/ 600
-
-
/ 300
-
-
/ 300
US-EPA
1
0,01
1
1
2
0,01
0,2
5
2
0,1
20
10
- 50
-0,7
- 40
- 1000
- 100
-0,3
- 5
- 500
- 200
-
- 2
-
-
- 500
- 300
first value: further investigation necessary
second value' soil to be recultivated
T(JV Rheinland
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66 INTERNATIONAL ENFORCEMENT WORKSHOP
The recommended methodology for the treatment of contaminated sites and old
waste e depositions follows five steps after the initial identification:
1 . The initial estimation of an identified waste deposition stite ("Erstbewer-
tung") resulting in a first appraisement of the site and an initial
approach to ongoing activities.
2. The detailed site exploration ("Standortsicherung") including geology and
hydrogeology of the site, soil mechanical investigations and the identifi-
cation and quantitative determination of the waste types as well as an
analysis of the potential risk.
3. The safety assessment of the site ("Bewertung") and identification of
safety categories:
non-dangerous, i.e. release out of monitoring is advisable,
no present danger, i.e. continuous monitoring recommended,
dangerous, i.e. priority for recultivation has to be recommended,
acutely dangerous, i.e. emergency protective action is necessary
4. The development of a recultivation concept and the final recultivation of
the site ("Sanierung") including the succeeded monitoring of the recultiva-
ted site to prove a long-term success of the recultivation for air, soil
and groundwater.
5. The final estimation of the success of the recultivation ("Bewertung des
Sanierungserfolges").
We realize that from the soil protection program there is a connection to the
AIR, WATER, and WASTE LAWS, In each field it is necessary to reduce emissions at
the sources according to the state of technology and in each field control
measures are required to reduce the release of emissions.
3.5 Law on the Environmental Impact Statement (UVP-gesetz)
Especially, the soil protection shows the necessity of cross media approaches.
One tool to handle this cross media and overall approach is the environmental
impact assessment (EIA). The EIA aims to protect air, water, soil, climate,
landscape as well as plants, animals and nature, goods and cultural relicts and
their interdepences.
The guideline (EIA) of the European Community set up in 1985 is transformed into
German regulation and law by February 1990. My personal opinion is that the EIA
is an instrument or better to say a procedure that must start at a very early
stage of project planning and that would allow and force also public information
and discussion. This need not result in more and longer administrative proces-
ses. It can help to find better and more accepted solutions in environmental
protection. It need not necessarily result in a blow up of the actually practi-
ced licensing procedures but it can force to stick to the relevant and most
important environmental problems during planning and licensing.
3.6 Major Accident Hazards of industrial Activities (Storfall-Verordnung)
In the European Community as well as in the Fed. Rep. of Germany the Seveso
event initiated activities to establish stringent regulations and directives in
order to reduce the probability for industrial accidents in general, and
especially those with releases of substances.
In the Fed. Rep. of Germany an ordinance concerning major accident hazards was
published already in 1980 and revised in 1988. The objectives and requirements
were:
A safety analysis must be performed for certain industrial plants in which
certain hazardous chemical substances are handled, stored or amy be generated
due to malfunction.
A safety report must be prepared and it is to be kept at the disposal of the
supervising authority (factory Inspectorates).
The main objectives of this ordinance are to avoid accident hazards and to set
precautions to keep impacts as low as possible in case of accidents.
Additional administrative regulations define details which have to be taken into
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INTERNATIONAL ENFORCEMENT WORKSHOP 67
account when performing the safety analysis and its reporting. Further to that,,
the scope of application was defined, i.e. which industrial plants (more than 20
different types) are concerned and which substances (about 320 different compo-
nents) are handled.
It is requested to perform safety analysis for all plants which require a
license. Plant operators are obliged to keep actual listings of all materials
stored in the plant. These listing must be made available to the supervising
authority in order to allow for adequate measures in case of an accident.
Plant operators have to deposite the safety analysis report with the authority.
This shall allow better planning of alarm plans contingency plans.
