6th International Conference
on Environmental
Compliance and Enforcement
April 15-19, 2002
San Jose, Costa Rica
Proceedings Volume 1
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6th International Conference on
Environmental
Compliance and Enforcement
San Jose, Costa Rica
April 15-19,2002
Environment Environnement
Canada Canada
! N E C E
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PREFACE
PREFACE
These Conference Proceedings
contain papers submitted by speakers,
conference participants, and other enforce-
ment professionals dedicated to achieving
the environmental compliance and
enforcement goals discussed during the
Sixth International Conference on
Environmental Compliance and Enforce-
ment held in San Jose, Costa Rica, April
15-19, 2002. These papers are made avail-
able to all enforcement practitioners
throughout the world to further the dialogue
in this important discipline. These materi-
als, along with a second volume that will be
prepared after the Sixth Conference con-
cludes, are also available through the Web
site of the International Network for
Environmental Compliance and Enforce-
ment (http://www.inece.org) where papers
presented in San Jose are indexed by topic
along with papers presented at the first five
conferences.
Despite a growing body of environ-
mental law that has developed at the
national and international level in the thirty
years since the Stockholm conference on
the human environment, environmental
quality continues to be degraded in every
corner of the globe and across a broad
spectrum of media. These proceedings tell
of individual, local, and regional victories in
the fight to achieve compliance with
domestic laws and multilateral agreements
that have been put in place to guide human
behavior on an all too fragile planet. They
also tell of the impediments to the use of
compliance and enforcement mechanisms
to fight the struggles that face a large seg-
ment of the global population as it tries to
survive in deteriorating ecosystems.
Perhaps most of all, these accounts tell
how sometimes a lone' individual, other
times a group or a network, continue to
push for environmental awareness, fair-
ness, and accountability year after year,
often at great personal cost and with little
appreciation or recognition.
These proceedings tell the story of
dedicated inspectors who, individually and
as a team, utilize limited resources and
maximum human initiative to pursue
inspections, suggest environmental man-
agement systems and process upgrades,
and follow through with sanctions as part of
a coordinated effort to control a plethora of
pollutant emissions from a waste process-
ing facility. They also tell the tale of the indi-
vidual farmer who speaks up to challenge
a neighbor's wanton destruction of a fragile
tropical ecosystem depended upon not
only by other neighbors, but also by
species of animals and plants that lack
their own voice. They also tell the chronicle
of the enforcement network coordinator,
who makes the tireless effort to listen,
learn, share experiences, and ultimately
inspire others to a higher level of public ser-
vice. These stories, and the messages they
contain, provide evidence of the concerted
efforts of individual practitioners and set
out guidance for those who might travel the
same path toward better enforcement and
compliance.
The Sixth International Conference
is of course geared to bringing enforce-
ment professionals together to share expe-
riences and make plans to take the
environmental compliance and enforce-
ment fight to the next level. In addition,
INECE has made a conscious decision to
focus on the need to enhance regional
cooperation and networks, adopt new
methods for measuring success, and gen-
erally raise awareness about the impor-
tance of compliance and enforcement
efforts. These themes not only resonate
with citizens, companies, and regulators
alike, they also serve as the platforms for
ongoing campaigns for achieving environ-
mental quality. It is important to note that at
the same time that pressure is building to
strengthen enforcement and compliance
initiatives, evidence is accumulating that
the cost of complying with environmental
laws is, in most cases, outweighed by the
benefits, both at the national level and at
the level of the individual firm.
Ultimately, the success of the Sixth
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IV
SIXTH INTERNATIONAL CONFERENCE ON ENV RONMENTAL COMPLIANCE AND ENFORCEMENT
International Conference is the strength of
the individual commitments renewed in San
Jose, the durability of the bonds that are
forged between local, regional, and interna-
tional networks and interests, and the vision
contained in the strategic plan that will
guide INECE over the coming years. The
draft Strategic Plan will be discussed,
including the planned efforts to fulfill the
INECE goal of fostering and strengthening
regional enforcement networks within
Africa, Asia and Latin America. These net-
works will benefit from the experience of
current INECE partner networks such as
the European Network for Implementation
and Enforcement of Environmental Law
(IMPEEL) and AC-IMPEL, its sister organiza-
tion serving the accession countries to the
European Union.
On behalf of the Executive
Planning Committee and the Secretariat
staff, we look forward to your continued and
productive use of these conference materi-
als. Comments and suggestions should be
sent to the INECE Secretariat by email at
inece@inece.org or by fax to 1-202-249-
96081 or by mail to 1367 Connecticut
Avenue, NW, Suite #300, Washington, DC
20036.
THE EDITORS
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TABLE OF CONTENTS 1
CONTENTS
INECE EXECUTIVE PLANNING COMMITTEE AND SPONSORS ,
PREFACE.
in
CONFERENCE PROGRAM 199
PAPERS
Strengthening Environmental Enforcement And Compliance:
The International Network For Environmental Compliance And
Enforcement, Zaelke, Dtlrwood and Higdon, Thomas < 3
Incidents Involving Radioactive Substances in 1999 and 2000, Breas,
Gerard, Tijsmans, Miriam, and Klingenberg, Albert •. 11
How to Optimise the Control of World-Wide Movements
of Waste, De Krom, Ruud MA 15
Governmental Coordination and Hazardous Waste Enforcement
in Argentina, Di Paola, Maria Eugenia 19
Cleen: The Need for a Separate Enforcement Network for
Enforcement of Chemicals Legislation in the EU, Proost, Marc 33
Enforcement Of The Regulation On The Supervision And
Control Of Waste Shipments Within, Into And Out Of
The European Community (Eu 259/93): Collaboration In Checks
On The Processing Of Waste Substances Snels, W. And Liebregts, T. 37
Storage of Dangerous Substance Enforcement Investigation,
Speel-Zuiderwijk, CarlaT.M , 41
Radioactive Substances in Scrap Metal: Enforcement of the
Nuclear Energy Act, Tijsmans, Miriam, and Klingenberg, Albert 45
"Gas Free": Enforcement of the Pesticides Act in the
Netherlands, Veldman, Wim and Klingenberg, Albert 51
Successful Implementation of Impel Concepts and
Recommendations in Lithuanian Environmental Protection System,
Vaclovas Berzinskas 55
The Environment and Its Regulation in Argentina, Nonna, Silvia C 59
Some Views on Efficient Environmental Control and Enforcement
of Industry From a Swedish Perspective, Hans-Roland Lindgren 73
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Enforcement of Legislation on Asbestos, Lievense, Jantien 81
Information To Facilitate Environmental Compliance And
Enforcement Van Grootveld, Geert, And Van Der Most, Pieter '. 89
i
Maintenance of the Air Quality in Residences Above Dry-Cleaning Facilities, i
Oostenbruggen, Rob Van j 93
Reduction of the Industrial Emissions of Air Pollutants in the
Flemish Region (Belgium) by Law Enforcement, Baert, Robert,
Frangois, Filip and Bernaert, Paul 99
Negotiations in Superfund Cases -The Role of Communities in
Site Redevelopment, Bromm, Susan and Lofton, James , 109
Regional Mandates and National Experiences Promoting Public •
Involvement in Environmental Compliance and Enforcement, Bruch,
Carl and Czebiniak, Roman 117
The Role of Environmental Enforcement in the Republic of Armenia
- Steps Toward Sustainable Development, Darbinyari, Nune
and Ashikyan, Hrach 131
The Impel Food Project: Environmental Compliance and '
Enforcement to Selected Sub-Sectors of the European Food Industry,
lacovidou-Anastasiadou, Katerina and Kotronarou, Anastasia ,.., 137
The Decision Making System in the Field of Employment ;
Protection in Central Asia, Akhmadyar Siranov i. 147 •
The Enforcement of Environmental Legislation at a Waste-Treatment
Plant in The Netherlands: an Example of Effective Cooperation
Between Authorities, Bakker, M \ ;.., 159
Noise Nuisance Created By Catering Establishments! In
The Netherlands, M.J.Tennekens ; 169
i '"' • ^
I ;
The Inspectorate of Housing, Spatial Planning and trije
Environment Enforces Legislation on the Return of Materials :
and Packaging, Bareman, Peter [ ',, igi
Case Study On Environmental Law Enforcement And
Compliance In Costa Rica: Water Pollution With Toxic! Substances, '
Mauri, Carolina _ 185
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SIXTH INTERNATIONAL CONFERENCE ON
ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
CONFERENCE PROCEEDINGS
VOLUME 1
April 15-19, 2002
San Jose, Costa Rica
Editors:
Mr. Jo Gerardu, VROM, The Netherlands
Mr. Kenneth Markowitz, INECE Secretariat, United States
Mr. Peyton Sturges, INECE Secretariat, United States
Mr. Durwood Zaeike, INECE Secretariat, United States
Executive Planning Committee:
Mr. Peter Acquah, Ghana
Mr. Antonio Herman Benjamin, Brazil
Mr. Bie Tao, People's Republic of China
Ms. Maria Comino, Australia
Mr. Christopher Currie, Canada
Mr. William Futrell, Environmental Law Institute
Mr. Markuu Hietamaki, Finland
Mr. George Kremlis, European Commission
Ms. Sylvia Lowrance (Co-chair), US EPA
Ms. Michele de Nevers, World Bank
Mr. Charles Sebukeera (Co-chair), NEMA
Mr. Eugene Shannon, African Development Bank
Ms. Joke Waller-Hunter, OECD
Mr. Durwood Zaeike, United States
Ms. Jacqueline Aloisi de Larderel, UNEP, IE
Mr. Manuel Rodriguez Becerra, Colombia
Mr. Fred Campbell, Montserrat, West Indies
Mr. Jose Campillo Garcia, Mexico
Mr. Hashim Daud, Malaysia
Mr. Marco Antonio Gonzalez, Costa Rica
Mr. Donald Kaniaru, UNEP
Dr. Paul Leinster, United Kingdom
Mr. Ladislav Miko, Czech Republic
Mr. Sirithan Pairoj-Boriboon, Thailand
Dr. Babu Sengupta, India
Mr. NizarTawfiq, Saudi Arabia
Mr. Gerard Wolters (Co-chair), VROM, The
Netherlands
Sponsors:
Inspectorate of Housing, Spatial Planning and the Environment, The Netherlands
U.S. Environmental Protection Agency, United States
European Commission
The Ministry of the Environment and Energy of the Republic of Costa Rica (MINAE)
Center for International Environmental Law
The World Bank
United Nations Environment Programme, IE
Environment Canada
Organization for Economic Cooperation and Development
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These Proceedings, Volume 1, include papers prepared
by speakers, topic experts, conference participants and
other interested
Conference on
parties for the
Environmental
Sixth International
Compliance and
Enforcement, April 15-19, 2002 in San Jose, Costa Rica.
Copyright ©2002 by the Conference sponsors and the
INECE Secretariat. No part of this book may be repro-
duced in any form or by any means without the prior per-
mission of the authors and attribution to the Sixth
International Conference on Environmental Compliance
and Enforcement, April 15-19, 2002, held in San Jose,
Costa Rica. Use of these materials is strongly encour-
aged for training and further dissemination.
Opinions expressed are those of the authors and do not
necessarily represent the views of tneir organizations.
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ZAELKE, HIGDON 3
STRENGTHENING ENVIRONMENTAL ENFORCEMENT AND
COMPLIANCE: THE INTERNATIONAL NETWORK FOR
ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ZAELKE, DURWOOD1 AND HIGDON, THOMAS2
1 President and Founder, Center for International Environmental Law (CIEL), and Director,
Secretariat, International Network for Environmental Compliance And Enforcement, 1367
Connecticut Ave NW, Suite 300, Washington DC 20036, Zaelke@inece.org
2Law Fellow, Center For International Environmental Law (CIEL), thigdon@ciel.org
SUMMARY
As the international community prepares to meet in Johannesburg for the World
Summit oh Sustainable Development, the need to strengthen environmental enforcement
and compliance is emerging as an important theme. This follows the growing recognition
that decades of environmental lawmaking have not sufficiently arrested environmental
degradation, and that enforcement and compliance must become a priority in the coming
decades. Building the capacity to carry out the needed enforcement and compliance will
require global cooperation. One key actor will be the International Network for
Environmental Compliance and Enforcement (INECE), a global network that has done
yeomen's work in this field since its founding in 1989 by the Dutch and U.S. environmental
agencies, with assistance from UNEP, the World Bank, OECD, and the European
Commission.
1 INTRODUCTION
Despite a growing body of environ-
mental law at the national and international
level developed in the thirty years since the
Stockholm conference on the human envi-
ronment, various measures of environmen-
tal quality show continuing degradation
across a broad spectrum, with serious
consequences for ecosystems and public
health. As a telling example, one million
people a month die from lack of clean water
and sanitation, and millions more die
every year from various forms of industrial
pollution.
Evidence points to the failure to
invest in enforcement and compliance as a
key reason for the continuing degradation
of environmental quality. This was recog-
nized at the Rio Earth Summit in 1992 in
Agenda 21, Chapter 8, which specifically
directs that States develop their compli-
ance and enforcement capacity. It is
recognized today as well in the run up to
the World Summit on Sustainable
Development, where a consensus is
emerging that not enough has been done
since Rio to improve environmental
enforcement and compliance. Lack of fund-
ing and jack of political will are often offered
as explanations, based in part on the fear
that improving enforcement and compli-
ance will increase the cost to industry,
harm their competitiveness at home and
abroad, and deter foreign investment.
Yet, evidence is accumulating that
investing in enforcement and compliance
not only improves environmental quality
and public health, it also improves the
competitiveness of nations and firms.
Improving enforcement and compliance
also enhances respect for the rule of law
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
and strengthens the foundation for better
environmental governance.
The growing emphasis on enforce-
ment and compliance is expected to
increase the demand for the services of the
International Network for Environmental
Compliance and Enforcement (INECE), a
network of enforcement practitioners dedi-
cated to raising the awareness of the issue;
assisting with capacity building; and facili-
tating enforcement cooperation though
interlocking networks at the national,
regional, and global level. INECE partici-
pants come from 130 countries, principally
from governments, but also from NGOs
and academia. Key partners include the
Ministry of Housing, Urban Development
and Spatial Planning, The Netherlands
(VROM), the United States Environmental
Protection Agency (USEPA), the European
Commission, UNEP, World Bank Institute,
European Commission, and OECD. -
2 RECOGNIZING THE NEED TO
STRENGTHEN ENFORCEMENT AND
COMPLIANCE
The Rio Earth Summit in 1992 rec-
ognized the need to strengthen enforce-
ment and compliance in AGENDA 21.
Chapter 8.21 established an international
mandate to build compliance and enforce-
ment capacity as an essential element of
environmental management.
8.21. Each country should develop
integrated strategies to maximize compli-
ance with its laws and regulations relating
to sustainable development. The strategies
could include:
-Enforceable, effective laws, regulations
and standards based on sound econom-
ic, social and environmental principles
and appropriate risk assessment, incor-
porating sanctions designed to punish
violations, obtain redress, and deter
future violations;
- Mechanisms for promoting compliance;.
- Institutional capacity for collecting com-
pliance data, regularly reviewing compli-
ance, detecting violations, establishing
enforcement priorities, undertaking effec-
tive' enforcement, and conducting period-
ic evaluations of the effectiveness of
compliance and enforcement programs;
- Mechanisms for appropriate involvement
of individuals and groups iri the develop-
meipt and enforcement of laws and regu-
lations on environment and development;
and
- Develop effective national programmes
for [reviewing and enforcing compliance
witti national, state, provincial and local
laws on environment and development.
AGENDA 21 also empowered
UNEP and other organizations to more
activ«Hy support compliance and enforce-
ment activities, including capacity building.
UNEP responded with a number of initia-
tives,
Deve
including the Programme For The
opment And Periodic Review Of
Environmental Law For The First Decade
Of Jhe 21st Century (Known As
"Montivideo UN"). The Final i Montivideo III
Programme, approved in 2001, is designed
to increase the effectiveness of environ-
mental law and stresses implementation,
compjliance and enforcement.' UNEP also
developed guidelines for enforcement and
compliance addressing both the interna-
tional and national level. The Governing
Council approved the guidelines February
15, 2002 in Cartegena.2
Chapter I of UNEP's new enforce-
ment guidelines addresses compliance
with multilateral agreements. Its 29 para-
graphs spell out the purpose, scope and
definitions of the terms used in this part of
the text, as well as other issues considered
necessary for enhancing compliance:
preparatory work for negotiations, effective
participation in negotiations, assessment
of domestic capabilities during negotia-
tions,} compliance considerations in multi-
lateral environmental agreements, review
of effectiveness, compliance mechanisms
a multilateral environmental agree-
comes into effect and dispute settle-
after
ment
ments provisions. Other issues covered in
this chapter are national implementation,
including national measures, capacity
building and technology transfer. Emphasis
is placed on international co-operation by
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ZAELKE, HIGDON
the United Nations and other relevant inter-
national organizations as well as through
multilateral and bilateral initiatives.
Chapter II of UNEP's enforcement
guidelines addresses national enforcement
and international co-operation in combat-
ing violations, of laws implementing multi-
lateral environmental agreements. Its 15
paragraphs spell out the purpose, scope
and definitions of the terms used in this
part of the text, as well as national enforce-
: ment of laws and regulations, institutional
framework, national coordination, training
for enhancing enforcement capabilities and
public environmental awareness and edu-
cation. Emphasis is placed on international
co-operation and coordination, bearing in
mind the need for consistency in laws and
regulations, co-operation in judicial pro-
ceedings, institutional framework and
capacity building and strengthening.
Enforcement and compliance are
part of WSSD as well, and have been
attracting increasing attention throughout
the preparatory process. Among the issues
included for discussion at the March 2002
PrepCom for strengthening governance for
sustainable development at the national,
regional and international level, is the need
for the development of "effective legal sys-
tems, including strong and clear laws,
appropriate consequences for noncompli-
ance, well-developed infrastructure for
compliance monitoring assistance and
enforcement, and citizen participation in all
' these elements."3
Concern also was expressed at
the regional PrepComs over the lack of
progress with environmental enforcement
during the last decade, with the lack of
progress attributed to a number of factors,
including the lack of capacity within many
developing countries, often accompanied
by a lack of political will to improve enforce-
ment.
3 UNDERSTANDING THE BENEFITS
OF ENFORCEMENT AND
COMPLIANCE
At the same time that pressure is
building to strengthen enforcement and
compliance, evidence is accumulating that
the cost of complying with environmental
laws is, in most cases at least, outweighed
by the benefits, including improvements in
public health and critical ecosystem ser-
vices such as flood control and water purifi-
cation. This important information needs to
be more widely understood to counter the
fear felt by countries and firms that envi-
ronmental enforcement will mean higher
costs and lower competitiveness.
The European Commission just
released an important report showing that
the cost to the group of 13 accession coun-
tries of complying with the EC's environ-
mental "acquis communautaire", while
considerable, would be equal to or less
than the direct benefits, even using the low
end of the benefit estimates, and even
without including several key environmen-
tal benefits.^ As the Commission's report
states:
"[M]any benefits of EU directives
have not been fully covered when assess-
ing the monetary values. This includes the
protection of sensitive ecosystems and bio-
diversity. Some environmental investments
might also lead to benefits not directly
related to the environment. They can
improve economic efficiency and boost
productivity, for example by facilitating the
take-up of modern technology, by lowering
production and maintenance costs for com-
panies through better water quality and by
providing savings in the form of more effi-
cient waste management.... [Even omitting
such important benefits, using the lower
end of benefit assessment, and consider-
ing only] narrow monetary terms, the
assessed benefits are likely to be of the
same order of magnitude if not larger than
the costs of implementing EU directives.
(Emphasis in original.)
Further evidence is provided in
the Global Competitiveness Report 2001-
2002, where Dan Esty from Yale Law
School and Michael Porter from the
Harvard Business School report "The
research revels that there is no evidence
that higher environmental quality compro-
mises economic progress. Environmental
performance is positively and highly cor-
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
related to GDP per capita. The ... prelimi-
nary evidence suggests] that countries
with stricter environmental regulations
than would be expected at their level of
GDP per capita enjoy faster economic
growth ."s
Even so, the distribution of benefits
and costs makes collective'political action a
challenge, with many costs incurred up
front by a small number of firms, and many
benefits accruing later to a broader and
diffuse group of society. Nevertheless, this
favorable benefit-cost ratio must be more
widely known and appreciated by policy
makers, business leaders, and civil society.
Another critical fact, which is even
less appreciated, is that environmental
compliance is cost effective at the level of
the firm as well. "Superior environmental
performance will be rewarded in the long
run in most industries and in national
development.... Both theory and an emerg-
ing body of empirical evidence on the topic
show that under most circumstances,
improved environmental performance
should improve a number of aspects of firm
competitiveness, especially in developing
countries," according to Lawrence Pratt in a
paper prepared for the Inter-American
Development Bank.6
Pratt relies on the seminal work
performed by Professor Porter, and other
studies by Professor Stuart Hart at the
University of North Carolina business
school, noting "recent empirical research
on environmental performance and capital
markets shows that the most successful
and valuable multinational firms are those
that adhere to the highest environmental
standards."7
Hart and his colleagues report that
their research "refutes the idea that adop-
tion of [stricter] global environmental stan-
dards by multinational enterprises
constitutes a liability that depresses market
value. On the contrary, the evidence from
our analysis indicates that positive market
valuation is associated with the adoption of
a single stringent environmental standard
around the worlds Hart and his colleagues
studied a sample of 89 companies from the
Standard & Poor 500 in the manufacturing
or extractive sectors based in the United
States, but with facilities in [Countries that
could| be pollution havens. The firms that
followed their own strict Environmental
standards in their foreign operations had a
significantly higher market value than firms
using less stringent standards. The study
notes that developing countries that use lax
environmental standards to attract foreign
investment may end up with less competi-
tive firms in the long run.
Pratt also supports this conclusion
with research from an earlier Global
Competitiveness Report discussing what
business leaders around the world believe:
"Firms in many of the most com-
petitive countries in the world believe their
environmental standards are slightly to
moderately profit enhancing; Highly com-
petitive countries tend to have the most
transparent and stable regulations. These
characteristics ensure fair and even
enforcement and allow for longer planning
horizons for firms. Most business leaders
believje that environmental regulations have
played an important role in improving ener-
gy, water and materials use efficiency. In
more than half of the 59 Countries sur-
veyed', business leaders thought that 'envi-
ronmentally friendly products' enjoy a slight
to strong market advantage over conven-
tional (products. Interestingly :for the [Latin
America] region, these advantages were
found [primarily in countries that are current,
and likely future, export clients of the
region's agricultural and tourism products."
Pratt also reports the observation
of Niall FitzGerald, Chairman of Unilever
PLC, concerning environmental protection,
trade, and investment in Central America:
! "One of the myths is that environ-
mental standards are seen as an obstacle
to competitiveness and to investment.
Practical experience and academic
research overwhelmingly now show quite
the opposite. Multinational companies
expecf to operate to high environmental
standards. Environmental protection is not
a bari'ier to investment, particularly when
the standards are evenly enforced. It can
beconjie a barrier if a multinational has its
own hJgh standards, and it finds that it is
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ZAELKE, HIGDON 7
operating in an environment where lower
standards are accepted and the playing
field is not even."
Developing a set of indicators to
.track environmental compliance and
enforcement activities would provide critical
information for strengthening this case, and
for better understanding the benefits and
costs for specific industry sectors, in coun-
tries with different levels of economic and
institutional development. It is important to
level the playing field, and while doing so to
' consider not only sanctioning bad actors,
but also providing compliance assistance,
including efforts to educate companies and
the public to make it socially unacceptable
to pollute of otherwise to violate environ-
mental laws.9
4 DESIGNING INECE ENFORCEMENT
AND COMPLIANCE ACTIVITIES
In light of the growing emphasis on
enforcement and compliance and the favor-
able benefit-cost ratio, demand is increas-
ing for INECE services, which include
capacity building and training; facilitating
enforcement cooperation through interlock-
ing networks at the national, regional and
globar level; and raising awareness of the
importance of enforcement and compli-
ance.
To better respond to the increasing
demand, INECE recently formed a formal
Secretariat to coordinate its activities and
to undertake more analytical work.
Durwood Zaelke, the President and
founder of the Center for International
Environmental Law, was appointed
Director. In addition to a project to develop
indicators for environmental enforcement
and compliance, other analytical work
under consideration by INECE includes
research to understand the benefits and
costs of compliance for specific industries
within countries at various levels of devel-
opment. INECE is currently designing its
three-year strategic plan, which will be
reviewed in April at its bi-annual confer-
ence, and finalized by August 2002.
Expanding capacity building and training
will be another priority. Support for INECE
comes from the Dutch Ministry of Housing,
Spatial Planning and Environment, the U.S.
Environmental Protection Agency, the
European Commission, the World Bank
Institute, the United Nations Environment
Program, the Commonwealth Secretariat,
The North American Commission for
Environmental Cooperation, Environment
Canada, and the .United Kingdom's
Environment Agency.
5 CAPACITY BUILDING CONFERENCE
IN COSTA RICA
INECE provides capacity building
assistance, working with the World Bank
Institute, UNEP, and others, to deliver train-
ing programs, including a bi-annual confer-
ence for 200 participants drawn from its
network of 2,500 practitioners. The Sixth
Conference is being held April 2002 in
Costa Rica and will be attended by 200 par-
ticipants from 130 countries. More than 50
papers will be published in the Conference
Proceedings, and a selection of the best
will be published as a separate book. The
panels and workshops cover a
broad spectrum of enforcement and
compliance issues including: economic
instruments, voluntary measures, raising
awareness, measuring results, and the role
of the judiciary.
The INECE draft strategic plan will
be presented and discussed during the
week-long conference, and a Conference
Statement will be issued for the first time.
Another goal of the conference is to foster
the development and strengthening of
regional enforcement networks within
Africa, Asia and Latin America. These net-
works will benefit from the experience of
current INECE partner networks such as
the European Network for Implementation
and Enforcement of Environmental Law
(IMPEL) and AC-IMPEL, it sister organiza-
tion serving the accession countries to the
European Union.10 INECE also is develop-
ing new web-based strategies, working with
EarthPace and the Environmental Law
Information System (ELIS), a partnership
among CIEL, the NASA, the Library of
Congress, and the University of Maryland.
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
lilhi I IAS
•1 .':
t I
(For more information, including the confer-
ence agenda, DELETE is out of date after
printing visit www.inece.org)
6 INDICATOR PROJECT FOR
ENFORCEMENT AND COMPLIANCE
Recalling the mandate under
AGENDA 21 to develop data systems for
assessing enforcement and compliance,
including indicators, and noting the
absence of indicators that would be appro-
priate for assessing performance across
the full range of UN countries, INECE
recently initiated a multi-year project to
design indicators for environmental
enforcement and compliance. The INECE
indicator project will be launched at the San
Jose Conference in April 2002 and promot-
ed at the World Summit on Sustainable
Development.
Chapter 40.4 of AGENDA 21 notes
that traditional indicators (for example,
GNP and measurements of individual
resource or pollution flows) do not provide
adequate indications of sustainability.
Given this vacuum, the chapter calls on the
international community to develop and
promote new indicators that would, in part,
help track progress towards the goals of
Agenda 21.11 Similarly, Chapter 8.21 calls
on countries to develop "Institutional capac-
ity for collecting compliance data ... and
conducting periodic evaluations of the
effectiveness of compliance and enforce-
ment programs." Chapter 8.6 states
"Countries could develop systems for mon-
itoring and evaluation of progress towards
achieving sustainable development by
adopting indicators that measure changes
across economic, social and environmental
dimensions."
Over the past decade, a number of
organizations have begun to develop envi-
ronmental indicators to translate and deliv-
er concise, scientifically credible information
in a manner that can be readily understood
and communicated to decision makers and
other intended audiences. Some efforts
include multiple indicators within the same
system that can be tracked over time and
analyzed in the aggregate, to disclose the
trends of a larger system., For example,
indiceitors of air quality may include NOx :
and £>Ox emissions, coal consumption per
capita, vehicles per populated land area.
When analyzed together this information
may be used to assess the effects of air
pollution on human health and ecosystems. .
Environmental indicators have traditionally ;
been j limited to measuring the health and
status of environmental mecjia like air and
wateri quality, waste management and land
use. To date, none of thesS efforts have
adequately addressed issues of enforce-
ment [and compliance. : ,
The INECE environmental compli-
ance and enforcement indicators project is
developing a system for evaluating capabil- ,
ities jand performance of environmental
compliance and enforcem4nt programs.
The indicator project will identify a set of
principles to guide its effort, including trans-
parenjcy-of goals, assumptions, and pro-
cess;] participation; and comparability, ,
scaled according to different levels of eco-
nomic development. The project also will
articulate a model, or framework, such as
the pressure-state-response model, to
help [guide the selection of appropriate :
indicators. Case studies of current efforts ,
on enforcement indicators also will be
prepared, covering the efforts of the NAFTA
Commission for Environmental
Cooperation, the EC's efforts on accession i
countries, the OECD environmental
reviews, the World Resources Institute
effort!? on access to justice and their Global
Fores^ Watch network, among others. A key
goal of evaluating enforcemeht and compli-
ance programs is to understand the capa-
bility of programs to implement and achieve !
compliance with national, regional, and
global environmental requirements, and to
assesjs the financial, technological, and
human resources needed tb ensure that
the programs are sufficient for this critical
task.
7 CONCLUSION
The growth in environmental law
over the past three decades has not been
followed with sufficient effort to ensure
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ZAELKE, HIGDON 9
enforcement and compliance. The result of
this enforcement deficit is continuing and
unacceptable deterioration of environmen-
tal quality and public health. Renewed
focus on these issues at the WSSD is
expected to increase demand for the ser-
vice that INECE provides, including capac-
ity building and training, enforcement
cooperation, and analytical work. INECE is
preparing to meet this demand.
1 Decision 21/23, United Nations
Environment Program Governing Council
(February 9, 2001) available at http:///
www.unep.org/gc_21 st/.
2 United Nations Environment Program
Governing Council (February 15, 2002)
available at http://www.unep.org/govern-
• ingbodies/gc/specialsessions/gcss_vii/.
See also Ministerial Communique,
Meeting of Environment Ministers of the
Americas, Montreal, Canada (March 29-
30, 2001) available at http://www.
ec.gc.ca/international/ema/index_e.htm
(stressing "the importance of building
national capacity to develop and strength-
en environmental laws and institutions
and for environmental law implementa-
tion, compliance and enforcement...."),
3 Addendum Number 1, Revised List of
Issues and Proposals for Discussion
Related to Section K, Second Summit
Preparatory Committee, New York, New
York (January 28 - February 8,2002) avail-
able at http://johannesburgsummit.org/
html/documents/prepcom2.html.
4 The Benefits of Compliance with the
Environmental Acquis for Candidate
Countries (ECOTEC, et al. 2001), avail-
able at http://europa.eu.int/comm/
environment/enlarg/benefit.htm. The
environmental acquis comprises 300
Directives and Regulations, a core group
of which must be satisfied before candi-
date countries are admitted. See also
Administrative Capacity for Implementation
and Enforcement of EU Environmental
Policy in the 13 Candidate Countries, Draft
Final Report (ECOTEC 2000), available at
http://europa.eu.int/comm/environment/e
nlarg/administrative_capacity.htm.
5 Esty & Porter, "Measuring National
Environmental Regulation and
Performance", in Porter, Sach &
McArthur, eds., The Global
Competitiveness Report 2001-2002
(Oxford University Press 2001).
6 Lawrence Pratt, Rethinking the Private
Sector-Environment Relationship in Latin
America, Background Paper for the
Seminar on the "New Vision for
Sustainability: Private Sector and the
Environment" IDB/IIC Annual Meeting of
the Board of Governors New Orleans,
Louisiana (March 25, 2000), available at
http://www.iadb.org/mif/pdf_files/Pratt-
eng.pdf. (Mr. Pratt is the Associate
Director, Latin American Center for
Competitiveness and Sustainable
Development (CLACDS) Central
American Institute of Business
Administration (INCAE) Alajuela, Costa
Rica ("IDB Paper").
7 Pratt, IDB Paper, citing Dowell, Hart, &
Yeung, "Do Corporate Global
Environmental Standards Create or
Destroy Market Value?," Management
Science 2000, Vol. 46: pp 1059-74.
s Dowell, Hart & Yeung, "Do Corporate
Global Environmental Standards Create
or Destroy Market Value?" supra, as cited
in The Social Investment Forum, available
at www.socialinvest.org
9 Nancy Newkirk, An Industry Perspective,
in Indicators of Effective Environmental
Enforcement: Proceedings of a North
American Dialogue (Commission for
Environmental Cooperation 1999), at 20.
10 For more information visit
http://europa.eu.int/ comm/environ-
ment/impel.
11 Id. at Chapter 40.6-40.11.
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I : 'I
10
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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BREAS, TIJSMANS, KLINGENBERG 11
INCIDENTS INVOLVING RADIOACTIVE SUBSTANCES
IN 1999 AND 2000
BREAS, GERARD1, TIJSMANS, MIRIAM2, KLINGENBERG, ALBERT3
1 Radiation specialist
2 Environmental radiation officer.
3 Head of the group Enforcement Radiation, Substances and Products
Inspectorate of Housing, Spatial Planning and the Environment for the South-West
Region of the Netherlands, Post office box 5321, 2280 H Rijswijk, the Netherlands
SUMMARY
This article gives an overview of the incidents involving radioactive substances and
fissionable materials that were reported to the Inspectorate for Housing, Spatial Planning
and the Environment in 1999 and 2000. Within the framework of the Nuclear Energy Act,
the Inspectorate is responsible for the handling of these reports.
1 INTRODUCTION
In enforcing the Nuclear Energy
•Act, the Inspectorate pays a great deal of
attention to incidents involving radioactive
substances. Many of the incidents concern
scrap metal that is contaminated with
radioactive substances. The Inspectorate
has made an inventory, with an overview, of
:the reports of incidents involving radioac-
tive substances and wastes it registered
and handled in 1999 and 2000. It publishes
reports that are intended, in particular, to
provide information on the nature and
quantities of the radioactive substances
found and the measures taken. The criteri-
on for enforcement in the case of radioac-
tive substances and fissionable materials is
whether or not the authorization limits
specified in Articles 15 and 29 of the
Nuclear Energy Act have been exceeded.
The Inspectorate's working methods in
relation to scrap metal containing radioac-
tive substances are described in the third
interim guideline "Metal and scrap contain-
ing radioactive substances."
2 OVERVIEW OF INCIDENTS IN
'• 1999 AND 2000
An overview of the incidents that
took place in 1999 and 2000 is given in
table 1.
The number of registered reports is
still on the increase compared with previ-
ous years (54, 101 and 82 in 1996, 1997
and 1998 respectively). However, this
should not lead us to conclude that the
number of incidents involving radioactive
substances is increasing dramatically. This
increase could also be caused by:
1. better compliance with the reporting obli-
gations in Article 22 and Article 23 of the
Nuclear Energy Act, or
2. an increase in the number of companies
in the metal recycling industry that are in
possession of radiation measuring
equipment.
Table 2 provides an overview indi-
cating the number of reports that revealed
violations of the limits for compulsory
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12
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Table 1 : Overview of incidents involving radioacl
Incidents reported
1 . Reports of "scrap containing radioactive substances"
2. Reports of "radioactive substances and sources"
3. 'Other incidents' reports
Total
ive substances in 1990 and 2000
1999
98
40
15
153
2000
, 168
52
17
237
Table 2: Overview of the number of reports that revealed infringements of
the limits for compulsory authorization ;within the framework of the
Nuclear Energy Act i
Limits for compulsory authorization exceeded
1-Yes
2. No
3. Not applicable or unknown
1999
69
43
41
! 2000
; 119
• 76
42
authorization within the framework of the
Nuclear Energy Act.
In 1999 there was a slight increase
and in 2000 an almost 100% increase in
the number of violations of the limits for
compulsory authorization compared with
previous years (39, 88 and 55 in 1996,
1997 and 1998 respectively). The total
number of reports also roughly doubled in
2000 compared with previous years. The
number of reports containing no evidence
of violations of the limits for compulsory
authorization increased dramatically; 43 in
1999 and 76 in 2000 compared with 15 in
1996, 13 in 1997 and 16 in 1998. We can
therefore conclude that the Inspectorate is
more often informed about incidents that
are subsequently revealed not to be subject
to compulsory authorization even though
radioactive substances are indicated with
the aid of sensitive measuring equipment.
3 RESULTS AND CONCLUSIONS
As was the case in the period 1996
up to and including 1998, the report for
which was compiled in October 2000, most
of the reports are related to 'scrap with
radioactive substances', so-called scrap
reports. In 1999 the total nurnber of reports
was 163, 65% of which were'scrap reports.
In 2000, these figures were £37 and 70%
respectively. Reports concerning scrap
metal with radioactive substances originat-
ing from abroad rose moderately; this was
the ceise in previous years. A relatively high
number of consignments were refused and
returned unopened to the land of origin in
1999,! in particular. This figure decreased
significantly in 2000 because of, among
other factors, the difficult procedures faced
by businesses when returning consign-
ments} and strict transport ^requirements.
The countries from which) scrap with
radioactive substances originated in 1999
and 2000 are: Belgium, Brazil, Bulgaria,
Cuba, Denmark, Germany, England, Egypt,
Estonia, France, Georgia, Qreece, Hong
Kong, | Israel, Ivory Coast,. Kazakhstan,
Latvia, Lithuania, Morocco, Nigeria,
Ukraine, Poland, Romania, Russia, Tunisia,
Turkey, Venezuela, United States, Belarus,
South Africa and Switzerland!
j The number of reports of scrap
metal with radioactive substances from the
Netherlands has increased ; considerably
every year. This is attributed to the increase
in the number of companies in jaossession of
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BREAS, TIJSMANS, KLINGENBERG
13
a radioactive scrap detector and an increase
in the amount of slag wool (insulation mate-
rial) sent to these companies in which natu-
ral radioactive substances are concentrated.
One unshielded cesium source,
which was found in 2000 in a consignment
of scrap metal from Egypt, was so active
(1GBq) that incorrect use could have led to
exposure to dangerous doses of radiation.
Due to its rapid detection and the fact that
adequate measures were immediately
:taken, there was no danger in the
Netherlands: It was possible to inform the
Egyptian authorities of the situation imme-
diately, with the aid of an international INES
report.
incidents regarding radioactive substances
and sources are also reported to the
Inspectorate. These concern, for example,
containers with a tubing rim registering
radioactive contamination, smoke alarms,
slag wool from insulation material which is
contaminated with radioactive materials
and missing radiation sources and/or sub-
stances which may or may not have disap-
peared during transport. Reports are also
made to the Inspectorate of questions from
citizens and other authorities, requests for
advice and requests for support or collabo-
ration in the framework of enforcement or
the remedying of dangerous situation after
fires and accidents.
In addition to the scrap reports,
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,,,
14
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
KROM
HOW TO OPTIMISE THE CONTROL OF WORLD-WIDE
MOVEMENTS OF WASTE
De Krom, Ruud M A
Adjunct Inspector, Inspectorate of Housing, Spatial Planning and the Environment 8,
Rijnstraat, P.O. Box 30945, 2500 GX The Hague, The Netherlands
SUMMARY
Transfrontier movements of waste have increased enormously over the last few
decades. Major incidents took place and regulations to control and monitor transfrontier
waste shipments came into force. Environmental authorities become aware of the need for
co-operation to make monitoring compliance with and enforcing the relevant regulations
much .more effective. This paper describes ways and examples of good cooperation
between enforcement authorities.
1 INTRODUCTION
1.1 Legal Framework
In general the worldwide, trans-
frontier shipment of waste is regulated by
the Basel Convention. The main issues to
control under this convention are trans-
portation of hazardous waste and house-
hold waste. The secretariat of this Basel
Convention is located in Geneva,
Switzerland and is responsible for the
implementation and execution of this con-
vention. In Europe the Basel Convention is
implemented into Regulation EEC 259/93
on the supervision and control of waste
shipments into through and out of the
European Union, called the "Waste
Shipments Regulation". Along with the
• Basel Convention, this European
'. Regulation also implemented the OECD
Decision C 92/39 which regulates the
recovery of waste and the Lome Treaty,
which protects certain areas such as the
African, Caribbean and Pacific States, the
so called "ACP States" from illegal waste
dumping. The enforcement however is,
except for general principles, mostly regu-
lated by the individual States under their
national laws.
FIGURES
Table 1 illustrates transfrontier
shipments of waste in The Netherlands1
Table 1
The Netherlands
Year 2000
Waste import
Waste export
Waste transit
Total
(x 1000 metric tons)
469
883
166
1618
2 ENFORCEMENT
2.1 Enforcement Measures
The enforcement measures for
transfrontier shipments of waste are mainly
carried out during transportation of the
wastes or at the premises of producers,
and waste recovery or disposal facilities.
The waste movements could, for example,
also be controlled at container terminals in
the ports. The following activities could be
distinguished:
1. Preventive activities: efforts to inform
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16
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
companies about how applicable laws,
notification procedures, legal require-
ments, and consequences of violating
illegal trade restrictions;.
2. Monitoring compliance with the regula-
tions: administrative and physical inspec-
tions of certain waste streams, including
waste sampling and analysis, designed
not to uncover violations so much as to
initiate "regular" checks on target opera-
tions;.
3. Coercive measures: applied where seri-
ous suspicions or violations are found,
where facilities or documents may be
seized, where legal actions can be
taken, and where the police, public pros-
ecutor and the judge can become
involved. These actions are aimed at
stopping the violations, achieving compli-
ance, and punishing those responsible
for breaking the law.
2.2 Examples Of Joint
Enforcement Initiatives
As said before, the enforcement of
the applicable legislation is covered mainly
by national law. This results in different
approaches and a lack of transparency in
the way enforcement is set up in different
countries. Some companies misuse this sit-
uation and attempt play authorities against
each other. In order to overcome such
undesirable situations, a number of initia-
tives to enhance and fine-tune the enforce-
ment, carried out by enforcement
authorities in the different countries have
been launched. In Europe the IMPEL-net-
worka is, among others, responsible for har-
monizing environmental law enforcement.
One of its activities is the so called
"IMPEL/TFS-network" (Transf rentier
Shipments of Waste). This network was
established in 1992 to enhance monitoring,
compliance and the enforcement of the
Waste Shipments Regulation. This network
consists of enforcement organizations of
European countries, holds annual confer-
ences in order to define its working pro-
gram, discusses enforcement and
compliance issues and initiates and reports
on projects. On the basis of the annual con-
ferences, joint enforcement and other initia-
tives are conducted to harrnpnize enforce-
ment, This TFS-network was adopted in
1992 as a cluster of the IMfEL- network.
The activities and their results are present-
ed tojthe plenary meetings of IMPEL twice
a yeeir and it is at this time; approvals for
new activities are requested.;
I Recently the secretariat of the
Basel Convention took the initiative of start-
ing a j pilot enforcement project to encour-
age Cooperation between' enforcement
authorities in Asia. This project is modelled
on th|e IMPEL/TFS-network; and aims to
enhance enforcement and stimulate coop-
eration between enforcement authorities
where* possible. A start up conference was
held iip December 2000 in Hong Kong. The
projecst itself will start in 2002 with a desk
study | phase where information about pre-
selec1:ed waste streams will; be gathered
and analysed. On the basis of this informa-
tion, physical inspections will be held where
possible and the results of these inspec-
tions will be exchanged.
There will be a "mid-term work-
shop" to evaluate the results and working
methqds, followed by a second round of
contrcils. The project will be finalized after
about| one year and a repo'rt, which will
describe the results, conclusions and rec-
ommeindations for a uniform approach, will
be issued. The report will take also be used
to generate manuals for inspectors to use
in investigating waste shipments. This pro-
ject is still in a starting phase and the fol-
lowing countries have indicated an interest:
China] Malaysia, Hong Kong, Singapore,
Sri Lanka and Japan. The Netherlands will
also take part actively becaus'e of the num-
ber of waste materials that go|from Europe,
through the port of Rotterdam in The
Netherlands, to Asia and because of the
experience and involvement with the
IMPEL/TFS-project. The movements of
specific waste streams will be monitored
between the participating countries and
information will be exchanged that should
contribute to long term and broader knowl-
edge of both enforcement hurdles and
solutions. [
In the mean time, both the enforce-
-------
KROM
17
merit authorities in Hong Kong and The
Netherlands decided to intensify the co-
operation and to inform each other in case
a suspicious waste shipment is detected. A
very effective method uses the internet and
e-mail to send images and information on
inspected waste streams between the two
countries. Based on the rapid exchange of
data, the enforcement authorities in the
country of destination are in a position to
decide whether a suspect shipment may
arrive or not. In quite a few cases where
waste shipments were bound for Hong
Kong, a decision by the authority there was
made fast enough that the waste shipment
could be stopped in Rotterdam before it left
Ihe port. This is a very cost effective
method in comparison to being confronted
with the costs of having to take back and
dispose of the waste after it was found to
have been illegally shipped to another
State.
The secretariat of the Basel
Convention intends to start a similar project
in Eastern Europe that will have the same
goals as the project in Asia. Strong co-
operation with the AC-IMPEL-network (The
IMPEL-network for the accession countries
to the European Union) is desired and fine-
tuning will take place between both organi-
zations, IMPEL and secretariat of the Basel
Convention.
The initiatives of both IMPEL/TFS
•and the secretariat of the Basel Convention
:are mainly focused on the monitoring of
compliance with the regulations. Another
item that is very much related to the com-
pliance monitoring and enforcement is the
combating of international environmental
crime. Especially where Interpol and
national and local enforcement authorities
and police organizations are involved.
Training programs for police organizations
have been organised and information
exchange between the 179 Member States
of Interpol has taken place. Discussions are
going on to see whether the role of Interpol
with regard to environmental issues could
be intensified. This idea, so far calted
"Green Interpol," is also mentioned in the
draft UNEP guidelines on compliance with
and enforcement of multilateral environ-
mental agreements.3 These guidelines are
planned to be approved at the next
Governing Council of UNEP in February of
2002. Besides Interpol, the World Customs
Organization and others are also in a posi-
tion to play an important role.
3 CONCLUSIONS AND REMARKS
The need for a harmonized
enforcement of the transfrontier shipments
of waste regulations is great. While there
are many initiatives going on that may pro-
vide the experience and resources required
to meet this need, an overall view of
enforcement initiatives and projects is still
missing. A good, worldwide, cooperation
and communication network connecting
enforcement authorities is desired.
Networks such as INECE and IMPEL could
play an important role in stimulating a bet-
ter communication and cooperation regime.
4 ENDNOTES
1 The International Notification Bureau (IMA)
in The Netherlands.
2 The Implementation and Enforcement of
Environmental Law-network (IMPEL): http://
europa.eu.int/comm/enviroment/impel/.
3 UNEP-guidelines: http://www.unep.org/
depi/compliancand-enforcement/.
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18
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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Di PAOLA 19
GOVERNMENTAL COORDINATION AND HAZARDOUS WASTE *
ENFORCEMENT IN ARGENTINA
DI PAOLA, MARIA EUGENIA
Director of Research and Training, Fundacion Ambiente y Recursos Naturales (FARM)1
Monroe 2142, 1° B, 1428, Buenos Aires, Argentina
SUMMARY
This paper analyzes environmental enforcement in Argentina, focusing on haz-
ardous waste law, and reviews the unique challenges the country faces, and possible solu-
tions considering the country's situation in relation to the U.S. system. It explores the need
for governmental coordination because this forms the basic foundation on which an
enforcement system of a federal country will be built, improved and strengthened. Although
there are different incipient formal and informal mechanisms of coordination in Argentina,
there is no tradition of intergovernmental coordination between the federal government and
the provinces. Improved coordination could result when Congress fulfills its obligation to
enact minimum environmental standards and the role of COFEMA, which is the body that
coordinates the environmental enforcement authorities of the provinces, is clarified and
strengthened. Environmental enforcement will improve when formal coordination mecha-
'nisms are built upon the basis of solid and enforceable standards and when the system is
.coordinated in a way that allows the authorities to exercise control while answering to citi-
zens through public participation and transparency.
1 INTRODUCTION
Environmental enforcement in
Argentina suffers from several problems,
including a lack of clear enforceable legis-
lation and concurrent, divergent, and over-
lapping responsibilities of the federal
government and the provinces that some-
times result in tension between the parties.
These intergovernmental tensions are gen-
erally related to allocation of powers, coor-
dination and oversight of implementation,
and distribution of resources. Specific for-
mal and informal mechanisms of intergov-
ernmental coordination, some successfully
utilized by the U.S., another federal country
that has to handle the federal government-
state relationship, could be adapted to
improve the specific .situation in Argentina.
The legal context of the Federal
Hazardous Waste Enforcement Authority
has to be improved in accordance with the
1994 amendment of the National Constitution.
This amendment states that the Nation
must establish minimum standards for envi-
ronmental protection and that the provinces
can adopt more stringent standards, but
the current system does not follow this
structure. While there are some provinces
that have their own laws or administrative
regulations to implement hazardous waste
control, many do not. In addition, there is no
formal system that persists through time to
organize the relationship between the fed-
eral government and the provinces. One
solution is to adopt minimum standards leg-
islation with enforceable legal requirements
covering the whole territory and a system
for coordinating, controlling and applying
the law. Another solution is to elevate the
role of the COFEMA in a coordinated sys-
tem. These proposals have to be adopted
together with other initiatives designed to
strengthen the participation of the public
and stakeholders and ensure the trans-
parency of every procedure. Any improve-
ments will require both formal (e.g.
legislation, regulations) and informal mech-
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20
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT '
anisms (e.g. guidelines, agreements), and
cannot be based only upon informal mech-
anisms that are subject to the whim of
implementing authorities.
2 ARGENTINA LEGAL FRAMEWORK
ON HAZARDOUS WASTE
2.1 Argentine Constitutional
Organization, Enforcement
Allocation And Intergovernmental
Issues
In Argentina, provinces have gen-
eral authority over environmental issues2,
subject to the powers that the National
Constitution gives to the National
Congress. The Constitution grants the
National Congress authority to enact legis-
lation regarding international issues; com-
merce among the Nation and the
provinces; penal, civil', mining and labor
codes; and the harmonic growth of the
Nation.3 Most importantly, Article 41 of the
National Constitution amended in 1994
established that the Nation should set forth
minimum standards for environmental pro-
tection. The provinces can then comple-
ment these minimum standards with more
stringent provincial laws.4 Setting and
enforcing minimum standards for environ-
mental protection is of vital importance and
would require enhanced intergovernmental
co-ordination. However, the Argentine
Congress has not yet sanctioned a mini-
mum standard law.5
After the Constitutional Reform, in
Roca the Supreme Court recognized the
provincial authority to resolve coastal zone
management controversies that occur in a
provincial territory concerning a conflict
between a provincial statute and an
International Treaty ratified by the National
Congress.** The Supreme Court held that
provinces have a main role regarding envi-
ronmental issues, based principally upon
Article 124 of the National Constitution,
which states that natural resources belong
to the provinces where they are located.
Before the Constitutional Amend-
ment of 1994, the National Congress had
passed different natural resource protection
and hazardous waste management legisla-
tion. A province needed to ratify that legis-
lation in order to apply it within its territory,
unless it had provisions regarding powers
granled by the Constitution to the Congress
(e.g. bivil, criminal liability isslies, which are
applicable in the whole territory). The cur-
rent Hazardous Waste Law was passed
before the amendment of the National'
Constitution and it needs to;be adapted to
the new constitutional framework.? Unlike
the United States Environmental Protection
Agerjcy (USEPA), the Argentine Federal
Authority does not have ; an oversight
powe|r. Nevertheless, it enforces federal
legislation if there is a related inter-jurisdic-
tionaj or international matter, such as the
movement of hazardous waste.
Although the Constifution provides
the basis for the intergovernmental distribu-
tion of environmental powers, and the
statutes as well as the administrative regu-
lations provide more detail, there are
always doubts and questions regarding the
scope of environmental functions of each
level | of government. The clarification of,
each: role is important in order to seek both
effective and efficient pnvironmental
enforcement.8 Generally, there is agree-
ment! about basic points and responsibili-
ties pf each level of government, but
problbms arise regarding details or con-
crete interpretations of each party's role.
When there is a problem between
the federal government and the states/
provinces, both the Argentine and the
American Constitutions present the judicial
avenue of original jurisdiction of the
Supreme Court to solve the controversy^ In ;
terms of day-to-day solutions, the judicial
treatment of the problem is neither practical
nor cost-effective. Consequently, a solution
relying on a partnership, rather than judicial
intervention, is required. !
I ;
2.2 | Argentine Hazardous
Waste Regime10 j
In Argentina, Law N0. 24.051, Jan.
8, 1992 [B.O. 01/17/1992] is the Federal;
Hazardous Waste Statute (HWS).The HWS
was enacted before the [Constitutional
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Di PAOLA 21
amendment of 1994, and it was the first fed-
eral statute that considered an environmen-
tal issue not directly related to management
of natural resources. Like the Resource
Conservation and Recovery Act (RCRA) in
the U.S., the Argentine statute regulates the
management of hazardous waste from the
cradle to the grave. It therefore regulates the
activities of generators, transporters, and treat-
ment, storage, and disposal facilities (TSDs).
The HWS encompasses different
kinds of provisions. On one hand, civil and
criminal liability provisions are applicable in
the whole territory of the country, because
Congress passed them under its authority
to enact penal and civil codes.11 On the
other hand, non-civil or criminal liability pro-
visions are applicable only in places sub-
ject to national authority and in the
provinces that ratify the statute. They are
also applicable to international and inter-
provincial activities, and to certain activities
that could directly or indirectly affect peo-
ple, environment and commerce beyond
provincial boundaries.12
The Federal Hazardous Waste
regime also applies when the authority
establishes hygienic and security mea-
sures that require national uniformity either
to assure effective implementation or to
prevent an anti-competitive impact on the
regulated community.13 In addition to the
specific cases contemplated by the HWS
and its Regulatory Decree, the Federal
Authority also intervenes if there is a col-
laboration agreement with a specific
province, or if there is a special request
from a local authority.14
Currently, out of the 23 provinces
that make up Argentina, 14 have ratified the
statute, 7 have their own laws (2 of them
are chapters on hazardous waste in gener-
al environmental provincial laws), and two
have neither ratified the federal statute nor
enacted a separate law (although one of
'• these enacted an administrative decree
regulating hazardous waste activities). Out
of all the provinces in Argentina, only 14
have promulgated regulatory decrees and
administrative regulations to implement
their statutes (3 of them only addressing
wastes containing pathogens).1^
In comparison to the system in
Argentina, the RCRA federal government-
state relationship in the U.S. is substantial-
ly different. To analyze RCRA, it is
necessary to examine the basis and limits
of USEPA's oversight and coordination
functions.^ Coordination and oversight are
not synonyms. Among others, oversight
can be considered as a tool to achieve
coordination. To coordinate intergovern-
mental activities on RCRA implementation,
the U.S. Congress granted the federal
agency oversight power over the state
agencies. RCRA gives USEPA authority to
supervise the states, recognizes that the
states retain jurisdiction to pass more strin-
gent standards, and establishes an obliga-
tion for USEPA to disclose information to
Congress and to conduct periodic compli-
ance inspections.17
USEPA directly applies RCRA in
states that do not have an approved pro-
gram. Its oversight authority is applicable in
states with approved programs.18 An autho-
rized state program operates in place of the
national program and the actions of the
state program have the same force and
effect as if taken by USEPA. The approval
of a state program requires not only that
USEPA determine the state program is
consistent with RCRA, but also that USEPA
make the decision using a specific proce-
dure involving the submission of the state
program, an opportunity for public notice
and comment period, and a public hearing
if there is sufficient interest.19
After the approval of a state pro-
gram, USEPA has different tools to oversee
it. One tool is the funding that USEPA gives
to the -states for implementation and
enforcement assistance.20 Another tool is
its enforcement of RCRA in a state with an
approved program.21 In addition, USEPA
has developed different guidelines in order
to coordinate enforcement activities with
the states. Although USEPA's enforcement
authority in a state with an approved pro-
gram has limits, such as when there is a
timely and appropriate response from the
state, or where the doctrine of res judicata
applies, states and USEPA have different
opinions regarding the ability of USEPA to
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22
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
enforce the law in a state with an approved
program when the state has already
brought an action to enforce RCRA.22 Any
state with an approved program has obliga-
tions, which include reporting on the devel-
opment of the program to provide for
accountability.
As an extreme tool, USEPA can
withdraw its approval if the state is not
administering its program in a proper man-
ner. The USEPA has to follow a specific
procedure to withdraw its approval, giving
the state notice and opportunity for a hear-
ing,23 but there has been no case where
this has occurred.*" While USEPA's use of
this oversight power has been criticized,
the many recognize that this relationship
assists states by providing them with fund-
ing and technical expertises
2. 3 Environmental Authority In
Argentina: Organization
And Resources
The Federal Enforcement Authority
of the Hazardous Waste Regime in
Argentina is the Secretariat of Environment
and Sustainable Development, Ministry of
Social Development.26 The Hazardous
Waste Statute creates a Federal Register
of Hazardous Waste, in the Direction of
Environmental Organization, under the
scope of the Federal Authority. The task of
the Hazardous Waste Federal Register is to
exercise control over generators, trans-
porters, and TSDs, whose registration is
mandatory. The Federal Authority also has
authority over issues related to the Basel
Convention, approved by the National
Congress.2?
The Federal Register is located in
the city of Buenos Aires, and, like the rest
of the Federal Authority, it does not have
regional offices. Many enforcement officials
believe it would be useful to establish
regional offices in order to enhance the
relationship between the provincial and the
federal authorities, as well as the regulated
community and the public in general.28
Regarding the relationship with
other areas of the federal government, the
Hazardous Waste Statute has created an
Inter-ministerial Commission on Hazardous
Waste. The Inter-ministerial Commission!
includes: the Ministry of Economy (trans-
porta^ion, industry, and commerce), the
Ministry of Defense (Coast Guard and
Prefecture), and the Ministry of Health
(Heath, housing, and environmental quali-
ty) .29 The Federal Register organizes and
coordinates the Irtter-ministerial
Commission, which can achieve its goals if:
the issue involved is only under the direc-!
tion of the Environmental Authority and
requires the collaboration of jthe rest of the
areas;. When the issue invofv^d is under the
authcirity of other agencies as well, it is dif-
ficult for the Inter-ministerial Commission to
arrivei to an agreement, ever) at the techni-
cal levels Although the Hazardous Waste
Statute creates a Consultanjt Council, with
an advisory character^ it has not directly
considered the issue of coordination
between the Federal Authority and the
Provinces.32 j
The Argentine Hazardous Waste
Law Ipas civil, criminal, and administrative
enforcement provisions. The Register inter-
acts i with the legal office of the
Environmental Authority for ^administrative
enforcement.33 Regarding the criminal and
civil procedures, the Ministry of Social
Devel|opment has its own General Direction '.
of Juidicial Issues, which represents the
Ministry in Courts. Regarding cases where
the government is a party, there are no spe-
cific guidelines for communicating with the
Attorney General, although she often con-
sults the hazardous waste Federal Register
in an ^informal way.34 '•
\ The Federal Authority does not have
an Office of Enforcement. Nevertheless, it
has an Environmental Sanctions Division,
which! directly reports to the J3ecretary. The
Federal Authority communicates the infor-
mation about specific administrative sane-'.
tions to the Criminal Couft, specifically
considering whether there has been a crim-
inal offense in addition to thejadministrative
offense, when there is a manifest offense
affecting the environment orj public health. ,
This determination is based on its own dis-
cretion and criteria, which are not stan-
dardised. The prosecutor has to analyze
the case and continue with trip criminal pro-
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Di PAOLA 23
cedure if enough evidence is gathered.35
Regarding the structure of the
Federal Authority, it is important to consid-
er that the COFEMA was included in its
organization. The COFEMA, which congre-
gates the environmental authorities of the
provinces and the Nation, has a very impor-
tant role regarding exchange of information
and coordination among the provinces and
the Nation.
With respect to financial resources
of the authorities, the public budget of
Argentina has decreased in recent years. In
addition, the provinces obtain no financial
assistance from the federal government for
environmental or hazardous waste enforce-
ment. Problems with resource availability
: have been documented and present a sig-
:nificant impediment to solving the current
problems in Argentina.^ Staffing, of
course, is closely related to funding and
specific strategies, such as the use of
deterrent sanctions against well-known
companies, are sometimes emphasized in
order to address these weaknesses.
Although funding and staffing concerns are
documented in both U.S. and Argentina,
there is a significant contrast between the
needs in the two countries.37
In Argentina, the HWS mandates
to the Administrator in its section 60(f) "to
create an information system to which the
public shall have free access, in order to
make public all the measures to be imple-
mented in relation to the generation,
manipulation, treatment, and final disposal
of hazardous waste."38 The website of the
Federal Register of Hazardous Waste in
Argentina publishes the list of registered
transporters and TSDs.39 Regarding the
relationship of the information of the
Federal Authority and the provinces, nei-
ther the provinces nor the Federal Authority
has the same kind of information, because
it is not standardized .*> Sometimes the
provinces do not have information at all,
and although a National Information
System was organized in 1999, it has not
been updated is unreliable at best.41
RCRA establishes different require-
ments for the states and USEPA to contin-
uingly compile and publish a hazardous
waste site inventory^ for federal facilities to
continuingly compile and publish an inven-
tory of federal agency hazardous waste
facilities,-'3 and for the Department of
Energy (DOE) to submit mixed waste
inventory reports to USEPA and the
states.44 The USEPA, in cooperation with
the states, also maintains a Resource
Conservation and Recovery Act
Information System (RCRIS), which con-
tain information on waste types and treat-
ment regimes. It also has a Biennial
Reporting System, in which both the
USEPA and the states collect information
regarding management of hazardous
waste under RCRA. The Memorandum Of
Agreement Guidance for FY 2000-2001
presents specific indications on Program
Leadership and Evaluation, listing the data
elements that have to be "entered into
RCRIS in a timely manner by both federal
and state enforcement personnel to accu-
rately reflect their activities."45 It also estab-
lishes Reporting Forms for State and
Regional Projections.
3 FORMAL AND INFORMAL INTERGOV-
ERNMENTAL MECHANISMS
Unlike the U.S., a country that has
developed different formal and informal
mechanisms to coordinate environmental
enforcement among the federal authority
and the states and within the federal struc-
ture, Argentina does not have mechanisms
for achieving coordination.^ It does, how-
ever, have some incipient mechanisms that
need to be more fully developed.
