I I
I III
PROCEEDINGS
VOLUME I
INTERNATIONAL
CONFERENCE ON-
ENVIRONMENTAL
ENFORCEMENT
September 22-25,1992
Budapest, Hungary
$
55
o
\
m
CD
COMMISSION
OF THE EUROPEAN
COMMUNITIES
Ministry of Housing,
Physical Planning,
and Environment (VROM)
The Netherlands
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INTERNATIONAL CONFERENCE ON
ENVIRONMENTAL ENFORCEMENT
CONFERENCE PROCEEDINGS
VOLUME I
September 22 - 25, 1992
Budapest, Hungary
Executive Planning Committee:
Mrs. Jacqueline Aloisi de Larderel, UNEP-IE/PAC
Mr. Laurens Jan Brinkhorst, EEC
Dr. Kalman Gyorgyi, Hungary
Dr. Peter Hardi, REC
Dr. Jan Mikolas, CSFR
Dr. Karoly Misley, Hungary
Dr. Maciej Nowicki, Poland
Mr. Herbert Tate Jr., USA
Mr. Pieter Verkerk, Netherlands
Sponsors:
Environmental Protection Agency, United States
European Economic Community, Brussels
Ministry of Housing, Physical Planning and Environment, the Netherlands
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These Proceedings, Volume I, include papers prepared by
speakers, panelists and several participants for the second
International Conference on Environmental Enforcement,
September 22-25, 1992 in Budapest, Hungary, Volume II is
scheduled lor publication in early 1993 and will include opening
remarks of #»$ opening speakers, additional papers* summaries of
discussions and the Conference evaluations.
Copyright 1992 by the Conference sponsors: the United States
Environ mental Protection Agency, the Netherlands' Ministry of
Housing, Physical Planning and Environment, and the.European
Economic Community, No part of thte book may be reproduced in
any form or by any means without trie prior permission of ine
authors and attribution to the second International Conference on
Environmental Enforcement, September 22-25,1992 tn Budapest,
Hungary. Use of these materials is strongly encouraged for
training and further dissemination.
Opinions expressed are ino$e of the authors, and do not
necessarily represent the views of their organizations.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
CONTENTS
PREFACE
CONFERENCE PURPOSE AND GOALS
CONFERENCE THEMES
Theme #1: Context for Enforcement
Moderator: H. Kesselaar
1. Principles of Environmental Enforcement, C. Wasserman 13
2. Membership of the EEC: What it Means for Environmental Requirements and
Enforcement, fi, Macrory 171
3. The Implementation of Environmental Laws by the European Economic
Communities, L. Kramer 183
4. Environmental Enforcement in Central and Eastern Europe in Transition, W, Bebto . . 229
5. Environmental Enforcement in Hungary - Today and Tomorrow, G. Bandi 235
Theme #2: Designing Enforceable Environmental Requirements
Moderator: S. Fulton
1. Developing Enforceable Environmental Regulations and Permits, S. Fulton and
E. Gilberg 253
2. Swedish System of Integrated Permitting - Whether it Enhances Compliance and
Enforceability, L. Sverndat 265
3. Compliance and Enforcement Strategies in East-Germany - Saxony as an Example,
D. Angst 267
4. A Clear Approach Gives Full Compliance, H. de Vries 273
5, Information Campaigns Benefit Enforcement of Environmental Laws, J. van Ekeren
and M. van der Voet (additional paper) 283
1. Alternative Organizational Structures for a Compliance and Enforcement Program,
W. Eichbaum 293
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iv INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Theme #3: Developing an Effective Compliance Monitoring Capability (e.g. Inspection Capability)
Moderator: M. Bierman - Beukema toe Water
1. Developing an Effective Compliance Monitoring Capability, M. Bierman - Beukema
toe Water 307
2. Integrated Licensing, Implementation and Compliance Monitoring in Developing
Countries, J. Aloisi de Larderel 315
3. Compliance Monitoring in Norway, G. R0dland 319
4. U.S. Experience and Differences Between Civil and Criminal Investigations and Use
of Central Elite Force to Supplement Local Inspectors, C. Wills and D. Gipe 325
5. UK Experience in Establishing an Inspectorate for Integrated Pollution Regulation,
J. Handyside 339
6. Compliance Monitoring in Poland: Current Status and Development, J. Jendroska . . . 351
7. The Enforcement of the State Policy of the CSFR on the Field of the Montreal
Protocol, M. Kotaska and V. Rehacek (additional paper) 357
Theme #4: Developing Authorities and Legal Enforcement Capabilities to Respond to Violations
Moderator: L. Kramer
1. Developing Authorities and Legal Enforcement Capabilities, V. O'Meara 363
2. The Public Prosecutor Office of Hungary and its Development, S. Fijlop 373
3. Developing Effective Enforcement Programs at the State Level, L. Paddock 379
4. System to Supervise Environmental Duties and to Pursuit Infringements Taking
Clean Air Management as Example, M. Putz 389
5. Environmental Enforcement by Municipalities in the Netherlands, P. Dordregter 391
6. Choosing among Criminal, Civil Judicial, and Administrative Enforcement Options,
D. van Zeben and M. Mulkey (additional paper) 397
7. The Environmental Prosecutor: The Experience of a "Central Command" Theory of
Environmental Enforcement, S. Madonna (additional paper) 417
8. The Application of Criminal Law Instrument in the Environmental Law Enforcement,
A. Hamzah and R. Surachman (additional paper) 429
Theme #5: Economic Development and Ownership Issues
Moderator: K. Misley
1. Enforcement of Canadian Laws of Environmental Protection as applied to Federal
Facilities, P. Cuillerier 445
2. The Ecological Semaphores for Fourteen Paths of Ownership Changes in Poland,
P. Syryczynski 453
3. Enforcing the Law at Government Owned or Operated Facilities, A. Homonnay 465
4. The U.S. Environmental Protection Agency's integrated Compliance by the Federal
Government, T. McCall 471
5. Civil enforcement: Paying for the past, H. von Meijenfeldt 491
6. Privatization as an Opportunity to enhance Compliance. Poland's Perspective,
S. Wajda 497
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Theme #6: Applications to a Particular Environmental Problem: Solid and Hazardous Waste
Moderator: O. Caisou
1. Polish Prohibition of Waste Import, W. Radecki 503
2. Some information on Enforcement concerning Solid and Hazardous Wastes
Disposal in Czechoslovakia, K. Velek 509
3. Results of Three Years of Enforcement of Regulations on Transboundary
Shipments of Hazardous Waste in The Netherlands, M. Fokke-Baggen (additional
paper) 521
Theme #7: Public Disclosure and Citizens' role in Enforcement
Moderator: P. Keough
1, The Role of Citizens in Environmental Enforcement, E. Roberts, J. Dobbins and
M. Bowman 531
2. Citizens Role in Enforcement: a Spur, a Supplement and a Substitute, R. Hallo 561
3. Citizen participation in U.S. environmental enforcement, R Van Heuvelen and
L Breggin 573
4. From Public Disclosure to Public Accountability: What Impact will it riave on
Compliance, F. Irwin 589
5. Disclosure of Environmental Information and Enforcement of Environmental Law in
Flanders: The Complementary Role of Governmental Authorities and NGO's,
R tie Baere 605
6, Use of Public disclosure in Environmental Protection Programs to enhance
Compliance and Change Behavior in the United States, P. Keough 611
OUTLINE OF PROCEEDINGS VOLUME II 617
MEMBERS OF THE EXECUTIVE PLANNING COMMITTEE 619
ACKNOWLEDGEMENTS 621
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vi INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
PREFACE
We extend to you a very warm welcome as a participant to the second International
Conference on Environmenta! Enforcement in Budapest, Hungary. These Proceedings contain
papers that will be presented by the speakers and panelists at the Conference. In addition to
papers solicited of speakers and panelists on specific topics identified in the program, a!t
participants and other interested parties were invited to contribute papers on related topics. This
has resulted in several additional papers which are also enclosed in this Volume I of the
Conference Proceedings. Papers that were not available at the time of printing will be included in
a second Volume of these Proceedings which will be published early spring 1993 and will be sent
to the participants1 mailing addresses. The Proceedings will also be widely disseminated to
country environmental officials and NGO's throughout the world.
The Conference is part of an ongoing effort to develop effective approaches in different
settings to achieve widespread compliance with our very important environmental program
requirements. Speakers have been selected with substantial experience in different aspects of
compliance with and enforcement of environmental laws.
On behalf of the Executive Planning Committee, we look forward to a productive
exchange.
Budapest, 22 September 1992
The Conference Staff
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
CONFERENCE PURPOSE AND GOALS
The International Conference on Environmental Enforcement held September 22-25, 1992
in Budapest, Hungary responds to the growing recognition of the importance of environmental
concerns both domestically and on a global scale. The heightened interest in environmental
enforcement - broadly defined as the range of actions governments and others may take to
encourage and compel compliance with environmental requirements -- stems from a desire to
ensure that environmental requirements, expressed in policies, laws and permits, lead to real
improvements in environmental quality. Efforts to achieve widespread compliance and
enforcement of requirements also provide an element of fairness to the regulatory process, instill
credibility to government institutions, and prevent short term economic competition among regions
and between facilities from undermining longer term economic and environmental goals.
The Conference will focus on the development and enhancement of domestic
environmental enforcement approaches1 in Central and East European countries. The public and
governmental leaders in these countries have strongly expressed the need for economic growth
in harmony with concerns for public health and a quality environment. As the exchange should be
broadly useful to other nations, representatives from other regions around the globe will also
participate in the Conference. Planning of the Conference is guided by an Executive Planning
Committee. The Committee includes the three sponsors as well as the Environmental Ministries
of Poland, the Czech and Slovak Federal Republic, and Hungary, the Regional Environmental
Center in Budapest, the United Nations Environment Programme IE/PAC, and Hungary's Public
Prosecutor.
Sharing experiences and strategies among nations for developing sound domestic
compliance and enforcement approaches has already proven valuable as attested by responses
to the first International Enforcement Workshop held in Utrecht, the Netherlands, in May 1990.
Despite differences in culture and legal systems, environmental enforcement theory and practice
has basic elements which seem to transcend these differences among nations and peoples. It is
not only possible but essential that nations seek to learn from each other what works and does
not work to achieve widespread compliance with environmental requirements in different settings.
Gaining compliance is an evolutionary process, and no nation has developed an approach which
cannot benefit from continuing improvement. The Conference will explore different approaches,
1 Consideration of issues related to enforcement of requirements and agreements
that are global and transboundary in nature will be limited to a discussion of
commitments of individual countries as they are adopted as domestic laws or
requirements.
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10 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
sharing experiences within a general framework, but will not promote any single model for
achieving compliance with environmental requirements. Conference participants will consider the
least resource-intensive approaches to achieving compliance success and explore integrated as
well as single program focused compliance and enforcement activities.
The structure and content of the Conference is designed to provide a pragmatic exchange
with open appraisals of advantages and disadvantages of different approaches, opportunities for
practical follow-up and ongoing resource materials for those interested in enhancing environ-
mental compliance and enforcement. The Conference seeks to build institutional relationships to
establish responsibility, provide opportunities for leadership, and support networks of experts
among governmental, public, and private entities necessary to effectively achieve environmental
compliance. The Conference serves policy-makers from both within government and outside of
government. Within government, the Conference has representation from national, regional and
local governmental units, as appropriate to environmental enforcement and implementation
responsibilities in each country, as well as current and potential leaders in both legal and
technical aspects of environmental programs at the mid to senior management levels. It also
involves selected non-governmental organizations (NGO's) and industry representatives.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 11
CONFERENCE THEMES
The Conference will address the following themes over a four day period:
Theme #1: Context for Enforcement.
An introduction to the importance of compliance and enforcement concerns, a general
framework for designing effective environmental compliance and enforcement approaches and
alternative approaches within that framework including designing enforceable requirements,
setting priorities, compliance promotion, compliance monitoring, enforcement response to
violations, establishing clear roles and responsibilities, and evaluation of and accountability for
success.
Also to be addressed are the implications of membership in the European Economic
Community and community of nations for environmental compliance and enforcement and the
current status of enforcement in Central and Eastern Europe.
Theme #2: Designing Enforceable Environmental Requirements.
An assessment of the importance of ensuring the enforceability of environmental laws and
requirements as they are developed with examples of problems that have been encountered
because of poorly designed requirements, and alternative approaches to enhance the likelihood
that requirements will be enforceable when established.
Theme #3: Developing an Effective Compliance Monitoring Capability (e.g. Inspection
Capability).
An exploration of different organizational approaches and strategies for monitoring
compliance, focusing on inspection capabilities, including whether and how to develop an
inspectorate and whether to inspect on a single or multi-program basis.
Theme #4: Developing Authorities and Legal Enforcement Capabilities to Respond to
Violations.
An exploration of different authorities and approaches to legal enforcement within different
legal settings and what is necessary to employ and develop those authorities effectively.
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12 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Theme #5: Economic Development and Ownership Issues.
An exploration of the economics and realities of enforcement in three settings:
1) different approaches towards enforcement at government owned and operated
installations;
2) approaches to enforcement when faced with economic hardship, and
3) how to address the new opportunities for enhanced compliance presented by privatization
of industry and changes in ownership.
Theme #6: Applications to a Particular Environmental Problem: Solid and Hazardous
Waste.
An integrating session that combines all elements of the compliance and enforcement
framework, exploring different approaches to compliance and enforcement in different countries
and settings. This theme will explore more fully the potential of pollution prevention as a tool to
enhance compliance and as an enforcement response. This discussion would cover the total
problem of controlling waste including controlling domestically, the transport of hazardous waste
from other nations.
Theme #7: Public Disclosure and Citizens' Role in Enforcement.
An exploration of the role of public disclosure, citizens and others in the enforcement
process and their implications for achieving more widespread compliance.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 13
PRINCIPLES OF ENVIRONMENTAL ENFORCEMENT
CHERYL E. WASSERMAN
Chief, Compliance Policy and Planning, Office of Enforcement, U.S. EPA, Washington D.C.
20460 (U.S.A.)
SUMMARY
Environmental enforcement is taking its rightful place on the world stage, hand in hand
with the growing awareness of the importance of environmental concerns and the commitments
needed by governments and the public to address them. There is increasing recognition that
enforcement is an essential element of environmental programs if they are to achieve their
intended results. However, as a relative newcomer to many environmental programs around the
globe, "environmental enforcement" has lacked a point of reference from which nations may
productively share experiences and bridge differences in legal systems and cultures. The very
language for "enforcement" often poses a challenge in finding adequate translation -- words that
capture the kinds of behavior change we seek to achieve through environmental requirements
and the range of approaches to both compel and encourage compliance.
The Principles of Environmental Enforcement Text which follows, provides definitions, a
general framework, a set of principles, and a range of options to facilitate the development and
implementation of environmental enforcement programs and compliance strategies in different
international settings.
The Text, and the international training course it supports, do not offer a model but are
instead a point of departure from which all nations can improve and build their own unique, and
hopefully successful, enforcement approaches. It is a dynamic document which will change as its
concepts are shared and refined through their use.
1 ORIGINS OF THE PRINCIPLES OF ENVIRONMENTAL ENFORCEMENT
Enforcement training was high on the list of areas of assistance that were identified by
Poland's Ministry of Environmental Protection, Natural Resources and Forestry to the U.S.
Environmental Protection Agency to help improve Poland's environmental programs.
Development of the training posed a particular challenge since environmental programs in Poland
were changing dramatically and unpredictably, and both enforcement and program
implementation were highly decentralized and likely to remain so.
The resulting enforcement training has several attributes:
1.1 The enforcement training is philosophically neutral and generic - not geared to any
specific requirements -- since the environmental programs in Poland were undergoing radical
changes. The course had to transcend the debates about the mix of "command and control",
"market based" or "voluntary" approaches to pollution control. It had to transcend legal
authorities and systems.
1.2 The course can be delivered by in-country trainers in order to reach a highly diverse and
decentralized audience. Any training had to be replicable and readily adaptable for Poland to
train its own people at the local levels of government. Because of the severity of the area's
environmental problems, and because it possessed a very capable staff, the Katowice Ecology
Department was recommended by the Ministry as the primary location for a first offering of the
training.
1.3 The training offers a rich menu of options and ideas so that key policy makers can design
their own program best suited to their own culture and legal systems. The course needed to be
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14 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
based on something broader than the U.S. experience, particularly since Poland and other
Central and East European nations were interested in closer ties with Western Europe as well as
the U.S. We decided to seek active participation from the Netherlands as well as broader
international contributions to make the course useful internationally.
1.4 The target audience of key policy makers is broadly defined since government officials,
academics, non-government organizations, industry representatives and even journalists are all
involved in some fashion in reshaping existing programs and policies.
1.5 The general framework for compliance and enforcement is adapted from the framework
used to describe the U.S. enforcement program at the First International Enforcement Workshop
in Utrecht. Given the positive reception at the first International Workshop in Utrecht, May 1990,
we decided to apply that framework. In addition, key concepts such as deterrence theory
seemed to have their roots less in particular cultures than in the nature of human behavior.
1.6 No one model is offered as the only approach to gaining compliance. Although the text
was drafted based upon a modified U.S. framework offered in Utrecht, concepts and examples
were broadened to accommodate a range of situations and experiences.
1.7 The course is a facilitated course, one in which the participants learn from their
experiences within the course and from each other, with a "facilitator" helping guide these
experiences and exercises. A facilitated course has the advantage of creating interaction among
participants to enable them to start to build their own ideas, dialogue and consensus on the kind
of enforcement programs and approaches that would work best in their regions.
1.8 To ensure the course is exciting and effective in its delivery, participants andjacilitators
help to shape its development and refinement. Key individuals from Poland were involved in the
development of the course exercises. A group of potential facilitators was identified by our
contacts in Katowice and Krakow based upon their interpersonal skills, experience and command
of English (since they needed to work closely with the U.S. team). A team of six facilitators was
selected following interviews with the U.S. team and were flown to the U.S. for a one-week effort
to perfect some proposed exercises and sessions and to test whether a facilitated course could
work given the usual experience of Poles and others with lecture-style education. Based upon
the enthusiasm and suggestions of these facilitators, the course was developed and tested in
Poland before a final offering. The future facilitators from Poland were trained in facilitation and
given opportunities to practice delivery. The course was then effectively "handed off" to Poland
for future delivery.
2 COMPLIANCE AND ENFORCEMENT DEFINED
One of the most difficult places to begin in offering the Principles of Environmental
Enforcement training is finding the proper translation for the terms "compliance" and
"enforcement" in another language.
ComManceL isLjtefiried as a state in which environmental requirements are met and
desjrM changes in behavior are achieved, e.g. proper pollution control equipment is in place and
operating, production processes or raw materials are changed, work practices are changed, etc.
Enforcement is defined broadly as the range of approaches governments or others take to
compel or encourage compliance within the regulated community. It also includes legal
processes used to correct or halt situations that endanger the environment or public health. This
definition accommodates the full range of "carrot and stick" approaches to gaining compliance.
Thus it goes beyond the usual use of the term to generally include inspections (e.g. to find
information needed to determine compliance status and to identify violations) and legal actions to
impose some consequences for violating the law. However, programs designed to achieve
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 15
compliance may involve more than just traditional enforcement, for example they may also
include assistance and subsidies.
The concept of deterrence is essential to any enforcement program. It is the creation of
an atmosphere in which many choose to comply rather than violate the law. There are four
interrelated elements needed to create deterrence: the likelihood that a violation will be detected;
swift and certain response by government or others; consequences in the form of appropriate
sanction or penalty; and the perception that these conditions exist. Other theories of human
behavior appropriate to enforcement are provided by economic and behavior theory, but a basic
principle of enforcement is that no one motivating factor can predict human behavior. A
compliance strategy must therefore anticipate the full range of motivations that may be operative
for a given situation. Another basic principle is that a well designed program, using these
elements of deterrence, can leverage scarce program resources to affect a broad regulated
community with well targeted activities.
3 THE GENERAL FRAMEWORK FOR COMPLIANCE AND ENFORCEMENT
The Principles Text offers a general framework for compliance and enforcement with
seven elements:
o Creating requirements that are enforceable.
o Knowing who is subject to the requirements and setting program priorities.
o Promoting compliance in the regulated community.
o Monitoring compliance.
o Responding to violations.
o Clarifying roles and responsibilities.
o Evaluating the success of the program and holding program personnel accountable for
its success.
The Text provides a range of alternative approaches to meet the needs represented by the
elements of the framework.
Within this framework, enforcement concerns begin and are addressed at the design stage
of requirements, not only after requirements are put into effect. It also calls for a dynamic
process, one which evaluates and adjusts to the successes and failures of proposed compliance
strategies.
A further principle of environmental enforcement that enforcement has in common with
other aspects of environmental protection is the need to establish priorities which will yield the
greatest environmental and programmatic results. Various schemes for establishing priorities (i,e,
for inspections, enforcement response and compliance incentives or assistance) are offered
based upon risk reduction potential, the need to preserve the integrity of program reporting and
related requirements, and the need to preserve the integrity of prior enforcement agreements or
orders. Management and collection of information on the regulated community and its
compliance status are critical to effective targeting.
Responses to violations can be quite varied depending upon the nature of violations,
circumstances surrounding them and the range of response options available. Principles of
environmental enforcement include the need to ensure fairness, and consistent and effective
application of enforcement tools - all of which serve to establish and reinforce the credibility of
environmental laws and the governmental institutions which implement them. They also cal! for
escalation from less resource intensive to more resource intensive or severe response, and the
imposition of consequences commensurate with the harm and behavior of the violator. It includes
negations to ensure correction is practical, realistic, that facts are correct and that creative
opportunities for a successful response are fully explored from the perspective of both the
government and violators.
Finally, environmental enforcement requires clear assignment of roles and responsibilities
and mechanisms for coordination and cooperation among different disciplines and levels of
government. It also requires accountability for results.
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16 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
4 THE INTERNATIONAL COURSE AND ITS DELIVERY
The course has now been delivered in Poland and Hungary and is planned for delivery in
Turkey, the Baltics, the Ukraine and Mexico. Participant response has been very favorable and
enthusiastic. In all of these setting, the course is designed to be handed-off to in-country
facilitators. The course materials consisting of the text, course exercises, and the facilitator's
manual.
The training itself is designed as a three day course. The first day consists of a series of
exercises which introduce the participants to basic concepts and a range of options. The second
day provides an opportunity for the participants to design their own environmental requirements
and compliance and enforcement strategy for a fictitious community and environmental problem.
The third day is an enforcement negotiation settlement role-play where the participants act out
different roles and consider an enforcement problem from different perspectives.
The course materials are available to any nation wishing to use them. The U.S. EPA's
Office of Enforcement is prepared to consider requests i.e. to train facilitators to offer it within
other countries. For the countries in Central and Eastern Europe in particular, efforts are being
made to ensure ongoing delivery through the Environmental Management Training Centers being
established by U.S.EPA and local government or non-governmental organizations. The
enforcement training will be one of several modules offered in various aspects of environmental
management. The course may also be adopted as part of the training at the U.S. EPA's National
Enforcement Training Institute when it focuses on a possible international curriculum.
5 FUTURE PLANS FOR THE TEXT AND COURSE
Additional materials are being developed to provide a selection of case studies from which
to choose when presenting the course. This will enable the facilitators to tailor the course to the
types of environmental problems faced by each country.
The ideas generated at the Second International Conference on Environmental
Enforcement and by course facilitators and course participants will help shape the future of the
course, in terms of its content, its usefulness and distribution world-wide. We welcome continued
input and ideas for the future of the Principles of Environmental Enforcement course and
suggestions for additional steps we can take to spread the enforcement message.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 17
PRINCIPLES OF
ENVIRONMENTAL ENFORCEMENT
U.S. Environmental Protection Agency
July 15, 1992
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18 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
UPDATING AND ENRICHING THIS TEXT
This text will be periodically updated to include new enforcement ideas and examples from
countries around the world. Readers are encouraged to send comments and ideas for the next
edition to:
Compliance Policy and Planning Branch
Office of Enforcement (LE-133)
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
USA
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 19
ACKNOWLEDGMENTS
This text is one of three documents that form the basis of a training course on Principles
of Environmental Enforcement. This course was prepared by the U.S. Environmental Protection
Agency (U.S. EPA) in response to a request by Poland's Ministry of Environmental Protection,
Natural Resources and Forestry. The text and course, however, are broadly designed for use by
any level of government, in any culture.
The text was developed by the U.S. EPA in consultation with the Netherlands' Ministry of
Housing, Physical Planning and Environment, the Polish Ministry of Environmental Protection,
Natural Resources and Forestry, and the Katowice Ecology Department in Poland. The principal
author of this text was Ms. Cheryl Wasserman, Chief of Compliance Policy and Planning Branch
of the U.S. EPA's Office of Enforcement, with contributions from Mr. Jo Gerardu of the
Netherlands Ministry of Housing, Physical Planning and Environment.
Much of this text draws upon articles prepared by the authors for international audiences.
Particularly important sources include the Proceedings of the first International Enforcement
Workshop, held in Utrecht, the Netherlands, in May 1990, and case studies on enforcement
prepared for the Organization for Economic Cooperation and Development. The text also
benefkted from the comments of reviewers in Canada, Hungary, and Poland.
The training course enables participants to develop their own management approach to an
environmental problem, to draft enforceable requirements where appropriate, and to design a
unique compliance strategy and enforcement program. It also provides an opportunity to
participate in a negotiation session to resolve a specific enforcement case. The training exercises
were designed by a team from the U.S. EPA, including personnel from the Office of
Enforcement; Office of Policy, Planning and Evaluation; and the Philadelphia regional office. In
addition to Ms. Wasserman, Ms. Ann DeLong and Ms. Margaret Berger of the Office of
Enforcement served as Project Managers for the development and implementation of the course.
Mr. Tom Maslany, Director of the U.S. EPA's Air, Toxics and Radiation Division in the
Philadelphia regional office, and the Division staff were the principal authors of the enforcement
case study used in the training. Ms. Pam Stirling of the Office of Policy, Planning and Evaluation,
and Ms. Amy Evans of the Office of Internationa] Activities, also were essential to course
development. Additional optional case studies for the course will be developed by other EPA
regions and the Netherlands Ministry. A team of future trainers from Poland provided invaluable
feedback during the course development.
Ms. Jan Connery of Eastern Research Group, Inc., a consultant retained by the U.S. EPA,
edited and assisted in the development of the text and course materials and provided logistical
and technical support for the course implementation.
-ill-
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20 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 21
TABLE OF CONTENTS1
PAGE
ACKNOWLEDGMENTS iii
GLOSSARY xiii
PART I: CONTEXT FOR ENFORCEMENT
1. INTRODUCTION 1-1
What Is the Purpose of This Text? 1-1
What Is Compliance? 1-1
What Is Enforcement? 1-2
Why Are Compliance and Enforcement Important? 1-2
What are the Components of a Successful Enforcement Program? 1-2
How Programs May Evolve in Different Cultures and Countries 1-4
2. THE BASIS FOR COMPLIANCE AND ENFORCEMENT 2-1
Introduction 2-1
Factors Affecting Compliance 2-1
Deterrence 2-1
Economics 2-3
Institutional Credibility 2-3
Social Factors 2-3
Psychological Factors 2-4
Knowledge and Technical Feasibility 2-4
Impact on Program Design 2-4
3. CREATING ENVIRONMENTAL LAWS AND REQUIREMENTS
THAT ARE ENFORCEABLE 3-1
Introduction 3-1
Enforceability of Different Approaches to Environmental Management 3-1
Laws: The Framework for Enforcement 3-5
Authorities 3-5
Institutional Framework 3-5
Related Laws Compelling Professional and Equitable Conduct 3-5
'This edition of this document is based on the February 19, 1992 edition. The text has been
reformatted to single spacing, therefore, the page numbers are different. Also, some text has been
added to Case Study 1 in Chapter 11.
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22 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
TABLE OF CONTENTS (continued)
PAGE
Compatibility with Existing Laws 3-7
Structure and Criteria for Establishing Environmental Requirements .... 3-7
Requirements: Making Them Enforceable 3-7
Balancing Stringency and Feasibility 3-10
Improving the Climate for Compliance 3-10
General Requirements 3-10
Size of the Regulated Community 3-11
Analyzing the Regulated Community's Ability To Comply 3-11
Involving the Regulated Community and Other Interested Parties 3-15
Involving Enforcement Officials 3-15
Coordinating with Other Environmental Requirements
and Programs 3-17
Facility-Specific Requirements 3-17
Ensuring Enforceability 3-17
The Permitting and Licensing Process 3-21
PART II: DESIGNING COMPLIANCE STRATEGIES AND ENFORCEMENT
PROGRAMS
4. IDENTIFYING THE REGULATED COMMUNITY AND ESTABLISHING
PROGRAM PRIORITIES 4-1
Introduction 4-1
Identifying the Regulated Community 4-1
Important Information 4-1
Approaches To Gathering Information 4-2
Information Management 4-2
Considerations in Setting Priorities 4-2
Who Should Set Priorities? 4-3
Communicating Priorities , 4-3
Review and Revision . 4-5
5. PROMOTING COMPLIANCE 5-1
Introduction 5-1
Education and Technical Assistance 5-1
Approaches 5-1
Building Public Support 5-2
Publicizing Success Stories 5-2
Creative Financing Arrangements 5-4
Economic Incentives 5-4
Building a Facility's Environmental Management Capability 5-5
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TABLE OF CONTENTS (continued)
PAGE
6. MONITORING COMPLIANCE 6-1
Introduction 6-1
Inspections 6-1
Types of Inspections 6-1
Gathering Evidence 6-4
Written Inspection Report 6-4
Inspection Plan 6-5
Targeting Inspections 6-5
Issues To Consider 6-5
Inspector Training 6-8
Support Resources 6-8
Self-Monitoring, -Recordkeeping, and -Reporting by the
Regulated Community 6-8
Issues 6-10
Citizen Complaints , 6-12
Area Monitoring 6-12
Ambient Monitoring 6-12
Remote Sensing 6-12
Overflights 6-12
7. ENFORCEMENT RESPONSES TO VIOLATIONS 7-1
Introduction 7-1
The Range of Response Mechanisms and Authorities 7-1
Authorities 7-2
Response Mechanisms 7-2
Informal Mechanisms 7-2
Formal Mechanisms 7-2
Civil Administrative Enforcement 7-2
Civil Judicial Enforcement 7-5
Criminal Enforcement 7-5
The Enforcement Process 7-6
Protecting Basic Rights 7-6
Supporting the Enforcement Case 7-6
The Role of Negotiation 7-8
Role of the Public to Ensure Accountability 7-8
Creative Settlements: Leveraging Enforcement for Broader Results 7-8
Pollution Prevention 7-9
Pollution Reductions Beyond Compliance 7-9
Environmental Auditing 7-9
Environmental Restoration 7-9
Publicity 7-10
Training 7-10
Escrow or Bond for Sources Unable To Pay Penalties 7-10
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TABLE OF CONTENTS (continued)
PAGE
Enforcement Response Policies 7-10
Criteria for Noncorapliance . 7-10
Selection of Appropriate Enforcement Response 7-10
When Should Civil or Criminal Responses Be Used? 7-10
When Should a Sanction Be Imposed? 7-11
Should a First Enforcement Response Include a Sanction? 7-11
What Type of Sanction Should Be Used? 7-11
What Enforcement Responses Are Appropriate for
Government-Owned and/or -Operated Facilities? . 7-14
8. CLARIFYING ROLES AND RESPONSIBILITIES 8-1
Introduction 8-1
Dividing Responsibilities Among Government Levels 8-1
The U.S. Experience: Parallel Responsibility
with the Primary Role Delegated 8-3
The Netherlands' Experience: Divided Responsibilities 8-5
Role of Other Government Institutions 8-7
Legislative Institutions 8-7
Executive Institutions 8-7
Judicial Institutions 8-8
Agencies with Jurisdiction in Areas Related
to Environmental Management 8-8
Police 8-8
Role of Nongovernment Groups 8-9
Industry Associations 8-9
Associations of Government Officials 8-9
Professional and Technical Societies . 8-9
Trade Unions and Workers' Councils 8-9
Universities - 8-10
Insurance Companies 8-10
Public Interest Groups 8-10
Use of Independent Contractors To Supplement
Government Personnel 8-10
Special Centers 8-10
9. EVALUATING PROGRAM SUCCESS AND ESTABLISHING
ACCOUNTABILITY 9-1
Introduction 9-1
Issues in Measuring Success 9-1
Measures of Success 9-3
Environmental Results 9-3
Compliance Rates 9-4
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TABLE OF CONTENTS (continued)
PAGE
Progress in Returning Significant Violators to Compliance 9-4
Measures of Compliance Monitoring 9-5
Number of Enforcement Responses , 9-5
Timeliness of the Enforcement Responses 9-6
Monetary Penalties Assessed 9-6
Measures of Technical Assistance 9-6
Other Measures , 9-6
PART III: IMPLEMENTATION AND EXPERIENCE
10. BUILDING AN EFFECTIVE ENFORCEMENT PROGRAM 10-1
Personnel 10-1
Role of Program Personnel 10-1
Staffing Level 10-1
Training 10-1
Use of Third Parties 10-3
Information Management Systems 10-3
Program Funding . 10-4
Evolution of Enforcement Programs 10-4
Enforcement as a Priority 10-4
Evolution of Authorities 10-5
Identifying the Regulated Community and Establishing Priorities 10-6
Compliance Promotion , 10-6
Compliance Monitoring , . . , 10-6
Enforcement Response 10-7
Roles and Responsibilities 10-7
Evaluation and Accountability 10-7
11. CASE STUDIES: PULLING IT ALL TOGETHER 11-1
Introduction . 11-1
Case Study 1: Enforcement of Air Regulations in Allegheny County, USA 11-2
Introduction 11-2
County Profile 11-2
Air Pollution Control Before 1970 11-4
Authority for Air Pollution Control, 1970-1991 11-4
Allegheny County Air Quality Regulations, 1970-1991 11-4
The Air Pollution Control Advisory Committee 11-5
Standards and Methods 11-5
Enforcement Mechanisms 11-6
Resources 11-8
Monitoring 11-8
Emissions 11-8
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26 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
TABLE OF CONTENTS (continued)
PAGE
Inspection 11-9
Role of the State and Federal Governments 11-9
Role of Environmental Groups and the Public 11-10
Role of Industry . . : 11-10
Results 11-10
Factors Influencing Success 11-11
Case Study 2: Responsible Processing of Derelict Cars in the Netherlands 11-11
Introduction 11-11
Regulations 11-12
Derelict Cars Plan 11-12
Implementing the Plan in North Holland 11-12
Conclusions 11-13
Case Study 3: Collection and Processing of Hazardous Waste from Ships
in the Netherlands 11-13
Introduction 11-13
The Decree on Collection of Wastes from Ships 11-15
Enforcement Approach 11-15
Enforcement Results 11-16
Case Study 4: Enforcement of Municipal Wastewater Requirements
in the United States of America 11-16
Background 11-16
Enforcement Activities 11-17
Results 1M7
Reasons for Success of the National Municipal Policy 11-17
Case Study 5: Enforcement of Marketable Reductions of Lead in the 11-20
United States of America
Background 11-20
Enforcement Activities 11-20
Results 11-22
Deterrence 11-22
Conclusion 11-25
12. INFORMATION RESOURCES 12-1
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LIST OF TABLES
Page
1-1 Why Are Environmental Enforcement Programs
Important? 1-3
2-1 Factors Affecting Compliance 2-2
3-1 Approaches to Environmental Management 3-2
3-2 Examples of Environmental Requirements 3-4
3-3 Examples of Vehicles for Implementing
Environmental Requirements 3-6
3-4 Example of the Relationship Between an
Environmental Law, Regulation, and Permit
in the United States 3-9
3-5 Sample Checklist for Developing Enforceable
Regulations, General Permits, and General Licenses . 3-12
3-6 Ways to Involve the Regulated Community in
Developing General Requirements 3-16
3-7 Sample Checklist for Developing Enforceable
Permits 3-18
4-1 Approaches to Setting Priorities for Inspection
and Enforcement 4-4
5-1 Ways to Provide Information and Assistance to the
Regulated Community 5-3
6-1 Advantages and Disadvantages of Primary Sources
of Compliance Information 6-2
6-2 Three Levels of Inspections 6-3
6-3 Elements of an Inspection Plan 6-6
6-4 Elements of Inspector Training 6-9
6-5 Examples of Self-Monitoring, -Reporting, and
-Recordkeeping Requirements in the United States 6-11
7-1 Types of Enforcement Authorities 7-3
7-2 Types of Informal Response 7-4
7-3 Typical Dispute Resolution Procedures 7-7
7-4 Factors That May Be Used to Calculate a Monetary
Penalty 7-12
7-5 Sample Worksheet to Calculate a Monetary Penalty 7-13
8-1 Approaches Used in Different Countries to
Partition Government Responsibilities for
Enforcement 8-2
10-1 Typical Responsibilities of Technical and Legal
Staff in Environmental Enforcement 10-2
11-1 Compliance Status of NMP Facilities 11-19
11-2 Estimated Health Benefits from the 150 Million
Grams of Lead Removed from Gasoline Production
as a Result of Direct Enforcement 11-24
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LIST OF FIGURES
3-1 Environmental Management Cycle 3-3
3-2 Examples of Different Relationships Between
Laws, Regulations, Permits, and Licenses 3-8
9-1 Measures of Success in Compliance Promotion
and Enforcement Response 9-2
11-1 Allegheny County Pennsylvania, USA 11-3
11-2 Percentage of Wrecker Yards in Violation of
Requirements in the Province of North Holland,
the Netherlands, 1990-1991 11-14
11-3 Enforcement Actions vs. Compliance 11-18
11-4 Violation Frequency by Quarter of Occurrence 11-21
11-5 The Effect of the Lead Phasedown Program (LPP)
on Lead Use 11-23
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GLOSSARY
administrative enforcement response - see enforcement response.
civil administrative order - a legal, independently enforceable order, issued directly by
enforcement program officials, that imposes specific legal requirements and/or sanctions.
civil judicial enforcement response - see enforcement response.
command-and-control - an approach to environmental management in which the government
prescribes detailed environmental requirements and then promotes and enforces compliance with
these requirements.
compliance - the full implementation of requirements.
compliance monitoring - collecting and analyzing information on compliance status.
compliance promotion - any activity that encourages voluntary compliance with requirements.
Examples of compliance promotion include educational programs, technical assistance, and
subsidies.
compliance strategy - a strategy for achieving compliance with requirements.
deterrence - an atmosphere in which people are discouraged from violating requirements.
enforceable - able to be enforced.
enforceability - the degree to which a requirement can be enforced.
enforcement - the set of actions that governments or others take to achieve compliance within the
regulated community and to correct or halt situations that endanger the environment or public
health. Enforcement by the government usually includes inspections, negotiations, and legal
action. It may also include compliance promotion.
enforcement program - a program dedicated to achieving compliance with environmental
requirements and to correcting or halting situations that endanger the environment or public
health. Government enforcement programs usually includes inspections, negotiations, and legal
action. They may also include compliance promotion.
enforcement response - the set of actions taken in response to a violation to bring the violator
into compliance and/or to deter both the violator and others from future violations.
informal response - an enforcement response that cannot impose legal requirements or
sanctions or be enforced, but can lead to more severe response if ignored. Informal
responses are typically telephone calls or documents that provide information about a
violation and action needed to correct the violation.
administrative enforcement response - legal action*m response to a violation that is
handled by an administrative system within the enforcement program.
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civil judicial enforcement response - formal lawsuits brought before the court to impose
specific legal requirements or sanctions in response to a violation.
criminal judicial enforcement response - enforcement response that seeks criminal
sanctions (e.g., imprisonment or a monetary fine) to punish the violator for the violations.
environment - all external conditions affecting the life, development, and survival of living
organisms,
environmental auditing - a periodic, systematic, comprehensive, documented, and objective
evaluation at a facility of its compliance status with environmental requirements and/or of its
management systems and practices that affect compliance.
environmental requirements - specific practices and procedures required by law to directly or
indirectly reduce or prevent pollution.
facility-specific requirements - requirements that apply to a specific facility.
general requirements - requirements that apply to a group of facilities,
facility - any operation or business.
facility-specific requirements - see environmental requirements.
field citation - a civil administrative order issued directly by an inspector in the field.
fine - see monetary penalty.
general requirements - see environmental requirements
inspection - official review and examination of the compliance status of a facility.
law - see vehicle.
license - see vehicle.
monetary penalty - a sanction that must be paid in a country's currency.
monitoring - see compliance monitoring.
order - a document backed by the force of law that requires a violator to take certain action
within a certain time period to correct a violation or to cease illegal activity.
penalty - see monetary penalty.
permit - see vehicle.
policymakers - used in this text to mean anyone involved in developing or implementing an
enforcement program, including government officials, nongovernment officials, industry and
academic leaders, and private citizens.
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pollution - the presence of matter or energy whose nature, location, or quantity produces
undesired environmental effects.
pollution prevention - any efforts to reduce or prevent generation of pollutants. For example,
pollution prevention includes changing a manufacturing process so that pollutants are no longer
generated.
regulated community - those individuals, facilities, businesses, and/or institutions that are subject
to particular requirements.
regulation - see vehicle
regulatory program - program that includes requirements.
requirements - see environmental requirements above.
sanction - any adverse consequence imposed on a violator.
self-monitoring - the process by which a source measures certain of its emissions, discharges,
and/or performance parameters to provide information on the nature of the pollutant discharges
and/or the operation of control technologies.
self-recordkeeping - the process by which sources maintain their own records of certain regulated
activities they perform (e.g., shipment of hazardous waste).
self-reporting - the process by which sources provide enforcement officials with self-monitoring
and/or self-recordkeeping data periodically and/or upon request.
source - a facility or individual that generates pollution.
technical assistance - assistance of a scientific or technological nature provided to facility
personnel to help them comply with environmental requirements.
vehicle - this term is used in this text to mean a document that defines or supports the definition
of environmental requirements. The primary vehicles for implementing environmental
requirements are (see also Table 3-3 for expanded definitions):
law - document that provides the vision, scope, and authority for requirements to protect
public health from pollutants and/or to protect and restore the environment.