A revision of the German major accident hazard ordinance which came into force
in 1988 lead to a severe enforcement and now covers approx. 4000 facilities
within the FRG.
4. Execution of Environmental Policy
The installations requiring licenses are listed in detail in a Federal Govern-
ment ordinance (4. Ordinance to the Environmental Law, 4 BlmSchG). The obligati-
on of the operator, the prerequisites for licenses and the requirements in
relation to erection, nature and operation are laid down in another ordinance
(9. BlmSchV). It lays down the license application procedure:
written application, drawing up of technical documents, publication in the
official gazette and daily news-paper, presentation for inspection over a 2
months period by the public concerned, written notice of authorization. Major
changes to those installations which require a license for operation must also
go through the license application procedure, unless it is obvious there is
extensive improvement. Where justified, additional official directions are
possible at any time, as is cancellation of license and closing down and removal
of installation. In the case of smaller installations with low levels of
emission, a "simplified" licensing procedure applies in which publication does
not take place.
A number of -at present 16 - ordinances to the main environmental law (BlmSchG
are existent:
1st ordinance (ordinance covering small boiler plants - 1st BlmSchV)
2nd ordinance (ordinance for restricting emissions of highly volatile
halocarbons - 2nd BlmSchV)
3rd ordinance (ordinance covering the sulphur content of light heating oil
and diesel fuel - 3rd BlmSchV)
4th ordinance (ordinance covering installations requiring authorization - 4th
BlmSchV)
5th ordinance (ordinance covering immission protection representatives - 5th
BlmSchV)
6th ordinance (ordinance covering expertise and reliability of immission
protection representatives - 6th BlmSchV)
7th ordinance (ordinance for limiting the discharge of wood dust - 7th
BlmSchV)
8th ordinance (ordinance covering lawnmower noise - 8th BlmSchV)
9th ordinance (ordinance covering the basic principles of the authorization
procedure - 9th BlmSchV)
10th ordinance (ordinance covering the restriction of polychiorinated biphe-
nyls PCB, terphenyls PCT and vinyl chloride VC - 10th BlmSchV)
11th ordinance (emission declaration ordinance - 11th BlmSchV)
12th ordinance (installation disruption ordinance - 12th BlmSchV)
13th ordinance (ordinance covering large-scale boiler plants - 13th BlmSchV)
14th ordinance (ordinance covering installations for defence of the country -
14th BlmSchV)
15th ordinance (ordinance covering building machine noise- 15th BlmSchV)
16th ordinance (ordinance covering protection against traffic noise - 16th
BlmSchV)
The main ordinances for licensing procedures of technical installations are the
4th and 9th BlmSchV:
4th ordinance (ordinance covering installations requiring authorization - 14th
BlmSchV)
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68 INTERNATIONAL ENFORCEMENT WORKSHOP
This ordinance lists in detail all installations for which a formal authorizati-
on procedure must be carried out and which can be carried out and which can be
dealt with according to a simplified procedure. A formal application procedure
is requested for all large-scale installations with large emissions, thus for
example, boiler plants above 10 MW thermal output, waste disposal plants,
crushing plants, melting plants foundries, chemical manufacturing plants,
refinery installations, large-scale painting installations, and many others. The
simplified procedure applies to installations which are less important in terms
of emissions, i.e. smaller installations as generally found in industrial firms.
The authorization requirement extends to intended plant components and proces-
sing steps. It also extends to ancillara facilities which are linked spatially
and operationally to plant components and which may be important in the produc-
tion of harmful environmental effects or in giving rise to other risks, major
damage or nuisance.
Existing installations for which no formal authorization exists but which
require authorization according to the listing of installations in the 4th
BlaSchV must be reported to the factory inspectorate responsible.
The authorization requirement extend not just to the main installation but to
all associated ancillary equipment. For instance, in a painting installation it
not only extends to the painting line but also to facilities for cleaning and
degrasing, evaporation and drying, reheating and effluent cleaning.
9th ordinance (ordinance covering the basic principles of the authorization
procedure - 9th BImSchV)
This ordinance lays down the rules for filing applications, the type of docu-
ments, the involvement of the authorities, the obtaining of expert opinions,
discussion procedures, the preliminary notice granting authorization (see fig.