3.1 Formal Mechanisms: Agreements,
Joint Inspections
The Argentine Hazardous Waste
Statute, which was enacted before the
Constitutional amendment of 1994, does
not provide a minimum standard for envi-
ronmental protection. Nevertheless, there
are specific situations in which the Federal
Authority can act regardless of whether a
province has ratified the statute.
On the other hand, the ratification
of the statute does not mean that a
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24
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
province will regulate in the same manner
that the Nation does. When evaluating the
statistics, although sixty two percent of the
provinces have ratified the statute, and thir-
ty percent have their own laws, only sixty
two percent have regulatory decrees. That
means that only sixty two percent have
implementing regulations. Some provinces
that do not have their own registers or reg-
ulations have required generators located in
their territory to be registered at the Federal
Hazardous Waste Register. Companies
located in provinces that do not have laws,
regulations or registers, and that want to
conserve their place in the business com-
munity, have directly registered at the
Federal Register.
In 1997, the Environmental
Authority of the Province of Buenos Aires
and the Federal Environmental Authority
signed an agreement to solve different haz-
ardous waste administrative aspects of
each authority, such as registration and tax
payments. Unfortunately, in 1998, the
Province of Buenos Aires rescinded the
agreement. The unfortunate end of that
agreement did not stop the desire of the
Federal Register and the Provinces.to coor-
dinate their activities.
In 2000, the Federal Authority and
the Province of Misiones signed an agree-
ment, which established that the Federal
Register would centralize registrations of
generators, transporters and TSDs from
the province until the province promulgated
the regulatory decree to administratively
implement its hazardous waste law. In
2001, they signed a supplementary agree-
ment of collaboration to establish the
provincial register with national support on
funding, training and information. They also
established that funding and control activi-
ties would be implemented jointly.
Currently, an agreement with the
Province of Mendoza is also under analy-
sis, regarding the possibility of approval of
environmental provincial licenses for gener-
ators, transporters and TSDs by the
Federal Authority, in order to consider them
with the same force and effect, and in place
of federal licenses.*? The Province of
Buenos Aires is also working on the design
of anjoperative agreement. In addition, the
Federal Authority signed an agreement
with Gendarmeria (the force in charge of '
internal and border security), and Policfa :
Aeroriautica (Air Force), in ofder to coordi- •.
nate ^heir enforcement activities on haz-
ardous waste. The role and; value of joint :
inspections is under active; consideration
because they can provide better control of
the community and create better relation-
ships between the federal government and
the provinces.48
3.2 : Informal Mechanisms: Cofema's
\ Role, Decentralization
| The Federal Authority, the
provinces, and the City of Buenos Aires are
part pf COFEMA (Consejo Federal de
Medici Ambiente), the Federal Council of
Environment. COFEMA was created in
1983 by a general agreement in which dif-
ferent governors and the federal govern-
ment j decided that it was jnecessary to
exchange environmental information and
coordinate environmental pplicies among
different jurisdictions. COFEMA has meet-
ings every 3 months and promulgates reso-
lution^ that are not enforceable but are
basic | recommendations tljiat currently
receive special consideration from the
Federal Authority.-" In 2000, COFEMA was
included in the structure of the Federal
Environmental Authority of Argentina and
the president is the Secretary of
Envircinment and Sustainable! Development
of the |Nation.so The collaborative attitude of
the provinces and the Federal Authority are
fundamental issues that | characterize
COFEMA.51
i Nevertheless, there jis no formal
rule creating COFEMA. It does not have
enough funding to support an efficient
working structure and does not have
enough staff to work efficiently. It should
have a permanent representation of the
provinces in a day-to-day relationship with
the Federal Authority and mob permanent
meetings.52 Different structures utilized
abroad, such as the national Association of
state and territorial environmental commis-
sioners in the U.S., ECOS, mky be consid-
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Di PAOLA 25
ered a reference point for improving COFE-
MA.53 in addition, COFEMA could serve as
a vehicle for different joint activities, such
as training activities, provincial and federal
visits, and periodic meetings.^
By means of a project called:
"Aspectos de la descentralizacion ambien-
tal" (Environmental Decentralization
Aspects), the Federal Authority has started
encouraging coordination of efforts among
federal and provincial authorities, aiming at
decentralizing the Federal Register of
Hazardous Wastes The Federal Register,
in collaboration with the World Bank, orga-
nized a first general meeting in 1999. The
first meeting allowed participants to
exchange information and identify common
problems. A commission was created to fol-
low up with the development of the decen-
tralization project. After the general
meeting, five interprovincial workshops
were organized, where not only the provin-
jcial authorities but also representatives
from other organisms, such as the Coast
Guard, Gendarmerfa, Policfa Ecologica
(the police in charge of ecological misman-
agement), and firemen participated.
A second general meeting was
organized in 2001, arrived at important
conclusions regarding the necessity of a
general inventory of hazardous waste in
Argentina, the necessity to promote more
agreements between the Federal govern-
ment and the provinces, and a proposal for
the participation of COFEMA in the Inter-
ministerial Commission created by the
Hazardous Waste Law. The process of
decentralization needs to continue, and to
be complemented by adoption of formal •
mechanisms of coordination.
4 CONSIDERATIONS FOR ARGENTINA
In Argentina, institutional organiza-
tion is needed to allow for better environ-
mental law enforcement. Institutional
organization, in. turn, will necessarily
require that the many intergovernmental
; relations problems be solved. A formal
system of coordination between the federal
government and the provinces with clear
roles for each part is crucial. Coordination
within the bureaucratic structures of both
the federal and the provinces governments
is also needed. Improved bureaucratic
coordination would facilitate the relation-
ship inside a given level of government as
well as among different levels of govern-
ment, in addition, it would enhance the role
of the administrative authority regarding
administrative and judicial enforcement.
Formal mechanisms involve not
only statutory or regulatory mechanisms,
but also guidelines, which are, very useful
tools for addressing specific day-to-day sit-
uations. In the U.S., RCRA and its regula-
tions provide an appropriate statutory
framework, but guidelines, policies, and
state-federal agreements play crucial parts
in the implementation scheme.56 While
other informal mechanisms of coordination
are also fundamental, they require the exis-
tence of a baseline, or basis of reference,
which must be formalized. A formal system
of coordination implies the presence of a
coordinator and in Argentina, it is important
to address who assumes that role, what are
its limits, and if whether the coordinator
should assume an oversight function.
In the U.S. system, there is a clear
oversight role for USEPA. Characteristics
that are different from those in Argentina
help make the system work. There is not
only control from within and by Congress, it
is also controlled by the community. Not
only is there a system that provides for
access to justice, public participation, citi-
zen enforcement, and an open administra-
tive procedure, but there is also activity
within each of these areas. Consequently,
although USEPA oversees the state agen-
cies, USEPA is itself controlled by the fed-
eral legislative and judicial entities and its
citizens.
The situation in Argentina is very
different. Even though there is also a sys-
tem of checks and balances, the control of
the authority from the citizenship is poorly
defined and undeveloped. Although the
right to obtain injunctive relief was incorpo-
rated to the Constitution,57 the avenues of
public participation are only just starting to
be used. Problems associated with eco-
nomic difficulties and a perceived lack of
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, I , j mll IIM
26
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
transparency in governmental decision-
making can only be solved by the assertion
of an institutional strength that persists over
time and governing administrations. There
is clearly good attitude from the current
environmental authority regarding the rela-
tionship with the provinces.ss Nevertheless,
there is no institutional mechanism that
guarantees that future administrations will
have the same attitude.
In the end, the role of the Federal
Authority has to be one of coordination of
various authorities, with opportunities for
participation by both citizens and regulated
parties. Although there is a benefit from
central authority, there is also a risk that the
citizens will lose control of that authority.
This does not mean that the Federal
Authority must not have a main coordina-
tion and harmonization role. Rather, it
means that the coordination and supervi-
sion role of the Federal Authority should be
shared with other entities. A real possibility
of a balanced coordination and supervision
system is a system in which both the
Federal Authority and the COFEMA share
those functions. These functions should be
clearly determined, considering and craft-
ing the relationships between federal gov-
ernment and provinces, and federal
government and COFEMA, in a specific
bureaucratic structure.
5 FUTURE TRENDS: MINIMUM
STANDARDS AND COORDINATION
There are different views regarding
how the minimum standards of environ-
mental protection should be designed. One
trend considers that due to the federal
organization of the country and the shared
responsibilities of the federal government
and the states, it is necessary to follow a
two-step process. A first step is to enact a
framework environmental law. This frame-
work law would involve basic environmental
policy issues, roles of each level of govern-
ment, and would establish the definition of
minimum standard for environmental pro-
tection, and the basic elements of a nation-
al environmental policy.sa A second step
would be to enact different; specific laws
covering specific natural resources or envi-
ronmental areas, such , as Water,
Hazardous Waste, contemplating the basic
framework of the Environmental Law
already enacted.60 ;
Another trend prefers to go directly
to eaiph specific law, rather trjan to enact a
framework of environmental (aw in order to
defined a minimum standard |and to assign
responsibilities. This trend considers that
the Constitution presents a b|asic organiza-
tion to enact the minimum standard law and
that ill is not necessary to follow the two-
step process proposed by the "framework-
law" approach. Whichever t approach is
pursued, a different role should be
assigned to the different parties in the fed-
eral scenario. Consequently, it will be cru-
cial for environmental law enforcement for a
minimum standard of environmental pro-
tectioih statute to define the role of each
level of government. A tiered approach,
such as the approach of the framework law
of environmental protection, \k>uld take inf:o
account the different roles as a first
instance, and the specific statutes for each
environmental issue in a secjond instance.
An advantage of such system is that a min-
imum jstandard of environmental law for the
hazardous waste system would have a real
coherence with the rest of th$ environmen-
tal statutes of minimum standards at the
federal level. ,
| Nevertheless, debate regarding
which is the best way to incorporate the
coordination mechanisms between the fed-
eral government and the provinces in a
minimum standard for environmental pro-
tection should be encouragecj. An appropri-
ate dtebate should at least bonsider how
hazardous waste management can be han-
dled, the federal role in that; scenario, the
COFEiMA role and its interaction with the
Federal Authority regarding! coordination,
and supervision of the program. Different
examples and cases can be [analyzed in a
debate, such as the situation in provinces
that do not apply a minimum standard for
envircinmental protection in its territory,
cooperative solutions, the way to install a
uniform and equal basis regarding the right
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D/ PAOLA 27
to all the inhabitants of the territory to a
: healthy environment, a non deceptive
industrial authority, and respect for the
main role of the provinces regarding envi-
ronmental enforcement.61
In addition, an essential issue
regarding the design of a minimum stan-
dard for environmental protection is biid-
!geting. A system without a real basis of
application may be a fictional system in a
real life situation. The budgeting issue relat-
ed to the mechanisms of coordination
between the Federal government and the
provinces should be included in a minimum
standard for environmental protection
statute. There must be a commitment sup-
ported by the Congress related to environ-
mental prioritization. The economic
situation of the country cannot be an
excuse for failure to consider the issue. On
the contrary, because the economic situa-
tion is problematic, issues have to be prior-
itized in a tiered approach. The design of
strategic plans, and prioritizations regard-
ing a goal, but with specific milestones,
should be considered in a proposed future
environmental minimum standards statute,
as well as in the specific statute regarding
minimum standards for hazardous waste.
• COFEMA must play a critical role
in any national poHcy, a role that must be
clearly established in the minimum stan-
dards law. The COFEMA should also have
a formal structure. Issues such as funding
; and staffing should be contemplated. It
should have a permanent representation of
the provinces in a day-to-day relationship
with the Federal Authority and more regular
meetings. Additionally, it should have an
organization that lets the provinces channel
their specific needs for addressing prob-
lems in specific areas, such as, hazardous
waste, air, etc.sa
Although COFEMA was incorpo-
rated in the organizational chart of the
Federal Authority, the Federal Authority
should have more direct access to the
provinces in order to encourage develop-
ment of a day-to-day relationship. The cre-
ation of regional offices, such as utilized in
the U.S., could help to encourage a fluent
communication with the provinces.
Although a push for improved gov-
ernmental coordination in Argentina solves
some problems in the environmental law
enforcement context, it also raises numer-
ous questions. Different tools should be
used in order to provide more in-depth
analysis of this issue. A consensus among
the provinces and the Federal Authority
regarding the specific issues that require
partnership solutions, and, consequently,
appropriate mechanisms, must be
achieved.es Dialogue, analysis, and specific
technical proposals are fundamental build-
ing blocks that are heeded in order to gen-
erate an efficient system that persists over
time. In addition, public participation,
access to justice, transparency of the
administrative process, and a procedure to
define the national, provincial, and local
budget are crucial components.
Ultimately, adequate enforcement
of environmental law will require significant
analysis and consensus about these inter-
linked issues as well as the recognition that
each party has an ethical responsibility to
work to achieve a common interest. When
this analysis and consensus are joined with
clear mechanisms for implementation and
maintenance, Argentina may finally have
the tools it needs to ensure compliance
with environmental laws and an environ-
ment that all of its communities and citizens
can enjoy.
REFERENCES
Warmest thanks are due to Prof. Jeffrey
Miller, Prof. Maria Wieder, Prof. Steven
Solow, Cheryl Wasserman, Arthur
Horrowitz, Silvia Nonna, Nestor Pulichino,
Carlos Moyano, Raquel Aguero, and to all
the people interviewed for this piece.
2 Argentina has a federal system, under
which the provinces retain the power that
has not been granted to the Nation
(Articles 1, 5 and 121 Const. Nac.).
3 See Article 75. In the same article, the
National Constitution acknowledges the
ethnic and cultural pre-existence of
Argentine indigenous peoples. It
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28
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
attributes to the Congress the power to
assure concurrently with the provinces,
the indigenous participation in the admin-
istration of the natural resources and
other interests that may affect them.
4 The municipalities have their own police
power that has to be in accordance with
provincial power on environmental issues.
5 Different bills have been presented in
Congress. They reflect different tenden-
cies regarding the interpretation of what a
minimum standard is. Those trends will be
considered infra.
6 See "Roca, Magdalena c/Buenos Aires,
Provincia d s/inconstitucionalidad" CSJN
[1996-B] L.L. 137 y ss. In this case, the
plaintiff sued the Province of Buenos
Aires. The legislature of the Province of
Buenos Aires had approved an agree-
ment between the Province and a private
corporate in order to modify aspects of
the provincial coast. The plaintiff sought a
ruling that the provincial law was uncon-
stitutional, arguing that it conflicted with
an International Treaty with Uruguay
(Tratado del Rio de la Plata), ratified by
the Congress. The Supreme Court stated
that this kind of controversy needed to be
solved in provincial jurisdiction and it was
not under the umbrella of the original
authority of the Supreme Court.
7 The Law No. 24,051 was promulgated in
Jan. 8, 1992 and published [B.O.
01/17/1992]. Its Regulatory Decree No.
831 was promulgated in Apr. 23, 1993
and published [B.O. 05/03/1993].
Regulations have been promulgated
since 1993.
8 Interview with Cheryl Wasserman,
Associate Director for Policy Analysis,
Office of Federal Activities, Office of
Enforcement and Compliance Assurance,
on 04/19/01, Washington, D.C.; Interview
with Nestor Pulichino, Senior Counsel
Province of Buenos Aires Environmental
Authority, e-mail on 05/24/01.
9 See U.S. Constitution Article III Section 2
(2), and Argentine Constitution Article
117.
10 The federal implementation of the
Hazardous Waste regime Encompasses
different elements that involve a
Regulatory Decree and regulations pro-
mulgated by the Environmental Authority.
11 Article 75, Section 22, National
Constitution. Law No, ;24,051. Civil
Liability provisions are in Chapter VII, §§
45 to 48. Criminal liability provisions are
in Chapter IX, §§ 55 to 58;
12 Inter-provincial activities {involve inter-
prqvincial transportation, 'by earth, by
inter-provincial waterways, by national
navigable waterways or by other means,
although accidental, like! by the wind
action or other natural [phenomenon.
Regulatory Decree No. 83:1/93, § 1.
13 See Law No. 24.051 § 1. Regulatory
Decree No. 831/93, § 1.
14 See infra.
15 See Di Paola, Maria E. & hkpoli, Andres.
Situacion del Regimen \ Nacional de
Residues Peligrosos. Ed. La Ley, 2000,
page 16. See also http://www.medioam-
biehte.gov.ar/dnoa/registro/default.htm.
16 Oversight is "the responsibility of super-
vising somebody or something", Oxford
Dictionary of Current English, (5th
Edition, 1995), Page 828 To coordinate is
"to jmake things, people, parts, etc. func-
tion together efficiently and in an orga-
nized way" Oxford Dictionary of Current
English, (5th Edition, 1995^, Page 257.
17 RC|RA § 2006, 42 U.S.C. §16915 requires
the! Administrator to present an annual
report to the Congress and the
Preisident.
: i
18 "49 States and territories have been
granted authority to implement the base,
or initial program. Many also are autho-
rizeid to implement additional parts of the
RCRA program that USEPA has since
promulgated" i
http://www.epa.gov/epaoswer/hazwaste/
state/index.htm. See also http://www.
ssQi.org/ecos/statutes/rcraj.htm, which
contains information about each state
approved program. !
1940CFRPart271. '.
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Di PAOLA 29
,20 USEPA may grant or withhold those
funds depending on its evaluation of the
states' implementation of the program.
21 RCRA § 3008, 42 U.S.C. § 6928 estab-
lishes the availability of administrative,
civil, and criminal enforcement actions
against non-compliers.
22 See In the Matter of BKK Corp., Docket
No. IX-84-0012 - Final Order RCRA
(3008) 84-4. "Region (of USEPA) claims
that USEPA can at least take enforce-
ment action when state action is inade-
quate" "In this case, far from being
inadequate, the State's action was rea-
sonable and appropriate." In U.S. v.
Environmental Waste Control Inc., 710
Supp. 1172, (1989) the Court considered
the violations of a state program and
RCRA requirements that were not part of
it although authority of USEPA RCRA §
3008 42 U.S.C. § 6928 (Federal
Enforcement) was not affected by the
state program 'The Court had little diffi-
culty in holding that" See Miller &
Johnston op. cited at note 8, page 373.
"In U.S. v. PPP Inc., 742 F. Supp. 956
(1990), the Court considered that the
consent judgment in a state court did not
relieve PPP of obligations under RCRA.
Different sources considered Harmon
Industries v. Browner, 191 F. 3d 894. (8th
Cir. 1999), in which the Eight Circuit
decided a case specifically raising issues
related to USEPA's oversight limits. The
court held that once a state was autho-
rized under RCRA to administer and
enforce a hazardous waste program, an
enforcement action brought by the state
precluded the USEPA from assessing its
own penalty for the same violations.
Although Harmon sets clear limits to the
oversight power of USEPA in a state with
an approved program, the underlying
rationale has been criticized in rulings by
other federal courts.
23 RCRA § 3006(e), 42 U.S.C. § 6926(e),
- 40 CFR Parts 271.22 and .23.
24 interview with Betsy Devlin, Director of
RCRA Enforcement Division OECA.
USEPA, on 04/19/01, in Washington D.C.
25 Interview supra note 33; Interview with
Maria Wieder, Assistant Regional
Council USEPA Region 2, on 03/16/01,
New York City; Interview with Ron
Schipew, Counsel for the American
Chemical Manufacturers Association, on
04/20/01, Washington D.C.; Interview
with Salvatore Carlomagno, Supervisor,
Compliance Section, Bureau of
Hazardous Waste Facilities Division of
Solid and Hazardous Materials, New
York Department of Environmental
Conservation, on 04/26/01, Albany, N.Y.;
Interview with Gail Hintz, Assistant
Regional Attorney New York Department
of Environmental Conservation Region
2, on 04/06/01, White Plains, N.Y.;
Interview with Leonard Grossman,
Senior Enforcement Specialist, RCRA
Compliance Branch, USEPA Region 2,
on 03/29/01, New York, N.Y.; Interview
with Arthur Horrowitz, USEPA Program
Analyst, OECA/OPPAC, on 04/20/01,
Washington D.C.
26 See Regulatory Decree 357/2002, Feb.
21, 2002 [B.O. 02/22/2002].
27 See Law No. 23.922, Apr. 24,1991 [B.O.
04/24/1991]
28 The experience of the U.S. can be useful:
USEPA is organized in regional offices,
with headquarters in Washington. The
organization in ten regions lets USEPA
have better access to different parts of
the country. The headquarters office
develops policy. Regions implement this
policy and deal with the states.
29 See Law No. 24,051 § 62.
30 Interview with Silvia Nonna, Coordinator
of the Argentine Federal Hazardous
Waste Register, on 04/30/01, by e-mail.
si See Law No. 24,051 § 63.
32 Interview with Silvia Nonna, Coordinator
of the Argentine Federal Hazardous
Waste Register, on 04/30/01, by e-mail;
Interview with Raquel Moyano, Member
of the Consultant Council, on 07/18/01.
33 Administrative sanctions are: warnings,
fines, suspensions of the registration,
cancellation of the registration, closure.
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30
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AN'D ENFORCEMENT
Administrative specific procedure is
established by Administrative resolution
255/01 of the Federal Authority.
34 Interview with Silvia Nonna, Coordinator
of the Argentine Federal Hazardous
Waste Register, on 04/30/01, by e-mail.
35 In the U.S., the guidelines regarding the
importance of the deterrent effect of dif-
ferent specific sanctions, and the proce-
dure of USEPA and DOJ to select those
leading sanctions are, for example, part
of a coordinated system that tries to seek
efficient enforcement.
36 An example is the lack of resources. The
Federal Register on Hazardous Waste
has to work with shared computers. In
addition, the computers are not part of a
network connected with other offices of
the Environmental Authority as well as
other offices of the Public Administration.
See Interview with Silvia Nonna,
Coordinator of the Argentine Federal
Hazardous Waste Register, on 04/30/01,
by e-mail.
37 Interview with Silvia Nonna, Coordinator
of the Argentine Federal Hazardous
Waste Register, on 04/30/01, by e-mail;
Interview with Hassan Hussein,
Environmental Engineer, Hazardous
Waste Program, New York Department
of Environmental Conservation Region
2, on 04/05/01, New York, N.Y.; Interview
with Salvatore Carlomagno, Supervisor,
Compliance Section, Bureau of
Hazardous Waste Facilities Division of
Solid and Hazardous Materials, New
York Department of Environmental
Conservation, on 04/26/01, Albany; N.Y.
38 See Paya, Horacio Hazardous Waste: A
Comparative Study of The United States
and Argentine Laws. Fall 1992. Horacio
Paya has considered section 60(f) in
relation to access to information and
rulemaking in head of the Federal
Authority in a paper that he wrote prior to
the promulgation of the Regulatory
Decree of the Hazardous Waste Statute.
39 See http://www.medioambiente.gov.ar/
dnoa/ registro/defaulthtm.
40 Interview with Nestor Pulichino, Senior
Counsel for the Environmental Authority
of [the Province of Buenos Aires, on
05{24/01, by e-mail.
41 Interview with Silvia Nopna, Coordinator
of the Argentine Federal Hazardous
Waste Register, on 04/30/01, by e-mail.
42 RQRA § 3012, 42 U.S.C. § 6933.
43 RCIRA § 3016, 42 U.S.C. ^ 6937.
44 RCRA § 3021, 42 U.S.C. «[ 6939.
45 Se^ FY 2000/2001 6ECA MOA
Guidance, Attachment 4, page 29. The
data elements are: "1) evaluation core
elements 2) violation core elements, 3)
enforcement core element^."
46 In (he U.S., in addition to the statutory
and regulatory mechanisms of coordina-
tor), we can consider different guidelines
and agreements that are useful for coor-
dination between the federal government
and the states and within the structure of
the federal government. Among them,
we can address the following:
FY 2000-2001 OECA Memorandum of
Agreement (MOA) Guidance (basis for
the| development of individual agreement
between headquarters and each region);
Memorandum of Understanding
between the Department
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D; PAOLA 31,
Response Policy, March 15 1996 (it con-
siders the relationship between EPA and
; the states on RCRA enforcement
responses);
Joint Commitment to reform oversight
and create National Environmental
Performance Partnership System, 1995;
Joint Statement on Measuring Progress
Under NEPPS: Clarifying the Use and
Applicability of Core Performance
Measures, 1997, Addendum in 1999
(NEEPS: The National Environmental
Performance Partnership Systems that
are negotiated by EPA Regions and the
: states) Progress under NEPPS has been
improved by a EPA -EGOS Joint
Statement in 1997, with a 1999 adden-
dum; and
Memorandum of Agreement between
the State of New York and The United
States Environmental Protection Agency,
Region II, 1992, Addenda 1997 (It is an
example of an MOA between the federal
government and the states).
47 Interview with Silvia Nonna, Coordinator
of the Argentine Federal Hazardous
Waste Register, on 04/30/01, by e-mail.
48 Interview with Silvia Nonna, Coordinator
of the Argentine Federal Hazardous
Waste Register, on 04/30/01, by e-mail.
49 COFEMA Agreement was not ratified by
all the legislatures of the provinces.
50 Regulatory Decree No. 677, Aug. 9,2000
[B.O. 08/14/2000].
51 Interview with Carlos Moyano,
Coordinator of COFEMA, on 7/28/01.
52 Interview with Silvia Nonna, Coordinator
of the Argentine Federal Hazardous
Waste Register, on 04/30/01, by e-mail.
53 The Environmental Council of States
(EGOS) was established in December
1993. It is the national association of
state and territorial environmental com-
missioners. EGOS' mission is to champi-
on the role of states in environmental
management; provide for the exchange
of ideas, views, and experiences and
foster cooperation and coordination in
environmental management; and articu-
late state positions to Congress, federal
agencies and the public on environmen-
tal issues. EGOS has an office in
Washington. It has different committees
devoted to specific issues. Among those
committees, there is a Waste
Committee. The Waste Committee is
looking at federal facilities and the impact
on states of long-term stewardship of
hazardous waste sites.
54 See http://www.medioambiente.gov.ar/
mlegal/cofema/menu_cofema.asp.
55 This project was financed by the World
Bank.
56 In addition, in the U.S. formal mecha-
nisms reflected in guidelines have devel-
oped.
57 Article 43 of the National Constitution.
58 According to Pulichino, there is a recog-
nized good intention, and good expecta-
tions from provinces, but involvement of
provinces in the national policies has to
be improved. Interview with Nestor
Pulichino, Senior Counsel for the
Environmental Authority of the Province
of Buenos Aires, on 05/24/01, by e-mail.
59 See Sabsay, Daniel. El nuevo artfculo 41
de la Constitucion Nacional y la
Distribucion de Competencies Nacion-
Provincias Doctrina Judicial Ano III/ No.
28 (07/23/1997) Ed. La Ley, Buenos
Aires. P. 783-787.
60 See Nolon, John. Fusing Economic and
Environmental Policy: The Need for
Framework Laws in the United States
and Argentina. 13 Pace Envtl. L. Rev. 685
(1996). Nolon considers the advantages
of the framework law trend, in order to
address both the point and non-point
sources of pollution in a coherent sys-
tem.
61 Pulichino specifically considers the fol-
lowing issues to be included: 1) Common
definition of hazardous waste, in accor-
dance with the Basel Convention, 2)
Enforcement Allocation, 3) Consideration
of provincial administrative decisions with
the same force and effect of the federal
decisions, 4) Unified Register, 5) Unified
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32
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Tax.
62 Interview with Silvia Nonna, Coordinator
of the Argentine Federal Hazardous
Waste Register, on 04/30/01, by e-mail.
63 According to Pulichino, the need of multi-
diisciplinary partnership [analysis, con-
setnsus on common regional policies are
core-issues. Interview i with Nestor
Pulichino, Senior Counsel for the
Environmental Authority pf the Province1
of Buenos Aires, on 05/24/01, by e-mail.
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PROOST
33
CLEEN: THE NEED FOR A SEPARATE ENFORCEMENT NETWORK
FOR ENFORCEMENT OF CHEMICALS LEGISLATION IN THE EU
PROOST, MARC
Enforcement officer, Inspectorate for Housing, Spatial Planning and the Environment,
Rijnstraat 8, 2515 XP The Hague, The Netherlands, marc.proost@minvrom.nl
1 INTRODUCTION
Harmonized enforcement of legis-
lation by all European Member States is
essential. It is important for companies, cit-
izens and governments that have invested
in the future competence of a rule of law
designed to ensure a sustainable future.
The European internal market (one of the
three EU pillars) is disturbed when inspec-
tion authorities monitoring environmental
compliance apply different sanctions.
Legislators are satisfied when they see that
their laws are complied with.
In 1992 the enforcement network
IMPEL (Implementation of European
Legislation) was installed. One of the goals
of IMPEL is to promote and harmonize
enforcement of European environmental
legislation. The field of European Chemical
Legislation however is rather complex and
justifies the existence of a separate net-
work. Seven EU Regulations and Directives
cover this field, of which some are directed
at new and existing chemicals, ozone
depleting substances and biocides.
Environmental, public and occupational
health and financial authorities, both on the
state and regional level, execute enforce-
ment of this legislation.
As of the early 1990's, several indi-
vidual EU Member States started enforcing
some of these Chemical Legislations.
From 1995 on, combined European
enforcement projects were executed, for
instance for new substances and existing
substances (the NONS, SENSE and EUREX
projects). Gradually, a broad enforcement
experience in the chemicals field was gained,
which led to the installation of an enforce-
ment network.
2 CLEEN
In May 1999 it was decided to
install a network of enforcers of Chemical
Legislation, which was named CLEEN
(Chemical Legislation European Enforce-
ment Network).The primary goal of CLEEN
is to co-ordinate enforcement projects for
better compliance in the field of Chemical
Legislation by means of common priorities,
planning and execution of enforcement pro-
jects. From this main goal the following
goals were derived:
1. consolidation and strengthening of
European Enforcement (Chemical
Legislation) networks, including national
customs and enterprise authorities;
2. improvement of awareness, understand-
ing and compliance of the relevant legis-
lation in all (present and future) Member
States;
3. improvement of the harmonization of
enforcement of Chemical Legislation in
the EU, thus creating equal conditions for
industry in all Member States;
4. support in the improvement of the
Chemical Legislation, giving special
attention to enforceability;
5. support of enforcement activities in the
Candidate Countries, by expansion of
the network.
The scope of CLEEN is defined by
the following EU Directives/Regulations:
1. Existing Substances Regulation
(793/93), for the reduction of the envi-
ronmental damage of 100,000 existing
substances through the collection of
hazardous data on these substances.
With this data, restrictive measures can
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34
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
be taken for the production, use and
trade of these substances;
2. Import/Export Regulation (2455/92), for
the control of dangerous substances
through a system of prior informed con-
sent;
3. New Ozone Depleting Substances
Regulation (2037/2000), for the reduc-
tion of the use of ozone depleting sub-
stances such as CFCs;
4. New Substances Directive (92/32), for
the reduction of the newly prepared sub-
stances. Through collection of chemical
data, restrictions are imposed on the
production, use and trade of these sub-
stances;
5. Preparation Directive (99/45), now
Directive 88/379/EEC for the labeling and
classification of dangerous substances;
6. Limitation of marketing and use Directive
(76/769) for the control of cadmium con-
taining plastics and PCB's;
7. Biocides Directive (98/8), for the restric-
tion of the use of biocides.
3 ORGANIZATION OF CLEEN
All EU Member States except
Luxembourg, but including Norway and
Switzerland, are members of CLEEN. The
Accession Countries are invited as 'audi-
tors'. The network is supported by a secre-
tariat staffed, for the moment by The
Netherlands and Greece. The task of the
secretariat is to organize the yearly
Conference and interim meeting, to draft
action programs, project proposals, guid-
ance manuals, inspection reports, to com-
municate internally and externally, to
manage the website, etc. The network
makes decisions on a common majority
basis. The Member States participate vol-
untary.
4 WORKING PROCEDURES
Member States set priorities for
inspection projects and decisions of the
network are made on a consensus basis.
Priorities are often guided by national expe-
riencjes or expertise with a cfertain Directive
of Regulation. After selection of a topic, a
projelct proposal is drafted. This proposal
defines the number of company inspections••
to be performed by each Member State,
and sets the criteria for the guidance man-
ual, the checklist and the inspection report.;
It also defines the time frame with staffing
and financial implications.
Usually the time span of an
enforcement project is 2 years, with a,
preparation, inspection and reporting
phase. During the preparation phase, all
relevant documents are drafted, such as a
guidance manual, a checklist, a report1
form; a selection of companies, sanctions,
etc. After approval of all these documents,
the iactual company inspections start. All
inspection data are then assembled, anal-;
ysed and combined in an inspection report, >
together with suggestions for improvement
of the enforceability of the legislation. The
maximum number of projects that can be
deall; with by the network simultaneously is
two, in part because of restrictions imposed
by limited staff and financial resources ii\
the sieveral Member States. '
5 CLiEEN ACTIVITIES
i
After CLEEN's official installation in
May 2000, two enforcement projects were:
started, one for the New Ozone Depleting
Substances Regulation called EurOzone,
and Ithe other for the Limitation of Marketing
and Use Directive, for Cadmium, called
EuroCad. ;
6EIJROCAD •
The EuroCad project showed sig-
nificant enforcement results.; More than 500
samples were taken from products, mostly
imported from Far East ^countries and
South East Asia. Initial results showed that
one |out of seven samples; exceeded the
Cadmium limit value of 100, mg/kg, as set
by the Directive. Most of the products
involved PVC in bags, toys land premiums.
About three quarters of all products, which
exceeded the limit value, were forced to be
returned to the country of origin. More
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PROOST
35
results will be coming in the next months.
The final project report will be available in
early 2002.
Furthermore, a list of risky prod-
ucts was used to select product targets and
an alert system was put in place. This alert
system is used to warn other Member
States for cadmium containing products.
7 EUROZONE
The EurOzone project revealed
that increased concentrations of cooling
agents (Ozone Depleting Substances such
as CFC's) contribute to climate change and
depletion of the ozone layer. Damages to
the ozone layer also have implications for
ecosystems and the occurrence of skin
cancer. Enforcement focused on leakages
from cooling installations and safe removal
and destruction of cooling agents (ODS).
Up to now 300 companies have been con-
trolled and initial results show that almost
50% of all cooling installations have serious
leakages. In about 15% of the cases safe
removal of CFC's was not guaranteed and
in about 60% of the companies, sufficient
preventive maintenance measures were
not provided. Also some first experiences
and results of inspections related to illegal
trade of CFC's were exchanged, in order to
improve enforcement of applicable ODS
trade regulations. Inspections at companies
will continue, and overall results will be pre-
sented at the next CLEEN conference.
8 NEW PROJECTS
The preparations for a new
enforcement project called ECLIPS
(European enforcement project on
Classification and Labeling Inspections of
Preparations) have also started. This pro-
ject involves efforts to ensure the monitor-
ing of the compliance with Directive
99/45/EEC for labeling of preparations. By
July 2002 all Member States will have
implemented this Directive. This project will
run until September 2003. Two other pro-
jects proposals will be made also, namely
for PCB's and wood preservatives (cre-
osote, and chromated copper arsenate).
9 STAKEHOLDER
CLEEN has also started discus-
sions with the European Commission (EC),
in order to improve the enforceability of
(draft) chemical legislation. In reaction to
the EC White Paper on Chemicals issued in
the summer of 2001, in which the EC rec-
ommended installation of a network of
chemical enforcers, CLEEN has suggested
the EC to be acknowledged as a 'stake-
holder' and has proposed for the
Commission to help install this network. In
addition, in the first quarter of 2002,
CLEEN will review the Commissions leg-
islative proposal in relation to the White
Paper for Chemicals.
10 OTHER ACTIVITIES
Other activities of CLEEN are the
organization of a third Conference in
Denmark in 2002, the management of the
Website and the drafting of a priority plan
for new enforcement projects.
11 RESULTS
The substantial amount of viola-
tions found in the EurOzone and EuroCad
projects prove the need for harmonized
enforcement in the field of dangerous
chemicals. Other important results were the
problems encountered with enforcing the
Ozone Regulation and Cadmium Directive.
Firstly, it has to be remembered that a
Regulation is directly applicable and has to
be implemented completely by the Member
States, whereas a Directive is not binding
and enables a Member States to impose
more stringent rules. The Ozone
Regulation poses enforcement problems
with regard to not defining a maximum per-
centage for leakages of ODS (Ozone
Depleting Substances) from installations.
The Cadmium Directive does not
distinguish between the content of
Cadmium in the whole product or in a
smaller part of that product. If i.e. the con-
tent of Cadmium in a telephone cable
exceeds the limit value, should the tele-
phone as a whole or just the cable be con-
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til 111 •
i Ml I III" II
36
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE A.ND ENFORCEMENT
sidered faulty? Also, the use of Cadmium
as a pigment or as a stabilizer, poses a
problem to enforcement, because it is diffi-
cult to prove that Cadmium is used as
either one. All of these issues will be dis-
cussed with the European Commission to
Improve the Chemical Legislation.
12 CONCLUSION
Enforcement of chemical legisla-
tion is complex, and needs special exper-
tise. A network for chemical enforcers
operating separately from other networks
like for instance IMPEL, is therefore neces-
sary; and justifiable. CLEEN has proven to
be professional and effective over the last
few years. Projects are excecuted enthusi-
astic'ally and proposals for new projects are
pursued promptly. The financing of projects
doesi however remain a problem. Through
recopnition of CLEEN by the European
Commission, these problems can hopefully
be splved. Presently the Commission has
proposed in the White paper for Chemicals
to iniStall a network of enforcprs of chemical
legislation in the EU. Further information
on background and developments in this
area; can be found on http://www.deen-
europe.org.
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SNELS, LIEBREGTS 37
ENFORCEMENT OF THE REGULATION ON THE SUPERVISION AND
CONTROL OF WASTE SHIPMENTS WITHIN, INTO AND OUT OF THE
EUROPEAN COMMUNITY (EU 259/93): COLLABORATION IN CHECKS
ON THE PROCESSING OF WASTE SUBSTANCES
SNELS, W.,1 and LIEBREGTS, T.2
1 Deputy Inspector For The Department Of Wastes And Detection.
2 Head Of The Group, Department Of Wastes And Detection.
Inspectorate for Housing, Spatial Planning and the Environment, Post office Box 850,
5600 AW Eindhoven, The Netherlands
SUMMARY
The Inspectorate for the Environment has the task of enforcing the rules relating to
the cross-border transport of waste substances contained in EU Regulation No. 259/93 on
the supervision and control of shipments of waste within, into and out of the European
Community, hereinafter referred to as the Regulation 259/93. To this end it carries out
checks on the transport of waste substances. It not only determines whether administra-
tive obligations have been met but also examines whether the composition of the waste
substances and the processing methods are in accordance with Regulation 259/93 or the
Regulation 259/93 decision. This is worthwhile because the waste substances actually
transported often deviate from .the description for which permission has been granted, or
the information given on the holdership information. Furthermore, the criteria the waste
substances must meet are not always clearly stated in Dutch decisions. In these cases, no
steps can be taken. The methods used to process Dutch waste substances in other coun-
tries cannot be checked by the Inspectorate for the Environment and it has its doubts
regarding the competence of those efforts. The Inspectorate for the Environment believes
that countries should collaborate more in the enforcement of EU Regulation 259/93 in
order to prevent injury to man and damage to the environment.
1 COUNCIL REGULATION (EU NO.
259/93) ON THE SUPERVISION AND
CONTROL OF SHIPMENTS OF
WASTE WITHIN, INTO AND OUT OF
THE EUROPEAN COMMUNITY
Waste substances formed in one
country are often transported to another
country-for processing. Regulation 259/93
was drawn up in order to prevent injury to
man and damage to the environment arising
as a result. Such injury or damage may take
place if, after arrival at their (final) destination,
waste substances are not processed in a
responsible manner, or are not processed at
all. The extent of injury or damage that may
arise depends on the properties of the waste
substance concerned. The nature and com-
position of the waste substances concerned
are therefore important aspects of the regula-
tion. The methods used to process the waste
substances are also important aspects.
Regulation 259/93 lays down the condition
that processing may only take place at a com-
pany that js licensed to receive and process
the waste substances in question.
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38
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE
ND ENFORCEMENT
2 THE NETHERLANDS
In the Netherlands, the Ministry of
Housing, Spatial Planning and the
Environment (Ministry of VROM) imple-
ments Regulation 259/93. The regulation
requires that the transport of certain waste
substances to certain destinations may
only take place after the governments con-
cerned have given their permission for the
said transport. The Ministry of VROM
grants such permission in the form of
Regulation 259/93 decisions. In the
Netherlands, Regulation 259/93 (including
the decisions) is enforced by the Inspecto-
rate for the Environment. This Inspectorate
is a part of the Ministry of VROM.
3 ENFORCEMENT OF REGULATION
259/93
The enforcement carried out by the
Inspectorate for the Environment focuses
on both the transport of waste substances
for which permission has been granted and
the transport of waste substances for which
permission is not required pursuant to
Regulation 259/93. The Inspectorate for the
Environment has been checking compli-
ance with Regulation 259/93 since the
requirements went into force. Until recently,
checks focused mainly on compliance with
administrative obligations. Limited attention
was paid to the nature and the composition
of the waste substances and the methods
used to process them, while it is precisely
these aspects that are important when it
comes to the protection of man and the
environment.
For this reason, in 2001 the
Inspectorate for the Environment began a
project in which checks focused specifical-
ly on the nature of the waste substances
and the methods used to process them.
Regulation 259/93 or Regulation 259/93
decisions form the legal framework for
these aspects. Approximately 45 inspec-
tions have now been carried out on waste
products that were transported between
the Netherlands and other European Union
member countries, such as Germany,
Belgium and Ireland, with permission.
These waste substances were substances
such as soil, cable waste, paint waste,
wooiii waste, batteries arid mixtures of
waste substances. Checks iwere also car-
ried out, in collaboration; with customs
authorities, on the transport of waste sub-
stances exported to countries outside the
European Union from the Netherlands.,
Thesie cases involved the transport of plas-
tic waste, waste containing metal and elec-
troniip scrap to the India,: Malaysia, the
Philippines, Indonesia, Hong Kong, China
and Vietnam. i
4 RESULTS OF THE CHECKS
i The following detaijs were ascer-
tained during the checks on/the nature and
composition of the waste substances. The
waste substances actually transported
oftenj deviate from the description of the
waste substances given in the decision or
in the holdership information. In several"
cases it was not possible; to determine
whether the waste substanqes transported;
were; in accordance with Regulation 259/93 •
or the decision concerned. The reason for
this is that the standards stated in
Regijlation 259/93, and in | a Dumber of
Regulation 259/93 decisions, were not
clear. Various interpretations are some-
times possible with regard | to Regulation ,
259/93. Standards that are fiot clear arise
particularly in the case of heterogeneous
mixtures of waste substances. The
Inspectorate for the Environment was not
able to enforce regulations in the cases in
which the criteria the waste substances
had to meet were not clear.
• The following points ^merged from
the checks that focused on the methods
used to process waste substances. The
Inspectorate for the Environment can only
check the processing of waste substances ,
if this takes place at Dutch! companies. If
waste substances are transported from the
Netherlands to other countries for process-
ing, the Inspectorate for the Environment is
unable to carry out such checks. After all, :
the Inspectorate for the Environment has
no enforcement powers abrpad. During a
number of checks, the Inspectorate for the
-------
SNELS, LIEBREGTS 39
Environment had serious doubts about the
processing which took place abroad, partly
by virtue of the composition of the waste
substances. The Inspectorate for the
Environment therefore finds that collabora-
tion with enforcers abroad is desirable for
the enforcement of Regulation 259/93, par-
ticularly given the fact that in recent years
the amounts of waste substances taken to
countries outside the Netherlands for pro-
,cessing have been increasing.
Checks on waste substances
transported to the abovementioned non-
OECD countries from the Netherlands have
not yet been concluded. So far, it appears
that these primarily concern the transport
of plastic waste to numerous companies in
China and Hong Kong. The Inspectorate for
the Environment has asked these countries
whether the companies which received the
waste substances are allowed, and able, to
process them.
5 CONCLUSION
Based on its experience to date,
the Inspectorate for the Environment
believes that for the optimum enforcement
of Regulation 259/93, it is necessary for
enforcement partners from various countries
to collaborate. Such collaboration, which
has also been mentioned in article 30 of
Regulation 259/93, is imperative if efforts to
control unauthorized shipments and pre-
vent environmental contamination are to
succeed.
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42
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
nature. Among the remaining companies,
four were prosecuted, one of which paid a
€ 159,090 penalty to settle charges. While
the Inspectorate insisted that necessary
measures were implemented in the most
urgent cases, at the other companies
whose facilities posed less serious prob-
lems, improvements were initiated by the
licensing authorities.
The Inspectorate also analysed the
quality of the permits issued under the
Environmental Management Act, the
enforcement efforts undertaken by the
appropriate authorities, the approach to
emergencies and the general workability of
the CPR15-2 directive. The permit issued to
more than half of the companies did not
meet the CPR 15-2 directive standards. This
was partly a result of the very long transition
terms (more than a year), which were
allowed by the appropriate authority. In a
1992 covenant, a number of trade organiza-
tions agreed with the Minister of Housing,
Spatial Planning and Management of the
Environment that the affiliated companies
would meet the CPR 15-2 directive before 1
January 1995. Of the eight above-men-
tioned companies, three were members of
those trade organizations. At more than half
of the companies, there were either no
emergency plans, or the plans that had
been drawn up were fundamentally inade-
quate. In some cases, the number of expert
personnel in the emergency organization
was inadequate, an insufficient number of
drills were held, and there was little or no
contact with the fire brigade. Enforcement
by the appropriate authorities prior to the
Inspectorate's initiative had not prevented
these unacceptable situations from arising
and being allowed to continue.
During checks regarding the imple-
mentation of the Dangerous Substances
Act (at the above-mentioned 26 companies
and 16 others) the Inspectorate found vio-
lations at one third of the companies. These
concerned violations in the field of the com-
pulsory provision of information regarding
the risks to man and the environment of
existing substances pursuant to the Decree
on Existing Substances [Evaluation and
Limitation of Environmental Risks], and the
risks to purchasers of dangerous sub-
stances pursuant to the Safety data sheet
Decree and the Decree on; Packaging and
Labelling of Environmentally Hazardous
[Chemical] Substances. \ Administrative
decisions were taken for all the infringe-
ments and an official report;was also drawn
up in the case of eight of trie companies.
5 CONCLUSIONS
I
Information gathered during the
enforcement initiative demonstrated a num-i
ber 6f shortcomings and practical problems'
that companies often encountered with
resp'ect to government efforts to implement
the ! CPR 15-2 directive; through the
Environmental Management Act permit.
Neither companies nor the appropriate
authorities, for example, |find the CPR
directive to be very accessible, practically
speaking. The appropriate authorities sug-
gested that a translation from the directive
to the regulations, and attached to the per-
mit perhaps in the form of a user guide,'
would be desirable. It was a|so learned that
both the appropriate authorities and requ-
latetil companies needed to be provided
improved information OR the specific
requirements of the CPR 15-2 directive.
| Based on the latter ponclusion, the
Inspectorate has recommended that con-
tact be sought with the trade organizations;
in order to improve the implementation of
the directive. ;
For this purpose the Inspectorate:
has brought the recommendations in the
report to the attention of CPR commission
and Ithe responsible policy-making depart-
ment in an effort to make compliance with
this important directive easier to achieve
and monitor. | !
REFERENCES j
I
Dangerous Substances Act. 'Anyone who is •
producing, trading or using :chemical sub-
stances or preparations may have to deal
with the Dangerous Substances Act. The [
purpose behind this law is tb protect public
health and the environment against a range
of potentially hazardous impjacts of storing
; i _;
•
-------
SPEEL-ZUIDERWIJK
43
and using dangerous substances. The act,
therefore, emphasizes the need for acquisi-
tion of data regarding the hazardous aspects
of chemical substances used at specific facil-
ities. The Dangerous Substances Act obliges
trade and industry to systematically be aware
of the risks involved when working with
chemical substances and preparations and
to take and catalogue appropriate measures
to reduce these risks.
Environmental Management Act. The
Environmental Management Act has been
transformed from a sectoral to an integrat-
ed approach and is being used as enabling
legislation that provides many opportunities
to stipulate the inclusion of requirements or
measures in environmental permits. These
permits then provide a singular vehicle for
monitoring and comparing compliance
efforts of many companies with respect to
different environmental criteria.
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44
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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TIJSMANS, KLINGENBERG 45
RADIOACTIVE SUBSTANCES IN SCRAP METAL:
ENFORCEMENT OF THE NUCLEAR ENERGY ACT
TIJSMANS, MIRIAM,1 AND KLINGENBERG, ALBERT2
1 Environmental Radiation Officer
2 Head Of The Group, Enforcement Radiation, Substances And Products
Inspectorate of Housing, Spatial Planning And The Environment For The South-West
Region Of The Netherlands, Post office Box 5321, 2280 Rijswijk, The Netherlands
SUMMARY
The Inspectorate for Housing, Spatial Planning and the Environment is responsi-
ble, on behalf of the Ministry of Housing, Spatial Planning and the Environment, for the
enforcement of the Nuclear Energy Act. This enforcement is carried out by the
Inspectorate, which is based in Rijswijk, and by the Nuclear Energy Service, which recent-
ly became a part of the Inspectorate. The monitoring of companies trading in metal and
scrap metal that contain radioactive substances is an important task in the enforcement of
the Nuclear Energy Act.
1 INTRODUCTION
Companies that were involved in
trading in scrap metal first purchased so-
called radioactive scrap detectors and
hand-held measuring equipment for check-
ing incoming and outgoing scrap shipments
for the presence of radioactive substances
around 1994. On discovering the suspected
presence of radioactive substances, these
companies are obliged to inform the
Inspectorate immediately, pursuant to the
Nuclear Energy Act.
Several cases of scrap metal that
,was contaminated with radioactive sub-
stances received a great deal of publicity in
1998. As a result of this, questions were
asked in the Lower House and the province
of Zuid-Holland, and the Environmental
Protection Agency for the Rijnmond area
_and the municipality of Rotterdam were
particularly concerned about the fact that
companies were trading in contaminated
scrap. The illegal disposal of contaminated
scrap by companies, and the possible con-
sequences, could not be excluded. The
Inspectorate then decided to give more pri-
ority to the enforcement of compliance with
regulations by scrap companies.
2 METHOD
On the one hand, the Inspectorate
carries out checks on companies in
response to so-called incident reports, and
on the other, they have been carrying out
pro-active checks since 1999. During
checks on scrap companies, the National
Institute of Public Health and
Environmental Hygiene, and the compa-
nies, NRG or Rontgen Technische Dienst,
support the Inspectorate. The Inspectorate
commissions these investigations or the
companies involved, to take samples of
consignments that may be contaminated.
Sampling takes place if the level of radia-
tion of a consignment of scrap or an object
is higher than the background level.
In order to determine this, mea-
surements taken with a radioactive scrap
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46
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
detector or hand-held measuring device
are required. A radioactive scrap detector
consists of two or four large detectors, often
plastic scintillators, and gives values in
counts per minute (cpm) or counts per sec-
ond (cps). Hand-held measuring devices
sometimes also measure in micro or mil-
lisieverts per hour. However, the standard
for compulsory authorization is not deter-
mined by the levels of radiation but by the
specific activity (the standard is currently
100 Bq/g). In order to determine whether
the level of radiation from a consignment of
scrap exceeds the limits for compulsory
authorization, sampling and further investi-
gation are necessary.
The way in which companies must
deal with contaminated consignments is
described in the Act. As a result of the
focus on the problems scrap companies
face, the Inspectorate issued the Interim
guideline for metal and scrap containing
radioactive substances in 1997. This
describes in detail what companies have to
do in the event that they are faced with con-
taminated consignments.
3 RESULTS AND CONCLUSIONS
The Inspectorate has recently pub-
lished a report on pro-active checks in
1999. The enforcement focused on 41
scrap processing companies. It appeared
that approximately 54% of the companies
checked were aware of the Nuclear Energy
Act, the legislation based on it and the
above-mentioned guideline. About 60% of
the companies checked had recently pur-
chased equipment for the detection of radi-
ation in order to be able to check incoming
and outgoing consignments of scrap for the
presence of radioactive substances in this
way. To this end, around 40% of the com-
panies have purchased a radioactive scrap
detection system with which loaded lorries
can be measured in one step. Although this
number was larger than the Inspectorate
had expected prior to the start of the pro-
ject, knowledge regarding the use of the
radioactive scrap detection systems and
hand-held measuring equipment at the
companies checked was generally limited.
Sixty percent of the companies
checked risked dealing with and trading in
scrap that is contaminated with radioactive
substances, as they do not pheck incoming
scrap. These companies do not own a
radioactive scrap detection jsystem and do
not check the scrap traded ;or, if hand-held
measuring equipment is available, check it
insufficiently. In the case 0f 10% of the
companies checked, a violation of the
Nuclear Energy Act or the legislation based
uporl it, was ascertained during the compa-
ny check. This number of; violations was
greater than had been expected by the
Inspectorate prior to the start of the project.
In all the cases, the violation discovered
was jremedied. ]
The Inspectorate h&s brought the:
findings and recommendations resulting
from! this investigation to theiattention of the
responsible policy-making department
(Substances, Waste and Radiation) of the
Ministry of Housing, Spatial, Planning and
the [Environment and the traple association,
Metal Recycling Federation! The latter has
been asked to respond to the recommen-
daticin that were put together, or have put
together, a training course for companies
whiclh covers the problems of radioactive
substances in scrap, measuring methods
and legislation, amongst other things. The:
Inspectorate is continuing ;its checks on
scrap companies. j
i . . :
4TAlkGET GROUP ANALYSIS
, ;
The target group analysis 'Scrap
processing companies in thie Netherlands'
was compiled in the spring of 1999 in col-
laboration with the Metal Recycling
Federation. The aim of the target group
analysis was to chart the Various 'scrap
flows' in companies in the Netherlands and,
the risk of radioactive contamination occur-
ring in scrap that is traded and ultimately in
scrap that is resmelted. The target group
analysis was conducted in response to the
Minister of Housing, Spatial,' Planning and
the Environment's promise to the Lower.
House to investigate whether the govern-
ment could compel scrap companies to use
radiation detection equipment.
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TIJSMANS, KLINGENBERG 47,
The target group analysis lists the
scrap processing companies and subdi-
vides them into four categories:
1. small-scale dealers and collectors;
2. regional scrap companies;
3. national and international scrap compa-
nies; and
4. resmelters.
About 1.9 million tons of scrap is
collected in the Netherlands each year. The
companies also import more than 2 million
tons of scrap per year. About 75% of the
annual total of approximately 4 million tons
of scrap is exported. About 60,000 to
70,000 tons of stainless steel and ferrous
scrap are also collected in the Netherlands
each year. Almost all of this is exported.
The bulk - about 300,000 tons - of the non-
ferrous metals collected, such as alumini-
um and copper, is exported. A few
secondary aluminium and copper smelters
in the Netherlands use the rest.
The structure of the target group is
pyramidal. Scrap is collected via small-
scale dealers and collectors who sell the
scrap on to larger scrap processing compa-
nies in the region, the so-called regional
scrap companies. There are about 75
regional scrap companies in total, with
sales of 5,000 to 25,000 tons of scrap per
year. The regional scrap companies sepa-
rate the scrap and sell it on to national and
international scrap companies. There are
five national and international scrap com-
panies in all, each of which sells more than
100,000 tons of scrap per year.
The national and international
scrap companies can make the scrap
"oven-ready" and sell it to resmelters. In a
number of cases, small-scale dealers and
collectors supply the national and interna-
tional scrap companies directly, and region-
al scrap companies supply the resmelters
directly. Scrap is mainly imported and
exported by the national and international
companies, and in a few instances by the
larger regional companies. Regional com-
panies and small-scale dealers and collec-
tors located in border areas may also import
and export scrap, but the area in which they
operate is limited to the region in which they
are located. The 'scrap flows' have been
subdivided into three types: stainless steel
scrap, ferrous scrap and non-ferrous scrap
(aluminium, lead, copper).
5 RISK ANALYSIS
The risk of radioactive substances
(occurring in resmelted material is based on
the fact that scrap can have many different
origins: tubing from the extraction of oil and
natural gas, scrap from dismantled industri-
al plants, scrap with radioactive substances
smelted in, scrap from the nuclear industry,
scrap from hospitals, and scrap from the
aircraft industry, defence equipment etc.
Scrap can originate in the Netherlands or
abroad. In the case of mixed consignments
made up of different types of metal or metal
from different suppliers, the origin of the
material is often uncertain. An additional
problem is that the level of radiation in
material originating abroad is, as yet, not
often checked.
There is a risk that scrap from
small-scale dealers and collectors is con-
taminated by radioactive substances. Most
of these companies do not have radiation
detection equipment. However, this group
does virtually no business with other coun-
tries. Some small-scale dealers supply their
scrap directly to national and international
scrap companies. Regional scrap compa-
nies can supply directly to resmelters and
waste collectors may also play a role here
because they are involved in separating
metals for sale.
In the case of stainless steel scrap,
this need not result in the additional risk of
radioactive substances occurring in the
resmelted material. In all these cases in the
Netherlands, the consignments supplied
will pass through a radioactive scrap detec-
tor at some stage in the flow of the stain-
less steel scrap to the resmelter. All
regional scrap companies, national and
international scrap companies and
resmelters of stainless steel scrap have
radioactive scrap detectors. Large-scale
disposers of stainless steel scrap supply
their scrap directly to national and interna-
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^ :- ;. .=
48
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
tional scrap companies. The risk of radioac-
tive substances occurring in resmeltecl
stainless steel is therefore fairly low.
The risk of radioactive substances
occurring in the resmelted material is
always greater in the case of ferrous scrap
than it is for stainless steel scrap. There will
be no risk of radioactive substances occur-
ring in resmelted material in the case of
scrap originating from household appli-
ances and car wrecks. Scrap imported from
abroad does pose a risk. Transhipment
from one ship to another without radiation
detection is also risky. One of the two big
ferrous metal smelters does not carry out
checks on entry. Only two of the six nation-
al and international scrap companies trad-
ing in ferrous scrap have radioactive scrap
detectors. Only two of the eight regional
scrap companies trading in ferrous scrap
have radioactive scrap detectors.
There is also always a greater risk
of radioactive substances occurring in the
resmelted material from non-ferrous scrap
than there is with stainless steel scrap.
However, the source of the scrap is also
important in this case. There will be no risk
of radioactive substances occurring in the
resmelted material in the case of scrap
originating from household appliances and
car batteries.
For aluminium, all the national and
international scrap compahies trading in
aluminium scrap have radioactive scrap
detectors. For lead, only two of the six
national and international scrap companies
trading in lead scrap have radioactive scrap
detectors. However, there is probably little
point in screening lead scrap with a radioac-
tive scrap detector because those instru-
men'ts cannot detect radioactive substances
present in large consignments because the
lead shields any radiation emitted. For cop-,
per, only three of the nine national and
international scrap companies trading in
copper scrap have radioactive scrap detec-
tors. However, radioactive scrap detectors
are of limited use in ,rnany cases.
Resrnelters do not generally perform entry1
checks on non-ferrous scrap. The risk of
radioactive substances occurring in the-
resmelted material from non-ferrous (lead
and copper) scrap is greater than that from;
aluminium scrap. However, any radioactive
conteimination tends to occur in.the slag
rathe|r than in the resmelted 'material.
; This risk analysis describes the risk
of radioactive substances occurring in
resmelted material. It is based on the
description of the target group and the pres-
ence of radioactive scrap detectors at com-
panies, as well as on the data issued by the
Table 1: Risk analysis and assessment of the usefulness of detection for the
various 'scrap flows' in the present situation (spring 1999)
Presence not subject to checks
Inclusion not subject to checks
Radioactive scrap detector useful
Hand-held measuring devices useful
Involved in incidents in 1996-1998
Stainless
steel scrap
-
-
Yes
Yes
±55%
F:errous
scrap
+
-
! Yes
I Yes
±25%
Non-ferrous scrap
Aluminium
-
+
Yes
Yes
±15%
Lead
I
!+
tao
Yes
±5%
Copper
+
+
Yes
Yes
±5%
•— — •— •• ••«•». vi *• iw f^iwwwuvsw VM ii ivfiuv?ivji i \jt iciuiiuciifUvc oUUolctMUco 1IUI oUUJcGl tO
checks in these types of scrap. !
+ = there is a moderate risk of the presence or inclusion of radioactive substances1 not subject to
checks in these types of scrap.
-------
TUSMANS, KLINGENBERS 49
Metal Recycling Federation in the spring of
1999. The risk of the presence and inclusion
of radioactive substances in the various
'scrap flows' not subject to checks is indi-
cated in table 1. This table also indicates the
usefulness of a radioactive scrap detector
and/or hand-held measuring device in each
'scrap flow'. It can be concluded that most
'scrap reports' between 1996 and 1998 can
be classified in the category 'contaminated
scrap', radioactive contamination in stain-
less steel scrap.
When the Inspectorate encounters
incidents concerning scrap contaminated
with radioactive substances, it urges the
companies concerned to purchase detec-
tion equipment in relevant cases.
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50
, , I
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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VELDMAN, KLINGENBERG 51
"GAS FREE": ENFORCEMENT OF THE PESTICIDES ACT IN
THE NETHERLANDS
VELDMAN, WIM,1 KLINGENBERG, ALBERT2
Environmental officer at the Inspectorate for Housing, Spatial Planning and the
Environment for the South-West Region of the Netherlands
2Head of the group Enforcement Radiation, Substances and Products at the Inspectorate
for Housing, Spatial Planning and the Environment for the South-West Region of the
Netherlands.
Inspectorate for Housing, Spatial Planning and the Environment for the South-West
Region of the Netherlands, Post office box 5321, 2280 H Rijswijk, the Netherlands
SUMMARY
The Inspectorate for Housing, Spatial Planning and the Environment is responsible for the
enforcement governing of the regulations governing the use and management of gas-form-
ing pesticides and has been intensifying this enforcement since the end of 1998. It carried
out a total of 263 checks in 1999 and 2000, in close collaboration with the National Police
Force of the Amsterdam harbor and river police. These checks took place before, during
and after fumigation, the administrations of the companies also being examined. Four hun-
dred and seventy-five violations were discovered. Official reports were drawn up in 65 of
these .cases and the execution of 23 fumigations was forbidden for various reasons.
1 INTRODUCTION
The Inspectorate supervises com-
pliance with the Pesticides Act regarding
the application of non-agricultural pesti-
cides (biocides). Substances such as
methyl bromide and agents that produce
phosphoretted hydrogens are acceptable
for the treatment of stocks of raw materials
by means of fumigation in the Netherlands.