Requirements are often defined in subsequent regulations, permits, and/or licenses. Some
laws themselves contain requirements.
regulation - document that establishes general requirements that must be met by the
regulated community. Some regulations are directly enforced. Others provide criteria and
procedures for developing permits and/or licenses.
permit - document that contains requirements relating to the construction or operation of
facilities that generate pollutants. These requirements may be general or facility-specific.
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license - document that contains requirements pertaining to the manufacture, testing, sale,
and/or distribution of a product, such as a pesticide, that may pose an environmental or
public health risk if improperly used. Requirements may be general or facility-specific.
violation - noncompliance with a requirement.
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PART I: CONTEXT FOR ENFORCEMENT
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1. INTRODUCTION
Many countries are taking action to protect public health from environmental pollution
and to restore and protect the quality of their natural environment. They have developed or are
developing management strategies to prevent or control pollution. Most environmental
management strategies involve legal requirements that must be met by individuals and facilities
that cause or may cause pollution. These requirements are an essential foundation for
environmental and public health protection, but they are only the first step. The second essential
step is compliance—getting the groups that are regulated to fully implement the requirements.
Without compliance, environmental requirements will not achieve the desired results. Compliance
does not happen automatically once requirements are issued. Achieving compliance usually
involves efforts to encourage and compel the behavior changes needed to achieve compliance.
WHAT IS THE PURPOSE OF THIS TEXT?
This text has been prepared to help individuals responsible for environmental protection in
different countries, regions, and localities design and implement compliance strategies and
enforcement programs—that is, programs dedicated to achieving compliance with environmental
requirements. It is intended for anyone involved in program development or implementation,
including government officials, nongovernment officials, industry and academic leaders, and
private citizens. For convenience, this text refers to these individuals as policymakers. The text
provides:
• A framework for structuring enforcement programs and compliance strategies.
• Some basic principles common to successful programs.
• A variety of options for various elements of a program.
• Issues to be considered in designing a program.
• Examples of some existing enforcement programs.
• A list of resources that provide further information.
Successful implementation of environmental requirements requires significant effort and
forethought. Changes in behavior have always been difficult to accomplish on both a societal and
personal level. There is no magic formula for achieving compliance. There is merely trial,
evaluation, and response to what works and does not work in a particular setting. Nevertheless, a
reliable framework for designing enforcement programs has emerged based on the experience of
countries such as the United States, the Netherlands, Canada, Norway, Sweden, and others. This
text derives from that experience and will be updated periodically based on additional
international experience to enrich the possibilities offered.
WHAT IS COMPLIANCE?
Compliance is the full implementation of environmental requirements. Compliance occurs
when requirements are met and desired changes are achieved, e.g., processes or raw materials are
changed, work practices are changed so that, for example, hazardous waste is disposed of at
approved sites, tests are performed on new products or chemicals before they are marketed, etc.
The design of requirements affects the success of an environmental management program. If
requirements are well-designed, then compliance will achieve the desired environmental results. If
the requirements are poorly designed, then achieving compliance and/or the desired results will
likely be difficult.
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36 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
WHAT IS ENFORCEMENT?
Enforcement is the set of actions that governments or others take to achieve compliance
within the regulated community and to correct or halt situations that endanger the environment
or public health. Enforcement by the government usually includes:
• Inspections to determine the compliance status of the regulated community and to
detect violations.
• Negotiations with individuals or facility managers who are out of compliance to
develop mutually agreeable schedules and approaches for achieving compliance.
• Legal action, where necessary, to compel compliance and to impose some
consequence for violating the law or posing a threat to public health or
environmental quality.
Enforcement may also include:
• Compliance promotion (e.g., educational programs, technical assistance, subsidies)
to encourage voluntary compliance.
Nongovernment groups may also become involved in enforcement by detecting
noncompliance, negotiating with violators, commenting on government enforcement actions, and
where the law allows, taking legal action against a violator for noncompliance or against the
government for not enforcing the requirements. In addition, certain industries such as the
banking and insurance industries may be indirectly involved in enforcement by requiring assurance
of compliance with environmental requirements before they will issue a loan or insurance policy
to a facility.
In some countries, societal norms of compliance have been a powerful force compelling
compliance with any form of legal requirement. A system that relies on social norms for
enforcement may not be effective in every situation and may become vulnerable to abuse if
societal norms break down over time. This possibility has stimulated new consideration
internationally of the need for dedicated enforcement programs within government and
nongovernment organizations.
WHY ARE COMPLIANCE AND ENFORCEMENT IMPORTANT?
An effective compliance strategy and enforcement program brings many benefits to society
(Table 1-1). First, and most important, is the improved environmental quality and public health
that results when environmental requirements are complied with. Second, compliance with
environmental requirements reinforces the credibility of environmental protection efforts and the
legal systems that support them. Third, an effective enforcement program helps ensure fairness
for those who willingly comply with environmental requirements. Finally, compliance can bring
economic benefits to individual facilities and to society.
WHAT ARE THE COMPONENTS OF A SUCCESSFUL ENFORCEMENT PROGRAM?
An effective enforcement program involves several components:
• Creating requirements that are enforceable.
• Knowing who is subject to the requirements and setting program priorities.
• Promoting compliance in the regulated community.
• Monitoring compliance.
• Responding to violations.
• Clarifying roles and responsibilities.
• Evaluating the success of the program and holding program personnel accountable
for its success.
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TABLE 1-1. WHY ARE ENVIRONMENTAL
ENFORCEMENT PROGRAMS IMPORTANT?
To Protect Environmental Quality and Public Health. Compliance is essential
to achieving the goals of protecting public health and environmental quality
envisioned by environmental laws. Public health and the environment will be
protected only if environmental requirements get results. Enforcement
programs are essential to get these results.
To Build and Strengthen the Credibility of Environmental Requirements. To
get results, environmental requirements and the government agencies that
implement them must be taken seriously. Enforcement is essential to build
credibility for environmental requirements and institutions. Once credibility is
established, continued enforcement is essential to maintain credibility.
Credibility means that society perceives its environmental requirements and the
institutions that implement them as strong and effective. Credibility encourages
compliance by facilities that would be unlikely to comply if environmental
requirements and institutions are perceived as weak. The more credible the
law, the greater the likelihood of compliance, and the likelihood that other
government efforts to protect the environment will be taken seriously.
To Ensure Fairness. Without enforcement, facilities that violate environmental
requirements will benefit compared to facilities that voluntarily choose to
comply. A consistent and effective enforcement program helps ensure that
companies affected by environmental requirements are treated fairly. Facilities
will be more likely to comply if they perceive that they will not be economically
disadvantaged by doing so.
To Reduce Costs and Liability. Though compliance is often costly in the short-
term, it can have significant long-term economic benefits to both society and the
complying facility. The healthier environment created by compliance reduces
public health and medical costs, as well as the long-term cost to society of
cleaning up the environment. Compliance benefits industry by reducing its
liability and long-term cleanup costs. Industry may also realize immediate
economic benefits if compliance involves recycling valuable materials or
increasing the efficiency of its processes. A strong enforcement program may
also encourage facilities to comply by preventing pollution and minimizing
waste, rather than installing expensive pollution control and monitoring
equipment.
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These components form a framework within which to consider issues pertinent to any
enforcement program, no matter what its stage of development. The response to these issues may
differ among countries, among regions or localities within countries, and among different
programs over time. Important to the success of all programs, however, is the need to address all
elements of the framework. Each element is part of an interconnected whole and thus can
influence the success of the whole program.
HOW PROGRAMS MAY EVOLVE IN DIFFERENT CULTURES AND COUNTRIES
Anyone involved in designing an enforcement program will face certain issues: How
should a program begin? What elements are most important? How can the full range of
responsibilities be handled with limited program resources? How should the program evolve over
time as the program moves to new stages, as policymakers evaluate the success of previous
strategies, and as technological and economic developments suggest new solutions? There are no
standard answers. Each program must answer these questions for itself based on program
resources and culture. This text provides a broad range of possibilities for the different elements
of an enforcement program. Policymakers can select from these possibilities to design or modify
a program so that it best serves the desired goals within the available resources.
Resources often limit choices. For example, ideally inspectors would be well-trained
before they start to inspect. Due to limited resources and/or program priorities, many programs
rely initially, if not predominantly, on on-the-job training. The challenge for every program is to
make the most effective use of the resources that are available. This text presents many ideas for
leveraging program resources to achieve broad results.
Finally, the effectiveness of an enforcement program will depend in part on the degree to
which environmental quality is a national, regional, and local priority. Achieving compliance
sometimes requires hard economic choices. Public and government concern for environmental
quality provide an important foundation for enforcement programs.
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2. THE BASIS FOR COMPLIANCE AND ENFORCEMENT
INTRODUCTION
One of the primary goals of an environmental enforcement program is to change human
behavior so that environmental requirements are complied with1. Achieving this goal involves
motivating the regulated community to comply, removing barriers that prevent compliance, and
overcoming existing factors that encourage noncompliance.
Many factors, listed in Table 2-1 and described below, affect compliance. Which factors
are operating in any particular regulatory situation will vary substantially depending on the
economic circumstances of the regulated community, on cultural norms within the community and
nation as a whole, and sometimes on the individual personalities and values of managers within
the regulated community.
In any environmental situation several of the factors described below will influence the
behavior of the regulated community. For this reason, environmental enforcement programs
generally will be most effective if they include a range of approaches to changing human behavior.
The approaches described in this text fall into two categories: (1) promoting compliance through
education and incentives, and (2) identifying and taking action to bring violators into compliance.
In some cultures, these two approaches are referred to as "carrot" and "stick." Different programs
will place different emphasis on these two approaches depending on the culture and the particular
regulatory situation. However, experience with enforcement programs does suggest that some
form of enforcement response may ultimately be essential to achieve widespread compliance.
FACTORS AFFECTING COMPLIANCE
Deterrence
In any regulatory situation some people will comply voluntarily, some will not comply, and
some will comply only if they see that others receive a sanction2 for noncompliance. This
phenomenon - that people will change their behavior to avoid a sanction - is called deterrence.
Enforcement deters detected violators from violating again, and it deters other potential violators
by sending a message that they too may experience adverse consequences for noncompliance.
This multiplier or leverage effect makes enforcement a powerful tool for achieving widespread
compliance. Studies of and experience with enforcement show that four factors are critical to
deterrence:
• There is a good chance violations will be detected.
• The response to violations will be swift and predictable.
• The response will include an appropriate sanction.
• Those subject to requirements perceive that the first three factors are present.
These factors are interrelated. For example, to create an appropriate level of deterrence,
a more severe sanction may be needed for violations that are unlikely to be detected. Conversely,
a less severe sanction may be sufficient if violations are likely to be detected and response can
therefore be relatively swift.
'Another major goal of an enforcement program is to correct any immediate and serious
threat to public health or the environment posed by pollution (e.g., a chemical spill that is
contaminating a drinking water supply, discovery of toxic or explosive chemical wastes in an area
accessible to the public).
Sanction is used in this text to mean any adverse consequence imposed on a violator.
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TABLE 2-1. FACTORS AFFECTING COMPLIANCE
FACTORS MOTIVATING COMPLIANCE
BARRIERS TO COMPLIANCE AND
FACTORS ENCOURAGING
NONCOMPLIANCE
ECONOMIC
Desire to avoid a penalty.
Desire to avoid future liability.
Desire to save money by using
more cost-efficient and
environmentally sound practices.
SOCIAL/MORAL
Moral and social values for
environmental quality.
Societal respect for the law.
Clear government will to enforce
environmental laws.
PERSONAL
Positive personal relationships
between program personnel and
facility managers.
Desire, on the part of the facility
manager, to avoid legal process.
Desire to avoid jail, the stigma of
enforcement, and adverse
publicity.
MANAGEMENT
Jobs and training dedicated to
compliance.
Bonuses or salary increases based
on environmental compliance.
Lack of funds.
Greed/desire to achieve
competitive advantage.
Competing demands for resources.
Lack of social respect for the law.
Lack of public support for
environmental concerns.
Lack of government willingness to
enforce.
Fear of change.
Inertia.
Ignorance about requirements.
Ignorance about how to meet
requirements.
Lack of internal accountability for
compliance.
Lack of management systems for
compliance.
Lack of compliance training for
personnel.
TECHNOLOGICAL
Availability of affordable
technologies.
Inability to meet requirements due
to lack of appropriate technology.
Technologies that are unreliable
or difficult to operate.
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Because perception is so important in creating deterrence, how enforcement actions are
taken is just as important as the fact that they are taken. History has many stories of small
armies that successfully beat larger forces by giving the impression that they were a formidable
fighting force. Similarly, enforcement actions can have significant effects far beyond bringing a
single violator into compliance if they are well placed and well publicized.
Economics
Change may also be motivated by economic considerations. The regulated community
may be more likely to comply in cases where enforcement officials can demonstrate that
compliance will save money (e.g., achieving compliance by recycling valuable materials instead of
discharging them to the environment may yield a net profit), or when the government provides
some form of subsidy for compliance. Conversely, the higher the cost of compliance, the greater
may be the resistance to compliance in the regulated community. Some facility managers that
may want to comply might not do so if they feel that the cost of compliance would be an
economic burden to their operations. For example, the Netherlands had experienced a relatively
high degree of compliance for processing used oil from inland waterway vessels when the
processing was offered free; however, compliance decreased as soon as the government levied a
charge for this service.
To remove economic incentives to violate the law, the monetary penalty for a violation
would, ideally, at least equal the amount a facility would save by not complying. This deters
deliberate economic decisions not to comply, and it helps treat compliers and noncompliers
equally.
Institutional Credibility
Each country has its own social norms concerning compliance. These norms derive largely
from the credibility of the laws and the institutions responsible for implementing those laws. For
example, the social norm may be noncompliance in countries where laws have historically not
been enforced, either because the law is unenforceable or because the institutions responsible for
enforcement have lacked the political power or resources to enforce. There may also be a
resistance to enforcement in countries where recent regimes have imposed laws against the will of
the citizens. It may take longer for enforcement programs to build credibility in these countries.
Strategies to build credibility will vary. In some cultures, aggressive enforcement will
provide credibility. In others, it may be important to have an initial period of promotion and
encouragement to create a spirit of cooperation, followed by a well-publicized shift to more
aggressive enforcement to signal that there will be consequences for noncompliance. In other
cultures, a mixed approach at the outset may be most successful.
The government's will to enforce environmental laws - that is, to affirmatively promote
voluntary compliance and identify and impose legal consequences on those who do not comply
voluntarily - indicates and influences social values. Not enforcing a law tends to express a value
that compliance is not important. A goal on the part of the government to bring a majority of the
regulated community into compliance sends a message that compliance is important and helps
build a social norm of compliance.
Social Factors
Personal and social relationships also influence behavior. Moral and social values may
inspire or inhibit compliance. For example, in some situations, facilities may voluntarily comply
with requirements out of a genuine desire to improve environmental quality. They may also
comply out of a desire to be a "good citizen" and maintain the good will of their local
communities or their clients. Facility managers may also fear a loss of prestige that can result if
information about noncompliance is made public. Conversely, compliance will likely be low in
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countries where there has been little or no social disapproval associated with breaking laws and/or
damaging the environment.
Successful personal relationships between enforcement program personnel and managers
of regulated facilities may also provide an incentive to comply. On the other hand, a desire to
avoid confrontation may prevent program personnel from pursuing the full range of enforcement
actions they may need to take to ensure compliance. Also, an enforcement official's objectivity
may be compromised if he or she becomes too familiar with the facility's personnel and
operations. Oversight visits by an independent enforcement official can help monitor for and
prevent this potential problem. The relationship factor can be incorporated into a compliance
strategy through such means as providing technical support to regulated groups and enhancing the
interpersonal skills of compliance personnel. Social respect for environmental requirements can
be improved by finding industry leaders who agree to set a well-publicized example of compliance,
and by firm and visible enforcement of environmental requirements (particularly if the initial
focus is to correct noncompliance that is posing significant and clear risks to the environment
and/or public health).
Psychological Factors
Several psychological factors, common to human nature, may affect compliance rates. One
of these is fear of change - the belief that familiar ways of operating are safe and new ways are
risky. Closely related to this is inertia. Many people tend to naturally resist change because of
the perceived effort it will require to enact the change. Both promotional efforts to publicize the
benefits of compliance and the perception and reality of consequence for noncompliance play an
important role in overcoming inertia.
Knowledge and Technical Feasibility
Besides being motivated to comply, regulated groups must have the ability to comply. This
means they must know they are subject to requirements, they must understand what steps to take
to create compliance, they must have access to the necessary technology to prevent, monitor,
control, or clean up pollution, and they must know how to operate it correctly. A lack of
knowledge or technology can be a significant barrier to compliance. This barrier can be removed
by providing education, outreach, and technical assistance.
IMPACT ON PROGRAM DESIGN
As mentioned earlier, which of the factors described above will influence behavior in a
particular environmental situation will depend on the culture and situation. An environmental
enforcement program will be most effective if its design is based on an understanding of the
factors that are operating. Such understanding will enable policymakers to determine the optimal
strategy to motivate and enable compliance, and to discourage noncompliance. For example, in
cultures where there is a tendency to ignore both requirements and requests for voluntary
behavior changes, creating deterrence may be the most important component of program design.
Conversely, in countries where there is a social norm of compliance, activities to promote
voluntary compliance may be very effective. In situations where financial constraints are the main
barrier to compliance, some form of economic support or advantage to the regulated community
would likely have great impact.
Whatever factors are influencing behavior, they will almost certainly change over time.
Thus, flexibility to review and revise the program design is key to long-term effectiveness.
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3. CREATING ENVIRONMENTAL LAWS AND REQUIREMENTS
THAT ARE ENFORCEABLE
INTRODUCTION
There are many approaches to managing environmental problems (see Table 3-1). The
need for and scope of enforcement depends, in part, on which management approach or
approaches are being used (see Figure 3-1). Some approaches are purely voluntary - that is, they
encourage and assist change but do not require it. Other approaches are regulatory - that is, they
require change. At the heart of regulatory approaches are environmental requirements - specific
practices and procedures required by law to directly or indirectly reduce or prevent pollution.
Table 3-2 lists some examples of the types of requirements typically used with command-and-
control approaches to environmental management. While wholly regulatory (command-and-
control) approaches generally have the most extensive requirements of all the management
options, most of the other options introduce some form of requirements. Ensuring compliance
with these requirements will require enforcement.
The first step in fostering compliance is to ensure that the environmental requirements
themselves are enforceable, i.e., that laws provide the necessary authorities for enforcement, and
that requirements are clear and practical. This chapter describes several approaches that can be
used to make environmental requirements enforceable.
The "enforceability" of environmental requirements has a great impact on the effectiveness
and cost of enforcement and on the ultimate level of compliance. For example, enforcement
programs that do not have adequate legal authority will generally be ineffective. Requirements
that rely on expensive, unreliable, or unavailable technologies will be difficult or impossible to
comply with. Requirements that are unclear, imprecise, ambiguous, inconsistent, or contradictory
may be difficult or impossible to enforce.
By considering enforceability early in and throughout the process of developing
environmental requirements, policymakers can help make requirements as effective as possible.
Raising problems after critical decisions have been made may be disruptive and may waste
resources and cause significant delays. Involvement of both legal and technical staff is important
to create enforceable requirements.
ENFORCEABILITY OF DIFFERENT APPROACHES TO ENVIRONMENTAL MANAGEMENT
Most of the approaches to environmental management described in Table 3-1 are based
on some form of requirements that will likely require enforcement.1 For example, some market-
based approaches depend on enforcement to define the property being traded and to provide an
incentive to use the market. A tradeable permit system needs some enforcement of the
underlying requirements, otherwise there may be little incentive to comply with the requirements
or to trade rights. With this system, inspectors will have to review records of permit transactions
and adjustments to judge compliance. The system of labelling to enhance consumer choice may
require enforcement to avoid inaccurate or misleading labels.
'Liability systems do not have explicit requirements. However, implicit requirements often
develop as cases are brought to court and patterns are established about what activities justify which
consequences. To be effective, liability systems generally need some enforcement by the
government, nongovernment organizations, or individuals to gather evidence and develop legal
cases.
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TABLE 3-1. APPROACHES TO ENVIRONMENTAL MANAGEMENT
VOLUNTARY APPROACHES
Voluntary approaches encourage or assist, but do not require, change. Voluntary approaches include
public education, technical assistance, and the promotion of environmental leadership by industry and
nongovernment organizations. Voluntary approaches may also include some management of natural resources (e.g.,
lakes, natural areas, ground water) to maintain environmental quality.
COMMAND-AND-CONTROL
In command-and-control approaches, the government prescribes the desired changes through detailed
requirements and then promotes and enforces compliance with these requirements. Table 3-2 describes types of
requirements typically used in command-and-control approaches.
MARKET-BASED/ECONOMIC INCENTIVE APPROACHES
Market-based/economic incentive approaches use market forces to achieve desired behavior changes.
These approaches can be independent of or build upon and supplement command-and-control approaches. For
example, introducing market forces into a command-and-control approach can encourage greater pollution
prevention and more economic solutions to problems. Market-based/economic incentive approaches include:
• Fee systems which tax emissions, effluents, and other environmental releases.
• Tradeable permits which allow companies to trade permitted emission rights with other
companies.
• Offset approaches. These approaches allow a facility to propose various approaches to meeting an
environmental goal. For example, a facility may be allowed to emit greater quantities of a
substance from one of its operations if the facility offsets this increase by reducing emissions at
another of its operations.
• Auctions. In this approach, the government auctions limited rights to produce or release certain
environmental pollutants.
• Environmental labelling/public disclosure. In this approach, manufacturers are required to label
products so that consumers can be aware of the environmental impacts of the products.
Consumers can then choose which products to purchase based on the products' environmental
performance.
RISK-BASED APPROACHES
Risk-based approaches to environmental management are relatively new. These approaches establish
priorities for change based on the potential for reducing the risks posed to public health and/or the environment
POLLUTION PREVENTION
The goal of pollution prevention approaches is to prevent pollution by reducing or eliminating generation
of pollution at the source. The changes needed to prevent pollution can be required, e.g., as part of a command-
and-control approach, or encouraged as voluntary actions.
LIABILITY
Some environmental management approaches are based on laws that make individuals or businesses liable
for the results of certain actions or for damages they cause to another individual or business or to their property.
Examples of liability-based environmental management systems include nuisance laws, laws requiring compensation
for victims of environmental damage, and laws requiring correction of environmental problems caused by improper
disposal of hazardous waste. Liability systems reduce or prevent pollution only to the extent that individuals or
facilities fear the consequences of potential legal action against them.
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Figure 3-1. The Environmental Management Cycle
Awareness
Goal Setting
For example:
• Reduce Risk
• Improve and
Maintain
Environmental
Quality
• Prevent Pollution
• Sustain
Environmental
Uses (e.g., Fishing)
• Clean Up Past
Contamination
Selection of
Management
Approaches)
For exampte.
• Command-and-
Control
• Economic/
Market-Based
* Risk-Based
• Pollution Prevention
T
, Regulatory
• Voluntary
• Liability
Notes:
1 - See Chapter 3
2 - See Chapter 4
3 - See Chapter 5
4 - See Chapter 6
5 - See Chapter 7
6 - See Chapter 8
7 - See Chapter 9
Evaluation
Implementation
Development of
Legal Basis/
Requirements
For example:
* Legislation
• Regulation
• Permits and Licenses
• Court Cases/
Precedents
• Programs
Development and
Implementation of
Strategy/Program
For example:
• Compliance and
Enforcement
Strategy/Program
-Ensuring Enforceable
Requirements '
-Priority Setting!
-Compliance
Promotion3
-Compliance
Monitoring 4
-Enforcement
Response *
-Roles and
Responsibilities *
-Evaluation Measures/
Accountability Systems7
Results
For exampla:
* Compliance
* Environmental
Improvements
• Reduced Waste and
Pollution
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TABLE 3-2. EXAMPLES OF ENVIRONMENTAL REQUIREMENTS
Ambient Standards
Ambient standards (also called media quality standards) are goals for the quality of the
ambient environment (e.g., air, water). Ambient standards are usually written in units of
concentration (e.g., the level of nitrogen dioxide in the air cannot exceed 0.053 parts per million).
In the U.S., ambient standards are used as environmental quality goals and to plan the level of
emissions from individual sources that can be accommodated while still meeting the areawide goal.
Ambient standards may also be as triggers, e.g., when the standard is exceeded, monitoring or
enforcement efforts are increased. Enforcement of ambient standards usually requires relating an
ambient measurement to emissions or activities at a specific facility. This can be difficult.
Performance Standards (Emissions and Effluents)
These standards are widely used for regulations, permits, and monitoring requirements.
Performance standards limit the amount or rate of particular chemicals or discharges that a facility
can release into the environment in a given period of time. Performance standards provide
flexibility because they allow sources to choose which technologies they will use to meet the
standards. Often such standards are based on the output that can be achieved using the best
available control technology. Some requirements introduce additional flexibility by allowing a
source with multiple emissions to vary its emissions from each stack as long as the total sum of the
emissions does not exceed the permitted total. Compliance with emission standards is measured
by sampling and monitoring. Depending on the kind of instruments required, compliance can be
difficult and/or expensive to monitor.
Technology Standards
These standards require the regulated community to use a particular type of technology
(e.g., the "best available technology") to control and/or monitor emissions. Technology standards
are particularly appropriate when the equipment is known to perform well under the range of
conditions generally experienced by sources in the community. It is relatively easy for inspectors
to determine whether sources are in compliance with technology standards: the approved
equipment must be in place and operating properly. It may be difficult, however, to ensure that
the equipment is operating properly over a long period of time. Technology standards can inhibit
technological innovation and pollution prevention.
Practice Standards
These standards require or prohibit certain work activities that have significant
environmental impacts. For example, a standard might prohibit carrying hazardous liquids in
uncovered buckets. Like technology standards, it is easy for program officials to inspect for
compliance and take action against noncotnplying sources, but difficult to ensure ongoing
compliance.
Information Requirements
These requirements are different from the standards described above in that they require
a source of potential pollution (e.g., a pesticide manufacturer or facilities involved in generating,
transporting, storing, treating, and disposing of hazardous waste) to develop and submit
information to the government. Sources generating pollution may be required to monitor, report
on, and maintain records of the level of pollution generated and whether or not it exceeds
performance standards. Information requirements are often used when the potential pollution
source is a product such as a new chemical or pesticide, rather than a waste. For example, a
manufacturer may be required to test and report on a product's potential to cause harm if
released into the environment.
Product or Use Bans
A ban may prohibit a product outright (e.g., ban the manufacture, sale, and/or use of a
product) or may prohibit particular uses of a product.
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All regulatory approaches to environmental management will benefit if the underlying
requirements are enforceable — that is, clear and practical. This chapter provides suggestions for
making environmental requirements enforceable.
LAWS: THE FRAMEWORK FOR ENFORCEMENT
Authorities
Environmental laws will be most effective if they provide the authorities necessary for
their own enforcement. Without sufficient authority, an enforcement program can be severely
handicapped in its ability to create compliance. The credibility of an enforcement program will be
eroded if violators can successfully challenge the authority of a program to take certain
enforcement actions. Authorities that can be extremely important to an effective program include
(see also Table 7-1 in Chapter 7):
• Authority to issue regulations, permits, licenses, and/or guidance to implement the
law (see Table 3-3).
• Authority to waive or tailor requirements to facility-specific circumstances.
• Authority to inspect regulated facilities and gain access to their records and
equipment to determine if they are in compliance.
• Authority to require that the regulated community monitor its own compliance,
keep records of its compliance activities and status, report this information
periodically to the enforcement program, and make the information available for
inspection.
• Authority to take legal action against noncomplying facilities, for example:
Authority to impose a range of monetary penalties and other sanctions on
facilities that violate the law.
Authority to impose criminal sanctions on facilities or individuals who
violate the law (e.g., facilities that deliberately falsify data).
• Authority to correct situations that pose an imminent and substantial threat to
public health and/or the environment.
Institutional Framework
Laws generally establish the institutional framework for their own enforcement by
describing who will be responsible for implementing them. Without such a framework, it may be
difficult to establish who is responsible for ensuring compliance has been achieved. For example
laws can specify the roles and responsibilities of the various levels of government and the various
government agencies or ministries (see Chapter 8). Lawmakers may also want to give citizens and
nongovernment organizations representing citizens the right to bring a lawsuit for the purpose of
enforcing the law. For example, environmental laws can allow citizens to sue polluters for failing
to comply with the law, and/or the government agency for failing to fulfil its duties under the law.
Such provisions have been an important means of enlisting citizen participation in the United
States (see Chapter 8 for more information on citizen participation).
Related Laws Compelling Professional and Equitable Conduct
The credibility of government institutions is very important to establish a sound basis for
voluntary compliance. Therefore, related requirements to prevent bribery, to prevent falsification
of environmental data, and to ensure fair application of the law can be very important. Many
countries make government officials criminally liable if they accept a bribe. Other countries
protect the rights of facilities by ensuring that government inspections are based on some rational
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TABLE 3-3. EXAMPLES OF VEHICLES FOR IMPLEMENTING
ENVIRONMENTAL REQUIREMENTS
Laws provide the vision, scope, and authority for environmental protection and
restoration. In some countries, laws also encompass the types of general
requirements described by other countries in regulations (see below).
Regulations establish (in greater detail than can be specified by law) general
requirements that must be met by the regulated community, e.g., how harmful
substances should be tested, registered, handled, monitored, emitted, discharged,
and/or disposed of. These requirements generally apply at a national, state, or
regional level (depending on the scope specified in the law). Some regulations are
directly enforced. Others provide the criteria and procedures for developing
facility-specific requirements via permits and licenses that provide the basis for
enforcement. Some countries do not include the step of developing regulations but
rely solely on facility-specific permits or licenses to implement their laws.
Permits usually control activities related to construction or operation of facilities
that generate pollutants. The requirements in permits are often based on specific
criteria established in laws, regulations, and/or guidance.
General permits specify exactly what a class of facilities (e.g., gasoline
stations) is required to do. General permits and licenses are used when it
is impractical and/or unnecessary to issue a specific permit for each facility
(e.g., when there are numerous small facilities that have very similar
operations).
Facility-specific permits specify exactly what a particular facility is required
to do. Permits often take into account the particular conditions at the
specific facility.
Licenses are similar to permits. Licenses are permits to manufacture, test, sell,
and/or distribute a product, such as a pesticide, that may pose an environmental or
public health risk if improperly used. Licenses may be general or facility-specific.
Guidance and Policies. Often government regulators must interpret requirements,
even those that have been carefully drafted, because not alt applications can be
anticipated. Written guidance and policies for interpreting and implementing
requirements help ensure consistency and fairness as the requirements are applied
in practice. Guidance and policies are also useful in situations where regulation is
achieved solely by facility-specific permits or licenses (either because the regulatory
system does not include more general requirements or because it is impractical to
issue general requirements, e.g., due to wide variability in the regulated
community). In this case, guidance and policies for creating requirements will help
ensure consistency and fairness.
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scheme or on a complaint or other piece of information that specifically suggests a violation has
occurred.
Compatibility with Existing Laws
To be effective and respected, laws must be rational and not send conflicting signals. A
new environmental law should be consistent with any existing environmental laws (unless it is
intended to supersede these laws) and should reinforce and complement laws and policies in other
sectors, such as:
• Health: food safety, occupational health and safety, consumer products, pesticide
use, etc.
• Natural resource management: water, energy, minerals, forests, etc.
• Land use planning: transportation, development, siting, etc.
• Industry and commerce.
• Agriculture.
Structure and Criteria for Establishing Environmental Requirements
Some .environmental laws contain requirements. Others specify a structure and criteria for
establishing requirements; requirements are then developed separately. Requirements may be
"general" (i.e., they apply to a group of facilities) or facility-specific.
• General requirements are most frequently implemented in the form of (1) laws,
(2)regulations, or (3) general permits or licenses that apply to a specific class of
facilities (e.g., dry cleaners) (see Table 3-3)2. General requirements may apply
directly to a group of facilities or they may serve as a basis for developing facility-
specific requirements.
• Facility-specific requirements are usually implemented in the form of permits or
licenses.
It can be simpler, in some respects, to enforce general requirements because inspectors do
not have to determine what the applicable requirements are for each facility. However, in terms
of gaining widespread compliance, a disadvantage of general requirements is that the burden of
compliance often falls more heavily on some members of the regulated community than on others.
Also, general requirements may need interpretation as to how they apply to particular facilities.
Inequitable or unclear general requirements can lead to compliance problems. Facility-specific
requirements may comprise a goal that sources are either more willing or better able to meet.
Different countries use different approaches to developing requirements. Figure 3-2 shows
some possible approaches. Table 3-4 shows an example of the relationship between a law,
regulation, and permit in the United States. This example illustrates how in the United States
requirements become more detailed and specific as they are transformed from a law to a
regulation to a permit.
REQUIREMENTS: MAKING THEM ENFORCEABLE
Many approaches, described below, are currently being used in different countries to help
ensure that requirements will be enforceable.
2The terms law, regulation, permit, and license have different meanings in different countries.
For example, some countries use the term "license" instead of "permits." For clarity and
consistency, this text will adhere to the definitions provided in Table 3-3.
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LAW
CO
LAW
• PERMIT
• LICENSE
LAW
REGULATION
• PERMIT
• LICENSE
Figure 3-2. Examples of Different Relationships between Laws, Regulations, Permits, and Licenses.
(In all these cases, there is likely to be guidance and policies to help interpret the
application of the requirements.)
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51
TABLE 3-4. EXAMPLE OF THE RELATIONSHIP BETWEEN AN
ENVIRONMENTAL LAW, REGULATION, AND PERMIT IN THE UNITED STATES
In the United States, federal environmental laws outline requirements that are then
further defined in federal regulations. Finally, federal regulations are implemented by the
states through permits that specifically interpret and explain the requirements established
in the laws and regulations. This example shows requirements developed under the U.S.
Federal Water Pollution Control Act.
LAW:
REGULATION:
PERMIT:
One part of this law states that "the Administrator [of the
Environmental Protection Agency] shall require the owner or
operator of any point source to ... sample . . . effluents (in
accordance with such methods ... as the Administrator shall
prescribe)."
A corresponding part of the regulations states: permits issued by
the states must specify "required monitoring including type,
intervals, and frequency sufficient to yield data which are
representative of the monitored activity including, when
appropriate, continuous monitoring . . ."
A corresponding part of a permit in the Commonwealth of Virginia
states: "Within three months of the effective date of this permit .
.. and continuing quarterly for a period of one year the permittee
shall collect 24-hour composite samples of the effluent from [the
specified] outfall, except in the cases of volatile organics, phenols
and cyanide analyses where grab samples are required."
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Balancing Stringency and Feasibility
The ease and cost of compliance can greatly affect the degree of compliance. For
example, facility managers may want to comply, but will not be able to if the requirements are too
expensive or the necessary technologies are not available. Policymakers will need to balance the
desire to create stringent and ambitious requirements with the burden the requirements will
create for industry.
In theory, more stringent requirements mean larger and possibly quicker environmental
protection and restoration. Too stringent requirements imposed too early in the life of a program
can generate disrespect for the requirements among engineers and plant managers who must
make compliance decisions. Similarly, government officials may be reluctant to enforce such
requirements. Strict requirements are more likely to be challenged and delayed in court. Such
delays undermine the credibility of an enforcement program. Thus, ambitious and impractical
requirements can seriously hamper enforcement.
In response to these considerations, requirements may be creatively tailored in their
stringency, i.e., different requirements are specified for individual facilities or different segments
of the regulated community based on such factors as size, pollution volume, and environmental or
public health risk posed by the pollution. Requirements may also be implemented in a phased
approach. The first phase involves less stringent requirements that will not be too great a burden
for the regulated community to meet. At a minimum, this phase will help eliminate the
competitive advantage for polluters. Some time later a second phase involving more stringent
requirements can be implemented. Additional phases can be implemented later if desired.
Improving the Climate for Compliance
Two practices that have helped win the respect and approval of the regulated community
and/or individual facilities subject to the requirements are:
• Demonstrating Value. Environmental officials use recognized scientific methods to
demonstrate that a requirement will produce measurable environmental
improvements.
• Demonstrating Options and Feasibility. Environmental officials provide technical
information on the different technologies or other alternative approaches that can
be used for compliance. Officials may also supply information to demonstrate the
economic feasibility of using these technologies. This helps convince the regulated
community that the requirements are reasonable. It also invites companies that
supply these technologies to make sure the technologies are available to facilities
that are subject to the requirement.
These scientific activities help build a willingness to comply within the regulated community. In
some cases, however, no appropriate technologies exist and the requirements force the
development of suitable technologies. In such cases, compliance often takes longer to achieve.
General Requirements
General requirements (i.e., regulations and general permits and licenses) will be most
effective if they closely reflect the practical realities of compliance and enforcement, for example,
if they:
• Are clear and understandable.
• Precisely define which sources or activities are subject to requirements.
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• Precisely define the requirements and any exceptions or variances3 in these
requirements.
• Clearly address how compliance is to be determined by specifying test methods and
procedures.
• Clearly state deadlines for compliance.
• Are flexible enough to be constructively adapted through individual permits,
licenses, or variances to different regulatory circumstances.
• Are written clearly enough to be the basis of criminal prosecution (which is usually
regarded as the most serious enforcement action).
• Are based on technology (e.g., control or monitoring equipment) and
methodologies that are or soon will be available, reliable, and affordable.
Table 3-5 provides examples of basic questions that can be asked when general
requirements are being drafted in law, regulations, and general permits or licenses to help mŁ.
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54 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
TABLE 3-5. SAMPLE CHECKLIST FOR DEVELOPING ENFORCEABLE
REGULATIONS, GENERAL PERMITS, AND GENERAL LICENSES
DEFINITIONS
Does the regulation, general permit, or general license clearly define the
regulated community, the regulated activities, and/or the regulated substances?
Are any exceptions to defined terms narrow enough to avoid having the
exceptions "swallow" the definitions?
Are the definitions and exceptions precise enough so that enforcement
personnel can identify instances of noncompliance?
Are defined terms used consistently throughout the text of the regulation,
general permit, or general license.
Is the legal authority underlying the regulation, general permit, or general
license clearly articulated?
Are exceptions to the regulation, general permit, or general license defined
precisely enough to make it clear which groups are exempted? If sources under
a certain size are exempted, does the regulation identify how the size of a
particular source is to be determined?
REQUIREMENTS (e.g. Standards)
Are requirements or other end results measurable? Are the units of
compliance clear?
Are more enforceable requirements available, i.e., requirements that are easier
to measure, less resource-intensive?
Are exceptions clearly described? Is the calculation for exception clearly
specified? If the regulation, general permit, or general license grants exceptions
based on malfunctions or changes in local conditions, does it specify what
emission levels may be excused, when, and who makes this determination?
If changed circumstances may raise a requirement, does the regulation, general
permit, or general license clearly specify what circumstances will change the
requirement and how the requirement will be changed.
If the requirement is an emission limit or concentration value, does it explicitly
state the time frame associated with the limit (e.g., instantaneous, 3-hour
average, daily)?
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TABLE 3-5. SAMPLE CHECKLIST FOR DEVELOPING ENFORCEABLE
REGULATIONS, GENERAL PERMITS, AND GENERAL LICENSES (continued)
MONITORING AND INSPECTION
• Does the regulation dearly state exactly what the regulated community is
required to monitor? Do these requirements support the compliance goals of
the environmental law? For example, if the compliance goal is to demonstrate
that facilities are in compliance each day, does the regulation, general permit,
or general license require daily self-monitoring and recordkeeping?
• What test methods are needed to determine whether a facility is in compliance?
Are the methods clearly described? Are any allowable averaging times clearly
specified?
• Does regulation, general permit, or general license make any attempt to falsify
self-monitoring data as a separate enforceable violation?
• Does the regulation, general permit, or general license authorize inspection
procedures that will be enable inspectors to gather data needed to determine
compliance? Do these procedures cover entering a regulated facility, inspecting
documents, and collecting samples?
• Will inspectors be readily able to determine which facilities are not in
compliance?
• Will the requirements for inspection and self-monitoring help reduce
enforcement costs and increase the effectiveness of inspections?
SELF-MONTTORING/RECORDKEEPING/REPORTING
• Does the regulation, general permit, or general license provide a clear schedule
for self-monitoring?
• Does the regulation, general permit, or general license state the methods to be
used for self-monitoring?
• Does the regulation, general permit, or general license clearly state what data
the regulated community is required to record and report?
• Will these data show whether or not a facility is in compliance? Will these data
provide sufficient evidence to document a violation?
• Does the regulation, general permit, or general license provide a clear schedule
and format for recordkeeping and reporting?
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TABLE 3-5. SAMPLE CHECKLIST FOR DEVELOPING ENFORCEABLE
REGULATIONS, GENERAL PERMITS, AND GENERAL LICENSES (continued)
Are the reporting requirements frequent enough to allow timely response to a
violation? Is the regulated community required to retain information long
enough for enforcement purposes?
Does the regulation, general permit, or general license make failure to maintain
or report records a separate enforceable violation?
Is the regulated community required to make records available to inspectors
upon request?
Are any exceptions to the recordkeeping and reporting requirements clearly
spelled out?
Will the requirements for reports, records, and inspection/monitoring techniques
help reduce enforcement costs and increase the effectiveness of inspections?
DEMONSTRATING COMPLIANCE
« Does the regulation, general permit, or general license clearly describe what
constitutes compliance and how compliance is determined? Is compliance
determine by Geld inspections, desk reviews of reports submitted by the
regulated community, or is the regulation, general permit, or general license
self-enforcing?
• Does the regulation, genera] permit, or general license dearly state who (i.e.,
the government or the facility) is responsible for proving compliance or
noncompliance? Can the enforcement program independently determine
compliance? Can the program require the facility to perform certain tests and
determine compliance?