12 and 12a).
In detail: the authorization procedure is necessary for the building and
operation of, as well as for major changes in an installation, The application
is to be filed in writing with the authorities by the project planner and
operator and in particular must contain all details regarding the nature and
size of the installation. Included here are
an explanation of the intended process with details of all technical data
details about the type and quantity of material being used, the by-products
as well as resulting residues
details about possible secondary reactions and by-products in the case of
malfunctions in the process
details about the nature and extent of emissions', their spatial and
temporal distribution as well as details of the circumstances of the escape
details of measures intended for protection from harmful environmental
effects, for reducing and measuring emissions and immissions for disposal
of residues and waste materials and finally for industrial safety.
In many cases of such applications TUV Rheinland is engaged in
a) helping the applicants when preparing the formal applications and
b) preparing expertises with respect to environmental matters as emission and
environmental load forecasts. This concerns as well air pollution as noise
abatement matters as soil and water pollution matters.
These expertises are either requested from the applicants or from the authori-
ties.
The licensing authority checks the application documents, their completeness
and, where necessary, arranges for their completeness and, where necessary,
arranges for their publication and availability for inspection by means of an
announcement in the official notification paper and local newspapers.
The announcement must include the first and last day of the public inspection
period; there should be a week between the announcement of the project and the
first day of the inspection period. Where documents contain confidential
business and operating details, these can be replaced by a general representati-
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INTERNATIONAL ENFORCEMENT WORKSHOP 69
on of the contents. Those authorities also involved in accordance with the
BImSchG are to be approached for their opinion at the latest at the time of
public announcement. The applicant is to be notified of objections to the
project. The licensing authorities can obtain a specialist report or expert
opinion if they regard it as necessary for checking the application.
The objections placed during the inspection period are to be discussed at a
specially arranged meeting. The discussion meetings is not public; the represen-
tative of the licensing authority is responsible for supervising this and he
also decides who has to take part.
Very often TUV Rheinland experts also take part at these discussion meetings as
they have prepared special expertises or as they have special experience on the
discussed environmental matter. In general the authorities ask for our indepen-
dent assistances.
The minutes of the discussion meeting are recorded; these are to be passed on to
the applicant and, on request, to those who have raised objections in time. The
licencing authority has to give an immediate decision once all the relevant
requirements for assessing the application have been determined. Those who have
raised objections must also be informed of consent.
The procedure for authorization of installation allows for applications for
partial authorization and the granting of a preliminary notice in the way shown
in the flow chart (fig. 12) A preliminary notice is given with certain reserva-
tions and does not authorize the building of parts of the installation.
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70
INTERNATIONAL ENFORCEMENT WORKSHOP
Fig. 12
Procedure for
simplified
authorization
Start of building
No legal remedy
exercised
License
Allocation of the
license to the
spokesman and
the applicant
or by public
announcement
_L
Legal remedy
applied for
(1 month)
_E
Administrative
Court
Procedures
TOV Rheinland
Fig. 13
This part only in
the case of formal
authorization
procedures
Investigating
objections from
affected parties
Public
announcement
Availability for
inspection for
2 months
Expertises from
independent
institutes (e. g. TUV)
Discussion meeting by
the authorities w:th
spokesmen, applicants
and (e.g. TUV) experts
Tl)V Rheinland
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INTERNATIONAL ENFORCEMENT WORKSHOP 71
4.2 Tasks of the Factory Inspectorates
Following the Main Environmental Law (Bundesimmissionsschutzgesetz) and its
regulations the Factory Inspectorates are obliged
to discuss with and to consult the applicant for installations even before
the official application
to check the license application in view especially of environmental and
working place protection
to inspect and examine the facilities after they have gone into operation.
The discussion and consultation before the official application is highly
recommended in order to avoid fixing facts before e.g. the site has been checked
with respect to its environmental impact acceptability.