The term 'fumigation' is understood to
mean the application of a (chemical) pesti-
cide, which is, and remains, gaseous at the
prevailing temperature and pressure and
which is deadly for the organism to be con-
trolled in the concentration applied for the
duration of the fumigation.
Methyl bromide and phosphoretted
hydrogen are very dangerous, toxic pesti-
cides. Furthermore, methyl bromide has
detrimental effects on the ozone layer. Very
strict regulations are therefore attached to
the use of these substances in the
Netherlands. Fumigation with the above
mentioned substances must be conducted
by experts within the meaning of the
Pesticide Act and may only take place with
respect to goods referred to in the legal
instructions for use, unless the goods are
intended for export to a country that pre-
scribes that goods be fumigated prior to
import.
Objects that are fumigated include:
1. containers, empty or loaded with vari-
ous goods;
2. silos containing grain;
3. buildings;
4. stacks (loose goods covered with foil),
with sacking and boxes;
5. bulk cargoes in inland craft;
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52
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
6. empty ships' holds;
7. trailers, with various goods; and
8. empty airplanes.
A range of different goods and con-
tainers are treated in this way. For example,
for the Dutch market, the following goods are
regularly fumigated: cacao, rice, grains, ani-
mal feeds, groundnuts and buckwheat.
These products usually originate from tropi-
cal areas in South America, Africa and
South East Asia. They are processed by
Dutch companies, and then packaged and
marketed. The goods in bulk loads and in
containers are also regularly fumigated in
the country of origin. This means that these
gases are regularly released during unload-
ing in the Netherlands, exposing employees,
other parties who may be involved, and the
environment to risks. The Inspectorate car-
ried out a total of 263 checks in 1999 and
2000, in close collaboration with the National
Police Force's Amsterdam harbor and river
police. These checks took place before, dur-
ing and after fumigation, the records of the
companies also being examined.
2 METHOD
The Inspectorate checked the follow-
ing aspects:
1. notification of the authorities by the
company wishing to carry out a
fumigation;
2. the necessity of control;
3. whether an alternative form of control is
possible;
4. the goods to be fumigated;
5. the nature of the packaging material;
6. the gas-tightness of the objects;
7. the temperature of the goods to be
fumigated;
8. evidence of export;
9. dosages;
10. means of injection of gas;
11. presence of a gas plan;
12. applicable requirements with regard to
distance;
13. signed declaration from surrounding
companies;
14. prescribed warning signals; ;
15. the use of personal protection;
16. jjiving the all clear, "gasifree", for
objects; and j
17. the register of pesticides.
Checks were carried out as a
response to the reports received by the
Inspectorate. In a number of cases, howev-
er, checks were carried out at the request
of companies, prior to notification of the
Inspectorate of intended :fumigation, in
order to determine whether permission for
fumigation could be granted. In the latter
cases there have not, of course, been any
violations (as yet). On the contrary, these,
checks served to prevent them.
Samples were also taken of the
goods that had been reported as requiring
fumigation if it was not jclear whether
fumigation was absolutely necessary.
Sometimes samples were also taken after
fumigation and sent to the Pest Control
Research and Reference Centre in
Wageningen for analysis. If the need for
fumigation could not be ^demonstrated,
fumigation was not allowed to take place. In
1999 and 2000, 105 and 58 samples were
taken respectively. \
3 RESULTS AND CONCLUSIONS
I
The Inspectorate carried out a total
of 26)3 checks in 1999 and [2000, and 475
violations were discovered and official
reports were prepared in 65 ;of these cases.
Fumigation was forbidden, for various rea-
sons, in 23 cases. A criminal investigation
was carried out at two companies at the
request of the public prosecutor. In 1999
provisional measures were iissued against:
one fumigation company and two fumiga-
tion officers by the public prosecutor.
; In a number of cases interventions
were made during incidents Ithat took place
because cargoes fumigated abroad had
not been safely degassed arid which posed
health risks for people in the' vicinity. In one,
case this led to the immediate evacuation
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VELDMAN, KLINGENBERG 53
of the eleven people on board five inland
craft, the cargo of which had a very high
Concentration of hydrogen phosphide
(phosphine). The enforcement has led to a
large decrease in the number of fumiga-
tions which take place in the Netherlands:
in 1999 and 2000 the Inspectorate received
563 and 350 reports of intended fumiga-
tions respectively. In the course of
1999/2000, two companies stopped fumi-
gating. One of the companies gave the
strict enforcement as the reason and the
other ended fumigating activities partly as a
result of a criminal investigation.
The Inspectorate has pointed out
various bottlenecks and has brought the
bottlenecks regarding the regulations for
methyl bromide to the attention of the
Pesticides Approval Committee with the
request that it remove the bottlenecks by
adjustment of the legal instructions for use.
In other cases, the Inspectorate will ask the
responsible policy-making department to
take measures. It is of particular impor-
tance that the Pesticides Act is adjusted in
such a way that cargoes and containers
that are imported into the Netherlands
'under gas' also fall under the authority of
the Pesticides Act. The current manner of
working with gas-forming pesticides, partic-
ularly in the case of loads and containers
which enter the Netherlands 'under gas'
and the limitations of the Pesticides Act can
result in unacceptable risks for man and
environment, and limit the possibilities
available for the government to respond.
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54
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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BERINSKAS
55
SUCCESSFUL IMPLEMENTATION OF IMPEL CONCEPTS AND
RECOMMENDATIONS IN LITHUANIAN ENVIRONMENTAL
PROTECTION SYSTEM
BERINSKAS, VACLOVAS
Lithuanian National Coordinator of AC-IMPEL Network, Juozapaviciaus Str.9, Vilnius,
LT-2005, Lithuania, v.berzinskas@nt.gamta.lt
SUMMARY
Lithuania has often asked: Is it more feasible to ask an expert from an EU Member
State to read some lectures for Lithuanian inspectors, or to achieve a good understanding
of IMPEL documents independently? Historically, because of unacceptable quality of
translations, especially regarding specific terminology, and the former was chosen initially.
Over time, through proper information and training, inspectors can make a difference for
the future of environmental and public health protection in Lithuania.
1 INTRODUCTION '
Since Lithuania regained its independence
in 1990, environmental protection special-
ists have established many new connec-
tions with governmental environmental
protection institutions of foreign countries
as well as various advocacy organizations.
Initially, emphasis was put on the transposi-
tion and adjustment of Lithuania's legal
system relative to EU requirements and
other general tasks, while less attention
was paid to the implementation and
enforcement of specific legislation.
Lithuania started receiving valuable and
relevant information only after it joined the
activities of AC-IMPEL (European Union
Network for Associated Countries for the
Implementation and Enforcement of
Environmental Law). The European Union
(EU) Network for the Implementation and
Enforcement of Environmental Law
(IMPEL) has provided the Lithuanian
Environmental Protection specialists with a
realistic possibility for the first time to get
acquainted with the practice of implemen-
tation and enforcement of environmental
law in European Union countries.
2 IMPEL IN LITHUANIA
Heads of both the Ministry of the
Environment and State Environmental
Protection Inspectorate seek to achieve the
highest possible effectiveness of the
inspection work and to harmonize Lithuania
with the environmental inspection practices
in the European Union Member States. The
activities of IMPEL .and AC-IMPEL net-
works are enthusiastically supported both
by the Lithuanian Ministry of Environment
and by the State Environmental Protection
Inspectorate. Active participation in the
activities of the AC-IMPEL network and
consistent implementation of the inspection
practice of European Union countries (as
defined in the Council Recommendation
2001/331 on Minimum Criteria for
Environmental Inspections and IMPEL rec-
ommendations) have been set as the top
priority goals of the Inspectorate.
After the first national Lithuanian
AC-IMPEL co-ordinator left the Ministry,
heads of both the Ministry of the
Environment and the Inspectorate decided
that a representative of the Inspectorate's
Control Organisation Division should
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
assume this role. The main functions of this
Division are to organize and supervise
implementation and enforcement of envi-
ronmental law in the Lithuanian environ-
mental protection system. Hence the
IMPEL recommendations directly reach the
executives responsible for enforcement and
control without the help of any intermedi-
aries.
3 IMPEL RESOURCES
In general all information and
reports received from IMPEL events are
distributed among the departments, divi-
sions, and organisations subordinate to the
Ministry of the Environment. Also, experts
in relevant fields are being appointed to the
specialised IMPEL events and working
groups. Our experts have even participated
in IMPEL projects such as "IPPC provisions
(Integrated Pollution and Prevention
Control) in the Food Industry", "Energy
Efficiency in IPPC Permits" and others. The
Council Recommendation 2001/331 on
Minimum Criteria for Environmental
Inspections, IMPEL Reference Book for
Environmental Inspections, IMPEL recom-
mendations "Criteria for Inspections",
"Frequency of Inspections", "Operator self-
monitoring", and "Planning and Reporting
of Inspections" have all been translated into
Lithuanian and distributed among all
regional departments for environmental
protection with recommendations to use
these documents in their daily work. The
IMPEL recommendation "Best Practices in
Compliance Monitoring" will be translated
this year from the budget of one European
Union Program "Poland and Hungary aid
for restructuring of economy" (PHARE)
Project.
While controlling the regional
departments and the district agencies for
environmental protection, the State
Environmental Protection Inspectorate also
follows these IMPEL documents and pass-
es this information along. The Inspectorate
plans to place these documents on the web
site of the Lithuanian Ministry of the
Environment. The most interesting presen-
tations from the IMPEL meetings, as well
as the fact-sheets for ; environmental
inspectors, prepared byi the Swedish
Environmental Protection Agency, such as
"Dairies and dried milk factories",
"Agriculture", etc., are also planned to be
placed on the homepage. At the present
time; the Ministry's web site is under sub-
stantial transformation, therefore these
works are postponed.
4 MOTIVATING CHANGE
! ! I :
| Because, the level bf implementa-
tion among the IMPEL provisions differs in
separate regional departments and district
agencies, the Inspectorate is using a num-
ber pf motivation measures jand incentives.
The isimplest, although not always feasible,1
method is to incorporate a'single require-;
meni in an order of the top executives.
| One example involves the require-1
ments for obligatory preparation of an
inspection report after each inspection, as1
well I as the requirement jto screen the
inspection frequencies, that have been
transposed in the Environmental Minister
Ordef No. 82 of the March,' 3rd 2000 "On
the increase of strictness in 'the control and
responsibilities for the performed activities
of |the executives of; the Stated
Environmental Inspection", |2.6 "to screen
and (according to the needs1 amend the list
of controlled objects, defining the inspec-
tion periods for these objects", 2.7 "to
require the inspection docurnents to be pre-
pared during the inspection^ to set up the'
requirements and to register the inspection
docurnents, systematically investigate the
inspection reports of the j inspectors, to
assess if the inspections and the environ-
mental protection management and pre-
vention measures that are based on these
inspections are in accordance with the eco-
logical state of the object (enterprise)."
IMPEL provisions hiave also been
takerj into account when preparing the
Draft Law on State Environmental
Inspection, new forms fbr inspection
reports, Inspection Decisions, Inspection
Precepts, and Regulations on Water
Consumption and Wastewater Laboratory
Control. From now on, the Environmental
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BERINSKAS
57
Protection Agencies of the districts or
cities, considering relevant factors, will set
the frequencies of facility inspections.
5 FEEDBACK
The top executives of the
Inspectorate are constantly informing the
Regional Environmental Protection
Departments about the significance of the
IMPEL recommendations' and provisions
while discussing the summarized results
and problems of the working year. The
inspectors however, are still complaining
about too high workloads and requirements
that they provide extensive information.
After becoming aware of the "Criteria for
inspections," inspectors have calculated
that they have 2.5 - 3 times more enforce-
ment targets to control than their col-
leagues in the EU countries. Lithuania
officials are trying to help these inspectors
to plan their work, to get prepared for the
inspections, to improve the contents and
preparation of the inspection report and to
increase the overall effectiveness of the
inspection work.
Although at times top management
of Regional Environmental Protection
Departments have problems with their
inspectors, such as complaints regarding
the inspection work and violations of work-
ing procedures and requirements, IMPEL
recommendations and provision have also
proved useful. Top management of
Regional Environmental Protection
Departments are learning that proper
preparation and follow-up on the inspec-
tion, as well as training and deepening of
the professional knowledge of these
inspectors, is of extreme importance. The
departments are also learning that the
increased quality of the performed inspec-
tions will decrease the need for additional
inspections. Of all 8 Regional Environ-
mental Protection Departments in
Lithuania, Alytus and Kaunas Departments
are the most active ones in implementing
IMPEL provisions and recommendations.
6 CONCLUSION
Lithuania has for some time had
dilemma. Is it more feasible to ask an
expert from an ED Member State to read
some lectures for Lithuanian inspectors, or
to achieve a good understanding of IMPEL
documents independently. The main rea-
son for these considerations was often
unacceptable quality of translations, espe-
cially regarding specific terminology, and
therefore the first way was chosen initially.
Two-week training courses for the 28
inspectors that were newly accepted for
jobs were organized on March 2000. Within
these courses was a lecture about inspec-
tion practices in EU Member States
(according to the "Criteria for inspections",
"Frequency of inspections" and "Operator
self-monitoring"), with a special emphasis
on the differences between inspector's
work in Lithuania and EU Member States.
IMPEL documents were referred to and
considered also within the Pilot project
'Technical Assistance to the Development
of Inspection and Enforcement through
Information Technologies", during which
the "GeoEnviron" software is being adapted
for the needs of Lithuanian Environmental
Inspectors. Experiences to date show that
informed and properly trained inspectors
can make a difference for the future of envi-
ronmental and public health protection in
Lithuania.
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE ^ND ENFORCEMENT
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THE ENVIRONMENT AND ITS REGULATION
IN ARGENTINA
NONNA, SILVIA C.
National Register Of Generators And Operators Of Hazardous Waste Coordinator
Secretariat Of Environment And Sustainable Development, San Martin 459, 1° Subs.
Buenos Aires. Argentina
SUMMARY
Due to the distribution of institutional liabilities Argentina's framework for environ-
mental management is rather confused. The institutional capacity and authority for envi-
ronmental management is spread among several agencies at the national, provincial and
municipal levels. This leads to an overlapping of jurisdictions, weak controls, and break-
downs in compliance. Taking into account the overlapping roles among the National
Government and local administrations and the frequent changes of institutional structures,
the general scenario shows different legal requirements and authorities competing for
enforcement resources and responsibility.
The lack of environmental enforcement and compliance is an important problem in
Argentina because of the lack of adequate capacity building activities for the public sector,
frequent changes in bureaucratic structure, overlapping roles at the national, provincial and
municipal jurisdictions. Given that these problems are generally related to institutional
aspects of environmental management, identified problems and necessities must be con-
sidered if the current situation on environmental enforcement and compliance in Argentina
is to be improved.
1 INSTITUTIONAL FRAMEWORK
At the national level, the Secretariat
of Environment and Sustainable Develop-
ment (SayDS) is in charge of environmen-
tal policy. In addition to the SAyDS, there
are several national agencies that play an
important role in adopting, enforcing and
managing policies related to the environ-
ment. A similar situation exists at the
provincial and municipal level, where sever-
al agencies and offices are in charge of
issues related to the environment.
This scenario gets more complex
because of the relationship between the
National and Provincial Governments, since
the National Constitution has reserved for
the provinces all functions not expressly
delegated to the National State. The 1994
amendment to the Constitution empha-
sized that natural resources are under the
exclusive control of the Provinces.
1.1
National Institutional Framework
The Secretariat of Environment
and Sustainable Development is clearly the
national central authority. In this capacity it
is responsible for all failures in the system,
although in some .other cases, the respon-
sibilities are shared by such a large number
of agencies that the number itself gener-
ates problems of coordination and incon-
sistent approaches. Among the national
environmental agencies in Argentina are:
1. SENASA (National Service for Animal
Health); j
2. IASCAV (Argentine Institute for Vegetal
Health and Quality);
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3. APN (Administration of National Parks);
4. INAA (National Institute for Water and
the Environment);
5. ETOSS (Three-Party Agency for
Waterworks);
6. Coast Guards;
7. Port Authority; and
8. Border Guards.
1.2 Provincial/Municipal Institutional
Framework
At provincial level, the distribution
of institutional responsibilities is also com-
plex and varies from one province to the
other. The Province of Buenos Aires, for
example, has a Secretariat of Environ-
mental Policy to coordinate all environmen-
tal issues, but all other provincial agencies
with environmental responsibilities are still
operating. The Provincial Secretariat of
Public Health continues carrying out envi-
ronmental inspections through its Office for
the Environment simultaneously with the
Province's Ecological Division and AGOS-
BA, the provincial company responsible for
the water and sewerage systems.
Additionally, each of the 23
provinces that make up the Republic of
Argentina has centralized in one provincial
authority the application 6f the regulations
in force and the coordination of the provin-
cial environmental policy. In some cases,
the environmental enforcement authority is
a ministry, and in some others, it is a sec-
retariat, an undersecretariat or an office.
This situation is mirrored at municipal level.
1.3 Basin Commissions
An additional level of bureaucracy
came up'in the last 10 years: Basin
Commissions. Although none of them is fully
operating, some issues of overlapping juris-
dictions have arisen (e.g.: the COREBE Rib
Bermejo Commission, and the Rib Pilcomayo
Commission). In some cases, the jurisdic-
tions overlapped are international, as in the
case of the Paraguay/Uruguay Waterway.
The Rfo Matanza-Riachuelo Basin repre-
sents a clear example with 22 institutions
from all levels with authority over it, as well as
i I •;
the case of the Rfo Reconcjuista, where 13
municipalities and the national and provincial
governments have overlapping jurisdiction.
' • ' I '
1.4 | Need For An Adequate
! Institutional Framework
The National Secretariat of
Environment and Sustainable Development,
aware of the existing problems and the need
to improve the design of Argentina's envn
ronmental policy, is actively working on reor-
ganizing the institutions under its scope.
National authorities are aiming to fully reor-
ganize all environmental functions and con-
centrate the responsibility of policy-making
in only one national agency to which local
authorities may and should £dapt.
2 ENVIRONMENTAL LAW
IN ARGENTINA
Modern nations must have an envi-
ronmental protection law anid policy system
that exhibits integrity and utilizes an updat-
ed approach to discover and resolve envi-
ronmental compliance challenges. The
management, use and protection of natural
resources involved in the j society-nature
relationship cannot be treated separately,
and the factors contributing ta its disruption
should be regulated. [
The 1994 amendment to the
National Constitution added: as a new right
the right to a healthy, balanced environ-1
ment and laid the basic principles to guar-,
antee this right. Section 41 of the National
Constitution deals with fundamental issues
such as: j
1. minimum provisions to protect the envi-
ronment;
2. sustainable development;;
3. sustainable use of resources;
4. environmental education and information;
5. protection of biodiversity ;
6. preservation of the natural and cultural
heritage;
7. bans on the entry of hazardous and
radioactive waste into the| country; and
8. principles whereby environmental dam-
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NONMA
age creates clean-up obligations, subject
to law.
2.1 Dispersed Legislation
The Environmental Federal Pact
signed on July 5, 1993, was the starting
point to systematize environmental protec-
tion in Argentina. The amendment to the
Constitution reflected the shared will to
entrust the enactment of the basic environ-
mental rules to the National Congress.
However, almost five years after the amend-
ment has passed, Argentina still does not
have a general environmental law.
Several draft bills for the general
environmental law are waiting in the
National Congress to be considered. Some
draft bills for an Environmental Impact
Assessment law are also being discussed
and although not all of them are alike, they
are quite similar and have the same objec-
tive and purposes: to preserve the environ-
ment and promote a rational use of
resources for the sustainability of the
ecosystem. Even though no national gener-
al environmental law has been passed,
some efforts have been made to that end.
With respect to the regulation of
natural resources, the rules in force at both
the national and provincial level are over-
whelming and complex. There are so many
rules that it is safe to say Argentina is fac-
ing a case of legal pollution. When the num-
ber of rules enacted by a State increases
without limit and they become contradicto-
ry, redundant, overlapping, confused and
incomplete; when it is difficult to know
which rules are in force and which are not
and which of them have been revoked or
modified, a national rule with minimum pro-
visions becomes necessary to overcome
this obstacle.
Argentina has ratified many inter-
national treaties that deal with environmen-
tal issues and current regulations at the
national level have focused attention on nat-
ural resources. Although there is no basic
environmental rule at the national level, the
provinces have specifically addressed this
issue and enacted general laws to system-
atize an integrated provincial management
policy. Of the 23 provinces that make up the
Republic of Argentina, 14 have enacted
general environmental laws.
With these constraints, it is not
hard to understand why it has been very
difficult to establish a coherent national
environmental policy in Argentina. In the
existing federal framework, common prob-
lems are handled differently according to
the particular jurisdiction in which they
arise and ignorance of regional ecological
problems and overlapping jurisdictions
exacerbates environmental problems and
frustrates their resolution.
3 ENVIRONMENTAL IMPACT
ASSESSMENT
3.1 General Rules
There is no national law in
Argentina requiring the performance of
Environmental Impact Assessments. All
general environmental bills under discus-
sion have considered environmental impact
assessments as an environmental policy
tool, and included them under a special
chapter. On the other hand, some draft bills
are aimed exclusively at regulating environ-
mental impact assessments.
3.2 Historical Background Of Eia Law
Although national, provincial and
municipal authorities are aware of the sig-
nificance of environmental impact assess-
ments, there is not much historical
background in this respect. This is a fairly
new subject in Argentina for both those in
charge of performing an environmental
assessment and the authorities that must
review it. The human activities that most
impact on the environment have also been
the most controlled. And although clear
regulations have been issued for these
activities, there is little experience with
these provisions at the national level.
The Salto Grande and Yacyreta
hydroelectric plants, for example, were built
with programs and plans that only mentioned
environmental assessments in passing. On
the other hand, the oil industry has cared the
most for this subject and complied with all
provisions issued by the relevant enforce-
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ment authority: the Secretariat of Energy.
There are several examples of pre-
liminary environmental assessments that
have been made, bearing in mind that inter-
national requirements for this area, both in
terms of quality and environmental man-
agement systems, impose conditions on
the industry^ sales and competitiveness.
The mining industry has also made
some progress in environmental manage-
ment and has recently implemented a sys-
tem for preparing impact assessments,
although the provinces will have to regulate
pursuant to the national law. Various exam-
ples of environmental impact assessments,
studies and reports may be taken from pro-
jects associated with industrial activities,
where they are needed to obtain the highly
appreciated certificate of environmental fit-
ness. Some provinces have been stricter
than others in implementing an environ-
mental impact assessment system, which
was pioneered in Argentina by the Province
of Buenos Aires.
According to their laws, the
provinces require the performance of envi-
ronmental impact assessments before
issuing relevant permits or authorizations
required to carry out certain projects or
activities. In addition, all projects in which
the World Bank and the Interamerican
Development Bank must submit environ-
mental pre-feasibility and feasibility studies.
Finally, in the last years, ISO Standards
have played a key role, particularly ISO
14001, regarding the implementation of an
environmental management system for
those companies that voluntarily decide to
comply with that international standard.
4 HAZARDOUS WASTE LAW 24.051
(DECREE 831/93)
Law No. 24.051 - Publication: O.B.
17/1/92 - establishes rules on generation,
handling, transportation and treatment of
hazardous wastes. Given its wide-ranging
applicability, the standards it establishes,
the rules it settles, and its federal scope,
Law 24.051 may be considered as a law of
minimum common standards for the pro-
tection of the environment. It establishes
complete control on the life cycle of wastes,
through the supervision oi all the actors
involved, linked by a unique document
called a waste manifest.
In the ten years thjat this law has
been in force, it has been possible to detect
some aspects that can be improved, many
of which have been adapted in practice in
order to guarantee its enforcement. The,
regulations of the Law Jan Hazardous
Wastes were established by the Executive
Power through its Decree No. 831/93. This
decree clarified some of the ^definitions con-
taineid in the law, as well as its scope, and
it also established the procedures to be fol-
lowed in order to comply with the general
rule. In the same way, and jhrough a num-
ber of resolutions issued byithe Secretariat
for Natural Resources and Human Environ-
ment, afterwards Secretariat for Natural
Resources and Sustainable Development,;
currently Secretariat of Environment and,
Sustainable Development,; the law has
beeri improved with regard to specific
issues, with a view to its better implemen-
tation, and better control and verification of
waste management practices.
i ' ' ! :
4.1 • Scope Of The Law
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63
Authority, such wastes may have
adverse effects on human health and the
environment beyond the boundaries of
, the province in which it was generated,
or when,
4. the appropriate sanitary or safety mea-
sures concerning such wastes should
have such an appreciable economic
impact as to render their standardizing
throughout the whole National territory
advantageous, in order to ensure an
effective competition among those com-
panies that should carry the burden of
; complying with these measures.
As may be inferred, law 24.051 is a
law of local character, but its application is
extended to the whole national territory in a
wide range of situations, especially with ref-
erence to the criteria of the authority and to
the detrimental effects on human health or
the environment that could result from
improper management or disposal.
4.1.2 Substantive Law Or
Civil/Penal Codes
With regard to public liability, the
law is complementary to the regime estab-
lished in the Civil Code, which is the funda-
mental code, the ruling guide of civil law,
and is in force in the whole national territo-
ry (prevailing over provincial legislation). In
the same way, the articles that refer to the
penal regime are complementary to the
Penal Code, and they are in force through-
out the whole national territory.
4.1.3 Regime Of Adhesion
Law 24.051 is a law of Adhesion,
since it "invites the provinces and the
respective municipalities under their juris-
diction, to dictate rules of the same nature
as the present one, to provide for the treat-
ment of hazardous wastes." Also, its regu-
latory decree "invites the provinces that
have adopted Law 24.051 or that have sub-
scribed cooperation agreements with the
environmental national authority, to adopt,
as far as practicable, the provisions that
emanate from the present regulations, in
their respective areas of competence."
In this respept, some provinces
have adopted the law and its regulatory
decree; some have adopted only the law
and have established their own regulations;
others have passed their own law and reg-
ulations; and finally, some have no regula-
tions of their own, nor have they adopted
the present Law.
4.2 Categorization Of Hazardous
Wastes
Section 2 of the Law 24.051,
defines hazardous wastes as: "(a) In gener-
al: any type of waste that can be directly or
indirectly detrimental to living beings, or
pollute the soil, water, air or the environ-
ment." The law also applies to: "... those
hazardous wastes that may be required as
raw material for re-use in other industrial
processes" (defined in the glossary of
Annex I of Decree 831/93); and "(b) In par-
ticular: to those wastes included in Annex I,
which lists 45 types of wastes to be con-
trolled, categorized under waste streams
and wastes having specific constituents.
Annex II, also under Article 2, contains a
list of hazardous characteristics; all wastes
possessing any of such characteristics fall
under the scope of this Law.
4.2.1 Wastes Excluded
Wastes collected from households,
radioactive wastes and wastes from the
normal operation of vessels are expressly
excluded from the scope of this law.
4.2.2 Clinical Wastes
According to the national law, clinical
wastes are hazardous wastes, and they fall
under its scope. Law 24.051 makes particu-
lar reference to clinical wastes in Annexes I
and II, and in Section 19. Wastes in Annex I
include clinical wastes from medical care in
hospitals, medical centres and clinics for
human and animal health and related wastes
in the waste stream; wastes from the produc-
tion and preparation of pharmaceutical prod-
ucts; and wastes from Pharmaceuticals and
medicines for human and animal health.
Wastes in Annex II include infec-
tious substances, substances or wastes
containing viable micro-organisms or their
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
toxins which are known or suspected to
cause disease in animals or humans.
Clinical wastes subject to the regulation
under Art. 19 include wastes derived from
laboratory cultures; blood residues and
their derivatives; organic wastes from
surgery; animal wastes from medical
research; cotton wool, medical gauzes,
used bandages, ampoules, syringes, sharp
or piercing objects, disposable material,
non-sterilized elements saturated with
blood or other putrescible substances; and
chemotherapeutic agents.
Wastes of a radioactive nature,
derived from medical care, are subject to
the provisions in force for such matters, in
accordance with the provisions in Article 2.
4.3 National Register Of Generators
And Operators
Section 4 of Law 24.051 establish-
es that the competent authority "will main-
tain an up-dated National Register of
Generators and Operators of Hazardous
Wastes, which should include natural or
legal persons responsible for the genera-
tion, transport, treatment and final disposal
of hazardous wastes".
4.3.1 Functions
The Register is the area in charge
of all procedures related to the issuance of
Annual Environmental Certificates, in
accordance with Article 5 of Law 24.051. Its
main functions are:
1.to provide the forms for Sworn
Statements under Law 24.051;
2. to provide the forms and approval of
Manifests of Law 24.051;
3. to endorse the Operations Register
Books for Generators, Operators and
Carriers of Hazardous Wastes;
4. to perform the technical, legal and
accounting analysis of the Sworn
Statements submitted by Generators,
Operators and Carriers;
5. to carry out the enrollment in the
Register of Generators, Carriers and
Operators of Hazardous Wastes;
6. to collect the Fee for Assessment and
Control; ;
7. to issue the Annual Environmental
Certificate; ! '
8. to apply sanctions for violations of Law
24.051, and determine and collect fines;
9. to exert control through the inspection
qf sites and facilities, with a view to car-
rying out an "in situ" verification of the
Declaration submitted;
10. to evaluate consultation^ relating to the
verification of the legislation in force,
applicable by area,
whether from
national and provincia governmental
Agencies or from the public in general;
and |
11. tip intervene, as appropriate, in the case
of official letters addressed to the envi-
ronmental authority. !
The enrolment in| the National,
Register of Generators and Operators of
Hazardous Wastes is formalized through the
submission, by those persons under the
scope of the Law, of a standard Sworn
Statement form, which consjitutes the start-
ing point for the corresponding procedure.
The said procedure is analyzed from the
technical, legal and accounting point of view.
4.3.2
Registration By The Authority At
Its Own Initiative I
Section 9 of Law 24r051 provides a
specific mechanism for those persons under
its jurisdiction among the categories men-:
tioned, but who have not, however, enrolled
in the National Register. This'procedure con-
sists in their registration by (the authority at
its own initiative. The declaratory decision
determines the enrollment, i in accordance
with lArticle 9 of Law 24.05,1, of all Firms
undeir the scope of the Law which have not
duly enrolled in the National 'Register.
4.3.3I. Inspections •
The different procedures imple-
mented by the Coordination!of the Register
include inspections at premises of firms
involved in the Generation,!Operation and
Transport of hazardous wastes having
enrolled in its Register with;the purpose of
obtaining or renewing ! the Annual
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65
Environmental Certificate. The inspections
are conducted by 'ad hoc' commissions
composed of, according to the requirements
and the scope of the company involved,
professionals of the different areas of the
sector, whose aim is to carry out the "in situ"
verification of the integral, environmentally
sound management of the hazardous
wastes generated, transported, treated, or
disposed of, from a technical, legal and
accounting point of view.
4.3.4 Inscription System In The National
Register Of Hazardous
Wastes (Sirp^
The application form was carried
out with magnetic support: a diskette. The
SIRP diskette contains a self-sufficient
program, which runs" in any personal com-
puter, with minimum requirements and is
able to print from basic printers. The SIRP
program (module: application) will check
out basic consistencies of the _ data and
monitor compliance with form completion
obligations. The application form content
was updated for compliance with all appli-
cable technical, financial and legal require-
ments.
The files stored in the Register
Office (3600) started the Database by
2000. The data analysis and controls for
consistency were carried out in order to
verify coherency. All of the Administration
areas of the Register Office use the System
to assist in automatic incorporation of the
application form, assignment of the file
number, technical analysis and company
categorisation, determining which waste
are able to handle with the declared tech-
nology, financial analysis to determinate
the tax amount to be paid, legal analysis,
and monitoring of other compliance param-
eters.
4.4 Persons Under The Scope Of
Law 24.051
1 Law 24.051 creates three legal
entities - the generator, the carrier and the
operator - linked via the manifest docu-
ment, which makes it possible to conduct a
complete monitoring of the wastes, from
the point of origin to the point of treatment,
elimination or final disposal.
4.4.1 Generators
"Generator" means any natural or
legal person whose actions, processes,
operations or activities result in the produc-
tion of hazardous wastes, and who is
responsible for the destination of such
wastes". Different kinds of firms, whether
producers of goods or suppliers of ser-
vices, are included within this category.
Examples of the former include petrochemi-
cal, pharmaceutical and mining industries,
manufacturers of chemical products in gen-
eral, and paper mills. The latter category
includes filling stations, lubrication centres
for automobiles, energy-generating plants,
transportation mechanisms in general, air-
ports, as well as hospitals, clinics and health
centres in general, and research centres.
4.4.2 Operators
In terms of Law 24.051, "Operator"
means the person responsible for the com-
plete operation of a plant or facility for the
treatment and/or final disposal of haz-
ardous wastes. The category of Operator
includes several types of firms whose main
activity is based on a wide range of tech-
nologies for the treatment and disposal of
industrial or clinical wastes. Techniques
such as incineration, biological or physico-
chemical treatments, specially engineered
landfill, among others, characterise the
activities of operators. In this respect, Law
24.051 contains, in its Annex III, a compre-
hensive list of activities considered as valid
and possible operations for the treatment of
hazardous wastes, making the distinction
between those operations which may lead
to resource recovery or recycling, and
those which do not.
4.4.3 Carriers
"Carrier" means the person whom
the Generator entrusts with the operations
of collection and transport of hazardous
wastes from their point of origin to the treat-
ment or final disposal site.
4.5 Special Legal Entities
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE A^ND ENFORCEMENT
Law 24.051 contemplates cases in
which such clearly defined legal entities as
that of the Generator and Operator have
special characteristics that deserve a par-
ticular treatment. This applies in the follow-
ing cases.
4.5.1 Eventual Generator
Such is the case of an occasional,
non-habitual generation of hazardous
wastes by any natural or legal person. This
case is provided for in the Regulatory
Decree of the Law on Hazardous Wastes,
Decree 831/93, under its section 14. The
above-mentioned legal framework includes
those firms, whether or not registered as
Generators of hazardous wastes on
account of their habitual activities, that
occasionally generate wastes that are not
part of their regular activity. It also includes
eventual generators of PCBs, eventual,
generators through accidents, road acci-
dents, eventual generators through inciden-
tal detection of illegally interred wastes or
polluted sites.
4.5.2 Operators With Mobile Equipment
The enforcement of Resolution
185/99 by the Secretariat of Sustainable
Development and Environmental Policy,
provided a legal instrument for the evalua-
tion and control of a special type of opera-
tors. Such operators are characterised by
their utilization of mobile equipment, which
enables them to perform treatment opera-
tions of hazardous wastes at the very place
where they are generated. This kind of
operators usually offer a wide range of
alternatives, whether for the destruction of
the wastes via incineration, for the recovery
of hydrocarbons from petroleum sludge, for
the remediation of the environment in pol-
luted sites by means of diverse strategies,
for the decontamination or sterilization of
clinical wastes through the utilisation of
autoclaves, and many other options.
4.5.3 Operators/Exporters
This refers to firms that have
obtained a permit from the National
Register of Generators and Operators of
Hazardous Wastes to arrange for such
wastes to be exported. ;
f
4.5.4 Operators For Storage
This refers to firms devoted to tran-
sitory storage of wastes -in general, des-
tined for transfer-, and to the sites where,
wastes are stored until thei[- final disposal.'
Such operators must have premises and
facilities that are adequate from the point of
view* of their construction and operation,
Likei/vise, it is important to notify the term of
the transitory storage. (Res. 123/95).
4.6
,
Legal Instruments
4.6.1 Environmental Certificate
I The annual environmental certifi-
cate is an instrument that accredits, "exclu-
sively, the approval of the rtjianner in which
the {persons enrolled in the Register will
carry out the handling, transport, treatment
or final disposal of hazardous wastes". (Art.1
5). It is the administrative instrument that
authorises the activities that have been
regulated. The environmental certificate
must be renewed annually. \
4.6.1> The Manifest ;
J The Manifest is the document that
records the nature, amoun|t and origin of
wasites; the transfer of wastes from the gen-
eratpr to th^ carrier, and from the carrier to
the treatment or final disposal plant; the
treatment and elimination' processes to
which the wastes are to be 'subjected; and
any operation that is carried out. The
Manifest is a very important document. It
ensures the control of the management of
the wastes, from the Generator where they
originate, through the Operator, to their
final disposal, verifying that the provisions
of this law have been complied with, and
with the ratification of the Competent
Authority. •
4.6.3 Environmental Feej
The Competent Authority deter-
mines the value and periodicity of the fee
that generators must pay. JThe amount in
direct relation with the potential danger and
quantity of the wastes they produce, and
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67
may not exceed one percent (1%) of the
estimated average profit derived from the
activity resulting in the generation of such
hazardous wastes. The Secretariat of
Environment and Sustainable Development
issues the Annual Environmental Certificate
to Generators and Operators enrolled in
the National Register, and collects the fees
they must pay. In fact, this fee depends on
the potential danger of the wastes generat-
ed, as notified in the sworn statement sub-
mitted by the Generator and Operator
themselves, and it is in direct relation to the
characteristics declared concerning the
proportion of hazardous substances they
contain.
Under Argentine jurisprudence,
these fees do not constitute a tax but rather
an administrative instrument to provide a
direct compensation for expenses incurred
for the provision of a certain administrative
service to its users and, unlike taxes, they
are only related to the utilization of public
services, and only require an authorisation
of a general nature for their institution. The
State has the authority to create so-called
"green" taxes, which are those required for
activities related to hazardous wastes,
ensuring compliance with the mechanisms
provided, with a view to preventing damage
to the environment. The aim of the environ-
mental tax differs from that of general
taxes, since it fosters an indirect action
aimed at preventing pollution.
4.7
Administrative Sanctions
The Law on Hazardous Wastes
establishes a regime of administrative
penalties, corresponding to the field of
administrative infractions, via a system of
penalties imposed pursuant to an adminis-
trative investigation that guarantees the
right to reply to charges made. These
penalties are set forth in Section 49, and
include admonitions, fines ranging from five
thousand pesos to one hundred times that
sum, suspensions of enrolment in the
National Register for a period of between
30 (thirty) days and one year, and cancella-
tion of enrollment in the Register.
4.7.1 Administrative Investigation
The preliminary administrative
investigation mentioned above is regulated
through Resolution SDSyPA No. 255/01.
This resolution implements the procee-
dures to be followed in administrative inves-
tigations arising from non-compliance with
the provisions of Law 24.051. These legal
proceedings are instituted when the
Register verifies a violation of, or non-com-
pliance with, any of the provisions of Law
24.051 or its complementary rules. Once
these contraventions have been enunciat-
ed, the formulation of charges gives rise, to
the pertinent proceedings.
The person under investigation
then receives proper notice, and is granted
a term of 10 (ten) court days, in order that
he/she may effectively exercise his/her
right to reply to charges made, presenting
the pertinent plea. If the assessment of the
plea does not determine that the charges
have been partially or totally refuted, the argu-
ments for the defense are evaluated, and the
corresponding sanctions are imposed.
4.8 Liability
Under Law 24.051, the Generator
is the owner of the hazardous wastes, and
will continue to be so even though he/she
may voluntarily transfer or abandon them.
That is to say, the Generator's legal owner-
ship is not cannot be transferred. The gener-
ator's liability for eventual damage does not
disappear with the transformation, specifica-
tion, development, evolution or treatment of
the hazardous wastes. Liability extends from
the generation of the hazardous waste to its
elimination or, as has often been maintained,
from cradle to grave (section 48).
Analyzing in particular the regime
of public liability incorporated by Law
24.051, it arises that this law establishes
that any hazardous waste is dangerous (as
specified in the terms of Article 1113, para-
graph 2 of the Civil Code). In this respect,
Law 24.051 has instituted a system of
objective liability for the risk implied. The
law complements such a concept when it
adds, in its Article 47, that the generator is
not exempted from liability, even though
he/she may demonstrate that the damage
resulted from the negligence of a third
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
party, if that action might have been pre-
vented by taking appropriate measures,
and in accordance with the particular cir-
cumstances of each case.
4.9 Penal System
Regarding the penal regime of Law
24.051, liability may be imposed for endan-
gering public health. Human health is the
legal asset under guardianship. However,
not just any danger will suffice to require
the imposition of penalties; this demands
that the danger be serious and of great
magnitude.
In its Section 55, the Law estab-
lishes penalties for any person who,
through the management of hazardous
wastes, should poison, contaminate, or
adulterate the soil, air, or the environment,
in a manner that should endanger human
health. It is worth noting that neither the
regime of civil liability nor the formally
enacted penal rules require the agreement
of the provincial governments, or any spe-
cific authorization for their enforcement and
adjudication, and they are in force through-
out the National territory.
4.10 Competent Authority
The national environmental organ-
ism is the competent authority and that is
the Secretariat of Environment and
Sustainable Development, currently under
the Ministry of Social Development and
Environment.
5 ENFORCEMENT
5.1 Enforcement Scenario
Conflicts and difficulties arise in
Argentina because the institutional capaci-
ty and authority for environmental manage-
ment is spread among several agencies at
the national, provincial and municipal lev-
els, overlapping jurisdictions, poor controls,
weaknesses in rule compliance and a per-
sistent confusion between policies and
objectives. This scenario gets more com-
plex due to the relationship between the
National and Provincial [Governments,
between Provinces, between Municipality
and Province, and between Municipalities.
Taking into account the overlapping of roles
among the National Government and local:
administrations and the freduent changes
of institutional structures, the general sce-
nario shows different legal requirements
and authorities competing [to enforce the
law. With respect to the regulation on natu-
ral resources, the rules in! force at both
national and provincial level are over-
whelming and complex. \
Argentina's federal system poses a
challenge: How to define an$ subsequently
apply a policy throughout th£ national terri-
tory without affecting the powers exclusive-
ly vested in the provinces;and so as to;
generate true and effective vertical coordi-
nation among governmental j units.
; : F
5.2 Major Constraints i ;
The main problems include:
1. lack of a general basic national stan-
dard - the standard, or mjnimum provi-
sions law (sect. 41 of the Argentine ;
Constitution), will be the basis for future
rules and will also strengthen and
refresh those in force; i
2. disordered, overlapped and contradictoiy
institutional framework;
3. uncoordinated national environmental
policy - since the national policy is
weakly integrated and thej-e is neither
coordination nor consistency in the insti-
tutional structure, it is very difficult to
have an adequate ecological and sus-
tainable action; '
4. only partial knowledge of environmental
management at all levels <|>f authority
(national, provincial and municipal);
5. lack of resources at the monitoring
agencies necessary to revjiew, observe
and follow-up, control, monitor and
verify compliance; j
6. insufficent awareness of trie importance
of environmental compliance and
enforcement; and !
7. Mack of financial and economic means.
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NONNA 69
5.3 Recommendations To Solve
The Problems
A solution should be sought for
each problem. It is therefore necessary:
1. to pass minimum provisions law - it
should be a general legal set to which
the sectional environmental laws may
refer, also enabling the consistent
enforcement of any existing and future
rule;
2. to reorganize the environmental institu-
tional structure with coordinated limits
for institutional responsibilities;
3. to provide the country with an environ-
mental policy to be taken as a key
variable for development, securing the
incorporation of all regions and human
groups;
4. to provide the country, at all levels,
with professionals working together
with the authorities to achieve the goals
proposed;'
5. to provide capacity for an effective
implementation of existing and future
rules to control and follow-up
compliance;
6. to build general awareness on environ-
mental compliance and enforcement;
, and
7. to identify and create economic instru-
ments to get enough financial support
for achieving the goals.
5.4 Hazardous Wastes Enforcement
As A Model
National Law 24.051 for the envi-
ronmental sound management of hazardous
wastes has the virtue of being the first law to
integrate attempts at environmental preser-
vation, previously scattered in partial and/or
local legislation, in a unique rule of national
scope. The Law on Hazardous Wastes is a
strict law that provided the means to estab-
lish management guidelines at a time when
there were few technical instruments of con-
trol. However, the implementation of new
technologies and the enhanced knowledge
on environmental issues clearly point to the
need for a more encompassing and flexible
law. The National Register of Hazardous
Wastes is considered to be hardly the
unique system for federal enforcement. But
it is also fair to say that many changes must
be made in order to guarantee compliance
in the overlapped institutional framework
described before.
5.5 The Real Challenge In Argentina
There is an urgent need for improv-
ing the current situation on environmental
enforcement and compliance in Argentina
because provincial and federal responsibil-
ities that are mostly concurrent generally
turn to be overlapped and need urgently to
be coordinated and harmonized. In order to
enhance environmental enforcement, non-
bureaucratic structures of governmental
agencies, and intergovernmental coher-
ence have to be granted. Establishing an
institutional framework for environmental
policy is the real challenge that has to be
promptly faced in order to achieve the goal
in Argentina. In order to get an efficient and
harmonized coordination it will not be
enough to pass a minimum provision
statute. Other formal and informal mecha-
nisms to strongly encourage a real imple-
mentation of standards and to guarantee
enforcement activities will be needed to
bring about compliance.
BIBLIOGRAPHY
Derecho Ambiental en America Latina.
Silvia C. Nonna. Centra de Publicaciones
de la Facultad de Derecho. 1996.
Law 24.051 Hazardous Waste and
Executive Decree 831/93
National House of Representatives, Agenda
Gazette.
National Senate. Journal of Introduced
Drafts.
Perfil del Pai's 1996. C.C.A. Common
Country Assessment.
ReLeA. www.relea.com.ar Environmental
Regulations in magnetic base of perma-
nent up date.
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Rumbo Ambiental en la Argentina, Silvia
Coria, Claudia Villanueva, Silvia Nonna,
Leila Devia, Ana Vidal. Editorial Ciudad
Argentina. December 1997.
Any enforcement results???
Web page Secretariat for Sustainable
Development and Environmental Policy.
www.medioambiente.gov.ar
APPENDIX
SECTION 41 NATIONAL CONSTITUTION
All the habitants have the right to
enjoy a balanced and healthy environment,
apt to human development and productive
activities that satisfy the current needs
without compromising its use by future gen-
eration, and have a duty to keep it. The
environmental damage will basically carry
out the duty to compensate according
to law.
The authorities will provide for the
protection of this right, for the rational use
of natural resources, for the preservation of
the natural and cultural inheritance, for bio-
logical diversity and for the environmental
information and education.
The Nation shall enact rules that
contain minimum requirements of protection
and the complementary ones must be pre-
scribed by the provinces without the jurisdic-
tion of the latter being altered by the former.
The entrance to national territory of
hazardous and radioactive waste is forbidden.
INTERNATIONAL TREATIES
Oilpol and MARPOL Prevention of Pollution
of the Sea
SOLAS Safely of Life at Sea
RAMSAR Wetlands of international impor-
tance
CITES Wild flora and fauna species
Basel Convention Transboundary Move-
ments of Hazardous Wastes and their dis-
posal
Montreal Protocol on substances that
deplete the Ozone Layer
Biodiversity Convention of Rio de Janeiro
Climate Change Convention
PIC Convention
POPs Convention (signed and not yet rati-
fied) ,
Tresities between Brazil and Argentina on
hydraulic resources j
Tresities between Uruguay ^nd Argentina
NATURAL RESOURCES. National Laws
a. Water:
Law 20.094: Navigation Law
Decree 674/89: Water pollution. Quality
standards. ! ;
Decree 776/92: Water preservation etnd
control of pollution j
b. Air: i
Law 20.284: Rules for preservation of air
resources. Quality standards.
Law 23.724: Ratifies Viena Convention for
the protection of Ozone La^er.
Law 23.778: Ratifies Montreal Protocol,
subistances that deplete Ozone Layer.
Law 24.040: Manufacturing and commerce
of substances that deplete Ozone Layer.
Law 24.167: Ratifies Amendments to
Montreal Protocol. j
c. Fauna: i
Law; 22.421: Protection of Wild Fauna.
Decree 691/81: regulates law 22.421 ,
Law122.344: Ratifies CITE^ convention.
d. Flora:
Law 13.273: Defensa de la riqueza forestal.
Law: 22.344: Ratifies CITE^ convention.
e. Soil: :
Law; 22.428: Soil preservatipn.
f. Protected Areas: \
Law 22.351: National areas. Natural
Monuments. National Parks Administration.
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71
Decree 637/80: Regulates Law 22.351.
g. Underground:
Law 1919: Mining Code.
Law 24.585: Modifies Mining Code.
Includes a complementary title on environ-
mental protection.
Law 17.319: Hydrocarbons Law.
Decrees (Secretariat of Energy):
Environmental protection on hydrocarbons
upstream activities.
ENVIRONMENTAL PROVINCIAL LAWS
General Environmental Laws
City of Buenos Aires: Law 123
Both General Environmental and
EIA laws:
Corrientes: G. Law 4.731
San Juan: G. Law 6.634
Mendoza: G. Law 5.961
Tucuman: G. Law 6.253
EIA 5.067
EIA 6.571
EIA Decree
2109/96
EIA Decree
2204/91
Jujuy:
Formosa:
Chaco:
Cordoba:
Buenos Aires:
Neuquen:
Rfo Negro:
Tierra del Fuego:
Salta:
Santa Fe:
Law 5.063
Law 1.060
Law 3.964
Law 7.343
Law 11.723
Law 1.875
Law 2.342
Law 55
Law 7.070
Law 11.717
Environmental Impact Assessment:
Chubut: Law 4.032
Misiones: Law 3.079
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SOME VIEWS ON EFFICIENT ENVIRONMENTAL CONTROL AND
ENFORCEMENT OF INDUSTRY FROM A SWEDISH PERSPECTIVE
LIISJDGREN, HANS-ROLAND
Director, Swedish Environmental Protection Agency, Blekholmsterassen 36, SE-106 48
Stockholm, Sweden, hans-roland.lindgren@environ.se
SUMMARY
There is a strong link between establishing standards for regulating emissions
and environmental impacts and enforcing those standards. Experience has shown that
excessively strict emission standards could be impossible to enforce and therefore counter
productive. Regulation and enforcement initiatives should thus focus on the goal of making
real improvements in environment quality. Establishing a dialogue between stakeholders
and designing flexible regulations that consider local circumstances, are useful if not criti-
cal components to this effort. The value of integrated permitting, which allows for proba-
tionary periods, and involving inspectors in permitting activities, which provides for better
understanding of the possible environmental problems at an installation, needs to be rec-
ognized. A prerequisite for success in this area requires that inspectors draw the attention
of lawmakers to inappropriate regulation, work on the ground, receive proper training, focus
on priority problems and work with integrity. The work should be organized in a way that
provides a level playing field for pollution sources and authorities. Enforcement powers also
need to be carefully balanced to achieve maximum performance and meet new challenges.
1 BACKGROUND INFORMATION
The Swedish EPA is responsible
for a wide range of issues including pollu-
tion control, nature conservation and
national parks establishment, hunting regu-
lation, etc. Enforcement approaches and
tools are considerably different between
different fields of environmental work. This
review of enforcement of environmental law
focuses mainly on industrial pollution
sources and is based on experiences both
with a market economy of the Swedish
model and knowledge about systems uti-
lized in some other countries. It is hoped
that this information is relevant in a broader
sense to help address environmental law
enforcement challenges facing other coun-
tries as well.
In Sweden, the Environmental
Protection Agency is the central environ-
mental authority. In broad terms the
Swedish EPA:
1. coordinates the environmental work at
the national and international level;
2. provides information to parliament and
government needed to make environ-
mental policy decisions;
3. encourages sector authorities, regional
and local authorities, business and the
general public to address environmental
concerns;
The tools the agency has to per-
form the above work include:
1. carrying out environmental research;
2. conducting environmental monitoring
and surveys;
3. suggesting environmental legislation and
implementation action programs and
studies;
4. coordinating grants and compensation;
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
5. acquiring land and managing of protect-
ed areas;
6. providing information, education and
training
The legal basis for implementation
and enforcement in the environmental area
in Sweden is the Environmental Code. It
came into force in 1999. The Code was the •
result of the merging of 15 old environmen-
tal acts. The code covers almost all types of
environmental issues, including pollution
problems, conservation of nature and
resources, health and sanitation, use of
chemicals and pesticides, GMO, building in
water, dumping etc are all covered. The
main exception is radiation issues.
The Swedish EPA is not the only
national agency involved in environmental
work. The ideas from the Bruntland
Commission, which give responsibilities
also to sector agencies, have started to be
implemented in Sweden. Responsibilities
between different agencies involved in
environmental work are clarified in the
Code and enforcement of legislation is fur-
ther decentralized compared with the struc-
ture under the old legislation.
2 ENFORCEAB1LITY PARADIGM AND
STAKEHOLDER DIALOG AS A BASIS
OF EFFECTIVE ENFORCEMENT.
There is a strong link between the
conditions for regulating emissions and
environmental impact and enforcement of
the legislation. It is hardly possible to dis-
cuss one without discussing the other. Very
strict regulations, requiring extremely
demanding emission controls or close to
zero influence on the environment, might
not be enforceable at all and often do not
improve the quality of the environment.
One example involves Germany,
which some years ago had difficulties
meeting the requirements in the EU
Drinking Water Directive in some regions.
The problem was higher concentrations
then allowed of a specific pesticide used in
agriculture. Different treatment technolo-
gies and combination of techniques, includ-
ing filtration through activated carbon, were
tested, in order to reduce the concentration
to the allowed limit, but these efforts were
unsuccessful. It was simply not possible to
find |a solution at a reasonable cost. The
best! solution would have been to simply
ban the use of the pesticide in question.
However, the free market rujles in the union
put hurdles in the way for sblving the prob-
lem by a ban.
i A second example involves the
Maximum Allowable Concentrations (MAC-
values) in Russia, which are so stringent
that many of the industries could not reach
the limits requested even if they had proper
treatment installed. Because they would
almost unavoidably havei to pay fines,
industries operate their wastewater treat-
ment plants in order to at least avoid the
operational cost for the treatment plant.
Although an option to meet the limit values
was to dilute polluted water with clean
wateir, such a solution hardly contributes to
a better environment. i
! : i ' :
3 PROMOTING COMPLIANCE
! '
• The question then becomes
whether dialogue between stakeholders,
and flexible regulations that allow for con-
sideration of local circumstances, serve
that purpose. If operators of industrial facil-
ities feel that the conditions set for them are
fair, technically feasible ancj not excessive-
ly costly, it is easier for them to feel com-
mittesd to meet the limit values decided on.
Integrated permitting allowing for pollution
prevention instead of end-of- pipe tech-
niques, often the result of media based
emisisions standards, is preferred by these
companies. |
i Industry often accepts, at least in
Sweden, quite stringent linnitations if they
get reasonable time to mkke the invest-
ments preferred, investments that often can
be made in conjunction witji other needed
measures. Environmental i investments in
old plants, so called retrofitting, are often 3
to 4 times more expensive compared with
the same investments in a rjew plant. It has
even been able for industries in Sweden to
agree, after discussions with enforcement
authorities, to invest in unprpven innovative
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LlNDGREN
75
technologies that have better prospects
from an environmental standpoint. The con-
dition is normally linked to permitting or
enforcement authorities agreeing not to
take full advantage of the situation and
immediately require more stringent limita-
tions, but allow a period for the industry in
question to learn how to operate the pro-
cess before final more stringent limit values
are imposed.
The licensing authorities in
Sweden have often allowed for a probation-
ary period in the licensing process. The
final conditions in such cases are normally
set one or more years after the basic per-
mit is issued. An industry has therefore the
possibility to improve the operation of a pol-
lution control or minimization process as
experience is gained over time. Another
possibility in such cases has been to intro-
duce a special condition in the license
requiring the facility and the enforcement
authority to jointly evaluate the technique
and report back before the final permit con-
ditions are set. The environmental result of
this approach has been excellent. Although
the impact of using innovative techniques
might sometimes be somewhat higher con-
centrations of pollutants in a specific waste
stream, this might be accompanied by a
drastic reduction in the amount of such
wastes produced. Because Swedish
authorities are not bound by rigid concen-
tration standards this is also an option that
is available to reduce the total load of pol-
lutants emitted to the environment. Many
>new, more environmentally friendly tech-
nologies have had a chance to be tested
because of such conditions.
This working method has however
also been heavily criticized, especially by
lawyers. They have argued that the limita-
tions in a license must be clear to everyone
from the beginning, and that the public has
a right to know what the limit values are
when a new investment in an industry is
decided upon. Over time most of the
lawyers in Sweden however have accepted
the inclusion of probationary periods as an
instrument in permitting given the good
environmental results. Environmental
groups, not trusting the authorities, often
argue that authorities cut deals behind
closed doors. Regulators respond that the
Swedish licensing process is open to the
public and the licensing authority never
makes a decision without a public hearing
where all stakeholders can present their
opinions.
In addition to including probation-
ary and phase-in periods as instruments in
licenses, the authorities can also use a mix
of softer and harder conditions. Examples
are limit values that may never be exceed-
ed, limit values that may be exceeded only
a few times during a certain period, or guid-
ing values which a permitted facility should
try to reach. The last type of value is often
combined with a demand on industry to
agree on actions that will be taken jointly
with the enforcement authority to improve
the situation if it is not achieved.
Not only are emission limit values
used in the Swedish licensing process but
also conditions on process options that
must be used or avoided. One example
involves a condition for an electroplating
plant that may require the use of three-step
counter current water rinsing baths after
the plating operation, the purpose of which
is to reduce water demands and allow for
recovery of chemicals in the concentrated
wastewater. A condition banning the use of
free chlorine for bleaching in the pulp and
paper industry is another example. The
advantage of these conditions is that an
inspector easily could check compliance as
compared with a situation where costly
chemical analysis would be required.
The EU IPPC directive (Integrated
Pollution Prevention and Control Directive),
which came into force in 1996, is an exam-
ple of a piece of legislation that allows for
some permit flexibility to recognize and
address local circumstances. It will be inter-
esting to see how the member states of the
EU will explore regulatory and enforcement
options under the directive.
4 PRIVATIZATION AND
DECENTRALIZATION
In Sweden there are two trends
that are quite visible: privatisation and
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
decentralisation. Self monitoring could not
be considered a true privatisation issue, but
is more the result of the obvious fact that no
public enforcement organization, regard-
less of how rich a country is, can get the
resources to perform the monitoring for all
pollution sources. But it is not only the
resource argument, which is valid. Self-
monitoring is also needed so the polluter
knows and can take action when high emis-
sions occur because of disturbances in the
production process. It should therefore be
the duty of the polluter to monitor his own
emissions.
It is not necessary that a polluter
monitor all emissions himself. A common
model in Sweden is that the polluter moni-
tors some parameter, which gives informa-
tion on how the process is operating, but
uses certified specialist companies for the
chemical analysis needed. Specialist com-
panies often conduct monitoring requiring a
high level of expertise. An example of this
approach involves the monitoring of fugitive
dust emissions. Specialist companies are
often used to calibrate instruments used for
emissions monitoring. It is hardly possible
for an authority to have such a detailed
level of expertise in different areas even if
there are examples where this is not true in
Sweden. Nevertheless, even if the authori-
ty has a high level of expertise in some
areas, it is not appropriate for authorities to
provide monitoring or other services to
companies in exchange for compensation.
Such a scheme would risk compromising
the integrity of the authorities because the
service income might become more impor-
tant then fulfillment of enforcement respon-
sibilities.
What is totally appropriate, howev-
er, is that authorities now and then check
the results reported from companies by
there own monitoring and at its own
expense. Monitoring paid for by companies,
but on behalf of the authorities, is also one
option that is used in Sweden. For instance
is it quite common that consultants make
compliance checks of new investments. In
these cases, the company selects the con-
sultant but the authority in charge needs to
agree to the company or person selected.
The consultants, in turn,: report to the
authority. !
Where the market rnechanism has
created a large market for compliance
checks is in ISO 14000 certification.
Sweden has at present oVer 1,900 ISO
14000 certified companies and over 235
that follow the EU EMAS scheme. The ISO
14000 and the EMAS schemes place basi-!
cally identical requirements! on the compa-
nies, One major difference, however, is that
the results of an EMAS revision should be
made public. The politicians in Sweden
hope voluntary schemes, such as EMAS
will reduce, at least in part; the authority's
enforcement work. Howev.er so far the
Swedish EPA has not found any signs to
that effect. , I .
5 ROLE OF INSPECTORATES
i
The close link between regulation
and enforcement gives rise to the next
question. What is the role qf inspectorates
and what should they concentrate on?
Should they concentrate on compliance
checking and enforcement or do they have
a roll also in regulation and permitting?
Based on the factual situation in different
countries there are obviously different opin-
ions on that. |
In Sweden there are proponents
and valid arguments on bbth sides. The
advocates for a large independent inspec-
torate, concentrating only on enforcement
issues, use the following arguments. If the
public should trust the system we must
show that we set aside j resources for
enforcement. If inspectors also have other;
dutiess there is a risk that enforcement does;
not get enough attention. It: has also been
argued that inspectors involved in permit-
ting and close discussions with industry
might loose their integrity, An independent
enforcement inspectorate al'so has a better
chance to build up a high competence on
monitoring and information analysis issues.
| Those who believe ;that inspectors
alsojshould be involved in ;regulation and
perrtjiitting argue that lessorjs learned from
enforcement should be use^l as one of the!
basejs in the permitting process and for
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77
designing new regulations. The transfer of
valuable information is easier if the inspec-
tors are directly involved in such issues.
The knowledge gained when taking part in
regulation and permit development is use-
ful for understanding where and why emis-
sion problems, might occur. The increased
knowledge helps inspectors to focus on
identifying and solving the most important
problems.
The Swedish EPA has learned
some lessons because it includes a divi-
sion working only with enforcement and
supervision issues and divisions working in
an integrated way with permitting and
enforcement. Inspectors working solely
with enforcement tend to have a more the-
oretical and formal approach to their work,
while those working in an integrated way
aim for practical solutions solving the envi-
ronmental problem maybe sometimes
neglecting applicable legal requirements.
Inspectors without the integrated knowl-
edge seldom feel competent to discuss
how to solve problems and therefore use
either a legal framework in relating to
industry. On the other end of the spectrum,
inspectors work more as consultants than
enforcers of the rules. What is needed to
achieve the best results is probably a mix-
ture and balance of both of these
approaches.
6 ASSIGNING RESPONSIBILITIES TO
ACHIEVE RESULTS
/
There are several views on how
best to assign responsibilities to inspectors
and inspectorates so that they can achieve
compliance and results on the ground. First,
it should be the duty of inspectors and
inspectorates to inform the politicians and
lawmakers when they find legal requirement
are counterproductive or inappropriate from
an enforcement or environmental quality
protection point of view. An example of the
importance of this feedback arose in cases
involving fines paid under Swedish laws.