• Does the regulation, general permit, or general license define time limits by
which a member of the regulated community must reach compliance? Do the
time periods have specified beginning and end points? If compliance is defined
by occurrence of an event, rather than by a date, is the event discrete enough
for an inspector to determine whether the facility is in compliance?
• Is the evidence required to prove a violation clearly described? Can third party
data be used as evidence? Does the regulation, general permit, or general
license describe the extent to which an inspector can use professional judgment
in determining whether a facility is in compliance?
• If different government levels are involved in enforcement programs, does the
regulation, general permit, or general license clearly describe the responsibilities
of each level of government?
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Economic Considerations:
• Which types of facilities are subject to the requirements?
• What equipment will be required to comply and how much will it cost to obtain,
operate, and maintain?
• What changes in work practices will be necessary for compliance? How much will
these changes cost?
• If the regulated community is required to monitor its own compliance activities,
how much will this monitoring cost?
• Are there any short- or long-term economic benefits to the regulated community
from compliance (e.g., income from recycled materials, development of more cost-
efficient processes)?
• Is the regulatory scheme cost-effective compared to other approaches that could
improve this segment of the environment?
Technological Considerations:
• What technologies may be used to comply?
• How reliable are these technologies?
• How available are these technologies?
• How easy is it to accurately operate these technologies?
Involving the Regulated Community and Other Interested Parties
Involving the regulated community in developing general requirements helps create
support and reduce resistance and conflict. It can also make general requirements more practical
and therefore more enforceable, and it publicizes the requirements at an early stage, which sets
the stage for compliance. There are three basic ways to involve the regulated community: formal
comment, informal negotiations, and field testing (see Table 3-6). Specific procedures and
schedules for each approach are helpful to avoid the possibility that involvement of the regulated
community could be used to delay implementation or unduly influence the results. Involving the
nonregulated community (e.g., the general public and nongovernment organizations) can also be
very helpful (e.g., to build public support — the importance of which is discussed in Chapter 5 —
and to solicit creative ideas from knowledgeable groups).
Involving Enforcement Officials
The government personnel involved in drafting general requirements may not be involved
in enforcement activities. Thus, the experience, wisdom, and concerns of both legal and technical
staff involved in enforcement are not automatically available to the regulators.
Generally, special institutional channels and procedures are beneficial to ensure that
enforcement staff wili provide input as general requirements are being drafted. For example, a
system could be set up so that enforcement program officials can track the status of projects to
develop requirements. Special requirement development committees can be created that include
both policymakers and enforcement officials. The committee can include representatives of all
government levels (national, regional, provincial, local) that may be involved in enforcing the
requirements. The committee members could be responsible for ensuring that the appropriate
individuals within the enforcement program were involved in drafting and reviewing the
requirements.
Comments on the proposed requirements and formal written responses to them are most
useful if they are provided in writing to ensure that 4hey are clearly understood and to establish a
written record of the decisionmaking process.
Those responsible for developing general requirements can commission special studies to
specifically analyze whether there might be problems enforcing the proposed requirements. Such
a study should be kept confidential since it could reveal weaknesses in enforceability which could
undermine enforcement efforts if publicized.
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TABLE 3-6. WAYS TO INVOLVE THE REGULATED COMMUNITY
IN DEVELOPING GENERAL REQUIREMENTS
Informal Consultations
Formal Comment
Field Testing
Policymakers can consult with key representatives of the regulated community
and nongovernment organizations informally before developing general
requirements. These consultations can be helpful in sorting out future
problems early, and in eliminating resistance.
U.S. legal systems require the federal government to publish draft regulations
and solicit comments from the regulated community and the public. Widely
distributed, low-cost government periodicals provide advance notice that new
regulations are being developed and announce when they will be available.
Any organization or individual can easily obtain and review the proposed
regulations when they are issued.
Written comments from the public are usually accepted for a limited period
of time (30 to 90 days in the United States) after the proposed regulation has
been issued. The environmental agency prepares and publishes detailed
responses to the comments. Many of the comments directly concern the
difficulty or unanticipated effects of compliance. These comments provide
regulators with an opportunity to rethink their approach. The formal
responses to comments reassure commentors that their comments were
considered.
Infield testing, specific members of the regulated community volunteer to test
general requirements to determine, for example, whether the requirements
are clear and understandable, and/or the ease and cost of compliance.
Policymakers can then make changes to the general requirements before they
are finally implemented. Though field testing can lengthen the total time it
takes to develop a general requirement, it can expose weaknesses that might
otherwise render it unenforceable. As of 1991, field testing is being pilot-
tested for use in the United States.
Not all proposed requirements can realistically be field-tested. For example,
those requiring substantial investment in new equipment may be impractical
for field testing because of the cost and time required for planning,
permitting, construction, and start-up of new equipment. Field testing may
be more appropriate for requirements that concern operation and
maintenance of existing equipment; recordkeeping and reporting by regulated
sources; new methods of testing compliance; and/or the ability of existing
equipment to meet new standards. Field testing of these types of
requirements generally should not delay the process or developing the
requirements or pose too great a financial burden on the prospective
regulatory community.
Where field testing is used, policymakers will need to determine who will
fund it - the enforcement program, the test facility itself, or a trade
association representing the regulated community.
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Lessons learned about what makes existing requirements enforceable or unenforceable in a
particular region or country can be recorded, studied, and communicated to those involved in
developing new requirements. For example, selected general requirements could be reviewed one
year after they became effective to analyze their enforceability and to make any adjustments to
increase enforceability. Mechanisms could be created to "fix" existing general requirements if they
are found to be difficult to enforce. It is also useful to establish an expedited process that can be
used to correct specific types of deficiencies by making limited revisions to general requirements.
Coordinating with Other Environmental Requirements and Programs
Environmental requirements under one law can interfere with successful compliance under
another law. For example, in the United States, regulations required electronics firms to stop
chemical solvents in tanks from leaking into the ground water. Some firms complied by releasing
solvents into the air, which created an air quality problem. In the Netherlands, flue gas scrubbing
to reduce harmful air emissions can lead to discharges of contaminated water; treatment of
contaminated wastewater can lead to yet another waste product requiring responsible processing.
Several rulemaking practices can be used to avoid such unintended effects. First,
environmental laws can require policymakers drafting general requirements to specifically consider
whether such effects are possible. Second, individuals who are knowledgeable about the different
environmental areas can review the requirements. Third, the regulated community can be studied
to see whether compliance could potentially shift the pollution from one environmental medium
to another. If cross-media effects are discovered, the requirements can be modified to prevent or
minimize these effects. Finally, requirements can be defined for all media at once.
Facility-Specific Requirements
Ensuring Enforceabilitv
Facility-specific requirements are usually communicated through permits and licenses.
They are often based on specific criteria established in laws, regulations, and/or guidance, but are
customized to the specific conditions at the particular facility receiving the permit or license.
These documents may cover only certain requirements (e.g., those concerning a single
environmental media) or may comprehensive documents covering all requirements that the facility
must meet. . .
Permits and licenses are intended to be practical documents that require or prohibit
specific activities. To be enforceable, permits and licenses must generally be clear, precise, and
unambiguous. Several practical steps can be taken to help ensure permits and licenses have these
qualities:
• Train permit- and license-writers in the permit- and license-writing processes.
• Use standard forms to ensure that each permit and license contains all essential
information.
• Where appropriate, use "model" permits or licenses. A model permit/license
contains requirements that are generally applicable to a specific type of facility.
The model is then slightly modified by the permit- or license-writer to develop an
individual permit for a specific facility.
• Provide clear instructions to the permit- or license-writer about how to prepare the
permit or license.
Table 3-7 provides a checklist that permit- and license-writers can use to ensure the
enforceability of permits and licenses. Writers of facility-specific requirements will need to
consider whether the permit conditions might conflict with those in any of the facility's existing
permits or licenses. Conflicts and contradictions between different environmental permits and
licenses can invite noncompliance. Multimedia permits or licenses that encompass all relevant
environmental requirements in a single document can overcome this potential problem.
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TABLE 3-7. SAMPLE CHECKLIST FOR DEVELOPING ENFORCEABLE PERMITS
GENERAL
Is the length of time that the permit wfll be valid clearly stated? Is a date
specified to indicate when the permit must be reissued and when an application
for a new permit should be filed?
Does the permit contain a provision stating that the permit must be modified if
ownership of the facility changes, or if the facility makes changes to its
regulated processes?
Do the permit conditions conflict with conditions in any other permits that the
facility has?
Is there a. provision specifying that the permit can automatically be revoked if it
is discovered that the applicant deliberately submitted false, misleading, or
incomplete information during the application process?
Does the permit state whether the owner or operator will be liable for
noncompliance?
REQUIREMENTS
Are requirements or other end results measurable? Are the units of
compliance clear?
Does the permit specify that a modification will be required if the requirements
or criteria change?
If the requirement is an emission limit, does the permit explicitly state the time
frame associated with the limit (e.g., instantaneous, 3-hour average, daily)?
MONITORING AND INSPECTION
Does the permit clearly state exactly what the facility is required to monitor?
Do these requirements support the compliance goals of the environmental
regulation?
What test methods are needed to determine whether the facility is in
compliance? Are the methods clearly described and available to the permittee?
Are any allowable averaging times clearly specified?
Does the permit make any attempt to falsify self-monitoring data a separate
enforceable violation?
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TABLE 3-7. SAMPLE CHECKLIST FOR DEVELOPING
ENFORCEABLE PERMITS (continued)
Does the permit provide a clear schedule for self-monitoring?
Does the permit authorize inspection procedures that will enable inspectors to
gather data needed to determine compliance? Do these procedures cover
entering a regulated facility, inspecting documents, and collecting samples?
Will inspectors be readily able to determine which facilities are not in
compliance?
Will the requirements for inspection and self-monitoring help reduce
enforcement costs and increase the effectiveness of inspections?
RECORDKEEPING/REPORTING
Does the permit clearly state what data the facility is required to record and
report?
Will these data show whether or not a facility is in compliance? Will these data
provide sufficient evidence to document a violation?
Is the facility required to report noncompliance with permit requirements? If
so, does the permit specify a deadline for reporting noncompliance and to
whom noncompliance should be reported?
Does the permit provide a clear schedule and format for recordkeeping and
reporting?
Does the permit specify to whom the information should be reported?
Are the reporting requirements frequent enough to allow timely response to a
violation? Is the facility required to retain information long enough for
enforcement purposes?
Does the permit make failure to maintain or report records a separate
enforceable violation?
Is the facility required to make records available upon request?
Are any exceptions to the recordkeeping and reporting requirements clearly
spelled out?
Will the requirements for reports, records, and inspection/monitoring techniques
help reduce enforcement costs and increase the effectiveness of inspections?
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TABLE 3-7. SAMPLE CHECKLIST FOR DEVELOPING
ENFORCEABLE PERMITS (continued)
DEMONSTRATING COMPLIANCE
Does the permit clearly describe what constitutes compliance and how
compliance is determined?
Does the permit clearly state who is responsible for proving compliance or
noncompliance (as established by applicable law)?
Does the permit define time limits by which the facility must reach compliance?
Do the time periods have specified beginning and end points? If compliance is
defined by occurrence of an event, rather than by a date, is the event discrete
enough for an inspector to determine whether the facility is in compliance?
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Multimedia documents may also enable permit- and license-writers to prioritize requirements
based on human health/environmental risk, the facility's resources for compliance, and feasibility.
The Permitting and Licensing Process
The credibility of environmental enforcement programs will generally be enhanced if
facility-specific requirements are created as quickly as possible once an environmental program is
in place. A long lag time can give the appearance of a weak environmentat program and delay
the application of environmental laws. Where start-up resources are limited, policymakers may
wish to at least implement requirements for facilities that emit large quantities of and/or the most
toxic pollutants as soon as possible.
The process for writing permits and licenses varies from one country to another, but
generally includes the following steps:
• The facility provides information about its operations and emissions to the
government agency.
• A permit- or license-writer reviews the information and requests additional
information if necessary.
• The permit- or license-writer may inform interested parties (e.g., the local
community) that a permit or license is being prepared.
• The permit- or license-writer may provide an opportunity for any concerned party
to comment on whether a facility should receive a permit or license and what the
requirements should be.
• If necessary, a negotiation process is used to resolve any disputes between the
permit- or license-writer, facility, workers, local community, and/or other
potentially affected parties.
• After sufficient information-gathering, discussion, and negotiation, the permit- or
license-writer decides whether to issue the permit or license.
• There may be a sanction if the permit- or license-writer discovers that the applicant
submits false, incomplete, or misleading information.
The permitting and licensing processes provide an opportunity to make sure the facility
clearly understands what the requirements are and why it is important, both from an
environmental and legal perspective, to meet them. The city of Amsterdam in the Netherlands
uses a system of "prior consultations" to promote compliance. When a company seeks a permit,
the municipal government inventories the company's activities, the potential pollution, and the
environmental measures that should be taken. Other relevant government officials (e.g., from the
Occupational Safety and Health Inspectorate, the Water Quality Manager, the Fire Department,
the Environmentat Inspectorate) are invited to participate. The inventory and draft and final
permits are explained in detail to the company management. The process is designed to promote
compliance by convincing the company of the necessity for taking environmental measures and by
making it clear that noncompliance will be met with corrective action.
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PART II: DESIGNING COMPLIANCE STRATEGIES
AND ENFORCEMENT PROGRAMS
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4. IDENTIFYING THE REGULATED COMMUNITY
AND ESTABLISHING PROGRAM PRIORITIES
INTRODUCTION
Environmental requirements generally cover so many different organizations and individuals
that it is usually impossible to identify and respond to all violations or to promote compliance among
all members of the regulated community. No matter how generous a program's budget is, it will be
small relative to the size of the regulated community. By establishing priorities for detecting and
responding to violations and for promoting compliance, enforcement programs can operate as
effectively as possible with the given resources. Priorities help target the available program resources
to achieve maximum effect. Priority-setting involves answering questions such as:
• How should program resources be apportioned between compliance promotion and
enforcement response?
• Which facilities should be inspected? How frequently should inspections be
conducted? How comprehensive should these inspections be?
• Which violations should be responded to and how?
IDENTIFYING THE REGULATED COMMUNITY
An important step in developing program priorities is to identify which groups are regulated,
and to understand as far as possible their sophistication, ability, motivation, and willingness to comply.
An accurate profile of the regulated community helps policymakers focus the compliance strategy
(including both compliance promotion and enforcement response) to optimize its effectiveness. It is
also valuable for designing compliance monitoring schemes (see Chapter 6). The process of profiling
the regulated communities makes the regulated community aware of the requirements, aware that the
enforcement program officials know who they are, and aware that they will be expected to comply.
This contact with the regulated community is the first step in creating a perception of an effective
enforcement program. Thus, the process of identifying the regulated community can be a form of
compliance promotion.
The need for and ability to identify the regulated community depends in part on the size and
number of sources. If the regulated community consists of numerous small facilities (e.g., gasoline
stations), it may be impractical or impossible to perform a comprehensive survey. In such cases,
program officials may decide to identify a subset of the regulated community (e.g., only those facilities
within a specific geographical area that is highly polluted). At a minimum, program officials can
maintain records of complaints reported, which will help identify potential violators.
Important Information
The regulated community may include:
Corporations.
Small businesses.
Public agencies/government-owned facilities.
Individuals.
nformation that can be useful in designing a compliance strategy includes:
Identifying information, e.g., name of facility.
Geographic location, e.g., longitude and latitude, street address.
Type of business or operation.
Any existing license, permit, or product registration numbers.
Types and quantities of regulated materials or emissions at the facility.
Risk associated with the releases (if this has been calculated).
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Approaches To Gathering Information
There are several ways to gather information:
• Inventories. The enforcement program can inventory the regulated community either
by requiring them to complete informational forms, or by sending inspectors to
individual facilities to gather information. One disadvantage of inventories is that
they place a resource burden on the government agency and/or the regulated groups.
They require personnel time and thus can strain operating budgets. Another difficulty
with inventories is keeping the information current This has proven difficult in some
programs. Government agencies will need to decide how often to survey the regulated
groups. The need for information must be balanced with the cost of obtaining it.
Laws can help ensure the quality of data by making it illegal to falsify data.
• Permit or License Applications. Initial information can be obtained in conjunction
with the permitting and licensing processes if the requirements make it illegal to
operate without a permit or license.
• Registration. In a registration process, facility managers are required to contact the
environmental program to register particular information about their facility or
product. The disadvantage of this process is that it may be more difficult to ensure
that all appropriate facilities have registered. The degree of success in registering all
appropriate facilities may depend, in part, on the consequences of not registering.
Facilities will be more likely to register if there is a benefit for doing so (e.g., they get
on a list for potential funding or contracts).
• Existing Records. If the facilities have been regulated under a previous or existing
program, records about their characteristics and compliance status may be available in
program files.
• Other Sources. Other government agencies or ministries as well as industry sources
may have information about the regulated community, e.g., sales tax receipts, lists or
surveys compiled by trade associations.
• Overflights. Aircraft overflights and/or resultant photographs may be used to
inventory facilities subject to environmental requirements. Overflights are also useful
to detect facilities that may not have registered for a program or filed required
notifications, and to define the relative locations of wastewater discharges, air
emissions, hazardous waste management facilities, water supply intakes, populated
areas, etc., in specific geographic areas.
INFORMATION MANAGEMENT
However information is gathered, the enforcement program will need to develop a system
(computerized if possible) to store, access, and analyze the information as needed. Information
management can be enhanced by clearly assigning responsibility for maintaining a complete and
accurate database to a specific person or group within the enforcement program.
The system can include not only the identifying information listed above, but also information
on compliance (e.g., on compliance schedules, compliance status, violations, and outcomes of
enforcement activities) as this information is gathered during the compliance monitoring phase of the
program (see Chapter 6). The ability to analyze the information on a facility-by-facility basis is useful
to determine patterns of noncompliance. The information may also be used to determine which
facilities subject to the requirements have not applied for licenses or permits after being required to
do so. Information in the database can be made available to all program personnel who may need it.
CONSIDERATIONS IN SETTING PRIORITIES
When setting priorities policymakers usually balance several important objectives. These may
include:
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• Protecting and restoring environmental quality and public health.
• Preserving the integrity of the program (i.e., making sure that the administrative and
data-gathering aspects of the program are functioning effectively).
• Preserving the integrity of enforcement (i.e., maintaining an enforcement presence).
• Leveraging program resources by focussing on the smaller subset of facilities where
changes can have the greatest impact in improving environmental quality and/or
creating deterrence.
Often most of the pollution is caused by a small percentage of sources (e.g., 20% of the
regulated community may cause 80% of the pollution). A program with limited resources can gain
significant environmental benefit by focussing on these sources. However, in cultures where
deterrence may also be an important factor contributing to environmental quality, policymakers will
need to balance the specific environmental benefits to be achieved by this approach with the potential
deterrent effect of broader coverage. Policymakers will also need to balance the strong deterrent
advantages that targeting 100% of a particular group for inspection and enforcement will have on that
particular group, with the broader deterrence that will result from selective inspection and
enforcement of a smaller percentage of a larger group. For example, program managers may decide
to inspect all facilities of a certain type in a particular region. At the same time, they may randomly
inspect some facilities of that type in neighboring regions. Well-placed publicity suggesting that any
facility of that type in any of the targeted regions may be subject to inspection, combined with
publicity about actual inspections, could have substantial deterrent effect.
Table 4-1 describes different approaches to selecting individual facilities and groups of
facilities for inspection and enforcement. These approaches are not mutually exclusive. They can be
combined to develop very specific priorities. For example, program managers may decide to inspect
all significant violators within a particular geographic area that have a history of violation. The
selection process will be greatly enhanced by having an effective data management system that
permits analysis of compliance patterns and comparison of sources.
WHO SHOULD SET PRIORITIES?
Various levels of government (national, regional, provincial, and local) are often involved in
setting priorities. One challenge is how to reconcile national, regional, provincial, and local priorities.
The relative involvement of these various levels in setting priorities will depend, to a large extent, on
the structure of the enforcement program (e.g., whether it is centralized or decentralized, see Chapter
8). National involvement in priority setting helps ensure consistency and harmony among regional,
provincial, and local priorities. National involvement improves the climate and potential for
cooperation among the regions, provinces, and local governments for achieving their priorities.
National consistency also creates a greater potential for harmonization with priorities of other
nations.
Involvement of regional, provincial, and local governments in priority setting is critical.
Individuals who are running the program at the regional/provincial/local levels will have the best sense
of what problems pose the most significant threats to the environment and human health, and of what
factors motivate or inhibit compliance. Therefore, priorities will be most meaningful if they take into
account national, regional, provincial, and local needs and are flexible enough to accommodate all
these perspectives.
COMMUNICATING PRIORITIES
Once priorities have been established, they will need to be communicated to all program
personnel and to the regulated community. A broad understanding of priorities improves program
efficiency and can promote compliance and contribute to deterrence. Unions, trade associations, and
professional journals are good vehicles for communication. In the United States, for example,
enforcement priorities, together with specific enforcement case and other information, are widely
communicated through the National Environmental Enforcement Journal. Program officials must be
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TABLE 4-1. APPROACHES TO SETTING PRIORITIES
FOR INSPECTION AND ENFORCEMENT
PRIMARY GOAL: TO PROTECT AND RESTORE ENVIRONMENTAL QUALITY AND PUBLIC HEALTH
• Significant Violators. Program officials may decide to target significant violators (i.e., those
believed to be causing the greatest harm or posing the greatest risk) for inspection and
enforcement. The potential harm or risk is determined by both the quantity and toxicity of
facility discharges and emissions or the potential impact of improper use, storage, and disposal of
hazardous substances. This approach to targetting can achieve significant environmental benefits
if it causes the violators to come into compliance. Significant violators are often well-known
facilities. Successful enforcement can have substantial deterrent effect among other significant
violators; however, it may not deter less significant violators who may come to believe they are
"shielded" from enforcement by the focus on the other violators.
• TyP6 *f Industry or Industrial Process. Program officials may decide to target for inspection and
enforcement those industries that emit high-risk pollutants into air, water, or land. The
advantage of this approach is that teams experienced in the processes, practices, and materials of
that industry can be formed to conduct inspections and to follow through on enforcement actions.
This approach can also create a deterrent effect as members of this facility group learn that they
will likely be subject to enforcement if they are out of compliance.
• Geographic Considerations. Geographic areas where there are substantial risks to human health
or the environment can be targeted for inspections and enforcement. For example, program
officials could decide to inspect and take action to achieve compliance among all facilities within
a particular geographic area to achieve overall environmental quality goals for the area.
• Type of Emission. Particular types of chemicals or waste streams may pose substantial risks to
human health and/or environmental quality. Program officials may decide to reduce exposure to
these substances by targetting for inspection and enforcement all facilities that emit these
chemicals.
PRIMARY GOAL: TO PRESERVE THE INTEGRITY OF THE PROGRAM
• Reporting and Recordkeeping. Inspections could be targeted to ensure that reporting and
recordkeeping requirements are being followed. These inspections would not directly influence
environmental quality, but do help ensure that the program has access to the information it needs
for decision-making and strategy development.
PRIMARY GOAL: TO PRESERVE THE INTEGRITY OF ENFORCEMENT
• Less Significant Violators and Lower Risk Areas. Some selective enforcement activities may be
allocated to less significant violators or areas with lower-risk emissions to maintain an overall
enforcement presence.
• Compliance History. Analysis of compliance data may reveal patterns of noncomptiance by
particular facilities or types of facilities. Program officials can target violators exhibiting a
particular pattern. For example, program officials may decide to specifically target repeat
violators to demonstrate the program's commitment to keeping facilities in compliance once an
enforcement action has been taken.
• Follow-up Inspections and Enforcement Follow-up inspections are inspections at facilities that
have agreed to take certain actions to correct a violation or otherwise improve environmental
quality. Follow-up inspections (and enforcement, if needed) are conducted to ensure that the
facility is meeting its commitments and achieving compliance.
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careful, however, not to communicate information that would lead members of the regulated
community to believe they are unlikely to be targeted for inspection and enforcement.
REVIEW AND REVISION
Priorities will need to change periodically in response to such factors as changes in the law
and lessons learned under the program. Chapter 9 describes approaches to measuring and
evaluating the success of an enforcement program. Policymakers will need to change priorities in
response to problems identified during these evaluations to improve the effectiveness of the program.
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5. PROMOTING COMPLIANCE
INTRODUCTION
Compliance promotion is any activity that encourages voluntary compliance with environmental
requirements. Promotion helps overcome some of the barriers to compliance discussed in Chapter 2.
Most compliance strategies involve both activities to promote and enforce requirements.
Policymakers will need to determine the most effective mix of compliance promotion and
enforcement response.
Experience has shown that promotion alone is often not effective. Enforcement is important
to create a climate in which members of the regulated community will have clear incentives to make
use of the opportunities and resources provided by promotion. Experience in several countries has
also shown that enforcement alone is not as effective as enforcement combined with promotion. This
is particularly true for example when:
• The size of the regulated community far exceeds the program's resources for
enforcement, e.g., when the regulated community consists of numerous small sources,
such as individual gasoline stations.
• The regulated community is generally willing to comply voluntarily.
• There is a cultural resistance to enforcement.
Thus, promotion is an important element of most enforcement programs.
This chapter describes six approaches to compliance promotion:
• Providing education and technical assistance to the regulated community.
• Building public support.
• Publicizing success stories.
• Creative financing arrangements.
• Providing economic incentives.
• Building environmental management capability within the regulated community.
EDUCATION AND TECHNICAL ASSISTANCE
Education and technical assistance lay the groundwork for voluntary compliance. They are
essential to overcome barriers of ignorance or inability that otherwise would prevent compliance.
Education and technical assistance make it easier and more possible for the regulated community to
comply by providing information about the requirements and how to meet them, and by providing
assistance to help regulated facilities take the necessary steps for compliance. Education and
technical assistance are particularly important in the early stages of a new requirement-based
program, and whenever the program requirements change.
Approaches
Several types of information and messages can be communicated to regulated groups to
promote compliance:
• Who is subject to requirements?
• What are the requirements?
• Why are these requirements important?
• What changes (including technical and managerial changes) must be made
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incentive for sources to seek assistance and comply. Table 5-1 describes different ways to provide
assistance to the regulated community.
Promotion can be enhanced by developing a communications plan which specifies what type
of information will be communicated, how it will be developed, when it will be released, and how it
will be distributed. Similarly, a technical assistance plan can be developed to indicate what assistance
will be provided, to whom, and under what circumstances.
A situation in the Netherlands provides one example of successfully using assistance to solve a
compliance problem. Commercial establishments in the Netherlands are required to dispose of their
hazardous wastes through permitted processors. However, getting the waste to the processor has
been a problem for small businesses. The processors are often unwilling to pick up small amounts of
waste, and transporting small quantities of waste long distances to a processor places an economic
burden on small businesses. Small companies were therefore often out of compliance with the
hazardous waste rules. The Dutch government helped solved this problem by establishing a collection
depot in nearly every town in the Netherlands. Both private citizens and small companies may
discard their waste at these depots at regular times. This government-facilitated cooperative
arrangement was instrumental in helping solve this compliance problem.
BUILDING PUBLIC SUPPORT
The public can be a powerful ally in promoting compliance. Public support can help create a
social ethic of compliance. The public can also serve as watchdogs that alert officials to
noncompliance. If the laws provide the appropriate authority, members of the public or
nongovernment organizations representing the public can bring a citizen suit against noncomplying
facilities. Public support can also help ensure that enforcement programs continue to receive the
necessary funding and political support to be effective.
Building public support may be particularly important groundwork in societies where personal
economic concerns compete with concern for environmental quality, or where there is a general lack
of awareness about or concern for environmental problems. The public can be educated about causes
and effects of pollution, its short- and long-term threats to human health and natural resources, and
the costs to society. The extent of environmental damage may be surprising new information to the
public.
Enforcement programs can build public support by developing and distributing information
about environmental problems, the importance of compliance, program activities and successes, and
ways the public can support the program. Program officials can also work with nongovernment
organizations that represent the public to develop and distribute information and promote public
involvement.
Nongovernment organizations can independently help promote compliance by publicizing
information to increase public awareness of environmental problems and to build support and
pressure for compliance.
PUBLICIZING SUCCESS STORIES
Program officials can provide an incentive for the regulated community to comply by
publicizing information about facilities that have been particularly successful in achieving compliance.
In societies where the public does support environmental protection, positive publicity about a firm's
compliance success can enhance its reputation and public image. Such publicity helps create a
positive social climate that encourages compliance.
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TABLE 5-1. WAYS TO PROVIDE INFORMATION AND ASSISTANCE
TO THE REGULATED COMMUNITY
Publications, such as brochures and guidance manuals, that are created specifically for
educational purposes and are distributed or made available to regulated groups.
Training Programs, designed specifically to educate the regulated community about
requirements and compliance.
Conferences and other meetings that bring together officials from the enforcement
program, regulated communities, and other interested parties.
"Hot Lines" - dedicated telephone numbers that the regulated community can call to ask
questions and receive information and assistance.
Technical Assistance, which can be provided (1) by trained personnel who are available
to visit individual members of the regulated community and assist them in making the
necessary changes for compliance, (2) by inspectors who provide technical assistance as
part of their inspection, and (3) by special assistance programs, set up for example at
universities, that provide a central resource for information on and assistance with
compliance.
Cooperative Arrangements - Program officials can facilitate cooperative arrangements
among small businesses that may want to comply but do not have the necessary resources
to do so. An "arrangement" could include, for example, small facilities set up with
program funds to serve as processing centers for pollutants that must be controlled or
recycled. In such cases, policymakers will need to decide whether the services provided
by the center are free or whether users must pay a charge.
Media Announcements - information distributed through newspapers, television, or radio.
This can include information about requirements, ways to meet requirements, and
enforcement activities. Reports of enforcement activities can be particularly useful in
deterring other potential violators. Public disclosure of violations and of the
environmental benefits of the program's enforcement activities can help create public
pressure for compliance.
Trade and Professional Associations. These groups usually have established good
communication networks through their publications and meetings. These activities
provide forums for the regulated community and enforcement program personnel to
exchange information and ideas.
Universities. In some countries, universities are important centers for professionals.
University publications or conferences, for example, may be important channels for
educating the members of the regulated community.
Professional Journals. Articles and announcements in these publications are an
important way of reaching members of a specific professional community.
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CREATIVE FINANCING ARRANGEMENTS
One barrier to compliance is cost. Facility managers may want to comply but may not be able
to afford the cost of fulfilling the requirements. Creative financing arrangements that can help solve
this problem include:
• Offset Requirements. This arrangement is essentially a tax on new investments. It
requires investors interested in building a new facility to pay for modifications {e.g.,
installation of new process technology or controls on existing technology) that will
reduce or "offset" pollution at an existing facility. Offset requirements should not be
so expensive that they will discourage new investments. Some mechanism will be
needed to ensure that the equipment in the existing facility is maintained and
operated once it has been installed.
• Peer Matching. Peer matching is similar to offset requirements, but voluntary. In this
case, investors interested in building a new facility are asked to "adopt" an existing
facility and help it reduce pollution. Foreign investors, in particular, may be
interested in this arrangement as a means of promoting good will in the local
community and with government authorities.
• Sales of Shares. In situations where a government-owned facility is being privatized,
the facility can raise money by selling shares in the facility to investors. This option
can be particularly attractive if members of the local community are willing to invest.
Proceeds can be used to renovate the facility so that it can comply with requirements
and reduce or eliminate the impacts of pollution on the local community.
• Loans. Under this arrangement, institutions loaning money for new investments
require that a certain portion of the loan be applied to restoration or protection of
environmental quality.
• Environmental Bonds. Government or private owners of a facility subject to
environmental requirements can issue bonds to raise money to finance the changes
needed to meet the requirements. The owners pay interest on the loan to the
bondholders until they are able to pay back the loan in full. In some countries, the
interest earned from environmental bonds is tax-free. Environmental bonds are
particularly appropriate in situations where the facility can recoup the cost of
compliance by charging users of the service or product a fee (e.g., municipalities can
charge citizens and industry for water use to help pay the costs of water treatment).
This revenue helps assure bondholders that their loan will be repaid.
ECONOMIC INCENTIVES
Environmental programs can encourage compliance by providing economic incentives for
compliance. This may be an effective approach in public agencies, which are less likely to be deterred
by monetary penalties, since they are funded by the government The benefit from compliance can be
applied to the facility generally, or to an individual based on his or her performance. Incentives
include:
• Fees. The facility is charged based on characteristics (e.g., amount, rate, toxicity) of
its pollution (e.g., effluent, emissions, waste). Unlike monetary penalties, fees create
an immediate cost to the facility for polluting. Fees generate revenue that can be
used by the enforcement program. Fees should be high enough to deter pollution,
otherwise they are no more than a "license to pollute."
• Tax Incentives. These are reduced taxes for costs associated with improving
environmental quality, e.g., installing pollution control equipment, or changing a
process to prevent pollution.
• Pollution Taxes. These taxes are based on the volume and/or toxicity of emissions,
effluents, or wastes generated. Pollution taxes can be a purely economic alternative to
setting standards.
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• Subsidies for Complying Facilities. Facilities that comply with requirements can
receive a subsidy to help defray the cost of compliance.
• Facility or operator bonuses for achieving better results than specified in permits,
licenses, or regulations.
• Promotion points for senior managers in government-owned facilities achieving
compliance.
BUILDING A FACILITY'S ENVIRONMENTAL MANAGEMENT CAPABILITY
Many nations and international organizations, including the U.S., Canada, the Netherlands,
the European Community, the International Chamber of Commerce, and the United Nations
Environment Programme, are promoting the concept of building internal environmental management
capabilities within facilities to promote compliance and generally improve environmental quality. One
specific approach to building this management capability is environmental auditing.
Environmental auditing is a periodic and comprehensive evaluation of the management
systems and practices within a firm that affect environmental compliance. An environmental audit
may examine the need for many different management changes including:
• Development of a formal environmental compliance plan or policy, including
environmental management goals.
• Education and training programs for employees.
• Purchase, operation, and maintenance of equipment needed to achieve environmental
goals.
• Creating specific jobs or departments within the facility dedicated to achieving
environmental compliance.
• Budgeting and planning for environmental compliance.
• Developing monitoring, recordkeeping, and internal and external reporting systems.
• Developing internal communications and chain-of-command systems to ensure
compliance.
• Assessment of hazards and risks posed by facility emissions and/or wastes.
Environmental auditing may be performed by specially trained employees or by an
independent auditor that periodically visits and assesses the firm's compliance status and recommenus
changes if necessary. The concept of environmental auditing is gaining support as industry managers
are finding good business reasons to run their operations in an environmentally sound manner. For
example, many firms have discovered that valuable materials and energy can be recovered from waste
streams and reused or resold. Other firms want to reduce their chances of being sued by the
government or members of the public. In the U.S., securities' laws for corporations require that
publicly owned firms assess and disclose their potential environmental liability; this requirement
provides an incentive for internal environmental auditing.
Enforcement program officials are also promoting the concept of environmental auditing as
an integral part of good business practice. Ideas for promoting environmental auditing include:
• Pilot projects to introduce the concept of auditing to small- and medium-sized firms.
• Environmental advisors that assist firms in setting up simple internal auditing systems.
• Regional auditing centers run by industry that can proviue auditing and advisory
services to members of that industry upon request.
• International workshops to bring the concept of environmental auditing to countries
that would like to encourage this practice among their regulated facilities.
• Hiring university staff or other management specialists to develop programs to train
auditors.
• Required disclosure of environmental liabilities (environmental impacts and violations)
in the written statements made when a company is issuing stocks or bonds.
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6. MONITORING COMPLIANCE
INTRODUCTION
Monitoring compliance — collecting and analyzing information on the compliance status
of the regulated community — is one of the most important elements of an enforcement program.
Monitoring is essential to:
• Detect and correct violations.
• Provide evidence to support enforcement actions.
• Evaluate program progress by establishing compliance status.
There are four primary sources of compliance information:
• Inspections conducted by program inspectors.
• Self-monitoring, self-recordkeeping, and self-reporting by the regulated
community.
• Citizen complaints.
• Monitoring environmental conditions near a facility.
These are described below. Table 6-1 lists the advantages and disadvantages of these four
sources. Additional information may come from reports from other national, regional, provincial,
or local agencies that have related jurisdiction over the facility; requests for modifications to
permits or licenses; and environmental audits reports provided by the facility. However
information on compliance status is gathered, the enforcement program will need to develop a
system (computerized if possible) to store, access, and analyze the information as needed (see
Chapter 4).
INSPECTIONS
Inspections are the backbone of most enforcement programs. Inspections are conducted
by government inspectors, or by independent parties hired by and reporting back to the
responsible agency. Inspectors plan inspections, gather data in and/or around a particular facility,
record and report on their observations, and (sometimes) make independent judgments about
whether the facility is in compliance. Inspections can be very resource-intensive, therefore they
require careful targeting and planning (see Chapter 4). By standardizing inspection procedures,
enforcement officials can help ensure that all facilities are treated equally and that all the
appropriate information is gathered. By specifying deadlines for preparing inspection reports,
program managers can help ensure that reports can be made available to enforcement personnel
without delay if there is a possibility of noncompliance.
Types of Inspections
Inspections may be routine (i.e., there is no reason to suspect that the facility is out of
compliance), or "for cause" (i.e., a particular facility is targeted because there is reason to believe
it is out of compliance). Inspectors may notify the facility prior to inspection or simply arrive
unannounced.
There are many levels of inspection (see Table 6-2). At the simplest level, an inspector
can simply walk through a plant. Inspections get progressively more complex and time-consuming
as inspectors spend time in the facility to observe operations, interview plant personnel, and take
samples for analysis. Inspection goals include:
• Identifying specific environmental problems.
• Making the source aware of any problems.
• Gathering information to determine a facility's compliance status.
• Collecting evidence for enforcement.
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TABLE 6-L ADVANTAGES AND DISADVANTAGES OF
PRIMARY SOURCES OF COMPLIANCE INFORMATION
INFORMATION SOURCE
ADVANTAGES
DISADVANTAGES
Inspections
Provide the most relevant
and reliable information.
Can be very resource-
intensive. Must be carefully
targeted and planned.
Self-Monitoring,
Self-Recordkeeping, and
Self-Reporting
Provide much more extensive
information on compliance.
Shift economic burden of
monitoring to the regulated
community. May increase
level of management
attention devoted to
compliance within a facility.
Rely on integrity and
capability of source to
provide accurate data. Place
a burden on the regulated
community and increase the
paperwork for the
compliance program.
Citizens
Can detect violations that are
not detected by inspections
or industry self-monitoring,
-reporting, and -record-
keeping.
Sporadic. Cannot control
the amount, frequency, or
quality of information
received. Only a few
violations are noticed by
citizens.
Area Monitoring
Useful for detecting possible
violations without entering
the facility. Also useful for
determining whether permit
or license requirements are
providing adequate
environmental protection.
Can be difficult to
demonstrate a connection
between the pollution
detected and a specific
source. Difficult or
impossible to obtain precise
information. Resource-
intensive in areas of multiple
sources.
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TABLE 6-1. THREE LEVELS OF INSPECTIONS
LEVEL 1: WALK-THROUGH INSPECTION
This type of inspection is limited to a quick survey of the facility. Inspectors
simply walk through the facility, for example to check for the existence of
controi equipment, observe work practices and housekeeping, and verify that
there is a records repository. These inspections establish an enforcement
presence, and can also serve as a screening process to identify facilities that
should be targeted for more intensive inspection.
LEVEL 2: COMPLIANCE EVALUATION INSPECTION
This level involves a thorough inspection of the facility, but does not include
sampling. It may include visual observations like those in Level 1, review and
evaluation of records, interviews with facility personnel, review and critique of
self-monitoring methods, instruments, and data, examination of process and
control devices, and collection of evidence of noncompliance.
LEVEL 3: SAMPLING INSPECTION
This includes the visual and record reviews of the other inspection levels, as well
as preplanned collection and analysis of physical samples. These inspections are
the most resource-intensive.
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• Ensuring the quality of self-reported data.
• Demonstrating the government's commitment to compliance by creating a credible
presence.
• Checking whether facilities that have been ordered to comply have done so.
Inspections may focus on one or more of the following:
• Does the facility have an up-to-date permit or license?
• Has required pollution monitoring or control equipment been installed?
• Is the equipment being correctly operated?
• Are records of self-reported data properly prepared and maintained?
• Is the facility properly conducting any required sampling and analysis?
• Do the facility's management plans and practices support the required compliance
activities?
• Are there any signs of willful violation of regulations and/or falsification of data?
(Signs of willful violation or falsification include conflicting data, conflicting stories
from different employees at the same facility, monitoring data for which there is no
supporting record or documentation, claims that employees are ignorant of the
regulations when company files show a knowledge of these requirements, and tips
from employees or citizens in the local community.)
Inspections usually begin with an opening conference to explain the inspection process to
the source. Some inspections end with a closing conference, in which the inspector may make
facility managers aware of any violations, how to correct those violations, and what the future
consequences of continuing noncompliance may be. Some enforcement programs do not allow
closing conferences because they want to avoid the risk that information given by the inspector to
the facility may somehow compromise future legal action.
Gathering Evidence
The inspector is responsible for gathering information to determine whether a facility is in
compliance and collecting and documenting evidence that a violation may have occurred. This
evidence is used to support the development of enforcement cases, as well as to help the inspector
prepare for and give testimony when required. Therefore, inspectors are required to follow
certain procedures to ensure that whatever evidence they collect will be admissible in a court of
law. If standard procedures are not followed, there is a risk that the evidence may be rejected in
a court of law and that the time and expense invested in building a case will have been wasted.
Standard checklists are often developed for different types of inspections to ensure that the
inspections properly covers all the necessary aspects and that inspections are fair and objective.
