VOLUME I
             May 8-10, 1990
         Utrecht, The Netherlands
      Ministry of Housing,
      Physical Planning
     and Environment (VROM)
      The Netherlands

                                                      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

       I I
I I  I I I  I I I
              VOLUME I
                    v> - -r \>,
            May 8-10, 1990
       Utrecht, The Netherlands
    Ministry of Housing,
    Physical Planning
   and Environment (VROM)
    The Netherlands


                             May 8 - 10, 1990
                         Utrecht, The Netherlands
Organized by:

United States Environmental Protection Agency
Netherlands Ministry of Housing, Physical Planning and Environment


            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
            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

                              INTERNATIONAL ENFORCEMENT WORKSHOP

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

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



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

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

                              INTERNATIONAL ENFORCEMENT WORKSHOP
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

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.


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
     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


Cheryl E. Wasserman  1

1 Acting Director, Office of Enforcement Policy, Office of Enforcement,
U.S.  Environmental Protection Agency

      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)

       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,

                                       INTERNATIONAL ENFORCEMENT WORKSHOP
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

   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

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.


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

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

10                                    INTERNATIONAL ENFORCEMENT WORKSHOP
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

     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

INTERNATIONAL ENFORCEMENT WORKSHOP                                    11
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.


       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

     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

12                                    INTERNATIONAL ENFORCEMENT WORKSHOP
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

      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

INTERNATIONAL ENFORCEMENT WORKSHOP                                    13
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

       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,

14                                    INTERNATIONAL ENFORCEMENT WORKSHOP
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

      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)


16                                    INTERNATIONAL ENFORCEMENT WORKSHOP
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

       - enables sources of pollution to take steps to achieve and maintain
       - 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

      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

INTERNATIONAL ENFORCEMENT WORKSHOP                                    17
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

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

      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

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

         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

       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

                                                     INTERNATIONAL ENFORCEMENT WORKSHOP
Figure 2.
Types of Relief Explicitly Authorized and Forms of Action
Administrative Enforcement Actions
Administrative Order Authority
- 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
Emergency Powers
Cost Recovery
Criminal Judical Action
Penalty/Punitive Damages




































             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


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

      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.

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

      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

     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

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.

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

      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

INTERNATIONAL ENFORCEMENT WORKSHOP                                    25
recover the economic benefit of non-compliance, but encourages this

      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.

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

INTERNATIONAL ENFORCEMENT WORKSHOP                                    27

      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

      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
         - number of inspections
         - number of administrative and judicial  enforcement
           actions:  referrals and fined cases.
         - timeliness and appropriateness of enforcement
         - 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.

                                      INTERNATIONAL ENFORCEMENT WORKSHOP
Figure  3a  Relationship among Evaluation Measures, Oversight approach and
Deterrence theory
Credible likelihood of

Swift and sure
enforcement response

Appropriate Sanction
Perception of above
            # inspections
            Timeliness/Type of

             Dollars Assessed
             Years in Prison
            Penalty Policies
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
Environmental results of
program (I)

Behavioral results of
requirements (II)

Progress in returning
significant violators
to compliance (III)

Compliance with formal
enforcement requirements
            Environmental measures
            Compliance rate
            Percent targeted
            universe in compliance
            or action taken

            Compliance with
            enforcement terms
Program Goals:
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

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

   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
   Defines outreach efforts, use of self-
       monitoring reporting to target
       inspections, enforcement response,
       state/federal roles and measures of

   May call for special initiative to identify
      targets for inspections/enforcement

%  NESHAP universe inspected within past 12
#  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
   Allocates resources to Regions by relative

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
         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.

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.

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

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

     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

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.


     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


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                                                 Report FY89, OECM
                                1 ? I I I § I !
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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

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-

              Fig. 5  Enforcement is a Significant
             Percentage of Total  EPA Resources
                                                     DOLLARS $000
                                                  7% ($400)
                                   EPA Resources
            75%(16761 yrs.)
        Enforcement Category
                     Workyears    Dollars
        Fiscal Year 1991 Total
Stationary Source
Mobile Source
Water Quality
Drinking Water
Hazardous Waste
Emergency Preparedness
Underground Storage Tanks
Management and Policy

          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.