The new Environmental Code,
which came into force in Sweden 1999,
introduced a new charge system for pol-
luters who violate laws or permit conditions.
The law called for a fine to be paid regard-
less of the circumstance that caused the
violation. Although the former legislation
gave authorities discretion to overlook
minor violations if they were not caused by
intentional or negligent acts, this possibility
does not exist any longer. It is quite com-
mon, for example, that industries may deliv-
er their yearly environmental reports late
and, under the new Code, fines are pre-
scribed. In some Swedish municipalities
the inspectors have proposed charges
according to the law in these cases, but the
political level making final decisions has
refused to charge the industries.
This conflict has been brought to
the attention of the Swedish courts and in
one of the municipalities the responsible
politicians were fined. In another case,
however, the court verdict was not guilty.
For the inspectors squeezed between the
requirements of the legislation and the
decision-makers, who must answer to the
electorate, the situation is far from pleas-
ant. The same is true for the politicians who
just assessed the situation based on their
common sense. It difficult for some to
accept a fine for violations that is assessed
without any allowance for the underlying
reasons or seriousness, and especially in
cases where the violation has no impact on
the environment. A special committee is
now evaluating the new Code and, hopeful-
ly, they will propose a solution.
A second important responsibility is
that that inspectors must visit industries and
other pollution sources to gain a true under-
standing of the environmental priorities and
issues that can only be gained from on-the-
ground experience. An inspector learns
more from one visit to a facility than she
does from reviewing ten reports. Travel bud-
gets, in this respect, are important tools.
One such trip demonstrated that on the
ground experience with two facilities, a steel
work and a cement plant, in one NIS coun-
try showed compliance despite the fact that
inspectors had deemed the same facilities
"the worst" polluters. It turned out that the
inspectors from the country simply did not
know what they where talking about
because they had not actually visited the
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
facilities. Work on the ground is important
because, without proper knowledge of all
relevant circumstances, effective implemen-
tation and enforcement is impossible.
Training and other competence
building activities are a third needed com-
ponent. If an inspectorate and its inspectors
want to be listened to by industry and other
polluters, it is important that the inspectors
know what they are talking about. A holistic
view of an industry and its problems should
be gained before inspections are com-
menced. A narrow media focus on air or
water is not in the interest of industry, espe-
cially if the industry normally prefers to
solve problems by adopting pollution pre-
vention and process changes. Adding cost-
ly end-off-pipe treatment plants, which is
often the result of a media-specific focus, is
the last option for industry. Preferably,
inspectors should have at least a basic
understanding of pollution prevention ancl
cleaner production concepts. It also helps if
inspectors have some knowledge about
costs (investment and operational cost)
that might be needed for compliance. With
such competence an inspector is more or
less on equal footing with industry repre-
sentatives.
Because inspectorates do not have
enough resources to do everything
requested by politicians, the public and leg-
islation, they have a fourth responsibility: to
focus on priority environmental problems.
The tendency to tackle the easiest prob-
lems and the weakest targets first should be
avoided. It is not the number of enforcement
cases handled but the environment result,
which should be the guiding principle.
Inspectors also need to work with
integrity, basing their decisions on best pro-
fessional judgement, not on pressure from
interest groups. The inspector should stand
by her decisions even when criticized.
Industry appreciates an inspector who
expresses a firm view, even if that view
might go against them. Inspectors must,
above all, not be able to be bribed. Only
then does the inspecting organization gain
respect among stakeholders and put itself
in the position to help achieve environmen-
tal results.
A final responsibility requires that
inspectorate functions be organized in such
a waiy as to ensure, to the extent possible,
that there is an even playing field for indus-
tries land inspectors. It cannot be expected
that a single inspector in a nnjunicipality, with
limited resources, should b£ able to stand
up eigainst a large powerful international
company. That should prejferably be the
task of a national enforcement organization
while it might be overkill to ;use inspectors;
from the national level to harjidle minor local:
issues that are better taken pare of by local
people knowing the situation at spot.
Because a powerful industry requires a
powerful counterpart, the use of a combi-
nation of enforcement entities on the
national, regional and local | level is prefer-
able.
7 ENFORCEMENT POWERS !
•i
If an inspectorate is to achieve
compliance, it will also need political, public
and legal support. With respect to legal
tools, information, fines, other types of eco-
nomic incentives, revocation of permits,
shutting down production! and criminal
prosecution may each play a valuable role.
While all these avenues are (available under
the Swedish legislation, the hatural starting
point is a dialogue with the violator dis-
cussing the reason for the violation and
how i it can be corrected. [Historically, in
Sweden, authorities often Avoided to take
further action if an agreement on correction
could be obtained through negotiation with
industry. To punish someone is not really an
environmental objective. And it was found
very difficult for the authorities to success-
fully get someone sentenced in court
cases. According to the former Swedish
legislation the authorities had to prove, as
mention above, intent or negligence on the
part of the violator. Based Jon those reali-
ties, Swedish authorities used a quite prag-
matic approach focusing on what was good
for the environment and tried to agree on
corrective measures. If a violator after dis-
cussions with the authorities did not take
any Corrective actions it was;easierto prove
purpose. It was normally enough for
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LlNDGREN
79
inspectors to point that out to industries
and they quickly agreed to take corrective
actions.
As noted above, Swedish legisla-
tion is now more stringent. Inspectors no
longer have discretion concerning whether
certain violations should be taken to court.
Now it is compulsory to inform the prosecu-
tors about violations against the rules and
conditions. The reason for this change was
that the old system was not transparent. It
was sometimes difficult for the public to
understand why an inspector made an
agreement with a polluter and did not take
a case to court. The present process give
better possibilities for the public to see the
reasoning behind a decision, since a court
must make its reasoning clear. The result,
so far, is not much of an environmental
improvement, as cases of environmental
violations pile up in the police and court sys-
tems. But maybe the public is pleased and
has better confidence in the system now.
The number of cases where peo-
ple have been fined or taken to jail because
of violation of environmental legislation in
Sweden are relatively few. A possibility
more often used has been to inform a com-
pany it will be fined if corrective actions are
not taken within a certain time period. That
type of threat has proved to be quite effec-
tive when a dialogue ends without an
agreement acceptable to the authority. One
reason for the effectiveness of such action
is that such actions by authorities create
publicity in newspapers.
'. A threat to shut down the produc-
tion for a polluter is difficult to use in
Sweden. The public and political accep-
tance for using that instrument is very low.
Full employment is one of the primary
objectives for the major political parties. If
the authorities.used the option to shut down
operations too often, leaving people unem-
ployed, the environmental authorities would
have lost public and political support. The
instrument has been used as an enforce-
ment tool sometimes when serious pollution
problems were caused by operation of a
specific facility. This option is normally only
used when toxic pollutants affect many peo-
ple or very valuable nature areas or where
bio-diversity is threatened. The closure of a
dioxin emitting waste incinerator, close to a
city, might be a typical example.
In the new Code, the Swedish EPA
also has the power to issue general instruc-
tions to improve implementation and
enforcement, instructions that are legally
binding for the industries or sectors con-
cerned. The ability to issue instructions has
not been used that much yet, but several
initiatives are under way to help meet dif-
ferent requirements in EU directives.
8 NEW CHALLENGES
Political priorities and legislation
change over time and an organization must
adapt to changing responsibilities. Sweden
is currently facing new challenges and
changing responsibilities and must adopt a
series of improvements if it is to continue to
fulfill its environmental protection and
enforcement obligations.
The normal way to respond to new
challenges and changing responsibilities
has been to change the organizational struc-
ture. In the Swedish EPA changes of varying
degree have been made every year.
Although the Swedish EPA had no special
entity for enforcement when the agency was
formed in the 1960s, over time the attention
to enforcement increased and an enforce-
ment division was formed in the early 70s. In
the late 80s an enforcement department
was formed due to increased political atten-
tion to those issues. When the present envi-
ronmental law was introduced enforcement
was decentralized to regional and local
authorities. The enforcement unit in the
Swedish EPA is back on division level.
The challenges to enforcement
institutions and personnel caused by
decentralization in particular, and change
in general, requires specific responses.
First, it is very important to point out that
changing priorities have nothing to do with
people as such but result from a changing
world. Indeed, providing information to per-
sonnel on the rationale for. change is a nec-
essary prerequisite. It is also important that
people, who are asked to change their
focus, are listened to. Giving individuals an
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT i
opportunity to influence their own situation,
for instance by taking part in the planning of
the new activities, certainly helps. The
opportunity to get training to manage to
meet the new challenges is also helpful.
9 CONCLUSION
Swedish enforcement efforts have
grown and changed over the years to
address a changing economic and environ-
mental world. As these efforts continue to
adapt, those leading and manning the
inspection teams must remember and
apply all the experiences gained and
lessons learned over ,that period.
Inspectorates and their employees will be
well positioned to play a criiica! role in this
area if they increase theiri knowledge of
industries' pollution reductibn as well as
control capabilities and strengthen their
abilities to communicate both with the reg-,
ulateid and the regulators.[These efforts,
combined with adoption of measures to
ensure the integrity of inspectors and com-
munication among all stakeholders, will,
perhaps even harmoniously; allow environ-
mental protection, regulation and perfor-
mance goals to be achieved.
i
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81
ENFORCEMENT OF LEGISLATION ON ASBESTOS
LlEVENSE, JANTIEN
Jurist At The Inspectorate Of Housing, Spatial Planning And The Environment Of The
North West Region, Kennemerplein 6-8, Post office box 1006, 2001 BA Haarlem
SUMMARY
As a result of the large-scale, inexpert removal of asbestos on board the MS
Otapan, a chemical tanker sailing under the Mexican flag, asbestos contamination occurred
to such an extent that emergency measures had to be taken in order to prevent the spread
of asbestos. At the time of the asbestos removal activities, the ship was berthed in the har-
bour in Amsterdam-Noord. The situation looked very risky, and the appropriate authorities,
in this case the Inspectorate of Housing, Spatial Planning and the Environment, (Inspectie
Milieuhygiene) had to intervene as quickly as possible. The enforcement action turned out
to be of considerable proportions, many matters having to be taken into account.
1 INTRODUCTION
ASBESTOS REMOVAL ON BOARD
THE MS OTAPAN
On Thursday June 21, 2001, the
Inspectorate was notified by a member of
the staff of the Health and Safety
Inspectorate (Arbeidsinspectie) of the activ-
ities that had taken place on board the ship,
MS Otapan. Those activities involved the
improper removal of asbestos by the ship's
crew: the crew were apparently not pack-
aging and storing the removed asbestos,
and materials containing asbestos, correct-
ly.
The Inspectorate requested that
the research agency, Search, take a num-
ber of samples of the material that was
lying in rubbish bags on the deck of the
ship. Results of the analysis of these sam-
ples showed that most of the material on
board the ship contained a high percentage
(80%) of amosite (brown asbestos). The
material involved was non-bonded
asbestos, which means that the fibres
spread easily. Asbestos fibres can be
inhaled and become lodged in the alveoli in
the lungs. Antibodies bring about the
encapsulation of the fibres, thus forming
asbestos bodies (ferruginous bodies).
These asbestos bodies often remain pre-
sent throughout the life of the individual
concerned and can cause disorders,
including lung cancer.
These analytical results were rea-
son for the Inspectorate staff to speak to
the captain of the MS Otapan. With the aid
of a Spanish interpreter, the captain was
given the opportunity to further explain the
activities involving asbestos that had been
carried out on board the ship. During the
discussion, the captain of the ship indicat-
ed that, at his request, the crew had
removed large amounts of asbestos, and
materials containing asbestos, from the
pump and tank rooms. He was able to give
very accurate descriptions of how the activ-
ities had been carried out in the pump
rooms, for example, and indicated that
large pieces of asbestos had been
removed. The asbestos, and materials con-
taining asbestos, which had been removed
had then been collected on deck. The cap-
tain of the ship clarified this information
with a drawing of the deck and the removed
asbestos, and materials containing
asbestos, which were lying stored there.
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT j
2 FUTHER INVESTIGATION
As a result of this discussion, the
above mentioned research agency, Search,
again carried out investigations on board
the ship, at the request of the Inspectorate,
on Thursday June 28, 2001. This took place
with the permission of the captain. The
objective of this further investigation was to
determine the total extent of the contamina-
tion of the ship. On the basis of this investi-
gation, Search came to the conclusion that
the deck was very severely contaminated
with non-bonded brown asbestos. The
rooms in the ship in which the activities
were carried out were severely contaminat-
ed because the work had been carried out
very inexpertly and without due care. The
rooms in which the asbestos removal activ-
ities had taken place were freely accessible.
The result was that the asbestos had also
been spread to parts of the ship where no
asbestos removal activities had taken place.
These conditions resulted in a very
risky situation for the crew. The
Inspectorate took these circumstances into
consideration when making the decision to
apply administrative coercion urgently.
Some of the removed asbestos, and mate-
rials containing asbestos, were packaged
in approximately 3,000 rubbish bags that
were stored on the deck. Some of the rub-
bish bags were not, however, adequately
closed. Another problem was that, in addi-
tion to the removed asbestos, many of the
rubbish bags contained sharp pieces of
metal that could easily tear open the bags.
In addition, some of the removed asbestos
had not been placed in rubbish bags and,
because of this, the deck was severely con-
taminated with non-bonded brown
asbestos that had not been packaged.
Ultimately, approximately 30,000 kilograms
asbestos, and materials containing
asbestos appeared to be involved.
3 URGENT NATURE OF THE
SITUATION
The results of the investigation car-
ried out by Search clearly showed the risks
associated with conditions aboard the ship.
In addition to the health risl^s for the crew,
therei was also the danger of the spread of
the asbestos by the crew if they should
walk over the deck, thereby further spread-
ing the asbestos lying open on the deck,
not only on the ship itself, but also in the
vicinity. There was also the (danger of con-
tamination of the vicinity if the crew should
leave the ship without adequately cleaning
the asbestos from themselyes, their cloth-
ing and shoes.
The fact that the I contamination
problem involved non-bonded asbestos,
whiclh was poorly packaged;if at all, meant
that there was also a risk that the asbestos
could be spread throughout t|he vicinity by a
strong wind. In order to minimize the dan-
ger of spread, which was also partly
caused by the crew, and because large
parts; of the ship were closed off, it was
decided that the captain and the crew be
asked to leave the ship.
4 LEGAL FRAMEWORK i
: !
The situation described above
resulted in the offences uhder both the
Asbestverwijderingsbesluit (Asbestos
Removal Decree) and the Wet
milieugevaarlijke stofferi (Chemical
Substances Act). Among other points, the
decree contains regulations [for the manner
in which objects containing asbestos must
be piartially or fully dismantled, with a view
to the careful removal of this' asbestos. The
regulations are such that Jio unchecked
emission of asbestos fibres ban take place
and no appreciable environmental contam-
ination or health risks can ;be caused by
asbestos fibers.
Because the ship's > crew disman-
tled parts of the ship, at the; request of the
captain, while the captain was aware of the
fact that large amounts of asbestos were
present here, the Asbestos Removal
Decree has been violated. T^e fact that the;
captain was aware that he! had asbestos
removed from the ship by the ship's crew
was apparent from what he fold the staff of
the Inspectorate for the Environment during
the discussion they held witrj him. The cap-
tain of the ship should have assigned the
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LlEVENSE
83
task of dismantling parts of the ship that
contained asbestos to an expert company
within the meaning of the Asbestos
Removal Decree.
• The ship's crew removed asbestos,
and materials containing asbestos, from
the ship. They cannot be regarded as
experts within the meaning of the Asbestos
Removal Decree. When removing the
asbestos, and materials containing
asbestos, they did not use the best avail-
able methods in order to prevent contami-
nation of the environment. The crew did not
package and store the removed asbestos,
and materials containing asbestos, which
must be deemed waste, with due care, as
prescribed in the Asbestos Removal
Decree. The captain of the ship can be held
liable for the violation of the Asbestos
Removal Decree as he ordered the
asbestos removal activities.
These activities also violated the
Environmental Management Act Liability
Provision. By removing asbestos from the
ship without due care (or having it removed
without due care) and by storing the
removed asbestos, and materials contain-
ing asbestos, without due care (or having it
stored without due care) on the deck of the
ship, the captain acted in a manner that
had highly detrimental effects on the envi-
ronment. Because the captain of the ship
knew, or could reasonably have suspected,
that actions involving asbestos, and materi-
als containing asbestos, have detrimental
consequences for the environment, and will
continue to do so. The captain of the ship
should have refrained from acting in this
Way but he did not. In addition, the captain
subsequently failed to take measures to
prevent or limit the highly detrimental con-
sequences for the environment resulting
from the asbestos removal activities which
were carried out without due care.
Neither have these measures sub-
sequently been carried out by the owner of
the ship, the firm Navimin. As owner of the
ship they, too, had a responsibility for the sit-
uation on board the ship. No measures were
taken by the owner to remove or limit the
consequences of the contamination caused
by the asbestos removal activities carried
out by the crew. Both the captain and the
owner of the ship pan thereby be held liable
as offenders pursuant to Section 1.1 a of the
Environmental Management Act.
5 NOTIFICATION OF APPLICATION OF
ADMINISTRATIVE COERCION
On Thursday June 28, 2001, due to
the reasons stated above, the captain of
the ship as offender, and also as designat-
ed representative of the owner as offender,
and the parties entitled to use the ship, were
all notified of the application of emergency
administrative coercion. This notification
was carried out pursuant to Section 5:24
paragraph 6 of the Algemene wet bestu-
ursrecht (General Administrative Law Act).
Summarized briefly, the latter meant
that the consequences of the offenses had
to be removed, or at least limited as far as
possible. The crew had to leave the ship. All
the non-packaged removed asbestos, and
materials containing asbestos, which were
lying on the deck had to be removed by a
certified company. The removed asbestos,
and materials containing asbestos, pack-
aged in rubbish bags had to be removed by
a certified company and, lastly, all the rooms
below deck which were contaminated as a
result of the inexpert removal activities car-
ried out had to be closed off by a certified
company. The offenders were given until
10.00 on July 6, 2001, to commission a cer-
tified asbestos removal company to imple-
ment these measures.
6 IMPLEMENTATION OF THE ORDER
The Inspectorate provided the cap-
tain with a list of recognized asbestos
removal companies in the Netherlands and
on Saturday June 30 and Sunday July 1,
2001, Navimin's agent, Vopak, arranged for
the drawing up of an offer for the decon-
tamination activities on the deck by a num-
ber of asbestos removal companies/The
asbestos removal company, Van Eck B.V.,
was one of the companies that submitted
an offer. Van Eck's offer was the most
favourable. Navimin sent Van Eck a fax
requesting that it accept the assignment.
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Van Eck, however, required a financial
guarantee and pointed this out to Navimin
several times. Vopak and the Inspectorate
also brought Van Eck's request for a finan-
cial guarantee to the attention of Navimin.
Without this financial guarantee, Van Eck
was unable to carry out the decontamina-
tion activities requested by Navimin.
The offenders did not commission
a recognized asbestos removal company to
carry out the abovementioned measures
within the term set, so the Inspectorate
thereby applied administrative coercion
pursuant to Section 64 of the Chemical
Substances Act and Section 18.7 of the
Environmental Management Act. This
meant that the Inspectorate implemented
the order itself, for the account of the
offender. The offenders were notified that
they would have to take into account the
fact that the costs incurred by the
Inspectorate in limiting or nullifying the con-
sequences of the offense would be recov-
ered from them. If necessary, a writ of
execution can be issued in order to recover
the costs in question.
7THE ACTIVITIES CARRIED OUT
At the request of the Inspectorate
for the Environment, the asbestos removal
company, Van Eck, and the asbestos
research agency, Search, carried out the
decontamination activities on the deck of
the MS Otapan jointly. The decontamination
of the deck of the ship, MS Otapan was
completed on August 31, 2001.
The decontamination consisted of
the removal of all the asbestos, and materi-
als containing asbestos, lying stored on the
deck in bags, whether closed or otherwise.
The asbestos, and materials containing
asbestos, lying open on the deck were also
removed. A number of objects such as rope
and pipes were also found on the deck. As
a result of the storage of asbestos, and
materials containing asbestos, without due
care on the deck, these objects were also
contaminated with asbestos. These objects
were not removed. The decision was made
to have the objects packaged in such a
manner that the asbestos contamination
concerned could not spread! further.
The decision to apply administra-
tive coercion ceased uponi completion of
the decontamination of the cjleck on August
31,2001. The administrative; order does not
cover the decontamination cjf the interior of
the ship, only the removal of: the acute con-
sequences for the surrounding area caused
by the offense. This was realized when the
decontamination of the deck of the MS
Otapan was completed. The interior of the
ship is thereby still severely! contaminated.
It is not yet known what steps the owner of
the sihip wishes to take with regard to the
decontamination of the interior of the ship.
I Because the administrative order
enforced by the Ministry of Housing, Spatial
Planning and the Environment has ceased
to apply, the ship is again {fully under the
responsibility of the owner of the ship. The
latter has been notified of this fact by fax,
telephone and registered letter (translated
into Spanish). The owner c£n freely make
use of the ship provided Dutch legislation is
respected and that repeated spread of the
asbestos is prevented. Spread can occur
as soon as people enter the interior of the
ship i without taking the necessary mea-
sures* pursuant to environmental, or health
and safety, legislation. i
8 SAFETY AND SECURITY OF
THE SHIP ;
As had already been explained to
the captain and the owner Of the ship, the
ship was not left unguarded: after the crew
left. The security of the ship had to be guar-
anteed for a number of reasons. In the first
instance, it was in the interests of the
Inspectorate that the ship should be treated
with as much care as possible in order to
avoid any claims for damages from the
owner of the ship. It is, in principle, also
undesirable to have a ship without a crew
(a so-called 'dead ship') berthed in a har-
bor, lif problems arise on the ship, they may
be difficult to solve and the Ship could form
a threat to the safety of the harbor.
The municipal port authority
checked the ship a number of times a day
and measures were taken In consultation'..
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LlEVENSE
85
with the municipal port authority to ensure
the safety of the ship. Checks were also
carried ,out by staff of the Korps Landelijke
Politlediensten (National Police Agency)
and by staff of the harbour services where
the ship is berthed. At the time of the
decontamination activities, a security firm
also guarded the ship during the night and
on the weekend. As soon as the crew had
left the ship, it was closed off with fences
and signs were placed indicating the dan-
ger of asbestos.
At the time of the decontamination
activities, the ship was technically checked
once a week by the captain of the MS
Otapan. Under supervision of the asbestos
research agency, and with personal protec-
tive equipment, the captain was given the
opportunity to check the state of the ship.
9 NOTIFICATION OF THE PARTIES
INVOLVED
Both the captain of the MS Otapan
and the owner/shipping company of the MS
Otapan were deemed offenders by the
Inspectorate. The captain was notified of
the administrative order with the aid of an
interpreter. The shipping agent, Vopak, was
asked to notify the owner of the ship, the
firm Navimin, of the situation as quickly as
possible. Vopak did this on Friday June 29.
On July 2, 2001 a written confirmation (in
English) of the administrative order, was
sent by fax, by the Inspectorate to Navimin;
a Navimin employee was also contacted by
telephone.
Unfortunately, it took some time
before the official order was ready. This
was, however, a result of the urgent admin-
istrative order which had to be applied in
order to limit the harmful consequences of
the offense. An order was, therefore, not
immediately available. On July 3, the official
order (Dutch version) was sent by fax to
Navimin in Mexico. The official order was
delivered to the captain via his lawyer. The
Dutch embassy in Mexico delivered the offi-
cial order to the Mexican shipping authority,
de Coordinacion General de Puertos y
Marina Mercantil. Representatives of the
Camara Mexicana de la Industria del
Transporte and of various trade unions were
also present at this delivery.
All the parties concerned also later
received a copy of the official order which
had been translated into Spanish. Because
it can be difficult for an interested party who
is not resident in the Netherlands to follow
the procedure, the Dutch Embassy was
asked to explain the possibilities for objec-
tion and appeal to Navimin and this was
carried out.
10 FAMILIARITY OF THE MEXICAN
CREW WITH DUTCH LEGISLATION
The Dutch asbestos legislation is
laid down in the Asbestos Removal Decree
which is based on the Chemical
Substances Act. The objective of this act
and the legislation based on it is to protect
man and the environment against the
effects pf dangerous substances and
preparations. The Asbestos Removal
Decree is based on European regulations,
that is Council Directive 87/217/EEC of
March 19, 1987, and provides for the
removal of asbestos from various objects
with clue care, such as ships.
The Dutch embassy in Mexico,
informed the staff of the Inspectorate of the
Mexican asbestos legislation. There is no
general ban on the use of asbestos in
Mexico, although various standards have
been set which must be complied with if
work is carried out with asbestos. The cap-
tain and his crew should, therefore, have
known that asbestos is a substance that is
dangerous and that the necessary precau-
tionary measures should be taken if activi-
ties involving asbestos are carried out.
The captain of the MS Otapan was
also not completely unfamiliar with Dutch
legislation concerning asbestos. In the first
instance, the captain asked employees of
the harbor services where the ship was
berthed to remove the asbestos from the
interior of the ship. The harbor services
employees indicated that in the case of
asbestos removal, activities had to be car-
ried out pursuant to Dutch legislation and
made an offer on this basis. The captain
was, therefore, aware of the requirements
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86
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE A'ND ENFORCEMENT.
of due care which exist in the Netherlands
concerning the removal and otherwise
uses of asbestos.
In the case of a total lack of famil-
iarity with the legislation of the country con-
cerned, one can approach the agent, which
in this case is Vopak. On the other hand, it
is not unreasonable to expect that the
agent would bring the Dutch asbestos
removal legislation to the attention of those
they represent.
11 TREATMENT OF THE CREW
In order to minimize the risk of
spread which was partly caused by the
crew and because large parts of the ship
were closed off, the decision was made to
ask the captain and the crew to leave the
ship. The captain and the crew complied
with this request and left the ship as quick-
ly as possible. The captain and his crew
were subsequently cleaned of all asbestos
fibres by means of a shower and were
issued with clean clothing. The Dutch
agent, Vopak, arranged a hotel, and trans-
port to the hotel, to which the crew could go
immediately after they had been cleaned of
asbestos. An interpreter was in attendance
when the crew and captain were asked to
leave the ship. Everything was explained
clearly and the captain and crew were
given ample opportunity to ask questions.
Because the interior of the ship
was also contaminated, everything originat-
ing from the interior of the ship could also
be deemed contaminated with asbestos.
The captain and crew could not simply take
these items away. The staff of the
Inspectorate therefore advised the captain
to put the passports and any valuables in
the ship in a safe and to close this proper-
ly. The captain and crew were, incidentally,
able to take their credit cards with them,
because these could easily be rinsed off
under the shower.
The staff of the Inspectorate pro-
vided the shipping agent, Vopak, with the
address of a company that is specialized in
cleaning clothing and other smaller items
that are contaminated with asbestos. With
the permission of the Inspectorate, employ-
ees from this company enjtered the ship,
with personal protective equipment, and
cleaned and removed the passports from:
the ship. j
•I
12 ROLE OF THE PUBLIC |
PROSECUTOR i
[ I i
I
The Amsterdam public prosecu-
tor's office started a criminal investigation
into the events that took p\kce on the MS
Otapan. By order of the Amsterdam public
prosecutor's office, the captain of the MS
Otapan has remained in the Netherlands
for a long period. The captain was arrested
by employees of the National Police
Agency on the instructions of the
Amsterdam public prosecutor shortly after
notifijcation of the administrative coercion.,
The passports were also confiscated by
order of the public prosecutor.
13 STATE OF AFFAIRS |
I " .... . j
: i'
' The cleaning of the deck of the ship
was 'completed on Friday August 31. The
acute danger for the vicinity was addressed
and the administrative order ceased to
apply. The owner of the 'ship, the firm
Navimin in Mexico, and the! captain of the
ship were informed of the completion of the
cleaning activities. They were informed of
the fact that they may make'use of the ship
provided that they do noj again cause
spread of the asbestos. j
The fact that thei deck of MS
Otapan is now free from asbestos does not,
unfortunately, mean that the: problem of the
asbestos contamination is oyer.The interior
of the ship from which the asbestos has
been removed is still severely contaminat-
ed with asbestos thereby forming a poten-
tial danger for the surrouniding area. On
these grounds, the interior of the ship must
also ;be decontaminated.
The further decontamination of the
ship by the owner is not [deemed likely;
because of the high costs 6f such decon-
tamination activities. The possibilities for:
realizing the total decontamination of the
ship are now being examined in coopera-
tion with various authorities', including the!
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LlEVENSE
87
Amsterdam municipality, the municipal port
authority and the Scheepvaart Inspectie
(Shipping Inspectorate) of the Ministry of
Transport, Public Works and Water
Management. It seems almost certain that
the MS Otapan will become a considerable
cost item for the central or municipal
authorities.
The costs incurred by the
Inspectorate in cleaning the asbestos from
the deck in the framework of the adminis-
trative order are to be recovered from the
owner (deemed offender) of the ship. The
Inspectorate currently has a claim of NLG
1,200,000. - (Euro 544,536.25) against
Navimin (the owner of the ship). However, it
seems highly unlikely that the Inspectorate
will actually receive this amount from
Navimin. Normally speaking, in the case of
an outstanding claim, it is possible to seize
goods belonging to the debtor. This seizure
takes place via legal proceedings. For the
moment, however, it does not seem sensi-
ble to seize the MS Otapan because the
ship has a negative value due to the
asbestos contamination that is still present
in the interior of the ship.
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE A^ID ENFORCEMENT
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VAN GROOTVELD, VAN DER MOST 89
INFORMATION TO FACILITATE ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT
VAN GROOTVELD, GEERT,1 AND VAN DER MOST, PIETER,2
1 Manager of the Department for the Development of Strategy
2 Expert on monitoring-systems
Department for the Development of Strategy
The Inspectorate of Housing, Spatial Planning and the Environment, PO Box 16191, IPC
530, 2500 BD Den Haag, The Netherlands, e-mail: geert.vangrootveld@minvrom.nl;
e-mail; pieter.vandermost@minvrom.nl
SUMMARY
In the vision-document of the Inspectorate of the Ministry of Housing, Spatial
Planning and the Environment it is stated that sustainable development is of major impor-
tance. Because there is a scarcity in manpower and finance it is important to set priorities.
The main tasks of the Inspectorate are in the field of compliance and enforcement. With
these tasks the Inspectorate wants to contribute to sustainable development, with special
attention to safety and public health. In this paper a monitoring-system is described by
which it is possible to identify those fields of priority on safety and public health in which
activities on compliance and enforcement should take place.
1 INTRODUCTION
In the Netherlands a monitoring-
system has been developed that consists of
three parts. The first one is the monitoring of
measures that have been undertaken by
municipalities, provinces, water board-
authorities and central government with
respect to the protection of the environment.
The second one is the monitoring
of the environmental pressure. Especially
the monitoring of emissions of substances
to the environment.
The third one is the monitoring of
the environmental quality.
The three parts of the monitoring-
system are connected to another. In figure
1 this connection is illustrated.
Figure 1: Environmental policy circle. The circle fells us that the environmental
policy will result in measures to be undertaken by authorities. That
should result in a decrease of emissions to the environment. And that
, should result in a better environmental quality.
Environmental policy
Environmental
measures by local
and central authorities
Environmental
pressure, especially
emissions
Environmental
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
In the following paragraphs the three moni-
toring-systems are introduced shortly.
2.THE THREE MONITORING-SYSTEMS
In the presentation of the three
monitoring-systems we start with present-
ing the monitoring of the environmental
quality. Because it is this quality we want to
improve. This monitoring-system gives
input to policy-development which results in
measures to be undertaken by local and/or
central government. The second monitor-
ing-system is therefore the monitoring of
environmental measures by local and cen-
tral authorities. These measures should
result in a decrease of the environmental
pressure. So, the third monitoring-system is
the monitoring of environmental pressure,
especially emissions. The reduction of the
environmental pressure should result in a
better quality, which is monitored by the
monitoring of the environmental quality.
So, the chain of figure 1 starts with
the monitoring of the environmental quality,
and the above steps are repeated until
desired result is achieved.
2.1 Monitoring of environmental
quality.
The quality of the environment is
measured periodically by the Research
Institute for Public health and the
Environment. Each year the data are pre-
sented in a so-called Environmental
Assessment Report.
On the basis of these data it can be
concluded in what area the environmental
quality is most poor and so it can be distin-
guished where measures should be taken
primarily. For instance, with respect to acid-
ification the South-East part and also the
Western part of the Netherlands are most
effected. So from a point of view of environ-
mental quality those parts should get the
highest priority in policy development and
in compliance and enforcement.
2.2 The monitoring of environmental
measures by local and
central authorities.
In the Netherlands municipalities
as well as provinces and authorities which
are responsible for the quality of surface
water play together with the Central govern-
ment an important role in the implementa-
tion of environmental legislation and
environmental policy. |
A monitoring-system has been
developed to get information about this
implementation. In total aboijit 40 indicators
are being used to collect information about
this implementation. |
Some examples of indicators are:
- Exceeding the concentrations of NOx,
CO,, benzene by traffic in rural areas.
Municipalities should provide this informa-
tion. Especially information about mea-
sures to reduce these emissions. This can
be done by measures in spatial planning.
It can be prohibited that heavy traffic (f.i.
trucks) take place in the city.
•Transport of dangerous substances in
rural areas. Municipalities should provide
information on this topic. Especially infor-
mation about measures With respect to
prevention is required.
- Information about licensing of industrial
facilities. Municipalities and provinces
should deliver information Jon this indica-
tor. Especially information about actuality
of the licence, and whether all the indus-
trial installations are licensed.
- Information about the compliance of
industrial activities. Municipalities and
provinces should give information about
this indicator. How many times a year a
facility has been visited? [What kind of
actions have been taken' place on the
basis of these visits? i
This monitoring-system has been
introduced shortly and very interesting
results have been achieved already. It
seemed for instance that fraffic in rural
areas; is a very important itein. Some con-
centration levels of substances are being
exceeded and also noise from traffic gives
burden to citizens. •
Also in the field of environmental
safety lots of activities are to be done, by as
well municipalities as well by [provinces.
| So, it can be concluded that this
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VAN GROOTVELD, VAN DER MOST
91
system gives information about topics
where activities on enforcement and com-
pliance should take place. Enforcement
and compliance can than lead to a higher
quality of the environment.
2.3 The monitoring of environmental
pressure, especially emissions
In the Netherlands for more than
25 years a system exists for the monitoring
of the environmental pressure, especially
emissions.
In our system the environmental
problems are of central importance. Those
problems can differ from country to country.
In the Netherlands for instance ammonia
from agriculture is important, because of
the contribution to the problem of acidifica-
tion. And on the other hand also the
Netherlands contribute to the emissions of
green house gasses resulting in global
warming.
Three dimensions are fundamental
in this monitoring system. Firstly, we want
to collect information about the emissions
of substances. Secondly, we want to know
what kind of activity caused the emissions.
And thirdly, we want to know the geograph-
ic location where the activity took place.
In the box below an illustration of acidifica-
tion is given.
So, it can be concluded that with
this monitoring system the national and
local environmental policy can be evaluat-
ed. This evaluation can lead to the conclu-
sion that targets will be reached (as is the
case for sulphuroxides), or that extra envi-
ronmental measures should be taken for
reaching the targets (as is the case for
ammonia). It is also possible that the evalu-
ation leads to the conclusion that a decrease
in emissions should have been reached, but
that in stead of this an increase took place.
This is for instance the case for CO2. For
these problems new ways of policy-devel-
opment should be designed1. Because this
monitoring-system also contains emission-
data of individual industries, it is possible to
collect information on the development of
these emissions over time. So, you can see
whether improvements occur. It is also possi-
ble to evaluate whether targets which are part
of the permit are reached or will be reached.
Furthermore, it is possible to get information
about the compliance of the permits. Because
the emission-levels which are part of the per-
mit can be compared with the emissions from
the emission-inventory-system.
3 CONCLUSIONS
In the vision-document of the
Inspectorate of Housing, Spatial Planning
and the Environment it is stated that sus-
tainable development is of major impor-
Substances like ammonia, sulphuroxides, nitrogenoxides, cause acidification.
In the Netherlands an inventory has been made of all the activities from which these substances
were emitted. These are point sources like electricity plants and incineration facilities. And also
diffuse sources like traffic and agriculture.
The locations where the activities took place are put in a geographic information system.
It is important to know that each year such an inventory is being done.
With this total package of data it is possible to see on a local level what the pressure of acidic
substances are and also you can see developments in this pressure.
In the Netherlands there are pressure targets which are formulated on a national level and which
are also formulated on local levels. With this information system it is possible to evaluate whether
these targets are being reached. For instance, for sulpuroxides the targets for the year 2000 are
reached and those for ammonia and nitrogenoxides and organic compounds are still far away
from target.
All these data on emissions are stored is a so-called datawarehouse. This datawarehouse is con-
nected to the Internet. By this way the public has access to environmental information and the
public can react and by this way participate in the process of developing environmental policy.
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
tance. Especially attention should be paid
to public health and to safety. By means of
monitoring it is possible to prioritise those
fields where activities with respect to envi-
ronmental compliance and enforcement
should take place.
By this way it is possible to improve
the quality of the environment and to give a
major contribution in reaching sustainability.
Important fields are:
- from traffic in urban areas (dust, CO, ben-
zene),
-transport of dangerous substances in
urban areas,
- emissions of green house gasses,
- of ammonia from agriculture
1 In the Netherlands so-called transition-
management has been developed to deal
with the emissions of greenhouse gasses.
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OOSTENBRUGGEN
MAINTENANCE OF THE AIR QUALITY IN RESIDENCES
ABOVE DRY-CLEANING FACILITIES
OOSTENBRUGGEN, ROB VAN
Deputy inspector for the Netherlands Inspectorate of Housing, Spatial Planning and the
Environment, Eastern Region, P.O. box 60083, 6800 JB Arnhem, The Netherlands,
rob.vanoostenbruggen@minvrom.nl
SUMMARY
The Inspectorate of Housing, Spatial Planning and the Environment (Inspectie
Milieuhygiene) has complete its initial investigation of the health situation in residences locat-
ed in the vicinity of 46 dry-cleaning facilities in the Netherlands. Because Dutch legislation
:only prescribes 'gas-tight walls and ceilings', and because enforcement in this area has been
limited, most municipalities felt that they could not guarantee that the quality of air in these
residences was safe. Based on the assumption that high tetrachlorethylene values could
only be the result of leaking walls and ceilings, the Inspectorate set out to measure the con-
centration of tetrachlorethylene in 46 residences adjoining dry-cleaning facilities. The result
was that the measured air quality in ± 70% of the houses exceeded the maximum admissi-
ble concentration level for tetrachlorethylene (250 ua/m3). Values in some residences were
as high as 19,000 ug/m3. An action zone table, based upon possible health risks and the rec-
ommended action, has been drawn up by the authorities. The prospects for further success
stemming from this investigation are considered to be very good.
1 INTRODUCTION
The investigation of dry-cleaning
facilities carried out by the Inspectorate of
Housing, Spatial Planning and the
Environment in 2000 in the Netherlands was
designed to assess the quality of air inside
residences adjoining dry-cleaning facilities,
, the associated risks for the health of the gen-
eral public and the measures that needed to
be taken to control these risks. The plan for
conducting the investigation was developed
after the Minister to the DCMR Environmental
Protection Agency Rijnmond (DCMR
Milieudienst Rijnmond), during a working visit
at the end of 1999, was confronted with the
interim results of an investigation of dry-clean-
ing facilities in Rotterdam. This initial investiga-
tion showed that many people living above
dry-cleaning facilities in Rotterdam were being
exposed to unhealthy levels of tetrachlorethy-
lene (also known as perchloroethylene or
PERC) fumes. The minister found this to be
such an important topic that he wanted to
know whether the situation was equally bad in
the rest of the Netherlands. A broad-scale
investigation was quickly incorporated into the
Inspectorate's schedule for 2000.
2 INVESTIGATION IMPLEMENTED
AS'QUICK SCAN' v
The investigation was carried out
by a multidisciplinary team of about ten
staff members of the Inspectorate support-
ed by the National Institute of Public Health
and the Environment, RIVM (Rijksinstituut
voor Volksgezondheid en Milieu). The
investigation was carried out in accordance
with written working instructions and a vis-
iting plan. The 'quick scan of dry-cleaning
facilities' was carried out in close coopera-
tion with the Medical Environmental
Experts affiliated with the Municipal Health
Authorities (Gemeentelijke gezondheidsdi-
ensten) throughout the Netherlands.
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3 ENVIRONMENTAL AND HEALTH
SITUATION WITH REGARD TO
DRY-CLEANING FACILITIES
The use of PERC currently plays a
central role at many dry-cleaning facilities,
or has done so in the past. PERC is a chlo-
rinated hydrocarbon with excellent degreas-
ing properties, and is non-combustible, two
properties that have made PERC the ideal
cleaning agent for textile products for a long
time. PERC does, however; also have dis-
advantageous properties, including detri-
mental effects on the kidneys, liver and
central nervous system of humans at con-
centrations in the air above the maximum
permissible risk level.
Because PERC is an industrial
product, there is hardly any present in the
air from natural origins. PERC concentra-
tions of less than 0.5 to 0.8 ug/m3 are com-
mon in residences in the Netherlands. In
dry-cleaning facilities, however, much high-
er concentrations, even as high as the max-
imum admissible concentration level (set a
level deigned to protect facility employees)
of 240 ug/m3, may be found.
4 REGULATIONS INVESTIGATED
It is not surprising that residences
located in the vicinity of dry-cleaning facilities
are exposed to higher PERC loads. In order
to protect these residences, the dry-cleaning
facility must, among other measures, ensure
that there is good ventilation and that, for
example, walls and ceilings are constructed
in such a way that they are gas-tight, pur-
suant to the statutory regulations laid down in
the Decree on Environmental Management,
Dry Cleaning (Besluit chemische wasserijen
milieubeheei). The legally prescribed (abso-
lute) gas-tightness is difficult to measure in
practice. For this reason, the investigation
was based on the assumption that if the
presence of PERC is ascertained, irrespec-
tive of the level, a violation of the regulation
has occurred. Measurements were, there-
fore, taken of the PERC level in the air inside
residences located above and adjoining dry-
cleaning facilities. By evaluating the results
measured practically, the investigation, the
subsequent recommendations and the
enforcement were made marjageable.
5 IMPLEMENTATION OF THE
INVESTIGATION I
1 i •• •
i Random checks were carried out at
57 dry-cleaning facilities throughout the
Netherlands. The companies were selected
on the basis of the Dutch (KPN) telephone
directory on CD-ROM. All the 'dry cleaners'
were selected from this guidej. Subsequently,
municipalities (the competent authorities)
were contacted by telephone and enquiries
were made as to whether the companies
concerned met the following criteria:
1. The company has an obligation to report
pursuant to the Decree on| Environmental
Management (Dry Cleaning), 1990.
I i
2. There is a residence, in which third par-
ties live, above or adjoining the dry
cleaner. <
3. The company had not been checked by
the municipality within the previous six
months. i
J In twelve cases residents indicated
that they were not prepared !to give permis-
sion for the taking of measurements in their
residences. Measurements were, however,
carried out in 46 residences^ located above
or adjoining dry cleaners. The measure-
ments were carried out by passive sampling
with 3M-3500 adsorption badges. These
are, in fact, very simple measuring devices,
which enabled the determination of the air
quality in the residences conjcerned.
Because the taking of measure-
ments for each residence was inexpensive
and required limited effort, a good result was
achieved fairly easily with aj limited budget
and effort. (Price: badge plu4 analysis: NLG
125.: (Euro 56, 72 each). A questionnaire
filled in by the people living in teach residence
was later used as the basis of the evaluation.
i i i
6 MEASURING RESULTS, i
EVALUATION AND URGENCY
; The concentrations measured
(weekly averages) varied from 10 ug/m3 to
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OOSTENBRUGGEN
95
19,000 ng/m3, the measured values being
equally spread throughout this whole range
of concentration. These results showed that
the environment within all of the sampled
residences is influenced by the dry-clean-
ing facility in the vicinity and that increased
concentrations of PERC could be found in
the air throughout the residences. The
measured values were categorized in
classes according to urgency on the basis
of RIVM recommendations. RIVM based
the underlying recommendations on the 'Air
Quality Guideline' (WHO, 1995) and the
maximum permissible risk level for PERC,
which was set at 250 jag/m3 in 1997.
Against this background, the values mea-
sured were categorized as follows:
I.The air quality in 14 (=30%) of the 46
residences measured was below the
standard deemed as a safe value for life-
long exposure for the whole population
(and therefore can be termed 'good').
This standard/safe value represents the
maximum permissible risk level that is
currently applicable in the Netherlands
and amounts to 250u.g/m3.
2. Of the other measurements, 14 (=30%)
were above 250u.g/m3, but below 1,500
Hg/m3. The effects from exposure of peo-
ple to levels up to the limiting value,
1,500 ng/m3 (= 6 x MPRL) for a period of
a few months to approximately a year,
can be deemed almost negligible,
according to the RIVM.
3. The other 18 measurements (= 40%)
were above the limiting value of 1,500
ug/m3, with maximum values as high as
19,000ug/m3. At these concentrations, it
is not possible to determine whether
effects may occur with long-term expo-
sure, and if so, at what point effects will
take place. It is, however, clear that the
risk of effects increases on exposure to
the highest concentrations in combina-
tion with a long-term history of exposure.
As criteria for the cases that need-
ed to be tackled most urgently, the Minister
of Housing, Spatial Planning and the
Environment made an administrative
choice for an extra, limiting value of 10,000
ug/m3 PERC, which is not based on health
grounds. In the first enforcement decision,
on March 26, 2001, the Council of State
sanctioned the decision by a municipality to
close down a dry-cleaning facility where the
municipality concerned had used the
above-mentioned approach.
7 NOTIFICATION OF MEASURING
RESULTS AND RECOMMENDATIONS
Because of the seriousness and
sensitivity of the problems, all the measur-
ing results were evaluated individually and
the municipalities and residents concerned
were notified accordingly. The Municipal
Health Authorities have continued to play
an important role, particularly with regard
to the interviews with the residents. The
Municipal Health Authorities and the
The table below shows the concentrations measured in relation to the possible effects:
Number of
Measurements
14
14
18
Highest value
46
%
30
30
40
measured:
100
Concentration
range
0-250 ug/m3
250-1 ,500 ug/m3
1 ,500 ug/m3
19,000 ug/m3
Effects
• no effects, even on lifelong exposure
• effects from exposure of several months to
approximate one year almost negligible
• effects are possible
• unacceptable for health and policy reasons
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96
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
In 70% of the cases, all 32 residences with a measured value above 250 ug/m3, it was rec-
ommended that the high concentrations be reduced by source minimization or source
shielding measures. The municipalities were asked in broad terms to ensure mat this point of',
the Decree on Environmental Management (Dry Cleaning) is complied with. lln order to give
an indication of the degree of urgency involved, that is, the periods within which the exces-
sive exposures had to be addressed by the dry-cleaning facilities, the rang^ of concentra- •
tlons ascertained were divided into several 'action zones', as shown in the table below:
Number of
measurements
14
14
13
5
46
%
30
30
29
11
100
Concentratioin range
0-250 ug/m3
250-1 500 |.ig/m3
1,500-1 0,000 ug/m3
> 1 0,000 |ag/m3
Period of action
(length of time)
No action
Month^
Weeks
Days
i
Inspectorate have taken the position that
exposure to concentrations above 250
ug/m3 is unacceptable from both the health
and the policy points of view. In cases
where these levels were exceeded, munici-
palities were advised to take measures
within the appropriate period of time, with
the objective of reducing or stopping the
exposure. The required corrective efforts
vary from measures targeting the dry-
cleaning technical process, to measures
concerning structural provisions at the
premises. Because, generally speaking,
both types of measures take several weeks
at least to implement, and excessive delay
was unacceptable in a number of serious
cases, the municipalities were asked to
stop, or temporarily stop, the activities of
some of the dry cleaners.
8 STATE OF AFFAIRS AND
SUBSEQUENT ACTION
The urgency of the most serious
cases as of July 2001 had been lessened in
one way or another. In a number of cases,
technical measures could be, and were,
implemented; in a number of cases the res-
idence concerned has lost its residential
function and in a number of cases the dry-
cleaning facility has stopped |its activities or
has switched to another process (which
does not require the use of P[ERC). Starting
in December 2000, a large-scale follow-up
investigation was initiated at! the request of
the Dutch Inspectorate for the
Environment, into all cases in the
Netherlands in which there lis a combina-
tion of residence (of third parties) arid
cleaning with PERC. i
, The first, interim results from this
investigation are now known. Details are
now available concerning anbther219 resi-
denobs, which are located irj the vicinity of
161 dry-cleaning facilities in!78 municipali-
ties. The general picture with regard to the
measuring results confirms the outcome of
the 'Quick scan of dry-cleaning facilities'
carried out in 2000: here too|, in more than
60% of the cases, there is exposure of
those; most affected to concentrations well
above the maximum permissible risk level
(250 ug/m3), and values go 'up as high as
30,000 ug/m3. !
; In the wake of this fallow-up inves-
tigation, the municipalities are now working
on the basis of the approach described
above on the problem situations discov-
ered. Subsequent actions ar$ being carried
out by the dry-cleaning facilities themselves
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OOSTENBRUGGEN
97
with the assistance of the trade associa-
tion, Dutch Association for Textile Cleaners,
NETEX (Nederlandse Vereniging voor
Textielreinigers). NETEX representatives
visit the dry-cleaning facilities targeted by
the investigation, providing technical rec-
ommendations as to how a responsible sit-
uation can be realized. It is assumed that
the concentrations of PERC in all resi-
dences will be reduced to below the MPRL
within a year of the results of the investiga-
tion becoming available.
The new Decree on Environmental
Management, Textile Cleaning (Besluit tex-
tielreiniging milieubeheet), came into force
on 1 April 2001 in the Netherlands. This
decree establishes the maximum permissi-
ble risk level of 250 u,g/m3 as the statutory
limiting value for emissions to go into force
immediately for various situations, includ-
ing residences adjoining dry-cleaning facili-
ties. By means of adopting more easily
enforceable legislation in combination with
the current national follow-up action,
unhealthy residential situations in the vicini-
ty of dry-cleaning facilities are soon expect-
ed to be a thing of the past.
9 CONCLUSIONS
Living above or next to a dry-clean-
ing facility is often not very good for one's
health. By interpreting applicable legislation
creatively, in combination with the use of
new measuring techniques, long-term
problematic situations discovered through-
out the country were addressed promptly.
Measuring techniques provided the insight,
and on the basis of a table of specific rec-
ommendations, all those involved in individ-
ual cases were adequately advised as to
what had to happen to comply. In this way,
and with local health authorities playing a
critical role, a significant health threat that
caused a great deal of agitation amongst
residents was addressed.
The enforceability of environmental
legislation can be, and has been, improved
by including mandatory targets, regarding
the quality of air inside the residences con-
cerned, in licences or national legislation.
The measuring values from the residences
were direct drivers for the measures to be
taken by dry-cleaning facilities and those
involved were able to rapidly work towards
a solution. Success also required the provi-
sion of good, organized, technical support
for dry-cleaning facilities which, in this case
is, was provided to a significant extent by a
trade organization.
LITERATURE
Oostenbruggen, R. van. Project 'Quick-
scan Chemische wasserijen in de
woonomgeving (Quick scan of dry-cleaning
facilities in the residential area)', October
2000, Ministry of VROM, distribution num-
ber 17050/185. (Only available in the Dutch
language.)
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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BAERT, FRANCOIS, BERNAERT 99
REDUCTION OF THE INDUSTRIAL EMISSIONS OF AIR POLLUTANTS
IN THE FLEMISH REGION (BELGIUM) BY LAW ENFORCEMENT.
BAERT, ROBERT1, FRANQOIS, FILIP2, BERNAERT, PAUL3
1 Dr. Sc., Inspector-general of the Environment Inspection Section
2 Inspector, Chief Inspectorate of the Environment Inspection Section
3 Head of Chief Inspectorate of the Environment Inspection Section
Ministry of the Flemish Community (Belgium), Graaf de Ferraris-building, Koning
Albert ll-laan 20 bus 8, B-1000 Brussels, Belgium
SUMMARY
The Flemish Region is the most northern of the three regions of Belgium. With its
5.9 million inhabitants, on a surface of 13512 kma, the Flemish Region is one of the most
populated regions of Europe. Public awareness for the potential risks of air pollution in gen-
eral and from industrial point sources in particular has spectacularly increased during the
last decade. This phenomenon was even strengthened by events involving feed and food
contamination by polychlorinated dioxins and furans in 1999.
The Environment Inspection Section is responsible for the enforcement of the envi-
ronmental health legislation in the Flemish Region. The Environment Inspection Section
chooses to enforce in both a preventive and a corrective way, aiming at coordinated action
:in the whole of the Region. In the past years, the Environment Inspection Section organized
several emission measurement campaigns, which were performed by certified external lab-
oratories. These campaigns were complementary to the obligatory "self-control" measure-
ments and aimed at investigating the emissions of air pollutants by industrial point sources.
The results of the emission measurements were compared with the legal stan-
dards or emission limit values and if needed, the Environment Inspection Section imposed
measures in order to obtain cleaner emissions. These measures could be brought under
administrative and/or criminal law and led to a thorough reduction of the emission of pollu-
tants of all kind and, in particular, of polychlorinated dioxins and furans.
Between 1993 and 2000 the major efforts were aimed at the municipal solid waste
; incinerators and since 1997 a similar approach has been applied to industrial process plants,
leading to additional reductions of polychlorinated dioxins and furans emissions. The follow-
ing reviews the Flemish experience with regulation of municipal solid waste incinerators.
1 INTRODUCTION
One of the main tasks of the
Flemish government is to maintain and
improve the quality of the environment.
Therefore, in recent years a legal frame-
work has been established to protect and
improve the environment. In the EU
(European Union), there is a great tenden-
cy to make environmental policy and laws
at the European (and national or regional)
level, while they have to be executed at the
regional and local level. In order to imple-
ment these rules and regulations, which
are mostly based on legislation, adequate
instruments are being used, such as:
1. permits, licenses, exemptions and gen-
eral rules
2. taxes
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100
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3. environmental impact assessment
4. safety reports
5. certifications
6. voluntary agreements
7. education and information of the public
However, if no action is taken to enforce
those rules and regulations, they will
remain "paper tigers" which will not be
effective in protecting the environment.
2 THE CONCEPT OF THE
"REGULATORY CHAIN"
Informed approaches to environ-
mental protection recognize that in order to
reach a certain goal through environmental
regulation, five steps have to be taken.
Those steps are known as the "regulatory
chain" or the "regulation cycle." The first
step is to ensure that rules and regulations
are based on an agreed upon environmen-
tal policy. The second step is to formulate
standards that have to be met. The third
step is to apply these standards in particu-
lar cases through licensing. These first
three steps require only changes on paper.
The fourth step is implementation: it
requires either a change in behavior or
investment in technology. The fifth step is
enforcement: the set of actions necessary
to make the regulated community comply
with the rules.
Step four dictates that, to get
results, certain measures must be taken
both by companies and by the government.
For example, companies may be obliged to
install air filters or afterburners. However, if
one of the conditions of a license is that
waste must be disposed of in an environ-
mentally friendly way, the government will
have to facilitate this option. With respect to
enforcement, step five requires that rules
be enforced to ensure that the required
measures will actually be effective.
Because people and companies tend to
take the easiest and cheapest way out,
having greater concern for themselves and
their financial interest than they have for the
environment, the last step in the chain is a
critical link.
3 PRINCIPLES OF ENFORCEMENT
3.1 Introduction >
As people do not automatically
comply with all the rules and regulations all
the time without a certain arjnount of coa
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BAERT, FRANCOIS, BERNAERT 101
3.3 Elements Of Enforcement 3.5 Deterrence
Enforcement thus usually includes
inspections, negotiations, and legal action.
Inspections need to be conducted as nec-
essary to determine the compliance situa-
tion in the community and to detect people
or companies that violate the rules.
Negotiations may be useful if people or
companies do not comply with the rules
and alternative compliance schedules and
other approaches, Including compliance
funding or technical assistance, appear
most likely to successfully change the tar-
geted behavior. Finally, the stick of legal
action can be necessary if there is a risk of
real danger to public health or the natural
environment or if companies have resisted
previous opportunities to comply. A real or
perceived threat, including a threat of indi-
vidual liability, can sometimes persuade an
otherwise recalcitrant facility operator to
take measures to comply.
3.4 Importance Of Enforcement
Enforcement is important and nec-
essary to achieve the goals of protecting
public health and improving environmental
quality. In addition, enforcement ensures
fairness, protecting companies that comply
with environmental regulations from being
economically disadvantaged by companies
that do not comply. This protection also
safeguards the economic interests of the
community, which would otherwise bear the
costs of the advantage obtained through
noncompliance.
Enforcement is also necessary for
maintaining credibility. When the regulated
community does not take environmental reg-
ulations seriously, the credibility of the gov-
ernment is at stake, not only in
environmental affairs but also in other areas.
Finally, enforcement make sense economi-
cally by, among other things, improving pub-
lic health and reducing the cost of medical
care, saving money both in the short term
and long term by cleaning water and soil,
and by stimulating develop, use, and mar-
keting of innovative pollution control tech-
nologies.
As a general rule, 20% of the pop-
ulation will comply voluntarily with a (new)
rule; 5% will never comply unless forced to
do so, and 75% will comply only if they see
that others receive a sanction for non-com-
pliance. In other words, most people will
change their behavior to avoid a sanction.
For deterrence to work, four conditions
have to be met: there must be a good
chance that violations will be detected; the
response to violations must be swift and
predictable; the sanctions must be appro-
priate; and the first three conditions must
be communicated to and recognized by the
community.
3.6
Feedback
National and regional regulations
and targets must be translated into
"enforceable" requirements. Enforceable
means that the regulations provide the
regional/local level with the necessary
authority and that they are clear and practi-
cal. Although it is no use to set require-
ments that are uncjear, imprecise or
technically not feasible, it sometimes hap-
pens; especially in cases where national or
regional governments feel the need "to do
something." To help enhance the likelihood
of compliance, the regional and local
authorities could design a system to evalu-
ate requirements and guidelines issued by
national or regional governments and use
results from the evaluations to give infor-
mation to the people who draft the rules.
4 THE FLEMISH SITUATION
As far as the Flemish regional
administration is concerned, the instrument
for the enforcement of environmental health
legislation in the Flemish Region is the
Environment Inspection Section of The
Ministry of the Flemish* Community. The
Environment Inspection Section has oper-
ated since 1991, and is not involved in the
process of granting licenses. About 85
inspectors are active in the Environment
Inspection Section, which consists of an
Inspectorate-general, in charge of the gen-
eral management, a Chief Inspectorate
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE A^ID ENFORCEMENT
having a coordinating and supporting task
and an Inspectorate service in each of the
5 Flemish provinces, performing the actual
inspections in the field.
If their findings indicate sufficient
necessity, the inspectors of the
Environment Inspection Section can decide
to take measures in the field of criminal or
administrative law. They always make an
official report of the legal violations to the
Public Prosecutor and they can give state-
ments. If needed, they can initiate coercive
measures, leading even to the closing-
down of a plant. For air pollution control, the
findings of the inspectors are generally
based on the results of emission measure-
ments, which have to be performed by cer-
tified and officially recognized labs.
5 CLEANUP OF MUNICIPAL SOLID
WASTE INCINERATORS IN THE
FLEMISH REGION.
5.1
Introduction
One example of legal enforcement
efforts initiated by the Environment
Inspection Section, the cleanup of air pollu-
tant emissions from municipal solid waste
incinerators, has resulted not only in the
observance of the legal standards, but also
served as an impetus to technological
innovation (Figure 1 — see website).
The Flemish Region is one of the
three regions of Belgium, making up the
northern part of the country, with 5.9 million
inhabitants on a surface of 13.512 km3. In
this region, one of the most heavily popu-
lated areas in Europe, about 3.3 million
tons of household waste are produced
annually. Currently, about 800,000 tons of
household waste is incinerated in 12 exist-
ing municipal solid waste incinerators, with
a total yearly capacity of about 1.2 million
tons. Associations of municipalities (so-
called 'intercommunales') mainly operate
these municipal solid waste incinerators
and most of them are located in the west-
ern part of the Flemish Region (Figure 2).
The major decree of the Flemish
Legislation on Environmental hygiene is the
Environmental License Decree of 1985,
which became operational through two
implementing orders, called VLAREM I
(1991) and VLAREM II (1995). VLAREM I
contains a list of the objectionable estab-
lishments needing a license (class 1 and
2), or that need to be reported on a munic-
ipality level (class 3), and the procedures
required to obtain a license. VLAREM II
contains the general and j sector-related
conditions for objectionable (establishments
of all three classes. These! conditions are
based on the general principle of preven-
tion and refer to BAT (NEEQ). For various;
sectors, such as waste inciperation, emis-
sion limit values are given. Where possible,
these emission limit values' of course are
based mainly on the European directives.
[
5.2 | Vlarem II On (Municipal) Waste
Incineration !
For municipal solid waste incinera-
tors, VLAREM II mentions ^mission limit.
values that depend upon trie capacity and
the type of waste, which is incinerated. For
municipal waste incinerator^, the emission
limit values are different [ for capacities
below 1 ton/h, between 1 and 30 ton/h and
above 30 ton/h. All existing pemish munic-
ipal solid waste incineratorsjhave a capaci-
ty between 1 and 30 ton/h these emission
limit values are taken from1 the EU direc-
tives for new and existing municipal solid
wasle incinerators (1989), put additionally,
an emission limit value of O.'j ngTEQ/Nkm3
for piolychlorinated dioxins and furans has
beeri obligatory for all Flemish municipal
solid waste incinerators singe 1/1/1997.
| VLAREM II mentiprts very explicitly
that the incinerators are not allowed to con-
tinue operation when the emission limit val-
ues are not being met ;(Table 1). An
extensive monitoring scheme is obligatory,
including continuous measurements of sev-
eral parameters. Since 1/1/2000, continu-
ous flue gas sampling, iwith biweekly
analysis of the dioxin emission, is also obli-
gatory. In this way, a constant review of
data on the operation of the'municipal solid
waste incinerators has bepome possible.
Furthermore, the Environment Inspection
Section can perform emission measure-
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BAERT, FRANCOIS, BERNAERT 103
Figure 2: Municipal Solid Waste Incinerators in the Flemish Region
Flemish Region: 13.512km3 - 5,9 million inhabitants
> municipal solid waste incinerator capacity: 1.2 Mt/y (household + industrial waste)
> total amount of household waste = 3.3 Mt/y: (66% selective - 24% incinerated -
11%landfilled)
ments at all times by contracting with an
officially recognized lab (Table 2).