Sometimes inspectors are responsible for determining whether a violation has occurred;
sometimes this decision is made by program staff; in other cases, this decision is made by legal
staff. Involvement of legal staff is essential when the requirement must be interpreted to
determine whether there has been a violation. Because of concern about jeopardizing future
enforcement cases, most inspectors in U.S. enforcement programs do not make decisions about
whether a violation has occurred.
Written Inspection Report
During the inspection, the inspector records notes on every aspect of the inspection. The
inspector may also gather additional evidence, such as physical samples, photographs, and copies
of facility documents. As soon as possible following the inspection, the inspector prepares and
files an inspection report, which references any additional evidence collected (photographs,
documents, etc.). Any samples collected are sent to a laboratory for analysis. Analytical data are
interpreted and presented in the final inspection report. This report serves as the basis for any
testimony by the inspector and will likely be used as evidence should the case go to trial.
Elements of an inspection report may include:
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The specific reason for the inspection.
Who participated in the inspection.
That all required procedures for conducting an inspection were complied with.
The actions taken during the inspection, including the chronology of the actions.
The evidence obtained during the inspection.
Observations made during the inspections.
The results of sample analyses related to the inspection.
Inspection Plan
An inspection plan developed before going on site helps ensure the quality and value of
the inspection. An inspection plan provides an organized step-by-step approach to conducting the
inspection. However, some flexibility is also important to allow the inspector to adapt to
unanticipated situations at the facility. Table 6-3 lists some common elements of an inspection
plan.
Targeting Inspections
Virtually any enforcement program, no matter how adequately funded, will never have
enough resources to inspect all regulated facilities. Therefore, the major issue to be considered in
creating an inspection program is how to target the scarce inspection resources to achieve
maximum effect (see Chapter 4). Once a source has been targeted for inspection, program
officials must decide what level of inspection to conduct.
In the United States, even very simple inspections have been found to have a significant
deterrent effect if they succeed in identifying potential violations. Therefore, where appropriate,
the U.S. program encourages simpler, less expensive inspections for sources that are thought likely
to be in compliance. More expensive and intensive inspections are necessary for sources likely to
be out of compliance. In selecting sources for more intensive inspections, enforcement programs
can consider several factors:
• A source's potential to harm the environment.
• The complexity of the inspection needed to evaluate compliance.
• The compliance history of the source.
• The compliance history of similar sources.
• The availability of self-reported data.
Another strategy for conserving program resources is to use a "tiered" inspection level, i.e.:
Start with a less expensive inspection. If the source is in violation, take enforcement action to require
the source to correct the violation and do more extensive self-monitoring. Inspect again at a more
intensive level if the monitoring data indicate continued violation or if there is any other reason to
suspect a violation. This approach assumes cooperation by facilities. It shifts some of the burden
of data gathering to the source and postpones resource-intensive inspections until lower-level
inspection and monitoring warrant the expense.
Issues To Consider
Policymakers will need to consider many issues when designing an inspection program.
For example:
• Selecting Facilities for Inspection. How are facilities chosen for inspection? What
proportion of inspections should be "routine," and what proportion should be "for
cause?" How can routine inspections be fairly and neutrally distributed across the
regulated community?
• Announced Versus Unannounced Inspections. When should inspections be
announced versus unannounced? If inspections are announced, the facility's
managers can make sure that the information requested and any essential plant
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TABLE 6-3. ELEMENTS OF AN INSPECTION PLAN
OBJECTIVES
- What is the purpose of the inspection?
- What is to be accomplished?
TASKS
- What information will be reviewed (e.g., permits, licenses, regulations, previous
inspection reports, information on the history of compliance)?
- What coordination with laboratories, other environmental programs, lawyers, or
government agencies is required?
- What information must be collected?
PROCEDURES
- What specific facility processes will be inspected?
- What procedures will be used?
- Will the inspection require special procedures?
- Has a quality assurance/quality control plan been developed and understood?
- What equipment will be required?
- What are responsibilities of each member of the team?
RESOURCES
- What personnel will be required?
- Has a safety plan been developed and understood?
SCHEDULE
- What will be the time requirements and order of inspection activities?
- What will be the milestones? What must get done vs. what is optional to get
done?
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personnel will be available when the inspector arrives. Thus, announced
inspections can be more efficient. Unannounced inspections, however, are more
likely to discover the plant's true operating conditions. They are particularly useful
when there is reason to believe the source is in violation and is misrepresenting its
self-reported data or likely to destroy evidence if the inspection is announced.
Frequency of Inspection. How often should a particular facility be inspected?
Policymakers will need to balance the cost of inspections with the expected
compliance benefit. Sources that are more likely to fall out of compliance may
require more frequent inspections.
Who Should Inspect. Which level of government will provide the most effective
inspection force: national, regional, provincial, or local? Would it be more
effective for the government to contract with an independent group to perform
inspections?
Legal Authority. What legal authority do inspectors have to enter facilities? What
procedures will be taken if the facility refuses to allow the inspection?
Role of the Inspector. Should the inspector determine whether a violation has
occurred or should the inspector simply gather information? The inspection may
fail to meet the needs of enforcement if the inspector's role is not clear.
Comprehensiveness of the Inspection. What data should inspectors gather?
Should inspections focus on data needed under a particular regulation, permit, or
license, or should inspectors try to gather data relevant to several environmental
regulations, permits, or licenses? The advantage of focussed inspections is that it is
easier to train inspectors for these inspections. The disadvantage is that more
focussed inspections may fail to detect noncompliance in areas not specifically
covered by those inspections.
Inspection of Related Activities. To what extent should inspectors also gather data
on company activities that may affect environmental quality, such as preparedness
for chemical emergencies, pollution prevention activities, and waste minimization
programs?
Objectivity of the Inspector. Care is needed to ensure that inspectors do not
become so familiar with and sympathetic to certain facilities and facility managers
that their objectivity is compromised. Some enforcement programs periodically
rotate inspectors to avoid this possibility.
Closing Conference. Should the inspection include a closing conference? A
closing conference provides an opportunity for the inspector to make company
managers aware of any violations and what the consequences of continuing
noncompliance would be. In some cases, the inspector may suggest ways to correct
the violation. A closing conference helps educate the regulated community.
However, information conveyed by the inspector could undermine subsequent legat
taken against the facility. For example, facility managers could claim the
information conveyed by the inspector contributed to noncompliance if the
information was in any way misleading or not sufficiently comprehensive. Program
lawyers may prefer that inspectors draw no conclusions and convey no information
about compliance.
Documenting the Violation. How should the information gathered by the
inspector be documented? The information's value to the program may depend on
such factors as clarity, completeness, and utility as evidence in a court of law.
Inspector Training. How can inspectors be adequately trained to gather accurate
information and (if relevant) provide technical assistance? What training is needed
to ensure the health and safety of inspectors?
Data Quality. How can the quality of data be assured? Ways to help ensure data
quality include initial reporting procedures, processes for review and confirmation
of the data, and schedules and procedures for auditing the program's reporting and
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recordkeeping system. Guidance should also be developed to ensure the quality of
the laboratory analysis supporting the inspection,
• Consistency of Sampling and Analytical Procedures. Use of consistent methods
and procedures for sampling and analysis is important to ensure data quality,
fairness of enforcement, and the value of the results for legal proceedings. Both
inspectors and analytical laboratories will require guidance on appropriate
procedures.
Inspector Training
Inspectors have a great influence on the success of a compliance monitoring program.
They are responsible for identifying facilities that are out of compliance and gathering evidence
for enforcement actions. They are often the only environmental officials that a facility manager
will ever see in person, and may serve as the key witness in enforcement cases. Inspectors require
training in a broad range of skills: legal, technical, administrative, and communication (see Table
6-4). They will need to be technically competent in the subject(s) of the inspections they perform,
and skilled in obtaining crucial facts and in collecting and preserving evidence of noncompliance.
Also, they need to be skilled in managing projects, working in a team, and effective
communications ranging from entry conversations to complex cross examination in cases of
serious violations. The training and integrity of inspectors are therefore critical to effective
enforcement programs.
Support Resources
The kind of equipment required to support an inspection varies depending on the type and
purpose of inspection. Equipment needed may include:
• Safety equipment to protect the inspector from any hazards that may be
encountered during the inspection.
• Documentation equipment, including cameras, film, pocket calculators, tape
measures, and logbook, to record information and evidence.
• Sampling equipment to take samples of soil, water, and/or air.
• Analytical equipment to analyze the environmental samples taken at the facility.
SELF-MONITORING, -RECORDKEEPING, AND -REPORTING BY THE REGULATED
COMMUNITY
Self-monitoring, -recordkeeping, and -reporting are three ways in which sources can be
required to track their own compliance and record or report the results for government review.
Increasingly, self-monitoring, -recordkeeping, and -reporting are being recognized as providing
essential data to supplement and support inspections.
• In self-monitoring, sources measure an emission, discharge, or performance
parameter that provides information on the nature of the pollutant discharges or
the operation of control technologies. For example, sources may monitor
groundwater quality, or may periodically sample and analyze effluent for the
presence and concentration of particular pollutants. Sources may also be asked to
monitor operating parameters on pollution control equipment (such as line voltage
and electrical current used) that indicate how well the equipment itself is
operating. Operating parameters are generally inexpensive to monitor and provide
reliable data that give a more accurate and representative picture of emissions than
occasional sampling and analysis of the emissions themselves. This type of
monitoring has proven to be a cost-effective way for enforcement programs and
sources to assure themselves that controls are operating correctly.
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TABLE 6-4. ELEMENTS OF INSPECTOR TRAINING
BASICS OF COMPLIANCE AND ENFORCEMENT
Introduction to Environmental Compliance
Summary of Environmental Requirements
Components of an Enforcement Program
Organizational Structure for Compliance and Enforcement
Role of the Inspector/Field Investigator
LEGAL ASPECTS OF RESPONSE INSPECTIONS AND ENFORCEMENT
Enforcement Litigation
Entry and Information-Gathering Tools
Evidence
PRE-INSPECTION ACTIVITIES
Pre-inspection Planning and Preparation
Administrative Considerations for Inspectors
ON-SITE ACTIVITIES
Gaining Entry and Opening Conference
Ensuring Inspector Health and Safety
Records Review
Physical Sampling
Interviews
Observations and Illustrations
Closing Conference/Travel Security Measures
POST-INSPECTION ACTIVITIES
Reports and Files
Laboratory Analysis
Enforcement Proceedings
COMMUNICATIONS
Serving as an Expert Witness at Enforcement Proceedings
Press and Public Relations
Communications Skills
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• Self-recordkeeping means that sources are responsible for maintaining their own
records of certain regulated activities (e.g., shipment of hazardous waste).
• Self-reporting requires that sources provide the enforcement program with self-
monitoring or -recordkeeping data periodically and/or upon request.
Self-monitoring, -recordkeeping, and -reporting provide much more extensive information
on compliance than can be obtained with periodic inspections. Self-monitoring, -recordkeeping,
and -reporting requirements also shift some of the economic burden of monitoring to the
regulated community, and they provide a mechanism for educating this community about the
compliance requirements. Self-monitoring, -recordkeeping, and
-reporting may also increase the level of management attention devoted to compliance, and may
inspire management to improve production efficiency and prevent pollution.
Self-monitoring requires that reliable and affordable monitoring equipment be available to
the regulated community. Self-monitoring, -recordkeeping, and -reporting rely on the integrity
and capability of the source to provide accurate data. The data will be misleading if the source
either deliberately falsifies the information or lacks the technical capability to provide accurate
data. Therefore, programs using self-monitoring, -reporting, and -recordkeeping will need to
establish some way to help ensure accuracy, e.g., by requiring self-monitoring only in facilities with
the appropriate technical capability, by developing quality control standards for monitoring and
recordkeeping, etc.
In the United States, self-monitoring, -recordkeeping, and -reporting are often required by
environmental regulations (see Table 6-5). Enforcement officials translate these regulatory
requirements to facility-specific requirements via permits. Information from self-monitoring, -
recordkeeping, and -reporting is used primarily to target inspections. It is also sometimes used as
a basis for enforcement actions. Usually, it is supplemented by inspections to corroborate the
accuracy of the data.
Issues
To use self-monitoring, -recordkeeping, and/or -reporting as part of an enforcement
program, program officials wilt need to provide guidance to the regulated community on the
standard procedures, methods, and instruments that should be used to obtain the data; on how
frequently data should be collected; and on how the data should be recorded and reported. Some
issues to consider in developing these requirements are:
• Cost. What will the cost and paperwork burden be to industry and government?
What will the benefits be? Are the benefits worth the cost?
• Technology Requirements. Is technology available for monitoring? How much
does it cost? How accurate and reliable is it? How easy is it to leam how to
operate the equipment to get accurate results?
» Data Use. How exactly will enforcement officials use the data? What information
will the data provide about violations or compliance success? What is the
minimum amount of data that will be useful?
• Extent of Requirements. Should the source be required to report all data or just
data that indicate a potential violation? Proponents of the "all data" requirement
argue that more management attention will be paid with routine reporting and that
enforcement officials can better control the quality of data. Proponents of
exceptional reporting argue that this is much less expensive, and that the "all data"
approach may discourage sources from voluntarily conducting additional
monitoring that they feel may be valuable.
• Public Disclosure. Should the self-reported data be made available to the public?
Most U.S. environmental laws require that self-reported data be made available to
the public. This publicity effectively deters violations and failure to report,
especially when the law also gives citizens the right to sue sources.
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TABLE 6-5. EXAMPLES OF SELF-MONITORING, -REPORTING,
AND -RECORDKEEPING REQUIREMENTS IN THE UNITED STATES
WATER POLLUTION. The national water program relies heavily on source self-monitoring
and self-reporting. All sources discharging into the surface waters of the United States must
perform self-monitoring and self-reporting. The regulations require monitoring of discharges,
use of a standard form to report monitoring results, a minimum reporting frequency of once a
year, and a requirement to maintain records for at least 3 years. The specific parameters,
methods, and frequency of monitoring and reporting are tailored to the source and described in
the individual permits. For example, a permit may require a source to perform continuous
monitoring of temperature, flow, and pH, and specific sampling of the effluent for solids,
organic compounds, toxic metals, and oil and grease. Most major sources must report on a
monthly or quarterly basis. Minor sources generally report once or twice a year.
DRINKING WATER. Drinking water suppliers must test drinking water for specific chemical,
microbiological, and radioactive contaminants for which national standards have been set. To
ensure quality, all systems must use government-certified laboratories to perform the
monitoring. The frequency with which the sampling results must be reported to the government
varies depending on the size of the water system and the contaminant being monitored. The
reporting frequencies range from daily to every 3 or 4 years. Once reported, the results become
public information. If a standard is exceeded, the public health consequences of the violation
must be reported by the system to its customers.
AIR POLLUTION. Because of the high cost of monitoring air pollutants, program officials have
generally imposed minimal self-monitoring requirements and limited self-reporting requirements
for stationary sources. Stationary sources may be required to test their emissions for sulfur
dioxide, nitrogen oxides, carbon monoxide, lead, particulate matter, volatile organic carbons, and
other specific hazardous air pollutants. This testing may be occasional, periodic, or (where
technology allows) continuous. For mobile sources (i.e., engines from motor vehicles), self-
monitoring and self-reporting requirements are imposed primarily on institutions that can easily
affect the emissions of many vehicles at once, e.g., the vehicle manufacturers, maintenance
shops, and fuel suppliers.
HAZARDOUS WASTE. This program regulates tens of thousands of different waste handlers
who handle a wide variety of wastes. Self-monitoring, -reporting, and -recordkeeping are very
important because of the immense size and variability of the regulated community. A single
recordkeeping document must accompany a shipment of hazardous waste wherever the waste
travels. Each individual handler of the waste (generators, transporters, storage facilities,
treatment facilities, and disposal facilities) must sign the document and keep one copy.
Generators must keep a copy of this document for 3 years after shipment. Every other year,
generators must also provide information on their activities to their authorized state agencies or
to the U.S. Environmental Protection Agency. Treatment, storage, and disposal facilities must
perform self-monitoring. For example, groundwater monitoring is often required to detect leaks
at landfills; waste incinerators may be required to continuously monitor the temperature and
carbon monoxide content of their emissions.
PESTICIDES. This program focuses on ensuring that pesticides are tested and registered. It
has important recordkeeping requirements so that inspectors can make sure that the product
labels and advertising do not violate any restrictions on pesticide use. Pesticide manufacturers
must also test their product for potential health effects and submit and maintain testing records
to help trace any harmful effects of pesticides in use back to the manufacturer.
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• Self Certification. Should senior industry officials be required to certify that the
facility is in compliance? Increasingly, U.S. laws are introducing this requirement
and making senior officials personally liable for false reporting. This is an effective
way to elicit the attention and cooperation of senior management in achieving
compliance. Such requirements will be meaningful only if they are backed by clear
guidance on and procedures for self-certification. Self-certification may also
include a requirement to report violations and efforts to correct them.
CITIZEN COMPLAINTS
Citizen complaints are an important way of detecting violations that are unlikely to be
detected through self-reporting or inspections. These include violations that take place in isolated
areas, and illegal acts within an organization. Enforcement programs can help educate and train
citizens to detect and report problems. One U.S. program encourages citizen involvement by
providing a financial reward for any report that leads to a conviction of the violator.
AREA MONITORING
Information on compliance status can be gained by area monitoring, i.e, monitoring
environmental conditions near a facility. Area monitoring includes ambient monitoring, remote
sensing, and overflights.
Ambient Monitoring
This includes any monitoring to detect pollutant levels in the ambient air, ground, or
surface waters near a facility. The main problem with ambient monitoring is that it can be
difficult to demonstrate that the pollutants measured came from a particular facility. Ambient
monitoring is most useful when a source is the only significant polluter in the area, or when its
emissions have a characteristic composition that serves to "fingerprint" them. In these cases,
ambient measurements clearly suggest potential violations at a facility, and can be used to target
inspections. In the United States ambient data are rarely used alone to prove a violation because
of the difficulty of proving a connection with the source.
Remote Sensing
Remote-sensing techniques can provide positive proof from outside a facility's boundaries
that the facility is violating an environmental requirement. The most developed remote-sensing
technique is laser-beam radar, also known as "Lidar," for "light detection and ranging." This
technique measures the density of a smoke plume by day or night. It is relatively inexpensive
compared to other air monitoring methods such as stack tests.
Overflights
Both satellites and aircraft can be used to measure ambient and source-specific conditions-
Satellites have been useful for detecting large discharges of water pollutants and are most often
used to trigger inspections. Satellite images are usually too coarse to calculate the magnitude of
the violation.
Aircraft overflights can be even more effective than satellites for compliance monitoring.
Airborne cameras can detect and record the densities, temperatures, and area of air and water
discharges. Even some biological effects in streams can be detected from the air. Perhaps most
significantly, overflights can be used to observe the physical characteristics and work practices at •«
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facility. For example, dikes and fences can be observed and checked against permit records for
correct location and condition. Practices such as the loading and unloading of hazardous
materials can be observed. Production levels can be estimated from the air and compared to
assumptions used in permits or licenses.
Overflights may ajso be used to detect facilities subject to environmental requirements, to
detect facilities that may not have registered for a program or filed required notifications, and to
define the relative locations of wastewater discharges, air emissions, hazardous waste management
facilities, water supply intakes, populated areas, etc., in specific geographic areas.
Overflights have been used very successfully for enforcement in the Netherlands.
Airplanes and helicopters have been used to detect illegal discharges and dumps, many of which
are clearly visible from the air. The responsible parties are notified about the detected violations
and requested to act where necessary. Success was considerably improved when helicopters began
to work simultaneously with ground vehicles. Sighted violations were reported to ground
personnel who then immediately proceeded to the scene and dealt with the situation. Periodic
aerial photographs of wrecked yards and dump sites have provided a good record of these
operations and how they are changing. Where appropriate, these photographs can be used in
later investigations.
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7. ENFORCEMENT RESPONSES TO VIOLATIONS
INTRODUCTION
Experience with environmental programs in many countries has shown that enforcement is
essential to compliance. This is because, in any society, many people will not comply with the law
unless there are clear consequences for noncompliance.
Enforcement by government programs seeks to correct violations and create an
atmosphere in which the regulated community is stimulated to comply because the government
has demonstrated a willingness to act when noncompliance is detected. This atmosphere also
helps stimulate members of the regulated community to prevent pollution and minimize waste so
that they are no longer subject to requirements. If authorized, a government enforcement
program may also seek to correct and redress actual or potential harm caused by environmental
pollution, whether or not the pollution violates a specific requirement.
Government programs are but one means of enforcement. In some countries, private
citizens and groups are empowered by law to bring enforcement actions against violators.
Insurance companies and financial institutions may require facilities to comply to be eligible for
insurance or a loan. Finally, social norms can be an effective method of ensuring compliance in
societies where there is strong social sanction for noncompliance with environmental
requirements. For example, the public may choose to boycott certain products if they believe the
manufacturer is harming the environment. All these nongovernmental forms of enforcement can
greatly enhance a government program. Policymakers can strengthen government enforcement
efforts by considering these other forces for enforcement when designing government programs.
For example, government officials may benefit by working closely with concerned nongovernment
groups on enforcement. Policymakers may also wish to focus government enforcement activities
on areas not adequately covered by the private sector.
Government enforcement capabilities will generally be most effective if they are in place
and used when requirements become effective. Delaying enforcement can undermine the
credibility of the program and make it difficult to create an atmosphere of deterrence.
Enforcement is often needed throughout the life of a regulatory program, to achieve initial
compliance and to ensure that those who have achieved compliance maintain it.
Enforcement can be controversial because so much is at stake environmentally and
economically. To be successful, enforcement requires support at all government levels and within
all sections of the program. Governments can demonstrate their commitment to enforcement by
enacting enforceable requirements and by providing clear and consistent support. Program
personnel can demonstrate their commitment by taking violations seriously because of their threat
to the environment and to the integrity of the legal system.
This chapter describes a range of authorities and response mechanisms for enforcement.
Most countries with enforcement programs have some but not all of these authorities and
mechanisms. Each program must work within the possibilities offered by the legal system or
systems under which the program operates. This chapter describes issues to consider when doing
this, and suggests new possibilities that may be appropriate to consider when the legal system is
being changed.
THE RANGE OF RESPONSE MECHANISMS AND AUTHORITIES
All enforcement programs benefit from a range of authorities and response mechanisms so
that program officials can appropriately respond to the many different types of violations and
circumstances that will arise.
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Authorities
In most countries, the range and type of response mechanisms available will ultimately
depend on ihe number and type of authorities provided to the enforcement program by
environmental and related laws. These authorities provide the legal basis for enforcement which
is essential to the power and credibility of an enforcement program. Table 7-1 summarizes a
range of authorities that may be useful for an enforcement program. This list is an amalgam of
the authorities of several different enforcement programs in the United States and other nations.
Response Mechanisms
Enforcement mechanisms may be designed to perform one or more functions:
• Return violators to compliance.
• Impose a sanction.
• Remove the economic benefit of noncompliance.
• Require that specific actions be taken to test, monitor, or provide information.
• Correct environmental damages.
• Correct internal company management problems.
Response mechanisms generally fall into the following categories, described below:
INFORMAL or FORMAL
CIVIL or CRIMINAL
/\
ADMINISTRATIVE or JUDICIAL
INFORMAL MECHANISMS
Informal responses include phone calls, site visits, warning letters, and notices of violations
(see Table 1-2}. Informal responses advise the facility manager what violation was found, what
should be done to correct it, and by what date. The goal of informal action is simply to bring the
violator into compliance or to initiate formal legal process. Informal responses themselves do not
penalize and cannot be enforced, but can lead to more severe response if they are ignored.
FORMAL MECHANISMS
Formal enforcement mechanisms are backed by the force of law and are accompanied by
procedural requirements to protect the rights of the individual. Formal mechanisms are either
civil or criminal as described below. As indicated by the diagram, above, civil actions may be
either administrative (i.e., directly imposed by the enforcement program) or judicial (i.e., imposed
by a court or other judicial authority). Authorities to use formal enforcement mechanisms must
be provided in environmental laws.
Civj] Administrative Enforcement
Civil administrative orders are legal, independently enforceable orders issued directly by
enforcement program officials that define the violation, provide evidence of the violation, and
require the recipient to take corrective action within a specified time period. If the recipient
violates the order, program managers can usually take further legal action using additional orders
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TABLE 7-1. TYPES OF ENFORCEMENT AUTHORITIES1
Remedial Actions
Authority to impose a schedule for compliance
Authority to permanently shut down part of an operation
Authority to temporarily shut down certain parts of operations or practices
Authority to permanently shut down an entire facility
Authority to temporarily shut down an entire facility
Authority to deny a permit
Authority to revoke a permit
Authority to require a facility to clean up part of the environment
Emergency powers to enter and correct immediate dangers to the local
population or environment
• Authority to seek compensation for damage caused by the violation
Other
Authority to require specific testing and reporting
Authority to impose specific labeling requirements
Authority to require monitoring and reporting
Authority to request information on industrial processes
Authority to require specialized training (e.g., in emergency response to spills)
for facility employees
• Authority to require a facility to undergo an environmental audit
Sanctions
• Authority to impose a monetary penalty with specified amounts per day per
violation
Authority to seek imprisonment (a jail term)
Authority to seek punitive damages or fines within specified limits
Authority to seize property
Authority to seek reimbursement for government clean-up expenses
Authority to bar a facility or company from government loans, guarantees, or
contracts
Authority to require service or community work to benefit the environment
Limitations on financial assistance
'This list of enforcement authorities is a hybrid and does not appear in any one law
or country. It is an example of the types of authorities that may be made available
to enforcement officials through environment Jaws. These authorities may be either
direct authorities or the authority to seek a court order to impose the sanction.
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TABLE 7-2. TYPES OF INFORMAL RESPONSE
Telephone Call. This is perhaps the simplest way to notify or remind a source
that a violation has occurred and must be corrected. The caller may also
request that the violator follow up with a letter that describes what action was
taken.
Inspection. An inspector can make facility managers aware of a problem and
provide assistance in correcting the problem. At the same time, an inspector
can gather data about the problem. This better prepares the program for taking
further action, if necessary, and displays the program's seriousness about
following up if compliance is not achieved.
Warning Letters. Warning letters let source managers know that they are
violating the law and must correct the situation or face adverse legal action and
consequences. A warning letter may also describe the potential sanctions of
continued noncompliance; require a response from the violator detailing the
corrective action taken; and/or suggest that the violator meet with compliance
officials to discuss compliance. Other responses are considered if the violator
fails to take advantage of this opportunity within a reasonable time.
Notice of Violation. Notices are more formal than warning letters. They notify
a source that a violation has been detected and often give a deadline for taking
corrective action. Notices of violation also warn about legal action and
consequences that may follow if the violator does not take action by the
deadline.
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or a court system to directly force compliance with the order. What distinguishes administrative
response from judicial response, defined below, is that the legal action is handled by an
administrative system within the organization responsible for implementing the enforcement
program. The administrative processes may be similar to those provided by the court system.
Two advantages of administrative enforcement are that it does not require coordination with a
separate judicial agency and the administrative organization's own administrative law judges are
usually more knowledgeable because they are dedicated to addressing environmental problems.
Therefore, administrative actions are usually resolved more quickly and require less time and
expense than judicial actions. Administrative orders are not self-enforcing, however. If the order
is not complied with, further enforcement action will need to be pursued through the judicial
system.
Field citations are administrative orders issued by inspectors in the field. Typically, they
require the violator to correct a clear-cut violation and pay a small monetary fine. Field citations
are much like traffic tickets. Depending on the procedural steps defined by the program, the
violator can either appeal the citation, pay it, or risk more formal enforcement action. Field
citations are generally used at the provincial and/or local levels to handle more routine types of
violations. They can be a relatively efficient means to enforce certain violations that are clear and
do not pose a major threat to the environment. To issue field citations, inspectors need training
to identify the particular violations for which citations can be written.
Civil Judicial Enforcement
Civil judicial enforcement actions are formal lawsuits before the courts. Some nations with
civil enforcement authorities rely exclusively on civil judicial actions to enforce environmental
laws. Other nations have adopted both administrative and judicial mechanisms to carry out civil
enforcement authorities. Where available, administrative enforcement is generally preferred as a
first response (with some exceptions), because judicial lawsuits are far more expensive, require
more staff time, and may take several years to complete. However, judicial enforcement has
several advantages. It is often perceived as having greater significance and therefore has more
power to deter potential violations and to set legal precedents. Also, the courts are often
uniquely empowered to require action to reduce immediate threats to public health or the
environment. Thus, judicial enforcement can be essential in emergency situations. The courts
also play an important role in enforcing administrative orders that have been violated, and in
making final decisions regarding orders that have been appealed. Therefore, when administrative
enforcement mechanisms are available, civil judicial responses are generally used against more
serious or recalcitrant violators, where precedents are needed, or where prompt action is
important to shut down an operation or to stop an activity.
Criminal Enforcement
Criminal judicial response is generally considered appropriate when a person or facility has
knowingly and willfully violated the law, or has otherwise committed a violation for which society
has chosen to impose the most serious legal sanctions available. These responses seek criminal
sanctions, which may include monetary penalties and imprisonment. Nations such as Canada that
now rely exclusively on criminal law for environmental enforcement have also developed creative
sentencing provisions to introduce other remedies and sanctions (such as community service and
required environmental audits) designed to "punish" the wrongdoing (see Table 7-1). While
criminal response can be the most difficult type of enforcement, it can also create the most
significant deterrence since it personally affects the lives of those who are prosecuted and carries
with it a significant social stigma. Criminal cases require intensive investigation and case
development. They require proof that a violation has occurred and may require proof that an
individual or business (through its employees) was knowingly and willfully responsible for the
violation. Specially trained criminal investigators may be necessary to develop criminal cases.
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The ability to apply criminal enforcement in environmental cases depends on a country's
legal system and on whether appropriate authority is provided in environmental or other laws.
For example, in the United States there are generic statutes that make it a crime to report false
information. Conversely, in Hungary only a "natural person" can be criminally liable, and a faci iry
or business is not considered to be a "natural person," Under these circumstances, criminal
enforcement is difficult because the facility itself is not answerable for the "crime" and it is oftei
difficult to identify which individuals within the facility were responsible.
THE ENFORCEMENT PROCESS
Protecting Basic Rights
Every nation has its own unique legal system, laws, and culture. However, common to a;l
democratic institutions are processes to balance the rights of individuals with the government's
need to act, often quickly, on behalf of the public. Several processes may be used to ensure
fairness of enforcement responses:
• Notice. Some enforcement programs require that a notice of violation be issued
before any formal enforcement action is pursued. The violator may be offered an
opportunity to (1) contest the finding of violation and/or (2) to correct the
violation within a specified time frame to avoid further government action.
• Appeals. There are often several points in the enforcement process when a
violator can appeal either the finding that there is a violation, the remedial action
required by the enforcement program, or the severity of the proposed sanction.
• Dispute Resolutions. Most enforcement responses are bound to create disputes
between program officials and facility representatives. In such cases, programs
often use special procedures designed to resolve disputes (see Table 7-3).
In general, the more an enforcement action may deny an individual his or her rights, the
more protections the enforcement process provides and the longer the process may take before
final action is initiated.
Supporting the Enforcement Case
Many issues may be raised and disputed in typical enforcement actions. Enforcement
officials should always be prepared to:
• Prove that a violation has occurred.
• Establish that the procedures and policies were fairly and equitably followed and
that the violator is not being unduly "picked on."
• Demonstrate the underlying environmental or public health need for the
requirement being violated. (This need is often met when the requirement is
developed. However, it may be necessary to reiterate the importance of
compliance with the requirement to justify and support an enforcement case. This
is particularly true when a case is being argued in front of an independent
decisionmaker who is not familiar with the requirement or its environmental or
public health basis.)
• Demonstrate that a remedy for the violation is available (e.g.. affordable pollutior
control equipment), (Even though this is not usually the responsibility of the
government, this information can be important to negotiations.)
• Demonstrate the ability of the violator to pay, e.g., showing that a "poor" facility is
owned by a wealthy parent company.
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TABLE 7-3. TYPICAL DISPUTE RESOLUTION PROCEDURES
Face-to-face negotiations between program officials and the violator either:
- Before formal enforcement response is pursued. At this point in the
process, the discussion usually focuses on whether there has been a
violation. If agreement is reached, there may also be a discussion of
the required response and schedule for response.
- After formal administrative or civil judicial enforcement action is
initiated but before it is final These negotiations are carried out
during settlement discussions. The resulting agreement, e.g., an
administrative order or a settlement, is placed before a final
decisionmaker, e.g., a judge, for approval.
Presentations before a decisionmaker (often a judge or hearing examiner)
who makes a decision about a fact or legal point after hearing both sides
of the issue.
Use of third parties. Third parties (e.g., mediators, arbitrators, and
facilitators) may be called upon by enforcement officials or by agreement
of the parties to break an impasse. An experienced third party can
change the dynamics, provide new perspectives, and propose possible
solutions. Specialized third parties are particularly useful for resolving
highly complex technical issues that a lawyer or judge would be unlikely
to fully understand.
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The Role of Negotiation
Negotiation is an integral part of enforcement. In the United States, most enforcement
cases are settled through negotiation rather than by unilateral decision. Negotiation enables both
the facility and the concerned party or parties to consider the correctness of the facts, the
circumstances of the case, and the variety of alternative responses. Negotiation provides an
opportunity to obtain additional information and correct misinterpretations before pursuing legal
action. Negotiation also provides an opportunity to reach a solution that satisfies all parties.
Enforcement actions create a stimulus and context for discussion and resolution. Enforcement
provides the framework in which solutions can be negotiated. Negotiation can enhance
compliance by sending a signal to the regulated community that, while pursuing enforcement
response, the government is willing to be responsive to the concerns and difficulties faced by the
regulated community in achieving compliance and to work cooperatively to develop a satisfactory
solution.
Negotiations will generally be most effective if there remains a real possibility of litigation.
In some cultures or situations it may be very important to keep this threat real so that facilities do
not use negotiations as a means of delaying compliance. Program officials can keep this threat
real by maintaining a strict schedule for negotiations and a parallel preparation for legal action.
The negotiation process will vary from one culture and program to another. Some
negotiations may be face-to-face between enforcement officials and the violator. Others may
involve a variety of concerned parties (e.g., representatives of the local community, workers,
nongovernment organizations). In some negotiations (e.g., an impasse), an experienced third
party may be used to change the dynamics, provide new perspectives, and propose possible
solutions that had not previously been considered. Table 7-3 describes some typical dispute
resolution procedures.
The result of negotiations is a settlement — a documented official resolution to the
situation, e.g., an "administrative consent order" or a "judicial consent decree" in the United
States. In the U.S. system, negotiation is most often used within the context of legal enforcement
proceedings. This results in a legally binding agreement between the violator and the
enforcement program or a negotiated agreement that must be submitted to a court for
consideration and final approval.
Two types of enforcement responses are usually not negotiated. One is a request by
enforcement officials for information from the violator. This is usually not controversial and
therefore does not require negotiation. The other is the exercise by the enforcement program of
emergency powers to protect public health and the environment. In this case, there is no time to
negotiate.
Role of the Public To Ensure Accountability
In some countries (e.g., the United States), the public has a right to comment on
enforcement agreements, orders, and decrees before they are final. The public may also be
allowed to gain access to final enforcement actions. Public involvement is one way to ensure that
violators are treated fairly and consistently. Indeed, it is the violators themselves who are most
likely to review other previous enforcement actions that have been taken and attempt to use them
during negotiations as a precedent if they are favorable.
CREATIVE SETTLEMENTS: LEVERAGING ENFORCEMENT FOR BROADER RESULTS
Agreements can include any provisions that the enforcement program is authorized to
impose on a violator. Depending on their legal authority, environmental officials may have some
latitude to develop creative approaches to solving environmental problems. Creative settlements
can also be used to leverage a single case to gain either greater environmental benefit or greater
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deterrence than would have occurred with a conventional settlement. Examples of creative
settlements are described below.
Creative settlements are often linked to some limited reduction in monetary penalty or an
agreement to extend compliance schedules. Creative settlements may also be sought for violators
with limited ability to pay or violators that demonstrate a strong level of cooperation with the
government. U.S. policy limits the amount of penalty reduction allowed in creative settlements
because of need to maintain some level of penalty to preserve deterrence and recover the
economic benefit of noncompliance.
Pollution Prevention
Pollution prevention settlements involve an agreement by the facility to convert to
practices or processes that reduce or eliminate the generation of pollutants and wastes at the
source. Pollution is prevented when the volume and/or the toxicity of pollutants is reduced. In
manufacturing, for example, pollution prevention includes activities such as substituting chemicals,
reformulating products, modifying processes, improving housekeeping, and recycling on site.
Pollution prevention projects may directly correct the violation or may reduce pollution
not connected with the original violation. Pollution prevention settlements help ensure that
violations will not recur and/or they reduce the total risk that a facility's operation poses to public
health or the environment.
Pollution Reductions Beyond Compliance
Settlements can be negotiated in which the violator agrees to reduce pollution further than
the level required to comply with the requirements. For example, a violator may agree to install
more effective control technologies that reduce the overall discharge of pollutants.
Environmental Auditing
Environmental auditing is a periodic, systematic, documented and objective review at a
regulated facility of its compliance status, management systems and/or overall environmental risk.
Auditing has been encouraged by many nations and by the International Chamber of Commerce
as an essential tool for regulated facilities to ensure compliance and to effectively manage their
environmental risks (see Chapter 5).
Environmental audits have been required in several enforcement actions in the United
States for one of two purposes. First, they have been used where a source shows a clear pattern
of violations that suggests a management problem. In such cases, a settlement may include an
agreement that the source pay for an environmental audit to identify and correct the internal
management problems that led to the repeated violations. Second, if a violation is likely to be
repeated at other operations owned by the same company, a settlement may include an agreement
(1) that the company or a third-party auditor will audit for that violation at the other facilities
owned by the company, and (2) that any violations will be reported and corrected.
Environmental Restoration
Environmental restoration settlements not only repair the damage done to the
environment because of the violation, but also further enhance the environment around the
facility. If the environmental damage caused cannot be restored, the settlement may require the
facility to restore a comparable environment in another location.
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Publicity
In public awareness settlements, the violator agrees to undertake some activity to increase
the awareness by the regulated community of the need for compliance and/or ways to achieve
compliance. For example, the violator could sponsor a series of seminars to provide information
to a specific industry group about how to correct violations common to that industry. The
violator could also sponsor public announcements on television and radio to discourage violations
or to describe how new technologies can be used to correct violations. In the United States,
violators who sponsor public awareness projects must also agree to clearly state to the public that
the project was undertaken as part of the settlement of a lawsuit brought by the government.
Training
Training settlements can be used to correct internal compliance problems within a
company or organization. Violators that are industry leaders may be required to design and
conduct compliance training for others within the same industry group.
Escrow or Bond for Sources Unable to Pay Penalties
This type of settlement is useful for facilities that cannot afford to pay the monetary
penalty normally imposed for the particular type of violation. In such cases, the facility agrees to
put some money into an escrow or bond account which will be used to fund remediation or other
activities to improve environmental quality.
ENFORCEMENT RESPONSE POLICIES
Enforcement response policies describe how various enforcement authorities will be used
to respond to the many different types of violations and violation situations. Such policies are
important to ensure fairness. Fairness is particularly important when assessing monetary
penalties. The perception and fact of fairness is critical to the credibility of an enforcement
program, and also helps otherwise reluctant staff make what are often difficult decisions to
demonstrate government will and resolve to enforce environmental laws. Key issues to consider
when drafting an enforcement policy are discussed below.
Criteria for Noncompliance
Whether a facility is in compliance is not always obvious. Specific guidelines and criteria
are often needed for determining compliance from noncompliance. These standard criteria help
ensure that all members of the regulated community are treated equally and fairly.
SELECTION OF APPROPRIATE ENFORCEMENT RESPONSE
Selecting an appropriate enforcement response raises several difficult issues, discussed
below, which often need to be addressed in an enforcement response policy. (These issues may
already have been addressed in the wording of the authorities provided by the environmental
laws.)
When Should Civil or Criminal Responses Be Used?
This issue is relevant only to countries that have or are considering implementing both
civil and criminal authorities. In the United States, criminal enforcement actions are generally
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reserved for actions that deserve punishment, rather than correction, e.g., where the violation is
intentional and willful. Criminal actions are also used to ensure the integrity of the regulatory
scheme, e.g., for facilities that operate without a permit or license. Cases reserved for criminal
enforcement typically include:
Falsifying documents.
Operating without a permit.
Tampering with monitoring or control equipment.
Repeated violations.
Intentional and deliberate violations (e.g. decisions to violate based on greed).
In the Netherlands, both criminal and administrative charges can be brought for violations
of environmental laws. Serious violations are usually met with direct criminal charges. Many
Public Prosecutors believe that criminal charges should be imposed the second time a company is
found to be out of compliance. Admininstrative sanctions include shutting down all or part of a
company's operations and fining the company for each day it remains out of compliance.
Criminal sanctions include prison sentences, fines, complete or partial shut down of operations,
confiscation of property, and publicizing the court's verdict.
When Should a Sanction Be Imposed?
For certain types of enforcement response, it may be sufficient to negotiate a compliance
schedule where the violator agrees to return to compliance and/or clean up a pollution situation
by a certain date. When deterrence is important to a program's compliance strategy, maximum
impact will be gained if each enforcement action is used to send a deterrence message to the
regulated community. Sanctions help send this message. However, sanctions may not be
appropriate for violations that are not preventable, or that are too minor to focus government
resources on the legal process that necessary to impose a sanction. These considerations need to
balanced in deciding when to impose a sanction.
Should a First Enforcement Response Include a Sanction?
There are two basic approaches to this issue. One approach does not seek a sanction for
first violations but imposes a stiff sanction if noncompliance continues. This approach is based on
the belief that every facility should be given at least one opportunity to correct its problems
before it receives a sanction. This approach is most successful when violations are easy to detect,
and when the enforcement program has an excellent track record of detecting violations, diligently
following up on violators to verify compliance, and imposing stiff sanctions for continued
noncomptiance.