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

      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

      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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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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                    43

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

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

6     United States Environmental Protection Agency (1984).
      Agencywide Compliance and Enforcement Strategy and Strategy
      Framework for EPA Compliance Programs.   Unpublished internal

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

9     Adams, T.L. Jr. and Braem, L.A. "EPA's Enforcement Priorities for
      Fiscal Year 1988" National Environmental Enforcement Journal, July,

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,

      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

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,

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

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.

46                              INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                                  47

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

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.


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).

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

4. To  start off environmental  management systems in companies.


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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                  49

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

c. The  fine tuning of policy  measures to  the target group;

d. Stimulation of  internalization  of environmental  management with the
   target group.


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-
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

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.


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.


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.

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-

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

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
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.


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
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

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

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.


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
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.

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.


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
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.

54                                 INTERNATIONAL ENFORCEMENT WORKSHOP
   Educational objectives  are  inter alia linking a company environmental
   management system  to the license,  involvement of employees and repor-
   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

 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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                    55
                        AUTHORITIES, TOOLS AND REMEDIES

                               Edward E. Reich*
                            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


     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.

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.

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).

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,

     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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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.

60                                    INTERNATIONAL ENFORCEMENT WORKSHOP
     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.

      25  See  Novick, supra note  23 at 19.

62                                    INTERNATIONAL ENFORCEMENT WORKSHOP
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
     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

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.

64                                    INTERNATIONAL ENFORCEMENT WORKSHOP
 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

      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
      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.

66                                    INTERNATIONAL ENFORCEMENT WORKSHOP
 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

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

     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).

68                                    INTERNATIONAL ENFORCEMENT WORKSHOP
     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

     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

     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

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.

72                                    INTERNATIONAL ENFORCEMENT WORKSHOP

 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

      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

      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
      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.

74                                    INTERNATIONAL ENFORCEMENT WORKSHOP
     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).

INTERNATIONAL ENFORCEMENT WORKSHOP                                     75
      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

 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.

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

      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

      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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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

     84 51 Fed. Reg. 25004 (1986).

     85 Id. at 25007.

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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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.

80                                    INTERNATIONAL ENFORCEMENT WORKSHOP
Understanding which will establish revised operating policy between the two

      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
     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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     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.

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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 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
     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].

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
      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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     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

     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
     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.

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

     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

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

   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

   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

                                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.


   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

                                                     FIGURE 1
         Policy life cycle
      of problem
Policy   (Solving
                of dissension
control  i
                                        Policy phase

                        REGLHAIORY CHAIN
                              1. legislation «•
                             standard setting

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.


   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.


   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

92                               INTERNATIONAL ENFORCEMENT WORKSHOP
   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.


   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.

INTERNATIONAL ENFORCEMENT WORKSHOP                               93

   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

94                              INTERNATIONAL ENFORCEMENT WORKSHOP
   of   the  Ministry  of   Housing,   Physical  Planning   and  the
   Environment, whose involvement therefore signifies an assessment
   by central government.


   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

   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

INTERNATIONAL ENFORCEMENT WORKSHOP                              95
    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.


    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.


    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

96                               INTERNATIONAL ENFORCEMENT WORKSHOP
    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.


    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


    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

INTERNATIONAL ENFORCEMENT WORKSHOP                               97
    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.


    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.

    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

98                              INTERNATIONAL ENFORCEMENT WORKSHOP
    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.


    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

INTERNATIONAL ENFORCEMENT WORKSHOP                              99
    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.

    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

100                              INTERNATIONAL ENFORCEMENT WORKSHOP
    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.


    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

    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.


    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

INTERNATIONAL ENFORCEMENT WORKSHOP                              101
    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.


    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.


    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).

102                              INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                                    103

l-Acting Director, Water Division, Region 5, United States Environmental
Protection Agency, 230 South Dearborn Street, Chicago, Illinois  60604
(The United States)

      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.