5.3 Stack Emission Measurement
Campaigns Organized By The
Environment Inspection Section.
Since 1992, the Environment
Inspection Section organized several stack
emission measurement campaigns, includ-
ing the sampling and analysis of PCDD/
PCDFs. Officially recognized labs performed
the measurements, initially focusing on
waste incinerators and later shifting attention
toward industrial process plants. The main
aim of these campaigns was to characterize
completely the flue gas emission of the
plant, by measuring dust, CO, HCI, HF, SO2,
NOX) heavy metals, CxHy, PAH and
PCDD/PCDFs. Furthermore, a full range of
environmental scanning was performed.
Under the campaigns, the results
of the measurements would be evaluated,
taking into account the general and sector-
related VLAREM II conditions and emission
limit values and the specific conditions,
mentioned in the environmental license.
Based on these results, the Environment
Inspection Section could then take any
measures necessary.
5.4
Phase 1:1993-1997
In 1992 and 1993, the Environment
Inspection Section performed its first emis-
sion measurements at the 19 existing
municipal solid waste incinerators. At that
time, nearly all these incinerators had only
limited flue gas cleaning capabilities (e.g.
only electrostatic precipitators or cyclones),
sometimes with an additional wet scrubber.
These measurements showed very high
emissions of toxic and hazardous com-
pounds at the majority of the municipal
solid waste incinerators: especially for dust
particles, HCI, SO2 and dioxins. At that
time, a legal emission limit values existed
for most of the pollutants, but not yet for
PCDD/PCDFs.
The Environment Inspection
Section concluded from these data that the
situation was intolerable, as there was a
threat of danger to both humans and the
environment. Therefore, the Environment
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ELV (mg/Nkm3)
dust
CO
TOC
HCi
HF
SO2
NOX
Cd+TI
Hg
heavy metals
PCDD+PCDF
(ngTEQ/NkmS)
< 1 ton/h
100
100
20
100
4
300
400
0.2
0.2
5
1-30 ton/h
30
100
20
50
2
300
400
0.1
0.1
1:5
0.1
> 30 ton/h
10 .
100
10
10
1
50 I
400J
0.05
0.05
0.5 j
I
Table 1: Vlarem II: emission limit values for municipal solid waste incinerators
continuous
6-monthly
annual
02, T°, p, H20
dust, CO, HCI (>= 1 ton/I
i)
TOC
heavy metals, HF, SO2, MOX (>= 1 ton/h)
dust, HCI, CO (< 1 ton/h)
PCDD+PCDF !
continuous sampling for bi-weekly PCDD/PCDF analysis
Table 2: Vlarem II: emission measurements for municipal solid waste incinerators
Inspection Section ordered the immediate
and thorough sanitation of the municipal
solid waste incinerators in order to reach
the legal emission limit values and to mini-
mize the dioxin emissions. To obtain this
goal, at least a substantial improvement of
the process controls (temperature, air
flows, waste input) and an installation or
extension of the existing flue gas cleaning
system would be needed.
Following this first campaign, 6
municipal solid waste incinerators were
closed-down definitively as! the cleanup
measures required appeared not to be fea-
sible, for economical and/or [technical rea-
sons ipr because the authorities granted no
new license. The 13 other rrjiunicipal solid
waste incinerators started pollution control
upgrade programs involving' implementa-
tion of one or more improvements. Those
measures included improvement of the pro-
cess controls, revisions of the oven,
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BAERT, FRANQOIS, BERNAERT 105
upgrading of electrostatic precipitators
(ESPs), installation or extension of the flue
gas cleaning system (e.g. fabric filter, wet
scrubber or semi-dry reactor with Ca(OH)2
injection), and in a limited number of cases,
injection of activated carbon or lignite^
5.5
Phase 2:1997-2000
In 1998, the Environment Inspection
Section organized a new emission measure-
ment campaign at the municipal solid waste
incinerators. In the meantime, the VLAREM II
emission limit value for PCDD/PCDFs, had
become operational.
All of the municipal solid waste
incinerators had a primary and secondary
flue gas cleaning system, and at nearly all,
activated carbon was injected in the flue
gases.
The measurement results showed
that the emission limit value for the 'classi-
cal' parameters (dust, HCI, SO2, NOX and
heavy metals) was met at all municipal
solid waste incinerators. The flue gas
PCDD/PCDF concentration was lower than
0.1 ng TEQ/Nkm3 at nearly all municipal
solid waste incinerators, but still appeared
to be the most critical factor. Meanwhile,
the public awareness for PCDD PCDFs
had risen and the Flemish Parliament
approved a motion in which it was stated
that plant operation could not be tolerated if
the emission concentration was higher than
the emission limit values.
Therefore, the Environment
Inspection Section chose to maintain a
strict enforcement policy, especially for the
PCDD/PCDF emission limit value. At all
plants where a concentration above 0.1 ng
TEQ/Nkm3 was measured, the
Environment Inspection Section investigat-
ed whether this was caused by structural
problems. If so, the municipal solid waste
incinerator was ordered to immediately
stop the incinerator and to take the neces-
sary measures. Afterwards, the
.Environment Inspection Section decided
whether the start-up could be allowed. This
was only permitted if the operator could
prove that the emission limit value would be
respected at all times.
The result of this action was that
one more municipal solid waste incinerator
had to be closed-down definitively, as the
necessary investments could not be eco-
nomically made. Several other municipal
solid waste incinerators were stopped tem-
porarily by the Environment Inspection
Section until all measures were taken to
assure a flue gas concentration of less than
0.1 ng TEQ/Nkm3. Specifically regarding
the PCDD/PCDF emission reduction, typi-
cal measures taken during this period were
injection of activated carbon or lignite, opti-
mized fabric filter operation, catalytic filter
sleeves, deNOx (Selective Catalytic
Reduction) as a final step for dioxin
removal, and continuous sampling for
biweekly dioxin analysis (obligatory since
1/1/2000).
Furthermore, all of the municipal
solid waste incinerators managed to obtain
a much higher quality level of operation,
and thus lower emissions, because of fur-
ther improvements in process control (T°,
air flow), a better management and
improved training of their personnel.
Several of them have currently obtained an
ISO 14000 certificate.
5.6 Technological Progress And
Innovation
Between 1993 and 2000, huge
environmental investments were done at all
Flemish municipal solid waste incinerators.
This ranged from between approximately 3
million to over 30 million U.S.$ per inciner-
ator. {Table 3)
Major adaptations were improved
process controls (T°, residence time, air"
flow), high-quality burners, energy recovery
systems, upgrading of ESP and wet scrub-
bers, installation of new fabric filters, use of
activated carbon injection equipment, acti-
vation of improved or new lime reactors
(semi-dry system), use of deNOx systems
(catalytic and non-catalytic), and continu-
ous monitoring equipment to provide
biweekly analysis of dioxins.
These investments resulted in a
huge decrease of the average yearly emis-
sions. This is most striking for the total diox-
in emission from municipal solid waste
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•106
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
1993
2002
CLOSED since 1993
New incinerators
TOTAL
number
of
incinerators
19
12
8
1
CO
0
1
o
Q.
CO
UJ
17
12
o
8
c"
SH.
o
c?
2
12
'
c
activated carbo
injection
1
11
co
§
CD
-------
BAERT, FRANCOIS, BERNAERT 107
i4n -i
1PO -
ion -
g 80-
H fin -
H
O) An -
Of) -
0
• 123 J
-*.
^•» *, j
„ t > ^ &° rf, ' 27
. '* ' ^ -a ^ V*' 1
1993 1994 1995 1996 1997 2000
fc
Figure 3: Average yearly PCDD/PCDF emission from municipal solid waste
incinerators in the Flemish region
Internationa! Symposium and Exhibition
on Waste Management in Asian Cities,
Hong Kong 23-26 October 2000.
3. Reduction of the dioxin emission from iron
sintering plants in the Flemish Region
(Belgium) - Enforcement Approach of the
Environment Inspection Section - Filip
Frangois, Paul Bernaert and Robert
Baert. p. 115-118. Organohalogen
Compounds ol. 54(2001)
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108
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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BROOM, LOFTON 109
NEGOTIATIONS IN SUPERFUND CASES -THE ROLE OF
COMMUNITIES IN SITE REDEVELOPMENT
BROMM, SUSAN1 and LOFTON, JAMES2
1 Deputy Director, Office of Site Remediation Enforcement, U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue, N.W.,
Washington, D.C. 20460
2 Senior Counsel, U.S. Department of Justice, Environment & Natural
Resources Division, Environmental Enforcement Section, 1425 New York
Avenue, N.W., Washington, D.C. 20005, jim.lofton@usdoj.gov
SUMMARY
The success of the remediation program under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), depends heavily on private parties
performing timely cleanup actions. Negotiations are an important tool to achieving this end.
This paper will outline the negotiation process and discusses the importance of communi-
ty involvement in Superfund cleanups. The paper also provides a case study of one CER-
CLA negotiation at the Avtex Fibers Superfund Site in Front Royal, Virginia, which
, demonstrates how success can be achieved in cleaning up and redeveloping a site in part
through the participation of the local community and local authorities. At the Avtex site, the
property is being transformed from the worst Superfund Site in the state of Virginia into a
showpiece riverfront park used for both recreation and business. The Avtex case demon-
, strates the role of negotiations and the importance of actively consulting and involving the
public in the Superfund process.
1 THE ROLE OF NEGOTIATIONS IN THE
SUPERFUND PROGRAM
Negotiations play a critical role in
getting Superfund sites cleaned up. Section
122 of CERCLA, 42 U.S.C. § 9622, directs
the government to enter into agreements
"whenever practicable and in the public
interest." In practice, the government
almost always provides potentially respon-
sible parties (PRPs) an opportunity to
negotiate an agreement for conducting
remedial actions. Private parties conduct or
pay for cleanup at approximately 70 per-
cent of all Superfund sites. Of this 70 per-
cent, more than three quarters of the
cleanups are done under negotiated settle-
ments. Timely settlement of cases reduces
transaction costs and achieves faster
cleanups. However, there is always the
possibility that protracted negotiations will
actually cause a delay in progress at a site.
The U.S. Environmental Protection Agency
(EPA) and U.S. Department of Justice
(DOJ) have put in place a number of safe-
guards to help ensure that settlement
negotiations do not delay site cleanups.
These are discussed in more detail below.
The enforcement/settlement pro-
cess at a Superfund site begins soon after
discovering the site. The first step is called
a PRP search, in which EPA begins to iden-
tify parties that may be liable for the con-
tamination at the site. PRP searches are
conducted using standard investigatory
techniques such as record reviews, inter-
views, title searches and financial assess-
ments. PRP searches are on-going
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110 SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
throughout the entire cleanup/enforcement
process; if additional PRPs are later identi-
fied, they are then brought to the table.
After completing an initial search, EPA noti-
fies PRPs' of their potential liability using
what are called General Notice Letters.
This begins a period of informal information
exchange between EPA and the PRPs.
When EPA is ready to begin negotiations, it
issues Special Notice Letters. These letters
identify all known PRPs at the site and also
contain any available information on the
quantity and nature of the wastes each
contributed. Issuance of a Special Notice
Letter begins a 60-day moratorium on
response actions at the site. The moratori-
um period is intended to provide a period
for negotiations to enable the PRPs to take
over work at the site. EPA and DOJ have
established negotiation time periods that
are tracked at the national level to assure
that negotiations do not become protract-
ed. Although these time frames are flexible,
management-level approval is required to
extend negotiation deadlines to ensure that
extensions are in the best interest of the
government.
When negotiations are successful,
the government and the PRPs enter into an
agreement in the form of a judicially-
approved consent decree. Compliance with
this consent decree is then monitored as
work proceeds at the site. If the settlement
negotiations fail, EPA will often issue a
Unilateral Administrative Order to force par-
ties to perform the cleanup. If the PRPs fail
to comply with the order, the government
can bring a judicial action to enforce the
order. Under Section 107(c)(3) of CERCLA,
42 U.S.C. § 9607(c)(3), PRPs may be liable
for treble damages for failure to comply with
EPA's order to perform the cleanup.
Alternatively, EPA can proceed to fund the
cleanup using the Superfund Trust Fund
and later seek reimbursement from the par-
ties using its cost recovery authorities.
2 PUBLIC INVOLVEMENT IN THE
CLEANUP OF SUPERFUND SITES
From the beginning of the program,
CERCLA recognized the need for commu-
nity involvement at Superfund sites. This
role has evolved and expanded during the
20- year history of the Superfund program.
Initially, community-involvement require-
ments under CERCLA wer0 designed to
inform surrounding communjties about the
work being done at a site rather them
involve them in it. CERCLA's provisions
required 1) development ofi a community
relations plan for each site' 2) establish-
ment of information repositories near each
site where all publicly available materials
related to the site would be Accessible for
public inspection; 3) opportunities for the
public; to comment on the proposed remedy
for each site; and 4) development of a
responsiveness summary responding to all
significant comments received on the pro-
posed remedy. ;
In recognition of the! need for peo-
ple living near Superfund si|tes to be well
informed and involved with decisions con-
cerning sites in their communities, the
Superfund law was amended in 1986 to
expand community involvement activities.
Thesis statutory amendments provided the
authqrity to award Technical Assistance
Grants to local communities [enabling them
to hire independent technical advisors to
assist them in understanding technical
issues and data about the [site. With this
statutory direction, ERA'S Superfund
Program has taken its comrriunity involve-
ment; responsibilities seriously, and the
Agency is committed to involying citizens in
the hazardous waste cleanup process.
Today, community involvement efforts are
designed not only to keep citizens informed
about site progress, but also jo give citizens
the opportunity to provide input into site
cleanup decisions and the future use of the
site. ; i. | .
i EPA's experience has shown thiat
when citizens are involved early and often
in the: process, cleanup is erjhanced rather
than impeded. EPA site response teams,
which include the site manager and/or on-
scene coordinator and comrriunity involve-
ment coordinator, conduct interviews in the
community with citizens, local government
officials, and others who are interested in
the site to learn about their issues and con-
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BROOM, LOFTON
111
cerns. EPA staff work in the community and
are available informally and formally to pro-
vide information about the site and answer
questions. EPA has learned that developing
relationships with the local community from
the beginning is considerably more effec-
tive than trying to work at the last minute
with ,a hostile community who feels left out
of the decision-making process.
3 SUPERFUND REFORMS
Beginning in 1993, EPA, working
with the Department of Justice, began a
series of reforms to the Superfund program
designed to make it "faster, fairer and more
efficient." These reforms were instituted in
response to growing dissatisfaction with the
program. While some of these problems
clearly emanated from the way in which the
statute itself was structured, EPA realized
that it needed to make certain fundamental
changes to the way the program was imple-
mented or else face mounting opposition
from virtually all of its stakeholders.
The first round of reforms focused
on 17 initiatives designed primarily to
increase fairness in the way the program
was being implemented and enforced, as
well as to improve the effectiveness of
cleanups. Rounds 2 and 3 were introduced
in 1995. Round 2 consisted of 12 reforms,
many of which were tested through pilot
projects. Round 3 introduced an additional
twenty, initiatives. Rounds 2 and 3 were
designed to reduce litigation and "transac-
tion" costs, make cleanup decisions more
cost effective, encourage the reuse and
redevelopment of sites after cleanup and
encourage the use of innovative technolo-
gies. Implementation of the reforms meant
not only changing many policies and guid-
ance documents, but also effectuating a
culture change within the implementing
i agencies. Some of the reforms were so fun-
damentally different from past ways of
doing business that managers mounted a
campaign to educate staff about them and
communicate their importance. The result
was rapid and dramatic. Many former pro-
gram critics become openly supportive. In a
June 2000 report, the National Academy of
Public Administrators (NAPA), a respected
"think tank" in the United States, concluded
that "the reinvention effort successfully
addressed the key challenges facing
Superfund" and "implementation of the
reforms has been accompanied by sub-
stantial improvement in aggregate mea-
sures of program out put." In other words,
more sites were getting cleaned up.
In one of these policies, the orphan
share policy, the government recognized
that some concession should be made to
PRPs for shares at a site attributable to any
insolvent and defunct parties that were
liable at the site. Under the broad joint and
several liability scheme of CERCLA, many
companies felt that they were unfairly being
asked to pay this entire "orphan" share. The
orphan share policy reduces the liability of
other settling parties at a site, within certain
limits, to the extent of the share of liability
attributable to insolvent and defunct par-
ties. This policy only applies to settling par-
ties, thus creating a significant incentive for
parties to settle claims without litigation,
thereby reducing transaction costs.
4 REDEVELOPMENT AND REUSE OF
SUPERFUND SITES
In 1999, EPA embarked upon a
national effort, called the Superfund
Redevelopment Initiative, to help communi-
ties return Superfund sites to productive
use. Although reuse had been an important
part of the cleanup of many sites, this ini-
tiative created a coordinated, nationwide
effort to ensure that reuse was considered
at every site. The initiative also ensured that
processes and tools were in place to
enable redevelopment to occur. Another
important element of the initiative was to
ensure that consideration of future use
occurred early enough in the cleanup pro-
cess so that remedy decisions could be
made that were consistent with this future
use. Finally, this initiative was designed to
promote an early public dialogue on re-use
issues to provide timely public input into the
decision-making processes.
In the United States, land use deci-
sions are vested primarily in state or local
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112
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
(municipal) governments. EPA's role is that
of "enabler" and in some cases "facilitator."
An important part of the initiative has been
a grant program called the SRI Pilot
Program to provide local governments with
funds to perform reuse assessments and
public outreach to help determine a site's
future use. EPA considers itself an active
partner with other stakeholders in returning
sites to productive uses. One benefit of the
initiative is that local governments, commu-
nities, developers, and others are rethink-
ing the value of Superfund sites and are
now more likely to consider them for a
wider variety of uses.
Redevelopment at Superfund sites
has taken a number of innovative forms.
For example, the copper smelter at the
Anaconda Smelter Superfund site operated
for more than a century - from the 1880's to
the 1980's - but left behind a legacy of pol-
lution, including over 1.4 million cubic yards
of soil, slag and flue dust contaminated with
arsenic, cadmium, copper, lead and zinc.
Today, a 21-hole golf course designed by
Jack Nicklaus is situated on a portion of the
site. The golf course has bunkers made of
slag and in the background are flues and
smelting ovens, preserved as part of the
town's historic mining heritage. Similarly, a
former illegal dumpsite in Baltimore,
Maryland, was cleaned up and developed
into a 20-tee golf driving range, aptly
named SuperFun. In Silicon Valley,
California, a beautifully landscaped office
park, home to the Internet company
Netscape, sits on the site of the former
Fairchild Semiconductor Superfund site,
once heavily contaminated by solvents that
had leaked out of underground tanks and
pipes. In Denver Colorado, a Home Depot
home improvement retail store is located
on the former Denver Radium site that was
once contaminated with radium-226,
arsenic, zinc, and lead. These are but a few
examples from the hundreds of cleanup
and reuse successes achieved by the
Superfund program working in partnership
with its stakeholders. The details of one of
those innovative success stories at the
Avtex Superfund Site involving close coop-
eration and active participation with a local
community in Front Royail, Virginia, is
described below. [
5 HISTORY OF THE AVTEX SITE
> > i
| i
The Avtex Site is located in Front
Royal, Virginia, a small towrt in northwest-
ern Virginia located just west of the Blue
Ridge Mountains. The site js bounded on
the west and northwest by the South Fork
of the Shenandoah River, ^ state scenic
river that flows north into| the Potomac
River. At one time, the property was home
to the largest rayon manufacturing plant in
the United States. Constructed by the
American Viscose Corporation in the late
1930s, the plant began raycjin manufactur-
ing began at the site around 1940. When
World War II began, the Unfed States gov-
ernment determined that the country need-
ed increased production oi high tenacity
rayon for the manufacture [Of war-related
products, including airplane and truck tires.
American Viscose was commissioned by
the War Production Board to convert the
plant to make high tenacity! rayon. During
World War II, American Viscpse became a
key siupplier of high tenacity rayon for the
United States. In 1942, American Viscose
was the largest producer of rayon in the
United States.
5.1 | Manufacturing Process And
Waste Generation •
In manufacturing rayon fiber, cellu-
lose is first immersed in a cystic soda
solution, and then reacted with carbon
disuliide (CS2) to form cellulose xanthate.
The cellulose xanthate, which is also
called viscose, is then dissolved in caustic
soda and filtered to remove impurities. The
viscose solution then undergoes one of
two processes to form either; continuous
filament rayon or rayon stabl^.
Large amounts of waste, including
off-specification viscose, zinc hydroxide
sludge and fly ash, was geherated at the
manufacturing plant, which was disposed
of on-site. The site property ipcluded sever-
al hundred acres of land trjat was in the
flood plain bordering the So(jth Fork of the
Shenandoah River. The plant operators
-------
BROOM, LOFTON 113
used this property in the flood plain as a
dumpsite for liquid, semi-solid, and solid
wastes such as off-specification viscose.
Beginning in 1940, large pits or basins
.were dug in the area directly adjacent to
the river for waste disposal. When one
basin was filled, another was dug. Over a
40-year period, 11 unlined viscose basins
were built and subsequently filled with vis-
cose waste. During the time the viscose
ibasins were in operation, more than 14 mil-
lion cubic feet of waste was deposited
there. Zinc hydroxide sludge was also dis-
posed of in five unlined sulfate basins. The
five sulfate basins contain approximately 80
million pounds of zinc. Fly ash was dis-
posed of in four fly ash basins and a fly ash
pile. Until 1983, solid waste from the manu-
facturing processes was disposed of in a
landfill that was built on top of Viscose
Basins 4, 5, and 6.
While the facility was operating, an
extensive system of underground sewers
was used to transport wastes throughout
the site. Process waste sewers were used
for acid, base, laundry, laboratory, and vis-
cose wastes. The wastes from these sew-
ers were supposed to flow to an on-site
waste water treatment plant for treatment
before discharge to the river. However,
wastes were sometimes released into the
storm water sewer and were released
directly into the river. In addition, wastes in
storm water sewers were released directly
to the groundwater and soil via cracks and
leaks in the storm water sewers. Leaks in
sewer pipes, manholes, and pipe connec-
tions also caused releases of hazardous
substances.
5.2 Subsequent Ownership And
Closure Of The Rayon Plant
In 1963, the manufacturing site
;was purchased by FMC Corporation, a
large, American company with holdings
around the world. FMC owned and operat-
ed the site until 1976 when it sold the plant
to Avtex Fibers, Inc., a company formed to
buy the Front Royal site in a leveraged buy-
out. Avtex Fibers operated the then aging
plant for another 15 years.
On November 10,1989, the Virginia
State Water Control Board revoked Avtex's
permit to discharge wastewater from the
Front Royal facility into the Shenandoah
River. Although the shutdown came abrupt-
ly, it was the result of approximately 2,000
permit violations between 1980 and 1989
and PCB contamination linked to the site. In
1989, PCBs were detected in river samples
directly downstream of the Avtex outfall.
PCBs were also detected in the emergency
lagoon, process sewers, the storm sewer,
and an area where a transformer had
exploded in the mid-1980s.
The closure of the Avtex plant was
a severe blow to the Front Royal communi-
ty. Not only were 3,000 jobs lost to the com-
munity, but also what had been the major
employer in the community was suddenly
the largest Superfund site in the state.
Avtex Fibers was forced to close its doors
literally overnight. What had been raw
material and product one day became haz-
ardous substances the next. Product lines
had to be drained and cleaned, chemicals
and raw materials had to be removed and
either sent back to suppliers or disposed of,
and the removal action that was begun by
Avtex had to be completed by EPA.
6 EPA'S CLEANUP OF THE
AVTEX SITE
The sheer size of the cleanup pre-
sented EPA with a daunting task — miles of
process lines and sewers, 50 acres of
buildings under roof, and 240 acres of
waste lagoons. Moreover, the magnitude of
the effort was compounded by the fact that
different areas of the site had different envi-
ronmental problems. For example, thou-
sands of drums in varying stages of
deterioration were found at the site. EPA
had to locate all the drums, identify what
was in them, categorize them and deter-
mine the appropriate method of treatment
and disposal. Approximately 3,000 drums of
hazardous waste were disposed of off-site.
In one area, EPA was faced with
removing large quantities of carbon disul-
fide that was so volatile that it was stored in
large steel tanks under water. In another
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114
!
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE A^D ENFORCEMENT
area, a three-story building that had been
used to reclaim spent sulfuric acid was so
dilapidated from acid corrosion that the
building was literally falling down from the
inside out. This building had to be demol-
ished not only because it was a safety haz-
ard, but also because acid leaching
beneath the building constituted a potential
threat to groundwater. In another area, EPA
conducted an emergency removal to
remove PCB-contaminated soil, equipment
and parts of a building.
This sampling of the response
work at Avtex demonstrates the nature and
complexity of the work undertaken by EPA
at the site.
7 NEGOTIATIONS OF FUTURE WORK
AND REDEVELOPMENT
After nearly a decade of site reme-
diation at the Avtex site, the local communi-
ty did not have a good impression of either
the pace or the progress of th.e work at the
site. By the late 1990's, EPA has spent
approximately $44 million in cleaning up
the Avtex Site, and yet physically, little
appeared to have changed on the property
— most of the old manufacturing plant facil-
ity still remained, the waste lagoons were
still there, and the groundwater was still
contaminated. Despite a number of briefin-
gs and public meetings to inform the com-
munity about the work at the site, the local
media and town leaders were often critical
of ERA'S effort at Avtex. According to the
local view, EPA had spent too much doing
too little over a long period of time.
7.1 Negotiations With FMC
Corporation
EPA had fared little better in its
negotiations with the lone private PRP, FMC
Corporation.1 In response to a Unilateral
Administrative Order, FMC began operating
the waste water treatment plant at the Avtex
Site in 1990, but had otherwise steadfastly
refused to participate in the clean up.
In 1997, the Department of
Justice's Environmental Enforcement
Section notified FMC that it was prepared
to file suit against the company as a past
owner and operator at the Avtex Site.
However, prior to filing a CERCLA action
against FMC, the government offered FMC
the opportunity to discuss settlement.
Subsequently, EPA and DOJ began a
series of complex and sorrtetimes tense
negotiations with FMC in in attempt to
negotiate how much of ER/{v's past costs
FMC would pay and whether FMC would
accept responsibility for completing the
remediation of the property. ,
One critical factor, yvhich allowed
the parties to reach settlement on the
amount to be paid by FMC for past clean up
costs,; was the application of 1 EPA's orphsin
share policy. Despite the fact that FMC
could be held jointly and severally liable for
all of the past clean up costs at the site,
under' the orphan share policy, EPA took
into account that FMC had- operated the
rayon manufacturing plant at the site for
only 13 of the 50 years the plant was in
operation. Under the orphan share policy,
EPA can compromise in past costs an
amount equal to 25 percent of estimated
future remedial costs at the sjite. EPA's will-
ingness to compromise its past costs was
in large part based on its orphan share pol-
icy and was one of the keys! to success in
the Avtex settlement. j
i
7.2 Negotiations To Redevelop
The Site |
Despite the fact that [the Avtex Site
was the largest and most complesx
Superfund site in the State 4f Virginia, the
property had huge potential for redevelop-
ment and local community involvement. Not
only was there 450 acres in the town of
Front Royal on the east bank of the river,
the property included 68.5 acres of unde-
veloped land on the west bank of the river.2
During the course of the settlement
talks, government negotiators and repre-
sentatives from FMC agreed fo address not
just thie environmental problems at the site,
but to map out a strategy tha|t would return
the sile to beneficial use. However, as nego-
tiators! began to discuss possibilities for the
site, they soon realized that! local involve-
ment was a key factor. Eventually, the site
would revert to local management and own-
-------
BROOM, LOFTON 115
ership, and thus future plans for the proper-
ty required not just consultation but
approval by town and county leadership.
As EPA and FMC negotiators pro-
gressed in forging an agreement for FMC to
take over the clean up of the Avtex Site,
they also discussed with local officials their
vision for how the site could be best be put
to beneficial reuse. The Economic
Development Authority of the Town of Front
Royal and the County, of Warren (EDA) had
already identified the 180-acre parcel
where the old manufacturing plant was
located as a potential location for a new
business center in Front Royal. The idea for
; a business center was soon expanded to
include designating the areas in the flood
plain adjacent to the river as a nature pre-
serve and developing another parcel for
recreational activities. The parties eventual-
ly came to view themselves more as part-
ners than as adversaries in reclaiming and
redeveloping the site. By taking a long term
view and working cooperatively, the parties
, were able to achieve results that were both
innovative and will allow the site to provide
multiple benefits to the community.
A surprising collateral benefit
began to emerge when EPA, DOJ, and
1 FMC incorporated local officials in future
planning for the site. Not only did it foster
better relations between federal and local
officials, but it also helped to change the
nature of the relationship between FMC
and federal officials. What had begun as an
intensely adversarial relationship in which
federal authorities sought to use the force
of law to hammer out an agreement with
FMC to pay for site clean up costs eventu-
ally evolved into something much more
cooperative in nature.
8 SETTLEMENT AND THE MULTI-USE
PLANS FOR REDEVELOPMENT
As part of the settlement with EPA,
FMC agreed to pay $8.5 million of ERA'S
past costs and agreed to complete the site
clean up begun by EPA. In addition, EPA
and FMC worked with local town and coun-
ty officials to finalize a plan for reclaiming
the site for beneficial use.
As part of the settlement, the Avtex
property was conveyed to EDA who agreed
to develop the site once the remediation
was complete as a multi-use park. The par-
cel where the old manufacturing plant was
located is slated to be developed as a busi-
ness park for light industrial and commer-
cial businesses. The 240-acre parcel where
the waste lagoons are located and the 68.5
acres on the west bank of the river will be
set aside as riverfront green space with
some limited recreational uses such as hik-
ing, biking and access to the river.
Perhaps the most innovative pro-
ject envisioned at the site is a 26-acre soc-
cer complex being developed on the
property. The Avtex Site was chosen as
EPA Region Ill's pilot site for the Recycling
Superfund Sites Initiative. Through this ini-
tiative, EPA provided financial assistance to
perform additional reuse planning in part-
nership with the U.S. Soccer Foundation,
which has extensive experience in siting
and engineering soccer playing fields.
When this project is completed, it will be
the first project sponsored by the U.S.
Soccer Foundation on a Superfund site.
With assistance from EPA and the U.S.
Soccer Foundation, the town and county
are constructing a tournament-quality soc-
cer complex for use by Virginia youth soc-
cer teams.
To ensure that each of the parcels
will always be used only as intended in the
agreement, the Lord Fairfax Soil and Water
Conservation District and the Valley
Conservation Council, a local conservation
organization were granted a conservation
easement, which prohibits the use and
development of the property except in
accordance with the terms of the ease-
ment.3
One final aspect of the settlement
deserves mention as indicative of the com-
mitment of the parties to the reclamation of
the property. Under CERCLA, the required
response activities cover only the work
necessary to remediate the environmental
threats to human health and the environ-
ment. However, when the CERCLA
response work is completed at the site,
large decrepit buildings and tall smoke
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'• • ! ilk""!,! :,',',=,:„'"
116
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
stacks will remain on the property, which
are both unsightly and will prevent the prop-
erty from further use until they are
removed. FMC has agreed to spend an
additional $1 million to oversee and partici-
pate in the remaining building demolition
and removal in partnership with the EDA,
the town and county. By facilitating the
removal of these buildings and making the
site available for future beneficial use, the
site will be finally "cleaned up." FMC's will-
ingness to work with and assist local
authorities in assuring that the site will be
made available for beneficial use is another
indication of the relationship between the
local community and those working to
clean up the site and of the commitment of
the parties to reclaim the property for the
benefit of the community.
In sum, the partnership between
federal government, industry, and the local
community in a small town in Virginia is
showing dramatic results at the Avtex site:
what was once the worst Superfund site in
Virginia is being re-developed into prime
riverfront property that will provide econom-
ic, recreational and conservation values to
the community.
ENDNOTES i
! ; i
1 Several federal agencies were also
PRPS5 at the Avtex Site. The [federal PRPs
had already reached agreements with
FMC to pay a portion of whatever FMC
paid at the site. The other companies who
operated the rayon manufacturing plant ait
the site, American Viscose Corp. and
Avtex; Fibers Inc., were defuhct.
2 In 1984, Avtex purchased ^ tract of land
across the Shenandoah River from the
Avtex; Site. This parcel of approximately 20
lots v/as known as Rivermorit Acres. Avtex
purchased this tract when it was discov-
ered that wells on the property were con-
taminiated with CS2 from Viscose Basins
9-11.The contaminated groijndwater
plume from the viscose basins had migrat-
ed from the Avtex Site beneath the river to
grouridwater in Rivermont Apres.
3 The conservation easemerjt was also
granted to the United States;and to FMC
to restrict groundwater usag4 and provide
access to EPA and FMC to complete the
response action at the site. [
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BRUCH, CZEBINIAK 117
REGIONAL MANDATES AND NATIONAL EXPERIENCES
PROMOTING PUBLIC INVOLVEMENT IN ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT
BRUCH, CARL1 AND CZEBINIAK, ROMAN2
1Senior Attorney, Environmental Law Institute
2Law Fellow, Environmental Law Institute
1616 P Street, N.W., Suite 200 Washington, D.C. 20036, bruch@eli.org
SUMMARY
This paper examines how recent regional initiatives promoting public access to
information, participation, and justice in environmental matters may strengthen and build
upon experiences in various nations to improve public involvement in environmental com-
pliance and enforcement. The paper describes how increasing citizen participation can
enhance compliance and enforcement, particularly through citizen monitoring and citizen
enforcement. Drawing upon regional environmental governance initiatives, the paper con-
siders how general practices and mechanisms promoted regionally can support the devel-
opment and implementation of specific national tools for citizen participation in
environmental compliance and enforcement. Novel regional and international mechanisms
are also mentioned.
1 INTRODUCTION
Public participation in environmen-
tal compliance and enforcement has
gained significant international momentum
over the past decade. Regional declara-
tions, conventions, and other undertakings
increasingly recognize the critical role that
private individuals and advocacy organiza-
tions can play in helping to ensure that
environmental law is effectively implement-
ed and enforced.(l) Previous international
'conferences on environmental compliance
, and enforcement have acknowledged
this. (2) And increasingly, international insti-
tutions ensure and encourage citizen mon-
itoring and enforcement. (3)
Public involvement enhances envi-
ronmental decision-making processes in
many ways. Most environmental impacts
are local, and residents of an area are often
intimately familiar with their surroundings.
By bringing this particular knowledge to
bear on an issue, public involvement
increases and improves the knowledge
base. Public participation thus strengthens
the legitimacy and quality of the decision
made and decreases the likelihood of
future disputes and enforcement complica-
tions.^)
As an illustration, it is worth con-
sidering two contrasting case studies noted
by the Organization of American States. (5)
A solid waste management project by the
Organization of East Caribbean States in
Grenada generated significant transaction
costs for all parties involved because it only
engaged the public in the later stages of a
proposed project. However, the Jamaican
demonstration site in the Portland Bight
Protected Area incorporated public partici-
pation in the early planning stages, which
helped ensure that a sensible project plan
was developed and publicly accepted.
These two case studies are emblematic of
broader experiences that suggest incorpo-
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
rating public involvement early and
throughout the process - while not entirely
without costs - avoids the need for costly
programmatic modifications and results in
better long-term actions.
While public involvement in the deci-
sion-making process has widespread accep-
tance, environmental compliance and
enforcement has traditionally remained the
discretionary province of law enforcement.
Increasingly, though, it is recognized that
public involvement in compliance and
enforcement mechanisms can supplement
scarce government resources and under-
staffed agencies by monitoring compliance,
identifying potential violators, and filling in
gaps in enforcement efforts. Promoting citi-
zen participation encourages government
enforcement of the laws, particularly in areas
where a government presence is needed,
since agencies will push to handle such mat-
ters in lieu of citizen enforcement. (6)
Citizen enforcement can help to
ensure prosecution of environmental viola-
tors that might be difficult to prosecute due
to their political connections. The public
often is motivated by factors different from
those of government officials and employ-
ees: they may have their livelihood affected,
see first hand the environmental damage,
or have their children or families fall ill as a
result of environmental violations. In such
Instances, citizen enforcement may not be
as susceptible to political pressure, particu-
larly where there is a large group of simi-
larly affected individuals. Finally, citizen
enforcement efforts encourage businesses
to adopt more sustainable practices in an
effort to improve community relations,
improving compliance with environmental
laws and often preempting the need for
enforcement.
A variety of international instru-
ments, dating back to the 1948 Universal
Declaration on Human Rights, has pro-
claimed the rights of people to have access
to information, participation, and justice,
generally as well as in the specific context
of the environment.(7) Principle 10 of the
1992 Rio Declaration on Environment and
Development crystallized the emerging
norms:
Environmental issues are best handled
with the participation of all Concerned cit-
izens, at the relevant level.[At the nation-
al level, each individual shall have
appropriate access to inf9rmation con-
cerning the environment that is held by
public authorities, including information
on hazardous materials and activities in
their communities, and the [opportunity to
participate in decision-making process-
es. States shall facilitate and encourage
public awareness and participation by
making information widely available.
Effective access to judicial and adminis-
trative proceedings, including redress
and remedy, shall be provided.(S)
Since Rio, many regional initiatives
have expanded upon Principle 10.(9) The
different initiatives range from non-binding
to binding, have varying degrees of speci-
ficity, and emphasize different elements.
Yet, to one extent or anojther, they all
advance public access to information, par-
ticipation, and justice. These initiatives
include: j
1.19£)3 North American Agreement on
Environmental Cooperation (NAAEC)
(for Canada, Mexico, and the United
States);(10) '._
2.19£>8 UN/ECE Convention; on Access to
Information, Public Participation in
Decision-making and Access to Justice
in Environmental Matters (Aarhus
Convention) (for the 55 countries in the
ECE region, of which 18 hjave ratified or
acceded to the convention and another
27 and the European Community have
signed it);(11)
3.1998 Memorandum of Understanding
(M0U) for Cooperation on
Environmental Management (for Kenya,
Tanzania, and Uganda);(1$)
4.2000 Inter-American Strategy for the
Promotion of Public Participation in
Decision-Making for [ Sustainable
Deyelopmenr(ISP) (for the 34 Member
States of the Organization^ of American
States);(13)and ;
5. Draft 2002 Asia-Europe Meeting (ASEM)
Elements of Good Practice, Towards
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BRUQH, CZEBINIAK 119
Good Practices for Public Involvement in
Environmental Policies (for 10 Asian
nations, the 15 EU Member States, and
the European Commission).(14)
In practical and declaratory sens-
es, the elaboration of these initiatives reaf-
firms the critical role for private individuals
and advocacy organizations in augmenting
enforcement and compliance efforts.
Citizen monitoring and citizen enforcement
are the cornerstones of effective citizen
participation in environmental compliance
and enforcement, and they rely on assur-
;ances of public access to information, pub-
lic participation, and judicial review.
2 CITIZEN MONITORING
Citizen monitoring entails a range
of activities in which private individuals,
community based organizations, and advo-
cacy groups look out for potential environ-
mental violations and report them. The
violations may be by companies exceeding
emissions limits in their permits, construct-
ing illegal developments, making illicit or
excessive use of resources (such as timber
or minerals), and bypassing specified
requirements in their operations (such as
using pollution control technology in indus-
trial facilities or buffer zones in logging
operations). Citizen monitoring can also
apply to government actions to ensure that
government facilities comply with environ-
mental provisions and that government
agencies duly perform statutorily mandated
duties. Monitoring can also alert the gov-
ernment and the general public to potential
threats to the environment, public health,
and safety.(15) As monitoring can entail
expensive technologies, which is often
beyond the budget of governments in
developing countries, citizen monitoring
can be invaluable in supplementing govern-
ment programs.
Access to information is critical to
monitoring. Members of the public need
information on the status of the environ-
ment, factors affecting it (particularly indus-
trial emissions), environmental laws and
regulations that set forth general require-
ments, and permits that provide site-specif-
ic requirements. Citizens and advocates
need to be able to compare the specific
requirements for a particular facility or
activity with the actual emissions/dis-
charges, harvest, or other performance
measurable. The public also needs access
to assessments, reports, and other docu-
ments that the government may hold that
could indicate whether a specific facility is
in compliance. Where environmental provi-
sions are health-based, access to informa-
tion about public health standards and
status is necessary. Information may be
generated by the government or regulated
entity through self-monitoring and report-
ing. For instance, a facility may be required
to keep daily records of emissions, which
citizens (and government enforcement per-
sonnel) can monitor to determine compli-
ance with environmental laws.
Citizen and government compli-
ance monitoring may be greatly simplified
through a combination of clear standards
and reporting. For example, the only ques-
tion that a court (or administrative agency)
should have to ask is whether a facility's
reports indicate that it exceeded the speci-
fied emission level. The allowable emission
level and the amount actually emitted
should be clear on the face of the report.
Legal regimes based solely on vague
goals, such as a healthy environment, can
be difficult to enforce and can discourage
effective monitoring and enforcement by
citizens and government alike. Citizen mon-
itoring is enhanced when there is a com-
prehensive database within which facilities
(and their emissions) can be compared to
one another and to their permit conditions.
While accessible information is
necessary for the proper functioning of citi-
zen enforcement mechanisms, it can pro-
vide some benefits even in the absence of
such mechanisms. Providing people with
information about potentially harmful prac-
tices and emissions, as well as possible
health and environmental effects, allows
them to pressure local polluters to voluntar-
ily change their practices. They can advo-
cate for substitution of toxic chemicals with
safer alternatives, improved control tech-
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
nologies, and more closed-loop approach-
es that yield less pollution. At the same
time, information about the potential dan-
gers of certain activities and substances
enables citizens to better minimize risks to
their health and the environmental 6) Such
informal, extra-legal advocacy and interac-
tion with pollution sources and other regu-
lated parties can help to improve
compliance with environmental goals and
specific environmental standards, even
when there is no provision for citizen
enforcement.
2.1 Advancements In Regional
Frameworks
Perhaps the strongest feature of
regional environmental governance initia-
tives is their emphasis on national mecha-
nisms that enhance citizen access to such
information. Generally, environmental infor-
mation is broadly defined to include infor-
mation on the status of the environment
(including public health), factors that could
affect it (including proposed projects, poli-
cies, and regulations), and the existing
legal and institutional framework. (17) The
access provisions usually extend to all pub-
lic authorities (not only those with explicitly
environmental functions) at all levels of
governmental 8)
Under the regional initiatives, only
information that is explicitly exempted is not
accessible and there often is a presumption
in favor of access.(19) Exemptions typically
address national defense and security,
commercial business information, personal
privacy, and ongoing law enforcement pro-
ceedings.(20) So as not to have the excep-
tion swallow the rule, these exemptions
should be narrowly interpreted, although
this has yet to be established uniformly.
Information is generally available for view-
ing at no charge, while copies of informa-
tion may carry a "reasonable" fee.(21)
Information must also be provided within a
reasonable timeframe, which is sometimes
specified.(22)
The regional initiatives also set
forth mechanisms that require government
authorities to affirmatively collect and dis-
seminate environmental information. For
example, proposed laws arid regulations,
as well as other specified activities (such as
the release of pollutants), rnust be pub-
lished or otherwise made puplicly available.
Other mechanisms include I "State of the
Environment" reports,(23) environmental
auditing,(24) and eco-labeling.(25)
Resource centers that can make informa-
tion more available to the public are also
promoted. (26). \
All of the regional initiatives require
or promote access to information and pub-
lic participation through environmental
impact assessment (EIA).(2J7) Public par-
ticipation is often mandated to be "early,"
"full," and at "all stages."(28) EIA processes
could also be strengthened through citizen
monitoring and post-project njionitoring.(29)
Citizen monitoring could encourage analy-
sis afciout the accuracy and effectiveness oi
impact predictions and mitigation mea-
sures; as well as ensure that mitigation
conditions are actually carried out. This
would! encourage compliance and reduce
the need for future enforcement actions.
Many regional initiatives encour-
age or require the development of Pollutant
Release and Transfer Registers (PRTRs),
another source of information that supports
citizen monitoring.(SO) PRTRs track the
releasies and transfers of specific, listed
chemicals to specific media (water, air, soil)
by specific facilities. Generally, a private or
public facility that uses or emits more than
threshold levels of these chemicals in a
given year must report its releases of that
chemical. '
; The information generated through
the PITTR process can help in setting envi-
ronmental enforcement priorities. While
many chemicals tracked by the PRTR are
not regulated, the information gathered on
their 'releases may highlight chemicals
which! are being released in; a sufficiently
large volume to warrant additional investi-
gation and action.(31) Since PRTR sys-
tems typically have facility-specific
information, citizens are better able to
determine the sources, types,;and amounts
of pollution to which they are exposed. In
many cases, this knowledge has empow-
ered citizens to apply direct pressure on the
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BRUCH, CZEBINIAK 121
facility to reduce its emissions voluntarily,
particularly when it releases significantly
more than comparable facilities located
elsewhere. (32) Moreover, when compelled
to assess and report the chemicals that
they release to the environment, managers
of industrial facilities are often surprised to
discover the raw materials that they
waste. (33)
In order to ensure public access to
information necessary for effective citizen
monitoring, regional initiatives increasingly
promote or require an independent judicial
review mechanism by which citizens can
bring claims against government authori-
ties for failing to provide information as
required.(34) Monitoring can be a danger-
ous endeavor, as challenging large busi-
nesses or the government can open
advocates up to attacks. Accordingly, pro-
tecting the rights of participation and advo-
cacy are central to effective citizen
monitoring. Additionally, regional institu-
tions such as the North American
Commission for Environmental
Cooperation (established by the NAAEC)
and the East African Court provide region-
al bodies before which citizens and NGOs
can seek to compel or shame governments
into providing the information.
Together, these regional initiatives
in the Americas, Europe, Asia, and East
Africa have laid the groundwork for citizen
monitoring in nations around the world. In
addition to public access to information,
they also set forth provisions for public par-
ticipation and access to justice in a wide
range of decision-making.(35) Access to
justice is discussed in more detail below, in
the context of citizen enforcement. While
'regional instruments rarely explicitly men-
tion public involvement in compliance, citi-
zen monitoring and oversight is usually one
of the key reasons advanced for developing
and implementing good environmental gov-
ernance.(36) The assurances of public
access to information, participation, and
justice have established frameworks
around the world in which citizen monitor-
ing can evolve and flourish. And the specif-
ic mechanisms advanced by the various
regional instruments - EIA, state of the
environment reports, PRTRs, and access
to emission reports and other documents -
provide some of the tools that are used in
citizen monitoring. The following sub-sec-
tion surveys some national experiences in
promoting citizen monitoring, including
some additional mechanisms not specifi-
cally mentioned in regional initiatives.
2.2 National Experiences
A variety of nations have estab-
lished constitutional guarantees of public
access to information, which is critical to
both citizen monitoring and enforcement.
Sometimes, there are specific constitution-
al provisions.(37) In other cases, courts
have implied such guarantees to be inher-
ent in a constitutional right to a healthy
environment or to be part and parcel of a
democratic society.(38)
Usually, statutes and regulations
provide most of the information to which cit-
izen monitors have access. For example, in
the United States, environmental statutes
and the Freedom of Information Act guar-
antee that citizens, environmental NGOs,
businesses, and other members of civil
society have access to permits, ElAs, dis-
charge reports, and other records. (39)
These laws provide for judicial review of
agency or facility decisions not to release
information, with monetary penalties and
injunctive relief available.
In a variety of contexts, citizens
and NGOs generate their own monitoring
information.(40) For instance, the Izaak
Walton League of America and the
Riverkeepers train people to walk along
streams and rivers and look for facilities or
individuals who are illegally discharging or
dumping substances into the water body.
The individual can then notify the appropri-
ate authorities of the conduct. Such infor-
mal and voluntary monitoring efforts can
benefit enforcement efforts without pas-
sage of new legislation or increased gov-
ernment expenditures. Other organizations,
such as the WorldWatch Institute and the
World Resources Institute, produce regular
reports on the state of the global environ-
ment.^!)
Some nations have gone beyond
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
voluntary efforts to promote more formal
mechanisms wherein citizens are "depu-
tized" and assist government monitoring
and enforcement efforts in a more official
manner. For example, in Estonia, citizens
can become "public inspectors," who moni-
tor compliance with the law and write pro-
tocols about environmental violations.(42)
Members of Poland's Nature Protection
Guard may enforce conservation laws
through ticketing violators and imposing
fines.(43) Finally, some nations provide that
citizens can demand and take part in facili-
ty inspections. In Argentina, water quality
legislation allows citizens who have filed a
complaint about a facility to take part in any
facility inspections.(44) Similarly, a county
in New Jersey passed a law that allows res-
idents to enlist environmental health and
safety experts to inspect industrial facilities
through Neighborhood Hazard Prevention
Advisory Committees. (45)
Governmental authorities increas-
ingly call on citizens to report environmen-
tal violations through telephone "hotlines."
These hotlines are often toll-free, so that
there is no charge for people to use them.
These hotlines are usually staffed by gov-
ernment employees who collect the neces-
sary information from the caller — who did
what, when, and how - and then refers the
matter to the appropriate agency or branch
of law enforcement. Hotlines allow people
to report violations easily and quickly, and
they provide a single, clear number for peo-
ple to call when they see a violation - they
do not need to determine which govern-
ment agency to call at which level (munici-
pal, state, or national). For example, in
1999, the U.S. Department of Justice
established a toll-free hotline for the
Chesapeake Bay Environmental
Enforcement Coalition, an organization
composed of local, state, and federal law
enforcement agencies working around the
Chesapeake Bay. And in 2000, the Texas
Natural Resource Conservation
Commission established a toll-free environ-
mental hotline to facilitate citizen reporting
of violations.
Citizen monitoring, and for that
matter government monitoring also, fre-
quently depends on employees or former
emplpyees who have seen violations to
comei forward and "blow the jwhistle" on the
violator. These whistleblowjers are often
privy to actions and documents that might
be unknown to citizens anjd the govern-
ment, and they can be particularly impor-
tant promoting environmental compliance
and ijn facilitating environmental enforce-
ment. This applies as much to ensuring that
government agencies are following the law
as to private corporations. However, even
thoucjh people have a right fo free speech
and public participation, they often risk los-
ing their job, physical harm, |or other retali-
ation for coming forward. Ov6r the past two
decades in the United States, federal and
many! state laws have soubht to protect
whistileblowers from reprisals.(46) The non-
governmental organization Public
Emplpyees for Environmental
Responsibility (PEER) was .established to
provide legal counsel, fi!6 complaints,
investigate government actiqns, and other-
wise assist whistleblowers. '
As mentioned above, one way to
promote citizen monitoring efforts is through
"post-project monitoring" in EIA and permit-
ting processes. Post-project monitoring
enables the public to analyze the accuracy
and effectiveness of the impact predictions
and mitigation measures, as well as ensure
that mitigation conditions are actually car-
ried out.(47) In addition to promoting com-
pliance, post-project monitoring can lead
help future environmental assessments to
avoid prior mistakes. |The Czech
Administrative Code allows f£>r establishing
specific post-project commissions that
ensune that the permit is carried out, so that
under a 1992 agreement in Ostrava, a min-
eral oil reprocessing facility w^s given a per-
mit on the condition that an independent
citizen's commission be able' to control the
implementation of the permitj(48)
3 CITIZEN ENFORCEMENT
• II,',.
Citizen enforcement helps to
ensure that environmental laws are conn-
plied with and enforced. It alsJD protects pro-
cedural rights, such as public access to
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BRUCH, CZEBINIAK
123
information and participation, by enabling
people to ensure that EIA, notice and com-
ment rulemaking, and other environmental
procedures are followed. Access to inde-
pendent and effective judicial institutions is
a key enabling condition for citizen enforce-
ment. Specific regional frameworks have
laid a foundation for citizen enforcement of
environmental laws, and some recent
developments involve encouraging citizens
to participate in enforcement through inter-
national institutions. Mechanisms
advanced by international, regional, and
national experiences include: intervention
in government enforcement efforts (e.g.,
through filing of friend-of-the-court briefs),
review of settlement decrees, administra-
tive review proceedings, judicial review of
agency actions, and citizen suits to directly
enforce environmental laws.
3.1 Advances in Regional Frameworks
and International Institutions
Access to justice is one of the core
themes of the regional environmental gov-
ernance initiatives. While the norms are still
emerging (access to justice is frequently the
least developed of the three themes), citi-
zens can help to enforce substantive envi-
ronmental law as well as procedural
requirements. Accordingly, individuals and
organizations have access to courts and
administrative agencies to ensure that they
have access to information and that govern-
ment authorities follow public participation
requirements.(49) If, for example, an agen-
cy's EIA is inadequate - or if it fails to con-
duct one at all - citizens and organizations
may sue to compel the agency to conduct
;an adequate EIA.
Most of the regional initiatives pro-
vide that citizens and public interest organi-
zations should have a right to go to court
when a public or private person or entity
has violated an environmental law.(50)
There frequently are requirements, called
standing, that the person be affected in
;some direct way. In some circumstances,
citizen enforcement of environmental law is
promoted across national borders.(51)
The regional initiatives recognize
that an independent and properly function-
ing judiciary is central to effective citizen
enforcement. All of the initiatives require
that judicial and administrative review pro-
cedures be fair, open, and equitable.(52)
Access should also be affordable, without
exorbitant court fees which could prevent
justice for affected poor people and com-
munities.(53) Finally, access to justice
should be non-discriminatory, without
regard to a person's race, gender, ethnicity,
language, or citizenship. (54) Court deci-
sions should be in writing and publicly
accessible. (55)
The NAAEC established a regional
body - the North American Commission for
Environmental Cooperation (CEC) -
through which citizens and organizations
can submit a complaint asserting that a
party to the NAAEC is not enforcing its
environmental laws.(56) Once the com-
plaint is filed with the CEC Secretariat, the
Secretariat must determine whether the
submission includes sufficient supporting
information, whether the party had written
to the Party complaining of the act or omis-
sion, and whether the complaint is "aimed
at promoting enforcement rather than at
harassing industry."(57) If the Secretariat
determines that the submission merits a
response, it forwards the submission to the
Party, which must respond in a timely man-
ner.(58) After considering the submission
and the response, the Secretariat deter-
mines whether to dismiss the action or
develop a "factual record."(59) Once the
factual record is completed, the Secretariat
submits it to the Council, incorporates any
comments that the Parties may have, and
produces the final factual record. This final
record is made public if two-thirds of the
Council decides that it should be publicly
available.(60) Of the thirty-three submis-
sions to date, three have led to factual
records (eleven files are still active).(61)
The East African Court, estab-
lished by the East African Treaty, has origi-
nal jurisdiction to hear disputes arising from
matters in the Treaty. As the East African
Memorandum of Understanding (MOD)
was appended to the Treaty, the environ-
mental and procedural provisions of the
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL C.OMPLIANCE AND ENFORCEMENT
MOD mean that the East African Court pro-
vides another avenue for citizen enforce-
ment of environmental law. While the rules
and procedures are still being drafted, it is
anticipated that the Court will entertain
petitions from citizens, NGOs, and other
non-state actors. (62)
Over the last decade, international
tribunals have allowed citizens and NGOs
to file complaints, submit friend-of-the-court
(or amicus curiae) briefs, or otherwise par-
ticipate in environmental enforcement.
These bodies include the Inter-American
Court on Human Rights, the International
Court of Justice, the World Trade
Organization Dispute Settlement Body, and
the World Bank.
The regional initiatives have start-
ed to provide a framework for promoting
and reinforcing citizen enforcement at the
national level. Experiences in international
and regional institutions have also support-
ed the development of citizen enforcement
of environmental and procedural laws.
3.2 National Experiences
At the national level, many consti-
tutions and statutes guarantee that citizens
and organizations have access to courts to
protect their rights (both rights to a healthy
environment and procedural rights), and
sue for environmental violations.(63) In
common law countries, citizen enforcement
may assert traditional theories such as nui-
sance, trespass, or tort. (64) Citizens and
organizations may be granted the power to
challenge those agency actions that
adversely affect them, or that could do so in
the foreseeable future.(65) In the United
States, citizen suit provisions in environ-
mental statutes usually allow citizens and
other non-governmental actors to sue per-
mit holders (both private entities and gov-
ernment authorities) for violating the terms
of their permit or to sue the federal govern-
ment for failing to perform non-discre-
tionary duties mandated by the statute.(66)
Some cases brought around the
world involve citizen enforcement of consti-
tutional rights and statutory provisions,
including a constitutional right to a healthy
environment.(67) Suits brought by citizens
may originate in the local trial court level, as
in many nations, or in a nation's Supreme
Court, as in India. Citizen enforcement may
be based on individual righjs or collective
or popular rights, and standing to sue has
even been granted to children and future
generations. ;
; Since citizen enforcement is often
viewed as complementing government
enforcement efforts, statutes granting citi-
zens, and NGOs the power to sue often
require that the plaintiff provide notice to
the government and the defendant before a
suit is filed. This allows the [government to
decide whether it should prosecute the
casei i | •
' In addition to citizeji enforcement
through judicial review mechanisms, other
public compliant and filing mechanisms
promote compliance and enforcement of
envirpnmental laws through regulatory pro-,
cesses. These mechanisms; allow citizens
to promote effective implementation by
compelling the government Jo comply with
the mandates of the statute. For example,
under the U.S. Toxic Substances Control
Act (TSCA), citizens can petition EPA to
issue! a rule to regulate specific chemi-
cals. (68) Within 90 days, EPA must either
grant or deny the petition, ^nd petitioners
dissatisfied with the agenCy action may
seek judicial review. In addition, under the
U.S. Endangered Species Act, a citizen
may petition the government to add a
species to the endangered list, and the
agency must do so (or refuse to, whereby
citizens may seek review) within 90
days,(69) In both of these Instances, citi-
zens can improve compliance with the
goals and terms of envirohrpental statutes
by compelling government agencies to con-
sider application of statutes to particular
circumstances. '
i
4 CONCLUSION |
i
While citizen monitoring arid
enforcement have been available in certain
countries for decades, the past ten to fif-
teen years have seen the niovement take
off worldwide. The 1992 UN Conference on
Envirpnment and Development (or Earth
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BRUCH, CZEBINIAK 125
Summit) in Rio was a watershed. Principle
10 of the Rio Declaration and Agenda 21
firmly established a central role for public
access to information, participation, and
justice in environmental matters. A series of
regional initiatives in the Americas, Europe,
the Newly Independent States of the
Former Soviet Union, East Africa, and Asia
have elaborated on this mandate.
Drawing upon these experiences
with processes in different nations, citizens
and governments have developed and
adapted various mechanisms for promoting
citizen monitoring and enforcement.
Increased public access to information
about the state of the environment, factors
that could affect it, and government-lead
environmental protection efforts, have
become key components of citizen monitor-
ing of private sector facilities and of gov-
ernment performance. Citizen involvement
in facility inspections, availability of hotlines
to report violations, and whistleblower pro-
tections also ensures citizens have a voice.
Efforts by citizen groups and non-govern-
mental organizations have also been
encouraged by innovative monitoring
approaches that are largely independent of
government action or enabling conditions.
Citizen enforcement has also expanded in
the past decade through citizen suit provi-
sions and constitutional revisions, and ulti-
mately through actual cases.
While there is much reason for opti-
mism, it may be worth paying particular
attention to strengthening citizen monitoring
and enforcement — and public access to
information, participation, and justice more
generally - in countries that are not already
actively participating in a regional initiative to,
promote environmental governance. There
will be different approaches among these
countries, just as there are differences
among existing regional approaches. Still,
experiences in other countries and regions
may assist countries in developing opportu-
nities for citizen monitoring and enforcement
that have been shown in other contexts to
pay dividends measured in terms of
improved public and environmental health.
REFERENCES
1. See generally Carl E. Bruch & Roman
Czebiniak, Globalizing Environmental
Governance: Making the Leap from
Regional Initiatives on Transparency,
Participation, and Accountability in
Environmental Matters, 32 E.L.R. -
(2002).
2. E.g., Workshop Report, Public
Involvement in Enforcement in 1
Proceedings (Fourth International
Conference on Environmental
Compliance and Enforcement) (Apr.
1996) at 511; see also Susan Casey-
Lefkowitz, A Comparative Look at the
Role of Citizens in Environmental
Enforcement, Nat'l Envtl. Enforcement
J. 29, 29 (June 1997).
3. See, e.g., Carl Bruch, Charting New
Waters: Public Involvement in
International Watercourses, 31 E.L.R.
11389(2001).
4. See Casey-Lefkowitz, supra note 2, at
29.
5. Organization of American States, Inter-
American Strategy for the Promotion of
Public Participation in Decision-Making
for Sustainable Development, at 19-20
(2000); cf Bruch, supra note 3, at
11390 (mentioning other examples).
6. See Casey-Lefkowitz, supra note 2, at
32 (arguing that the "natural tension"
between citizen suits and government
enforcement efforts can lead to a better
overall enforcement effort); see gener-
ally The Role of the Citizen in
Environmental Enforcement,
Environmental Law Institute (Working
Paper, Aug. 1992).
7. Bruch & Czebiniak, supra note 1.
8. Rio Declaration on Environment and
Development, done at Rio de Janeiro
on June 14, 1992, art. 10, reprinted in
31 I.LM. 874(1992).
9. See Bruch & Czebiniak, supra note 1.
10. North American Agreement on
Environmental Cooperation (NAAEC),
Sept. 8-14, 1993 (entered into force
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126
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Jan. 1, 1994), U.S.-Can.-Mex., at art.
1(9). (h), reprinted at 32 I.L.M. 1480
[hereinafter NAAEC].
11. UN/ECE Convention on Access to
Information, Public Participation in
Decision-making and Access to Justice
in Environmental Matters, adopted at
Aarhus, Denmark on June 25, 1998,
entered into force Oct. 30, 2001,
ECE/CEP/43 [hereinafter Aarhus
Convention]. Under Article 19.3, any
country that is a member of the United
Nations can accede to the Convention.
12. Memorandum of Understanding
between the Republic of Kenya and the
United Republic of Tanzania and the
Republic of Uganda for Cooperation on
Environmental Management, done at
Nairobi, Oct. 22, 1998 [hereinafter East
African MOU].