The second approach is to impose a sanction for first violations. This is based on a belief
that lack of a penalty may encourage facilities to postpone compliance activities until the violation
has been detected. This approach is essential for violations that are difficult to detect.
What Type of Sanction Should Be Used?
Depending on the authorities provided in environmental laws (see Table 7-2), enforcement
officials often have several types of sanctions they may impose for violations. The enforcement
policy will need to provide guidance on when these various types of sanctions are appropriate.
Monetary Penalty. Monetary penalties are the most common sanction used in
enforcement response. An enforcement policy will need to provide guidance on how to calculate
an appropriate penalty for various types of violations. There are several bases on which to
calculate an appropriate monetary penalty (see Table 7-4). In reality, monetary penalties are
often a combination of these factors. Table 7-5 provides one example of a penalty calculation
using a variety of factors.
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TABLE 7-4. FACTORS THAT MAY BE USEB TO
CALCULATE A MONETARY PENALTY
Gravity of the Actual or Potential Harm to the Environment and/or Human Health.
Gravity-based penalties are graduated to reflect the seriousness of the violation. This
sends a deterrence signal to the regulated community: the more serious the violation,
the greater the penalty will be. Gravity may be calculated based on factors such as:
Volume of release.
Toxicity of release.
History of noncompliance.
Environmental and/or public health risk or impact.
Importance to maintaining the integrity of the enforcement program.
Economic Benefit. Penalties that, at a minimum, recover the economic benefit a violator
may have gained by not complying remove the economic advantage for
noncompliance. This type of penalty is important to maintain fairness by ensuring
that facilities that comply are not economically disadvantaged by doing so. It also
removes the economic incentive for noncompliance. At the national level and in
some states in the United States, enforcement policies require recovery of economic
benefit.
Ability to Pay. Enforcement officials must often consider a violator's ability to pay when
calculating a monetary penalty. Penalties that are large compared to the facility's
resources could force a facility to shut down. Bankruptcies can harm the overall
community. Facilities that are given a severe monetary penalty may also threaten to
move to another area where environmental regulation and/or enforcement is more
lax, In such cases, enforcement officials may want to consider the deterrence benefits
of severe penalties against the cost and hardship that the resulting unemployment
would cause in the local community. Public pressure may have substantial impact on
the monetary penalty level when jobs are threatened. Asking for substantial penalties
also raises a risk that violators may choose to contest the penalty in court rather than
pay it. A series of payments can be arranged in situations where a violator may have
difficulty paying the fiill penalty at one time. Financial penalties are less likely to
deter public agencies since they are not proStmaking ventures.
Other Factors. These include:
• Degree of cooperation by facility personnel with environmental officials.
• Whether the violation was self-reported by the facility.
• Degree of remorse by the responsible parties.
• The strength of the case. A weak case is less likely to withstand appeals on
the part of the violator. In such cases, enforcement officials may lower the
penalty to avoid making it worthwhile for the violator to try to appeal the
penalty.
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TABLE 7-5. SAMPLE WORKSHEET TO CALCULATE A MONETARY PENALTY'
Facility Name:
Money the Facility Saved by Not Complying with Regulations
Costs avoided
Costs postponed
Total
Example
$10,000
$5.000
fa)
fa) $15.000
Seriousness of the Violation
PAYMENT CALCULATION MATRIX
Potential for Harm
High
Medium
Low
Extent of Deviation from Requirements)
High
$5,000 to 54,000
$2,199 to $1,600
$599 to $300
Medium
$3,999 to $3,000
$1,599 to $1,000
$299 to $100
Low
$2,999 to $2,200
$999 to $600
$99 to $20
Penalty required based on potential for harm and extent of
deviation from requirement (use the above matrix and personal
judgment to determine the appropriate amount): ' fh)
(b) $3.000
Adjustment for the Duration of the Violation
Number of days of noncompliance
Total = [(b) x (20%)] x (c)
SUBTOTAL
Subtotal = (a) + (d)
Penalty Adjustment Factors'
1. Degree of cooperation (+/-)
2. History of compliance (+/-)
3. Supplemental environmental projects3 (+/-)
4. Ability to pay (-)
Total = [(/) + (g) + (h) + (i)] x (e)
TOTAL PENALTY
Total penalty = (e) + (j)
(c)
M5Q
(d)
(d) $30.000
(e)
M $45.000
ffl
(e)
(bL
(fi +5%
(e) -5%
(h) .10%
(i)
(iL
(it -5%
$38.250
'Loosely based on a worksheet used for a U.S. environmental program.
'Adjustments may range from -20% to +20% for factors 1, 2. and 3, and from -100% to Q% for factor 4. Selection
of appropriate percentages is based on subjective judgment and should be fair relative to adjustments made when
calculating penalties for other similar violations.
'Supplemental environmental projects are projects the facility is conducting or will conduct to benefit the
environment (see description in this chapter).
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Denial or Revocation of Permits or Licenses. Program officials can deny an application
for a permit or license or revoke an existing permit or license. This would require a facility to
cease at least part of its operation or be in clear and direct violation of the law.
Shutdown of Operations. Program officials may be able to shut down operations. The
threat of a shutdown can be an effective deterrent, particularly in a free market economy where
shutdowns directly affect profits.
Jail Terms. Criminal sanction (e.g., jail terms) for managers or employees of violating
facilities can be an extremely effective deterrent. Criminal sanctions can only be imposed where
allowed by the legal system. This penalty has substantial public support in the United States. In
the United Stares, for example, criminal sanctions can be sought if someone willfully circumvents
a requirement or fraudulently reports data. Some criminal cases can be costly and invoLve
complex procedures. However, in the United States, their deterrent effect has been so great that
even a relatively smail number of successful cases have caused other companies to change their
management ethics. Under U.S. Sentencing Guidelines, sentences for environmental crimes can
be reduced if the corporate official can demonstrate a comprehensive and committed corporate
compliance program. This set of conditions in the United States seems to be improving corporate
concern for compliance.
Denial of Government Funding. In this penalty, violators are placed on a list of firms
from which government agencies will not purchase goods and services, or provide loans or
guarantees. The lists are shared with other government agencies that purchase services or goods
from industry. The name is removed once the firm returns to compliance. In the United States,
this sanction has been very effective in several difficult compliance cases.
Negative Publicity. As part of a settlement, violators may be required to publicize
information about the violation. For example, a company may be required to pay for a full-page
advertisement in local or national newspapers to proclaim their guilt. Company executives may be
ordered to speak in public about their wrongdoing. In countries with strong public concern for
environmental quality and a free market economy, negative publicity can have substantial
economic implications for a facility. Negative publicity can also cause a corporation to lose
prestige. Research indicates that potential loss of prestige can be a powerful deterrent factor. In
the United States, enforcement officials are increasingly using publicity about violations as an
enforcement tool.
Other Sanctions. Other possible sanctions are listed in Table 7-1.
What Enforcement Responses Are Appropriate for Government-Owned and/or
-Operated Facilities?
Enforcement by one government organization against another government organization is
usually difficult for many reasons. For example, monetary penalties for many government
facilities are paid for out of a central budget. The loss of this money generally has little impact
on the individual facility's operation. In government systems, it can be difficult to hold managers
and operators of facilities accountable for failing to comply with requirements. In some countries
or regions, facilities may be receiving conflicting signals — one government organization may
require compliance while another may demand high levels of production. It can be politically
difficult for one government organization to enforce against another. Also, in many countries
government organizations cannot be sued by citizens or other government organizations for failure
to comply with environmental requirements. For all these reasons, managers of government
facilities may have little incentive to ensure that their facilities are in compliance with
environmental requirements.
The United States has some experience in enforcement against government-owned
facilities. With a few exceptions, the U.S. federal government has waived its special immunity
from prosecution and has given bolh state governments and citizens the right to take the federal
government to court if it does not comply with federal, state, or local environmental requirements.
The U.S. Environmental Protection Agency (U.S. EPA — the federal agency responsible for
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environmental protection) can pursue enforcement against other government agencies, but it
generally does not seek penalties nor does it take civil judicial action against sister agencies. The
U.S. EPA can develop bilateral administrative compliance orders and agreements with other
agencies, and also issues some unilateral administrative orders if these orders are not disputed.
The U.S. EPA can also hold government officials criminally responsible for their actions. To
resolve disputes, the U.S. EPA uses an internal appeals system within the Executive Branch of the
government. The enforcement process is useful to force agencies to budget for environmental
problems. Public pressure has also been a powerful force to gain federal government compliance.
In the mid-1980s, the U.S. EPA and states also began to aggressively enforce against
municipalities. Creative solutions were found to enforcement problems, including creative
financing arrangements that enabled municipalities to meet the requirements. The penalties
imposed through enforcement also helped induce some local communities to vote to increase their
taxes in order to raise money to finance pollution control.
Federal facility operators are criminally liable for environmental crimes, e.g., improper
disposal of hazardous waste. In the past several years, the U.S. EPA has been much more
aggressive about enforcing against federal facility operators. These cases have generally received
a great deal of public attention.
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8. CLARIFYING ROLES AND RESPONSIBILITIES
INTRODUCTION
Enforcement frequently involves many different groups, including government agencies,
citizens groups and nongovernment organizations, and industry associations. A key element in any
strategy is defining the roles and responsibilities of the various groups involved. This chapter
discusses key issues involved in defining roles and responsibilities:
• How should responsibilities for enforcement be divided among the various levels of
government (national, regional, provincial, and local)? To what extent should a
program be centralized (i.e., run at a national government level) versus decentralized
(i.e., run at local government levels)?
• Which government agencies will be involved, e.g., environmental agencies, health
agencies?
• Should there be separate enforcement programs for different environmental media
(e.g., air, water, land) or one or more integrated programs covering several media?
• To what extent should a program make use of citizens and other nongovernment
resources?
• To what extent should technical program staff and attorneys be integrated within a
single organization?
DIVIDING RESPONSIBILITIES AMONG GOVERNMENT LEVELS
A basic issue in developing enforcement programs is to what extent to centralize
responsibilities for enforcement at the national level or decentralize them at more local levels. There
are advantages and disadvantages to both centralization and decentralization. A national presence in
enforcement helps ensure that at least minimum standards for environmental requirements are met;
that the program is consistent and fair throughout the country; and that national resources are
available to support enforcement programs. Involvement of provincial and local governments in
enforcement is important because these levels are closest to the actual environmental problems and
best able to efficiently identify and correct them.
Most environmental enforcement programs in different countries are decentralized to take
advantage of (1) local knowledge of facilities and their operations, and (2) the greater resources
available at the local level. Despite this bias toward decentralization, some programs are centralized
because of a clear need for national involvement, e.g., to handle transboundary pollution problems, or
where local competition to create favorable conditions for industry may lead to lax enforcement at the
local level, or where unique expertise concentrated at the national level is needed to implement the
program. For example, control of most air pollution sources is decentralized in the United States.
However, enforcement of U.S. environmental requirements pertaining to manufacture of automobiles
and fuel additives is centralized, as are enforcement programs concerning the production of toxic
chemicals and pesticides in the United States.
Roles and relationships between the national government and local governments can develop
in many different ways, ranging from decentralization to centralization to various combinations of
both approaches. Table 8-1 shows different approaches used in various countries. Two models from
the United States and the Netherlands are presented below. These models attempt to combine some
of the advantages of both centralization and decentralization. The United States uses a system of
parallel responsibility for several of its enforcement programs. Under this system, states are given
primary responsibility for enforcement, but the national government retains parallel authority and
responsibility. The Netherlands has developed a system where responsibilities are divided among
national, regional, and local governments. Divided or decentralized responsibilities require
cooperation and communication between government levels.
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TABLE 8-1. APPROACHES USED IN DIFFERENT COUNTRIES TO PARTITION
GOVERNMENT RESPONSIBILITIES FOR ENFORCEMENT1
Canada
Toxic Chemicals/Hazardous Waste
AH Other
Germany
Great Britain
Transboundary Chemical Waste
Air
Japan
Norway
Poland
Sweden
The Netherlands
Nuisance Act
Hazardous/Toxic Chemical Wastes
United States
Air Stationary Sources
Automobile Emission and Fuels Standards
Water Discharges
Toxic Chemical Testing/Manufacture Release
Reports
Pesticides Registration
Pesticides Use Enforcement/
Certification for Field Applicators
Hazardous Waste GeneratbrvTreatroeni/Disposai
Decentral-
ized
X
X
X
X
X
Central-
ized
X
X
X
X
X
Divided
Responsi-
bilities
X
Parallel
Resjonai
bilit;es
X
X
X
'See text for description of approaches.
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The U.S. Experience: Parallel Responsibility with the Primary Role Delegated
Most environmental programs in the United States establish a relationship between the
national and state governments. Usually, the national government formally approves the state
environmental program as meeting established standards for implementation. From this point on, the
state program has the primary role for implementing the enforcement program, but the national
government retains parallel authority and responsibility and can intervene if the state program is not
meeting certain criteria. In a few cases, such as the air program, the national government can directly
grant approval to a local government to run a program. A few U.S. laws do not allow the national
government to delegate responsibility to the states. In these cases, the national government may
develop "cooperative agreements" with states to make state involvement possible.
The U.S. Environmental Protection Agency (U.S. EPA — the national government agency
responsible for protecting the environment) is authorized by most environmental laws to define
criteria for an acceptable environmental program. These criteria generally cover three areas: legal
authority, resources, and personnel. The U.S. EPA works with states to help them develop programs
that meet these criteria. Once a state program meets these criteria, the U.S. EPA approves the
program and state authority to run the program. If a state program has not been approved by the
time enforcement must begin, the U.S. EPA will run the program from the national level until the
state program is approved.
Typically under this system, states are responsible for monitoring environmental quality and
compliance, developing compliance strategies, targeting and performing inspections, enforcing against
violators, and verifying the quality of monitoring and compliance data. As of 1991, approximately 70-
90% of day-to-day inspections and 70% of formal enforcement actions were performed by states.
Even though states have primary responsibility for running approved programs, the U.S. EPA
always remains responsible for meeting national environmental standards and for ensuring that
national laws are being enforced. To meet this responsibility, the U.S. EPA oversees the states'
performance and may take direct enforcement action under certain circumstances. This can be a
sensitive area if the U.S. EPA intervenes in situations where a state believes it is doing a good job.
The U.S. EPA provides states with funding for staff and equipment through an annual grant
process. The U.S. EPA sets national program priorities annually in consultation with the states and
then works with states to develop state/U.S. EPA agreements that specify enforcement priorities that
include national, regional, and state priorities.
Advantages
This system of parallel responsibility with the primary role delegated has several advantages:
• Program Quality. The system maintains a continuous national presence. This helps
ensure that certain minimum program standards are met across the country regardless
of the resources and capabilities of the individual states.
• Technical Capabilities. Because it is a national government agency, the U.S. EPA can
often provide states with technical capabilities that are not available at the state level.
• National Consistency. Involvement at the national level helps ensure
that enforcement is practiced fairly and consistently across the nation.
• Deterrence. Knowledge that the national government can and does become involved
in certain enforcement actions helps contribute to deterrence.
• Fostering Competition. The national government routinely monitors and reports on
progress and success in individual states. Results in individual states can easily be
compared. This has resulted in a healthy sense of competition among some states that
has improved program success.
• Improved Program Effectiveness. Those closest to a problem are most likely to spot
the problem and correct it in a timely manner. Shifting the primary responsibility for
compliance monitoring and enforcement from the national to a more local level helps
improve program effectiveness.
• Sharing the Financial Burden. Delegating to state and local governments also relieves
the national government of substantial financial burden for enforcement programs.
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Disadvantages
• Parallel authority may lead to duplication of effort and confusion of roles.
Clarifying Roles and Responsibilities
In the United States, implementing this partnership to most effectively use the limited
resources of each government level has been a continual challenge. The U.S. EPA has interpreted
the partnership differently at different times, and consequently varied its level of involvement. To
stabilize the partnership, a special steering committee of about 30 federal and state representatives
was established in 1984 to establish a policy for implementing joint state/national programs. The
policy aims to create a state/national relationship that can ensure firm, fair, and effective enforcemen
that makes efficient use of scarce state and national resources. This policy clarified the U.S. EPA's
role in overseeing state programs and in taking direct enforcement actions. The policy is
implemented through annual agreements. Progress is reviewed regularly by the steering committee.
Oversight Role. The U.S. EPA now has clear criteria for evaluating performance of its own
and state programs. Most programs must:
Clearly identify the regulated community and establish priorities for enforcement.
Have clear enforceable requirements.
Monitor compliance accurately and reliably.
Maintain high or improving rates of compliance.
Respond in a timely and appropriate way to violations.
Use penalties and other sanctions appropriately to create deterrence.
Maintain accurate records and provide accurate reports.
Have sound overall program management.
The U.S. EPA reviews state performance on a regular basis. It uses these criteria to identify
areas at the state or local level where programs are not performing adequately. Program evaluation
takes into account specific conditions in each state. The policy framework suggests action the U.S.
EPA can take to improve performance. These actions include information exchange, technical
assistance, and additional grant funds. In rare instances, state program approval may be withdrawn or
the U.S. EPA may take direct federal enforcement action, as described below, where the state
response has not been adequate. The U.S. EPA also identifies and publicizes information about
successful state programs so that other state programs can learn from their approach.
Direct Federal Enforcement. The U.S. EPA has established clear criteria for when and how
it will become directly involved in enforcement. The U.S. EPA will consider becoming involved only
if at least one of these conditions applies:
• A state requests U.S. EPA involvement.
• The state action is not timely and appropriate.
• The case would set a national legal or program precedent.
• A U.S. EPA or federal court order has been violated.
If one of those four conditions does apply, the U.S. EPA may consider these additional factors when
deciding whether or not to become involved:
« The case is nationally significant (e.g., involves a significant noncomplier, or affects
national priorities).
The violation significantly threatens public health or environmental quality.
The violator is gaining significant economic benefit.
The case affects other states.
The case involves a repeat violator.
State authority is inadequate.
The policy dictates that if the U.S. EPA does become involved, it should do so with maximum
respect for the state program and its public image. For example, the U.S. EPA usually provides
advance notice and consults with the state before it takes any action. Consultation allows the two
levels of government to determine how the U.S. EPA can best complement state activities. The U.S.
EPA may offer to take joint action with the state, use state data and witnesses, involve the states in
developing and/or settling the case, issue joint press releases, share credit with the state, continually
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inform states about what actions are being taken and why, and occasionally consider withdrawing if
state action seems sufficient to achieve the enforcement goal.
The biggest area of conflict remains differing state and U.S. EPA views on the schedule and
severity of response actions. Historically, states have preferred informal responses because of their
lower cost and have been reluctant to impose significant monetary penalties. Recently, however, this
gap has been closing. The U.S. EPA encourages, and is actively considering requiring, states to
impose monetary penalties that at least recover the benefit of noncompliance.
Whether the U.S. EPA actually becomes involved depends, in part, on whether the state is
taking sufficient enforcement action on its own. EPA's willingness to use its own authority for direct
enforcement is perhaps the most important leverage it has with state programs.
The Netherlands' Experience: Divided Responsibilities
In the Netherlands, environmental quality is regulated primarily through a licensing system
authorized under various environmental laws. Responsibilities for licensing and enforcement are
divided among the three levels of government: national (or central), provincial, and municipal. The
national government is responsible for nuclear power stations and processors of chemical waste.
Provinces are responsible for licensing large industries such as chemical and power plants that are
major pollution sources. The remaining regulated firms, which comprise the vast majority of the
regulated community, are the responsibility of the approximately 650 municipalities in the
Netherlands.
Until recently, the municipalities were required to issue so many licenses relative to their
resources that they fell far behind in licensing and even further behind in compliance monitoring. In
the past few years, these three levels of government have worked cooperatively to review their
enforcement programs and design and implement changes to improve their effectiveness. The
national government provided several "start-up" resources, in the form of funding, training, and
specialized expertise, to help provinces and municipalities design more effective programs. The three
government levels also clarified their roles and responsibilities, and developed ways to encourage
cooperation and sharing of resources among municipalities. The ultimate goal is to transfer as much
of the implementation responsibility as possible to the intermunicipal associations. This partnership
model is relatively new (as of 1990) and will continue to be developed over time.
The Public Nuisance Act
The Public Nuisance Act, originally passed in 1875, required municipalities to license almost
any activity (e.g., a fire hydrant booster) that could have an environmental impact. The licensing
burden was so great that municipalities were unable to meet it. A 1977 survey showed that over two-
thirds of regulated firms did not have the necessary licenses, and that municipalities generally
conducted inspections only when they had received a serious complaint from the public.
Consequently, many forms of pollution went undetected. To solve this problem, the Netherlands
amended the Act to reduce the administrative burden to municipalities. Now, simpler operations,
such as bakeries, garages, and dry cleaning establishments, are governed by general regulations at the
central level. These operations need only notify the municipal authority before beginning an activity
governed by the regulations.
To encourage enforcement, the central government provided funds in the early 1980s to
municipalities to develop an environmental compliance strategy, which was called a "Public Nuisance
Act Implementation Plan." Municipalities receiving funding were asked to identify the regulated
communities, develop priorities for licensing, and determine the organizational changes necessary to
ensure that the municipality could achieve an acceptable level of compliance. About 90% of the
municipalities established a program, although some did not implement it.
Chemical Waste Act
The Chemical Waste Act requires firms that generate chemical wastes to surrender their
wastes to collectors and processors licensed by the national authorities. In the early 1980s, there were
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major compliance problems. Many waste generators avoided compliance by mixing chemical waste
with nontoxic waste, discharging chemical waste down sewers, or simply discharging it onto the
ground.
In 1984, the central government launched a stricter enforcement program by enlisting the
support of municipalities. The national authorities retained responsibility for monitoring the activities
of the collecting and processing firms. Municipalities became responsible for monitoring compliance
of the more than 200,000 firms in the Netherlands that generate chemical waste. The central
authorities provided substantial support to municipalities to develop an effective enforcement
program. They financed inspection projects at the municipal level. Municipalities were encouraged
to cooperate with one another when conducting inspections. The central government also developec
a program to train municipal inspectors in enforcement of criminal law, report writing, and social
skills. Inspections were performed on a sector-by-sector basis, so that all firms of a particular type
within a particular area were checked during each round of inspection. The central government also
developed educational materials about the regulatory requirements that were distributed to the
regulated community during the inspections. Some 80% of regulated firms were found to be unaware
of their legal responsibilities.
Involving the Local Police
The national authorities debated whether to set up a separate environmental police force.
They decided instead to enlist the support of the local police who patrol the local environment 24
hours a day and are well-versed in criminal enforcement. With national funds, the local police have
been trained in environmental enforcement, and provided with sampling equipment, with the
technical support of environmental specialists, and with subsidies to perform inspections. They work
in close cooperation with the local environmental authorities, and have formed special regions that
have expertise in environmental crime. This has resulted in a substantial increase in environmental
prosecutions. As of 1990, this new role for the police is still evolving.
Encouraging Cooperation
To evaluate the effectiveness of the new chemical waste enforcement program, the central
government sponsored workshops in five parts of the Netherlands. These workshops brought together
the many different types of individuals involved in environmental programs: administrators of
municipalities and provinces, police administrators, public prosecutors, public health officials, and civil
servants. The purpose of the workshops was to exchange experience, discuss strategies, and identify
problems.
The most serious problem identified was the lack of financial resources needed to maintain a
sufficient permanent staff. In the Netherlands, the municipal environmental programs are funded by
the national government An independent study confirmed that municipal environmental budgets
were deficient. To solve this problem, the central government increased the funds for municipal
environmental programs, and worked with the Union of Netherlands Municipalities to encourage
intermunicipal cooperation so that these resources can be shared to achieve high compliance levels.
Municipalities are now directly accountable to the municipal councils and the Inspectorate for
Environmental Protection. AH municipalities with fewer than 70,000 residents must cooperate if they
want to receive increased financing. Larger municipalities are free to use the funding to improve
their own programs, but receive an additional 25% if they cooperate with other municipalities. Whe i
applying for the subsidy, municipalities must demonstrate how they will achieve the required licensing
and enforcement standards by 1995. Municipalities must submit an annual report to the municipal
council on the progress and status of the enforcement program. The Regional Inspector for
Environmental Protection, an official of the central government, must comment on the subsidy
application and the draft annual report.
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Clarifying Roles
Under the new enforcement program, the central government remains responsible for setting
priorities in consultation with the provincial and municipal levels. These priorities influence program
planning at the provincial and municipal levels. Each municipality retains administrative
responsibility for any corrective action taken against violators. Municipal officials involved in the
program (alderman, public prosecutor, police administrator, and administrators of the water control
and purification boards, etc.) are required to meet periodically to set priorities, develop plans, share
experience, and monitor various activities.
Industry Support
The Netherlands is also trying to enlist the support of industry by promoting environmental
auditing (see Chapter 5). The central government is implementing pilot projects to introduce the
concept and exploring the idea of providing environmental advisors that will assist firms in setting up
their own self-care systems. It is encouraging industry to form regional agencies that could provide
auditing assistance upon request. The government is working to create a new professional ethic in
industry: that violating environmental regulations is inconsistent with the professional code of
conduct that well-managed firms are expected to obey.
ROLE OF OTHER GOVERNMENT INSTITUTIONS
Several government institutions can have significant impact on the design and operation of
enforcement programs. Most significant are the legislative (lawmaking), executive (management and
budget), and judicial (legal) institutions, as well as any agencies that have programs in areas related to
the environment. The particular institutions and the nature of their impact will depend on the
governmental infrastructure of each country. Institutions with an impact will be those that:
Identity the need for legislation.
Create environmental laws.
Determine budgets.
Track program progress and success.
Bring legal action.
Oversee activities related to environmental management.
Identify violators of the laws.
Legislative Institutions
The legislative institutions probably have the greatest impact on program development. They
create the laws that define the environmental goals to be met, the authority and flexibility to meet
those goals, and the level of funding. Legislative institutions can become involved in policy and
implementation decisions by issuing amendments to laws that impose certain duties on the executive
institutions. The legislative institution can impose deadlines that executive institution must meet.
Executive Institutions
The executive institutions are often responsible for identifying the need for legislation and for
enforcing the legislation once it has been enacted. The executive institution is usually the
environmental agency of the country or region. This agency may have its own administrative law
judges. They provide an internal mechanism for enforcing administrative orders and appealing
agency actions.
An executive institution may also supply the lawyers responsible for taking legal action against
violators. If this institution is not the environmental agency itself, an interagency agreement can be
important to define the conditions for services between the two executive institutions. U.S. programs
often experienced difficulty in getting sufficient attorney time and cooperation to prosecute good
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cases. These difficulties were largely overcome by involving attorneys early in the development of
compliance strategies and by planning for individual cases.
Judicial Institutions
In some countries (e.g., the United States) judicial institutions are responsible for interpreting
the laws. They may also impose requirements on the executive institution, for example, by requiring
that it use certain rulemaking procedures if it wants those rules to be upheld in court. Courts may
provide a forum for taking enforcement action, for prosecution, and for enforcing administrative
orders (if the court is so authorized). Courts can also play a significant role in assessing sanctions.
Agencies with Jurisdiction in Areas Related to Environmental Management
Many government agencies may have authority in areas that affect or will be affected by
environmental management. These include:
• Health-related agencies responsible for food safety, occupational health and safety,
consumer products, pesticide use, etc.
• Natural resource management agencies, responsible for water, energy, minerals,
forests, etc. Development of these resources can significantly effect pollution
abatement.
• Land use planning agencies, responsible for community development, industrial siting,
transportation, etc.
• Agencies that regulate industry and commerce.
• Agricultural agencies.
• Criminal investigation and enforcement agencies.
• Customs. (For example, in the Netherlands, the Customs Department is helping the-
Environmental Inspectorate by watching for and taking samples from imported
materials that may violate a Dutch law prohibiting use of cadmium as a pigment or
stabilizing agent in plastic. Further investigation is carried out by the Inspectorate.)
Similarly, in the United States, agreements between the U.S. EPA and the U.S.
Customs Service enhance enforcement of import and export requirements.
Competition or conflict between two government agencies because of overlapping authorities
can dilute the impact of both programs. Conversely, constructive cooperation can strengthen both
programs through increased efficiency and by identifying gaps in regulatory programs. Approaches to
achieving integration among related agencies include:
• Integrating the responsible departments into one unit.
• Developing interagency agreements and memorandums of understanding that establish
clear mechanisms and procedures for handling areas of overlapping authority and/or
mutual interest.
Ad hoc joint efforts such as joint research programs.
Formal review of each agency's proposals by the other.
Review of proposals by reference.
Establishing special councils that are independent of each agency.
Establish an independent government entity or commission.
Police
Local police and other government personnel involved in identifying and apprehending
criminals can be a valuable resource for detecting violations of environmental laws. In the
Netherlands, the local police are serving as the inspection and enforcement arm of enforcement
programs. To serve in this role, the police must be appropriately trained, provided with the necessary
sampling equipment, and have the technical support of environmental specialists as needed. The
Netherlands has set up regional police centers that specialize in environmental crime, and has
provided subsidies to the police for inspection projects. The police are responsible for surveillance
and, in the case of simple environmental crimes, investigation. They also play an important role in
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containing and fighting more serious environmental crimes, including organized environmental crime.
Use of local police as inspectors has been very successful: the number of prosecutions has increased
substantially in recent years, and the public image of the police has substantially improved.
In the United States, the Federal Bureau of Investigation (FBI), a national government
agency for criminal investigation and enforcement, assists the U.S. Environmental Protection Agency
in investigating and apprehending environmental criminals. The FBI and the U.S. EPA also provide
joint training programs.
ROLE OF NONGOVERNMENT GROUPS
Several private organizations can have a critical influence on program success and efficiency.
As described in Chapter 7, these groups may directly or indirectly influence enforcement. These
groups can be valuable allies in efforts to improve environmental quality. Government enforcement
programs will benefit by working with these groups wherever possible and appropriate.
Industry Associations
Industry or trade associations track and publicize developments that may affect their
members. They may try to influence environmental legislation or programs as they are being
developed. They may also serve as valuable channels for disseminating information on requirements,
methods of complying, and compliance activities. Their dissemination channels include newsletters,
journals, databases, and conferences. Associations of firms that make pollution monitoring
equipment or control devices have strong economic incentives to disseminate information about
environmental requirements.
Associations of Government Officials
These associations are nongovernment entities that provide a forum for government officials
(e.g., mayors, governors) to work together in solving issues of mutual concern. Like industry
associations, these groups track and publicize developments that may affect their members. These
associations provide a resource for disseminating information and a forum for comment and
recommendations concerning environmental management programs.
Professional and Technical Societies
Specialized professionals advise both government officials and the regulated communities on
compliance issues. Their societies therefore have a strong incentive to track and disseminate
information on regulatory developments. They may also try to influence regulatory decisions and
compliance strategies they disagree with. In the United States, some of these societies independently
develop industry standards. Sometimes, the U.S. EPA has adopted their standards into compliance
strategies.
Trade Unions and Workers' Councils
Enforcement programs can have substantial impact on workers. For example, workers are
generally members of the local community and would benefit by the improved environmental quality
that may result from enforcement actions. Conversely, enforcement actions that result in substantial
process changes or shut down of an operation may result in some unemployment. Consequently,
workers will have strong feelings and opinions in some enforcement situations. Most countries have
associations or groups that represent the interests of workers. The participation of Workers' Councils
or other groups that represent workers at a particular facility will be important to success of
enforcement actions at that facility. Trade unions or other organizations that represent workers at a
regional or national level may become involved in development of requirements and policy for
enforcement. Individual workers may also report violations by their facilities to authorities.
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Universities
Some universities are important centers for environmental professionals and may function
much like the professional societies described above in supporting and influencing enforcement
programs.
Insurance Companies
In many countries, private citizens can sue industry for personal injury or property damage
caused by certain types of environmentally related activities. In theory, insurance companies that rnd
up paying the cost of the suit should have an incentive to educate their clients about environments';
requirements and assist them in compliance. These companies are therefore a potential ally for
government agencies running enforcement programs.
Public Interest Groups
Citizens can play a major role in shaping and implementing environmental enforcement
programs. With a stake in environmental quality, citizens may seek to influence environmental
legislation and enforcement programs through lobbying efforts. Usually these efforts are coordinated
by public interest groups. These groups may collect and publicize data on environmental quality and
compliance levels in an effort to influence program priorities. If monitoring data collected by the
program are made publicly available, these groups may track the data and, if the law allows, file
citizen suits against the environmental agency for not doing its job, and/or against individual violators
for violating the law.
Public interest groups also play an important role in disseminating information to regulated
communities and to citizens who are concerned about environmental quality. Citizens may also play
an important role as environmental watchdogs, spotting violations occurring on a local level that may
escape notice by enforcement officials. Public interest groups can be an important means of enlisting
citizen involvement.
Use of Independent Contractors to Supplement Government Personnel
Private firms may be able to provide more faster and cost-effective services than government
agencies. Enforcement officials may therefore contract some of their responsibilities to private firms.
One issue in using contractors is ensuring me quality of their work (see Chapter 10).
Private companies have proven to be a valuable resource for inspection in the Netherlands
during personnel shortages and work backlogs. Clear agreements are made about how the activities
are to be carried out and how violations will be reported and responded to. Any official action in
response to a violation is taken by authorized government inspectors. This combined public/private
approach has often been effective, and efficient, and can produce faster results than a solely public
approach. Dutch government officials have been careful to provide adequate, competent leadership
and to dearly define the "private" inspectors' authority. This approach is also used in many U.S.
programs.
Special Centers
National and regional enforcement programs may find it beneficial to establish regional
centers that offer specialized services such as training and technical assistance to provincial or local
programs. These centers can serve as a repository for specialized resources that might otherwise bt
unavailable to or unaffordable by more local programs. Such centers can also serve as a forum for
exchange of information and ideas about effective programs, and can enhance cooperation and
communication among different programs. The United States, for example, has established a
National Enforcement Investigations Center (NEIC) in Denver, Colorado, that serves as a technical
resource and investigative unit for developing legal cases against violators. It maintains a staff of
trained investigators that are available to participate in enforcement actions anywhere in the country.
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These investigators are skilled in a broad range of technical areas, such as ground-water monitoring
and hazardous waste sampling.
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9. EVALUATING PROGRAM SUCCESS AND ESTABLISHING ACCOUNTABILITY
INTRODUCTION
Information can be a powerful and vital tool for successfully implementing an enforcement
program. Information about program activities and results can ensure that individuals responsible for
pursuing enforcement are, in fact, doing so consistently and fairly using established procedures and
strategies. Information can help managers adjust enforcement programs to changing conditions and
lessons learned as the program is implemented. Periodic program evaluations to gather information
about program activities and results serve many purposes:
• Evaluating Program Strategy. Evaluation helps program managers determine whether
the strategies they are using to achieve compliance are working. Results of
evaluations are used as a basis for identifying problem areas and making changes to
improve effectiveness.
• Internal Accountability. Periodic evaluations of success provide a basis for
establishing a system to hold program personnel accountable for the implementation
and effectiveness of the program. Establishing an accountability system involves
defining performance goals and/or measures, obtaining commitments from program
personnel to achieve those goals/measures, and evaluating their performance against
those goals/measures. Where necessary, action is taken to improve performance.
Accountability is valuable to ensure the quality of the program at all levels, from
entry-level personnel to senior management.
• Creating Deterrence. Periodic reporting of program activities and successes to the
regulated community contributes to deterrence by raising awareness that there is a
good chance violations will be identified and responded to. Such reporting will be
effective only if the program has been active and successful.
• Public Accountability. In some countries, enforcement programs may be required by
law to report their progress and achievements to the public. Program evaluation
provides the basis for public accountability. This accountability can be an important
force in shaping program strategies and priorities. The U.S. enforcement program, for
example, is continually scrutinized by the members of the U.S. Congress, who were
elected by the public. Members of Congress may request hearings and reports to
learn about program activities. Members of the public may contact their
Congressional representatives at any time to express satisfaction or dissatisfaction with
a program.
This chapter discusses issues in and approaches to evaluating program success.
ISSUES IN MEASURING SUCCESS
Measuring the success of a enforcement program is not easy. In the United States, there is a
continuing debate about how success should be measured. Many parameters can be used to evaluate
program effectiveness. Some measure results, such as improvement in environmental quality and
rates of compliance. Some measure activity levels such as inspections and enforcement actions that
contribute to deterrence. Others provide qualitative assessments of program performance and
direction. Program measures include (see also Figure 9-1):
Environmental results.
Compliance rates.
Progress in returning significant violators to compliance.
Measures of compliance monitoring.
Number of enforcement responses.
Timeliness of enforcement responses.
Monetary penalties assessed.
Measures of technical assistance.
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Enforcement
Response
Measures of Success
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Each of these measures (discussed below) has advantages and disadvantages. Several
measures must be used to gain a meaningful assessment of program effectiveness. Key questions to
ask when considering which measures to use include:
• How accurate is the measure?
• What resources are needed to obtain the necessary data?
• How frequently should data be collected?
• Who will collect the data?
• How should the data be reported, and to whom?
• Who will analyze the data? What will they analyze for?
• Where will the data be stored?
• Will the data be computerized?
Collecting and processing reliable information on compliance and enforcement can be a
constant challenge. For example, all personnel involved in gathering or analyzing data need to clearly
understand exactly what data should be reported. Problems can arise if different individuals within a
program have different interpretations of what data are needed.
Another challenge is that different levels of an enforcement program may have different data
needs. Local personnel, for example, may prefer to focus their resources on data they consider
valuable for evaluating program performance. Program personnel at a national level may have
different priorities. National data systems will benefit if they are designed from the bottom up. Since
local personnel collect the data, they will have a greater incentive to gather accurate data if they
believe the data will be useful to them.
Mechanisms will be needed to gather and store the data, and to transfer it at appropriate
intervals to other program levels that will analyze the data. A schedule for issuing reports of the
analysis will also be needed. Policymakers may also wish to conduct special studies to analyze
program strategy and success, and recommend improvements. These studies could examine issues
such as:
• The effectiveness of various program policies, e.g., which promotional vehicles were
successful in reaching the regulated community, the policy for identifying and
screening violators.
• The effectiveness of various enforcement techniques.
Such analysis would be useful when reviewing and refining program priorities and strategies.
MEASURES OF SUCCESS
Success can be measured in two basic ways. One way involves setting goals or targets (for
example: a certain number of inspections should be conducted each year), and then comparing actual
activity to the goal. The second way involves tracking results, i.e., looking for trends and changes in
activities or results over time (for example, a finding that 25% more inspections were conducted this
year than last year may indicate an improvement in this activity). Tracking can either be routine
(e.g., annually) or periodic. Tracking can be applied to any of the success measures described below.
The goal-setting approach works only when realistic goals can be set; this is possible and appropriate
for only some of these measures, as described below.
Environmental Results
Improved environmental quality is the ultimate goal of any environmental program and
therefore is the most desirable measure of success. The types of environmental results that can be
measured include overall environmental quality, reduction in pollutant releases, and risk reduction.
Unfortunately, these measures have several shortcomings:
• There can be a significant lag time between the compliance promotion and/or
enforcement response activity and the resulting improvement in environmental quality.
• It is hard to link changes in environmental quality to specific sources or specific
compliance actions.
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• Other factors, such as changing weather patterns or economic conditions, may affect
environmental quality and therefore the accuracy of this measure.
• Compliance with some environmental requirements does not result in measurable
improvements in environmental quality.
Compliance Rates
Compliance rates are one of the best overall measures of enforcement success. High
compliance rates are the ultimate goal of most U.S. programs. Nevertheless, this measure also has
shortcomings:
• Compliance rates rely on the thoroughness and frequency of inspections and/or on the
accuracy of self-reported data. Compliance rates will not be reliable if these data are
not thorough or accurate enough.
• A lower compliance rate may mean that the program is doing a good job of detecting
violations, that the program is using stringent standards for compliance, and/or that
the regulatory requirements are stringent.
• A high compliance rate can be misleading if the most significant pollution sources
remain out of compliance, or if sources in compliance fail to stay in compliance.
Because of these shortcomings, U.S. programs find it difficult to hold managers accountable
for improvements in compliance rates. U.S. programs do, however, use compliance rates to suggest
specific areas requiring management attention.
If compliance rates are used as a measure of success, policymakers will need to agree on what
constitutes compliance. For example:
• Does compliance mean achieving the required emission levels or meeting a schedule
for compliance set forth in an enforcement agreement?
• Should the compliance rate cover any and all requirements, no matter how minor, or
just the most significant requirements?
• How should repeat violations be reported? For example, how should sources be
reported that are in compliance during the reporting period, but which are known to
regularly go in and out of compliance?
• What influence should the percentage of sources of unknown status have on the
evaluation of compliance rates? For example, if a particular compliance rate is shown
for 10% of facilities for which data exist, what assumptions are made about the other
90%?
• What data gathering is needed to ensure that facilities that are in compliance continue
to stay in compliance?
Progress in Returning Significant Violators to Compliance
Significant violators are those violators that have the greatest impact on environmental
quality. Bringing them into compliance will therefore have the greatest immediate impact on
environmental quality. It may also have an important deterrent effect, since significant violators are
often relatively large and well known sources within the regulated communities. This indicator is
appropriate for both tracking and goal-setting. It is important to remember that this indicator does
not provide any measure of success achieved in that portion of the regulated community that are not
defined as "significant violators."
The U.S. has used this measure since the late 1970s. It is one of that country's most
successful management tools. At first, the U.S. program officials identified the most significant
pollution sources throughout the nation and proceeded to take action against them. This effort
brought many large industries into compliance. However, enforcement activity declined rapidly when
this initial list was exhausted.
In 1985, the U.S. adopted a new system that does not single out particular industries.