       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-

104                                   INTERNATIONAL ENFORCEMENT WORKSHOP
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


      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

                                                        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
                                                              Compile all available
                                                               enforcement related
                                                                information for a
                                                                technical review
                                                            Is an enforcement action
                                                              appropriate to correct
                                                               the noncompliance'
      It the
NOT  S~     ls a
        field investigation
SURE   >v   needed'
       Provide information to the
        license/permit authority
                                                                an administrative
                                                               enforcement action
                                                                   be issued'
                           Should a
                      judicial enforcement
                           action be
                                                                   Develop the
                                                               enforcement acttion
                                                                    Issue the
                                                               enforcement action
                                                              Track compliance with
                                                              the enforcement action

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.


      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
      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

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

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
      The following items are examples of the types of reports and other
data that are potential sources of information for use in an enforcement
      - 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
      - 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.

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
      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

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
      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

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
      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

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.


      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.

                                                Figure 2
                                MANAGEMENT SYSTEM
    no. 1 Source inventory „
                            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
                                                         screening      ^_ N01
                                                   Is the facility in compliance
                                                       based upon the
                                                                                    . 5;
                                                                                 Field investigations
         no. 3 Enforcement evaluation
                                                      Compile all available
                                                      enforcement related
                                                       information for a
                                                       technical review
                                                    Is an enforcement action
                                                     appropriate to correct
                                                      the noncompliance'
                                                                          field investigation
        Provide information to the
         license/permit authority
                                                       an administrative
                                                      enforcement action
                                                         be issued7
                       Should a
                   judicial enforcement
                       action be
        no. 4 Initiate enforcement
                                                                             no 6. Internal management:
                                                                                This principle overlays all
                                                                                of the above principles

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
      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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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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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.


      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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                    117
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.

118                                   INTERNATIONAL ENFORCEMENT WORKSHOP



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

   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

   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.

   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

   Submit TRE Plan/Schedule            60 days past schedule date
   Initiate TRE
   Complete TRE
   Submit Corrective Action Plan/
   Start Construction
   End Construction
   Attain Final Compliance

   All Additional Milestones
90 days past schedule date
90 days past schedule date
   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

   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


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

e. Other Violations
 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

  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

INTERNATIONAL ENFORCEMENT WORKSHOP                                    121
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.

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


Missed Interim Date
Missed Final  Date
 Failure to make
 timely corrective
 decision as part of

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
Contact permittee
and require
of good and valid

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
Contact permittee and
require documentation
of good or valid cause
and date/schedule for

APO or judicial action.
Consider Contractor

                        APO,  judicial action



Exceeding Final
 Failure to meet
 final whole
 effluent  limits
 Exceeding Interim
 Failure to meet
 interim whole
 effluent limits
 Discharge without a

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

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

Contact permittee and
require proof of good
and valid cause

                                                LOV, AO, APO, or
                                                judicial action
AO, APO or judicial
action.  Consider
contractor listing

AO, APO, judicial

AO, APO, judicial
action.  Consider
Contractor listing

Contact permittee
and require proof of
good and valid cause


APO or judicial action

                         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


Consider  onminal prosecution.
If not, APD or judicial action.


Intentional, one or
more times with or
without harm

Consider criminal
prosecution.  If not,
APO or judicial action
 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


 Minor violation of      Any instance
 sampling or analytical

 Major violation of      No evidence of  intent
 sampling or analytical

                         Evidence of negligence
                         or intent
 Violation of permit
 permit conditions
 other than (numerical)
 effluent,  schedule,  or
 reporting violations
 (e.g., EMP,  O&M,
 record retention/
 availability, etc.)


 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
                        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

AO, APO, judicial action


Failure to sample,
monitor or report
(routine reports,
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
 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

Any instance
Any instance

   Phone call, IDV.
   Report to be

   Consider criminal
   prosecution.  If not,
   AO, APO, or judicial
   AO, APO, judicial
   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, AO, APO,
    judicial action

    IDV,  AO,  APO,
    judicial  action

INTERNATIONAL ENFORCEMENT WORKSHOP                                   127
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

128                              INTERNATIONAL ENFORCEMENT WORKSHOP

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.
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-

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
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
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).