13. Organization of American States Inter-
American Council for Integral
Development (OAS CIDI), Inter-
American Strategy for the Promotion of
Public Participation in Decision Making
for Sustainable Development,
CIDI/RES. 98 (V-O/00), OEA/Ser.W/ll.5,
CIDI/doc.25/00 (20 April 2000), adopt-
ing Organization of American States,
Unit for Sustainable Development and
Environment, Inter-American Strategy
for the Promotion of Public Participation
in Decision-Making for Sustainable
Development, December 1999 [here-
inafter ISP].
14. Towards Good Practices for Public
Involvement in Environmental Policies
(Draft June 28, 2001), Produced by
AEETC for the Consideration of the
Environment Minister's Meeting, avail-
able at http://www.vyh.fi/eng/intcoop/
regional/asian/asem/junedraftl.RTF
and http://www.aeetc.org [hereinafter
ASEM Elements]. See generally ASEM
Official Home Page http://
asem.inter.net.th/; Asian Cooperation:
The ASEM Process http://www.vyh.fi/
eng/intcoop/regional/asian/asem/asia.h
tm (visited Jan. 25, 2002); "What is
ASEM?", http://asem2.fco.gov.uk/
whatisasem/ (visited Jan. 25, 2002).
15. Oasey-Lefkowitz, supra note 2, at 35.
16. Wesley A. Magat & W Kip Viscusi,
Informational Approaches to Regulation,
ill Foundations of Environmental Law
and Policy, 149,150 (Richard L. Revesz,
ed., 1997).
17. E.g., Aarhus Convention' art. 2.3; Draft
ASEM Elements, app. 1;see generally
Stephen Stec & Susan Casey-
L^efkowitz, The Aarhus Convention: An
Implementation Guide (Regional
Einvironment Center, 20pO), at 17-20,
available at http://www.unece.org/
env/pp/acig.htm. !
18. Aarhus Convention, arjt. 2(2); Draft
ASEM Elements, art. 2. |
19. Aarhus Convention, art. 4.4.
20. See, e.g., Aarhus Convention, arts. 4.3,
4i4; Draft ASEM Elements, art. 6;
NAAEC, arts. 39.1,42. j
21. E.g., Aarhus Convention,' arts. 4.4, 4,8;
Draft ASEM Elements, arts. 1, 8.
22. See Aarhus Convention,1 art. 4.2; ("as
sipon as possible"; and within 1 month
unless 2 month extension justified);
D,raft ASEM Elements, art. 7 ("within
specified time limits"); I$P, Proposed
Action 1.1.2, Policy Recommendation 2
("timely access"). j
23. Aarhus Convention, art. 5.4 (State of
the Environment report^ required at
least once every 4 years); Draft ASEM
Elements, arts. 4, 9 ("regular" SOE
report or PRTR system required);
NAAEC, arts. 2.1 (a), ^2.2(d), 12.3
("jperiodically"). These reports can help
citizens and NGOs to focus their ener-
gies on the areas in rpost need of
assistance, which are often those lack-
ing consistent enforcement.
24. See Aarhus Convention, lart. 5.6; Draft
ASEM Elements, art. 14; NAAEC, art.
5.1 (f). See generally Gre^eno, J. Ladd,
et( al., Environmental Auditing:
Fundamentals and Techniques, Arthur
D, Little, 1987. 2nd ed.; Brian Cleaver,
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BRUCH, CZEBINIAK 127
Environmental Compliance Auditing,
Cheltenham, Glos., U.K.: S. Thornes,
1995; The International Organization of
Supreme Audit Institutions (SAI's) in
member countries of the United
Nations (founded in 1953 and consists
of over 170 SAIs), at http://www.envi-
ronmental-auditing.org/. Auditing
requires facilities to analyze their envi-
ronmental effects, and can lead to
decreases in emissions when facilities
discover where substances are being
wasted (and thus released). However,
audit information is often for internal
use only, and there is no mandate for'
facilities to disclose the results of such
audits to the public.
25. Aarhus Convention, art. 5.8; Draft
ASEM Elements, art. 14. See generally
Grodsky, "Certified Green: The Law and
Future of Environmental Labelling," 10
Yale Law Journal on Regulation 147
(1993); Borkey P., Glachant M.,
Leveque R, 1999, "Voluntary
Approaches in Environmental Policy,"
Study prepared for the OECD, CERNA,
Ecole Nationale Superieure des Mines
de Paris, available at http://biodiversi-
tyeconomics.org/pdf/topics-108-00.pdf.
26. East African MOU, art. 16(2)(b)
(resource centers on environmental
information, EIA, and other aspects of
environmental law and management).
27. Aarhus, art. 6.6(b); ISP, art. 6.3.2, 2.1.2;
ASEM, art. 23; MOU, art. 7.1 (b);
NAAEC, art. 2.1 (e), 10.7(a); Casey-
Lefkowitz, supra note 1, at 36.
28. Aarhus Convention, art. 6.4 (early);
Draft ASEM Elements, art. 23 (early);
ISP, Specific Objective b (full); East
African MOU, arts. 14.1,14.2, 7.1 (b) (at
all stages).
29. See, e.g., Casey-Lefkowitz, supra note
2, at 36.
30. Aarhus Convention, art. 5(9); Draft
ASEM Elements, arts. 4, 9; NAAEC,
art. 5.1 (g). A PRTR Protocol to the
Aarhus Convention is currently being
negotiated and is expected to be
signed in 2003. See generally "Aarhus
PRTR Task Force," available at
http://www.ecn.cz/prtr-tf/ (visited Jan.
25, 2002). For more information on
PRTR, see Global Chemical Right-to-
Know Resources, available at
http://www/mapcruzin.com/glob-
alchem.htm (with links to right-to-know
initiatives around the world); OECD
PRTR Documents, at http://
www.oecd.org/ehs/ehsmono/tPRTRS
(with documents in English, Russian,
and French); UNEP web page on
PRTR, at http://irptc.unep.ch/prtr/;
North American Commission for
Environmental Cooperation, Taking
Stock: North American Pollutant
Releases and Transfers 1998
(Commission for Environmental
Cooperation, 2001).
31. See Robert V. Percival et al.,
.Environmental Regulation: Law,
Science, and Policy 626-27 (1992)
(providing examples of how the U.S.
Congress and Environmental
Protection Agency used US Toxics
Release Inventory information in shap-
ing environmental law and policy).
32. See id., at 624-26.
33. See id.
34. Aarhus Convention, art. 9.1; Draft
ASEM Elements, art. 28.
35. See Bruch & Czebiniak, supra note 1.
36. See, e.g., Stec & Casey-Lefkowitz.
37. See Carl Bruch et al., Constitutional
Environmental Law: Giving Force to
Fundamental Principles in Africa, 26
Colum. J. Envtl. L. 131, 179-83 (2001).
38. Id., at 180-82 (discussing Indian and
Peruvian cases).
39. See, e.g., Role of the Citizen, supra note
6, at 7; see also UNEP, Environmental
Impact Assessment Sourcebook, 1996
(with guidelines and references from
Africa, the Americas, Asia, Europe,
Oceana, and international).
40. See Role of the Citizen, supra note 6,
at 5-7.
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
41. See, e.g., Christopher Flavin et al.,
State of the World 2002 (2002).
42. Casey-Lefkowitz, supra note 2, at 36,
citing Regional Environmental Center for
Central Eastern Europe, Status of Pubic
Participation Practices in Environmental
Decisionmaking in Central and Eastern
Europe, Sep. 1995.
43. Id.
44. Id., at 37, citing Ley 13.577 Creadon
de Obras Sanitarias de la Nacion, art.
31 and 32; Decreto 674/89 Regimen
contra la Contaminacion de Rios Bs.
As. 24/V/89.
45. See Local Law Will Allow Facility
Inspections by New Jersey
Communities, Groups Say, (BNA) Daily
Environment Report, Sept. 16,1998, at
A-5.
46. See Thomas M. Devine, The
Whistleblower Protection Act of 1989:
Foundation for the Modern Law of
Employment Dissent, 51 Admin. L. Rev.
531 (1999); Robert G. Vaughn, State
Whistleblower Statutes and the Future
of Whistleblower Protection, 51 Admin.
L. Rev. 581 (1999).
47. Casey-Lefkowitz, supra note 2, at 36.
48. Id., citing Regional Environmental
Center for Central Eastern Europe,
Status of Pubic Participation Practices
in Environmental Decisionmaking in
Central and Eastern Europe, Sep.
1995.
49. Draft ASEM Elements, art. 28; Aarhus
Convention, arts. 9.1, 9.2. See J.
Wates, "Introducing the Arhus
Convention: A New International Law
on Citizens' Environmental Rights,"
Background Paper distributed at the
Pan-European ECO Forum Conference
on Public Participation, Chisinau,
Moldova, 16-18 April 1999, at 5 (noting
that the option of a legally empowered
authority was "included to accommo-
date those countries which have a well-
functioning office of Ombudsperson.").
50. Aarhus Convention, art. 9^3; ISP, Policy
Recommendation 2, Proposed Action
2.1.3; East African MOD,:arts. 16.2(d),
16.3; NAAEC, arts. 6.1, 6^2.
51. E.g., East African MOU, jarts. 16.2(d),
16.3. ]
52. Aarhus Convention, art. 9.4; ISP,
Proposed Action 2.1.3; ; Draft ASEM
Elements, art. 29; East African MOU,
art 15.2(d); NAAEC, arts. 7.1, 7.2,7.4.
53. See, e.g., Aarhus Convention, art. 9.4
("not prohibitively expensive"); Draft
ASEM Elements, art. 29; ("equitable");
NAAEC, art. 7.1 (no "unreasonable
charges"). '
54. Aarhus Convention, art. 3,9; ISP, Policy
Recommendation 1; Draft ASEM
Elements, art. 9; East African MOU, art.
16;2(d); NAAEC, arts. 7.1 j 7.2.
i i
55. See, e.g., Aarhus Convention, arts. 9.4,
9.5. j
56. NAAEC, arts. 14, 15. |
57. Id., arts. 14(1)(c), (d). !
58. ld.| art. 14(3). |
59. Id., art. 15(1). i
60. Id., art. 15(7). \
61. See www.cec.org/citizen/status/
index.cfm?varlan=english i (last visited
Feb. 23, 2002). '
62. E-nnail correspondence from Kenneth
Kakuru, Greenwatch (Uganda) to
Roman Czebiniak, ELI, Feb. 18, 2002.
63. See, e.g., Bruch et al., supra note 37,
at 188-201.
64. Percival et al., supra note 31, at 73-102.
65. See, e.g., U.S. Clean Air Act, 42 U.S.C.
§ 7607; U.S. Resource Conservation
and Recovery Act, 42 U.S.C. § 6976;
U.S5. Toxic Substances Cqntrol Act, 15
U.S.C. § 2618; U.S. Administrative
Procedure Act 5 U.S.C. § 701-706.
' I
66. See e.g., U.S. statutes including: Clean
Air Act (CAA), 42 U.S.C. §! 7604; Clean
Water Act (CWA), 33 U.$.C. § 1365;
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BRUCH, CZEBINIAK 129
, Endangered Species Act (ESA), 16
U.S.C. § 1540(g); Resource
Conservation and Recovery Act
(RCRA) 42 U.S.C § 6972; Toxic
Substances Control
U.S.C. § 2619;
Environmental . ,
Compensation, and Liability Act (CER-
CLA), 42 U.S.C. § 9658.
67. For a review of many of these cases,
see Bruch et al., supra note 37, at 188-
201. i .
Act (TSCA), 15
Comprehensive
Response,
68. U.S. Toxic Substances Control Act
(TSCA), 15 U.S.C. §2620.
69. U.S. Endangered Species Act, 16
U.S.C. 1533(4)(b)(3).
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130 SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
; '" ., ' ; I
ENVI
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DARBINYAN, ASHIKYAN 131
THE ROLE OF ENVIRONMENTAL ENFORCEMENT IN THE REPUBLIC
OF ARMENIA - STEPS TOWARD SUSTAINABLE DEVELOPMENT
DARBINYAN, NUNE1 AND ASHIKYAN, HRACH2
1 President, NGO EcoGlobe,
2 Executive Director, NGO EcoGlobe,
Mkhithar-Heratsi-Street-18/3, 375025 Yerevan, Republic of Armenia,
nuneemil@yahoo.com
SUMMARY
Since it gained independence in 1991, Armenia has moved to create a new sys-
tem of environmental protection, updating and developing environmental legislation, imple-
menting corresponding policies, and integrating them into international environmental
processes. The elevated status of "Ministry" has been granted to the predecessor body in
charge of protecting the environment - State Committee of Nature Protection. In addition,
Armenia has become more involved in regional and global environmental movements and
has ratified a number of significant conventions and agreements.
Although comprehensive environmental legislation has been developed and adopt-
ed, the main principle for obligatory protection of the environment is stated in the
Constitution of the Republic itself. In addition, a distinctive body of law on conservation of
nature and environmental protection, which makes use of the full range of legal instru-
ments, has been created. Nevertheless, some gaps and weaknesses in the environmental
legal system, such as the fragmented nature of environmental regulations and a lack of
revised norms and modern standards, remain.
The lack of an umbrella law on environmental management also causes certain dif-
ficulties in the enforcement of the large number of laws that, partly or wholly, deal with envi-
ronmental management. An umbrella law would be the place to define the applicable
management instruments as a background to the determination of emission limits, mitiga-
tion measures, compliance programs and monitoring plans. (1) The environmental manage-
ment authorities of regions and municipalities, and their relations with the national authorities
are also underdeveloped. The general legal framework for public access to environmental
information and to justice, as well as public participation in environmental decision-making,
also needs to be developed in the light of current requirements of the society.
According to the Armenian Constitution, as well as the Principles of Legislation on
Nature Protection, Armenia's international obligations become national law once they are
ratified. Because the mechanisms for transforming internationally binding instruments into
the national practice are developing slowly, international environmental conventions of
global and regional significance should be incorporated into the national legislation
Special attention needs to be drawn to the problem of past environmental damage
when deciding how to enforce environmental legislation in new economic conditions to
avoid serious difficulties during the privatization process involving industries with environ-
mental pollution "history". The development of legal prescriptions on liability for environ-
mental damage is necessary and could play a significant role in the further privatization
process, particularly if the participation of foreign investors is to be encouraged.
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE
AM!
ID ENFORCEMENT
I
Finally, public participation in the decision making and enforcement processes
should be strengthened in order to achieve greater transparency concerning environmen-
tal decisions, create confidence in the official authorities, and assist routine enforcement
activities and contribute to the general process of democratization.
1 REPUBLIC OF ARMENIA - MAIN
STEPS TOWARDS SUSTAINABLE
DEVELOPMENT
1.1 Independence And Integration
Into The International Processes
The Republic of Armenia, which is
enjoying real independence for only the
second time in its history, is poised to take
advantage of this opportunity to become
integrated with the world community. The
historical value its new independence gives
the country provides a unique opportunity
for Armenia to pursue economic develop-
ment while making its own choices of ways
to integrate.
Democratic changes that came
swiftly to the country were accompanied by
active movements of ecological and public
forces, in particular "Greens, which pres-
sured some industries, for example Nuclear
Power Station, to cease operations. The
Republic's first official step towards accep-
tance of the ideas of sustainable develop-
ment was its participation at Rio World
Summit in 1992, where Armenia's
President headed the Republic's official
delegation.
As a result of this participation,
Armenia has joined all the Rio decisions,
the Rio Declaration and signed internation-
al agreements of global significance,
including the UN Framework Convention on
Climate Change (UN FCC) and Convention
on Biodiversity (UN CBD). Thus, Armenia
at the very initial stages of its indepen-
dence, and at the highest political levels,
has expressed its support for the Rio ide-
als. This commitment was particularly valu-
able because the environmental
component of Armenian law - in the
Constitution of the Republic of Armenia -
was not declared until 1995.
The institutional and legislative
basis for nature conservation and environ-
mental protection started with the estab-
lishment of the Ministr^ of Nature
Protection and the adoption by the national
government of the "Main (Principles of
Nature Protection", or so palled "Greesn
Constitution" in 1991. Despite sharing all of
the common features of a transition econo-
my, like frequent changes of environmental
administration, instability of policies, strate-
gies, trends of "brain-drain" and "loss of
institutional memory", etc., Armenia has
continuously been connected with interna-
tional environmental processes. As a result
of its familiarization with the trends of world
development and global Environmental
challenges, Armenia has i continuously
worked to develop its environmental poli-
cies and legislation. ;
In reality, the recovery of industry,
level of economic growth, ar)d adoption of
relevsint strategies and targets in Armenia
have been slower than other reforms
towards democratization that have been
undertaken there. For example, Armenia is
the fii'st country in formerly Soviet territory
to initiate reforms in the agricultural sector,
particularly land privatization [reform, which
was instituted in 1991. Considering all the
progress Armenia has made, it is necessaiy
to mention that the concept of sustainable
development, National Agenda 21 and rete-
vant activities based on Rio decisions have
not y$t been implemented by the Armenian
Government. Although non-governmental
movements have drawn the attention of par-
liamentarians and governmental officials to
these issues, it is expected that under the
pressure of NGO community and by the ini-
tiative of informed forces in the administra-
tion, Ihese 10 year-old ideas have a good
chancie to become reality, jespecially as
Armehia prepares for the Johannesburg
World, Summit later this year. I
1.2 i Environmental Legislation And
Its Enforcement |
1.2.1 Legislative And Policy
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DARBINYAN, ASHIKYAN
133
Arrangements
The existing legal framework regu-
lating the use of natural resources and pro-
tection of the environment includes a large
variety of legally binding documents, classi-
fied in the following groups:
1. International Environmental conventions
2. Environmental legislative acts (laws,
codes, government resolutions equivalent
to laws, National Assembly resolutions)
3. Environmental and environment-related
regulations (government resolutions,
Prime Minister's resolutions)
A. Environment-related provisions of other
legislative acts.
Between 1993 and 2001 Armenia
has ratified more than ten environmental
conventions of global and regional signifi-
cance. Based on the request of the
Armenian Government, consultations in
preparation for a new and legally binding
international instrument for protecting
unique Caucasian mountain ecosystems
have begun.
The most important legislative acts
are listed below:
. 1. Principles of Legislation on Nature
Protection (1991)
2. Law on Specially Protected Areas
(1991)
3. Land Code (1991)
4. Water Code (1991)
. 5. Underground Resources Code (1992)
6. Law on Atmospheric Air Protection
(1994)
7. Forest Code (1994)
8. Law on Environmental Impact Expertise
(1995)
9. Law on Environmental Protection and
Natural Resource Use Payments (1998,
revised in 2001)
10. Law on Flora (1999)
11. Law on Fauna (2000)
12. Law on Lake Sevan (2001).
All of the main principles recognized as
necessary for viable environmental protec-
tion are declared in this legislation. Some of
the legislative acts are under development
or are being negotiated with stakeholders
in accordance with the requirements of
national legislation. The mechanism for
implementing environmental legislation is
based on regulations, permits, licenses,
emission limit values and limits on the use
of natural resources.
Since 1998 some poljcy and oper-
ational documents have been also pre-
pared. The Lake Sevan National Action
Program, National Environmental Action
Program, National Environmental Health
Program, and Strategy on Biodiversity are
among them. The National Program to
Combat Desertification is also going to be
adopted.
The Republic of Armenia is facing
many environmental problems and, in the
opinion of experts who have developed the
National Environmental Action Programme
(NEAP), there are problems categorized as
pollution of air, water, soils and rapid degra-
dation and depletion of natural resources,
including forests, water, fish, biodiversity
and mineral resources. (2)
Because, of these environmental
pressures, the government of the Republic
of Armenia has to resolve two major prob-
lems: how to decrease pollution and opti-
mise the use of natural resources in time
and in order to achieve a healthy environ-
ment, a sustainable economy, without any
loss in terms of economic efficiency. To
achieve these goals, it will be necessary to
adopt appropriate regulatory and economic
instruments, expand the existing institution-
al capacities to regulate, monitor and
implement the environmental policy and
standards, and make required investments
in the environment.
The National Environmental Action
Programme estimates the cost of priority
environmental investments in the Republic
of Armenia to be about 50 million U.S. dol-
lars. (2) The activities required to support
the Lake Sevan Protection Program are
alone estimated to cost about 30 million
U.S. dollars (3). It is obvious that without
immediate investments to protect the envi-
ronment, degradation will continue and
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE At\D ENFORCEMENT
could reach a critical level quickly.
Financing the environmental activities is, of
course, a priority task for the Republic of
Armenia because it costs less to invest in
pollution prevention than it costs to elimi-
nate pollution that has already taken place.
Unfortunately, although the Law on
Environmental Protection and Natural
Resource Use Payments stipulates that
these payments provide funds for carrying
out environmental protection activities,
today, owing to a difficult economic situa-
tion in the country and the limited state
budget capacity, these payments are more
likely to be regarded as an additional
source of budget replenishment rather than
a means to accumulate resources for car-
rying out environmental activities. (4)
Environmental protection financing
urgently calls for establishing a national
environmental fund, yet nothing shows that
the situation is being changed for the bet-
ter. Over the past 3 years the attempts by
the Ministry of Nature Protection of the
Republic of Armenia to establish environ-
mental funds have failed, largely because
of the Ministry of Finance has taken a neg-
ative stance on the issue under discussion
at the governmental level. True though,
some progress is expected because
Armenia is involved with in internationally
supported EU TACIS Interstate project
"Support to the implementation of environ-
mental policies and National Environmental
Action Plans in NIS".This project, however,
is designed primarily to provide technical
assistance for determining the best vehi-
cles and financial mechanisms for making
environmental investments, as well as to
establish a continuous dialogue between
Ministries of Nature Protection, Finance
and Economy.
According to the recommendations
of the Environmental Performance Review
for Armenia, developed by the international
experts from UN Economic Commission of
Europe (UNECE), the drafting of new
Umbrella Environmental Protection Law has
to be a priority for Armenia. Existing codes
for the protection of air, water or land could
be integrated progressively, i.e. the umbrel-
la law could be developed and enter into
force chapter by chapter, rather than in one
piece, in accordance with [environmental
and financial priorities. It shojjld specify the
subjects of environmental protection, the
mandates for environmental' management
at different levels of public 'administration
and the management instruments to be uti-
lized. In spite of the fact that the EPR for
Armenia is an internationally;and nationally
recognized document, either the Ministry of
Nature Protection or other responsible gov-
ernmental authorities are not implementing
the recommendations in practice.
1.2.2. Institutional Arrangements
Since Armenia gained indepen-
dence and has become mqre involved in
the international environmental process, its
institutional system has developed signifi-
cantly, with the aim of promoting effective
enforcement of environmental legislation in
new economic conditions associated with
movement towards a market ieconomy. This
system involves several authorities in
chargie of particular policies, legal and reg-
ulatory frameworks, permitting, use and
management of resources,, protection of
environment, environmental; (comprehen-
sive) monitoring, control over the enforce-
ment of environmental violations, collection
of environmental payments, etc.
The lead institutions in charge for
environment and relevant 'fields in the
Republic of Armenia are:
Ministry of Nature Protection with
appropriate units and agencies:
1. State Environmental Inspection (control
over the actual volumes of environmen-
tal pollution and natural resources man-
agement) |
2. Environmental Monitoring Centre (moni-
toring the state of environrnental media
- surface waters, air)
3. Hydro-meteorological Department (in
charge of water quantity n)onitoring)
4. Geological Department (monitoring of
underground water resources)
5. State Environmental Expertise JSC
(expertise on potential negative impacts
to the environment of planned activities
-------
DARBINYAN, ASHIKVAN 135
at project stage)
6. Ministry of Nature Protection itself,
which is in charge of the development
of environmental policies, drafting of
environmental legislation, development
of economic environmental instruments
(mechanisms), and permitting.
Ministry of Finance and Economy,
which determines priority activities and the
country's development program, the envi-
ronmental policy in particular, fixes tariffs
and payment rates, collects payments into
the budget and distributes them.
Ministry of Health, which is in charge
of sanitary-epidemiological control, environ-
mentally health-related aspects, promoting
environmental considerations in health
issues, development of appropriate policies,
such as National Environmental Health
Action Plan, and appropriate monitoring.
Ministry of State Revenues, which
collects all taxes, including environmental
payments.
2 ENFORCEMENT PROBLEMS
2.1. Enforcement Of Legislation
Enforcement of environmental leg-
islation is currently primarily based on con-
trol and inspection instruments. The State
Environment Inspectorate and the regional
inspectorates appear isolated in their con-
trol activities. No effectively regulated links
exist with other functional departments of
the Central Administration of the Ministry of
Nature Protection, or with other bodies,
such as the Environmental Expertise JSC,
or the Environmental Monitoring Centre.
The regulated cooperation between
Inspectorate and Environmental Expertise
could be especially useful by contributing to
the availability of information on the volume
and character of planned activities and
helping to analyze potential violations of
environmental legislation.
Broader involvement of the inspec-
tors at both national and regional levels is
needed to foster development of policies
and application of management activities
by the Ministry of Nature Protection. Such
involvement would make national and sec-
toral environmental development goals
more consistent. At the same time, law
enforcement would also benefit from new
complementary control and inspection
practices, which would have the immediate
effect of increasing intersectoral collabora-
tion on environmental issues. To this end,
the principles of 'integrated management'
should be incorporated into the sector-spe-
cific laws and regulations.
At present, the weak enforcement
of environmental legislation is most strong-
ly related to the limits of human capacities.
The lack of knowledge, absence of on-the-
job-training, little familiarity with the policies
and management tools developed at the
national level, as well as obsolete or nonex-
istent equipment best characterize the pre-
sent environmental inspectorate. The full
range of enforcement will only be possible
by pursuing a complex formula of
approaches designed to strengthen the
capacities of the national and regional envi-
ronmental inspectorates in Armenia. The
following actions can improve this situation:
1. On-the-job-training of inspectors at the
central and regional level on environ-
mental policies, their application, modern
permitting systems, etc.
2. Competitive employment, aimed at
selecting highly experienced specialists.
3. Revision of inter-linkages with other rele-
vant institutions, improved interactions
and coordination of responsibilities with
all relevant institutions: covering policy
development, permitting departments of
the Ministry of Nature Protection,
Monitoring Centre, Information-Analitical
Centre, State Environmental Expertise
JSC of the Ministry of Nature Protection,
Ministry of State Revenues, Ministry of
Finance and Economy, etc.
4. Revision of package of legal and regula-
tive documents, relevant to the environ-
mental inspectorate activities.
5. Development of new financial environ-
mental mechanisms based on interna-
tionally recognized methods of
calculating costs of damage to nature,
improving permitting systems, establish-
-------
,.,,.,.t
136
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ing environmental information and moni-
toring systems and databases connect-
ing inspectors, and encouraging
institutional and financial networking and
use of monitoring laboratories available
in different agencies.
6. Development of incentives for business
and industry to adopt updated technolo-
gies and for environmental inspectors to
avoid corruption.
7. Improvement of national mechanisms for
environmental investments through
improved dialogue with the Ministry of
Finance and Economy.
2.2. Problems Of Enforcement Of
International Environmental
Conventions And Agreements.
Although Armenia has signed, rati-
fied and joined more than ten environmen-
tal conventions, it is obvious that the legal,
regulatory, and financial mechanisms for
the implementation of the country's obliga-
tions under these conventions are still
underdeveloped. Some "lucky" conven-
tions, which have established trust funds or
use financial mechanisms, such as Global
Environmental Facility (GEF), etc., provide
developing and "transition" countries with
some resources to implement their immedi-
ate obligations to mobilize national and
local forces for this. The positive examples
in this regard are UN FCC, UN CBD, and
the UN Convention to Combat
Desertification. The situation is much more
difficult, when speaking about so-called
regional transboundary conventions devel-
oped for the UN ECE constituency.
The availability of funds is not the
only cause of difficulties. The low under-
standing of the importance of the value of
complying with international legally binding
environmental documents by national
authorities frustrates the revision, improve-
ment, harmonization and development of a
workable national legislative and regulatory
system. The use of awareness campaigns,
the establishment of interagency, inter-insti-
tutional national commissions with large
involvement of the public, science, business,
communities, and concerted education
efforts seem to be favourable mechanisms
for increasing knowledge and better under-
standing of the significance, goals, and
objectives of particular conventions by all
national stakeholders. One successfully
experience involved the establishment of the
National Commission within' the UN ECE
'Transboundary Environmental Impact
Assessment Convention" (Espo
Convention). Some other commissions with-
in the UN FCCC, UN CCD, UN CBD have
also been established. \
The setting up of an appropriate
institutional unit or agency, which would be
responsible for coordinating with donors
and financial institutions, monitoring on-
going projects, elaborating on proposals for
raising funds aimed at the solution environ-
mental problems according to the national
priorities and policies, in the Ministry of
Nature Protection, could also become an
effective tool for systematic implementation
of environmental policies and coordinated
outreach to the donor community concern-
ing the existing 'needs for [technical and
financial assistance. \
Even though Armenia has
obtained some environmental successes
since! achieving independence in 1991, it
needs an appropriate legislative framework
and an institutional agency!to coordinate
the development of these treasures and
initiatives in order for it to capitalize on its
momentum and attain a suitable level of
environmental protection and enforcement.
i .
(1) UNECE, Environmental | Performance
Review for Armenia, 2000, pp. 3-13.
(2) National Environmental Action Program
Armenia, Main Report, 1999.
(3) Lake Sevan National Action Program,
1999. ;
(4) Haroutyunyan, A., Questionnaire for
Conducting a Survey on the Use of
Economic Instruments for
Environmental Pollution Control in the
Republic of Armenia, 2000.
-------
IACOVIDOU-ANASTASIADOU, KOTRONAROU 137
THE IMPEL FOOD PROJECT: ENVIRONMENTAL COMPLIANCE AND
ENFORCEMENT TO SELECTED SUB-SECTORS OF THE EUROPEAN
FOOD INDUSTRY
IACOVIDOU-ANASTASIADOU, KATERINA1 AND KOTRONAROU, ANASTASIA2
1 Chemist-Inspector, Division of Industries, Directory for Air and Noise Pollution Control,
Hellenic Ministry for the Environment, Physical Planning and Public Works, 147 Patission
Street Athens, Greece GR-11251
2 Research Scientist, Institute for Environmental Research and Sustainable Development,
National Observatory of Athens, Patission Str. 147, 112 51 Athens, Greece,
kiakovidou.dearth@edpp.gr
SUMMARY
This paper presents the results of a comparative study of integrated pollution con-
trol, compliance and enforcement efforts with respect to EU Environmental legislation con-
cerning selected sub-sectors of the food industry in the European Union (EU) and in the
Accession Countries (AC). The project was initiated by Greece (National Observatory of
Athens, NOA, and the Hellenic Ministry for the Environment, Physical Planning and Public
Works, MEPPPW) within IMPEL. The three food sectors addressed are meat processing,
milk production, and breweries. Data were collected from 21 countries, 12 EU and 9 AC,
using a questionnaire that was completed by officers and inspectors from competent envi-
ronmental authorities in each country. In a workshop that took place in March 2001, the
results of the questionnaire were presented and discussed, relevant information was
exchanged between the participants and conclusions were reached.
The main results and conclusions of the project concerning environmental compli-
ance and enforcement are summarized here: a) In most cases, the same organization (one
or more authorities) that was capable of permitting was also capable of conducting on-site
inspections of the plants. Furthermore, that authority was also found in most cases to be
capable of ensuring compliance with regulations and permit requirements, b) In the major-
ity of the countries, industries are using self-monitoring and their compliance with permit
conditions is good. Most environmental problems encountered, in the meat and milk indus-
try in particular, were associated with small, non-IPPC units, c) The potential for pollution
from food industries is in principle lower in comparison with other industrial sectors, such
as the chemical and metal industries, because there are few toxic and hazardous sub-
stances associated with them, either in terms of raw materials used or in terms of emis-
sions, d) The adoption of best operation practices, the improvement or modification of the
production processes, minimization of product losses, and recycling, material recovery and
reuse compete successfully with wastewater treatment technologies as priorities for Best
Available Techniques (BATs), of which environmental "Bench-Marking" should be part.
1 INTRODUCTION
A project was initiated by Greece
(NOA, MEPPPW) within IMPEL, where
data regarding integrated pollution control,
compliance and enforcement in three
selected food sub-sectors, milk industry,
meat processing, and breweries, were col-
lected from 21 countries, 12 EU (Belgium,
Denmark, Finland, Germany, Greece,
Ireland, Italy, Portugal, Spain, Sweden, The
Netherlands, United Kingdom) and 9 AC
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138
SIXTH INTERNATIONAL CONFERENCE ON ENVRONMENTAL COMPLIANCE AND ENFORCEMENT
' ' ' '
{Bulgaria, Cyprus, Czech Republic, Estonia,
Latvia, Lithuania, Poland, Slovakia, Slovenia).
Representatives of environmental authori-
ties in each country completed a question-
naire and the results were presented
and discussed, relevant information was
exchanged between the participants, and
conclusions were reached at a March 2001
workshop.
In addition to providing an opportu-
nity for information exchange between
member states and the accession coun-
tries, the project also aimed to contribute to
the Technical Working Group on Food &
Milk of the European IPPC Bureau in
Seville (EBIPPC), which works on BAT
Reference Documents (BREFs) and identi-
fies priorities for BATs in the food sectors
addressed.
This paper summarizes the main
results and conclusions of the project con-
cerning environmental compliance and
enforcement. A complete collection of the
data obtained, which included information
on water consumption, quantities of waste
produced, waste characteristics, emission
limits, waste treatment technologies and
pollution prevention and control practices,
legal requirements and their implementa-
tion, licensing and enforcement practices,
and problems encountered during inspec-
tions can be found in the project report that
has been adopted by IMPEL (1).
2 DATA COLLECTION PROCEDURE
The 3 food sub-sectors were
selected during the initial phase of the pro-
ject, following solicitation of the opinion of
the EU IMPEL National Coordinators, as
either a "priority" at the European level, or,
in any case, "interesting enough" to be
addressed by the project, e.g., because
they are representative, or of interest for a
group of member states, or associated with
potential difficulties with respect to IPPC
implementation.
For the data collection, a question-
naire was prepared by NOA and MEPPPW
with some input from representatives of the
food industry. It was composed of a gener-
al part addressing size and importance of
the 3 food sub-sectors, legislative and
administrative framework, IPPC implemen-
tation issues, priorities for BATs, and identi-
ficaticjn of problematic areas, and three
sub-sector-specific parts requesting more
detailed information that jncjudedwaste
characteristics, emission limijt values, treat-
ment technologies, pollution prevention arid
control practices, environmental problems
encountered, and key issued regarding the
product specific processes. |The question-
naires were completed by national repre-
sentatives in the EU IMPEL 4"d AC IMPEL
Networks (i.e. national coordinators and/or
other national representatives), based on
existing records of the environmental regu-
lating and enforcement bodies that they
represent and their own experience and
with input from persons directly involved in
the permitting, inspection and monitoring of
the selected sub-sectors, and from repre-
sentatives of the industry, £s necessary.
The eimphasis was on comparing informa-
tion "from the Inspectors' poiht of view".
In a workshop, where IMPEL rep-
resentatives as well as representatives
from the industry and from; the scientific
community participated, the 'results of the
data collection were presented and dis-
cussed, presentations wef-e made by
experts on the food industry, relevant infor-
mation was exchanged between the partic-
ipants and conclusions wfere reached.
Three working groups (one ifor each food
sub-sector) resulted in conclusions with
respect to priorities for candidate BATs for
each food sub-sector and exchange of
views as to the cost issues related to the
implementation of BATs in the respective
sub-sectors and concerning appropriate
ways for dissemination of information about
BATs and BREFs. '
3 RESULTS AND DISCUSSION
i
3.1 Importance And Size Of
The Three Food Industry
I Sub-Sectors !
! Based on the replies to the
Questionnaires and on the discussions dur-
ing the Workshop, the following general
-------
IACOVIDOU-ANASTASIADOU, KOTRONAROU 139
conclusions can be drawn concerning the
size and importance of the sub-sectors:
The meat processing and the milk
industry are among the most important
food industry sub-sectors in the majority of
the countries studied. The brewery sector is
relatively smaller, but it is still considered
very important in most countries. These
food sub-sectors, therefore were consid-
ered to be among the priorities for the
establishment of BREFs for the food indus-
try. The need for modernization of those
industries seems to be a priority in some
accession countries. While the meat pro-
cessing industry seems to already be mak-
ing progress, it is closely followed by the
milk industry. The need for new national
legislation in order to adopt EC legislation
is also visible in the accession countries.
Again, the meat industry is considered the
priority sector. About half of the countries
are facing pollution and non-compliance
problems, but these are detected mainly in
small plants. Again, meat processing facili-
ties are regarded as more problematic than
the others.
The transposition of the IPPC
Directive (2, 3) is currently fully completed
in 8 EU countries (Belgium, Denmark,
Finland, Italy, The Netherlands, Portugal,
Sweden and UK). In the remaining EU
countries, the transposition is expected to
be completed by the end of 2002. The situ-
ation is similar in the accession countries,
with 4 of the countries (Bulgaria, Cyprus,
Estonia and Latvia) expecting transposition
by the end of 2002 and 3 of the countries
(Lithuania, Slovak Republic and Slovenia)
expecting transposition by the end of 2003.
The Competent Authority that will be draw-
ing the national report on the implementa-
tion of the IPPC Directive, pursuant to Art.5
of 91/692/EC & Art.16 of 96/61/EC (2) and
on the basis on the questionnaire of
Decision 1999/391/EC (3), has been
already designated in most of the member
states and in a couple of the accession
countries. In about half of the reported
cases, the authority is the one that does the
permitting of the installations.
The IPPC Directive limits (>200 tn
milk/day; >75 tn meat product/day; >300 tn
beer/day) are used, or will be used, by all
countries to identify the plants that fall with-
in the scope of implementation of the
Directive. With the exception of some coun-
tries (notably in Scandinavia), the plants
that fall within IPPC represent a small frac-
tion of the total number of plants in each
country for the milk and meat industry (gen-
erally less than 10%). The opposite is the
case for breweries, where the IPPC plants
generally represent at least 10% of the total
number of plants and, in most cases, the
larger share of the market; out of the 5
member states that reported relevant data,
only in Germany do IPPC plants represent
a very small fraction (2%) of the total num-
ber of breweries; in the other 4 cases the
fraction of IPPC plants is around 50% or
higher. It must be noted, however, that rele-
vant data are not readily available in all
countries; for each of the three food sub-
sectors, only about half of the countries
reported both the number of total plants
and the number of IPPC plants (Table 1).
3.2 Legal And Administrative
FrameworkFor Authorization,
Compliance And Enforcement
The comparative overview of the
legal requirements, competent authorities
and practices for permitting, inspections,
enforcement of environmental conditions
for IPPC & non-IPPC plants in all countries
shows that:
1. Out of the 21 countries, only 7 use a
single permitting system for any food
industry (plus, UK has a single permit
for milk facilities). Lithuania is the only
accession country among this group.
2. In the majority of the countries, there is
more than one competent authority for
the permitting of the installations. The
authorities usually involved in permitting
are the Ministry for the Environment,
local authorities and regional authorities.
3. The authority or authorities that are com-
petent for compliance and enforcement
of regulations and permit requirements
are the same organizations that permit
and inspect in 8 countries, the same
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140
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
organizations that conduct inspections in
6 countries and the same organizations
that issue permits in 3 countries.
4. Only in a couple of cases do special
provisions exist for the 3 food sub-sec-
tors of interest; in general, the applica-
ble permitting, inspection and
compliance legislation are the same
Table 1: Reported number of plants
that apply to any industrial facility.
5. In the majority of the countries, indus-
tries use self-monitoring (to a higher or
lesser degree) and their compliance
with permit conditions is good.
3.3 , Best Available Techniques,
Emission Limits And Related
Issues :
Country
Belgium
(Flanders)
Bulgaria
Cyprus
Czech
Republic
Denmark
Estonia
Finland
Germany
Greece
Ireland
Italy
Latvia
Lithuania
Netherlands
Poland
Portugal
Slovakia
Slovenia
Spain
(Andalucia)
Sweden
UK
Milk Industry
IPPC
11
7
10
6
35
0
4
7
1
1
5
91
Total
21
40
35
24
265
809
1823
48
70
-
377
78
30
24
126
50
%IPPC
33%
42%
1%
0%
6%
9%
3%
4%
4%
Meat Industry
IPPC
37
2
5
8
2
3
4
1
1
7
26
Total
1T
23
40
49
-• -
367
13
42
163
1200
1398
243
79
55
407
%IPPC
12%
10%
2%
5%
2%
2%
1%
2%
2%
Breweries
IPPC
2
4
5
30
3
10
14
3
4
1
2
5
30
TOtal
2
31
I
20
10
8
1270
6
16
;9
19
17
57
;
]12
|9
|5
i
[
50
57
%IPPC
13%
63%
2%
50%
88%
16%
8%
22%
(100%)"
53%
* Data for Belgium refer to region of Flanders; No information provided for Wallonia'and Brussels
** Data for Spain refer to Andalucia only; the regional competent Authority provided them.
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IACOVIDOU-ANASTASIADOU, KOTRONAROU 141
Regarding Best Available Tech-
niques (BATs):
1. Some of the EU countries have national
standards for Clean Technologies (in
some cases draft or in the form of
guidelines) that could be considered as
BAT candidates for the BREFs to be
prepared by the Technical Working
Group of the EBIPPC: Denmark,
Germany, Ireland, The Netherlands, UK
(draft), Spain & Sweden (guidelines).
2. In a couple of cases, these standards or
guidelines are currently under prepara-
tion (Finland, Greece).
3. A few large companies or industry asso-
ciations have already initiated activities
related to BATs.
4. However, existing standards or BATs
are generally used as guidelines and
are not in the framework of environmen-
tal permitting; thus, their implementation
is not yet within the scope of environ-
mental compliance monitoring and
enforcement with respect to those
industries.
5. Even though some national incentives
for investments in clean technologies or
. innovative processes exist, they are
generally part of the national policy for
subsidising the industry and only in a
few cases are they directly related to
environmental protection.
In comparison to the chemical and
metal industries, there are generally no
toxic and hazardous substances associat-
ed with these three food sub-sectors, nei-
ther in terms of raw materials used nor in
substances emitted. Therefore, the adop-
tion best operation practices, which include
the improvement or modification of produc-
tion processes, the minimization of product
losses, and use of recycling and material
recovery and reuse, compete successfully
with wastewater treatment technologies as
priorities for Best Available Techniques
(BATs). However, solid waste management
is an important issue for part of the meat
industry due to the EU decision about the
ban of by-product reuse. It seems that
guidelines from the EU Commission
regarding acceptable methods of disposal
of by-products from meat processing are
essential. In the case of the meat industry,
animal health issues may also have impli-
cations concerning the characterization of
the liquid waste (e.g. in the case of Bovine
Spongiform Encephalopathy, BSE).
Furthermore, it must be acknowledged that
some toxic and hazardous substances are
used in the food sectors in questions, e.g.
ammonia in refrigeration systems, acids
and caustics as cleaning agents, and salt
as a preservative in the meat industry. All
these do have an impact on emissions and,
although this study focused on the value of
waste minimization and other practices, the
use of these sorts of chemicals and their
impact on the environment should not be
overlooked.
Self-monitoring is considered to be
essential for all industrial plants in the three
food sub-sectors. Also, it was suggested
that environmental "Bench-Marking" should
be part of a BAT. The parameters that could
be bench-marked in each installation
include: water use, energy use, cleaning
agents, quantity of sludge produced, vol-
ume of effluent produced per intake volume
of raw material, packaging, product losses
and the quality of the effluent in terms of
BOD, COD, Tot-N, Tot-P, etc. In that regard,
it is noted that even though there is some
differentiation between key figures such as
water consumption and effluent character-
istics that were reported as applicable for
the industries in question in different coun-
tries, those figures are in general agree-
ment with the generic values found in the
literature (4).
There is also some differentiation
between the countries with respect to
Emission Limit Values (ELVs). However, it
must be noted that the applicable ELVs for
both liquid effluent and air emissions are
generally those applicable to any type of
industry, with a few exceptions of industry-
specific ELVs (e.g., some countries have
PM limits for milk powder).
The industry sector guidelines of
the World Bank (5-8) can be seen as a
starting point for the establishment of pollu-
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142
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AI>JD ENFORCEMENT
tion prevention and control strategies.
Additional good pollution prevention prac-
tices that were suggested for the three food
sub-sectors of interest are:
Milk industry: a) Filtration technolo-
gy, b) Separation of effluent stream (i.e.
separation of whey stream in order to reuse
it as animal feed).
Meat processing: a) Daily cartage
of wastes, b) Use of non-chlorinated con-
taining cleaning detergents, c) Odor control
- Biofilters, d) Energy efficiency with
respect to chilling and refrigeration -
Recycling of "once through cooling" waters
from chiller units, e) Procedures to prevent
releases of refrigerants.
Breweries: a) Installation of mod-
ern equipment for cooling, bottle washing
and filling, b) Hot water reuse and thermo-
isolation of pipelines, c) Energy efficiency
measures.
3.4 Inspections And Other Issues
Related To Compliance And
Enforcement
3.4.1 General
Tables 2-3 present an overview of
the areas that are considered as the most
"problematic," with respect to the three
industry sub-sectors, based on the opin-
ions collected from the questionnaires.
As it can be seen there, high water
consumption rates and excessive energy
consumption are among the common prob-
lems encountered in some industries of all
three sub-sectors, along with the absence
of sufficient recycling, material recovery
and reuse, weak supervision of discharges
to municipal sewers, and solid waste man-
agement.
Absence of good practices with
respect to supplies (e.g., storage, planning,
source control, etc.) resulting in "wasting" of
raw material, absence of appropriate treat-
ment or not good operation of existing suit-
able treatment systems for the liquid
effluent (wastewater) and operation without
all necessary permits, or non compliance
with permit conditions are problems associ-
ated with some non-IPPC plants of the
meat and milk industry.
~ In the majority of the countries
complaints made by the public against food
industries are recorded and written records
are kept. The update rate is' usually either
"continuously" (or after any incident) or
annual. :
| There is significant; differentiation
in the frequency of inspections among the
different countries. It ranges from 2-3 times
every! year, to "almost" never or only in the
case i of complaints; the majority of the
countries report annual inspections. Self-
monitoring is used in most countries as the
main jsource of data on the ernissions of the
industries. Also, different inspection fre-
quencies may exist for different types of
emissions (e.g., air emissions, effluent dis-
charc(es) in cases where more than one
permits or competent authorities are
involved. ' i
: In case of non-compliance the
imposed fines are usually determined as a
function of the importance bf the offence
(i.e., minor, severe and very serious). The
fines, as foreseen by the Law, reach up to
300,000 EURO (8 countries reported data;
in UHj:, there is no limit to the fine for very
serious offences). However, [the fines that
are imposed in practice are generally lower
than the maximum amount foreseen; the
corresponding reported range in the 8
countries that provided such data is 0 -
36,OQO EURO. Other sanctions that may be
imposed on installations fqr non-compli-
ance include higher rate of pollution tax and
recovery provisions, fines up to 300
EURO/day until corrective measures are
taken to deal with specific problems, sus-
pension of the activity or closing the plant
down, as well as the obligation to repair all
damages caused by non-corhpliance.
It is generally acknowledged that
the main problems are from the non-IPPC
industries. Thus, the issue Was raised dur-
ing the Workshop that it may|be worthwhile
to re-think about the "mini-IFfPC" proposal
(i.e. a, corresponding Directive to the IPPC,
which will target non-IPPC (inits and was
suggested by one of the EU countries at
the stage of the introduction of the IPPC
Directive). On the other hand, the view that
it is necessary to gain some experience
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IACOVIDOU-ANASTASIADOU, KOTRONAROU 143
with implementation of the IPPC directive
for large plants before thinking about some
mini-IPPC directive was also expressed.
Selected information collected
from the sub-sector specific questionnaires
concerning inspections, complaints, etc.
are summarised below.
3.4.2 The Milk Industry
Out of the 21 countries, 13 replied
to the specific part of the questionnaire.
The following data are the record-
ed most frequently encountered problems
during the conduction of the inspections
(presented by order of incident frequency):
1. Non-compliance with effluent discharge
limit values
2. Non-compliance with air emission limit
values
,3. Pollution of the local environment
4. Inadequate solid waste management
5. Illegal connections to sewerage system
(no permit for connection)
6. Noise (from activities within the installa-
tion)
7. Local traffic problem (and related noise)
Other problems reported (or exam-
ples from records):
1. Discharges of whey to the soil
2. Water pollution arising from accidents
and spillages (pollution of the local
environment). There have been reported
odor and dust problems with spray dry-
ers.
3. One particular incident reported:
Spillage of caustic used for cleaning
which was washed to the sewer and
subsequently caused a serious pollution
incident in a river, when the municipal
wastewater treatment plant could not
cope with the high pH effluent.
4. Bunding, leaks, poor housekeeping,
poor drain integrity, process equipment
beyond design age.
The reported number of complaints
by the public against milk industry installa-
tions during the last 5 years (where such
data existed) was in the range of 0 to 15.
The main reasons for complaints according
to the records are the following (they are
presented by order of incident frequency):
1. Non-compliance with effluent discharge
limit values
2. Non-compliance with air emission limit
values
3. Pollution of the local environment
4. Inadequate solid waste management
5. Illegal connections to sewerage system
(no permit for connection)
6. Noise (from activities within the installa-
tion)
7. Local traffic problem (and related noise)
The responses to the question
"what is the expected impact (if any) of the
implementation of the IPPC Directive on
the Milk Industry with respect to permitting,
inspections, monitoring of compliance and
enforcement" can be summarized as fol-
lows:
1. There will be an impact on permitting
and stricter conditions can be expected.
2. More inspections and self-monitoring
expected for IPPC plants; better co-ordi-
nation between multiple competent
authorities.
3. Stricter enforcement is expected (higher
fines).
One specific issue reported by UK
that relates to the expected impact on per-
mitting is: 'The lack of data on water use and
energy efficiency. In most cases dairies only
meter utilities at the point of entry to the site
and do not,sub meter at key unit processes.
It is therefore difficult to target measures at
specific unit processes. This is, important
particularly with respect to water use, which
on one early IPPC permit application has
been identified as the key pollution impact".
There was a specific question on
the issue of discharges to municipal sew-
ers, i.e., whether a change is foreseen in
the framework "integrated" approach
required by IPPC. Only a couple of coun-
tries reported a course of action that has
been already decided.
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE
ENFORCEMENT
Water consumption, energy effi-
ciency and wastewater minimization and
treatment are the main issues reported as
relevant to the milk industry. Specific unit
processes with related key issues that have
been reported are: whey removal (e.g.,
using membrane technology), cleaning
(water use, wastes and detergents), cream
separation, milk powder drying and pas-
teurisation (automation for minimization of
losses), pasteurisation (heat recovery),
packaging and sterilization (high energy
consumption).
3.4.3 The Meat Processing Industry
Out of the 21 countries, 13 replied
to this part of the questionnaire. It is noted
that for the purposes of this project, the
meat processing industry includes the pro-
cessing of the carcasses of dead animals
and fowl into meat products (cured, canned,
etc.), and the rendering of inedible and dis-
carded remains into useful by-products
such as lards and oils. Slaughterhouses
and animal breading are not included as
such in the processes of interest.
The most frequently encountered
problems during the conduction of the
inspections are reported to be (presented
by order of incident frequency):
1. Non-compliance with effluent discharge
limit values
2. Inadequate solid waste management
3. Non-compliance with air emission limit
values (for boilers)
4. Non-compliance with air emission limit
values (VOCs)
5. Pollution of the local environment
6. Odor
7. Hygiene
8. Noise (from activities within the installa-
tion)
9. Illegal connections to sewerage system
Other reported problems (or exam-
ples from records)
1. Lack of wastewater treatment system
2. Exceed limit values of AOX with use of
chlorinated detergents (in singular cases)
3. Illegal water caption
, No data were reported for the num-
ber of complaints during the last 5 years
from tijie majority of the countries. The main
reasons for complaints according to the
records are the following (they are present-
ed by order of incident frequency):
1. Discharges to water receptors
2. Odor problems !
3. Emissions to air j
4. Noise ;
5. Local environmental pollution due to
geographical location of thfe plant in
combination with the local environment
conditions '
6. Non-conformity with compliance notices
and warnings !
; Other complaints reported (or
examples from records) i
1. Inadequate management of solid waste
2. Waste management and disposal
3. Local traffic (industry fleet)!
i Concerning the expected impact (if
any) of the implementation |Of the IPPC
Directive on the Meat industry with respect
to permitting, inspections, monitoring of
compliance and enforcement, the com-
ments were exactly the same; with, or very
similaii to, those made on the;milk industry.
; The majority of the officers
responding to the questionnaires believe
that food quality and food safety issues are
in principle outside the scope of environ-
mental permitting and should be the
responsibility of another competent author-
ity. Even responders who pointed out that
there is a direct link to environmental per-
mitting, since the disposal bf potential!]/
hazardous waste is within its scope, agreed
that in any case, food qualify and safety
issues should be outside the;scope of this
IMPEL Food project.
Solid waste management and
wastewater minimization and treatment are
the main issues reported as relevant to the
meat processing industry. The following
parameters and production .stages of a
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lACOVlDOU-ANASTASIADOU, KOTRONAROU 145
meat processing installation were noted as
important in terms of related environmental
issues by one or more countries: Meat
washing and sanitizing; Bone removal,
break down (cutting)-wastewater; Smoking,
curing; Processing for specific products; Fat
separation and processing; Smoke genera-
tor; Centrifuge; Grinding/crushing;
Disintegrator; Sludge tank; Batch cooking-
waste water; Blood processing and drying.
3.4.4 Breweries
Out of the 21 countries, 14 replied
to this specific part of the questionnaire.
The most frequently encountered
problems during the conduction of the
inspections are reported to be (presented
by order of incident frequency):
1. Non-compliance with effluent discharge
limit values
2. Inadequate solid waste management
3. Non-compliance with air emission limit
values (for boilers)
4. Pollution of the local environment
5. Noise (from activities within the
installation)
Other problems reported (or exam-
ples from records) referred to on site inci-
dents, and spillages.
No data were reported for the num-
ber of complaints during the last 5 years
from the majority of the countries. The main
reasons for complaints according to the
records are the following (they are present-
ed by order of incident frequency):
1. Emissions to water receptors
2. Emissions to air (especially from large
plants)
3. Odor problems
4. Noise
5. Local environmental pollution due to
geographical location of the plant in com-
bination with the local environment con-
ditions.
Concerning the expected impact of
the implementation of the IPPC Directive
on the breweries sector, comments were
exactly the same with, or very similar to,
those made on the milk industry (see
above). Main environmental issues for the
sector are anticipated to be water and ener-
gy consumption and effluent management.
4 CONCLUDING REMARKS
The exchange of information and
experience between environmental author-
ities of the EU Member States and
Accession Countries is very important in
order to develop a greater consistency of
approach in integrated pollution control,
compliance and enforcement of environ-
mental legislation concerning industrial
activities (IPPC and non-IPPC). More
specifically, dissemination of the know-how
in BATs and exchange of the information is
important and the representatives of the
environmental authorities believe that it
should be done through main channels
such as IMPEL. It was also proposed that:
a) the EU Commission bear the costs of the
BREFs translation for the accession coun-
tries; b) a "BAT Helpdesk" be established
and operated at an EU level, so that all
countries, member states and accession
countries, can consult for help; and, c) edu-
cational and training meetings be organized.
Most environmental problems
encountered in the food industry, and in the
meat and milk industry in particular, are
associated with small, non-IPPC units. The
critical issue here is that, due to the econo-
my of scale considerations, those units do
not have the same possibilities to invest in
and adopt clean technologies, as the larg-
er, IPPC, units. Since only a relatively small
fraction of the total number of European
milk and meat industries falls within the
scope of the IPPC Directive, the full imple-
mentation of the Directive alone cannot be
expected to result in a significant improve-
ment with respect to prevention and control
of pollution from the meat and milk industry.
Nonetheless, even though the potential for
pollution from those industries is in princi-
ple lower in comparison to other industrial
sectors, adoption of best operation prac-
tices and compliance with the provisions of
existing environmental legislation by facili-
ties in these three food sub-sectors can
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMEtJT
make a difference in overall environmental
pollution loadings and provide standards by
which the performance of other facilities
can be measured.
ACKNOWLEDGMENTS
This work has been co-funded by
the European Commission, DG
Environment and the Greek Ministry for the
Environment Physical Planning and Public
Works under the Grant Contract No Subv.
00/213561 to National Observatory of
Athens.
The authors gratefully acknowl-
edge the contribution of all those who com-
pleted the "Questionnaire" and the National
Coordinators or contact points of the
IMPEL Network, who were involved in the
process. We also thank all participants of
the Workshop and special thanks go to
Terry Shears, the IMPEL Secretariat
Coordinator.
REFERENCES
1 NOA and MEPPPW, Integrated pollution
control, compliance and enforcement of
ED Environmental legislation to
Industries (IPPC and non IPPC) of the
food production/processing sector, Final
Report, European Commission, Contract
No: Subv. 00/213561, June 2001.
2 European Council Directive 96/61/EC of
24 September 1996 concerning
integrated pollution prevention and con-
trol,, Official Journal L 257, 10/10/1996
p. 0026-0040.
3 European Commission Decision 1999/
391/EC of 31 May 1999 concerning the
questionnaire relating to Council
Directive 96/61/EC concerning integrated
pollution prevention and control (IPPC)
(implementation of Council Directive
91/692/EEC), Official Jqurhal L 148,
15/P6/1999 p. 0039 - 0043.
4 Economopoulos, A.P., Rapid Inventory
Techniques in Environmental Pollution In
Assessment of Sources of Air, Water and
Land Pollution. Geneva: World Health
Organization, 1993.
5 World Bank, Pollution Prevention arid
Abatement Handbook - Towards Cleaner
Production, 1998. j
eWorld Bank, Environment Department,
Pollution Prevention and Abatement:
Dairy Industry, Technical Background
Document, 1996.
7 World Bank, Environment Department,
Pollution Prevention and Abatement:
Meat Processing and Rendering,
Technical Background Document, 1996.
8 World Bank, Environment Department,
Industrial Pollution Prevention and
Abatement: Breweries, Draft document,
1997.
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SlRANOV
147
THE DECISION MAKING SYSTEM IN THE FIELD OF ENVIRONMENT
PROTECTION IN CENTRAL ASIA
SlRANOV, AKHMADYAR
Deputy Executive Director
Regional Environmental Centre For Central Asia, Orbita-1, bulding 40 Almaty,
480043 Kazakhstan
SUMMARY
The reforms in Central Asian countries with developing economies provide a
unique opportunity to radically improve the traditional systems of preparation and evalua-
tion of plans and projects associated with economic development activities. In the course
of the reforms the political will to embrace democratic and market reforms, to acquire west-
ern countries' experience, and adapt international rules and regulations can foster the res-
olution of the ecological "inheritance" of the former command administrative systems. The
Central Asian countries are celebrating their tenth anniversaries of their independence this
year and are on the path to creation of such systems. Integrated approaches to the plan-
ning of economical activities, implementation of programs and projects of sustainable
development, and management of ecological systems should be based on adequate deci-
sion making systems that, in turn must be based on the availability of reliable information,
on research and analysis efforts, on forecasting and assessment, on responsiveness to
opinions of concerned groups, and on interdepartmental interaction. If adopted, these
measures can be useful tools and vehicles for all those who are concerned with improve-
ment of the environment and hope that the potential and resources of our countries can be
used, in the interests of future generations, in an appropriate and sustainable way.
1 INTRODUCTION
Developing a system that fosters
effective decision-making in the sphere of
environment preservation is important
because it plays an important role in envi-
ronmental projects and sustainable devel-
opment programs. A variety of multilateral
agreements and regional conventions,
including the Arhus Convention, propose
concrete mechanisms for improving these
systems. Decision-making systems in the
sphere of environment preservation reflect
a modern development that encourages
increased public participation while retain-
ing an independent purpose. The system
must not only give society an understand-
ing of ecological factors role, but must allow
key society sectors - government and local
authorities, non-governmental organiza-
tions and business, and international and
regional organizations - an opportunity to
participate in the decision making process.
This paper presents information
on the environment protection decision-
making instruments applied in Central Asia
and offers recommendations on their
improvement. It is based on materials sub-
mitted by Central Asia experts and non-
governmental organizations within the joint
project of Central Asia and NATO countries
"Decision-making on ecological problems
for the sustainable development of Central
Asia". This paper does not reflect the pro-
cedures and mechanism of decision-mak-
ing on regional and trans-border levels,
which might be a subject for future consid-
eration. It is hoped that this review will pro-
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE
AND ENFORCEMENT
vide a basis for discussions and continued
analytical studies in this sphere.
2 DECISION MAKING INSTRUMENTS
The environment protection deci-
sion-making elements studied in this paper
include:
1. decision-making information, including
statistics;
2. scientific bases of decisions, analysis
and forecasting methods;
3. expertise and environmental impact
evaluation procedures;
4. interdepartmental interaction and public
participation; and
5. potential availability, personnel prepara-
tion.
Experts conducted an analysis of
the condition of the above decision making
elements with regard to one environment
preservation trend, either atmosphere,
water resources, preservation of biological
diversity, prevention of desertification, or
waste product reduction. Case studies
were also presented to assess the process
of decision-making in the field of environ-
ment protection on both local and national
levels. Despite certain differences in expert
approaches and personal experiences, a
summary of the experts' findings in all
Central Asian countries was possible.
3 DECISION MAKING INFORMATION
As is well known, information con-
stitutes a significant basis for informed
decision making activities. In Central Asia
countries, evaluation of environmental con-
ditions and decision making activities rely
on the following information sources:
1. public statistics;
2. environmental monitoring data;
3. departmental accounts;
4. scientific studies materials; and
5. reports, publications, bulletins.
Although the availability of this
information allows general decisions to be
made; on ecological problems, the coun-
tries jface a number of problems in this
area. t .
, -1 . , ' . • L.U.. . ' -
4 STATISTICS [
i
. i
Statistics applied in>a region arid
established basically for instructive eco-
nomi
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SlRANOV
149
6 DEPARTMENTAL ACCOUNTS
Departmental accounts are one of
the basic sources of information for min-
istries and departments regarding the state
of affairs and activities on the level of local
bodies and enterprises. Reports are regu-
larly improved and changed according to
program and project priorities. A traditional
shortcoming of departmental reports is the
large amount of requested information,
duplication and insufficient coordination of
inquiries from various departments and
boards even within a single ministry, alloca-
tion of information in various ministries and
organizations, and the problem of both
obtaining it as well as its use by other par-
ties concerned.
In Uzbekistan, for example, there
exists a .system of intradepartmental
accountability ("Goskompripoda") of deci-
sion-making. Pursuant to this system, a
quarterly operation analysis of
"Goskompripoda" structures is conducted.