Policymakers developed national criteria for what constitutes a significant violator. They also defined
what actions should be taken for particular types of violations. Program officials must identify
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significant violators in their jurisdiction, and make commitments to taking specific actions against a
certain number of significant violators every 3 months. Sources are tracked until full compliance is
achieved. Records are kept of the number of significant violators identified, the number and type of
actions taken, and the results of those actions. Performance is evaluated based on how closely these
goals are met. The lists of significant violators are made publicly available.
This approach has several advantages:
• It tracks not only actions taken, but results achieved. Actions and results can be easily
associated.
• The system encourages actions that will have significant environmental benefits.
• Enforcement program managers can analyze the data for patterns of compliance
across industry, companies, and environmental media.
• Publicizing the lists of significant violators may encourage other sources to achieve
and maintain compliance.
Measures of Compliance Monitoring
Another measure of success, appropriate for both tracking and goal-setting, is how well an
enforcement program monitors compliance. Several measures can track progress in this area:
• The number of inspections,
• The quality of inspections.
• The appropriateness of the targets of inspection.
• The quantity of self-reported data received.
• The quality of self-reported data received.
The number of inspections is probably the easiest of these indicators to track. This indicator provides
a qualitative measure of program success in creating an enforcement presence.
The United States uses these indicators in its enforcement programs. Program officials set
goals for and report on the number of inspections. Policymakers develop national criteria for
effective inspection strategies, and program officials evaluate the strategies against these criteria. The
United States also conducts oversight inspections to assess the quality of program inspections.
Oversight inspections are conducted by program inspectors or consultants either separately or
simultaneously with local inspectors.
One issue in measuring compliance monitoring is that well-targeted, high quality inspections
will probably increase the number of violations detected and thus lower the compliance rate.
Number of Enforcement Responses
Legal action is the ultimate weapon in the arsenal of environmental enforcement tools.
Measures of enforcement responses may therefore be of particular interest to members of the public
and nongovernment organizations that are concerned about environmental quality. In the United
States, for example, this measure is viewed by the public and by the U.S. lawmakers as an indication
of program managers' commitment to gain compliance, and it is therefore closely tracked.
Despite its potential importance in public relations, this indicator has important
disadvantages:
• The fact that an enforcement action has been initiated does not mean that compliance
will be achieved in a timely and effective manner. The litigation process can result in
lengthy delayed compliance schedules.
• Legal action is the most costly enforcement response. An emphasis on legal action
may divert attention and resources from other important program activities essential
to program success. This may be a particular concern if the regulated sources are
small and numerous.
• The number of enforcement responses may depend, in part, on the degree of
noncompliance. For example, it may be easier to bring successful enforcement action
in the early stages of a program when there are many obvious violators, than at later
stages when (if the program has been successful) violations are less dramatic and less
obvious.
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To use this indicator, policymakers must decide exactly what will be counted: total number cf
legal cases initiated; a breakdown of the types of cases by severity of violation, number of sites
involved, multiple violations, or repeat violators; the number of cases won, etc. These indicators are
not appropriate for goal-setting, because making program managers responsible for meeting quotas
for enforcement response could undermine the objectivity of the program in evaluating whether or
not sources are in compliance.
Timeliness of Enforcement Responses
One of the best indicators of a program's efficiency is the time it takes to either (1) respond
to a violation, or (2) achieve compliance. Ideally, many types of enforcement responses should be ai
swift as possible so that the source can be returned to compliance as quickly as possible. Timeliness
can be evaluated by monitoring trends and, sometimes, by comparing actual results against
predetermined goals. For example, monitoring trends is particularly appropriate for measuring time
to achieve compliance, since so many factors influence this result. Timeliness can also be measured
by setting goals for different types of enforcement actions. Success is then measured by comparing
the actual schedules with these timeliness goals. Goals can only be set for those types of enforcement
actions that consistently take a predictable time to complete. These are usually the earlier and more
routine enforcement actions. Enforcement actions involving later stages of legal procedures are
generally too unpredictable to be evaluated in this way. Also, timely response may not be possible or
appropriate in some cases, such as criminal cases, that required detailed investigation before an
enforcement action is filed. Care may be necessary to ensure that use of timeliness as a measure of
program success does not encourage enforcement personnel to take simple administrative action
rather than pursuing a more time-consuming enforcement response.
Monetary Penalties Assessed
This indicator is simply the total number and/or value of penalties assessed as a result of
enforcement actions. Trends in this indicator are used to measure success, since it is not possible or
appropriate to set goals for how many penalties should be assessed during a particular time period or
how severe the penalties should be. This indicator may not be a good means of holding managers
accountable for successful enforcement activity because there is generally a significant lag time
(sometimes years) between the initiation of an enforcement action and assessment of a monetary
penalty.
In the United States, reports of the total value of monetary penalties assessed for
environmental violations are prepared annually.
Measures of Technical Assistance
One measure of success for programs with an emphasis on compliance promotion is the
extent and effectiveness of technical assistance provided by the program to the regulated community
(see Chapter 5). This success measure is appropriate for both tracking and goal-setting. Several
measures can track progress in this area:
• The number of facilities that have received technical assistance.
• The increased compliance achieved by facilities receiving technical assistance.
Other Measures
The search for useful measures of enforcement success is an ongoing and creative process.
Other measures in addition to those described above may prove useful, such as the rate of recidivism
(i.e., Do those subject to enforcement response maintain or improve compliance in the future?) and
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timeliness of the return to compliance once a violation has been detected (i.e., How quickly is
compliance achieved?).
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PART III: IMPLEMENTATION AND EXPERIENCE
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10. BUILDING AN EFFECTIVE ENFORCEMENT PROGRAM
This chapter discusses issues involved in building and managing enforcement programs.
While program structure and resources depend greatly on the roles, responsibilities, and types of
authorities available and appropriate in each situation, some steps and decisions are common to
the development of most programs.
PERSONNEL
Role of Program Personnel
Usually enforcement programs draw upon a mix of skills and expertise, including
engineering, scientific, legal, and administrative. These individuals will need to work together
effectively to identify and respond to violations.
One key decision in assigning roles to program personnel is the degree to which inspectors
will become involved in following up on violations they have detected. In some programs,
inspectors focus on inspections, while other technical and legal staff are responsible for taking
action against violators. In other programs, inspectors play a major role in enforcement response.
Clearly defining the roles of the individuals involved in enforcement provides a basis for
efficiency and cooperation. In many countries, technical and legal personnel work hand in hand
to develop enforcement cases. Table 10-1 shows some of the responsibilities typically undertaken
by technical and legal staff as they work to identify a violator and develop a case.
Staffing Level
Ideally, an enforcement program will have sufficient staff to meet program objectives. In
reality, program objectives may be based, in part, on the staffing level that can be achieved with
available program resources. Thus, staffing and program strategies are often interrelated.
The program strategy will define the frequency of inspections and the amount of personnel
time required to conduct them. Inspection time includes time for the inspection itself, as well as
time to plan the inspection and follow it up with written reports and other actions. The time
required before and after the inspection may be twice as long as the inspection itself.
Policymakers will also need to ensure a balance of staffing among the various program
functions, to avoid creating bottlenecks due to inadequate staff in a particular area. For example,
too much emphasis on identifying violations could mean that many identified violations are not
addressed and, as a result, the program loses credibility and operates inefficiently.
Training
Developing the breadth and depth of expertise needed to run a enforcement program is
challenging. There are no easy answers to obtaining the right skill mix. Enforcement is such a
highly specialized area that some training must occur on the job, either formally, through training
programs, or informally, e.g., by pairing a new employee with a more experienced employee
performing the same function.
Integrated training (i.e., training designed to develop basic skills in a variety of expertise
areas) is valuable to develop the interdisciplinary skills .essential to enforcement, and also to build
team spirit and a basis of mutual understanding and knowledge essential for future cooperation.
The U.S. Environmental Protection Agency, for example, is developing a national training
institute that could provide an integrated training opportunity for inspectors, lawyers, and other
program staff at all levels of government.
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TABLE 10-1. TYPICAL RESPONSIBILITIES OF TECHNICAL AND LEGAL STAFF
IN ENVIRONMENTAL ENFORCEMENT
Stage in Enforcement Response
1. Determine whether facility
is in compliance.
2. Determine enforcement
response to a violation.
3. Attempt to negotiate
settlement out of court.
4. Develop a civil or criminal
case.
5. Present the case in court.
Typical Technical Staff
Responsibilities
Gather information about
the nature and cause of the
violation, and what the
violator could have done to
prevent it.
Assess seriousness of
violation.
Prepare formal response.
Appear in court to defend
technical judgments about a
case.
Typical Legal Staff
Responsibilities
Obtain access to facility via
search warrant.
Assess whether the source has
violated the law. Determine
what legal action is possible.
Review formal response.
Appear in court to present
and argue the case.
Joint Responsibilities
Determine enforcement
action.
Negotiate settlement with
violating facility.
Discuss and gather evidence
needed for a civil or criminal
action. Negotiate with
facility. Prepare for hearings.
-
m
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i
o
rn
rn
<
m
1
3)
o
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Environmental requirements are changing and complex. Specialized training is often also
needed to build a depth of expertise in various program areas and to retrain staff as requirements
change or as program strategy is modified.
Fairness and equity are important elements of an effective enforcement program.
Training program staff in professional standards of conduct provides an important basis for
program credibility.
Use of Third Parties
Some enforcement programs use contractors or other third parties to perform certain
program functions, e.g., inspections. Third parties can be particularly useful:
• To compensate for shortages of government personnel.
• To ensure adequate staffing during stages of a program (e.g., the first round of
inspections) that require more personnel than usual.
• To work through backlogs.
• To provide specialized expertise that is not readily available within the government
agency.
Use of third parties raises several issues:
• Qualifications. There may need to be some means to ensure that these third
parties are suitably qualified and knowledgeable to perform inspections using the
procedures established by the program. For example, third parties can be required
to complete a particular training course, or to acquire a particular type of
certification.
• Confidentiality. Information acquired during an inspection is generally
confidential. Some mechanism will be needed to ensure that the information
gathered by third parties remains confidential.
• Fairness and Consistency. Information gathered during an inspection forms the
basis for a decision that a violation has occurred and an enforcement action should
be taken. Use of third party inspectors may raise concerns about whether decisions
made based on the results of third party inspections are consistent with decisions
made based on information gathered by program inspectors.
INFORMATION MANAGEMENT SYSTEMS
As discussed in earlier chapters, information on the regulated community, on violations,
and on program activities is important to program management. Such information is used to
develop priorities and strategies to most effectively use program resources (Chapter 4); to monitor
compliance (Chapter 6); to evaluate progress in meeting program objectives (Chapter 9).
An enforcement program will benefit by having some system for information
management. Systems vary in different environmental programs and different countries,
depending on the amount of information to be managed and on the resources available for
management. Where possible, computerized systems are valuable because they allow rapid and
sophisticated information storage, retrieval, and analysis.
Regardless of the kind of system, information management planning is important to
program effectiveness. Basic issues to address in planning include:
What information should be obtained?
Who is responsible for obtaining it?
Who is responsible for recording it?
How long should the information be maintained in the files?
What types of information analysis will be performed?
Who will perform these analyses and how frequently?
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• What, if any, information is confidential?
• What, if any, information should be released to the public?
In the Netherlands, the government has embarked on a two-year program to inventory the
compliance status of the 900 companies that hold permits for processing hazardous waste.
Inspectors complete a checklist for each company and transmit the results to a central comput r.
The information system is set up to generate sector-specific reports on compliance behavior,
permit quality, and environmental impacts. The inspectors have received intensive training,
supported by written materials, about how to obtain, record, and transmit data. The results ar;
being used to support policy development for hazardous waste processing.
PROGRAM FUNDING
Funding is clearly an important issue in establishing an enforcement program.
Enforcement programs in different countries use a variety of funding sources. These include:
• General Revenues. Many countries fund environmental programs, including
enforcement programs, by allocating funds from general revenues, e.g., income or
sales taxes on industry and/or private citizens.
• Pollution Taxes or Fees. Enforcement programs can be funded by taxes levied on
or fees charged to facilities based on the amount and/or toxicity of their pollution.
• Inspection Charge. Some programs obtain income by charging facilities for
inspections. This is the approach taken in Sweden.
• Permit or License Charge. Program income can be obtained by charging facilities
for obtaining a permit or license.
• Monetary Penalties. Policymakers will need to decide what will be done with
monetary penalties collected under the program. These can either be deposited in
a general government or environmental program fund, or used directly to pay for
enforcement program expenses. Using monetary penalties to pay program
expenses is an approach widely used by states in the United States but not as yet
by the national government. One concern with this funding source is that it may
cause the program to lose credibility if it appears that enforcement actions are
being taken to increase revenue. If the program is funded through penalties,
certain processes must be defined in regulations and procedures to ensure equity,
i.e., that the program penalty does not specifically target facilities for enforcement
because of the potential penalty revenue.
EVOLUTION OF ENFORCEMENT PROGRAMS
All enforcement programs evolve over time. This section gives examples of how some
established programs have evolved. These examples are not intended as models for evolution.
Rather they demonstrate that enforcement can be successful in the early stages of program
development. They also illustrate how enforcement programs do typically pass through many
different stages in evolution in response to lessons learned and changing conditions.
Enforcement as a Priority
The priority given to enforcement by the government is an important factor contributing
to the success of an environmental program. Both the United States and the Netherlands have
experienced periods where enforcement was not a priority and, consequently, the overall
environmental goals were not being met effectively. In both cases, these deficiencies catalyzed a
new emphasis on enforcement, with substantial improvements in environmental quality.
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In the United States during the late 1970s, the U.S. Environmental Protection Agency
conducted a major enforcement effort to bring the most significant violators into compliance.
This effort was highly successful. After 1980, however, there was a precipitous decline in the
number of federal civil suits and other enforcement activities due to a reorganization of the
program and a widely shared perception that enforcement was no longer emphasized by senior
Agency officials.
In a much-publicized turnaround, a new management team was brought to head the U.S.
EPA in the early 1980s. Enforcement strategies were reconstructed in 1984, and enforcement was
emphasized repeatedly by the new Administrator and his Deputy. However, this was not
sufficient. So, a new management apparatus was put in place to revitalize the enforcement effort,
and to systematize and restructure enforcement so that it would no longer be subject to the whims
of management. The U.S. EPA now has well-defined strategies, measures, and systems to manage
enforcement to an unprecedented degree. Enforcement continues to be a priority for the U.S.
EPA. This management emphasis on enforcement has provided an important foundation for the
program to evolve during the 1980s and early 1990s in response to the new challenges and
changing conditions.
In the Netherlands, many environmental scandals involving hazardous waste came to light
in the late 1970s and early 1980s. The nation's laws regarding hazardous waste were not being
complied with because there was no enforcement program. To improve this situation, the Dutch
government made enforcement a priority in 1984 by establishing an extensive Multiyear
Intensification Program (MIP). The program's main objectives were:
• Significantly improve the quality of enforcement at the national level by improving
the expertise and skills of MIP personnel, allocating more manpower and resources
to enforcement, improving the internal organization of enforcement resources, and
fostering cooperation among the different groups that would be involved in
enforcement.
• Involve officials at the provincial and local levels by developing their skills and
expertise, and by strengthening the Public Prosecutor, and increasing the
availability of the police force for enforcement.
• Construct a network of cooperation among all the agencies involved.
The program was implemented over a 6-year period and was instrumental in stimulating
enforcement at both the national and local levels. During this period, the national government
also developed a total environmental program, the National Environmental Policy Plan. This Plan
further strengthens enforcement by providing financial resources to the provinces and
municipalities to enable them to bring their permitting and enforcement activities up to an
adequate level over a 4-year period. Financial resources have also been made available to the
Public Prosecutor and the police to enable them to devote more attention to enforcement (under
criminal law) of environmental legislation.
Evolution of Authorities
Table 7-1 lists many authorities that may be of value to an enforcement program.
Enforcement programs typically begin with a much smaller number of authorities. Additional
authorities are added gradually by revising laws after the need for new authorities becomes
apparent from unsuccessful efforts to address problems. New authorities are sometimes added
based on creative interpretation of existing laws. Even the more mature programs such as those
in the United States continue to add authorities as previously unnoticed gaps are discovered and
as changes in environmental problems create a need for new authorities that were not previously
needed.
In Canada, for example, criminal enforcement has been the predominant enforcement
mechanism at the national level. Canadian laws have evolved to provide some very creative
criminal enforcement sentencing conditions. However, Canadian officials are now actively
considering the need for a complementary civil enforcement program. There is some discussion
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about whether existing Canadian laws provide sufficient authority to develop a civil enforcement
program.
Until recently in the United States, national enforcement programs were predominantly
civil in nature, even though certain general authorities could have been used for criminal
enforcement of environmental requirements (e.g., a general prohibition on defrauding the
government). Over time, the amount of criminal enforcement has increased as criminal
authorities have explicitly been strengthened in each of the U.S. environmental laws. New
authorities also have been added so that monetary penalties can now be imposed administrative ly
as well as through the courts in virtually all U.S. programs. Consequently, civil administrative
programs have significantly increased in importance.
Several U.S. environmental programs began with insufficient authorities to accomplish
their goals. For example, the first U.S. laws concerning hazardous waste did not provide autho :ity
to correct past environmental damage at ongoing hazardous waste operations. This authority was
subsequently added. The original Clean Air Act did not provide the federal government with any
authority to seek or impose monetary penalties. Consequently, program officials could only seek
court-ordered compliance schedules. An authority to impose monetary penalties was added
several years later.
Identifying the Regulated Community and Establishing Priorities
Enforcement programs with limited resources and information often begin by focussing on
the few sources that are causing the most severe environmental or public health problems. In the
United States, for example, national enforcement programs concentrated first on a relatively small
group of major sources to ensure that basic pollution controls were in place. Early enforcement
efforts also focussed on particular industries, such as the power and steel industries, so that
enforcement officials could build expertise and precedents for these key pollution sources.
Priorities became more sophisticated as the programs evolved. More recently, priorities are set
based on goals of reducing environmental and health risk and creating deterrence. In U.S.
programs, the need to strike a balance between establishing a broad enforcement presence in the
regulated community and targeting the most serious violators has been handled differently at
different times. Simple formulas, such as "inspect all major sources of air or water pollution at
least once a year," are being replaced by more tailored approaches that are responsive to local
priorities and needs.
Compliance Promotion
A fundamental issue in structuring an enforcement program is how much emphasis should
be placed on compliance promotion versus enforcement. The resolution of this issue depends
greatly on the culture and particular regulatory situation. The U.S. water discharge program
provides one example where compliance promotion alone was not as successful at achieving
compliance as compliance promotion combined with enforcement. Early efforts promoted
compliance by providing municipalities with subsidies to construct sewage treatment systems in
conformance with standards specified by law. Nevertheless, compliance rates were relatively lo\v.
Major results were achieved in a short time period once significant enforcement actions and
accompanying monetary penalties were imposed (see last section of Chapter 7).
Compliance Monitoring
A major issue for enforcement programs is training inspectors. Many enforcement
programs rely on-the-job training, with junior staff learning in the field from senior inspectors.
For completely new programs, many inspectors learn by experience with each inspection. As
experience is gained, inspection guidelines and checklists can be developed.
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The development of reliable self-reporting and self-monitoring systems also takes time.
This generally proceeds in several steps. For example, a first step can be to ensure that any
equipment needed for self-monitoring is in fact installed and operating. A next step can be
comparing results across sources to help target inspections. Another step is often development of
a system to manage the information so that it can be more easily accessed and used by program
personnel.
Enforcement Response
Policies for enforcement response evolve over time as experience is gained and new
authorities are added. In the United States, some enforcement policies are tested before being
made final. Some enforcement programs purposefully delay developing enforcement response
and penalty policies until they have some experience with the actual types of violations that are
emerging and with the best approaches for bringing sources into compliance.
Roles and Responsibilities
Several decisions will need to be made in structuring and implementing an enforcement
program: the degree of centralization versus decentralization; the role of technical staff versus
engineers; whether an enforcement program should cover several environmental media or focus
on one medium. Whatever decisions are made, program responsibilities often shift as a program
matures. For example, some centralized programs are eventually decentralized to take advantage
of expanded resources at the local level. Also, it may be appropriate to decentralize when
experience gained at the national level can be effectively transferred to the local level. Some
decentralized programs are centralized when differences among decentralized programs cause
problems in transboundary pollution or when some local programs may be limiting enforcement
to attract industry to the area.
The role of legal staff may diminish as programs evolve and clear tested legal language
and procedures have been developed and can be made routine. In the United States, for
example, administrative enforcement of many routine violations can now be implemented with
established policies and procedures and little attorney involvement.
Historically, U.S. federal enforcement programs have been structured along separate
program lines. Now there is greater emphasis on multimedia enforcement. Many U.S. state
programs, however, have always had multimedia programs. The United Nations Environment
Programme strongly advocates a multimedia approach to inspection.
Evaluation and Accountability
Many enforcement programs rely on anecdotal information to evaluate success both
internally and externally. Evaluating program success may not be a focus in new programs,
particularly if resources are limited and there is no public demand for information on
enforcement actions. U.S. enforcement programs now have a fairly complex system for
accountability and evaluation. This system evolved over time in response to the need to
effectively manage a decentralized program that retains centralized responsibility for oversight,
and also because of the highly public nature of this oversight process. Also, as resources for
enforcement have almost doubled from 14% of federal environmental personnel in the early 1980s
to 25% in the early 1990s, more attention is being paid to how well those resources are achieving
results.
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11. CASE STUDIES: PULLING IT ALL TOGETHER
INTRODUCTION
This chapter shows five examples of how the enforcement principles and tools described in
the previous chapters have been applied in real-life situations. Most of these case studies span
several years and illustrate how programs evolve over time. In several cases, there was limited
enforcement during the first years of managing an environmental problem. Enforcement became
a higher priority when substantial noncompliance was documented. In all cases, enforcement was
clearly effective in achieving significant increases in compliance and improvements in
environmental quality. The case studies show a wide variety of creative solutions to challenging
compliance problems.
• In the first case study, officials in Allegheny County, USA, developed several
innovative settlement mechanisms to help ensure compliance with air pollution
control requirements by facilities with financial limitations. This study also
demonstrates how the ability to supplement local efforts with support from higher
levels of government can provide the "muscle" needed to overcome challenging
obstacles and clear the way for more effective subsequent enforcement at the local
level. In addition, this study is a good example of how potentially adversial
relationships in enforcement and dispute resolution can be transformed into
resources for achieving success by creating forums for cooperation and dialogue
among interested, affected, and concerned parties.
• The second case study concerns enforcement, at the local level, of particular waste
disposal requirements in the Netherlands. It illustrates a creative approach that
enabled Dutch officials to achieve results despite staff shortages and time
constraints involved in the permitting process. The study also shows the
importance of considering social and economic factors affecting compliance.
• The third case study describes an evolving program in the Netherlands for
controlling disposal of liquid waste from ships. The program has achieved
significant initial success but still faces many challenges.
• The fourth case study, from the USA, shows how national and state enforcement
efforts succeeded in bringing local municipalities into compliance with wastewater
treatment requirements. With support from the Administrator of the U.S. EPA,
the states, the public, and the media, federal and state officials were able to create
a strong and effective enforcement presence, A carefully thought-out policy and
management approach guided the program from its inception. The program
permanently altered the common attitude that it was too difficult for the federal
and state governments to enforce against municipalities and that such enforcement
would not result in environmental compliance.
• The fifth case study concerns enforcement of lead regulations in the United States.
This example describes an enforcement program designed to achieve compliance
with requirements of an economic incentives-based approach to reduce the lead
content of gasoline. Enforcement seems to have had substantial deterrent power in
this case.
As these five examples illustrate, every environmental management situation is unique and
requires creative application of the many options described in this text to design an effective
enforcement program capable of achieving the desired results. These five case studies
demonstrate a range of possible approaches to enforcement, but are by no means inclusive. Many
other approaches exist. As stated Chapter 1, policymakers must make their own choices within
the parameters of the available resources and local cultural factors to develop an effective
compliance strategy and enforcement program in any particular situation.
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CASE STUDY 1: ENFORCEMENT OF AIR REGULATIONS IN ALLEGHENY COUNTY,
USA1
Introduction
Allegheny County is located in the state of Pennsylvania and is home to the City of
Pittsburgh (see Figure 11-1). Since the early nineteenth centuiy, the County has been a major
steel production center in the United States. Because of its industrial success, the area
experienced some of the worst air pollution problems in the country. The County was one of tho
first areas in the country to try to improve air quality and has been in many ways a model for
successful air pollution control. Control techniques and standards developed in the County have
become models on the national level. Air quality has substantially improved and no annual
standards for particulates or sulfur dioxide are now exceeded in the County. Violations of short
term standards are rare and are usually due to breakdown of control equipment. This
improvement in air quality is due to strict controls and to a decrease in steel and coke production
since the late 1970s. This case study reviews air pollution control in Allegheny
County with a focus on the two decades from 1970 to 1990, a period of increased environmental
concern and substantial economic change.
County Profile
Allegheny County, Pennsylvania, is located in the northeastern United States
(Figure 11-1). The County is approximately 731 square miles (1,893 square kilometers) in area,
with a population (in 1990) of just over 1.3 million (down from 1.6 million in 1970). Pittsburgh,
located in the center of the County at the confluence of the Allegheny, Monongahela, and Ohio
Rivers, is the County's largest city.
The County is located in the foothills of the Appalachian mountains, on a peneplain, i.e..
an elevated area flattened by glaciers. Three rivers have carved large valleys into the plain: the
Ohio River, the Allegheny River, and the Monongahela River. Weather systems often stall at the
Appalachian mountains to the east of the County, creating periods of stagnation in the spring,
fall, and sometimes the summer that last for several days. The area experiences about 170 to 200
inversions each year.
The area has been a major industrial center since the early 1800s. The primary industries
have been steel, coke, and related industries. There are also a few chemical plants in the County.
Coal was burned by residents until the early 1950s, when large gas lines were built to service the
area, and by coal-fired power plants (most of which are no longer operating due to the age of
some of the facilities and a decreased demand for power). Almost all homes and commercial
operations are now gas-fired. Industrial plants are generally located in the river valleys, and
residential sections at higher elevations. Of particular concern has been a 25-mile (40-kilometer)
stretch of the Monongahela River valley beginning in Pittsburgh and ending at the County line.
In the early 1970s, this section contained seven steel mills, including the world's largest coke plant.
The steel and coke industries were healthy until the late 1970s, when these industries
began to decline throughout the United States due to the availability of steel substitutes and the
import of coke. Production declined steadily in the late 1970s and early 1980s and has remained
relatively constant since the early 1980s. In the early 1970s, the County had 28 coke batteries; in
1991, only 19 of these were still operating. The County had nine steel mills in the early 1970s; in
1991, only four remained in operation.
1This case study was prepared in conjunction with Charles J. Goetz, Enforcement Division
Administrator, Allegheny County Bureau of Air Pollution.
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141
FIGURE 11-L
FLLEGHENY COUNTY
PENNSYLVRNia USR
Ohio River
PITTSBURGH
Allegheny River
Monongahela Rivery
miles
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Air Pollution Control Before 1970
During the nineteenth century, as Allegheny County developed into a major industrial
center, emissions from industrial and residential sources coupled with the area's frequent, stagn tnt
inversions caused severe pollution problems. At that time, the City was described as "hell with ts
lid off." Even up to the 1940s, the pollution was sometimes so dense that street lights in
Pittsburgh had to be turned on in the middle of the day.
The first efforts at air pollution control began in the late nineteenth century, but were
ineffective until the late 1940s, when a 1941 Pittsburgh smoke control law was finally enforced.
This ordinance regulated both industrial and residential combustion sources. One of the main
thrusts of the law was a requirement that both industry and residences burn clean fuels. Similai
pollution control measures were subsequently instituted in other parts of Allegheny County.
The Allegheny County Health Department took over the duties of the City Smoke Control
Bureau in 1957 and assumed responsibility for air pollution control throughout the County. In
1960, the County passed Article Xin, which established a Bureau of Air Pollution Control under
the Health Department and created some of the strongest paniculate control regulations in the
nation.
During the 1960s, residents and leaders in Allegheny County, as in other areas of the
United States, became increasingly concerned about the state of the environment. The state of
Pennsylvania authorized Allegheny County to regulate gaseous pollutants. The County passed a
new and more encompassing regulation, Article XVTI, in 1970.
Authority for Air Pollution Control, 1970-1991
On the national level, increasing citizen concern for the environment in the 1960s resulted
in the creation in 1970 of the U.S. Environmental Protection Agency (U.S. EPA), the federal
agency responsible for ensuring environmental quality. The 1970 national Clean Air Act required
the U.S. EPA to establish health-related National Ambient Air Quality Standards, and it required
each state to develop and enforce a State Implementation Plans (SIP) to meet these air quality
goals.
Because of Allegheny County's long involvement in air pollution control, the state of
Pennsylvania granted the County the authority to develop and implement the air pollution control
program for the County. The County proposed a program that was approved by the state of
Pennsylvania and subsequently by the U.S. EPA With these approvals, the County program and
regulations became part of Pennsylvania's SIP and are therefore enforceable by the county, state,
and federal governments. This relationship has been in effect since 1972. The state and federal
governments have become involved in enforcement only in situations where a state or national
presence was important to achieve results.
Allegheny County Air Quality Regulations, 1970-1991
In Allegheny County, regulations are developed by the County Department of Health.
They are submitted to the Air Pollution Advisory Committee (which includes representatives from
industry, academia, city government, and the public—see below} for review and comment. The
Board of Health then proposes final regulations to the County Commissioners who either appro /e
or disapprove the regulations, but may not change them. Because of the County's responsibility
as part of the SIP for Pennsylvania, County regulations must be approved by both state and
federal governments.
During the period from 1970 to 1991, Allegheny County has enacted and amended air
pollution control regulations several times, in response to changes in federal requirements and a.i
a result of lessons learned through implementation and enforcement of the air pollution control
program. Article XVIII was passed in 1972 in response to the 1970 national Clean Air Act, anc
amended several times in the next few years. Article XX was enacted in 1981 in response to tht
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1977 amendments to the national Clean Air Act. These regulations (and subsequent
amendments) govern air pollution control in Allegheny County in 1991.
Following are some examples of how the County regulations have been changed to meet
new federal requirements, to address newly discovered air pollution problems, and to improve the
enforceability of the regulations:
• A mechanism was provided to allow industrial growth in areas that do not comply
with air quality standards. The mechanism allows industrial growth in such areas
under certain specified conditions but only if the emissions from the new source(s)
are stringently controlled and there is a net improvement in air quality.
• Emission standards were established for hazardous air pollutants such as asbestos
and mercury.
• Regulations were adopted to address newly recognized air pollution problems, such
as emissions from the burning of waste-derived liquid fuels and emissions from
abrasive blasting to remove old paint (often containing lead) from bridges, water
tanks and other structures.
• Standards were established for paniculate emissions from "nontraditional" sources
such as roads, unpaved parking lots, and storage piles.
• Certain sources were required to install monitoring equipment to continuously
measure emissions and report the results to the County.
The Air Pollution Control Advisory Committee
The Air Pollution Control Advisory Committee (APCAC) was established by Article XIII
in 1960 to recommend changes to County air pollution control regulations and to advise the
County Bureau of Air Pollution Control and the County Board of Health on air pollution control
matters. The APCAC also provides a forum for citizen opinion about the performance of the
Bureau of Air Pollution Control and a forum where the public can air their general concerns
about air quality in the County. The APCAC is strictly advisory in nature. It consists of 19
persons, including representatives from academia, environmental and public interest groups, and
industry. All members are appointed by the County Commissioners. Industry representation is
limited to five members.
The Committee holds six to eight public meetings each year. The Committee reviews and
comments on proposed new or revised regulations developed by the Bureau of Air Pollution
Control. The Committee also reviews the County's portion of the Pennsylvania State
Implementation Plan, proposed air monitoring programs, and other proposals connected with
ensuring ambient air quality. The APCAC has provided an important mechanism for involvement
of the various sectors concerned with and affected by air pollution control. The up-front
involvement of these sectors in regulatory development has contributed to the success of
subsequent enforcement efforts.
Standards and Methods
The County regulations established emission standards and specific methods for
determining compliance. Both the nature of the standards and the specificity of the methods have
provided an important basis for effective enforcement.
Two Types of Emissions Standards. The regulations provide two main types of standards:
one type that is based on exact measurements of pollution (e.g., emission standards measured in
pounds per hour) and a second type that provides a more general gauge of pollution (e.g., opacity
of emissions). The first type is expensive and resource-intensive to measure, and often requires
some days of analysis before results are obtained. Compliance with the second type can be
readily determined (e.g., compliance with opacity can be determined by one inspector in about
one hour's time). The second type of standard has provided County officials with an important
and practical enforcement tool to help ensure compliance.
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SpeciGcity of Procedures and Methods. The County regulations define the procedures for
inspection and measurement. This has helped ensure that regulated industries are treated fair y
and that results are consistent (avoiding a situation, for example, where one method would fin i a
facility out of compliance while a different method would find that same facility to be in
compliance).
Enforcement Mechanisms
The County's air pollution control regulations were enacted with the realization that not
all regulated sources would automatically take the steps necessary for compliance. The Countv
therefore carries out an inspection program that evidences a real presence at the sources and tnat
enables the County to have a continuing awareness of each source's compliance status. In
addition, the County takes appropriate enforcement actions when necessary to ensure compliance.
The various regulations established a number of enforcement mechanisms that provided
County officials wish the authority and tools they have needed for successful enforcement. The
broad variety of mechanisms enabled County officials to negotiate agreements that could
realistically accommodate the technical and financial situation of a company while still providing
meaningful deadlines and disincentives for noncompliance.
Variance Board. One challenge of enforcement is often that a large number of facilities
are suddenly in violation when new regulations are issued. To handle this situation, Allegheny
County regulations established a five-person Variance Board in 1972 to review and approve
compliance schedules with noncomplying industries. The Board was appointed by the County
Commissioners and had to have at least one attorney, one engineer, and one public health
specialist. Facilities that were suddenly out of compliance when new regulations were passed v. ere
given a certain number of months to file a petition, with the Variance Board, that defined a plan
and schedule for coming into compliance. These petitions were reviewed in public hearings in
which the company would formally present its plan and the Bureau of Air Pollution Control and
the public would comment on the plan. The Variance Board would then decide whether to
accept the petition. This proved to be a very successful mechanism for ultimately achieving
compliance with regulations that immediately put many facilities out of compliance when the
regulations were first enacted. The Board was discontinued in 1981 because most industries were
in compliance by that time. Compliance programs for the remaining noncomplying sources were
usually established through the new regulations or by the Bureau of Air Pollution Control through
negotiations or administrative orders.
Ability to Seek Penalties. The regulations provide County officials with the ability to seek
penalties through a magistrate's court and through a Civil Penalty Hearing Board. In such
actions, the County presents its case and industry presents its case. Decisions can be appealed to
a higher court.
Ability to Issue Administrative Orders. County officials have found that the ability to
issue administrative orders has been an important element in the success of enforcement efforts.
Administrative orders have proven a valuable mechanism to circumvent lengthy court proceedings.
Many orders are consent orders, i.e., the facility agrees to the terms of the order. Some orders
have been unilateral- The company can appeal unilateral orders; in such cases, the County tries
to resolve differences through a negotiation process.
Ability to Negotiate Creative Settlements. The County has used several innovative
approaches in consent decrees to help ensure compliance:
• Performance Bonds. Some companies are asked to post a performance bond.
They forfeit the bond if they subsequently .fail to meet the terms of the consent
decree.
• Escrow Accounts. Some companies were required to establish special escrow
accounts to ensure that monies would be available to pay any penalties that might
accrue.
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• Research Requirements. In some cases, facilities are asked to perform a study to
determine how they could best come into compliance.
• Credit Projects. As a substitute for payment of a penalty, companies sometimes
agreed to reduce emissions beyond the levels required by the regulations.
• Delayed Compliance Orders. These orders set forth schedules for pollution
sources to achieve compliance but protect the sources from further enforcement
action as long as the sources remain on schedule with the orders.
• Stipulated Penalties. Some consent decrees and consent orders contain provisions
for the payment of stipulated penalties if the decrees or orders are violated. Such
provisions set forth agreed-upon fixed or graduated penalties for various types of
violations.
• Self-monitoring. Consent decrees often contain provisions for self-monitoring.
The goal of self-monitoring requirements is to increase the company's awareness
about their state of compliance with the hope that the company will then take steps
on their own to correct any violations. To encourage companies to accurately
record the data, self-monitoring data are rarely used by the County for
enforcement. Companies are required to report any violations they detect and, at
times, are permitted to reduce the amount of self-monitoring as a reward for, or in
recognition of, good performance. Self-monitoring, in effect, extends the limited
inspection resources of the County.
Ability to Consider Economic Factors. The County has used several approaches in its
enforcement actions that consider economic conditions or circumstances:
• Pilot Projects. In some cases where a company argued that certain measures were
not technically or economically feasible, the company and the County agreed that
the company would implement these measures on one or two of their plants as a
test of feasibility. Appropriate measures to bring the rest of the company's
operations into compliance were negotiated once the pilot results were obtained.
• Phased-in Approach. Companies are not always required to implement all control
measures at one time. Sometimes a phased approach has been negotiated.
• Extended Schedules. When a company would have genuine difficulties achieving
compliance with a standard schedule, extended schedules can be negotiated. In
one case, the County required installation of expensive controls ($30 to $40
million) that never really worked effectively. After a certain period of time, the
County began to negotiate with the company to install new controls. In return for
a commitment by the company to replace the old control systems, County officials
allowed the company to discontinue use of the old controls and use a relatively
inexpensive interim system while taking steps to install more effective equipment.
• Maximizing Existing Systems. In cases where a company was on the brink of
shutdown due to financial difficulties, the County often waived a requirement for
installing new equipment (which would likely have put the company out of
business) and instead required that existing control equipment be used as
effectively as possible.
• Deferred Control Expenditures. Certain economically depressed industries were
permitted to defer air pollution control expenditures for limited periods of time if
such monies were invested in new plants and equipment.
• Penalty Payment Schedules. Some companies in financial difficulties are allowed
to make penalty payments for violations over a period of time rather than paying
the entire amount of the penalty at the time the enforcement action was settled.
• Limited Life Policy. As an alternative to installing expensive pollution control
equipment, obsolete, violating facilities that are scheduled to be permanently shut
down are permitted to continue to operate for limited periods of time while using
interim control measures.
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Resources
The Bureau of Air Pollution Control's 199] budget was just over $3 million. About hi if
this budget comes from the federal government, $1 million from the County (derived largely from
property taxes), about $0.5 million from permit fees, and over $100,000 from penalties. A special
High Priority Fund provided by the U.S. EPA is set aside for high-priority projects. Budgeting for
using this Fund does not have to go through the normal County administrative budget process.
The Bureau of Air Pollution Control has a staff of 55 (as of 1991). The Bureau is divided
into four divisions (Enforcement Division, Air Quality Monitoring and Source Testing Division,
Engineering and Planning Division, and Computer Services and Data Analysis Division) and an
Administrative Services and Training Section.
Monitoring
Fifteen full-time staff of the Air Monitoring and Source Testing Division are responsible
for monitoring. The Division measures air quality using both continuous and intermittent
monitors.
Over the years ambient monitoring has become more sophisticated. The County now
operates a monitoring network of 39 sites monitoring six gaseous pollutants and four measures of
particuiates. The gaseous pollutants are sulfur dioxide, carbon monoxide, ozone, nitrogen oxides,
hydrogen sulfide. and benzene. Air quality is measured continuously by the monitors in the field
and collected about six times per minute by data loggers located at the sampling sites. A central
computer polls the data loggers once each hour using dial-up telephone lines to obtain real-time
data. This computer permanently logs the data and processes it for use. For example, the
computer processes the data by calculating an Index for sulfur dioxide, carbon monoxide, and
ozone that is used for daily reporting of air quality to the public.
There are four measures of particuiates. Two are continuous and two are intermittent.
One of the continuous methods, the tape sampler, was developed locally in the 1970s to provide
inexpensive reai-time hourly data and is used to calculate the particulate Index for the public.
The other samples fine (i.e., health-related) particuiates, referred to as PM-10, and is used at two
sites. Both types are connected to the central computer in a manner similar to the gaseous
pollutants.
The two intermittent particulate sampling techniques measure either total suspended
particuiates or the finer health-related fraction. These require sampling for 24 hours and then
several days for analysis of the filters in the laboratory. The filters are also used to determine
ambient levels of lead, benzo(a)pyrene, other heavy metals, chlorides, sulfates, and nitrates.
Although the federal standards for particuiates are for suspended, fine (i.e., health-related)
levels of particuiates in the air, the public is often concerned about dust falling on their property
from nearby sources. The County employs an inexpensive technique to help detect and screen
such problems. Dustfall cans are set out for 30 days and the dust collected is then weighed and,
often, examined microscopically in the laboratory.
Emissions
One important aspect of the Bureau's work involves tracking emissions from sources.
Several staff are assigned to developing and maintaining a computerized emission inventory. .Tie
inventory includes data on source names, types, locations, capacity, emission parameters, and
emission rates for both actual and allowable emissions. These data are often obtained by stac::
sampling. The County usually observes stack tests conducted by industries to assure correctness
and will split samples with the industries when doing its own laboratory analysis; however, the
County is capable of conducting its own tests when needed.
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The emission inventory data are often used in computerized diffusion modeling. The
modeling allows the County to predict air quality under various conditions by adjusting
parameters in the model, but modeling is difficult in Allegheny County due to its river valley
topography which is not simulated well by most models.
Inspection
Approximately 1,600 permits were issued to air pollution sources in Allegheny County in
1991. These include 100 to 150 major sources. About 200 sources are inspected each year.
Other, mostly smaller, sources are believed to be in compliance based on periodic or occasional
inspections, self-reporting, the nature of the operation, or the fact that no complaints have been
received.