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
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
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.
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

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

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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                   133
In the introduction already a few remarks nave been given on tnis
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

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.

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
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-

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
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.

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.
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.
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
The police is developing regional information systems .There is a
national police service, the Central Detective Information-service,

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

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.

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
Something must be done to make a long period of specialisation in
environmental law attractive, for instance by increased salaries for
With the police as well there must be created attractive prospects for

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

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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-^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)

      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.

      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.

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.


      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

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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.

144                                   INTERNATIONAL ENFORCEMENT WORKSHOP
      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.


      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
      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
      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
      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.


      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.

146                                   INTERNATIONAL ENFORCEMENT WORKSHOP
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
      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.


      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

 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.

148                                   INTERNATIONAL ENFORCEMENT WORKSHOP
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

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.

150                             INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                              151
Agneta Melin

Supervision Department, Swedish Environmental Protection Agency,
S-171 85 SOLNA, Sweden

     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.


     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

     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,

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.


     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
- 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

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- iron and steelmaking factories
- bleached sulphate pulp mills
- flow monitoring systems
- special areas that are heavyly polluted


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

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.


     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

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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                   155

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.
     Lee DeHihns

2.    State Perspective in U.S. Enforcement Relationship
     Ken Alkema

3.    European Community's Prospects for Enforcement of Directives
     Rolf Wagenbaur

156                             INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                                   157


Deputy Regional Administrator, U.S. Environmental  Protection Agency,
Region IV, 345 Courtland Street, Atlanta, Georgia  30365

     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

     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.

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
     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.

     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
     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

162                                  INTERNATIONAL ENFORCEMENT WORKSHOP
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.

     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
     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
     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
     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

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
     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.

     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'".

166                             INTERNATIONAL ENFORCEMENT WORKSHOP

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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

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

170                                   INTERNATIONAL ENFORCEMENT WORKSHOP
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

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

VIII.  Lessons Learned

The following are the keys to the success of a state/federal partnership on

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
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.

172                              INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                                    173
                             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
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.

174                                   INTERNATIONAL ENFORCEMENT WORKSHOP
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

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
 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  :

INTERNATIONAL ENFORCEMENT WORKSHOP                                   175
    "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

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

176                                   INTERNATIONAL ENFORCEMENT WORKSHOP
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).

INTERNATIONAL ENFORCEMENT WORKSHOP                                    177
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

178                                   INTERNATIONAL ENFORCEMENT WORKSHOP
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,

     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

-    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);

INTERNATIONAL ENFORCEMENT WORKSHOP                                   179
    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.

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.

180                                   INTERNATIONAL ENFORCEMENT WORKSHOP
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

INTERNATIONAL ENFORCEMENT WORKSHOP                                   181
    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

182                                   INTERNATIONAL ENFORCEMENT WORKSHOP
     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

 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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                   183
    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

Formal not ice
F .R .Germany
Be I g i urn
Spa in
I re land
Nether lands
Portuga I
to the Court
7 (+ 4)

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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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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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

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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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

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.

188                              INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                                    189

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
     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

190                              INTERNATIONAL ENFORCEMENT WORKSHOP

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

     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.

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

     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

     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.

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
     « 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

     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,

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.

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

     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-

     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

     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

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

     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

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

198                              INTERNATIONAL ENFORCEMENT WORKSHOP

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).

INTERNATIONAL ENFORCEMENT WORKSHOP                                 199
J.R. Bouma and J.J.A. Gerardu
Ministery of Housing, Physical Planning and Environment
Enforcement Division
Postbus 450
2260 MB Leidschendam (The Netherlands)
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.

200                                INTERNATIONAL ENFORCEMENT WORKSHOP

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.


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

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.

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

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

Figure  1:   Export of hazardous waste  from the Netherlands during the
            years 1987-1989

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
                S  60 -
                §  50
                5  40
                ^  3O -
                |  20
                c§  1O
                      BELGC    BFO    GB    FFWXRkK   CCM
                      Export to country of destination ,1987, 1988, 1989
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

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/

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?

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-
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.

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

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.

 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-

 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

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
These activities provide work for five staff members.
                     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).

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).

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.