The license applications are especially checked against environmental regulati-
ons as the technical instructions air and noise (TA Luft, TA La'rm).
The inspection of the facilities in operation is performed regularly. If
requirements are not met additional or supplementary requirements are asked for.
Further to these plant related tasks of the factory inspectorates they assist
those authorities being responsible for town and land use planning. They give
advice to these authorities very often for the sake of the technical plant
operators in order to avoid later concerns between living and industrial areas.
The factory inspectorates are also obliged to pursuit complaints from the public
against environmental damages or molestations.
4.3 Task of the TUV experts
As already mentioned safety and environmental aspects are very complex and ask
for high expertise. This will be available with the operators of technical
facilities but need not be independently available from them. The factory
inspectorates on the other side must keep their authority and should not involve
themselves in technical details or aspects.
The plant operators - originally the steam boiler and pressure vessel opera-
tors - requested more than two hundred years ago independent expert groups
somewhat like a union of steam boiler supervisors to ensure their facilities
from becoming unsafe. These supervisors assisted the operators in an independent
way while checking and controlling their facilities.
Since more than 30 years these experts e.g. TUV Rheinland engineers are also
busy in assisting supervising and consulting the plant operators as well as the
factory inspectrates in environmental matters. TUV experts help the plant
operators in preparing their license application, they perform expertises on
environmental matters as noise prognoses, air pollution forecasts, soil contami-
nation investigations and water contamination measurements for license applica-
tion on behalf of the plant operator or of the licensing authority. TUV experts
take also part when the applications are discussed with the public concerned
because they are first independent and second accepted as experts.
After the plant has gone into operation the independent experts are engaged in
measurements of air pollution, noise or water pollution emission measurements in
order to control the real emission values against the emission limits.
Our experts are also busy in checking the safety analysis established and
performed by the plant operators. In case of deviations of operation data from
licensed data reinforcements of the facilities are necessary. In view of
regional aspects of environmental pollution e.g. air pollution our experts are
involved in establishing clean air plans. That means that extensive investigati-
ons with respect to air, water or noise pollution are performed and analyzed in
order to find the most relevant sources of emissions where reduction measures
yield the highest effects.
Another activity of TUV experts is the checking of continuous emission measuring
apparatus and its proof of suitability. These apparatus are installed in all
large sources e.g. large furnaces to continuously measure the emission concen-
tration. This is one of the main means to guaranty for environmental control.
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72 INTERNATIONAL ENFORCEMENT WORKSHOP
4.4 Cooperation between Applicant. Authority and Experts
In the sensitive field between applicants or operators and authorities effective
solution to fulfil the requests of safety and environmental protection can be
reached only by involving highly qualified and independent experts.
A very good example of successful cooperation between these three partners
facility operator, state authorities and independent experts is seen in techni-
cal plant to be operated according to the German trade order (Gewerbeordnung).
The plant operator plans, erects and operates the facilities following the
laws, ordinances and technical rules introducing his own experiences.
The authorities check if the plants are erected and operated in accordance
with legal requirements. They ask for the judgement of independent and
acknowledged experts in order to fulfil their state's obligations.
The independent experts assist the authorities by supplying and performing
expertises and examinations.
The success of this cooperations can be seen from the fact that large accidents
or damages do nearly no more happen. In cases where regulations are not complete
this cooperation produces practical and acceptable solutions.
In the context of the environmental laws and regulations this cooperation is not
yet foreseen in the same
consequence.
In general the plant operator and the authority stand face to face to another
where the operator has a very high special expertise in contrast to the authori-
ty. A successful cooperation of all three aforementioned groups - operators,
authorities and independent experts - can help to solve raising problems.
5. Conclusion
Let me now come to the conclusion. There are a lot of activities in the environ-
mental control in Germany in order to reduce environmental emissions and impact.
The German large combustion ordinance has its counterpart in the Europe and
Community. Product measures as the fixing of maximum lead content in gasoline or
maximum sulfur content in fuel are discussed in Germany as well as in the
European Community. However, in both cases the German objectives and goals are
stronger than those of the European Community.
The Major Accident H |