Inspections generally focus on the major pollution sources. Historically, the federal
government has determined priorities for inspection. In 1991, Allegheny County submitted its
own priorities to the U.S. EPA for approval. The County has three full-time inspectors and one
engineer dedicated to inspecting coke plants; six engineers who inspect other industrial sources;
and four full-time inspectors who respond to citizen complaints. The number of plant inspectors
has stayed relatively constant since the early 1980s. Although there are fewer sources in 1991
than earlier, the inspections have become more complicated.
Most sources on the priority list for inspections are inspected at least once a year. A
typical inspection is unannounced, with the inspector spending about one day checking plant
records and control equipment. Some sources are inspected on an as-needed basis (e.g., when a
complaint is received). When an inspector finds a potential violation, he or she fills out a form
documenting the alleged violation, and provides a copy to the source and a copy to the Legal
Section of the Enforcement Division. The Legal Section determines whether a violation has
occurred and, if so, decides whether and how to pursue the case. The inspector may be called on
to obtain additional information and/or testify.
Role of the State and Federal Governments
To help implement Pennsylvania's State Implementation Plan, the U.S. EPA has supplied
funding to Allegheny County. Allegheny County has used these funds to hire additional staff and
to purchase equipment. The County has also received technical assistance from the U.S. EPA.
Generally, the state and federal agencies approve the County's regulations and air
pollution control program and then let Allegheny County manage and enforce the program. In
the early 1970s, however, the state and federal governments did become involved in a challenging
enforcement situation concerning coke plants. These sources were very large and difficult to
control. Because compliance required substantial emission reductions and investment in pollution
control equipment, the industry was generally unresponsive to initial enforcement efforts by the
County. The industry argued that it was not technologically possible to meet the standards. This
argument was difficult for the County to counter, since County officials did not have a broad
national or international knowledge about the available technology for reducing air pollution in
this industry.
The state of Pennsylvania and, eventually, the federal government became involved in a
series of joint actions against the major coke industry polluters. The national implications of the
case were another stimulus for federal involvement; effective enforcement in this part of the
country would send a signal to the coke industry in other parts of the United States that the
federal government was committed to taking whatever measures were necessary to achieve
compliance. As compliance was achieved, the state and federal governments reduced their level
of involvement. Now that most of the coke plants are in or near compliance, the County is once
again becoming fully responsible for enforcement.
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Role of Environmental Groups and the Public
Allegheny County has several environmental groups that have been active and effective
One of the most active groups, the Group Against Smog and Pollution (GASP), was formed in
1969. The County's progress in air pollution control is partly due to the efforts of environmental
groups to ensure public awareness and government action, and to their willingness to participai e
by serving in a voluntary capacity on the Advisory Committee and its various Subcommittees.
During the 1970s, enforcement was aided by strong public support for environmental
protection. In the 1980s, the primary public concern in the County shifted to employment and
economic development, which was sometimes a source of conflict. Nevertheless, concern and
support for protecting the environment remained strong.
Role of Industry
In the early 1970s, industry was at first resistant to compliance. Enforcement and
penalties were needed to demonstrate the government's commitment to achieving compliance.
Industry's role has reversed since that time. Most industries now recognize the need for air
pollution control, and their approach is to achieve compliance at a reasonable cost rather than
avoid compliance. Local industries now serve on the Advisory Committee and participate in
regulatory development. Their experience and expertise has been directed toward solving air
pollution p'roblems.
To the extent possible, industry has been allowed to choose how it will comply. For
example, if more than one type of control system will properly control emissions, industry can
usually choose the system it prefers. Industry is encouraged to be sensitive to citizen concerns, to
foster good community relations relative to environmental matters and to be acutely aware of the
impact of their emissions on their neighbors. The County acknowledges that in the final analysis
it is industry that actually reduces air pollution; the County attempts to provide public recognition
of companies that have exemplary environmental control programs or projects.
At least one enforcement program in the County encourages increased industry
involvement. There are three coke plants in the County. These plants have a combined total of
19 operable batteries. Each coke battery is usually inspected at least 30 times a year by County
inspectors. After the end of each calendar quarter, the County sends each plant manager a
written summary of the inspection results during that quarter along with an offer to "settle" any
violations through payment of penalties and/or taking appropriate remedial actions. County
technical and inspection staff meet with the plant operators during each quarter to review
performances, identify problem areas, and discuss corrective programs. This program has
contributed to an increased awareness of environmental performance by plant management and
production workers. In at least one case, the program has encouraged the use of problem-solving
teams in the plant to achieve performances that are significantly better than those required by the
regulations.
Results
In the early 1970s, air quality standards were often exceeded. In one location in the
Monongahela River valley, air quality exceeded the short-term paniculate standard about every
third day. About 12 times a year the County Health Department issued high air pollution alerts
that required industry throughout the valley to curtail production.
Enforcement efforts in the early 1970s required diligence. Court action was often
necessary to ensure that companies would live up to the terms of the consent decree they had
signed. As a result of the Bureau of Air Pollution Control's enforcement activities, industries
throughout the County began to install control equipment and take other measures to curb
pollution.
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By the mid-1970s, participate emissions had been reduced by 65% and sulfur dioxide
emissions by 57% compared to 1970 levels. Air quality continued to improve and, by the late
1970s, frequent air pollution alerts had ended.
In the 1980s, air quality has improved further due to continued strict enforcement efforts,
improved control actions by industry, and a general decline in industrial activity. By the late
1980s, there were no excedances of the annual average and only occasional short-term violations
usually associated with the breakdown of control equipment. The three-year average ozone
standard is exceeded about once a year.
In 1990, all of Allegheny County was in attainment of federal ambient air quality standards
for ozone, carbon monoxide, nitrogen dioxide, and lead, but not for sulfur dioxide and inhalable
paniculate matter. The annual average standards for inhalable particulars matter, sulfur dioxide,
and nitrogen dioxide were met. However, there were 12 short-term (24-hour) excedances for two
pollutants in 1990, compared with 14 excedances for three pollutants in 1989.
Factors Influencing Success
Many factors have contributed to successful air pollution control in Allegheny County
since 1970. County regulations clearly defined the standards and measurement methods. These
regulations also provided a variety of enforcement mechanisms that enabled County officials to
effectively take action against violators and to negotiate creative settlements that, while strict,
enabled companies to come into compliance within the limits of their resources. Also, the
Variance Board was important in helping County officials effectively manage enforcement of the
large number of companies that were suddenly in violation when the regulations were passed.
Strong public support for air quality provided a climate that supported enforcement efforts
and created a social pressure for compliance. The establishment of the Air Pollution Control
Advisory Committee created an important forum for cooperation and dialogue between the
various sectors concerned with or affected by air pollution control. This forum has helped turn
potentially adversarial relationships into a resource for effective regulatory development and
program implementation.
The relationship with the state and federal governments has also been an important factor.
Because the County is enforcing a federally sanctioned and required program, the federal
government has provided financial resources and technical assistance that have enabled the
Bureau of Air Pollution Control to hire additional personnel and purchase monitoring equipment.
Also, the involvement of the federal and state governments enabled the County to successfully
prosecute some particularly difficult enforcement cases, which sent a strong deterrent message to
other members of the regulated community.
CASE STUDY 2: RESPONSIBLE PROCESSING OF DERELICT CARS IN THE
NETHERLANDS
Introduction
Because the Netherlands is so densely populated, environmental problems are often
exacerbated. With the substantial growth in waste generation during the 1960s and 1970s,
available space for waste dumping was rapidly depleted, and existing dump sites began to cause
serious pollution problems. Consequently, dumping was no longer considered a responsible
disposal option.
An increasing number of people in the Netherlands have become involved in dismantling
old cars. As a result, the number of derelict cars has risen sharply, leading to three interrelated
problems:
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• Environmental Problems. Liquids (such as motor oil, coolants, and battery acid)
have contaminated the soil. Burning of old cars contributed to air pollution. The
large numbers of old wrecks also caused aesthetic problems.
• Economic Problems. Too many people have become involved in demolishing old
cars as a side line. Under these circumstances, environmentally responsible
operations could not be commercially viable.
• Social Problems. Many of those engaged in dismantling old cars have little respect
for authority. The wrecker yards generally operated without a permit and did not
comply with environmental requirements. The government tended to avoid
intervention since these groups could be expected to respond aggressively.
The environmental problems could be solved only if the economic and social problems
were tackled simultaneously. This case study examines how one province in the Netherlands, the
province of North Holland, developed and implemented a plan to solve the environmental
problems associated with derelict cars.
Regulations
The Waste Substances Act was enacted in the Netherlands in the late 1970s. Under this
Act, companies engaging in waste processing are required to have a permit. In judging whether a
company may be granted a permit, the authorities consider whether it is technically and
economically feasible for a facility to operate in an environmentally responsible manner. Thus,
this law provided the authority to tackle both the environmental and the economic problems.
Derelict Cars Plan
Each province in the Netherlands was asked by the national government to draft a plan
indicating how it would restructure wrecker yard operations. The province of North Holland had
its first plan ready in 1986. The plan aimed to promote:
• Efficient and thus commercially viable execution of demolition activities.
• Compatibility of the wrecker yards with land use plans.
• Environmentally responsible operations.
• As much recycling and reuse of old car parts as possible.
Implementation of the plan was expected to put many yards out of business. Reduced
competition would enable the remaining yards to do enough business to finance the measures
needed to protect the environment. The permit system provided an instrument for achieving
these aims, and subsidies were available to help close down unprofitable yards and, in some cases,
to take environmental measures.
Implementing the Plan in North Holland
The province's first inventory showed 198 derelict car sites. That number has since grown
to 210, partly due to reports by area residents and images on aerial photographs.
Comprehensive permitting followed by enforcement would have been the most important
means for realizing the plan's goals. However, a shortage of qualified officials, together with the
problems at the wrecker yards, made it likely that it would be many years before all the yards
were permitted. To prevent further environmental degradation, the provincial government and
the Public Prosecutor decided to bridge this period by presgribing so-called "rules of conduct" for
the yards (in anticipation of permit requirements at a later date). These rules prohibited the
burning of wrecks and cables, required that liquids be drained out of and batteries removed from
vehicles, and mandated responsible storage and disposal of oil. The provincial government
informed the wrecker yards in writing about the Waste Substances Act, the anticipated permit
requirements, and the rules of conduct.
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The provincial government also established an intensive inspection program. The
manpower and resources needed were estimated, and a computer system was set up to store and
process the results. The yards were inspected three times in the first year. The first round of
inspection provided information to the wrecker yards; the second and third inspections checked
for compliance with the rules of conduct.
Figure 11-2 summarizes the results of these inspections. When a violation was found, the
yard received a formal warning and the Public Prosecutor and police were notified. If violations
were found again during the third and following rounds, charges were brought. The first
inspections showed that only 50 percent of the wrecker yards were in compliance with the rules of
conduct. Since then this fraction has risen to 75 percent. Charges have been brought against 40
companies. Appropriate sanctions are being considered. Closure of the yards with repeated
violations is one option (under criminal law); imposition of fines for every day a yard is out of
compliance is another (under administrative law).
Sixty-five wrecker yards have been granted permits, and are being monitored for
compliance with the permit requirements. Thirty-five yards that applied for permits were refused.
and 70 permit applications are being processed. Thirty yards were provided with financial support
that enabled them to cease their activities, and an additional 10 stopped on their own initiative.
Conclusions
Dutch authorities have drawn several conclusions from this case study:
• Environmental problems cannot be solved in isolation from other social problems.
• Solving these problems requires time, manpower, and perseverance.
• Implementation requires a good written plan with attention to permitting and
enforcement.
• The plan must indicate the amount of manpower and resources needed for its
implementation.
• Activities should be planned and monitored; the approach should be evaluated
periodically.
• Phased introduction of the requirements the companies have to meet raises the
companies' motivation to comply and allows the manpower available for
enforcement to be used more effectively.
• Clear and consistent enforcement is essential to achieve compliance; successful
enforcement requires that agreements be made with the agencies involved (the
environmental department. Public Prosecutor, and police).
• Execution of the plan was aided by the availability of financial support.
CASE STUDY 3: COLLECTION AND PROCESSING OF HAZARDOUS WASTE FROM
SHIPS IN THE NETHERLANDS
Introduction
Liquid wastes from ships, such as used oii, bilge oil and bilge water, slobs, washwater, ana
ballast water, can cause major environmental problems if they are not collected and processed in
a responsible way. In the Netherlands there are 1.7 million tons of wastewater containing oil and
300,000 tons of hazardous waste from both ocean-going ships and ships confined to the inland
waters. Discharge of these wastes into surface water causes a real environmental burden. Until
recently it was unclear how the ships were getting rid of these wastes. There were also no clear
regulations that could be used to tackle this problem. Analysis of the problem showed that:
• A large number of companies collected this type of waste. Consequently, the
market was spread too thinly to allow for commercially viable collection in all
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Percentage (100% = 163)
60
50 -
40 -
30 -
20 -
10 -
Key to Type of Violation
1—Burning residues found
2—Battery in wreck
3—Incorrect battery storage
4—No soil protection under battery storage
5—No suitable containers
6—Recent overflow
7—Incorrect disposal of used oil/hazardous waste
8—Wrecks littered outside the yard
9—Piles too high
10—Incorrect LPG tank storage
11—Burning of used oil
2nd Round of Inspections in 1990
567
Type of Violation
1st Round of Inspections in 1991
10
! t
Projected Violations 1991
Figure 11-2. Percentage of Wrecker Yards in Violation of Requirements
in the Province of North Holland, the Netherlands, 1990-1991,
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in
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cases. The collection companies did not always have the financial resources to
undertake the necessary environmental investments. Bunker ships played a
significant role in collecting these wastes: they accepted oily waste streams, often
free of charge, as a service to their customers. However, it was unclear what these
bunker ships ultimately did with the hazardous substances they collected in this
way. The large number of companies involved made monitoring very difficult.
• The ships were required to deliver their wastes containing oil and/or chemicals to
companies with permits. However, the permit holders were not required to accept
the wastes. Only attractive loads were accepted. High fees were charged for
acceptance of other wastes. So it was not really surprising that a lot of this liquid
waste was discharged overboard, secretly, at night and during foggy weather.
• The large numbers of ships and their mobility made enforcement difficult.
• The ship operators and the government had different opinions about the danger
posed by the liquid waste. Ship operators tended to regard waste with a high oil
content as a product rather than a waste. If the liquid consisted mainly of water
with just a little oil, then the ship operators did not see any problem with dumping
it overboard.
The Decree on Collection of Wastes From Ships
A new regulation was developed to end to this situation. The decree on "hazardous wastes
from ships" became effective in 1985. Its purpose was to limit the number of permit holders
entitled to collect and process ship wastes, so that waste disposal would be more economically
viable and thus collectors and processors could afford to conduct their business in an
environmentally responsible manner. The regulation also made it mandatory for the permit
holders to accept waste. The new permitting system made it possible to distribute the collection
companies all around the country so that ships' operators could dispose of their waste legally no
matter where they were. A notification requirement for both the ship's operators and the
collection companies was included as an aid to enforcement. All these measures were designed to
substantially improve compliance and enforcement.
Enforcement Approach
By 1989, the restructuring of the collection and processing system was nearly complete.
The permits had been granted, and the ship operators had been informed about the new
regulation and had received a brochure with the names and addresses of waste collectors. The
time was ripe for intensive enforcement because:
• The regulated community understood the requirements.
• Inspections would reveal how effective the new collection system was.
Two types of inspections were conducted:
• Inspections of ships to check for illegal discharges and waste deliveries to
companies without the necessary permit.
• Inspections at the companies collecting and processing waste from ships.
The shipboard inspections were to be carried out on the water by the river police. The
government decided to hire a private agency to inspect the collection and processing companies
because:
• There was not enough skilled manpower available within the government at that
time.
• It was expected that a number of intensive inspection rounds would result in
radical improvements in compliance, so that less manpower would be needed for
future inspections.
• The inspections had to be started in the near future.
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An enforcement program was drawn up. The companies to be inspected were divided nto
two categories. One group, the collectors and cleaners, which collect for commercial purposes,
would be inspected three times a year. Most ship wastes end up with these companies. The o her
group, the bunker companies, terminals, refineries, and wharves, would be inspected twice a year.
Collection is a side line for them, often provided as a service to their clients.
The inspections were standardized, primarily to facilitate the subsequent transfer of
inspection activities from the private to the public sector, but also to help ensure clarity and
effectiveness. A checklist was developed to ensure standardization.
During the first year, inspections were performed to promote compliance by increasing
awareness of the program and informing companies if they were out of compliance. Companies
received written notice of violations. It was agreed with the Public Prosecutor that charges wo ild
be brought in the second year. A standard charge has been developed for this purpose.
Ninety companies have been inspected two to three times during the past year.
Enforcement Results
A comparison of the first and last rounds of inspections of collectors and processors
reveals a sizable improvement in compliance. Enforcement has had the expected effect. Many
companies have applied for and been granted permits, although they do not carry out any
activities in this area or, in the case of the bunker companies, perform them only as a service for
their best clients. The fees charged for collection and processing were found to vary widely.
The situation is not nearly as good with respect to prevention of illegal discharges. Forty
percent of ship operators admit to discharging wastewater containing oil illegally. They still sec
no reason to deliver watery waste streams to processors. They also believe that it is too much
trouble to dispose of their waste legally (because of long waiting times, or even detours).
They have major problems with the prices they have to pay, especially when they compare
the situation to other countries where waste can be disposed of legally without any charge.
The collection structure is not yet sufficient to prevent illegal discharges. The approach of
information-oriented inspections seems to have resulted in more clarity about the requirements
after collection. There is reasonable compliance with the rules applying to collection and
processing.
The creation of a free waste receival facility in every port would prevent illegal discharges.
The cost incurred for disposing of these wastes could be covered by the port mooring fees.
CASE STUDY 4: ENFORCEMENT OF MUNICIPAL WASTEWATER REQUIREMENTS IN
THE UNITED STATES OF AMERICA
Background
Under the Federal Water Pollution Control Act of 1972 and subsequent amendments, the
U.S. EPA established specific effluent limitations for municipal wastewater treatment plants. Ir
general, municipal wastewater treatment plants must provide a minimum of secondary treatment.
During the 1970s and much of the 1980s, the U.S. EPA provided substantial federal funding (uj
to 85% of the capital costs) to municipalities for construction of municipal wastewater treatmen1
facilities. Nevertheless, by 1977, less than half of all POTWs were in compliance with the
requirements. A 1979 program to address this problem was unsuccessful. Two factors
contributing to the failure were:
• The U.S. EPA readily extended deadlines for compliance.
• The U.S. EPA and the states were reluctant to enforce against municipalities tha'
had not received federal grants to build new facilities.
Several government studies revealed a severe noncompliance problem. The U.S. Congrt ss
and the public became increasingly concerned about the problem and, as a result, the U.S. EPA
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and the states created a work group in 1982 to develop a new strategy for dealing with municipal
noncompliance. This strategy was a sharp contrast to previous policies: Enforcement would now
be the key tool to achieve compliance, and al! municipalities were expected to comply regardless
of whether or not they had received federal financial assistance. This new policy — the National
Municipal Policy (NMP) — became effective in January 1984.
The policy was backed by amendments to the Clean Water Act that greatly restricted the
conditions under which extensions could be granted. The amendments allowed no extensions
beyond July 1, 1988.
Enforcement Activities
With the initiation of the NMP, enforcement by the U.S. EPA and the states became the
single most effective tool to bring POTWs into compliance. A List of noncomplying facilities was
developed, and the U.S. EPA and the states pursued enforcement against them. By 1987 almost
80% of all NMP facilities (including major and minor facilities) were under an enforcement order,
either administrative or judicial. After this point, all POTWs subject to enforcement action that
had not started construction were dealt with primarily by judicial action, since these facilities
would be incapable of meeting the July 1, 1988, compliance deadline. By the second quarter of
1988, almost 20% of all NMP major facilities were subject to judicial referrals (see Figure 11-3).
On average, NMP facilities received 1.5 state or federal enforcement actions. This means that
almost all NMP facilities have been under some sort of enforcement action.
Results
The NMP was a highly successful program targeted at 1,478 POTWs, many of which were
very large. Over 71% of these 1,478 facilities carnc into compliance by the July 1, 1988, deadline
for achieving required treatment (see Table 11-1). As of that date, NMP facilities were removing
an estimated 2.325 million more pounds (1.053 million more kilograms) per day of conventional
pollutants and 15,000 more pounds (6,800 more kilograms) per day of toxic pollutants than in
1984.
The NMP brought the total population of major treatment plants in compliance to 90%.
Even more impressive were the resulting environmental benefits. By 1984, 95% of the total
sewage processed in the United States was receiving secondary or better treatment, affecting 108
million people.
Some 650 (43%) of the 1,478 targeted facilities contributed to known water quality
problems and, consequently, were required to install advanced wastewater treatment technology.
Of these facilities, 525 POTWs, affecting an estimated 8,000 stream miles (12,800 stream
kilometers), met the July 1988 deadline because of the NMP.
Reasons for Success of the National Municipal Policy
The NMP owed its success almost entirely to direct enforcement efforts. Before the NMP
was implemented, municipalities typically believed that compliance was achieved by acquiring
grant funds. Permittees believed that the availability of federal funding was a key part of
determining whether the federal government and the states would enforce the regulations.
Enforcement actions did not follow a consistent pattern until the National Municipal Policy was
developed. The NMP program was successful largely because of several elements in the
enforcement plan:
• First, a team of U.S. EPA managers and staff was specifically assigned to make the
effort succeed.
• Second, the media, public, and the Administrator of the U.S. EPA supported the
NMP.
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% NMP Facilities Under Enforcement Action
01
(II
100
80
Federal/State Administrative
Orders (AOs)
Compliance with AOs
••••••i
Judicial Referrals
1 2 3
1988
Quarters
Figure 11-3. Enforcement Actions vs. Compliance.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 157
TABLE 11-1. COMPLIANCE STATUS OF NMP FACILITIES
(as of July 1988)
Number
Percentage
Total Major POTWs 3,731
Not in Compliance by 1984 1,478 100%
In Compliance by 1988 1,055 71%
On Enforceable Schedule by 1988 235 16%
Judicial 195
Administrative 40
Not on Enforceable Schedule by 1988 188 13%
Judicial - Filed 60
Judicial - Referral, not Filed 38
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158 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
• Third, the media gave wide coverage to enforcement initiatives and penalty results
• Fourth, a unified state/federal policy was established at the outset and the states
generally supported the strong enforcement measures.
• Fifth, the program established a fixed universe of facilities to target and tracked
individual facilities on a case-by-case basis, continuing to pressure facilities until
compliance was reached.
• Sixth, there was a clear statement and follow-through on the policy that there was
no link between grant funding and statutory compliance.
All these factors produced a strong and effective enforcement presence. The NMP set
examples and precedents through federal and state enforcement actions and through favorable
rulings on important cases. These cases and the significant penalties associated with them
permanently altered the commonly held attitude that it was improper for the U.S. EPA and the
states to enforce against municipalities. For the first time, enforcement actions and penalties
became realistic expected responses to noncompliance, and this created the possibility of future
benefits from deterrence among municipalities.
CASE STUDY 5: ENFORCEMENT OF MARKETABLE REDUCTIONS OF LEAD IN THE
UNITED STATES OF AMERICA
Background
Because of the clear adverse effects of lead on human health, the U.S. EPA embarked on
a program (the Lead Phasedown Program) to reduce the lead content of gasoline. Gasoline lead
was first controlled in the United States in October 1979 by limiting the average concentration
permitted in a refinery's total gasoline pool. As knowledge of the severity of the negative health
effects of lead grew, the U.S. EPA evaluated the effectiveness of these regulations, and in
October 1982, created tighter standards and a trading system that allowed refineries requiring less
lead than the standard to sell their excess to other less technologically advanced refineries.
In 1985, the standard for lead was tightened further, and a banking system was introduced.
Under the banking provisions, a refiner was allowed to store in a bank account the difference
between the standard and the larger of either actual lead usage or 0.10 gplg (grams per leaded
gallon). The banked lead rights were available for use or transfer to other refiners or importers
during any future quarter through 1987.
Enforcement Activities
Compliance was monitored through a self-reporting system. The U.S. EPA checked the
internal consistency of reports and corroborated them with independent reports from
manufacturers of lead additives. At the end of 1986, the U.S. EPA began conducting the first
full-scale audits of refiners.
In the Lead Phasedown Program, a high degree of voluntary compliance could have been
expected because detection was more likely based on the required self-reporting which could be
corroborated with an outside source of information (manufacturers of lead additives) to verify
refiners' reports. Further, the regulated universe was primarily large refiners that were
vulnerable to public opinion. The danger from lead toxiciry was becoming a prominent public
concern, which increased the likelihood of public condemnation of violators. However, two
factors reveal that voluntary compliance was far below a desirable level:
• The initiation of the audit program late in 1986 revealed substantial
noncompliance.
• Violations fell sharply after the audit program had been in place long enough to
exert a deterrent effect (see Figure 11-4).
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Number of Violations
25
20 -
15 -
10 -
5 -
0
Audit Detections
Self-Reported Detections
1985
1986
Quarters
1987
1988
Figure 11-4. Violation Frequency by Quarter of Occurrence.
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160 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Distribution of violations through time shows that audits uncovered earlier instances of
severe noncompliance while deterring new violations. In 1985, before the initiation of audits,
violations were at their highest level, probably because of the opportunities for illicit profit
presented by the accumulation period of the banking program. Most of these violations went
undetected until EPA initiated the audit program in late 1986.
Many of the violations detected through audits were large, and the enforcement actions
taken against the violators were given wide publicity. During 1987 when publicity would have
drawn the attention of potential violators, there was a sharp decline in new violations to a level
about one-third of that seen in 1986 (see Figure 11-4). This pattern suggests that the audits anc
the resulting Notices of Violation (NOVs) successfully reduced new illegal activity through their
deterrent effect.2 This pattern occurred even though the audit program had become more
sophisticated in 1987 and therefore more likely to detect violations.
When audits were initiated, the penalty policy was changed to make violations much moie
costly to the perpetrator. This also helped deter violators. For example, 17 NOVs were issued in
1987 after the audit program was introduced. A total of $54.4 million in penalties had been
issued by the autumn of 1987, 18 times the average of the previous four years. The largest
settlement during this period was for over $2 million.
Results
By the end of 1987, the Lead Phasedown Program as a whole had removed a cumulative
total of 380 billion grams of lead from gasoline production (see Figure 11-5). Enforcement
actions were responsible for removing 150 million grams of these 380 billion grams in the form of
lead rights that had been permanently removed from the market. This reduction represents
health benefits (see Table 11-2) estimated to be worth about $40 million (in 1983 dollars).
Deterrence
The principal elements generally considered necessary for deterrence were strongly present
in this enforcement program. First, there was a credible likelihood of detection. Before
regulations became complicated enough to require audits, monitoring was easy because the
number of regulated entities was reasonable and lead manufacturing reports were available as an
independent source of information on the extent of compliance. Banking and trading made
detection of violations difficult, which correlated with an increase in violations during this period
The introduction of individual audits made detection of violations much more probable once
again, and violations dropped.
Second, the consequences of detection were serious. With the initiation of audits for
individual operations, a new penalty policy in mid-1986 that raised penalties, and the resulting
high settlements, the consequences of violating the law became quite significant.
Third and fourth, the audit program ensured a fair and quick response: audits revealed
violators immediately, using a consistent standard of tests applied to each refinery audited
anywhere in the country. NOVs resulting from the audits received wide publicity in both the
public media and trade press. For an industry dominated by large companies vulnerable to public
opinion, negative publicity was very effective. The combined presence of these elements created
the necessary environment for successful deterrence.
2This drop in detected violations may also be explained in part by the fact that suspected
violators were targeted for audits first. As time went on, refineries were more randomly
selected for audits.
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Lead Use (billions of grams)
200
Actual Lead Use
Lead Use without LPP
150
100
'
50
1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988
Years
m
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Figure 11-5. The Effect of the Lead Phasedown Program (LPP) on Lead Use.
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162 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEK ;ENT
TABLE 11-2. ESTIMATED HEALTH BENEFITS FROM THE 150 MILLION
GRAMS OF LEAD REMOVED FROM GASOLINE PRODUCTION
AS A RESULT OF DIRECT ENFORCEMENT
Estimated Number of
Condition Cases Eliminated
Cases of adult hypertension 7,417
Myocardial infarctions of adult males 22
Strokes - adult males 5
Deaths - adult males 21
Children with blood levels of 30 ug/dL 202
Children with blood levels of 25 ug/dL 674
Children with blood levels of 20 ug/dL 2,225
Children with blood levels of 15 ug/dL 6,859
lmg/dL = micrograms per deciliter
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Conclusion
The Lead Phasedown Program forced refineries to reduce lead use in gasoline through a
series of tighter regulations between 1979 and 1985. At the same time, the program introduced
new methods of compliance including trading of lead rights, and later, banking of these rights —
methods of compliance that offered flexibility, but made detection of violations more difficult.
Although the emission reductions from direct enforcement were large, the sharp decline in new
violations after 1986 suggests that enforcement had an even larger impact through deterrence.
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165
12. INFORMATION RESOURCES
The following list of information resources includes references that were used in writing this text, as
well as other references on enforcement that may be of interest to the reader. Additional references
will be added periodically.
INTERNATIONAL SOURCES
U.S. Environmental Protection Agency and Netherlands Ministry of Housing, Physical
Planning and Environment. 1990. International Enforcement Workshop Proceedings. Utrecht,
The Netherlands, May 8-10. This two-volume publication contains papers presented at the
International Enforcement Workshop held from May 8-10 in Utrecht, the Netherlands.
Workshop participants included environmental officials from foreign countries and
international organizations. Papers were presented by these participants on domestic
enforcement program strategies, tools and management systems; domestic intergovernmental
enforcement relationships; international transboundary pollution problems; and enforcement
of international agreements. Volume I is 349 pages long and contains 22 papers. Volume II
is 133 pages long and contains additional papers, remarks delivered at the workshop, a
summary of the discussions, and a list of speakers and participants. Copies can be obtained
from:
Compliance and Policy Planning Branch
Office of Enforcement (LE-133)
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
USA
(Telephone: 12022607550)
Netherlands Ministry of Housing,
Physical Planning and Environment
(VROM)
Hoofdinspecteur
Postbus 450
2260 MB Leidschendam
The Netherlands
(Telephone: 31 70 317 4174)
Organisation for Economic Co-Operation and Development, Environment Committee. October 29,
1986. Improving the Enforcement of Environmental Policies. ENV(86)20. This 53-page
document focuses on enforcement in environmental quality management and how it can be
improved. The differences in environmental enforcement approaches among OECD countries
are discussed. Three case studies on enforcement in the Netherlands, United States, and
United Kingdom were also prepared for OECD:
• Lee, Norman. 1984. lite Enforcement of Environmental Policies in the United Kingdom.
ENV/ECO/84.5.
• Suurland, Jan. June 1984. Regulatory Reform of Environmental Policy in the
Netherlands. Background paper for the OECD International Conference on
Environment and Economics.
• Wasserman, Cheryl E. 1984. The Enforcement of Environmental Policies in the United
States. ENV/ECO/84.6.
Copies of OECD documents can be obtained from:
Organisation for Economic Co-operation and Development
Environment Directorate
2, rue Andre-Pascal
75775 PARIS CEDEX 16
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166 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
France
(Telephone: 45 02 77 00)
International Chamber of Commerce. June 1989. Environmental Auditing. Publication 468, ISBN
No. 92-842-1089-5. This 25-page publication gives the ICC's position on environmental
auditing, and discusses the meaning of the concept of environmental auditing, the
responsibility for audits, and the methodology that should be followed when conducting
audits. Available in English, French, German, and Spanish. Copies can be obtained from-
International Chamber of Commerce
The World Business Organization
38, cours Albert 1"
75008 Paris
France
(Telephone: 49 53 28 28)
SOURCES FROM THE NETHERLANDS
Gerardu, Jo J.A. October 1989. Experimental Projects Development Enforcement Chemical Waste Act.
This 10-page document discusses the experimental projects in the Netherlands that were
executed within the framework of the Multi-year Intensifying Programme Enforcement
Chemical Waste Legislation. (*)
Gerardu, Jo J.A. September 1989. Enforcement Training. This 6-page document provides an
overview of training to improve enforcement in the Netherlands. Participants have included
Ministry, provincial, and municipal officials, the police, and water quality controllers. (*)
van Ommen, Cees F. October 1989. Compliance Monitoring of National Environmental Legislation.
This 10-page document discusses monitoring, by the Environmental Inspectorate of the
Netherlands, of compliance with the Hazardous Waste Act, the Herbicides Act, and the Toxic
Substances Act. Three kinds of monitoring are discussed: visual inspection, sampling, and a
thorough audit-like inspection. (*)
Ministry of Housing, Physical Planning and the Environment, Chief Inspectorate for Environmental
Hygiene, Main Department for Enforcement of Environmental Legislation. April 1989. Main
Points of the Third Progress Report on Developments with Regard to the Enforcement of
Environmental Legislation. This 24-page document summarizes the Third Progress Report on
the Development of Enforcement of Environmental Legislation, presented to the Second
Chamber of Parliament of the Netherlands in October 1988. Available in Dutch only. (*)
Ministry of Housing, Physical Planning and the Environment, Chief Inspectorate for Environment a!
Hygiene, Main Department for Enforcement of Environmental Legislation. April 1989. The
Fourth Progress Report on Developments with Regard to the Enforcement of Environmental
Legislation. This document summarizes The Fourth Progress Report of the Development of
Enforcement of Environmental Legislation, presented to the Second Chamber of Parliament of
the Netherlands in August 1991. (*)
Lefevre, Hans E.G. October 1989. Continued Enforcement Intensification Programme (VHIP). Thi.- 6-
page document discusses the so-called VHIP. In 1984 the government of the Netherlands
began intensifying environmental law enforcement, starting with hazardous waste as a top
priority. After several years the need was felt to extend enforcement priorities and activities
to other sectors. The VHIP focuses on improving enforcement (through structuring,
intensification, and integral multimedia approaches) and setting enforcement priorities. (*;
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Lefevre, Hans E.C. September 1990. Enforcement of Environmental Regulations in the Netherlands, in:
International Environmental Reporter, volume 13, number 10, pages 401-408. This article
reviews the development of the enforcement of environmental legislation in the Netherlands
within the context of the present state of the country's environmental problems and policies,
and the importance of enforcement in the regulatory chain. (*)
National Institute of Public Health and Environmental Protection. March 1989. Concern for
Tomorrow, A National Environmental Survey, 1985-2010. This 12-page document gives an
overview of the national environmental situation in the Netherlands and an extrapolation to
the year 2010. (**)
Ministry of Housing, Physical Planning and the Environment, May 1989. To Choose or to Lose:
National Environmental Policy Plan. This 258-page document describes the Netherlands'
medium-term strategy for environmental policy. (***)
Ministry of Housing, Physical Planning and the Environment. May 1989. National Environmental
Policy Plan Plus. In conjunction with the National Environmental Policy Plan, this 107-page
document sets forth the main lines of environmental policy for the 1990s: the strategy and
objectives and, for the period 1990-1994, the measures which are to be taken to bring
sustainable development within reach in the Netherlands. (***)
Copies can be obtained from:
(*) Netherlands Ministry of Housing, Physical Planning and the Environment
Chief Inspectorate for Environmental Hygiene
Main Department for Enforcement of Environmental Legislation
P.O. Box 450
2260 MB Leidschendam
The Netherlands
(Telephone: 31 70-3172618)
{**) National Institute of Public Health and Environmental Protection
P.O. Box 1
3720 BA Bilthoven
The Netherlands
(Telephone: 31 30-749111)
(***) Netherlands Ministry of Housing, Physical Planning and the Environment
Department for Information and International Relations
P.O. Box 20951
2500 EZ The Hague
The Netherlands
SOURCES FROM THE UNITED STATES
U.S. Environmental Protection Agency, Office of Enforcement. May 1984. Agencytvide Compliance
and Enforcement Strategy and Strategy Framework for EPA Compliance Programs. This 50-page
document establishes the U.S. EPA's strategic frameworks for improving environmental
compliance and enforcement programs.
U.S. Environmental Protection Agency, Office of Enforcement. February 1991. Enforcement Four-
Year Strategic Plan: Enhanced Environmental Enforcement for the 1990s. 21E-2001. This 77-
page document is the result of a collaborative effort between the U.S. EPA's Office of
Enforcement and the Agency's media compliance programs. It provides a plan for
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168 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
maintaining a strong and successful environmental enforcement program in the United Stat. s
throughout the 1990s and into the next century.
U.S. Environmental Protection Agency, Office of Enforcement, February 1989. Basic Inspector
Training Course: Fundamentals of Environmental Compliance Inspections. This lengthy text
discusses the legal, technical, administrative, and communications aspects of performing
inspection work for U.S. EPA-administered statutes. It is designed for use with a classroom
training course.
U.S. Environmental Protection Agency. October 1990. RCRA Civil Penalty Policy. This 110-page
paper discusses the methods that the U.S. EPA uses to assess civil penalties for environmental
violations under the U.S. Resource Conservation and Recovery Act (RCRA). (Enforcement
penalty policies and guidance for other U.S. EPA environmental programs are available and
can be obtained from the address below.)
U.S. Environmental Protection Agency, Office of Enforcement. August 25, 1986. Revised Policy
Framework far State/EPA Enforcement Agreements. This 46-page document outlines EPA's
policy framework for implementing an enforcement relationship between the states and the
federal government. It discusses implementing the framework through national program
guidance and regional/state agreements.
U.S. Environmental Protection Agency, Office of Enforcement. February 25, 1991. Interim Policy on
the Inclusion of Pollution Prevention and Recycling Provisions in Enforcement Settlements. This
12-page memorandum describes U.S. EPA's policy to encourage the use of pollution
prevention and recycling in enforcement settlements.
U.S. Environmental Protection Agency, Office of Enforcement. February 12, 1991. Policy on the Use
of Supplemental Environmental Projects in EPA Settlements. This 13 -page memorandum
describes the U.S. EPA's policy to include, in enforcement settlements, projects that
remediate the adverse public health or environmental consequences of the violations at
U.S. Environmental Protection Agency, Office of Enforcement. November 14, 198_. Final EPA
Policy on the Inclusion of Environmental Auditing Provisions in Enforcement Settlements. This 68-
page document provides guidance on selecting enforcement cases in which the U.S. EPA win
seek to include environmental auditing provisions in the settlement terms. This document
also includes U.S. EPA's Policy Statement on Environmental Auditing. (Other resource
documents on environmental auditing are available from the U.S. EPA at the address below, )
U.S. Environmental Protection Agency, Office of Enforcement. November 1990. Summary Report:
Enforcement Effectiveness Case Studies. This brief report provides additional information about
case studies 4 and 5 described in Chapter 1 1 of this text.
U.S. Environmental Protection Agency, Office of Enforcement. September 1990. Environmental
Criminal Enforcement: A Law Enforcement Officer's Guide. This 27-page booklet explains the
structure of EPA's environmental law enforcement apparatus, as well as the methods of
enforcement and how they function. It emphasizes the role of law enforcement officers in
environmental enforcement.
U.S. Environmental Protection Agency, Office of Enforcement. March 1990. Environmental
Enforcement: A Citizen's Guide. This 33-page booklet is similar to the Law Enforcement
Officers' Guide, described above; however, this document emphasizes the citizen's role in
environmental enforcement.
U.S. Environmental Protection Agency. 1990. Enforcement in the 1990s Project. This report presents
the findings and recommendations from the U.S. EPA's Innovative Enforcement Work
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 169
Group. Innovative tools for environmental enforcement, such as environmental auditing,
alternative dispute resolution, and risk-based pollution preventative enforcement are
discussed.
U.S. Environmental Protection Agency, Office of Water. 19 . Guidance for Developing Control
Authority Enforcement Response Plans. (Enforcement response policies and guidance for other
U.S. EPA environmental programs are available and can be obtained from the address
below.)
Wasserman, Cheryl E. 1992. Federal Enforcement: Theory and Practice, Pages 21 -51 in:
T.H. Tietenberg, ed., Innovation in Environmental Policy: Economic and Legal Aspects of
Recent Developments in Environmental Enforcement and Liability. Part of Wallace E. Gates,
ed., New Horizons in Environmental Economics Series, Edward Elgar Publishing Ltd., Grower
House, Cross Road, Aldershot, Hampshire, England. This paper presents a review (in the
context of environmental economics) of the theories that local, state, and federal regulators
and law enforcement personnel use in implementing enforcement programs. The differences
between theory and the reality of implementation practices also are discussed.
Fora copy of the U.S. publications or for further information, write to:
Compliance and Policy Planning Branch
Office of Enforcement (LE-133)
U.S. Environmental Protection Agency
401 M. Street, SW
Washington, DC 20460
USA
(Telephone: 1 202 260 7550)
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MEMBERSHIP IN THE EUROPEAN ECONOMIC COMMUNITY: WHAT IT MEANS FOR
ENVIRONMENTAL REQUIREMENTS AND ENFORCEMENT
RICHARD MACRORY
Denton Hall Professor of Environmental Law, Imperial College, London
"Community environmental legislation will only be effective if it is fully
implemented and enforced by Member States"(1)
1 THE POLITICAL SIGNIFICANCE OF ENFORCEMENT
Political attitudes among Member States towards the implementation and enforcement of
Community environmental legislation currently present a somewhat confusing and contradictory
picture. In theory, the implementation of Community obligations should present no greater
difficulties than those experienced with any set of national or regional laws. Community laws are
not imposed "top-down" on unwilling or reluctant national governments. The governments of
Member States continue to play the critical legislative role in agreeing to proposed Community
legislation through the Council of Ministers, and nearly all Community legislation in the field of the
environment to date has been agreed by unanimous voting by Member States. In legal theory,
Community legislation, once agreed, is supreme over national law, and national courts and public
administrations are obliged under Community law to resolve any discrepancies between national
and Community law in favour of the latter, even to the extent of ignoring national law which is
clearly incompatible (2). Yet it is clear that the implementation of Community environmental
obligations within Member States falls well short of perfection. Increasingly in recent years the
European Parliament (3) and the Council of Ministers have stressed the importance of ensuring
that Community law is fully implemented within Member States(4). The Treaty of Rome provides
tor particular procedures aimed at ensuring full implementation by Member States of Community
obligations which are described later in this paper, while the European Court of Justice has
developed its own legal principles aimed at achieving greater integration of Community law into
national legal systems. Various new institutional and procedural arrangements in the
environmental field are now under active discussion at political level, pushed as much by
individual Member States as by Community institutions. The motivation for these proposals
cannot always be attributed purely to altruistic desires to secure environmental improvements
within the Community - the perception (right or wrong) by one Member State that jt is complying
with Community law while others are not thus leading to possible competitive disadvantages
provides a compelling motive to push for more effective arrangements to secure compliance
throughout the Community.