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
   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
   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
   It is not clear what kind of effects 1992 will have on the trans-
   frontier shipments within the E.G.


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

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.

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

                                                         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
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
This environmental legislation and the bodies who are responsible for
implementation are given.

Environmental Legislation
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




 imp  =  implementation
 c    =  central government
 p    =  provincial  level
 m    =  municipal level
 w    =  waterboards

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

                                   INTERNATIONAL ENFORCEMENT WORKSHOP
                                                         ANNEX 1, p.3
The organization of the Inspectorate of the Environment is as given in
the following diagram:
                                        9 Regional
 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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                 213
                                                         ANNEX 2, p.l
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

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

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

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

216                                INTERNATIONAL ENFORCEMENT WORKSHOP
                                                         ANNEX 3, p.l
Case 1

Transport of waste substances containing zinc from Europe to South-

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
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
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.

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

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
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

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-

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
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.

222                               INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                                   223

                             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

226                                   INTERNATIONAL ENFORCEMENT WORKSHOP
   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

   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-

   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

INTERNATIONAL ENFORCEMENT WORKSHOP                                   227
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

228                                   INTERNATIONAL ENFORCEMENT WORKSHOP
   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

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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                  229
      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

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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                   231
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
-   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

INTERNATIONAL ENFORCEMENT WORKSHOP                                  233
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

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:

234                                   INTERNATIONAL ENFORCEMENT WORKSHOP
   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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                   235
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

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
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;
   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
   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

236                                  INTERNATIONAL ENFORCEMENT WORKSHOP
(1)    OJ Nr. L 194 of 25.7.75, p. 23, modified by Council Directive 87/101/EEC,
(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

INTERNATIONAL ENFORCEMENT WORKSHOP                              237
                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

     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.

     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

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.

     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

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

     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;

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

     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

INTERNATIONAL ENFORCEMENT WORKSHOP                              241
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

     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

     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

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

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.

     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

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

     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.

     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.

INTERNATIONAL ENFORCEMENT WORKSHOP                             245

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

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) .

246                              INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                                    247

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
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
     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

248                              INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                                   249

                               Scott A.  Hajost*
                            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.


     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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 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

       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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to both the agreement  itself, and decisions by bodies established

      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

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

252                                   INTERNATIONAL ENFORCEMENT WORKSHOP
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

      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.

254                                   INTERNATIONAL ENFORCEMENT WORKSHOP

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.


      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

     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

256                                   INTERNATIONAL ENFORCEMENT WORKSHOP
      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.

    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

    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

INTERNATIONAL ENFORCEMENT WORKSHOP                                   257
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

   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

      2.4.2  Settlement Procedures


      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.


       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


       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

      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

260                                   INTERNATIONAL ENFORCEMENT WORKSHOP
 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

       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

       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

       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.

262                                   INTERNATIONAL ENFORCEMENT WORKSHOP
      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

      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

      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

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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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.

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

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

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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

268                                   INTERNATIONAL ENFORCEMENT WORKSHOP


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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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
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

 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

 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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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
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.

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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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.

274                             INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                                   275
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


     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.


     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

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

     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

     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,

INTERNATIONAL ENFORCEMENT WORKSHOP                                   277
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.


     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

             The rule uses  a simple regulatory system, which minimizes  the size
             of  the regulated  community,  and clearly defines  the  applicable

             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

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

     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

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

     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

     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.


     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

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

     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.

     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

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.

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.

282                             INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                                      283
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
         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.

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
        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

            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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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

286                                    INTERNATIONAL ENFORCEMENT WORKSHOP
2.      Commitments  of the Netherlands to  implement  the  international agree-
        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".

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
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.

288                                     INTERNATIONAL ENFORCEMENT WORKSHOP
4.      Enforcement of ocean dumping  and  ocean  pollution  regulation  in  The
        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

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
        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

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
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

        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

        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-

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-
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
       Enforcement  of measures to reduce pollution of landbased  sources
       is carried out in a number of ways which can generally be described

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.