Data is collected in "Goskompripoda"
Republic of Uzbekistan from ecological
expertise divisions of "Goskompripoda"
Republic of Karakalpakstan, city of
Tashkent and twelve regions. Information is
voluntarily submitted. Information refer-
ences contain unit designations, value of
executed works, unit risk categories, deci-
sions made, units, and data on re-testing
taking into account appropriate remarks.
Inspection data and expertise con-
stitute an additional base for daily and prac-
tical decisions in the sphere of environment
protection. Inspections are often accompa-
nied by laboratory and on-location tests of
water quality and contamination from sepa-
rate wells, and control of the execution of set
legislative tasks and requirements. In the
case of breaches or discrepancies with pre-
scribed requirements, administrative and
economic sanctions are applied to violators.
In Tajikistan, sanctions are avail-
able under Chapter 7, "Administrative viola-
tions in the field of environment protection,
cultural arid historical monuments" of the
Code, Republic of Tajikistan "Regarding
administrative violations" (2000). This chap-
ter specifies the violations and extent of
penalties regarding biological diversity,
including 16 on flora and 5 on fauna.
Chapter 24, Criminal Code of Republic of
Tajikistan, imposes liability for crimes
against ecological safety and the environ-
ment. In particular, articles 230-236 apply
to violations of rules for the protection and
use of biological diversity, imposing mone-
tary penalties and allowing for incarceration
for up to five years. In addition, the Decree
by the Government of Republic of Tajikistan
dated June 27, 1995 # 438 "On strengthen-
ing the preservation of fish resources, pre-
cious fish species in fishing reservoirs in
the Republic of Tajikistan" confirmed the
penalty rates for damages caused by orga-
nizations, enterprises, citizens by illegal
fishing, or extermination of precious fish
species in reservoirs of RT.
7 SCIENTIFIC RESEARCH
Research constitutes the base for
determining priorities and scales for
addressing different levels of ecological
problems. Research provides vehicles for
setting allowable limits for water contamina-
tion, monitoring natural resources use, and
improving programs and projects.
Significant experience with scientific
research in various ecology spheres has
been accumulated in the region and is used
to identify and solve ecology problems. At
the present time, however, research studies
are poorly supported by the State and are
rarely used during decision-making. One of
the reasons for this, besides insufficient
financing, is a poor coordination of mea-
sures designed to make sure information
that is discovered reaches the persons
making practical environment protection
decisions. As a result of this, scientific
works are not materials that are often
applied in ecological services practices.
In Kyrgyzstan, scientific studies
are carried out in the manner prescribed by
the legislation for the purpose of developing
and creating scientific principles for envi-
ronmental protection. Scientific research,
experimental design and implementation
operations in the sphere of environment
protection that are included in national
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
(public) programs are publicly financed by
the republic budget
8 REPORTS, PUBLICATIONS,
BULLETINS
Reports, publications, bulletins
have been widely used recently. The min-
istries responsible for protecting the envi-
ronment publish annual reports on its
condition and measures taken. In addition,
most international organizations regularly
highlight in their reports and bulletins data
on ecological research, as well as the infor-
mation on activities in the region. Public
ecological organizations also pay attention
and in Central Asia, bulletins and newspa-
pers are regularly issued with the support of
donor institutions. At the same time, experts
worldwide note the shortage of information.
Non-governmental organizations
of Kyrgyzstan having an ecological orienta-
tion (about 200) have a goal to promote
ecological education and enlightenment
and enhance society's knowledge of envi-
ronment protection items. These organiza-
tions may issue one-time bulletins, but they
are not issued regularly.
This is related to poor access to
the Internet, particularly on the local level,
and limited circulation of official reports and
bulletins. Public authorities have insufficient
budgets to pay for widespread circulation
and projects based on sales of bulletins
and reports do not ensure that scientific,
public and other concerned organizations
will have free access to such information. In
addition, in Central Asian countries there
are no united information databases, where
one might find and freely obtain the infor-
mation about the condition and applied
steps on environment protection. Existing
databases are located in different min-
istries and organizations, including interna-
tional ones, and sometimes contain secret
or contradictory data.
In Uzbekistan, there is currently no
decision making database. There is, how-
ever, uncoordinated information generated
by various ministries and departments and
there are libraries, information stores, and
archives.
9 INFORMATION RECOMMENDATIONS
r.
Recommendations vj/ith respect to
better use and acquisition of information
include:
1. establishing national and subregional
integrated informational systems on
environment preservation and stable
development based on a sjngle ideology;
2. studying the condition of i existing infor-
mation systems and databases in the
sphere of environment protection, their
acceptability for the persons who make
decisions starting from the inventory of
ecological information on hand, and sys-
tematically publishing available informa-
tion registers to assist in access 1:o
ecology information; ;
3. elaborating on existing [strategies for
information sharing and exchange
between public, local organizations, non-
governmental organizations, business
and science;
4. studying possible mechanisms of infor-
mation expansion taking into account
existing communications and technolo-
gies, as well as information consumer
level; and
5. promoting library network development
witji free access to ecological informa-
tion. I
10 SCIENTIFIC BASING OF DECISIONS,
ANALYSIS AND FORECASTING
METHODS I
i • i [
. Given that the transition period was
accompanied by significant [reforms in all
spheres and required changes in the sys-
tems of planning, management, monitoring
with appropriate scientific basing, then it
became obvious that without public support
these objectives could not be fulfilled. In
region countries, the former system of qual-
ity control and environmental impact that
was created for administrative economics
and laid down as a basis for economical
decision planning, public expertise, and
inspection control still functions.
| In Kazakhstan, water quality norms
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SlRANOV
151
for water facilities for industrial, economic,
drinking, cultural and domestic use are
established by sanitary regulations and
standards of surface waters protection from
contamination, approved by the Ministry of
Health Protection of the USSR dated July 4,
1988. These norms contain PDK and ODU
for 1345 substances. Toxicity limitation fea-
tures have been identified for each sub-
stance — sanitary-toxicological, general
sanitary or organoleptic features. Substance
hazard classes are also indicated.
Substantial problems arise
because of the lack of necessary studies in
the sphere of advanced technologies,
equipment as well as ecological risk fore-
casting and control methods. After the dis-
integration of the Soviet Union the
above-mentioned aspects ceased to be
sustained on the same level. Basic scientif-
ic centers that were forming scientific basis
for ecological policy and fundamental
research in the environmental and develop-
ment sphere remained in Russia. In spite of
the fact that scientific centers and institutes
located in Central Asia, made attempts to
carry on studies, without public support this
task was becoming more and more difficult.
Insignificant grants that were given by gov-
ernments and donor programs were direct-
ed mainly to short-term studies or works of
applied nature.
There are great opportunities for
scientific support of the works connected
with offered decisions analysis and fore-
casting of their fulfillment consequences.
And economic analysis of "costs-benefits"
has not yet been widely used in practice.
In Kazakhstan, economical analy-
sis is practically not used in the course of
decision-making in regard to environment
preservation. Cost analysis is usually con-
ducted at best when it is necessary to com-
pare alternative measures of contamination
reduction. Since the scales and contents of
wild life preservation activity were predeter-
mined by ecology norms, there was no
actual demand for the analysis of costs and
benefits. Moreover, key efforts were applied
for the calculation of costs necessary to
achieve a goal. Any attempts to calculate
prevented damage were of auxiliary nature
and were not taken into consideration in
determining resource requirements neces-
sary to realize the program. The environ-
ment will continue to be jeopardized if
economists do not actively participate in
the analysis and development of policies.
If one does not take into consider-
ation real costs and benefits in regard to
the fulfillment of projects, including their
impact on environment, then the prefer-
ence will be given to projects that harm
nature, and governments, citizens and
international institutions will form a wrong
idea of real effectiveness of country eco-
nomics.
In Tajikistan, the present transition
period in the economic development affects
biological diversity and nature preservation.
Financial resources from the public budget
that are directed for biological diversity pro-
tection are quite limited. The resources
obtained from economic activity of OOPT,
cover internal OOPT needs. At the present
time, unfortunately, it is hardly possible to
find any examples of private investments
that would contribute to the preservation of
biological diversity.
In this regard, one of the most
important factors that contribute to reduce
biological diversity is the lack of real eco-
nomic assessment of biological resources.
Thus, the use of economic incentives would
allow bioresources to be reassessed based
on their real value and would promote deci-
sion making that places a value on their
preservation. Other countries' experiences
in risk evaluation methodology, including
those of Russia, indicate that some experi-
ence existing in Central Asian countries will
allow them to use this methodology, which
possesses logical and systematic structure
to get quite clear recommendations fit to
make administrative decisions.
In Kyrgyzstan, the use of risk as a
single harm index while evaluating the influ-
ence of various negative factors on humans,
is starting to be applied at present to ensure
solid comparison of safety among various
economic industries, types of operations,
explanation of social benefits and privileges
for a certain group of persons. Such a risk
identification method is included in education-
„!-,
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMEIVIT
n ii n iin iijyiiiiii in iiii 1111)111in ii i
liii!,!'H'l ; ,
I, , yH , ,
•i ; 7 ••ii W ill
al training programs for Kyrgyzstan institutes
on a discipline called 'Vital activity safety",
however it is not applied in practical activity of
the ministries of "Ecology and emergency sit-
uations" and "Health Protection."
No specific criterion that would
determine the influence of various wastes
on humans is suggested. However, this
influence is determined indirectly through
the condition of environment: atmosphere,
water, soil. It should be noted that both
direct risk evaluation and evaluation via the
above-mentioned criteria are only now
starting to be applied in Kyrgyzstan.
11 RECOMMENDATIONS
Research and analysis recommen-
dations include:
1. consolidating potential of scientists and
engineers in the region to maximize
resources;
2. joining efforts of scientists for completing
inventory of natural resources and envi-
ronment and determining ecological
frames for economical and other activi-
ties in a region, and also for defining the
most favorable strategies for preserving
ecosystems;
3. creating the public Council from well-
known persons and scientists of the region
for supporting efforts in Central Asian
countries to prepare and realize regional
sustainable development strategy;
4. reestablishing system for preparing and
training environmental protection spe-
cialists, and introducing system of unbro-
ken ecological education;
5. improving nature management planning
by introducing "costs-benefits" mecha-
nism for evaluating environmental and
economic tradeoffs;
6. introducing obligatory audit scheme and
ecological insurance for environmentally
dangerous economic activities using
methodologies that evaluate the risk to
the environment and general population
health as part of the decision making
process; and
7. creating regional networks of consulting,
training, and information units for intro-
.ducing advanced technologies arid
using research activities in the sphere of
environment.
i i j
12 EXAMINATION PROCEDURE
AND ENVIRONMENT IMPACT
EVALUATION
Materials developed during envi-
ronmental impact examinations, EIEP,
audits, other materials provide valuable
information for making decisions concern-
ing economic projects arid proposal.
Ecolcigical assessment procedures have
been established by legislation (laws or
Government decisions) in all the countries
in thes region. !
The Law of Ecological assess-
ment! *or exatr)P'e' was Passed in the
Republic of Uzbekistan ip May 2000.
Objects covered by the state ecological
assessment are projects of state programs,
conceptions, and schemes for developing
productive forces in economic and social
sectors; natural resource and construction
projects; and many other areas. Completion
of those projects or activities is forbidden
without positive conclusion of the state eco-
logical assessment bodies. The conclusion
of the state ecological assessment at the
adequacy of object to environmental chal-
lenges is valid during three years from the
date of issue. ;
In Kazakhstan, the:community in
the republic can carry out public ecological
assessment. Unfortunately, it is possible
only with community funds and the results
are only advisory in character.
Environmental impact evaluation proce-
dures (EIEP) also presume as one of its
main components the participation of the
comnunity and taking into account its opin-
ions and its interests in accordance with
basic principles of the Bio-de-Janeiro
Declaration and "Environment for Europe"
process. There is, however, currently no
foundation of procedures for this activity in
Kazakhstan. In Uzbekistan, the public eco-
logical assessment is a kind of activity, real-
ized by the initiative of citizens, institutions
of lobal government and public associa-
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tions for ecological assessment. The con-
clusions of this public assessment is advi-
sory here as well. Ecological assessment
procedures consist of registering the public
ecological assessment; providing notice to
the local administration and government
about public the assessment; preparing the
public ecological assessment documents
and conclusions; forwarding of the assess-
ment and conclusions to the state ecologi-
cal assessment and to bodies making
decisions about a specific project. It may
also be published by the media.
In Uzbekistan, after the declaration
of independence, those legislative and nor-
mative acts that were contradictory to that
declaration have lost their regulative impor-
tance. They will, however, remain valid until
development and adoption of new acts reg-
ulating relations in the similar sector of
technical standards and regulations. In
Kazakhstan, EIEP is an obligatory and con-
current aspect of pre-project and project
documentation. For operating enterprises
EIEP is also carried out. Environmental
impact evaluations here should include
determinations of the sorts and levels of
the planning activity's impact to the envi-
ronment, including ecological risk; a predic-
tion of the environmental changes and
socio-economic consequences of the pro-
posed action; discussion of environmental
preservation or impact mitigation arrange-
ments; review of all normative requirements
in this sector.
13 RECOMMENDATIONS
It is recommended that environ-
mental impact assessment efforts include:
1. introduction of strategic ecological evalu-
ation and audit principles;
2. integration of economic evaluation of
natural resources and environmental
impacts in the decision making process;
3. analysis of existing methods of predic-
tion and legal regimes especially in the
sphere of transboundary problems;
4. introduction of health risk evaluations to
decision-making parameters;
5. consolidation of the control and inspec-
tion services;
6. use of mechanisms of Arhus Convention
to extend and strengthen environmental
examination practices.
14 INTERDEPARTMENTAL
COORDINATION
Problems of interdepartmental
coordination and participation of the com-
munity and other interested parties are sig-
nificant in countries of this region,
especially given historical, top-down deci-
sion making regimes inherited from
U.S.S.R. In Kazakhstan, for example, solv-
ing of waste disposal problems requires
coordination with other administrative bod-
ies. Receiving a permit to warehouse or
dispose of waste, for instance, requires
coordination with the local administration,
sanitary-epidemiological services, geologi-
cal organs, state mountain inspectors bod-
ies, and land-register bodies.
In Uzbekistan there are no official
or practical procedures for interdepartmen-
tal coordination of decision making in the
sector of environmental protection and
most projects proceed based on project
expediency and consideration of only the
most basic requirements such as engineer-
ing, sanitary, fire and other technical ser-
vices. In Kyrgyzstan, there is no procedure
of coordinating with other control bodies.
In addition, there is competition
between ministries, authorized in the sector
of environmental protection in the region
and in spite of signed agreements of coor-
dinating or separating the functions, there is
no interest in collaboration between them.
Joint activities are possible not only on the
basis of protocols and agreements, but on
the basis of common purposes, i.e. an inte-
gration of purposes and priorities is an
important task of environmental ministries.
In the sphere of decision making,
an integration of ecological, social and
economical purposes is very important. In
the countries with transitional economics
decisions are often accepted by the gov-
ernment structures, responsible for envi-
ronmental protection, that cannot provide
balanced account of social-economic ben-
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grpv mi i IIIPII i nil i nil
in in i ii i i inn n i in in •• in
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SIXTH INTERNATIONAL CONFERENCE ON ENV RONMENTAL COMPLIANCE AND ENFORCEMENT
efits and losses connected with the project.
This is happening because the public inter-
est in the environment during the period of
reforms is not as high as the pressure on
persons being asked to make economic
decisions.
15 PUBLIC PARTICIPATION
In recent years in the Central Asian
countries, public participation has been
encouraged, based in part on international
organizations and donors, activities at con-
ferences and seminars conducted by public
and private organizations. Most of the
region countries have signed and ratified
the Arhus Convention adopted at the con-
ference of the Ministers of the EEC in 1998
and which established the obligations of the
state bodies to provide information and to
take account of the public opinion before
making decisions in the field of environmen-
tal protection and which confers on the non-
governmental public organizations the right
to demand fulfillment of such obligations.
At the same time, the role of the
public organizations has been small and
the level of their participation in the pro-
grams implemented has been low. This is
connected both with the public organiza-
tions insufficient potential, their unstable
financial and technical bases, and the
unwillingness of the state authorities to
engage non-governmental public organiza-
tions as competent partners in national and
local programs.
In Kazakhstan, for example there is
little understanding of the role that can be
played by the non-governmental public
organizations in the decision making pro-
cess. In some countries initial support by
the public of the environment protecting
undertakings has turned into criticism when
the authorities ceased to consult or to carry
on a dialogue with the non-governmental
public organizations during development of
programs in the field of environmental pro-
tection. Ecological movement of the public
organizations progressed during the prepa-
ration of NAPEP, especially due to the initi-
ating role played by the ecological groups
during development of the projects. And
this took place despite the lack of an effi-
cient methodology of the activities, the lack
of access to the current technical database,
and tlpe lack of an efficient direct exchange
of information. The Ministry of Natural
Resources and Environmental Protection
of Kazakhstan has begun to ihold meetings
on a regular basis with representatives of
the public organizations for the purpose of
exchanging views on the problems of the
environment and the Ministry representa-
tives take part in the seminars held by the
ecological public organizations of the
Republic. |
In Kyrgyzstan, the procedure of
informing the public is not adequately
work0d-out despite the increasing activity
and interest of the public towards ecologi-
cal problems. It is necessary to develop at
the legislative level the mechanism for pub-
lic participation in all or in the most impor-
tant stages of making decisions concerning
the problems of nature management and
different types of projects. It js also neces-
sary to introduce a system for informing the
public on the problems concerning the
environment.
The State Committee of Nature
Management in Uzbekistan, together with
the American Judiciary Association, has
held (interregional conferences and semi-
nars Connected wjth the Arfius Convention.
During these seminars representatives of
the Ministries and Departments, as well EIS
thosei of local authorities and local self-reg-
ulatirtg bodies, examined the general provi-
sions of the Arhus Convention and studied
experiences of other CIS Republics. The
process of making decisions on the objects
of economical activities involves two sub-
jects; a governmental body, on the one part
and a legal entity, on the other part. The
governmental bodies and state authorities
only jtake part in the process of making
decisions on legislative and sublegislative
acts. | In this connection the citizens (the
public - in the broad sense) who have the
right to live in favorable environmental con-
ditions and to have an influence upon the
coursle of life in the society! are excluded
from playing a role.
In the social reformation time the
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SlRANOV
155
"public opinion" was often taken as some-
thing objective and important and therefore
the procedure of the "public discussions"
could be arranged without any special intri-
cacies. Publication of open letters in news-
papers, collections of signatures, protest
actions, speeches of well-known ecologists
before large audiences, and referendums
were all common at this time. At later
stages of the reforms such interest in the
ecological problems was not observed and
other groups with divergent interests
sought opportunities to participate in the
procedures. The system must ensure a dia-
logue between these groups, customers,
and state authorities while at the same time
involving of the public environmental orga-
nizations in the process.
The Arhus Convention is an impor-
tant element of implementation of the
Agenda-21 and its coming into effect will
stimulate the further improvement and
coordination of the environmental legisla-
tion at the national and regional level,
increase in the processes of democratiza-
tion and sustainable development. The pri-
ority attention should be paid to the
mechanism and procedures of interaction
between the public and state authorities for
the purpose of ensuring of the maximum
efficiency of the state officials', authorities'
and public organizations' decision-making
actions aimed at achievement of the
Convention goals.
The mechanism of interaction should corre-
spond to understanding by the regional
state structures and public organizations of
the complicated economical and political
situation. This mechanism should provide
support by the public of the Republics eco-
logical policies as an integral part of the
European and world policy. The interaction
mechanism is a direct and active participa-
tion of the public and public organizations
of Kazakhstan in all the processes of deci-
sion-making in the field of preservation and
sanitation of the environment on the path to
the sustainable development.
The process of reformation of the
state from the bottonriTUp should be recog-
nized as an important stage of the road to
sustainable development. In the complicated
economical and political situations of the
Central Asian countries, the whole burden of
initiation and promotion of the innovative
ideas and democratic reforms is placed on
the third non-governmental sector which in
the framework of the non-governmental pub-
lic organizations concentrates pressure of
independent socially-concerned and active
persons and intellectuals by joining them to
the state, intellectual, and business elite.
16 RECOMMENDATIONS
Efforts designed to encourage and
increase public participation include:
1. improving the system of the environment
protection management on the basis of
the priority goals of the policy in the field
of the sustainable development;
2. carrying out the analysis of the existing
structures of the environment protection
management to clarify its goals and
responsibilities, as well as options for
achieving these goals;
3. developing and implementing the mech-
anisms of the Arhus Convention, to intro-
duce them at the level of the national
legislative and sublegislative acts;
4. practicing establishment of supervisory
councils for management of the pro-
grams and projects with participation of
the non-governmental public organiza-
tions representatives; and
5. promoting integration of the non-govern-
mental public organizations efforts at the
level of countries and the region as a
whole.
17 AVAILABILITY OF POTENTIAL,
TRAINING OF PERSONNEL
Many legislative instruments and
political strategies in the region suggest the
need for a higher level of ecological educa-
tion. This involves all education levels, from
the pre-school, secondary, specialized sec-
ondary and higher education, as well as to
training of specialists. Although the pro-
grams of all the educational institutions
include the ecological subjects, there is no
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
close connection between these education-
al institutions and the Ministries of
Environmental Protection and few joint or
practically active programs. As a rule, such
interaction takes place at the level of indi-
vidual seminars and projects supported by
the donors. The environmental education is
compulsory in accordance with the Laws of
the region countries for all officials and spe-
cialists engaged in the industries producing
environmentally adverse impacts.
A centralized system for personnel
training in the field of the environment pro-
tection and sustainable development does
not exist in the region. The systematic train-
ing and professional development of per-
sonnel that existed in the former system of
the USSR Ministries does not exist any
longer and the efforts of the Ministries of
Environmental Protection to support such
systems have not been properly backed by
the states. As a result the former system of
the ecological education has brought into
individuals courses and one-time seminars,
implemented in the framework of small and
short-term projects. In particular, economists,
auditors, informational managers and
lawyers are suffering from the lack of ecolog-
ical education opportunities.
In Uzbekistan, there are no spe-
cialized centers of personnel training in the
field of ecological assessment. But at the
Research Institute "VODGEO" of the State
Committee of Environmental Protection of
the Republic of Uzbekistan there are active
courses for the personnel of the state
inspection and the state ecological assess-
ment as well as for the personnel of eco-
logical services of enterprises. The
systematic training of personnel is carried
out at the higher educational institutions of
the Republic as well. Specialists in the field
of air quality protection are generally
trained at the Tashkent Institute of Motor
Transport. With due consideration to spe-
cial requirements the education is also car-
ried out at the Institute of Irrigation and
Mechanization of Agriculture, at the
National University, at the Tashkent State
Technical University.
18 RECOMMENDATIONS
Training initiatives designed to
strengthen awareness and competencies
in the environmental protection arena
should involve: •
1. creation of national and sectoral systems
of training and professional development
of personnel in the field of the environ-
ment and development;
2. corhbined efforts of the existing Centers,
programs and projects ;of personnel
training by creating a system of informa-
tiori and experience exchange; and
:
3. restoration of a personnel training and
professional development system and
intrbduction of a continuous ecological
education.
19 CONCLUSION
The reforms in these countries with
developing economies provide a unique
opportunity to radically improve the tradi-
tional systems of preparatioh and evalua-
tion oif plans and projects associated with
economic development activities. In the
coursp of the reforms the political will l:o
embrace democratic and market reforms,
to acquire western countries' experience,
and adapt international rules and regula-
tions ban foster the resolution of the eco-
logicsjl "inheritance" of the former command
administrative systems. If there is a lack of
such political will or if the opportunity to use
it has been lost, the systems of ecological
assessments are doomed to inadequacy
and inefficiency. j
< The Central Asian ^countries are
celebrating their tenth anniversaries of their
independence this year and are on the path
to creation of such systems, the continuing
and periodical reforms of the environmental
protection systems in these countries serve
as an evident proof that this is a complicat-
ed process. The decision-making mecha-
nisms; inherited from the soviet system and,
in general, oriented to raising of the pro-
duction potential and based on the com-
mand economy did not allow consideration
to the proper degree of the interests of the
.k
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SlRANOV
157
population and environment and created
obstacles for further development.
Integrated approaches to the plan-
ning of economical activities, implementa-
tion of programs and projects of
sustainable development, and manage-
ment of ecological systems should be
based on adequate decision making sys-
tems that, in turn must be based on the
availability of reliable information, on
research and analysis efforts, on forecast-
ing and assessment, on responsiveness to
opinions of concerned groups, and on inter-
departmental interaction. If adopted, these
measures can be useful toots and vehicles
for all those who are concerned with
improvement of the environment and hope
that the potential and resources of our
countries can be used, in the interests of
future generations, in an appropriate and
sustainable way.
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VERHEIJEN
159
THE ENFORCEMENT OF ENVIRONMENTAL LEGISLATION AT A
WASTE-TREATMENT PLANT IN THE NETHERLANDS: AN EXAMPLE
OF EFFECTIVE COOPERATION BETWEEN AUTHORITIES.
VERHEIJEN, L.H.J.
Member of the Provincial Executive for the Province of Noord-Brabant in The
Netherlands, Responsible for Environment, Nature and Landscape.
(Written by M. Bakker Msc, B.E. & M. Consultancy, Eck En Wiel, The Netherlands)
SUMMARY
The enforcement of environmental legislation is an area of activity in which the
enforcement parties are increasingly working together. Past incidents have shown that such
cooperation is essential. An effective approach to enforcement depends to a large extent
on thorough preparation. Where enforcement concerns companies involved in complex
waste-processing operations, enforcement specialists must have advanced knowledge of
technical and administrative processes in order to deal effectively with the company in
question. Knowledge of globalization in the waste-processing market is also essential in
order to assess the market position of the company..
The continuity, acquisition and maintenance of knowledge are important for an
enforcement team. The establishment of such a team should be seen as an investment in
the future, and that investment should be seen in a long-term perspective. Sufficient guar-
antees with regard to deployment of resources (human and material) are required before
the team becomes operative.
The environment in which a company operates largely determines the extent to
which it complies with legislation. Therefore, when enforcement measures are prepared, it
is essential that the company's operations be reviewed by means of a risk analysis. The risk
analysis is based on licensing applications submitted by the company. In the case of waste-
processing companies, every stage of the processing operation (acceptance -> reception
-* storage -» processing -> emissions/discharge/disposal) is assessed in order to deter-
mine the level of environmental risk involved. The questions that are asked constantly dur-
ing risk analysis are: What can go wrong in theory at this stage or sub-stage of the
process? How serious would this be and what are the possible consequences?
The combination of specialist knowledge within an enforcement team lends it a
special status. The connection with licensing must be transparent. The success of an
enforcement team is not a foregone conclusion. It depends on a number of factors within
and outside the team's sphere of influence. The success of an enforcement project
depends at a minimum on:
1. the acquisition and maintenance of knowledge within the team;
2. the team's ability to assess its own abilities and consult external specialists in good time;
3. open lines of communication between team members;
4. open lines of communication between the internal departments of partner organizations;
5. organizational guarantees relating to the required deployment of resources;
6. satisfactory follow-ups during the enforcement processes under administrative and penal
law;
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
7. incorporation of the enforcement team's recommendations in enforcement and licensing
procedures; ' ' ! '
8. knowledge of the international waste-processing rharket; and i
9. the ability to identify the common interests of enforcement partners and coordinate activ-
ities accordingly.
1 HISTORY
At the beginning of the 1990s, the
Dutch government was confronted with the
Tanker Cleaning Rotterdam affair (the TCR
affair). TCR was one of the largest wastew-
ater treatment companies in the city of
Rotterdam in the Netherlands and was also
a designated Port Reception Facility within
the meaning of the international MARPOL
treaty. A port reception facility takes in spe-
cific types of hazardous waste from ship-
ping, for example: engine oil, bilge water,
chemical cargo residue, ballast water etc.
Following various investigations, it became
clear that, for some time, TCR had been in
serious violation of environmental legisla-
tion and licensing regulations. This led to
irreparable environmental damage.
However, the conclusions that
came out of the investigations also impli-
cated the authorities involved. Licensing
was a llegedly inadequate, there was insuf-
ficient enforcement, and the cooperation
betweien the authorities was badly orga-
nized! In addition, the authorities failed to
take prompt action when violations
occurred, and they apparently ignored vio-
lations when they continued. The investiga-
tions showed that several lactors could
influence the extent to which a company
complies with license regulations and legis-
lation: This is represented schematically in
Figure 1. \
Authorities can make use of a num-
ber of aspects, such as the quality of a
licensee and the quality of enforcement, to
minimize the probability of undesirable situ-
ations! and violations. Companies, on the
other jhand, should develop procedures and
processes to reduce the likelihood of viola-
tions. This would result in a new approach to
licensjing and enforcement methods, i.e.,
thinking in terms of environmental risk.
Figure 1: Compliance environment
Marketing situation
Integrity of company
Quality of licenses
Probability of
violation i
Types of process
Quality of enforcement
Administrative organization
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VERHEIJEN
161
2 A NEW CASE STUDY
2.1 The Company
The ATM waste terminal at
Moerdijk in the Netherlands is one of
Europe's largest processing plants for haz-
ardous waste. ATM, a subsidiary of a multi-
national waste-processing concern, is a
complex company and its processes
involve a high level of environmental risk.
The complexity of the company is due to its
various processing installations. The pro-
cesses are interconnected, which means
that there is a high probability of internal
exchange of waste flows between the
installations. This exchange could lead to
an increased likelihood of violation of envi-
ronmental laws and licenses. The complex-
ity is increased by additional factors such
as the links between the different process-
es and installations, and the lack of trans-
parency of ATM's internal administrative
organization. A short description of the
technical processes at ATM is given below.
2.1.1 Thermal Purification Installation
ATM has a thermal purification
installation for cleaning soil, rubble and
,other materials that contain organic sub-
stances (oil, polycyclic aromatics) and/or
cyanides and/or sulphur. These materials
usually come from soil remediation pro-
jects. The purpose of this treatment is to
remove waste products so that, after pro-
cessing, the materials are suitable for use
•as secondary raw materials or construction
materials. In some cases, the material is
treated so that it complies with tipping/
1 dumping regulations, for example by remov-
ing excessive levels of oil contamination.
Most of the materials processed by
the thermal purification installation come
from soil decontamination projects. It also
processes sand flows from sewage sys-
tems and sand boxes, and sediment from
underground tanks. These waste flows are
comparable to contaminated soil, and can
be processed together with it. The installa-
tion can also process materials other than
soil and sand, for example: debris, gravel,
sieve and breaker sand, blasting grit and
other contaminated (secondary) building
materials. Waste for processing must con-
sist of at least 60% inert material. ATM has
applied for a license to process 1 million
tons per year of the above materials.
ATM uses 'substitute fuel' for the
thermal purification installation and for
waste gas purification. This fuel is obtained
from, among others, oil and water mixtures
that have been reprocessed at ATM. Gases
released during pyrolysis are also used as
fuel. Waste gases from the thermal purifi-
cation installation pass through a treatment
system that consists of an afterburner,
coolers, electro-filters and dust filters.
2.1.2 Pyrolysis
The purpose of the pyrolysis instal-
lation is to decompose solid flammable
waste materials, packaged or in bulk, by
means of a thermal process. The mass is
thereby reduced by approximately 50%.
The gas released during pyrolysis is used
to fuel the thermal purification installation,
and the residual metal packaging is reused
or recycled. ATM has applied for a license
to process internally released solid waste
matter (residue from filters, ships' tanks,
and road tankers) and third parties' used
chemical packaging, paint waste, and other
flammable, solid hazardous waste sub-
stances (filter cake containing oil, contami-
nated bio-slib, contaminated plastics). ~
2.1.3 Substitute Fuel System
The substitute fuel system process-
es organic waste delivered directly, and
organic waste from the water-treatment
installation, and the sludge installation. The
process mainly involves gravitational sepa-
ration, which results in three layers of mate-
rial: a floating layer (primarily organic
constituents), a water fraction and a sludge
fraction. The gravitational separation is
facilitated by raising the temperature of the
material, and also by the addition of emul-
sion splitters as necessary. In addition to
the oil fraction thus obtained, the oil fraction
from the three-phase decanter in the
sludge installation is also used.
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2.1.4 Sludge Processing Installation
ATM has a sludge-processing instal-
lation that is used for internally as well as
externally produced sludge. The internal
sludge is produced during the various stages
of the water-treatment process and also
comes from storage-tank sediment. External
sludge shipments include sludge produced
during industrial purification, and by oil/water
separators and process sewer systems.
The sludge installation consists of
a filter press with four decanters. The filter
press is used to process biological sludge
from the water-treatment installation and
external sludge that does not contain oil.
The decanters can process sludge that
either does or does not contain oil. In the
decanters, the sludge is separated into a
sediment fraction, an oil fraction and a
water fraction. The oil released during the
process is used as substitute fuel. The
water is transported to the water-treatment
installation and the sediment is processed
in the pyrolysis installation.
2.1.5 Water Treatment Installation
ATM's water treatment installation
processes wastewater with a high COD
[chemical oxygen demand] value. The
wastewater comes from internal as well as
external sources. The installation consists
of a series of buffer tanks in which the
water is received, a flocculation/flotation
unit (FFU) and a sequencing batch reactor
(SBR) for biological purification. The FFU
removes solid and liquid particles suspend-
ed in the water and deposits a number of
heavy metals as hydroxides. The solid par-
ticles (FFU sludge) are separated out and
processed in the pyrolysis installation.
The wastewater is then treated in
the SBR by means of aerobic decomposi-
tion of soluble organic material. In addition
to the COD process (85% yield), nitrogen
(50% yield) and phosphate (50% yield) are
also removed.
2.1.6 Ship Cleaning And Port
Reception Facilities
Ship cleaning involves the removal
of cargo residues (chemicals) from ships'
tanks! and storage holds usijig cold water,
or hot water and steam. The wastewater
from this process is treated in the ATM
installation. Other ship's waste and cargo
residues are received on shore and gases
in the tanks can be removed and/or ren-
dered inert with nitrogen.
3 POSITION OF THE COMPANY IN THE
EUROPEAN MARKET
i As mentioned, ATM; is one of the
largest waste-processing companies in
Europe, and is part of an international con-
cern. A substantial proportion of ATM's pro-
cessing capacity is used for treating waste
from other countries (primarily EU coun-
tries)-! ln Particular. soil (frPm Germany,
Belgium and Luxembourg) and paint waste
(from (Spain) are delivered from outside the
Netherlands in addition to waste from the
domestic market. Soil and pa|int waste from
other countries account for ^approximately
20-25;% of the total volume! delivered for
processing. It has been noted that ATM hais
applied for a license to process 1 million
tons
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VERHEUEN
163
enforceability should be the goal for licens-
ing procedures.
Following the investigations and
reports, the competent authorities, the
police and the Public Prosecutions
Department held frequent discussions at
an administrative level on the situation at
ATM. During these discussions, the parties
emphasized the desirability of formulating a
joint strategy for enforcement in order to
render the situation at ATM manageable.
The decision was taken to set up an ATM
Enforcement Team.
The purpose of the Enforcement
Team was to monitor compliance with all
forms of environmental legislation at ATM,
and where necessary to enforce compli-
ance obligations. The objective was to real-
ize this effectively and efficiently on the
basis of close cooperation between the
.administrative and legal enforcement part-
ners. The cooperation must provide insight
into the company's activities for the compe-
tent authorities. This means that violations
can be observed earlier and dealt with
more effectively.
5 AN OVERVIEW OF THE AUTHORITIES
INVOLVED AND THEIR POWERS.
A number of authorities are
involved in monitoring ATM. Their responsi-
bilities are described briefly below.
5.1
Province Of Noord-Brabant
The Province of Noord-Brabant
derives its powers from the Environmental
Management Act. Under this Act, the
province issues licenses and acts as a
supervisory authority. An environmental
license places requirements on all the
activities of a company. The company
applies for a license, enclosing a detailed
description of its processes. The descrip-
tion must include all the "ins and outs" of
those processes. The company must
explain why each activity is necessary, and
whether there are alternatives which would
.result in less environmental impact. The
license places requirements on maximum
emissions, processing capacity, and the
internal administrative organization. It also
specifies the criteria for accepting and pro-
cessing waste materials, and places
requirements on technical installations, etc.
5.2 Higher Water Board Of
West Brabant (Hwb)
The Waterboard is the competent
authority with regard to the discharge of
wastewater into sewage systems connected
to a central water-purification plant. ATM also
requires a license for discharging wastewa-
ter, and must submit more or less the same
information as required for a license under
the Environmental Management Act. The
waterboard derives its powers from the
Pollution of Surface Waters Act.
5.3 Directorate-General For Public
Works And Water
Management (Rws)
This Directorate is the competent
authority with regard to all discharges into
national waterways. A license is also
required. The Directorate derives its powers
from the Pollution of Surface Waters Act.
5.4 Municipality Of Moerdijk
The municipality is the competent
authority under the Housing Act and the
Spatial Planning Act. Licenses are required
for the construction of buildings and instal-
lations. Applications must include informa-
tion on, for example, the materials to be
used, and the height and layout of the
structure. If a structure complies with the
land-use plan, a building permit is issued
on the basis of this information, subject to
the specified conditions.
5.5 Inspectorate For The Environment
The Inspectorate is responsible for
monitoring compliance with EVOA regula-
tions. These regulations ensures that ship-
ments of waste materials within, to and
from the EU comply with the conditions.
Approval is required for inward shipment,
outward shipment and transhipment.
Approval is only granted if the applicant has
a license for receiving and processing the
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
waste in question. The Inspectorate also
acts as legal adviser to the Province with
regard to issuing environmental licenses.
5.6 The Police And Public
Prosecutions Department
These enforcement partners
become directly involved in compliance
with regulations and legislations once an
offence has been committed. They do not
take action before that stage. The police are
usually directed by the Public Prosecutions
to investigate incidents at the request of
one of the above authorities. The police are
involved in acquiring specialized knowl-
edge of ATM's complex processes and
organization as the necessity arises, in
order to carry out criminal investigations
more effectively.
6 COOPERATION
6.1 Approach
A consultative platform has been
set up relating to ATM in order to provide
support at administrative level for the vari-
ous authorities. The following authorities
participate in the ATM platform: the Higher
Water Board of West Brabant; the
Directorate-General for Public Works and
Water Management (South Holland
Department); the Environmental Protection
Inspectorate (Southern Region); the
Ministry of Housing, Spatial Planning and
the Environment; the Public Prosecutions
Department; the Central & West Brabant
Police; the Municipality of Moerdijk and the
Province of Noord-Brabant.
Based on previous experiences
with ATM relating to administrative as well
as criminal law, the Platform decided to set
up an ATM enforcement team. A project
manager was appointed for this purpose.
During the project phase, the basic role of
the team was to monitor ATM's compliance
with license stipulations, investigate ATM's
eligibility for licenses, to guarantee the
enforceability of the licenses and to provide
support in the license-granting process,
either voluntarily or on request.
Before the Enforcement Team was
set up, a procedure was already in
progress for various new licenses under the
Environmental Management iAct (see 3.1)
and the Pollution of Surface Waters Act
(see 3.2 and 3.3). The team's responsibili-
ties were based on this. The: Enforcement
Team was given a number of tasks directly
related to the licensing procedure. A plan of
approach was drawn up in prder to struc-
ture the activities of the team. The plan
includes several sub-projectsi
1. assessment of the administrative organi-
zation/internal control arid policy oh
acceptance and processing;
2. activities with a view to realizing enforce-
able licenses; and •
3. actual enforcement at ATM by the
Enforcement Team
These sub-projects are based on a
thorough risk analysis, whic(i was carried
out during several very intensive team ses-
sions. The risk analysis w^s based on
license applications submitted by ATM. In
the risk analysis, every stage of the pro-
cesseis was assessed, and the acceptance
-» reception -» storage -» treatment/pro-
cessing -» emission/discharge/disposal
procedure was examined in each case. The
level ipf environmental risk was also deter-
mined for each stage.
, The risk analysis consisted of
administrative as well as technical compo-
nents. The analysis resulted in points that
required attention, which have been incor-
porated in the three sub-projects named
above. Eventually, all the processes were
assessed and the required knowledge
gathe'red on the risks inherent throughout
the entire operation. Several visits were
made to ATM during the risk analysis, and
staff at ATM explained the technical pro-
cesses in detail. The presentations given by
ATM have resulted in a greater understand-
ing ol the company's technical and adminis-
trative procedures. The mejnbers of the
Enforcement Team unanimously agreed
that tine risk analysis was an essential stesp
in understanding the processes at ATM.
They would not have acquired such detailed
knowledge if the license applications had
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VERHEUEN
165
been the only source of information.
6.2 Allocation Of Responsibilities
In the new licensing situation, there
is a clear difference in the allocation of
responsibilities between the authorities.
The Directorate-General for Public Works
and Water Management is primarily
responsible for wastewater flows that do
not originate from ATM. The Higher Water
Board for West Brabant has specified
requirements relating primarily to discharge
points, and now places far fewer require-
ments on the actual process. The Province
has an important additional responsibility.
Previously, ATM's water-purification instal-
lation was the exclusive responsibility of the
Higher Water Board, but this has now been
added to the tasks of the Province.
Outside the requirements for the
administrative organization/internal control
specified under the various licenses, there
are very few common work areas, so it
would appear no longer useful to carry out
supervision using an enforcement team in
which all the competent authorities are rep-
resented. This suggests that the partners
monitor compliance independently, and
'pool' their results through periodic meet-
ings and feedback. There is an explicit obli-
gation whereby parties inform each other of
relevant points arising during supervision
inspections. The only clear overlap that
remains is in the area of administrative
supervision (i.e. the functioning of the
administrative organization/internal control.
It is therefore logical that this type of super-
vision is carried out jointly.
The Province of Noord-Brabant
coordinates the Enforcement Team. The
core team meets every two months and is
responsible for coordinating preventive and
coercive supervision. When necessary, the
core team may decide to involve other
organizations in the supervision, for exam-
ple the organizations named above or other
experts such as process safety specialists.
The members of the core team provide
feedback for their constituents on the basis
of minutes from meetings. The core team is
responsible for:
1. planning supervision dates;
2. enforcement letters/orders;
3. the availability of current licenses;
4. the circulation of supervision-reports
(as necessary);
5. the circulation of test reports
(as necessary); and
6. circulating notification of approval
(e.g. for procedures, test processing)
and other correspondence between the
parties and ATM, and vice versa (as
necessary).
6.3 Supervision Plan
Based on the technical and admin-
istrative risk analysis, the objects to be
monitored are specified in a supervision
plan, stating when and by which team
member the inspections will be carried out.
Questions are formulated which must be
answered during the inspection visit. Each
authority will carry out the supervision at
ATM under its own management, based on
the schedule and work allocation drawn up
by the parties. During inspections, points
are noted of which the other authorities
must be informed. Reference points are set
out in the checklists used by each authority
during inspections.
7 RESULTS
The ATM Enforcement Team has
now performed for about 1.5 years. After a
starting period of several months, in which
the risk analyses were made, the team
started with the enforcement activities at
ATM. Enforcement checklists were pre-
pared to perform what is called attention
enforcement. Methods were developed to
simplify the technical and administrative
enforcement and a structure of consulting
together has been set up. With this consult-
ing structure the exchange of relevant infor-
mation necessary for an effective and
efficient enforcement is organized.
Several visits to the site were per-
formed and a certain amount of violations
of permits and other environmental laws
were determined. It was clear that all per-
mits were violated, and the violations var-
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166
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ied from details to totally illegal activities. To
stop the violations the administrative and
criminal enforcement instruments were
successfully applied. Enforcement strate-
gies were adjusted to organize the enforce-
ment steps of the involved authorities. It
was important to avoid new violations while
solvirlg prior ones and cooperation in
developing a joint strategy is! crucial.
! Figures 2 and 3 illustrate that the
joint pnforcement effort delivers environ-
mental compliance results! The figures
show 1 clearly that after the project start at
the end of 2000, and after several enforce-
Figure 2: Number of violations per quarter on air emission levels
on ..
ou
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ou
ou
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. _
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* .-• . ; .. I' I fci'fe&li "" ,' " ' "' ',
i":;;-; F 4
jul-sep 2000 oct-dec 2000 jan-mar 200
Figure 3: Number of violations per month on dis
ir '
Af\
fU
•at; _
oo
oU
otz —
on —
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•in —
5_
0
;; •'. • •
1 apr-jun 2001 jul-sep 2001
•'• ' • Mli"'! . . ! '.
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:narge levels sewer system
R . <;•<• ; •..
F^^
(ij^a ,•',»', r • '• ,'.
W^-^
W534
^; m : • '•"• ::/:; : • : ••• -
1;" H
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,-~ ?^
jan feb mar apr may jun jul
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aug sep oct nov dec
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In, t • ' - .', .'*
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VERHEUEN
167
ment visits focused on the air emissions,
the number of violations decreased from
about every day to once a week. This was
a decrease of approximately 90% to a more
acceptable level. Also shown is that with a
straight enforcement initiative the increase
in the violations with respect to the dis-
charge levels to the sewer system was
stopped.
8 EVALUATION
Experience has shown that the
success of an Enforcement Team is not a
foregone conclusion, but depends on a
number of factors both within and outside
the team's sphere of influence. The suc-
cess of such an enforcement team
depends on the following:
1. acquisition and maintenance of knowl-
edge within the team;
2. the team's ability to define the limits of
its abilities and engage external exper-
tise in good time;
3. open lines of communication between
team members;
4. open lines of communication between
the internal departments of partner
organizations;
5. satisfactory organizational guarantees
regarding the deployment of
staff/resources;
6. adequate follow-up in enforcement pro-
cess relating to administrative and crimi-
nal law;
7. incorporation of the Enforcement Team's
recommendations in the enforcement
and licensing procedures;
8. knowledge of the international waste-
processing market; and
'ATM has applied for a pyrolysis license, but
the Province of Noord-Brabant does not
intend to issue this. This will partly deter-
mine the future situation at ATM.
11 Application for environmental license,
January 2001 Quality of licenses
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168
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
I • ' I'll
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TENNEKES
169
NOISE NUISANCE CREATED BY CATERING ESTABLISHMENTS
IN THE NETHERLANDS
TENNEKES, M.J.
Deputy Inspector, Inspectorate Of Housing, Spatial Planning And The Environment For
The Eastern Region Of The Netherlands, Post office Box 136, 6800 AC Arnhem The
Netherlands
SUMMARY
Recreational noise, to which catering establishments also contribute, is one of the
top five forms of noise nuisance in the Netherlands. This article discusses the legal frame-
work, the noise regulations to be used, the standard music spectra used in the Netherlands
and the noise levels occurring both inside and outside the establishments concerned. It
also examines indirect nuisance in the vicinity of catering establishments, events and the
spatial policy of municipal administrations with regard to these types of establishments
and explains the enforcement of the noise requirements by the appropriate authorities
1 INTRODUCTION
Municipalities have for many years
had to cope with the control of noise nui-
sance originating from what are known as
recreational establishments, and particular-
ly from catering establishments (for exam-
ple: bars, cafes and discotheques).
Nowadays municipalities in the
Netherlands have at their disposal a set of
legal instruments contained in the
Environmental Management Act and the
Environmental Management Catering,
Sports and Recreational Establishments
Decree (hereinafter referred to as the
Catering Decree) which is based on it, with
which to tackle nuisance resulting from
recreational noise. Generally speaking,
most municipalities have also laid down
rules, such as general municipal by-laws
(APV's) and municipal building regulations,
in municipal by-laws.
This article examines the most
important aspects of the legislation regard-
ing the regulation of noise nuisance origi-
nating from catering establishments, the
acoustic investigations carried out and the
standard music spectra to be used for
these investigations as well as the noise
levels occurring both inside and outside the
establishments concerned. The spatial pol-
icy concerning catering establishments and
enforcement of noise requirements also
discussed, as are lessons learned in
actions actually taken to enforce applicable
requirements.
2 LEGAL FRAMEWORK
Noise regulation commenced in
the 1980s with the drawing up of general
rules for companies within the framework of
the deregulation operation: Action Program
for the Deregulation of 'Spatial Planning
and Environmental Management. The
license requirement - then under the
Nuisance Act and now under the
Environmental Management Act - was
replaced by a system of general rules or
standard regulations. This type of decree
(order in council) is based on Section 8.40
of the Environmental Management Act. The
Catering Decree of 20 May 1998 applies to
catering, sports or recreational establish-
ments. This order in council went into force
on Oct. 1, 1998.
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE ANP ENFORCEMENT
2.1 Environmental Management Act
Catering, sports and recreational
establishments that do not fall under the
Catering Decree, still require a license pur-
suant to the Environmental Management
Act. The license requirement applies if:
1. an environmental effect report has to be
drawn up for the establishment concerned;
2. permanent provisions are present in the
establishment for the simultaneous
presence of more than 2,000 visitors, for
example, a very large hotel or mega-dis-
cotheque;
3. permanent provisions are present in the
establishment for the simultaneous
presence of more than 6,000 specta-
tors, for example, a large football stadi-
um, large sports hall;
4. the establishment has one or more pro-
visions for recreational purposes with a
capacity of more than 500,000 visitors
annually, for example, a very large
amusement park, such as the Efteling,
Beekse Bergen or Six Flags Flevoland;
and
5. the establishment provides recreational
lodgings for the night in more than 400
holiday homes, for example, a large
holiday park.
2.2 Environmental Management
Catering, Sports and Recreational
Establishments Decree
(Catering Decree)
The Catering Decree is estimated
to cover 38,000 establishments in the
catering sector, 20,000 establishments the
sports sector, and 8,000 establishments in
the cultural and recreational sector. The
Catering Decree is applicable to various
types of establishments, including the fol-
lowing:
1. hotels, restaurants, boarding houses,
cafes, cafeterias, snack bars, bars, dis-
cotheques, community centres, club
houses or similar establishments;
2. dancing schools, dance halls, music
schools, drama schools etc;.
3. cinemas, theatres, music Centres, cori-
fere^nce centres etc;
4. spqrts schools, outdoor or indoor sports
corhplexes etc; and [
5. casiinos, gambling halls etc.
3 NOISE REGULATIONS
i i
i I
3.1 Environmental Management Act
! For establishments that are still
required to obtain a license pursuant to the
Environmental Management i Act, the stan-
dards, are set on the basis of the Industrial
Noisei Ministerial Circular 1979, the target
values for the residential environment and
the reference level of the ambient noise in
principle being normative. The appropriate
authority, usually the municipality, can devi-
ate frbm this on the basis of ;due consider-
ation. If a municipality has laid down a
policy with regard to industrial noise
(including catering noise), such as a munic-
ipal policy document with regard to noise or
municipal noise plan, the standards can be
laid down pursuant to the Guide to industri-
al noise and licensing 1998. This guide can
also be a useful aid in setting additional
requirements pursuant to the Catering
Decree.
"I". ,,., j n,f
i i :!
3.2 i Environmental Management
Catering, Sports and Recreational
Establishments Decree
(Catering Decree)
The following points apply to estab-
lishments that fall under the Catering
Decree with regard to noise regulations:
"I-"" i i
1. Th^ equivalent noise level (LAeq) and the
peak noise level (Lmax) caused by the
equipment in the establishment, as well
as by the activities taking place in the
establishment, may not exceed the val-
ues given at the places arid times stated
in table 1. :
3.3
tion of
Areas with high concentrations
of catering establishhnents
In an area with a high concentra-
: catering establishments, the equiva-
~ ' ' ' ~ i ' ., ' i I|M
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TENNEKES
171
Table 1: Catering Decree Noise Regulations
L-Aeq at outer wall of houses
L.Aeq in integral or adjoining house
Lmax at outer wall of houses
Lmax in integral or adjoining house
07.00-19.00
hours
50 dB(A)
35 dB(A)
70 dB(A)
55 dB(A)
19.00-23.00
hours
45 dB(A)
30 dB(A)
65 dB(A)
50 dB(A)
23.00 - 07.00
hours
40 dB(A)
25 dB(A)
60 dB(A)
45 dB(A)
Table 2: Noise Regulations within a house or other noise-sensitive building in an
area with a high concentration of catering establishments
,L.Aeq in house
Lmax in house
07.00-19.00
hours
35 dB(A)
55 dB(A)
19.00-23.00
hours
30 dB(A)
50 dB(A)
23.00 - 07.00
hours
25 dB(A)
45 dB(A)
Table 3: Correction values (Cpm) for the A-corrected "standard pop music spectrum'
Frequency (Hz)
Cpm
63
-27
125
-14
250
-9
500
-6
1k
-5
2k
-6
4k
-10
Table 4: Correction values (Chm) for the A-corrected "standard house
music spectrum"
Frequency (Hz)
Chm
31.5
-38
63
-13
125
-8
250
-8
500
-7
1k
-7
2k
-9
4k
-10
lent noise level caused by the equipment in
the establishment as well as by the activi-
ties taking place in the establishment, may
in no case exceed the prevailing reference
level of ambient noise or exceed the values
given in table 2 within a house or other
noise-sensitive building.
4 STANDARD MUSIC SPECTRA
Special attention is required for the
spectrum used in the acoustic investigation
for determining the noise abatement provi-
sions needed or the maximum permitted
noise level in the establishment by means
of a noise limit switch. In order to increase
the reliability of acoustic reports and to
facilitate assessment of these reports by
the appropriate authorities, it is advisable to
base standards for regular bars/discothe-
ques, and party halls on the "standard pop
music spectrum" given below in table 3.
For house music played in bars/dis-
cotheques, party halls, marquees, sports
halls and such, it is advisable to base acous-
tic calculations on the "standard house
music spectrum" given below in table 4.
Ninety-five percent of the calcula-
tions can probably be based on the above-
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
mentioned standard spectra. Another spec-
trum can, of course, be used in special situa-
tions, if there are sufficient grounds to do so.
5 NOISE LEVELS
The prevailing noise level of the
music played in catering establishments
generally depends on the type of music and
therefore on the type of establishment.
Most people know from their own experi-
ence that very high noise levels can occur
in catering establishments where music is
played. Practical experience shows that the
equivalent noise levels given in table 5 can
be heard at different types of catering
establishments.
In addition to the musical noise
within the catering establishment, a signifi-
cant form of noise nuisance is caused by
the visitors. This is the noise produced dur-
ing the arrival and departure of visitors'
cars, most noise being caused by the start-
ing of engines, the closing of car doors, the
sounding of the horn and subsequent
acceleration of cars at full speed. See table
6 for examples of acoustic capacity sources
\"-wmax/' '
; The starting and acceleration of
visitors' motorbikes and mopeds may also
be a ibource of noise nuisance. The visitors
themselves also often make quite enough
noise! (singing, shouting, fighting or hitting
cars etc.) The types of nuisance originating
from catering establishments and their visi-
tors can be categorized according to what
is known as the 'indirect nuisance' they
caus
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TENNEKES
173
quences do not go on indefinitely. Only the
consequences for the direct vicinity have to
be taken into account. The Environmental
Management Act replaced the former
Nuisance Act on March 1, 1993. The func-
tion and scope of the Environmental
Management Act are different from those of
the Nuisance Act.
The line of approach of prevention
of danger, damage and nuisance of the
Nuisance Act was replaced in the
Environmental Management Act by the
approach that as much environmental pro-
tection as possible should be required, and
that all the possible consequences for the
environment must be taken into considera-
tion. Attention is also paid to. indirect nui-
sance in the Catering Decree. The
appropriate authority can set additional
requirements regarding the traffic of people
and goods to and from establishments in
problematic situations. The ministerial cir-
cular of 29 February 1996 from the Minister
of VROM, "Noise nuisance caused by the
traffic to and from the establishment;
assessment within the framework of licens-
ing pursuant to the Environmental
Management Act" is a useful aid in deter-
mining and assessing the noise nuisance
caused by such an establishment.
7 SPATIAL POLICY
A great many environmental prob-
lems in residential areas can be prevented
by means of a good spatial policy, and pre-
vention is still better than cure. The zoning
plan forms the coordination framework
between the environmental and spatial poli-
cies at municipal level. With the aid of the
zoning plan, the field of tension between
environmentally harmful and environmen-
tally sensitive purposes can be controlled
by optimum teamwork between environ-
mental and spatial planning. Standards for
the protection of the environment can be
included in zoning plans such as licensing
standards (list of companies and suchlike)
and collective standards (noise zones,
safety zones etc.)
In 1992, the Association of
Netherlands Municipalities (VNG) included
an APV license requirement for the exploita-
tion of catering establishments in the model
APV under supervision of catering estab-
lishments. On the basis of this requirement,
the municipality can prevent undesirable
developments for the protection of the resi-
dential environment or the public order. The
license can be refused if the character of
the road or district might be negatively
affected by a catering establishment. A local
policy document on catering establishments
or .similar document may, for example, be
useful in assessing such matters.
Within the framework of what is
known as an 'area policy', municipalities
can implement a policy which is specific to
the locality. The Catering Decree provides
for such an area with a high concentration
of catering establishments with its specific
noise standards (see section 3, Noise
Regulations). It is advisable to site mega-
discotheques and comparable catering
establishments at places where the ambi-
ent noise level is already high, such as
large zoned industrial sites and/or near
busy motorways (as is the case in France)
at considerable distances from houses and
other noise-sensitive buildings.
8 EVENTS
Events are activities of relatively
short duration that do not take place very
often, for example: fairs, bazaars, festival
weeks, cycle races, outdoor concerts and
the like. There is no central regulation for
the noise standards to be set for events.
The noise regulations in the Catering
Decree are not applicable to the celebra-
tion of collective festivities (Mardi Gras,
fairs, cultural or sports and recreational
events) which are designated in or pur-
suant to a municipal by-law, in the areas for
which the by-law applies They also do not
apply to other activities with an individual
character that take place within the estab-
lishment, the number not being allowed to
exceed 12 days per year. Excessive and
avoidable noise nuisance must of course
be prevented on these special days, or ho\-
idays, too (for example: a noise limit switch
is compulsory at fairs in the big cities).
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The principle of, "residents should
get a good night's sleep" should be
adhered to. Furthermore, those who live in
the vicinity of an event should be informed
in advance of the duration and closing
times allowed and the agreements made
must be enforced by the appropriate
authority. In connection with the preventive
enforcement, it is advisable to make agree-
ments with the public prosecutor (OM) and
the police that what is known as a 'tit-for-tat
policy1 will be used at events, and to make
this clear to the license holders and those
exempted from the license requirement.
Because events are generally of a
short duration, it would seem acceptable to
take the noise-sensitive inner rooms of the
noise-sensitive buildings in the vicinity as
the points of departure for the noise stan-
dards to be laid down rather than the recre-
ational areas outside. In order to prevent
"intolerable nuisance" from arising, the
highest value of the following two noise lev-
els should be adhered to as the maximum
acceptable noise level within noise-sensi-
tive rooms:
1. the background noise level (L9S) + 20 dB,
or
2. the absolute noise level of 50 dB(A).
Assuming a value of 20-25 dB(A) for the
average outer wall insulation of normal
houses, this approach yields the maxi-
mum allowable received noise levels by
outer walls given below in table 7.
In the night time (from 23.00 hours)
it is advisable to use 'whether residents are
able 1o sleep or not' as the test criterion.
Giver the character of the noise (in the
case pf music, whether the text and/or the
rhythm is recognizable or not), it is a known
fact that many people experience sleeping
problems when the recommended limiting
values are only slightly exceeded. For this
reason, it is advisable to allpw only "back-
ground music" during the night time. In the
case pf events that take placje in the vicini-
ty of noise-sensitive buildings, it is even
better to fix the closing times'at 23.00 hours
at the latest. ] '.
A well-considered Choice of trie
location of events, in which {he arrival and
departure of visitors and the parking pres-
sure have also been incorporated, can pre-
vent the environment from being exposed
to excessive received noise levels.
9 ENFORCEMENT :
9.1 Legal basis :
I
Section 21 of the Constitution
states that the government's concern is to
focusj on the protection and improvement of
the residential environment. jAmpngst other
things, the government holds companies
accountable for their legal responsibilities
regarding the protection of the environment
on the basis of its public responsibility. The
responsibility of the government and the
companies concerned is translated into
concrete terms by means of the standards.
Pursuant to Section 18.2, under
the (Environmental Management Act, the
appropriate authorities are responsible for
Table 7: Standards based on nuisance/voice audibility/sleep disturbance
Period
07.00 - 19.00 hours
19.00 -23.00 hours
23.00 - 07.00 hours
(night)
Basic
standard
35 dB(A)
30 dB(A)
25 dB(A)
Maximum
level insid
50 dB(A)
50 dB(A)
45dB(A)
25 dB(A)
e
Outer wall
insulation
20 - 25 dB(A)
20 - 25 dB(A)
20 - 25 dB(A)
Maximum
received noise
levels by outer
walls
70 - 75 dB(A)
65 - 70 dB(A)
65 - 70 dB(A)
45 - 50 dB(A)
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TENNEKES
175
the administrative enforcement of that
which is laid down in or pursuant to the
laws concerned or the Catering Decree. If
the appropriate authority, in this case the
municipality, judges that an entrepreneur
has made an incorrect report for his com-
pany, the enforcement duty contained in
the Environmental Management Act results
in the appropriate authorities notifying the
entrepreneur that a license is required for
the establishment, and that without a
license the law is being violated.
From the coercive angle, third par-
ties can submit a request for enforcement to
the appropriate authorities if an establish-
ment does not meet the regulations
(Section 18.14, paragraph 1, Environmental
Management Act). The appropriate authori-
ties must respond to such a request within a
month. In addition to the administrative
approach, criminal proceedings can also be
initiated against violations of the law and the
decree and regulations based on them. The
basis for such actions is included in Section
1a, under 1 and 2, of the Economic
Offenses Act.
9.2 Enforcement in practice
Generally speaking, the enforce-
ment of directives pertaining to technical
means is not difficult and can, in theory, be
checked by any member of the environ-
mental department of the municipality or
police. Technical means included in direc-
tives include keeping doors and windows
closed, using noise limit switches that have
been set and s,ealed on musical equipment
by the appropriate authorities, requiring
silencers on ventilation units, and placing
clearly recognizable supervisors in the
immediate vicinity of the establishment.
Generally speaking, the enforcement of the
mandatory targets concerning noise is
more complicated, because this involves
the taking of noise measurements and
requires thorough acoustic training and
knowledge of the regulated businesses.