                                                O = Registrated
                                                   sea pollutions
                                                   with oil in

                                                             Continental  Shslf Border

                                                             Shipping Lanes

                                                             Shipping Separation Zones

                                                             Producing Installation

             Shipstraffic  separation  zones  and
             off-shore activities                     FIG.2

                                                               a  Ti
                                                               •H  ^
                                                               D  (0
                                                               tr  3
                                                               0)  O
                                                               c  in
                                                               H  (T3
                                                               tn  o
                                                               c  o
                                                               co  ,c
                                                               0)  4->
                                                               4->  a
                                                               O  Q

                  Dutch continental shelf
                             Fig. 4

INTERNATIONAL ENFORCEMENT WORKSHOP                                   297
                            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.

      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.

     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.

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.

      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
         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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                   299
      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.

300                                   INTERNATIONAL ENFORCEMENT WORKSHOP
      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

      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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                   301

      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-

°     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

302                                   INTERNATIONAL ENFORCEMENT WORKSHOP
      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.

      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

INTERNATIONAL ENFORCEMENT WORKSHOP                              303

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.

304                              INTERNATIONAL ENFORCEMENT WORKSHOP

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
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
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

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
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

306                              INTERNATIONAL ENFORCEMENT WORKSHOP
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
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
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

308                              INTERNATIONAL ENFORCEMENT WORKSHOP
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.

INTERNATIONAL ENFORCEMENT WORKSHOP                              309
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

310                             INTERNATIONAL ENFORCEMENT WORKSHOP
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
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
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.

INTERNATIONAL ENFORCEMENT WORKSHOP                              311
   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.

312                               INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                                   313


1  Chief,  Environmental Law Unit,  UNEP

2  Programme Officer,  Environmental  Law Unit,  UNEP


       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

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.


       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.

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)).


       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.


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.

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.


       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.

316                                   INTERNATIONAL ENFORCEMENT WORKSHOP

       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

INTERNATIONAL ENFORCEMENT WORKSHOP                                  317
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).


       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

       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).


       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

318                                  INTERNATIONAL ENFORCEMENT WORKSHOP
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).


       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).


       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.


       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

INTERNATIONAL ENFORCEMENT WORKSHOP                                   319
       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


       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

       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.

320                                  INTERNATIONAL ENFORCEMENT WORKSHOP
       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

       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.

INTERNATIONAL ENFORCEMENT WORKSHOP                             321

                           B. ter Haar
    On sabbatical leave from the Ministry of Foreign Affairs,
          P.O.  Box 20061,  2500 EB Den Haag (Netherlands)


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

322                              INTERNATIONAL ENFORCEMENT WORKSHOP
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 .

324                              INTERNATIONAL ENFORCEMENT WORKSHOP
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

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

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

326                              INTERNATIONAL ENFORCEMENT WORKSHOP
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
     Employment  and  conduct   of  personnel   in   the   technical
     secretariat,   such   as  limiting  access   to   confidential
     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
     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

328                              INTERNATIONAL ENFORCEMENT WORKSHOP
     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

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
-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
-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

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

330                              INTERNATIONAL ENFORCEMENT WORKSHOP
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

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

332                              INTERNATIONAL ENFORCEMENT WORKSHOP
     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.
 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

INTERNATIONAL ENFORCEMENT WORKSHOP                              333
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.

334                              INTERNATIONAL ENFORCEMENT WORKSHOP
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

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

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

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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                   335

        Witte, Mr. S. de
        Ministerie v.d. Vlaamse Gemeenschap
        Bestuur voor Leefmilieu
        Markiesstraat 1
        B-1000 BRUSSEL, Belgium

     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

     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

336                                   INTERNATIONAL ENFORCEMENT WORKSHOP
       Wagenbaur, Mr. R.
       European Economic Community
       Wetstraat 200
       B-1049  BRUSSELS, Belgium

        Bakacs, Mr. Tibor
        Ministry for Environment
        Department for International Relations
        P.O. Box 351
        H-1394 BUDAPEST, Hungary

        Soeriaatmadja, Mr. R.E.
        Ministry of State for Population and Environment
        Jl. Merdeka Barat 15
        JAKARTA 10110, Indonesia

     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

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

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

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

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

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
       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

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

       Lieben, Mr. Pierre
       Environment Directorate
       2 Rue Andre Pascal
       F-75775 PARIS Cedex 16

        Jarzebski, Mr. Lechoslaw (or replacement)
        Director of the "vojevodstvo" Inspectorate for Katowice
        UL. Wita Stwosza 31
        PL-40-042 Katowice,  Poland

        Kante, Mr. B.
        Director de 1'environnement, Min. de la Protection de la Nature
        104 rue Carnot
        DAKAR, Senegal

     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

INTERNATIONAL ENFORCEMENT WORKSHOP                                    343

     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

     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
        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

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
        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

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

346                                   INTERNATIONAL ENFORCEMENT WORKSHOP
     20 Musgrove, Ms. Connie
        Office of Compliance Monitoring
        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
        U.S. Environmental Protection Agency
        401 M St., SW.,
        Washington D.C. 20460, USA

     23 Seitz, Mr. John S.
        Stationary Source Compliance Div.
        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
        401 M.  St., SW.,
        Washington D.C. 20460, USA

     25 Thomson, Mr. Paul
        Deputy Assistant Administrator-Criminal
        Office of Enforcement and Compliance Monitoring
        U.S.-Environmental Protection Agency
        401 M St., SW.,
        Washington D.C. 20460, USA

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
        U.S. Environmental Protection Agency
        401 M St., SW.,
        Washington D.C. 20460, USA

348                             INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                                    349


     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-


          I I I  I I I I  I I I  I I
                 VOLUME II
!.% rf-i. WWfi i3? *% *», <%*
               May 8-10, 1990
          Utrecht, The Netherlands
      Ministry of Housing,
       Physical Planning
     and Environment (VROM)
       The Netherlands


                                    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


INTERNATIONAL ENFORCEMENT WORKSHOP                           iii

   PIETER VERKERK, CO-CHAIR                                       9

   MARIUS ENTHOVEN, DIRECTOR GENERAL                           13

   JAMES STROCK, CO-CHAIR                                        19



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
            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

1. Third World Perspective on Hazardous Waste, Bakary Kante              79



(no additional papers received)


   HANS ALDERS                                               105

   PIETER VERKERK, CO-CHAIR                                   107

   JAMES STROCK, CO-CHAIR                                    115




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

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-

                               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

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.

The Workshop Program
Day 1 - May 8th 1990
09.00 - 09.10    Welcome, Pieter J. Verkerk,  Inspector General, HIMH
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
               Mr. Dave Ullrich, USA
04.30 - 05.00    Another Country's System: Sweden
               Ms. Agneta Melin, Sweden
05.00 - 05.30    Discussion

                               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
                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

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-
               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.



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

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-

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-

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.


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

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.

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
    aimed at the structure of production and consumption (such as clean technolo-

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

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

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.

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-
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
•  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-
•  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-

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

INTERNATIONAL ENFORCEMENT WORKSHOP                              17

   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

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

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.

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

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

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

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  !

INTERNATIONAL ENFORCEMENT WORKSHOP                                   21

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

22                             INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                                   23

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
        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
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

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
     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
     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

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
     -  regional agreements on joint efforts  of police forces  directed at the
     -  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-

        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-

26                             INTERNATIONAL ENFORCEMENT WORKSHOP

INTERNATIONAL ENFORCEMENT WORKSHOP                                   27

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.


     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.

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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                    29
    James H. Lynch

    Senior Environmental  Investigator, Indiana Department of Environmental
    Management, Indianapolis, Indiana


         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?

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

    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.

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.

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!!

INTERNATIONAL ENFORCEMENT WORKSHOP                                    33


          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

          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.

34                                    INTERNATIONAL ENFORCEMENT WORKSHOP
         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,

          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

          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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                    35

    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

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,)
                    (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
                 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

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

                  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

                 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.

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

                 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

                 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)
                  (who to notify in case of emergency)
               e)  TEAM OR DUTY ASSIGNMENT

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.


40                                    INTERNATIONAL ENFORCEMENT WORKSHOP

    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

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

   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.