Measures are taken according to
the following scheme:
1. Outside the front wall of the house or
noise-sensitive building or at reference
points, which have been laid down in the
establishment's license or by the appro-
priate authorities, by means of an addi-
tional requirement in the event that the
establishment falls under the Catering
Decree;
2. The noise regulations contained in the
Catering Decree (tables 2 and 3) do not
apply if the user of the houses does not
agree to the reasonable taking of noise
measurements or having noise mea-
surements taken;
3. Checks or calculations of the noise levels
must take place in accordance with the
Handbook for the measurement and cal-
culation of industrial noise IL-HR-13-01
of March 1981 (as referred to in the
Catering Decree and the licensing regu-
lations) or the new Handbook for the
measurement and calculation of industri-
al noise of 1999 (new Environmental
Management Act licenses);
4. Measurements for the checking of noise
levels within houses must be taken at a
distance of at least 1m from the walls,
1.5m above the floor and 1.5m from the
windows. Measurements must be taken
at a minimum of 3 points and, in the case
of low-frequency noise, at more than 3
points, if necessary; and
5. The energy measured must be averaged
and the assessment of the results mea-
sured must take place in accordance
with the abovementioned handbook. The
doors and windows must be closed at
the time measurements are taken.
9.3 Prosecution
In practice it is not a simple matter
to prosecute catering establishments suc-
cessfully. The example given below, which
actually took place, demonstrates this
clearly.
A municipality prosecuted two
bar/discotheques, which did not meet the
noise regulations contained in the Catering
Decree and caused noise nuisance in the
surrounding vicinity. The municipal environ-
mental department had taken various noise
measurements in the vicinity of the two
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
bar/discotheques and administrative penal-
ties were subsequently imposed. The pub-
lic prosecutor of the sub-district of the
Arnhem District Court summoned both the
bar owners to appear in court. At the ses-
sion of the police court for economic offens-
es, the cases were referred to the
three-judge section for economic criminal
matters of the Arnhem District Court.
During the proceedings, the following
cases were brought forward as discussion
points; they were very instructive.
1. Checks on the noise levels laid down in
the regulations 2.1 through 2.6 contained
in the Catering Decree must take place
in accordance with the Handbook for the
measurement and calculation of industri-
al noise IL-HR-13-01 of March 1981,
according to regulation 2.9 of this
Decree. Assessment of the results mea-
sured must also take place in accor-
dance with this handbook. According to
the handbook, direct measurement of
the noise emissions is preferable. Since
this case concerns musical noise,
method B1 in the handbook must, in
principle, be used. The explanation
accompanying the Catering Decree indi-
cates that, in simple cases, method A1 is
sufficient. This also applies to those situ-
ations in which complaints justify the
assumption that the establishment
exceeds the acceptable noise levels.
Recommendation: The decision not
to use method B1 for measurements must
be well founded. The municipality chose to
use method A1 without good reason.
2. According to the main regulation of
Section 2.1 of the regulations contained
in the Catering Decree, the noise nui-
sance must exist at the house of third
parties, other noise-sensitive buildings
and - in so far as no houses of third par-
ties or noise-sensitive buildings are situ-
ated within a distance of 50 meters of the
establishment - at any point 50 meters
from the establishment. If, due to ambi-
ent noise levels, the measurements can
not be taken at the houses closest to the
establishment, or 50 meters from the
establishment, .the appropriate authori-
ties; can, according to Section 2.11 of the
Catering Decree, set an additional
recluirement concerning the laying down
of reference points at which measure-
mejnts are possible and must be taken. If
ambient noise is ascertained at the emis-
sion point, the "Handbook for the mea-
surement and calculation of industrial
noise" provides for a measurement at a
reference point to be selected, at which
thei signal-to-noise ratio is better (this is
usually closer to the source). The noise
level can then be extrapolated to the
emission point from the reference point
with the aid of a simple transfer calcula-
tion. Although no such additional require-
ment was laid down in trie municipality
by the appropriate authorities, measure-
ments, have been taken at reference
ponts. |
Recommendation: The decision not
to use method B1 for measurements must
be well founded. The municipality chose to
use rhethod A1 without good reason.
3. When taking measurements in a situa-
tion where various ppise-producing
establishments are closely situated, it is
nepessary to select reference points
ck»se to the bar/discotheque to be
chbcked in order to ensure that the noise
level measured originates from this
establishment. According to the bar own-
ens' lawyer, the municipality took mea-
surements at different points each time,
sofnetimes even further from the estab-
lishment than the closest house. The
lawyer tried to imply that the municipality
just muddled along, while !a noise expert
from the municipality had argued in a
written statement that he had intended to
make a lenient assessment of the
ba,r/discotheques. Generally speaking, a
number of problems can arise when taik-
ing measurements close to a bar/dis-
cotheque, such as: :
L i I •„
a. disturbance of the measurement by
public from the bar/discptheque or by
passers-by, or the bar owner realizes
th|at a measurement is being taken and
tuirns the volume down; or stops the
rriusic altogether. Solution: after some
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TENNEKES
177
time, take another measurement or take
measurements inside and outside the
establishment simultaneously.
b. there is a car parked, coincidentally or
otherwise, at the given measuring point.
Solutions: lay down various measuring
points.
Recommendation: The location of
the measuring points selected must be well
founded and it must be demonstrated that
the noise levels measured do indeed origi-
nate from the bar/discotheque concerned.
In the case of repeated measurements,
measurements must consistently be taken
at exactly the same points.
4. During the taking of measurements, the
company must be functioning in a fashion
typical of its normal operation. According
to the lawyer, the municipality took mea-
surements lasting 1-2 minutes without
grounds. The lawyer claims that the pic-
ture obtained during such a short period
of measurement is not typical of the nor-
mal situation of the establishment.
Recommendation: Given that
musical noise fluctuates considerably, it is
necessary to measure several numbers;
the duration of measurement shall, there-
fore, be at least 10-15 minutes (3 to 4 sam-
ples) or a large number of measurements
must be taken of shorter duration, for
.example 3-5 minutes (1 sample).
5. The equivalent noise levels of musical
noise measured by the municipality, plus
a 10 dB penalty correction factor, were
almost as high as the peak noise levels
measured (excluding the musical noise).
The noise requirement for the equivalent
noise level was exceeded by approxi-
mately 20 dB(A) and that for peak noise
level by about 2-3 dB(A). This gave rise
to a great deal of discussion and misun-
derstanding during the session. The
judges concluded that it was all very
complicated.
Recommendation: If the musical
noise levels are exceeded to the extent as
,was the case at these bar/discotheques,
from a psychological standpoint, it is sensi-
ble not to bring up the marginal
exceedance of the peak noise levels. In
other words, focus on the most important
matters.
6. The noise measurements taken by the
municipality were carried out a few years
earlier. The lawyer claimed, of course,
that his clients had in the meantime
equipped their bar/discotheques with the
requisite expensive acoustic provisions
and that the noise produced was now
considerably less than was previously
the case.
Recommendation: It is advisable to ,
bring the case to court as quickly as possi-
ble, so that "old" cases are avoided.
Another possibility is to take several new
measurements a few weeks prior to the
session in order to obtain a picture of the
current situation.
Conclusion
It is advisable to take the recom-
mendations summarized above into
account to ensure that prosecutions are
successful and it is also advisable to call in
the aid of the appropriate authorities' noise
expert, or other noise expert, when the
summons is drawn up by the public prose-
cutor.
10 LITERATURE
1. The Environmental Management Act of
13 June 1979, Bulletin of Acts and
Decrees 442 (Environmental Protection
[General Provisions] Act) amended and
expanded into the Environmental
Management Act of 10 May 1994,
Bulletin of Acts and Decrees no. 331.
2. Environmental Management Catering,
Sports and Recreational Establishments
Decree,
Decree of 20 May 1998, Bulletin of Acts
and Decrees 1998 no. 322.
3. Industrial Noise Circular of 1 September
1979, Minister of Health and
Management of the Environment.
4. Handbook for the measurement and cal-
culation of industrial noise, IL-HR-13-01
(1981) Directorate General for
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Environmental Management of the
Ministry of Housing, Spatial Planning
and the Environment.
5. Handbook for the measurement and
calculation of industrial noise (1999),
Directorate General for Environmental
Management of the Ministry of Housing,
Spatial Planning and the Environment.
6. Guide to industrial noise and licensing,
Directorate General for Environmental
Management of the Ministry of Housing,
Spatial Planning and the Environment
MBG 98065226 - October 1998.
7. Noise nuisance caused by the traffic to
and from the establishment; assess-
ment within the framework licensing pur-
suant to the Environmental
Management Act, Minister of Housing,
Spatial Planning and the Environment -
29 February 1996.
8. NSG-Directive low-frequency noise,
NSG-April 1999.
9.Tennekes, M.J., Spectra and occurring
sound levels in bars/discotheques
Geluid en Omgeving - December 1988.
lO.Tennekes, M.J. Standard house music
spectrum, GELUID - June 1995
11. Controlling noise nuisance by catering
establishments, Foundation for Building
Research 1994.
12. Kupers, J.F.C., Trendsetting differences
with the Environmental Catering
Establishments Decree, GELUID -
June 1998.
13. Nuisance and other self-reported
effects of environmental pollution in the
Netherlands Inventory disturbances,
TNO report PG/VGZ/2000.012 -
February 2000
APPENDIX 1
HISTORICAL OVERVIEW
Noise abatement has a long histo-
ry in the Netherlands. A brief historical
overview is given below; several significant
milestones are included:
1810: Decree by Emperor Napoleon: estab-
lishment of license holders !
: Royal Decree: objectives formulated: the
prevention of activities which may result in
danger, damage or nuisance for the envi-
ronment ;
1896: Nuisance Act
1952: Nuisance Act revised
1962: Spatial Planning Act ;
1973: Noise Nuisance Circular
1979:| Noise Nuisance Act, Industrial Noise
Circular
1981:i Nuisance Act amended, Handbook
for trie measurement and calculation of
industrial noise IL-HR-13-01
1992:j Catering Establishment Decree
Nuisaince Act
1993: Environmental Management Act
1996: Indirect Nuisance Circular
1998:! Modernization of Noise Policy
Instruments Policy Document, Guide to
Industrial Noise and Licensing,
Environmental Management Catering,
Sports and Recreational Establishments
Decree '
1999;j New Handbook for the Measurement
and Calculation of Industrial Noise
APPENDIX 2
NOISE NUISANCE IN THE
RESIDENTIAL ENVIRONMENT
I , , j . i , •. -.: ,:
' The Netherlands Organization for
Applied Scientific Research Prevention and
Health (TNO Preventie en' Gezondheid)
periodically carries out a national investiga-
tion for the Noise and Traffic Department of
the lyiinistry of Housing, Spatial Planning
and the Environment withjn the theme
'Disturbance'. The investigation provides
insight into the distribution and the severity
of disturbances due to the npise, vibration,
smell$ and risks experienced. National
noise! surveys have already been carrieid
out four times, that is, in 1977, 1987, 1993
and 1998. ;
The results for noise nuisance (as
percentages of the population) for the last
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TENNEKES
179
Table 1: Top 5 of forms of noise nuisance in the Netherlands
1
2
3
4
5
Noise source
road traffic
neighbors
air traffic
companies
recreation
Severe nuisance in %
1987
28
22
20
9
7
1993
23
13
12
7
5
1998
27
22
13
6
6
Nuisance in %
1987
51
41
34
19
14
1993
36
23
23
14
9
1998
45
40
26
14
13
three surveys are given below in table 1.
From this table, the careful conclusion can
be drawn that the noise nuisance in the
Netherlands has not decreased spectacu-
larly since the appearance of the Noise
Nuisance Act 1979, and that the nuisance,
and severe nuisance, resulting from various
noise sources has increased during the last
five years. Recreational noise holds fifth
place in the top 5 forms of noise nuisance
in the Netherlands.
The nuisance perceived from
recreational noise is caused by fairs
(including circuses, amusement parks and
bazaars), discotheques (including dance
halls and other catering establishments),
musical societies' practicing accommoda-
tion, sports fields (including stadiums,
sports halls, swimming pools, tennis courts,
etc.), racetracks (including motocross
tracks, go-kart tracks, etc.), ultra-light air-
craft, model aeroplanes and events attend-
ed by large numbers of people in the open
air (such as pop concerts and large house
parties in tents). The recreational activities
that cause the greatest nuisance are fairs
(5%), discotheques, dance halls and cater-
ing establishments (4%), large-scale out-
door events (3%) and sports complexes
(2%). One to two percent of the population
perceive noise from recreational activities
to be a severe nuisance. In 1998, 13% of
the population perceived recreational activ-
ities, as a whole, to cause a nuisance and
6%, a severe nuisance.
11n the case of live music, the members of
the band/orchestra often have to put up
with much higher noise levels; these may
be as high as 130 dB(A) (pain threshold!!!).
It is therefore not surprising that many
musicians suffer from hearing loss.
-------
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1 80 SIXTH INTERNATIONAL CONFERENCE ON ENV
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BAREMAN 181
THE INSPECTORATE OF HOUSING, SPATIAL PLANNING AND
THE ENVIRONMENT ENFORCES LEGISLATION ON THE RETURN
OF MATERIALS AND PACKAGING
BAREMAN, PETER
Deputy Inspector, Inspectorate of Housing, Spatial Planning and the Environment
for the Eastern Region of the Netherlands, Postoffice box 136, 6800 AC Arnhem
The Netherlands (telephone: +31-26-3528400, fax: +31-26-3528455, email-
peter.bareman @ minvrom.nl)
SUMMARY
In 2000 and 2001, the Inspectorate of Housing, Spatial Planning and the
Environment carried put enforcement actions focused specifically on manufacturers and
importers of batteries, household electrical equipment or packaged products brought onto
the market in the Netherlands. Separate national 'disposal structures' have been set up for
the collection and processing of these products and packaging which manufacturers and
importers must join.
The Inspectorate suspected that the companies visited were not meeting their legal
obligations. A total of approximately 500 importers and manufacturers were checked, about
60 % of which were guilty of offenses. Those companies that were guilty of offenses were
ordered to pay penalties and were sent an ancillary letter by the public prosecutor with the
urgent request to remedy the violation within a set period. If the company remained in
default, an official report was drawn up at the request of the public prosecutor Most joined
the collective systems within the required period so that the violation was terminated.
The results show that by means of good cooperation with the implementing orga-
nizations, the companies that straggle behind can be effectively "tracked down". The uti-
lization of various means of communication contributed to a visible enforcement of the legal
schemes. The combined administrative and penal approach is also fruitful.
1 INTRODUCTION
1.1 Manufacturer responsibility
In the1990s the instrument
"Manufacturer responsibility" was intro-
duced within the Dutch and European envi-
ronmental policies with the purpose of
achieving more extensive prevention and
Jhe reuse of specific waste streams, such
as batteries, packaging and electrical and
electronic equipment.
I' These waste streams contribute
significantly to the amount of solid waste
that must be disposed of. Control of these
waste streams was also important because
they contain dangerous substances, such
as heavy metals (cadmium, mercury) found
in batteries and chlorofluorohydrocarbons
(CFCs) in refrigerator compressors that, if
not "processed correctly, can cause consid-
erable environmental problems. In order to
collect and process these wastes adequate-
ly, the manufacturers and importers have
been made legally responsible for the dis-
posal of their products in the waste stage. In
the Netherlands, manufacturers and
importers have set up return systems in
order to collect and recycle these discarded
products. The business community has cre-
ated implementing organizations to address
compliance with these legal measures.
1.2 Background information
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182
SIXTH INTERNATIONAL CONFERENCE ON ENV RONMENTAL
. COMPLIANCE AND ENFORCEMENT
. f !'i, '
l,: l • • -
1.2.1 Batteries
In the Netherlands, approximately
180 million batteries (weighing between 0-
1 kg each) are sold annually, which adds up
to more than 5 million kilograms (kg). In
view of the life and what is known as the
home-storage-effect, in which consumers
keep full and empty batteries in stock for a
number of years, 2.5 million kg of these
batteries are disposed of annually.
Approximately 70-80 % of this volume is
collected separately.
The separate collection of batteries
prevents heavy metals (such as lead, mer-
cury and cadmium) from being scattered
throughout the environment via dumping
and burning. Furthermore, it is possible to
recover these substances, and the materi-
als from which the batteries are construct-
ed (including steel, lead, zinc, nickel and
manganese), and to use them again.
Since 1995, the Battery [Disposal]
Decree has obliged importers and manu-
facturers to collect and process discarded
batteries. The Battery Collection
Organization (Stibat) has been established
to this end; it has set up a system for the
separate collection and processing of dis-
carded batteries.
2.1.2 White and brown goods
More than 8 million pieces of
equipment, or approximately 135 million kg
of white and brown goods, are disposed of
in the Netherlands annually. Many of the
components in this electrical household
equipment (including washing machines,
refrigerators, TVs, food processors, tools,
computers and mobile telephones) can
easily be recycled and materials such as
metal, aluminium, copper, glass and plas-
tics can again be used as raw ingredients.
Manufacturers and importers of
white and brown goods have, since
January 1 1999, been legally obliged to col-
lect their equipment separately and pro-
cess it in an environmentally-friendly
manner. The collection percentages
achieved so far vary according to the prod-
uct category. The collection of the large
equipment, such as refrigerators, washing
machines and television sets, in particular,
is on Average above 70 %,' refrigerator col-
lection reaching almost 100 %.The collec-
tion percentage for smaller equipment,
such
tronic
as electric razors, walkmans, elec-
toys is currently 50 %.
2.1.3 Packaging
Used packaging contributes signif-
icantly to the amount of waste collected in
the Netherlands. In 1996 households and
companies disposed of approximately 2.7
million kg of packaging waste.
The Packaging and Packaging
Waste Regulation that came into force in
1997'is intended to reduce the use of pack-
aging material and to promote the recycling
of packaging waste. Companies that bring
packaging or packaged products onto the
market in the Netherlands are responsible
for it,| At the end of 1997, the government
concluded a covenant, Packaging
Covenant with the business community, in
ordef to reduce the amount of packaging
and the occurrence of packaging waste.
'• The parties involved agreed that in
200li no more than 940 million kg of pack-
aging waste could be burned or dumped.
The i amount of packaging waste burned
and jdumped is, however, still 17 million kg
in excess of this amount. 62% of the pack-
aging materials brought onto the market
are currently recycled (the objective was 65
% recycling of materials).
2 ENFORCEMENT STRATEGY
The Inspectorate carries out
national enforcement actions in order to
prevent manufacturers and importers of
batteries, electrical equipment or other
packaged products from avoiding their
responsibilities by not joining collective sys-
tems. These actions focus on ensuring that
all companies join national structures that
have been set up for the collection and pro-
cesjiing of these products. From the point of
view of legal equality and;unfair competi-
tion, enforcement of the policy laid down
and | of the legislation and regulations is
. ..;« . i ,'i . •.'
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-------
BAREMAN
183
therefore of great importance.
In the first instance, alleged non-
compliers are targeted by the implementing
organizations on the basis of their own
responsibilities. If the manufacturers and
importers refuse to join, the companies
concerned are checked by the Inspectorate
and ordered to meet their legal obligations.
Administrative coercion and penal sanc-
tions, such as the imposition of penalties
and the drawing up of official reports, are
used here. The checks take place system-
atically by means of national actions focus-
ing on selected groups. The results of the
actions are communicated to the business
community in order to further improve com-
pliance.
3 RESULTS OF THE ENFORCEMENT
ACTIONS IN 2000 AND 2001
3.1.1 Batteries
The Inspectorate has investigated
approximately 75 companies, which were
suspected of importing batteries or battery-
containing products, such as watches, note-
books and electrical tools. One third of the
companies checked were actually importing
goods and were guilty of offenses.
3.1.2 White and brown goods
More than 180 companies were
checked for compliance with the legal obli-
gations pursuant to the White and Brown
Goods [Disposal] Decree. This concerned
companies that were suspected of manu-
facturing or importing goods including ICT
(Information and Communication
Technology) equipment, electrical tools,
musical instruments and other white and
brown goods. Approximately 60 % of the
companies checked were not meeting their
responsibilities. After a warning from the
Inspectorate, the companies joined the col-
lective disposal systems. An official report
was drawn up against 2 companies,
because they refused to join the collective
disposal systems.
The Inspectorate visited about 250
companies, which were presumed to be
active in the packaging of products and/or
bringing packaged products onto the mar-
ket. The companies checked are active in
various sectors, such as fish processing,
cosmetics, sweets, plastic packaging and
the wholesale trade.
More than half of these companies
were not participating in the packaging
covenant and were therefore guilty of an
offense.
3.1.4 Compulsory measures
The companies that were guilty of
offenses were ordered to pay a penalty. The
public prosecutor also sent an ancillary let-
ter with the urgent request to remedy the
violation within the prescribed period. If the
company remained in default, an official
report was drawn up at the request of the
public prosecutor. The violators usually
joined the collective systems within the
period laid down, so that the violation was
terminated.
The results show that by means of
good cooperation with the implementing
organizations, the companies that straggle
behind are effectively "tracked down".
REFERENCES
1. Enforcement of the disposal of white and
brown goods off the ground, results of
the enforcement of the White and Brown
Goods [Disposal] Decree, June 2000,
Inspectorate Series no. 2000/10.
2. Inspectorate for the Environment tackles
product decree offenders, March 2001,
Information Sheet no.-30.
3.1.3 Packaging
-------
1
, i
I
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184 SIXTH INTERNATIONAL CONFERENCE ON ENV
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MAURI 185
CASE STUDY ON ENVIRONMENTAL LAW ENFORCEMENT
AND COMPLIANCE IN COSTA RICA: WATER POLLUTION WITH TOXIC
SUBSTANCES
MAURI, CAROLINA*
P.O. Box 4743/1000, San Jose, Costa Rica, caromauri @ racsa.co.cr
SUMMARY
In October 1999 a Criminal Tribunal sentenced Costa Rican property owner to five
years in jail and the payment of civil compensation in the amount of $4570 for "moral dam-
ages" for dumping poisonous substances into a river, polluting fresh and underground
waters in a rural community of San Rafael de Tarrazu in the province of Cartago. The prop-
erty owner used the substances in his coffee plantation but dumped left over residues and
cleaned his contaminated equipment in the river.
The substance used by the defendant is known as "Biofox" or "Center" which is a
toxic chemical that can be lethal if it is not used appropriately. In the present situation, the
pesticide was used in a negligent manner, polluting most of the drinking water sources in
the community and causing serious health related illnesses to the local community.
The evidence included water tests from the National Water and Sewage Company,
medical reports from victims and testimony from witnesses who saw on several occasions
how the defendant dumped the substances into the river. The Environmental Prosecutor,
in coordination with the local Court Prosecutor, played an important role demonstrating to
the judges that there was enough evidence to sentence the defendant, who violated sev-
eral articles of the Health Law, the Wildlife Conservation Law and the Forestry Law.
The decision in this case is particularly significant because it has been very diffi-
cult historically to sentence responsible parties in environmental crimes. The case received
great attention from the press and was considered an important step forward for environ-
mental enforcement in Costa Rica. It was particularly important for future environmental
prosecution because of important advances in data collection and management, eviden-
tiary requirements (burden of proof issues) and legal procedure. The discussion of this
case seeks to explain the circumstance; rule of law issues and lessons, learned from this
exemplary case.
1 BACKGROUND
Legal complaints and actions
involving environmental violations are
rapidly increasing in Costa Rica. Some of
the more common issues include illegal
use of resources of the public domain
including environmental crimes related to
forests (mainly illegal logging in private and
public areas), pollution of waters (dumping
of solid waste, wastewater and toxic sub-
stances into rivers), illegal beach develop-
ment (infrastructure development in
prohibited areas). 1 Other recent cases
relate to damages to forests and under-
ground soil in mining activities and pollution
from industrial activities.
There are many limitations at the
administrative and judicial level to ensure
an appropriate level of enforcement and
compliance of environmental legislation.
Environmental damages are not usually
considered "serious damages" since
human beings often are not the direct vic-
tims of such harms. In addition, there is no
clear notion of the valuation of natural
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186
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
resources and in many legal processes
sanctions are very lax.
In the present case the defendant
committed the same crime for the second
time in 1994. The farmer was responsible
for three different crimes: cutting trees on
the edge of a watershed,2 removal of vege-
tation to plant coffee3 and dumping of toxic
chemicals into a watershed and causing
harm to the health of the members of the
local community. The Court dismissed the
first two crimes but sentenced the defen-
dant in 1997 to six months in jail for the
third crime. The Court decided to give the
defendant the benefit of "conditional free-
dom"* for a period of three years.
2 PRESENTATION OF THE SITUATION
2.1. Description Of Facts
The defendant in the case, is the
owner of a property of 6986 m_, located in
the town of San Rafael de Tarrazu, in the
province of Cartago, 22-km southeast of
San Jose, the capital city of Costa Rica.
Cartago is an important agriculture zone
because the altitude of its lands that varies
from 1435 to 3432m and offers ideal cli-
matic conditions for many products. The
variations in altitudes make the surface of
the land very irregular with a lot of moun-
tains and steep terrain.
The property is part of a water-
shed, which from its highest point flows
down through a creek for about 75 meters
straight to the water storage tank that pro-
vides drinking water to 13 families in the
community of approximately 30 people. In
addition to using the water for drinking pur-
poses, this water is also used for cooking,
laundry, watering plants, and for their ani-
mals. The watershed, the creek and the
water storage tank are located on the
defendant's property. The property is pri-
marily a coffee plantation but the area
around the watershed and the creek was
covered with thick vegetation and trees that
provided protection to this water source.
The surface of the terrain is very irregular
and the land next to the watershed and
creek has a steep angle of 40%, which
makes the zone very vulnerable to erosion
and landslides and causes any erosion or
agriculture runoff to go directly into the
watery (See sketch of the area)
1 When the defendant bought the
property, in 1993, the previous owner
warned the defendant about the existence
of the watershed, the creek and the water
storage tank on the property, told him about
the oibligation to keep the vegetation on the
edges of the watershed and the creek and
to avoid using toxic or unusual substance
near !the water because it is the drinking
water; source for the neighboring communi-
ty. These are legal obligations included in
the Forestry Law that require a protection
area pn the sides of watersheds, rivers, in
orderj to protect the water source, and the
Wildlife Conservation Law 'that prohibits
discharges of untreated waste waters, toxic
or unusual substances.
A few months later, the defendant
destroyed all the vegetation on the edges of
the cij-eek and cut all the trees of 5 and 1 0
centirpeters of diameter to plant coffee. At
approximately the same time, the defen-
dant used some chemical substances on
his coffee that caused contamination of the
water'. At that time the Criminal Court of
and
with
guilty
in jail
Cartaigo found the defendant
sentenced him to six months
"conc|itional freedom."
By June 1 997, the vegetation had
grown back around the edges of the water-
shed! and creek. The defendant then
removed all the vegetation for a second
time and planted new coffee plants.
On July 7, 1 997, early in the morn-
ing tljie defendant accompanied by three
sons and his employees sprayed the pesti-
cide known as "Conter" or "Biofox"5 on the
new coffee plants and then washed their
equipment and buckets in the watershed.
This product is highly toxic and poisonous
when it is mixed with water turns into a dan-
geroiis poison that can be lethal to humans
and slnimals thai; ingest it. Some members
of thei community, who were aware of such
risk, iwarned the entire Qpmmunity and
decided not to drink the water from the
community water source.
The next day, the rain came and
the chemical was washed off the plantation
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MAURI
187
causing the waters to have an intense
smell. In addition, many in the community
became very sick with diarrhea, vomiting
and others with even more serious compli-
cations were taken to the hospital. The evi-
dence will be discussed later.
2.2. Impacts And Reactions
The described facts seriously
alarmed the entire community because
many of them are farmers and know about
the risks from the exposure or ingestion of
the chemical has on human health.
Immediately after the incident the
neighbors who saw the defendant contami-
nating the water warned the rest of the
community to avoid drinking the water from
the watershed. The entire community
became very concerned about the situation
and immediately stopped drinking water
from the watershed. In addition to the seri-
ous health risks, the situation presented
economic implications for the community.
They all had to buy bottled water and had to
pay for doctors, hospital bills and medicine.
The defendant is known in the
community as a powerful and wealthy cof-
fee farmer. The members of the community
tried to approach him to demand an expla-
nation for his actions. Apparently, he chose
not to talk them and was reported to be
"arrogant and rude." The same day of the
events the community members went to the
local office of the Ministry of Health and the
local police to file a complaint but they were
told that they needed a legal representative
to do so. They returned the next day with a
lawyer and filed a legal complaint on July 8,
1997.
The community was very skeptical
and many of them considered that the com-
plaint was a waste of time because this
type of offenses is rarely punished. In addi-
tion they believed that since the defendant
as a wealthy farmer he would have the
means to control the situation. The com-
munity was hoping to find a response from
the Judicial System and to be compensat-
ed for the harm they were experiencing.
Inspectors from the Ministry of
Health, Ministry of the Environment, the
National Service of Waters, local police and
an investigator from the local prosecutor's
office visited the site the following day,
where they observed that there were coffee
plants on the edge of the watershed and
the creek, as well as the presence of bags
of pesticide and an unpleasant smell in the
water.
After the inspection, the
Prosecutor's Office of Tarrazu received the
complaint from the members of the com-
munity that felt harmed by the defendant's
actions. The Prosecutor's Office conducted
a preliminary investigation, gathered evi-
dence such as testimony of some of the
witnesses and visited the site. However
they did not gather any physical evidence
such as bags, and did not take any water
samples. The case was mainly built based
on the information provided by the witness-
es, neighbors and affected parties. The
prosecutor presented a formal case to the
Court Tribunal in Cartage based on the vio-
lation of several dispositions of the Health
Law, the Forestry Law and the Wildlife
Conservation Law.
2.3. Legal Case
The prosecutor of Tarrazu, in coor-
dination with the national environmental
prosecutor, worked diligently to prove the
facts and show to the Tribunal that the
defendant was responsible for the crimes of
destroying a protected area under the
Forestry Law, polluting the water and caus-
ing harm to human health. However the
main limitations faced by the team was the
lack of a water test to serve as technical
evidence and to show the presence of the
chemical substance in the water.
Nevertheless, they built a strong case
based on the evidence presented by tech-
nical experts and the testimony of witness-
es and victims in the case.
Some of the preliminary testi-
monies gathered by the Prosecutors to
build the case were by affidavit. Then the
Court decided to hear the case and opened
the forum for live testimony in court.
3 EVIDENCE PRESENTED BY
A-
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
TECHNICAL EXPERTS
3.1. Results Of The Investigation
The investigation performed by the
technical experts demonstrated that the
defendant planted coffee on the edge of the
watershed and creek and there were traces
of the use of a chemical product.
A chemist with the National
Service of Waters said that the property is
in a forestry protection area6 with a water-
shed and a creek that has coffee plants on
each side. He confirmed that there is a sup-
ply tank with three pipes that distribute the
water to 13 families in the community. He
also reported the presence of bags of the
pesticide Center just one meter from the
watershed.
A Regional Officer of the Ministry
of Health explained that he visited the site
in 1998 and saw a creek with no vegetation
on either side, but with coffee plants
instead. He determined that the coffee was
planted on a land that was previously cov-
ered with natural vegetation and trees on
both sides of the creek. He also mentioned
seeing some white bags on the side of the
creek.
3.2. Type Of Terrain Angles And
Use Of Land
The prosecutor's objective was to
demonstrate that the defendant changed
the use of land on a very steep hill causing
instability of the land and making it more
vulnerable to erosion and slides.
A forestry engineer of the Ministry of the
Environment explained that there is an
angle of more that 40%, that makes the
surface very irregular and unstable. This
area is a forestry-protected zone and is only
suitable forestry activities. The topsoil is
thin and not very productive and will require
a lot of fertilizer to carry out agriculture
activities. He also explained that a change
in the land use in this site was not appro-
priate.
According to the chemist with the
National Service of Waters and the
Regional Officer of the Ministry of Health,
the defendant's property has a steep hill
and is its obvious that with the rainfalls the
agricultural runoff would pollute the water-
shed since the leaching is very fast on the
surfacie and under ground.
3.3.
Risk To Human Health
The main concern of the prosecu-
tor's was to show that the defendant was
undertaking a very risky action because of
the type of product he was using and the
type of terrain on the site. The technical
experts explained that any presence of the
chemical Center is harmful to human
health in the short and long time and is
considered by the World Health
Organization (WHO) as toxic for human
health. The technical experts presented in
Court are public officials working with gov-
ernment agencies that have an established
reputation and credibility in their fields of
expertise. These official represent the
Natiohal Service of Waters that is the agen-
cy responsible for ensuring the quality of
drinking water, the Ministry of the
Environment that is the agency responsible
for protecting natural resources and enforc-
ing protected areas, land use limitations,
and pollution of water sources among oth-
ers; and the Ministry of Health that is
responsible for protecting human health,
ensure quality of drinking water arid
enforce health standards among others.
The evidence from the WHO was not sup-
ported with any specific documentation but
the defense did not make objections during
the te stimony In addition, The forestry engi-
neer bf the Ministry of the Environment said
that Center "is a highly toxic pesticide that
can be residual and its gases can pollute
the creek by evaporation or as part of the
runoff."
The Regional Officer of the
Minisjtry of Health demonstrated that there
could be infiltration and contamination by
runolf into the waters because of the angle
of the
3.4.
terrain.
Impacts On Health
The prosecutors needed to prove
the hegative impacts that these chemical
subs ances have on human ^health and the
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MAURI
189
vulnerability of the watershed and creek for
being exposed to environmental risks.
The chemist with the National
Service of Waters assured in his testimony
that the symptoms of intoxication could be
very severe including stomach pain and
nausea or chronic when the person has
been exposed to small quantities of the
substance for several years. He also stat-
ed that small children and the elderly are at
higher risk of become ill.
The Regional Officer of the
Ministry of Health stated that when the
watershed is not protected by trees or veg-
etation there is a higher risk of contamina-
tion of the waters and he noted that there is
higher risk for the health of children.
The forestry engineer testified that
Conter is a very toxic pesticide. "It emits
toxic gases in extremely hot and humid
areas. It can intoxicate people with evapo-
ration and rainfalls. The product was
applied to a coffee plantation. Coffee is
very erosive and all the substances applied
,to it will run off to the river." The other prod-
uct Biofox is applied twice a year during the
rainy season to make it last longer but is
highly toxic and could even cause the death
of workers when applying the product with-
out safety equipment. "There were empty
bags one meter from the water tank that
shows that the fumigation pumps were
cleaned there," he added.
3.5. Impacts On The Ecology,
Watershed, Creek And Waters
This argument was a difficult one
for the prosecutors to support with techni-
cal evidence because the water laboratory
tests were performed one year after the
actions took place and there was almost no
trace of the substance.
The Regional Officer of the
Ministry of Health, testified that it is a fact
that the application of a chemical product
so close to the watershed will cause some
contamination in the water.
However, the chemist, explained in
his testimony that the lab test performed
showed an alteration in the bacteria con-
centration, color (due to organic decompo-
sition) and muddiness (due to erosion), but
no traces of a chemical substance. In addi-
tion, he stated that when the watershed is
not protected it is more susceptible to con-
tamination.
The forestry engineer of the
Ministry of the Environment, mentioned in
his testimony that "the ecosystems were
damaged, the forest suffered a decrease in
its economic value, its capacity to
sequester CO2, its scenic value and an evi-
dent impact on the social, ecological and
economic value of the area."
3.6. Recommendation And
Measures To Take
It was evident that the newly plant-
ed coffee caused serious damages to the
ecosystems and the watershed. The techni-
cal experts made the following recommen-
dations: .
1. to install a pipe to protect the water from
watershed that was flowing into the
tanks;
2. to enforce the legal protection of 100
meters on each side of the watershed;
3. to eliminate the coffee, and allow the
regeneration of vegetation on 100
meters of the sides of the watershed and
creek.
4 TESTIMONY OF THE COMMUNITY
MEMBERS
The Prosecutors' case was also
based on the testimony of the members of
the community that either witnessed the
defendant's illegal actions or experienced
some health and other impacts from such
actions.
4.1. Ownership Of The Property
The member of the community that
testified in Court stated that the defendant
who bought the land from another neighbor
owns the property. They also pointed out
that the previous owner did protect the
watershed, which was covered with trees
and vegetation in the area of the creek.
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4.2. Removal Of Vegetation On The
Side Of The Watershed
There is very clear evidence that
the defendant removed the vegetation
cover in a protected area as was stated by
the technical experts that visited the site
and the testimony of the members of the
community that witnessed such actions
said they saw the employees of the farm
removing the grass and vegetation on both
sides of the watershed.
The prior owner of the property
testified that the area around the watershed
was previously covered with grass and veg-
etation but some time later was completely
clean. He also stated that he told the
defendant that he had the responsibility to
take care of the watershed to prevent any
problems. Others said in their testimonies
that the defendant cut all the vegetation as
soon as he bought the property.
One neighbor mentioned in his tes-
timony that in the countryside they ail have
the awareness and tradition to protect the
watersheds and the water, and that they do
not destroy the vegetation. He personally
believes that protecting the watersheds on
his property is important for the quality of
water for humans and animals.
4.3. New Coffee Plants
The community witnesses also tes-
tified to the fact that the defendant planted
new coffee on the side of the watershed;
some 50 cm from the edge and that he then
sprayed the plants with the pesticide. An
attorney with the National Service of
Waters also testified that there were small
coffee plants very close to the watershed.
4.4. Use Of Pesticide
The witnesses reiterated that they
saw the defendant, his sons and employ-
ees spraying pesticides in the coffee plan-
tation and on the plants on the edge of the
watershed. Another neighbor testified that
he saw the defendant with two employees
and his sons spraying pesticide (Center),
which is very hazardous, on the edges of
the watershed and the creek. This product
is granulated and comes in medium size
bags. It was in the defendant's truck and
they were taking it out of the bags with
gloves and their bare hands. "I run to the
community and warned all the neighbors
not to drink the waters because all the con-
tamination goes directly into the tank." He
also siaw the employees and sons dumping
leftover quantities of the substance into the
water and washing the equipment directly
in the watershed. When the product is
mixed with water it makes a lot of foam and
the smell is very intense.
Other witnesses testified that they
saw the bags on the side of the watershed
and the day after the pesticide was applied
it rained and the smell became very strong
and the water tasted like pesticide. One wit-
ness said that her family had to buy bottled
water! to drink but she had to use the water
from lihe tank to do laundry and for cooking.
4.5.
Harm And Effects O(i
Human Health
The pesticide used by the defen-
dant is known to be highly toxic and harm-
ful to [human health. In this situation, many
people in the community became very sick
from exposure to the vapors of the chemi-
cals and drinking contaminated water. A
neighbor said iii his testimony that there
are 13 families.in the community and all of
them drink the water that comes from the
watershed. "I am a farmer knd know that
this poison is very bad and that is recom-
mended to wear mask and goggles when
using! it-1 saw them dumping the product in
the water because when mixed with water it
creates a lot of foam. The sad thing is that
the defendant knows that the community
drinks the water from this watershed, and
even!his employees drink from it. When we
realised that the watershed was contami-
nated we had to get the water from another
watershed. There have never been so
many people sick in this community. The
doctors said that a toxic substance or bac-
teria caused the diarrhea. My daughter was
seriously ill but the doctors could not figure
out tljie cause. I had to take her to the chil-
dren's hospital downtown were the doctors
said that the girl was intoxicated. My wife
became sick a few days later as many other
I
1 II
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MAURI
191
neighbors including the elderly that were in
bad conditions. We had to buy bottled
water and could not use the watershed for
any use. The smell was also very strong
and lasted for over 20 days."
Another Witness said that "Both my
son and daughter got sick to their stomach
and had to stay in the hospital several times.
The doctors agreed that they were sick
because of exposure to toxic substances. I
have gastritis, which I never suffered before,
others got different stomach illnesses."
Another testified that the people started with
vomits and diarrhea and the doctors recom-
mended not drinking from that water. Her
baby was seriously ill and almost died. He
was then taken to the Children's Hospital
were the doctor said he was intoxicated.
The baby just had her mother's milk and
boiled water. All her relatives became ill
including her grandfather, cousins, uncles,
brothers and their children.
A witness testified that 5 years ago
_ a woman from the community had a spon-
taneous abortion that might have been
caused by toxic substances in the water.
"Just recently she had a baby that was born
very sick and was taken to the Children's
Hospital where the mother was told that the
baby was poisoned. Many children in the
community suffered from diarrhea and
vomiting. I also got gastritis and now have
to buy bottle water all the time," she added.
One witness testified that a few
days after the pesticides were sprayed he
felt nauseous and wanted to go to the toilet
all the time, his children and wife got diar-
rhea and vomiting, many others got also
sick and the doctors though it was caused
by intoxication. 'There were never so many
people sick in this community."
4.6. .Conclusions From
The Prosecution
The Prosecutors' concluded that it
was evident that the defendant's actions
were the cause of contamination of the
watershed.
Were there other sources of con-
tamination? The Prosecutors' explained
that this was not likely because there are
just two other neighbors that have proper-
ties near the watershed. Both of them testi-
fied that they do not use that type of chem-
icals. They also testified that the only
access to the watershed is through these
.private properties and the owners know all
the members in the community and did not
notice any stranger doing anything unusual
near the watershed.
Why the harm was not more
severe? The Prosecutors' concluded that
the experts made clear in their testimonies
that the chemical Center is toxic and even
lethal if a person ingests the product. They
testified that there were no casualties from
this incident mainly because the communi-
ty took extreme measures to stop drinking
water from the watershed. The community
members were warned immediately after
the watershed was contaminated and did
not drink water coming from it.
4.7. Defense Arguments
The defendant's attorney argued
that there was not sufficient evidence to
demonstrate what type of chemical was
used. He added that it could not be stated
as a fact that the defendant used a sub-
stance known as Center, which is highly
toxic, because there was no technical evi-
dence to prove it. The defense witnesses
explained about the toxicity of Center.
A farmer from the community who
witnessed the defendant's actions, testified
that from his experience he knows that if a
person ingests Center, he or she will die. "I
had a pig that died because it drank from a
bucket that was rinsed and probably had
some residue of the product. It is not appro-
priate to apply the product on the edge of a
watershed because is poisonous." Another
farmer from the community (witness of the
defendant), testified that he knows from his
experience that the chemical is very dan-
gerous, if someone had dumped Center into
the tank, a lot of people would have died.
. ., In addition the defense attorney
attempted to discredit the prosecutor's evi-
dence because it was based completely on
the testimony of the community members
and that was not strong evidence to sup-
port the alleged facts.
The defense further argued that
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192
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
•nil
,[ t
there was also no evidence to prove the
cause and effect link between the alleged
actions of the defendant and the health
related problems suffered by the communi-
ty members. The defense explained that
the watershed is exposed to many sources
of pollution and is also near other proper-
ties. The only water test result showed that
there were no traces of chemical substance
in the water.
In his testimony, the chemist with
the National Service of Waters explained
that the lab test performed showed an alter-
ation in the bacteria concentration, color
(due to organic decomposition) and muddi-
ness (due to erosion), but no traces of a
chemical substance. In addition, he stated
that when the watershed is not protected it
is even more susceptible to contamination.
The doctors testifying for the defendant
concluded that they couldn't tell whether
the symptoms came from toxic substances,
or from bacteria, which presumably could
have been an alternate cause.
The defendant's attorney argued
that his client was not guilty because there
was no clear evidence against him and
there existed reasonable doubt that he was
responsible for the health problems suf-
fered by the members of the community.
5 CONSIDERATIONS OF
THE COURT
5.1. Rule Of Evidence
The tribunal decided to use its dis-
cretion to analyze existing evidence stated
in the Civil Law Principle "Immediacy of the
Evidence" which allows judges broad dis-
cretion to analyze and evaluate evidence
using the common sense, logic and psy-
chology as main elements. This discretion-
al principle was confirmed in a ruling of the
Constitutional Court7 that stated:
"Judges in the Criminal Process
have the right and obligation to analyze the
evidence presented during the trial accord-
ing to the rules of common sense, using
their discretion and applying objective crite-
ria. The principle "immediacy of the evi-
dence" gives a broad discretion to the judge
to analyze and to value the evidence, that
has to document the content of the evi-
dences and his rationale to prevent arbitrary
or erroneous interpretations"
, , , • I !'
i f
5.2. Facts Accepted By The Court
The Tribunal accepted as true facts
that the defendant provided maintenance to
his coffee plantation by applying agrochem-
ical products to the roots of the plants,
washing the equipment in the watershed on
his property, and that the watershed sup-
plies 'drinking water to 13 families in the
comrr)unity. In addition, the Court accepted
as fack that the defendant dumped left over
substances and residues into the water that
then was to be drunk by trie people of the
comn)unity. This fact was demonstrated
without contradictions during the oral hear-
ing, 'jwhere all witnesses, including the
defense witnesses, agreed that the water-
shed |and the creek are on the property of
the defendant.
The Court also accepted as fact
that :he defendant bought the property
arourd 1992, where there was previously a
coffee plantation except near the water-
shed and the creek, which were covered by
vegetation and trees. All the witnesses
agreed that the defendant removed the
vegetation and some trees to plant small
coffe6 plants. However, the Court decided
not to analyze the violation of the forestry
law because according to the Criminal
Process Law this crime cannot be longer
argueid in Court because of timing.8
The most important fact in this
case is the action of the defendant when
he, and others under his directions, applied
the pesticide Confer in the roots of the new
coffee plants located at a very short dis-
tance! from the watershed and the creek.
Many of the witnesses saw the defendant,
with his sons and employees, conducting
such iaction. The witnesses also identified
the product as Center and mentioned that
there were bags of the pesticide left near
the water. Most of the witnesses are farm-
ers and can easily determine the smell of
the pesticide. They all agreed that the
chemical Center was dumped in the water
becaiLise they could smell it. In addition the
-------
MAURI
193
Water Judges fr0m the local Municipality
explained that the smell in the water indi-
cated the presence of an agrochemical.
The Court concluded that, on July
7, 1997, the defendant, along with his sons
..and employees applied the pesticide
Center to the roots of the coffee pants
located on the edge of the watershed and
creek. He also washed the equipment and
dumped chemical residues in the water.
The product used was Center,
which is considered highly toxic and dan-
gerous for human health. The water smell
and taste changed immediately after the
defendant's actions. All the members of the
community were directly or indirectly
\harmed by such actions. Some became
very ill and had to visit doctors or be taken
to the hospital. Others had to buy bottled
water, representing a high economic bur-
den for farm families with a very low
income.
5.3. Rule Of Law
The rule of law applied to the pre-
sent situation is in article 261 of the
Criminal Code as part of the section on
"Crimes against Public Health" and states
the following:
"Water pollution with toxic substances:
Article 261: It will be a jail sanction from
three to ten years, to any one that poisons,
contaminates or adulterates, in a risky
manner for human health, waters for public
or community use. If the action results in
the death of a person, the jail sanction will
be from eight to eighteen years."io
5.3.1. "Contamination Of Waters For
Public Or Community Use"
The evidence showed that the
defendant's actions caused contamination
of the creek and the watershed. The wit-
ness testimonies made clear that the
defendant dumped the poisonous sub-
stance and washed the equipment in the
watershed that supplies water to the com-
munity. The evidence also showed that the
waters got an intense smell from the chem-
ical substance and its color and taste also,
changed.
In Costa Rica all water sources are
consider for public use, including rivers,
creeks, watersheds, and wetlands, among
others. In addition, the waters from the
watershed and creek in the present case
were collected in a water storage tank that
supplied drinking water to the entire com-
munity. It is clear that the defendant actions
contaminated the waters. It is also clear
that these waters are for the use of the
community.
5.3.2. "In A Risky Manner For
Human Health"
This is a crime where it is only nec-
essary to show that the defendant's actions
created "imminent danger." Risk associat-
ed with the action is enough to demonstrate
the responsibility of the defendant. The law
punishes the potential risk of the action
because protecting human health does not
require a specific harm or concrete result.
The defendant applied the chemi-
cal product Center, which is toxic, harmful
and even lethal, on the coffee that he plant-
ed on the edges of the creek and the
watershed, where he even washed the
equipment used in the fumigation. With his
actions the defendant went beyond the
"imminent danger" and caused an "actual
harm" to human health.
It was demonstrated that most of
the members of the community suffered
some health related illnesses, including
diarrhea, vomiting and gastritis. Many visit-
ed a doctor and some were sent to the hos-
pital. Small children were taken to the
Children's Hospital. The situation also
caused emotional distress because of the
uncertainty of their health problems and the
economic expenses involved.
5.3.3. "Knowledge And Intent"
There is enough evidence to sus-
tain that the defendant knew about the
imminent danger of his acts because we
had knowledge of the existence of the
watershed and the creek inside his proper-
ty. In his testimony, the previous owner of
the property pointed out that he warned the
defendant about the existence of the water-
-------
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194
SIXTH INTERNATIONAL CONFERENCE ON ENVRONMENTAL COMPLIANCE AND ENFORCEMENT
shed and creek and their importance as the
drinking water source for the community
and its 13 families. In addition, as an expe-
rienced farmer the defendant also knew
about the type of products he was using
and their toxicity. He also knew that the
plants were too close to the water and the
steep angle would cause the chemical to
runoff to the water.
Since the defendant had knowl-
edge about the risks of his actions, it is
clear that he intentionally contaminated the
water because he could have taken appro-
priate measures to avoid causing such
harm. It is obvious then that the actions of
the defendant violated article 261 of the
Criminal Code and that he was responsible
for the crime of water pollution with poi-
sonous substances.
5.4. Decision Of The Criminal Tribunal
On October 19, 1999, the Criminal
Tribunal of Cartage" declared that the
defendant was guilty of the crime of con-
tamination of substances used for food or
medicinal purposes committed against the
public health, for which he was sentenced
to five years in prison without parole. The
jail sanction stated in the Criminal Code
establishes a minimum of three years and a
maximum of ten years for this specific
crime. The Court considered that the action
was serious enough to impose a sanction
higher than the minimum. The Court decid-
ed to sentence the defendant to five years
in jail without parole and ordered the
removal of the coffee plants.
The Civil Actions filed separately
by the State (in representation of the com-
munity) and by one individual (personally)
were accepted. The amount awarded to the
State was $3050 (three thousand and fifty
dollars) and $1520 for "moral damages" to
the individual.
5.5. Decision Of The Court Of Appeals
The defendant filled an appeal at
the Court of Appeals^ against the decision
of the Court Tribunal based on three specif-
ic aspects: analysis of the evidence, rea-
sonable doubt and incorrect application of
the rule of law. The Court rejected the
appeal based on the reasoning explained
below.
5.5.1. Analysis Of The Evidence
| In his allegations the defendant
argueid that the Judges stated as a fact that
he applied in his coffee plantation a sub-
stancp known as Conter, which is highly
toxic,
really
without any technical evidence that
proved the use of such chemical.
The c efendant argued that the Court based
its decision on witness testimonies and did
not rely on the technical criteria of an
expert on agrochemical products or medi-
cal rejports from the victims. He also stated
that tfie Court did not analyze the evidence
based on "common sense" and applied its
"free judgment" in deciding this case. In his
appeal, the defendant claimed that the tes-
timoriy evidence showed that the victims
suffeired vomiting and diarrhea because the
water is not safe for human consumption
due to the presence of some fecal coliforms
and not because the waters were polluted
with a toxic substance. |
t The Court of Appeals rejected the
claim! and explained that the Judges in the
Costa Rican Judicial system have freedom
to descide on the means of evidence and
that there is not a method to define which
means or aspects of the evidence have
more weight in the case including technical
repoi'ts. In this particular case, there are
particular elements that provide technical
evidelnce and that led to the decision of the
Court The plaintiff was accused of apply-
ing toxic chemicals to the roots of coffee
plan1£ located in the edges of the water-
shed; in his property, for dumping residues
and '[or cleaning the equipment in the river
that [provides water to the community. The
chen)!cal substances sprayed to the coffee
plants infiltrated into the water contaminat-
ing it and changing its color and odor.
Thesie people received medical attention
and the entire community had to find other
sources for drinking water.
There are just 13 families in this
small community, many of them were born
there* and are very familiar .with the water-
shed that is their main sources of drinking
^ • . is ^
I I
-------
MAURI
195
water. As soon as they noticed the contam-
ination and the symptoms of some neigh-
bors they alerted the rest of the community
and called the police. The residents are
also very familiar with coffee production
and maintenance because they own coffee
plantations or work in them. There were at
least four members of the community that
saw the defendant apply the product, which
they know and identified without any doubt
as Center.
The Court of Appeals supported
this position based on the witnesses' testi-
monies including one who testified, "...we
filed a complaint because there were
residues of the chemical Center on the
banks of the watershed. We inspected the
site closely and saw the pesticide, we also
saw the defendant and his sons applying
the poison and dumping it into the river." In
addition, another witness, said that he saw
the defendant apply the pesticide on the
roots of the coffee plants that were on the
edge of the watershed, the smell was very
intense because the product got mixed with
the water.
Some of the technical experts cor-
roborated these facts including the forestry
engineer who said: "I saw many bags of
Gonter, a very toxic pesticide. It emits toxic
gases in extremely hot and humid areas. It
can intoxicate people with evaporation and
rainfalls. The product was applied to a cof-
fee plantation. Coffee is very erosive and
all the substances applied to it will run off to
the river. I also noticed some coffee plants
that were recently planted on the edge of
the river where the vegetation was
removed."
Officials from the local Municipality
and the Ministry of Health that inspected
the site testified that they saw some granu-
lated fertilizer and white bags from a chem-
ical product, known as Center, on the side
of the watershed. They testified that the
smell was very strong but they did not take
water samples.
The Court of Appeals stated that
although there was not a technical analysis
on the situation the testimonies come from
qualified individuals such as farmers, a
forestry engineer and officials from the
municipality and Ministry of Health con-
firmed that the product used on the edges
of the watershed is Center because of its
particular characteristics.
5.5.2. Reasonable Doubt
The defendant also challenged the
decision based on the reasonable doubt
regarding the cause-effect of applying
chemicals on his property and the symp-
toms experienced by the members of the
community. The defendant based this argu-
ment on the testimony of a witness who
explained that the watershed is open,
exposed to any source of pollution, without
a fence, not protected and near a public
pathway and that there could have been
many other circumstances that caused the
problems with the water. The doctors con-
cluded that the cause of the symptoms was
from a toxic substance or bacteria, and
some bacteriologic analysis showed that
the quality of the water is not up to recom-
mended health standards. The defendant
relied on the water tests that showed no
evidence of chemicals in the watershed. In
addition, the witnesses testified that Center
is such a toxic substance that any ingestion
by humans could be lethal, and since there
were no deaths in the community there is a
strong indication that the origin of the
symptoms was bacteria. The defense also
pointed out that there are other properties
with coffee plantations near the watershed
and that they could also have been the
source of the contamination.
The Court of Appeals rejected this
argument and justified the decision of the
Criminal Court that found the defendant
responsible for the alleged facts. There is
enough evidence to show that the defen-
dant's actions contaminated the water and
the community became sick after using the
water from the watershed. The Court clear-
ly stated that the defendant sprayed the
toxic substance on the coffee plants in his
property near the watershed with a product
that is toxic and harmful. This statement is
supported by the testimony of the witness-
es, inspectors and officials from several
government agencies. The water tests
cannot be used as technical evidence
-------
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because they were performed one year
after the facts. The concentration of chem-
icals does not last in the water for that long
because the water flows so these tests are
not conclusive for this case. The criteria of
the chemist of the National Service of
Waters, is that if the sample is not taken
right after the fact it is not possible to find
traces of the chemical.
5.5.3. Incorrect Application Of The
Rule Of Law
The defendant argued that article
261 of the Criminal Code requires the exis-
tence of two elements for its application,
which are: actual poisoning, contamination
or adulteration and that such actions were
undertaken in a risky manner. In his allega-
tions the defendant explained that the
Tribunal found him responsible for poison-
ing the waters, however the judges only
looked at the witnesses' testimonies and
did not considered the water tests that
showed that there were no traces of chem-
icals in the water.
The Court of Appeals rejected the
claim because the Tribunal made a clear
statement of the facts and applied the rule
of law in the right way. The questioning
regarding the evaluation of the evidence
was previously addressed.
6 FINAL CONSIDERATIONS
This sentence was very important
because it has been difficult in the past to
prove this type of crime and in many cases
the investigations end without enough evi-
dence to take the responsible parties to
Court. The Tribunal of Cartago set a signif-
icant legal precedent and an important
example to discourage other from under-
taking this type of action.
In addition the press coverage
helped publicize the Court decisions and
the situation faced by the community. Many
victims of environmental harm do not file a
complaint because they do not believe that
the responsible person could go to jail and
in many circumstances they preferred to
avoid the trouble of serving as witnesses in
the legal process.
SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE ANp ENFORCEMENT
The court decision was a victory for
the Community of San Rafael deTarrazu, in
Cartaigo and its 13 families who again can
safely! drink the waters from the watershed
that sjupplies their drinking Water. In addi-
tion tlie Court set an important precedent
recognizing the civil responsibility of the
defendant and awarding a Compensation
fee for the community.
* Credit The author wishes to give a special
acknowledgement to Durwood Zaelke,
President of the Center for International
Environmental Law (CIEL) in Washington
DC, vi/ho contributed his substantive com-
ments and valuable suggestions through-
out the development of this case study.
Special recognition is also due to Adriana
Bianchi, Senior Institutional Development
Specialist, The World Bank Institute,
Washington DC.
1 State of the Nation on Sustainable Human
Development (Estado de la Nacion en
Desarrollo Humano Sostenible) a report
sponsored by the United Nations
Development Program, 1999, pp. 233
2 Articles 33 and 34 of the Forestry Law
establish as protected areas, the areas
located on the edges of permanent water-
sheds and prohibit cutting of trees located
in protected areas. ;
3 ThiSi activity is considered as a change in
land use and requires a permit.
4 Conditional Freedom is the equivalent of
"probation" and is a benefit for a convict-
ed person who does notlh^ve a criminal
reccird. In the present situation the defen-
dan t was be on probation for three years
and Jin the event of being sentenced for
another crime the six months jail sen-
tencje is to be added to the new sentence.
5 "Center" and "Biofox" are two different
proclucts but are equally e highly toxic and
harrpful to human healtfi.; Some coffee
farniers use these products to kill nema-
todes. "In the present case the product
was not specifically identified and was
referred as "Conter or Biofox" For the pur-
poses of this case study the product will
be referred as Conter.
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MAURI
197
6 Article 33 of the Forestry Law establishes
protected zones the areas around water-
sheds, and the sides of streams, creeks,
and rivers, where the vegetation and
trees cannot be removed. The limitation
depends on the location and surface
including: one hundred meters around the
watersheds, fifteen meters (in rural areas)
and ten (in urban areas) on the sides of
rivers, creeks and streams and fifteen
meters when the surface is irregular and
steep.
7 Constitutional Court, Decision #1739-92,
of July 1st, 1992)
8 The crime of "illegal removal of vegetation
on the edge of a water source" cannot be
prosecuted more than 18 months after it
was committed.
9 The Water Judge is an administrative offi-
cial that hears and decides on disputes
involving water cases such as water
rights, uses, permits and pollution of
waters.
10 Article 261 of the Criminal Code of Costa
Rica.
11 Sentence N° 572-99, approved at fifteen
thirty on October 19, 1999, at the Court
Tribunal in Cartago.
12 Sentence N° 733-00, approved at nine
hours and fifty minutes, on June 30,
2000 at the Court of Appeals in San Jose
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
PROJECT MANAGEMENT AND CONFERENCE SUPPORT
• '• it, ••
Durwood Zaelko
Director
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1367 Connecticut Ave NW'Suite 300
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Jji.fH •; ...... • ..... ill!
rhi •• ...... is
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Machteld Brokerhof
Inspectorate for Housing, Spatial Planning
and the Environment
VI/BZ IPC 530, P.O. Box 16191
2500 BD The Hague
The Netherlands
telephone: +31-70-3393969
fax:+31-70-3391299
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U.S. Environmental Protection Agency
Mail Code: 2254A
1200 Pennsylvania Avenue NW
Washington, DC 20460
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VI/AL IPC 500, PO box 16191
2500 BD The Hague
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U.S. Environmental Protection Agency .
Mail Code: 2254A
1200 Pennsylvania Avenue NW
Washington, DC 20460
phone: 202-564-6035
fax: 202-564-0073
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Washington, DC 20460
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SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ACKNOWLEDGEMENTS
A note of thanks to the conference speak-
ers, topic experts, moderators, facilitators
and rapporteurs and those who volun-
teered to prepare papers, all of who are col-
leagues making a special effort to share
their experiences and help facilitate our
exchanges at the ^Conference. Special
thanks to those contributing materials for
the Conference exhibits.
The Sixth International Conference
on Environmental Compliance and
Enforcement in San Jose, Costa Rica was
made possible by the personal and financial
contributions of many organizations and
individuals. An Executive Planning
Committee (EPC) to the International
Network of Environmental Compliance and
Enforcement (INECE), whose membership
is listed in the Proceedings, provided lead-
ership and direction in the design of the pro-
gram, selection of the speakers and topic
experts, and identification of individuals
from a range of nations who would be in the
best position to share practical experience
in environmental compliance and enforce-
ment to improve or develop domestic com-
pliance and enforcement programs and to
engage in ongoing networking, capacity
building and enforcement cooperation.
Funding of the Conference logis-
tics, planning and workshop development
was provided by the conference sponsors:
The Netherlands Ministry Inspectorate
of Housing, Spatial Planning and the
Environment, the United States
Environmental Protection Agency, the
European Commission, and Environment
Canada. Funding of participants was gra-
ciously offered by The Netherlands Ministry
Inspectorate of Housing, Spatial Planning
and the Environment, the United States
Environmental Protection Agency, the World
Bank, the U.S. Asia Environmental
Partnership, Comision Centroamerican de
Ambiente y Desarollo, the Commission on
Environmental Cooperation, the U.S.
Agency for International Development, and
International Fund for Animal Welfare.
The EPC and Secretariat would
like to acknowledge the leadership, inspira-
tion, and dedication of Cheryl Wasserman,
US EPA, and to thank her for her outstand-
ing contribution to the success of INECE.
Her hard work was critical for building the
solid foundation of INECE—the foundation
that gives us confidence in the future evo-
lution of the network in the years to come.
We also would like to thank ESA, who pre-
viously served as the principle sub-contrac-
tor, and in particular, Ms. Shari Oley, its
Director, for their hard work and dedication
to the success of INECE.
Cover design by Kenneth J. Markowitz
Printed in San Jose, Costa Rica
For more information, please visit the INECE
Web site at http://inece.org
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I N IE C E
International Network for Environmental Compliance and Enforcement
VROM 17086/185
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