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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                    43

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

44                            INTERNATIONAL ENFORCEMENT WORKSHOP

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
       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

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.

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
       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

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
      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

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

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

      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

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
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.

INTERNATIONAL ENFORCEMENT WORKSHOP                                   53

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
     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

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
    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

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
          Federal Government

          Federal Ministries
            Execution:       State Ministries

            (licensing)        President of Regional Administration

            (supervision)      Factory Inspectorates
            Technical and
          Environmental Protection Agency

          State institutions on environmental
            Technical and
          Independent experts or expert
          institutions (e.g. TUV)
                                          TOV Rheinland

Fig. la
    Law binding
    for everyone
    Binding only
    for administr.
    not for courts
 Federal Parliament
and Second Chamber
  Federal Governm.
  and Second Cham.
                      (total: 6 BIschV)
   Federal Governm.
   and Second Cham.
      • TI Air
      • TI Noise
      VDI, DIN
                                          TtJV, Institutes
                                                             State Government
                                          State Immission
                                            Protection Laws
                                            Planning Laws
State Ministries
 » 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

    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

INTERNATIONAL ENFORCEMENT WORKSHOP                                57

Fig  3                         Environmental  Ordinances
                           (large combustion plants)
                           Verordnung genehmigungsbedQrftige Anlagen
                           (plants/installations to be licensed)
                           Verordnung Genehmigungsverfahren
                           (principle of licensing procedure)
                            (major accident hazards)
                            (handling of dangerous materials)
                            (sources and origins of waste water)
                            (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

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
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

Fig. 5       Contents and Requirements  of TA  Luft

                       (Regulation on procedures of licensing)

- Basis of procedure
- Emission limits dust
- Air quality "standards
- Measurement of
ambient air quality
aera depending on
- Continuous emission
- Special requirements
for plant types
3 classes
20 components
3 classes
107 components
3 classes
25 components
13 components
stack height
9 components
- 50
3 classes
48 components
3 classes
122 components
3 classes
13 components
stack height
9 components
» 15
3 classes
56 components
3 classes
127 components
8 components
4 x 4, 8 x 8,
12 x 12 km2
9 components
« 15
8 components
radius 3 km
                                                                  TOV Rheinland

 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)

class I
class II
class III

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


> 0,5
* 5
f- 500
< 500

* 1
* 5

;> 10
> 50
> 300

* 100






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
NOX (NO2 )
old plants
NO, (N02 )
                                           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).

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
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
     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

o -1

1 .

n .


i 	 ,




i 	 ,






i 	 =^»


 Fig.  9
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

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.

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
compounds 2 kg (as CD
as per 0101.1976
mercury (Hg)
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

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

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-

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


/ 50
1 20
1 300
/ 800
/ 300
/ 300
/ 600
/ 300
/ 300


- 50
- 40
- 1000
- 100
- 5
- 500
- 200
- 2
- 500
- 300
                      first value: further investigation necessary
                      second value' soil to be recultivated
                                              T(JV Rheinland

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

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
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

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
5th ordinance    (ordinance  covering  immission protection  representatives  - 5th
6th ordinance    (ordinance covering expertise  and reliability of immission
                protection representatives -  6th BlmSchV)
7th ordinance    (ordinance for limiting the discharge of  wood  dust  - 7th
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

The main ordinances for licensing  procedures  of technical  installations are the
4th and 9th  BlmSchV:
4th ordinance (ordinance  covering  installations requiring authorization  - 14th

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-

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-

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.

Fig.  12
                                Procedure for
                                                   Start of building
                                                                     No legal remedy
                                                                    Allocation of the
                                                                      license to the
                                                                     spokesman and
                                                                      the applicant
                                                                      or by public
                                                                     Legal remedy
                                                                      applied for
                                                                       (1 month)
                                                                              TOV Rheinland
 Fig. 13
This part only in
the case of formal
objections from
affected parties
                       Availability for
                       inspection for
                         2 months
  Expertises from
institutes (e. g. TUV)
                   Discussion meeting by
                    the authorities w:th
                   spokesmen, applicants
                   and (e.g. TUV) experts
                                                                    Tl)V Rheinland

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.

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

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