Yet there are contradictions apparent at present. Member States may subscribe to the
concept of the supremacy of Community law and the need for improved machinery to ensure
implementation, but are often resistant if this implies interference with national administrative
arrangements for enforcement. Community enforcement proceedings taken against Member
States in some areas have been characterized as interfering with the "nooks and crannies" of
decision-making at national level. The Danish referendum result on the Maastricht Treaty this
year and the apparent incompatibility between those Member States who wish to speed up the
expansion of the Community to include other European countries and those who aspire to a
deeper union among existing Members is causing something of a re-assessment of the role of
Community law and policy. Under the current Treaty the only explicit reference to "subsidiarity"
as a principle upon which to delineate the boundaries of Community and national competence
appears in those provisions dealing with the environment (5), while the proposed amendments
under the Maastrict agreement would apply this principle to all areas of Community policy but in a
stricter form (6). In recent months, the environment has been singled out in some circles as an
area ripe for firmer application of this principle, and there has been discussion in political circles
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172 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
by some Member States, aided apparently by some quarters of the European Commission, of
the need to repeal a number of existing Community environmental laws, including those relating
to drinking water standards and environmental assessment. Interestingly, these two examples are
precisely areas where there have been some especially rigorous enforcement proceedings taKen
against Member States by the Commission.
2 THE NATURE OF COMMUNITY ENVIRONMENTAL LEGISLATION
The development of explicit Community environmental policies begun only in 1972
following the Stockholm Conference on the Environment, and the decision of the then Heads of
Government of Member States that the Community must develop an environmental dimension.
Since that time, a large body of Community laws and policies have been agreed (around 300
individual items), and in terms of the sheer amount of legislation that now exists the programme
must be considered one of the success stories of the Community. Until amendments were made
to the Treaty of Rome following the Single European Act, the Treaty possessed no specific
provisions relating to the environment, and since all Community legislation must derive its
authority from the Treaty pre-1987 environmental legislation was based either on Art 100
(approximation of national provisions directly affecting the common market) and/or Art 235
(residual power to take measures to achieve one of the objectives of the Community) (7). Despite
the specific Articles relating to the environment inserted into the Treaty in 1987, the choice of
legal basis for new measures continues to be a significant issue and a source of tension between
the Commission and the Council of Ministers in certain areas, since there are now critical
differences in the legislative process between measures based on Art. 130s (environment -
unanimous voting at Council level) and Art 100A (approximation of provisions to achieve internal
market - qualified majority at Council level) (8).
Community environmental laws cover a broad range of subject areas, and have employed
a variety of distinct policy approaches. Detailed product standards are found in the field of air and
noise pollution (vehicle emission standards, fuel standards, noise standards for motor vehicles,
aircraft, construction plant etc.). Water pollution legislation has largely been based on three key
approaches - minimum emission standards for discharges of certain dangerous substances and
from specific types of work (e.g. municipal sewerage), environmental quality objectives for various
categories of water and water use, and finally what is essentially a product standard for water
intended for human consumption. Air pollution legislation has similarly been based on both air
quality standards for certain substances (including sulphur dioxide, lead, and nitrogen dioxide)
and the establishment of minimum emission standards for certain classes of industry (including
new large combustion plant, and municipal incinerators). The 1988 Large Combustion P^ant
Directive (the result of a lengthy political struggle between Member States) contained an
innovative approach dealing with emissions of sulphur dioxide and nitrogen dioxide from existing.
power stations and other large combustion plant. Member states resisted the Commission's initial
favoured policy to introduce phased emission standards for such plant, and eventually the
Directive was based on national "bubbles" with a commitment by Member States to reduce
overall ceilings from 1980 levels in three phrases until 2003 - but using whatever means they
considered best (e.g. retrofitting abatement technology, fuel change, etc.). Significantly, and
unusually for an international agreement of this nature, the reductions to be achieved were not
equal for all Member States - in recognition of the need to take due account "of the need for
comparable effort, whilst making allowance for the specific situation of Member States" (9). In the
field of waste disposal, a framework Directive, 75/442, established a broad requirement for the
permitting of waste disposal facilities by Member States together with the production of waste
disposal plans, but provided little in the way of detailed operational standards. In 1991 the
Commission proposed a Directive which would provide minimum, detailed standards for the
disposal of waste by landfill, though this has yet to be agreed, and has caused some controve sy.
Further Directives deal with procedures for the transfrontier shipment of wastes and dispose of
named toxic wastes, and are essentially based on notification and manifestation requirements In
the field of chemicals, early Community legislation, going back to 1967, provided for classificaton,
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packaging, and labelling requirements of dangerous substances, but in 1979 these provisions
were supplemented by important new requirements requiring the detailed prior environmental
testing and risk evaluation of new substances before they were placed on the market by
manufacturers. Reciprocal recognition is provided for, in that manufacturers need follow the
notification procedures in only one Member State before being guaranteed access to throughout
the common market without the need for undergo further national testing procedures. This
Directive applies only to new substances (i.e. those not on the market before 18/9/91) but in 1990
the Commission made proposals to extend the principles to pre-existing substances. The 1980's
saw two important Directives dealing with environmental information - the 1985 Environmental
Assessment Directive requiring specific assessment procedures to be carried out in connection
with national authorization procedures for proposed projects falling within defined categories, and
the 1982 "Seveso" Directive requiring on and off site emergency plan to be produced for specified
hazardous industries. Wildlife protection has been the subject of a number of Directives, dealing
both with the control of trade in endangered species, the control and regulation of hunting, and
the protection of specific habitats for wildlife. An important new Directive on the protection of
Community habitats in general has recently been agreed.
Recent initiatives have showed a greater reliance on new policy approaches in addition to
the more conventional regulatory standard setting which underlay much of the early pollution
legislation. For example, two important new fields are based on voluntary, market-based
approaches rather than mandatory standards (the 1991 Eco-Labelling Regulations, and the
proposed "Eco-Audit" Regulation). The success of these two initiatives rest on the assumption
that industry will find the costs of compliance outweighed by the rewards of official Community
endorsement in terms of marketing and corporate image. Citizen "empowerment" underlies the
Freedom of Access to Environmental Information Directive 1990 (to be implemented by Member
States in 1993), and the principles of civil liability for environmental damage are the subject of
recent studies and policy initiatives. Some Community financial assistance towards
environmental improvements has been available under various schemes and in specific areas,
and the agreement in December 1991 to the principles of the Cohesion Fund and the Financial
Instrument of the Environment (LIFE) implies a significant commitment to providing financial aid to
Member States assist the implementation of Community environmental policies, including
improving internal administrative machinery. Nevertheless, the "polluter pays" principle continues
to represent a key underlying policy and was written into the environmental provisions of the
Treaty following the Single European Act. Finally, the greater use of fiscal measures as a means
of securing environmental policy aims is likely to form an important element of future initiatives in
selected areas.
One of the underlying difficulties associated with the implementation and enforcement of
Community environmental law is the differing structural character of much the legislation that has
been agreed. For those Community laws dealing explicitly with standards for tradeabie products
(eg motor vehicles, paint), the pressures of the market and the more visible means of verifying
compliance means that implementation does not appear to be a major issue. The main problem
occurs with those Community policies which are dependent solely on national action taken within
the confines of Member States, and do not involve products or services which are sold or traded
across national boundaries. Examples would include the protection of groundwaters, the carrying
out of environmental assessment procedures in connection with a construction project, or the
prohibition of hunting of protected species of birds. These types of obligations, which form the
majority of Community environmental measures, have generally take the form of Directives,
implying that Member States are obliged to achieve the stated policy goals but are left with
considerable administrative discretion as to how to achieve them. Even within this broad
category.there are considerable differences in the nature of obligations placed on Member States
which compound the problem of securing implementation. Some Directives prescribe explicit and
precise goals that must be achieved in a given sector which in theory should be reasonably
straightforward to monitor and enforce (10). Another class contains similarly precise goals in
specific sectors or areas but leave a large element of discretion to Member States in determining
where they are to apply (11). Examples of more recent legislation cut across conventional
administrative boundaries and sectors, and impose obligations that reach deep into national
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decision-making at many levels. This type of "horizontal" Directive, exemplified by the 1985
Environmental Assessment Directive (12), raises acute difficulties for both Member States and the
Community institutions when it comes to ensuring full implementation.
3 THE ROLE OF THE COMMISSION AND ART. 169 PROCEDURES (13)
A key function of the European Commission under the Treaty of Rome is to ensure the
effective application of Community law (14). The Commission's role in enforcement is therefore
one of its institutional duties, but it was not until the early 1980's, a decade after the initiation of
explicit Community environmental policies, that it began to lake its role seriously in this field. The
European Parliament played an important part in the process of galvanizing concern. The
disappearance of toxic waste being transported from Seveso in 1983 revealed the extent of
defective implementation of existing environmental Directives governing toxic and dangerous
wastes, and the Parliament's subsequent inquiry and Resolution criticized both the Commission
and Member States over their failure to ensure effective implementation of Community
environmental legislation (15). Since that date, the Commission, largely through its legal unit
within Directorate-Genera! XI, has concentrated efforts on improving its enforcement efforts, using
both conventional legal processes available under Community law, and less formal methods.
The formal legal procedures available to the Commission in persuading a Member State to
comply with Community obligations derive from Article 169 of the Treaty, and as such are
common to all areas of Community policy. The terms of Article 169 are interpreted to divide into
three separate stages: (i) the sending of a formal Article 169 letter to the Member State (ii) the
sending of a reasoned opinion and finally (iii) referral to the European Court. Each of these
decisions requires a collective decision of the whole Commission, making it an elaborate process,
but one that carries considerable political authority. The first two stages may, and often do, end in
a settlement in that either the Member States complies with the Commission's requirements, or a
mutually acceptable agreement is reached without the need for intervention by the Court. As
might be expected of any complex process of legal enforcement, these formal stages, and
particularly the service of an Article 169 letter are not normally initiated without some considerable
forewarning and correspondence between the Member State concerned and the Commission.
Three main categories of non-implementation exist:
(1) A failure by a Member State to communicate to the Commission national laws and other
national measures implementing the Community instruments in question; each Directives
prescribe a time-limit (normally two or three years) by which date Member States must
notify their national laws used or passed to implement the Directive.
(2) Incomplete or incorrect transposition of Community obligations into national law, implying
that a Member State has communicated the text of national implementing measures but
that these fail to reflect fully the obligations under the relevant Directive.
(3) The failure to apply the Community obligations in practice, whatever the state of the
national law.
The first two categories are, by their nature, confined to the implementation of Directives,
and are concerned with what might described as the formal aspect of implementation, ensuring at
the very least that the "black letter" national law is in place. Monitoring the failure to communicate
national measures within the time-scale specified in the Directive is a reasonable straightforward,
and quasi- mechanical process ; either communication has been made by the specified date or it
has not. In the early 1980s, the Commission standardized the enforcement machinery relating to
non-communication across all sectors of Community law, and following advance warnings, if no
notification has been made by the date required, the Commission will generally move straight into
Art. 169 proceedings. The rise in the volume of legal proceedings for non-communication has
been dramatic with in 1982 just 15 proceedings begun for non-communication in the
environmental sector rising to 131 in 1990. Indeed in 1990, proceedings for non-communication
represented almost 60% of the total commenced in the environmental sector. This represents a
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higher proportion of the three classes of actions than for the previous three years, and may in
part simply attributable to a higher volume of legislation agreed in previous years.
Determining an infringement of the second type, incomplete or incorrect transposition, is a
task that is intellectually more demanding. Communication of national laws has taken place with
the required time-limits but it is argued that they fail to reflect the obligations under the Directive
in question. This requires both an understanding of the legal meaning of the provisions of the
Directive, itself not always an easy matter, together with the ability and expertise to interpret the
meaning of national legislation in the light of the Member State's own legal and administrative
practice. The position is made more complex because Member States may have relied upon pre-
existing legislation to meet the aims of the Directive in which case its detailed terminology is
unlikely to be closely aligned with that of the Directive. Furthermore, some of more recent
environmental Directives which cut across conventionally drawn boundaries of administrative and
legal responsibility may as a result prevent the Member State from relying upon a single item of
legislation as its means of implementation. Examples exist where a Member State has submitted
something in the order of twenty items of national law to implement a single Directive, and in
communicating the text of these measures to the Commission, a Member State is unlikely to
mark tor attention detailed and sometimes obscurely positioned deficiencies that may exist.
4 FAILURE TO IMPLEMENT IN PRACTICE
The need to ensure that laws are implemented in practice as well as in formal terms has
been endorsed by Member States, and in recent years the Commission has been increasingly
concerned with the failures of this category. This represents the most difficult and controversial
area of enforcement for the Commission, and certainly one that can touch a raw nerve of the
sensibilities of Member States who wish to preserve that national boundaries of discretion.
Examples of this category include the failure of local drinking water supplies or particular
stretches of bathing waters to meet prescribed Community standards, the failure of a waste
disposal licence to meet the prohibitions contained in the Groundwater Directive, and failure to
carry out an environmental assessment for a project falling within mandatory classes of the
Environmental Assessment. This illustrates a further difficulty with this type of infringement
proceedings. Assuming that the national legislation is in place, failure to implement in practice
may well be due to the action or inaction of a local or regional public authority, or even a local
court. All such bodies fall within the overarching concept of the "Member State", yet in practice it
is the central Governments of Member State who must assume the responsibility for being at the
receiving end of infringement proceedings, though in some countries, depending on the degree of
decentralization that exists (and which varies considerably within the Community) they will
possess very little legal influence over the way that internal administrative bodies behave. The
theory and practice of Community law enforcement largely ignores these complexities at present.
One reason that may underlie the failure of a Member State to implement Directives in
practice may simply be a question of economic costs. Some environmental directives expressly
incorporate an economic criterion such as "best available technology not entailing excessive
costs",(16) but others do not. An important case before the European Court of Justice in 1990
concerned the failure to implement the standards contained in the Drinking Water Directive (17) in
local supplies, and the Court held that the practical and economic difficulties of ensuring that
water supplies met the required standards provided no defence to a Member State charged with
failure to implement the Directive (18). This decision illustrates the very strict approach that the
European Court has generally shown in issues of non-implementation, though it must be stressed
that at present the European Court possesses no powers of sanction, relying instead upon its
moral authority if its judgments are to be complied with by Member States. The political response
to a apparently disturbing increase in examples of Member States failing to comply with
judgments of the Court is contained in the Maastricht Treaty which proposes to give power to the
Court to fine Member States which do not comply with a judgment.
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5 INFORMATION GAPS AND THE COMPLAINT PROCEDURE
In the environmental sector, the Commission has no real powers of investigation
comparable in any way to those it has been possesses in the competition field (19). There ara as
yet no Community environmental inspectors,although the idea has been suggested in the past,
and in 1991 the UK Government called for the setting up of a Community "audit" inspectoral to
work alongside and monitor the performance of existing national inspectorates. In 1990, the
Council of Ministers agreed a Regulation establishing a European Environmental Agency, though
as yet no location for the Agency has been agreed due to political disputes between Member
States (20), and initially at any rate the functions of the Agency would be largely confined to data
collection and analysis in conjunction with similar bodies within Member States. Against this
background, the Commission has been peculiarly dependent on its own complaint system to
enable it to be alerted to possible infringements in practice. The procedures, governed by the
Commission's internal rules of administration, permit any member of the public, including
environmental groups and industries, to notify the Commission of alleged infringements. No legal
interest in the matter complained of need be shown, and no costs are involved.
The system is common to all areas of Community law, and was first developed in the
1960's in the context of the internal market. But it is the environmental field that have given rise
to a spectacular growth in the numbers of complaints received, and they now represent almost
half of all total number received annually by the Commission. A number of criticisms can be made
about the current system. It means that the Commission is initially at any rate playing a largely
reactive role to the type of issues and subject matter raised, and its stated commitment to
investigate every complaint received, while a laudable goal of an administration exercising
enforcement powers, leaves little room for strategic decision-making, especially given the current
limited man-power involved (21). Various suggestions have been made to improve the efficiency
of the system, including the establishment of Commission offices within Member States to act as
a first point of referral, or the requirement that complaints are initially made and filtered through
Members of the European Parliament. Yet the ability and right of citizens to by-pass national
governments and bodies and make representations direct to a supra-national enforcement body
marks a bold institutional initiative, particularly for those countries where access to domestic
courts and tribunals is not simple, or where traditions in open and responsive administrations are
not well developed. Certainly, in its recent study of the implementation and enforcement of
Community legislation, the UK House of Lords Select Committee recommended against intro-
ducing radical new filter or other similar mechanisms:
"...the complaints procedure remains a vital means for individual citizens to
bring pressure on regulatory authorities to comply with Community law. The
sheer numbers of complaints made and of consequent referrals to the Court
of Justice are sufficient testament to the need for such a mechanism." (22)
The Committee went on to suggest a number of administrative reforms to improve the
handling of complaint investigations, including increased staffing level within DGXI, a clearer
sense of priorities, greater powers of direct inspection, speeding up of decision-making, and more
openness in the procedures -the initial stages, at least until the sending of a Reasoned Opinion,
are still dominated by conventions of confidentiality associated with international diplomacy.
Despite the criticisms, it is clear that in a number of sectors the Commission's activities have
created considerable pressure on the governments of Member States, and non-governmental
organizations have become adept at using the procedures in a sophisticated manner, though
experience in this respect still varies considerably between Member States. In 1990 the
Commission took the bold step of releasing publicly figures on a country by country basis of the
numbers of Article 169 letters that had been issued in the environmental sector, a deliberate
political move to highlight the issue of implementation and one that caused considerable discuiet
among some Member States at the time. An annual report is now promised from the
Commission.
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6 INTERNALIZING COMMUNITY OBLIGATIONS - DOCTRINES OF THE EUROPEAN
COURT OF JUSTICE
Although a primary function of the European Court of Justice is to determine the meaning
of Community legislation, it has never confined itself to a role of mechanical interpretation, but
has over the years developed independent legal principles in an effort to ensure the supremacy of
Community law and its effective application by national courts. Two key doctrines can be
mentioned in the context of implementation, though it should be emphasised that these were not
developed with environmental policies in mind but are applicable to all areas of Community law.
The first, developed in the mid-1970's at a time when national governments appeared to have lost
some momentum in developing the Community, concerned Directives. Under this doctrine, the
Court held that, even in the absence of national implementing legislation or where such legislation
was defective, the sole legal remedy should not lie in Article 169 proceedings brought by the
Commission. For those obligations under Directives which could be described as precise and
certain, individual citizens should be entitled to rely upon them in proceedings before national
courts. But there was an important limitation in that such proceedings must involve governments
or other "emanations of the State", a broad concept that encompasses local government bodies,
public agencies, and many other bodies considered to be under the control of the State. The
rationale which has limited the application of the doctrine to the public rather than the private
sector is that it is the Member State which has failed to implement Community law, and it is
therefore the Member State (and all that this concept entails) which should not be entitled to
benefit from their own failings. In the environmental field it is still quite rare for the doctrine to be
raised before national courts, though in some countries, notably the Netherlands, there are now a
fair number of reported cases on the subject.
The second doctrine which has been developed by the Court and sometimes known as
the doctrine of sympathetic interpretation requires national courts to interpret as far as possible
national laws in such a way as to be consistent with Community obligations, including Directives.
This doctrine can be raised in any proceedings, whether or not involving emanations of the State,
though again its application in the environmental sector does not yet appear wide-spread. Both
these doctrines can be seen as a mechanism to internalize Community obligations even where
the government of a Member State has failed to implement, and as the Court's own contribution
towards the issue. The doctrines are not intended to supplant the Art. 169 proceedings, and it is
irrelevant to their application that the Commission may also be bringing Art. 169 proceedings on
the same point. While in theory extremely powerful mechanisms, their practical effectiveness
depends crucially on a number of factors. First, the acceptance by national courts and judges of
their own obligation to apply the doctrines, even in the face of conflicting national law, and this is
by no means guaranteed in all countries, or at all levels of court. Second, citizens or others
whose environmental interests are threatened must have the legal right to raise such issues
before their national courts, and again the picture throughout the Community is by no means
consistent. Substantive rules on standing, particularly as they relate to non-governmental
organizations, differ in many countries, as too do the costs of bringing actions, and the expertise
of lawyers in what is still seen within some Member States as a specialized and somewhat
esoteric field of law.
7 SANCTIONS AND REMEDIES
As a matter of general principle, Community legislation has not normally prescribed forms
of sanction whether criminal or civil which Member States must implement in order to ensure that
Community policy is achieved. Most environmental legislation to date has taken the form of
Directives which, as described above, may contain obligations involving product standards,
environmental standards of various sorts, licensing and procedural requirements, and while
Member States have an obligation under Community law to achieve the aims of Directives, they
retain a discretion to determine the appropriate national legal and administrative means which will
be necessary to ensure these goals are attained. Whether they employ criminal sanctions, strict
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or fault based liability offences, civil remedies, or administrative measures is left to :heir
discretion, and the traditions of their own legal and administrative culture.
While the European Court of Justice has developed doctrines creating protective rights for
individuals, notably the direct effective doctrine, they have to date largely left matte s of
procedural remedies, including the question of standing, to national courts:
"It is for the national courts in application of the principle of cooperation laid
down in Article 5 of the EEC Treaty to ensure the legal protection which
persons derive from the direct effect of provisions of Community law."
R v Sec, of State for Transport ex p Factortame and JJthers C-
213/89 1991 1 AC 603
Nevertheless, according to case-law (23) of the European Court the discretion of national
courts and legislation in this context is subject to two limitations:
- procedural conditions relating to rights under Community law must not be less favourable
than conditions relating to equivalent procedures tor national remedies;
- such national conditions must not make it impossible to exercise those rights derived from
Community law.
As to sanctions or remedies introduced under national law, the European Court of Justice
has hinted in at least one case that while Member States may have considerable discretion, they
cannot abuse this. For example, where a Member State had a discretion to choose a sanction
under a Directive and chose an award of compensation,
"..then in order to ensure that it is effective in relation to the damage
suffered and that it has a deterrent effect, that compensation must in any
event be adequate in relation to the damage sustained."
Case 14/83 Van Colson (1984) ECR 1891
The implications of this doctrine in likely to tested before the British courts in the context of
current legal proceedings taken by Friends of the Earth against the Secretary of State for the
Environment, challenging the validity of undertakings accepted by him from private sector water
undertakers who had failed to comply with existing Community standards on Drinking Water. It is
likely to be argued that in the context of Community principles, such undertakings (which
essentially represent a form of agreement to upgrade standards over a time period but one which
is on the public record and can ultimately be enforced by administrative remedies leading to the
removal of the undertaker's licence to provide water supplies) are not a sufficiently rigorous form
of sanction to ensure compliance.
Finally, in the Frankovitch decision last year (Frankovitch v Italian Republic, Ca;;e C-
6/90.C-9/90 Times European Law Report), the European Court held that in certain circumstances
a remedy in damages to individuals should be available against Governments where loss had
resulted due to their failure to implement an EC Directive. The Court held that if no such system
existed under national courts it was up to the courts to create such remedies. Again, this can be
seen as an example of the Court trying to introduce legal remedies into national systems which
ultimately aim to bring pressure on national governments to comply with Community obligations.
As the Court stated in its judgment,
"The full effectiveness of Community rules might be called into
question and the protection of the rights which they conferred would
be weakened if individuals could not obtain compensation where their
rights were infringed by a breach of Community law for which a
Member State is responsible"
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8 IMPACT AND APPLICATION OF COMMUNITY ENVIRONMENTAL LAW ON MEMBER
STATES
Judging the impact of Community environmental laws within Member States is not an easy
exercise. One is faced with twelve different countries, often with quite distinct national legal and
administrative cultures, and with distinctive experiences in the development of national
environmental law. A simple dichotomy between those countries with a Roman law tradition and
those with a common law system (the UK and Ireland) does not do justice to the range of
differences that exist, and national experts in each country could point to a wide range of different
impacts which Community environmental law has had on their own national systems. The position
is made more complex because Community laws do not originate from a straightforward "top-
down" political process, but may often be influenced by existing developments in particular
Member States, and during negotiations amendments may be sought seeking to minimize the
disruptive effect of proposed new Community provisions on existing national procedures. This
means that for some countries, a particular Directive may have little impact on its national laws
while the same Directive may be a significant innovation for other countries.
The conventional wisdom is that for those Member States which already possessed a
reasonably developed set of environmental laws prior to the development of Community
environmental law (eg Germany, Denmark, Netherlands, the United Kingdom, and France), the
Community dimension has not brought about major changes, while the most dramatic effects
have been felt in those countries with little in the way of sophisticated national controls (e.g.
Spain, Portugal, Greece, Italy). There is some truth in this, but on closer examination, the "North-
South" division is not wholly convincing. To take one example, before the introduction of
Community legislation prescribing air quality standards, the only country in the Community which
possessed legally binding air quality standards was what was then the Federal Republic of
Germany. The introduction of legal air quality standards in countries such as Denmark, France,
and the Netherlands and the United Kingdom, can be directly attributable to the need to comply
with Community legislation (24). Certainly, for a United Kingdom lawyer in both the field of air
pollution and other areas of Community environmental law, a major structural influence of
Community law has been the extent to which it has proved necessary to formalize into legislation
and regulations detailed environmental standards - a complete reversal of what had hitherto been
the dominant practice of allowing a large degree of administrative discretion within a broadly
drafted legal framework, coupled with a reliance upon administrative circulars to transmit detailed
policy intentions (25). This in turn is influencing the way that internal interests, including
regulators, lawyers, and industry, are approaching the subject of environmental policy in the
United Kingdom.
Two concluding general points can be made on the subject of implementation. First, full
and effective implementation of Community law is unlikely ever to be achieved solely by the
institutional mechanisms implicit in the Article 169 procedure, involving both the Commission and
the European Court. In the long run, it requires a genuine internal political will by Member States
to ensure that Community policies are implemented within their countries, and this in turn will
require improved education and understanding by national officials of the nature of Community
law, together with the development of more effective national fora allowing oversight of decision-
making.
Second, judging both the effectiveness of Community policies in improvement environ-
mental protection and the extent and nature of deficiencies that exist requires much greater
investment in reliable and comparable environmental data sources. As the UK House of Lords
Report (22) put it: "Without information it is impossible to assess whether compliance has taken
place, the effectiveness of the legislation, or to guage what further action needs to be taken"(para
34). In this context, the continued failure of Member States to agree a location for the proposed
Community Environmental Agency is a unfortunate reflection on the extent to which national
political interests can override those of the environment. The speed and manner in which this
issue is resolved will provide some signal of the extent to which Member States are truly
committed to improving implemention of Community environmental policies.
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REFERENCES
(1) Statement of European Council, Bulletin of the European Communities 6-1990, 18-21, note
4.
(2) This principle may even extend to a national court granting interim relief to suspend the
operation of a piece of national legislation until full proceedings take place : Case 246/89
R v Secretary of State for Transport ex parte Factortame (1989) ECR 312.
(3) see, for example, Resolutions of the European Parliament of 11/4/84 OJ 1984 C 127/67,
and of 19/3/90, OJ 1990 C 68/172,
(4) At an informal meeting of the Council of Ministers on 11-13 October 1991, it was agreed
that there was a need for both the "further development and enforcement of environmental
legislation" within the Community and a need to "improve the compliance and enforcement
structures concerning environmental legislation and its implementation within the Member
States." The Council accepted, as one contribution to this process, recommendations
contained in a report by Environmental Resources Ltd of the need to establish an informal
network of national enforcement agencies responsible for the practical implementation of
Community environmental policies.
(5) Art 130r(4): "The Community shall take action relating to the environment to the extent to
which the objectives referred to in paragraph 1 (of this Article) can be attained better at
Community level than at the level of the individual Member States."
(6) Proposed new Art. 3b: "In areas which do not fall within its exclusive competence the
Community shall take action, in accordance with the principal of subsidiarity, only if and in
so far as the objectives of the proposed action cannot sufficiently be achieved by the
Member States and can therefore, by reason of the scale or effects of the proposed
action, be better achieved by the Community."
(7) The vast majority of environmental Directives were based on both Articles. Directive
79/409/EEC on the Conservation of Wild Birds is one of the few measures of substance
solely based on Art. 235.
(8) Although the Maastricht Treaty amendments would introduce qualified majority voting for
most environmental measures, the legislative procedures for Art 100A remain different,
making the distinction still one of importance. Furthermore, the freedom for a Member
State to introduce stricter national environmental controls is more restricted where the
Community measure is based on Art 100A. In Commission v Council, Case 300/89, (June
11 1991), the European Court held that given the distinctive legislative processes,
measures had to be based on one or the other Articles, but that this choice was not a
matter of discretion by Community institutions but was a legal question to be based on
"objective elements". In that case, the ECJ agreed with the Commission's contention thai
a measure harmonizing pollution standards in a particular industrial sector was, despite a
strong environmental component, still correctly based on Art. 10OA.
(9) Preamble, Council Directive of 24 November 1988, 88/609/EEC.
(10) for example, Directive 80/779 on air quality limit values and guide values for sulphur
dioxide and suspended particulates; Directive 80/778 relating to the quality of water
intended for human consumption.
(11) for example, Directive 78/659 on the quality of waters for fish life; Directive 76/160 on the
quality of bathing waters; Directive 79/409 on the conservation of wild birds.
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(12) Directive 85/337 on the assessment of the effects of certain public and private projects on
the environment. Directive 90/313 on access to environmental information is another good
example of a "horizontal" measure.
(13) The material for this section is drawn from a more detailed analysis in Macrory (1992)
'The Enforcement of Community Environmental Laws : Some Critical Legal Issues."
Common Market Law Review 29, 347-369.
(14) Art 155 of the Treaty provides that the Commission shall "..ensure that the provisions of
this Treaty and the measures taken by the institutions pursuant thereof are applied;"
(15) European Parliament Resolution of 11 April 1984 OJ 1984 C 127/67.
(16) see Directive 84/360 on combatting of air pollution from large industrial plants.
(17) Directive 80/778 relating to the quality of water intended for human consumption.
(18) Case 42/89 Commission v Belgium, 5 July 1990.
(19) see Council Regulation No 17 of 6 February 1962, OJ Special Edition 1959-62, 87
(20) Regulation 1210/90 OJ 1990 L 120/1. The European Parliament wished to give the
Agency a more explicit inspection and enforcement function, but this was resisted by the
Council. Art 20, however, provides that two years after the location of the Agency has
been agreed, the Council must decide upon further tasks for the Agency including,
"associating in the monitoring of the implementation of Community environmental
legislation in cooperation with the Commission and existing competent bodies in the
Member States."
(21) In 1991, the lega! unit within DG Xi had a staff of 10 lawyers, six of whom were on
temporary secondment.
(22) House of Lords Select Committee on the European Communities, 9th Report, Session
1991-92, March 1992, para 128.
(23) see Geddes "Locus standi and EEC Environmental Measures." Journal of Environmental
Law Vol 4 No 1 1992.
(24) see Institute for European Environmental Policy (1989) Report for the European
Commission , "The Implementation of the EEC Air Directives in the Twelve Member
Slates." Ttie Institute has conducted a large number of valuable country by country and
comparative studies of the impact of Community environmental legislation within Member
States.
(25) Although some would argue that this is a characteristic of a common law country adapting
to Roman law systems, the same formalizing influence of Community law can be seen in
countries such as France ; see Annex to the 8th Report to the European Parliament on
monitoring the application of Community law 1991, OJ C 338, 31.12.91.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 183
THE IMPLEMENTATION OF ENVIRONMENTAL LAWS BY THE EUROPEAN ECONOMIC
COMMUNITIES
LUDWIG KRAMER
Commission of the European Communities, DG Environment, Nuclear Safety and Civil Protection,
34 Rue Belliard, B 1049 Brussels, Belgium
REFERENCE
This paper is a reprint from the German Yearbook of international Law (Jahrbuch fur
Internationales Recht), Volume 34, 1991, printed by Duncker& Humblot, Berlin, 1992.
I. Introduction
Alex/metre Kiss, probably the most renowned European environmental lawyer,
concludes his book Droit international de I'environnement with the following
statement on the implementation of European Economic Communities (EEC)
environmental law:
It is encouraging to be able to end a book on international environmental law with a
description of a legislative and judicial system which presents so many guarantees of
efficiency. Certainly, one might object that Community law forms already no longer a
part of international law, since the EEC has set up a quasi-federal system. This objection
is not without value; however, is the future of international law not progressing towards
federal forms? Environmental law which reveals so many strong and weak pomes of legal
systems, gives, also in this regard, substance for reflection.1
Along the same line of chinking, the International Environmental Law Confer-
ence (from 12 to 16 August 1990 in The Hague) which was organised by the
International Union for Conservation of Nature and Natural Resources (IUCN)
discussed, among other subjects, whether EEC implementation and enforcement
procedures could form some sort of a model for the regional or global implementa-
tion and enforcement of international conventions.
The importance of EEC implementation rules is also underlined by a number of
statements and resolutions which EEC institutions have adopted during the last
few years. Thus, the Council Resolution adopting the Community's Fourth
Action Programme on the Environment stressed that the Council attaches
particular importance to the implementation of Community legislation, and called
on the Commission to provide regular reports on the subject so that the Council
and the European Parliament could assess the effectiveness of the Community's
environmental policy.2 The European Parliament in turn has adopted a series of
Resolutions concerning the implementation of the Community rules on the
1 Alexandre Kiss, Droit international de 1'environnement, Paris 1989, 336.
3 European Council, Resolution of 19 October 1987, Official Journal of the European
Communities (OJEC) 1987, No C 328/1.
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184 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
environment.3 In Dublin on 25-26 June 1990 the European Council stressed the
importance of full implementation and enforcement of Community legislation and
instructed the Commission to conduct regular reviews and publish detailed
reports on its findings/ Since environmental problems are of growing concern all
over the world and in view of the upcoming United Nations environmental
conference in 1992 in Brazil, it seems useful to describe in some detail EEC
implementation rules for environmental standards and the way they function in
practice.
II. The Framework Set by EEC Law
The EEC, a "Regional Economic Integration Organisation" that undertakes to
integrate twelve sovereign nation-states into one European Community, has over
approximately twenty years of environmental policy adopted some 200 binding
pieces of law, in the form of EEC directives, regulations or decisions. These rules of
law are adopted by the Council, which acts upon proposals from the Commission
and with the participation of the European Parliament. Legal review is exercised by
the Court of Justice.
"Community environmental legislation will only be effective if it is fully
implemented and enforced by Member States".5 At present, the overall situation
within the EEC is characterised by the late transposal of directives into national
law, rather frequent legal deficiencies in national legislative implementation and, in
particular, deficiencies in the practical enforcement of rules on implementation of
Community law which were fixed at the national level. EEC law is not present in
national law; local, regional and national administrations are often not familiar
with it. Its relationship with national rules — direct effect doctrine, superiority of
Community law, significance of the texts of this or that Community rule — are
ignored. In conflicts with economic developments, environmental aspects almost
always are given second place. Thus it looks as if all combined rules of Community
and national environmental law, adopted over twenty years, have not managed
significantly or generally to reverse the trend of the slow but continued degrada-
tion of the environment within the EEC.
The key Articles as regards the implementation of EEC environmental measures
are Articles 130r (4) and 155 of the EEC Treaty. Article 130 r (4) states with regard
to environmental measures:
3 Resolution of 10 March 1988 (air and water), OJEC 1988, No C 94/151 and 155;
Resolution of 12 October 1988 (nature), OJEC 1988, No C 290/54; Resolution of 13
October 1988 (birds), OJEC 1988,NoC290/137; Resolution of 16 February 1990(general),
OJEC 1990, No C 68/183.
4 European Council, Bulletin of the European Communities 6/1990, 18-21,
5 European Council (noie 4), 19.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 185
Without prejudice to certain measures of a Community nature, the Member States shall
finance and implement the other measures.
Article 155 states:
In order to ensure the proper functioning and development of the common market, the
Commission shall:
— ensure that the provisions of this Treaty and the measures taken by the institutions
pursuant thereto are applied; ...
It is generally accepted that Article 155 is not linked to "common market"
requirements, but institutes the Commission as guardian of the Treaty in general.
Accordingly, the Commission's work not only prepares environmental legisla-
tion or conceives and pursues an EEC environmental policy, but it also is obliged
under the Treaty to ensure that all obligations imposed on Member States by
Community environmental legislation are honoured.
Thus, Member States not only have to adopt the measures necessary to
incorporate Community environmental legislation into their national laws, but
also have to apply them fully and correctly over all their territory.
The Court of Justice has ruled that the preservation of the environment is an
essential objective in the interest of the Community as a whole.6 The unique
feature of environmental legislation, which distinguishes it from Community
legislation in other areas, is that it depends almost exclusively on the goodwill of
the national administrations to implement it. More specifically, Community
legislation on economic affairs, agriculture, competition, transport, or services
directly affects the vital interests of key sectors of economic activity in each
Member State. Therefore, special interest groups are quick to mobilise all the legal,
political or media resources at their disposal to enforce the Community legislation
protecting them or combating practices detrimental to them. In contrast to that,
the environment belongs to no one in particular ("the Community as a whole")
and therefore has no official defender. Virtually nobody can combine the know-
how, means, resources and qualifications needed to protect a biotope, clean up a
river or save a forest. Apart from sporadic action by environmental groups, most of
whom are poorly equipped, it is left to the authorities to control activities which
could potentially damage the environment, and to accept or reject infrastructure
projects with a definite environmental impact or to keep track of the movement of
dangerous substances or waste. In practice, they are responsible for enforcing the
regulations implementing Community legislation and for bringing proceedings
against polluters. Administrations alone can collect, organize and, where approp-
riate, publish data on emissions into the soil, air or water, environmental pollution,
environmental hazards, the diversity of flora and fauna or the state of the
environment in general.
* Court of Justice, Case 240/83, ADBHU, (1985) European Court Reports (ECR) 531;
Case 302/86, Commission v. Denmark, (1988) ECR 4607.
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186 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCE- IENT
The fact that protection of the environment, an objective in the general interest
of the Community, is left almost entirely to the authorities singles out environ-
mental legislation and, hence, the arrangements for monitoring the implementa-
tion of this law, as being different from all other areas of Community legislation.
This difference goes a long way towards explaining the growing interest in
monitoring in recent years and the importance attached to it by the Member
States, the Community institutions, the media and public opinion — an impor-
tance which, in all probability, will grow stronger still in the future.
Environmental directives have been adopted at the Community level since 1975.
Control of implementation during the first years following that date was focused
on the question of whether any national legislation was adopted in order to
transpose the directive into national law. The main push to increase implementa-
tion control was given by the European Parliament.
In 1983 some barrels containing highly toxic waste from the Seveso (Italy)-
accident in 1978 suddenly disappeared while being transported. The incident
caused enormous public concern in almost all EEC Member States. The European
Parliament, for the first time in its history, instituted an enquiry Committee which
was to examine the implementation of EEC environmental legislation and in
particular Council Directive 78/319 on toxic and dangerous waste.7 The final
report of the Committee and Parliament's resolution on the question were highly
critical of the Commission and the Member States and called for effective measures
in order to improve the implementation of environmental legislation by Member
States and control by the Commission.8 This led the Commission to increase its
activities in monitoring the implementation of EEC environmental law by
Member States.
III. Monitoring Procedures
The Commission has a variety of instruments for enforcing Community
environmental law, with the infringement procedure provided for in Article 169 of
the Treaty as the last resort when all else fails.
The first point to remember is that wide consultations are held with the Member
States before the Council adopts a Directive or Regulation, As soon as the
Commission starts work on a subject, it discusses its plans with the national
experts appointed by the Member States and the economic or political circles
concerned. Since environmental legislation is adopted by the Council — and in
most cases by unanimous vote — it is fair to assume that all the Member States are
fully aware of the commitments they are making.
1 Directive 78/319 on toxic and dangerous waste, OJEC 1978, No 84/43.
1 European Parliament Resolution of.ll April 1984, OJEC 1984, No C 127/67.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 187
When a Directive is adopted, the Commission sends a formal letter to each
Member State, referring to the Directive, the deadlines laid down in it and the need
to adapt national law to the requirements of Community law. Some three months
before the deadline for incorporating the Directive into national law, the Commis-
sion again sends a formal letter to those Member States which have not notified the
Commission of such incorporation. In this letter the Commission once again
explains the legal position and points out the Member States' obligations to
comply with the provisions of the Directive,
Such letters are sent in connection with each Directive adopted. The convening
of meetings of experts or representatives of the Member States before or after a
Directive has come into force is less systematic. While meetings take place
regularly in connection with such fields as chemicals, atmospheric pollution and
flora and fauna, and the opportunity at least exists of discussing jointly within the
Waste Management Committee9 the implementation of the Directives on waste in
the Member States, meetings related to water and noise pollution tend to be few
and far between.
Alongside meetings with representatives of the Member States, the Commis-
sion carries out its own investigations into the execution and application of
Community environmental regulations and assesses its findings. In this context
there are numerous formal or informal, written or personal contacts between
Commission departments and the national authorities responsible for putting the
Directives into effect. Finally, mention should be made of Community Decisions,
which provide for an exchange of specific environmental information.I0 There are
likewise regular meetings in connection with these Decisions, at which the
application of environmental legislation is discussed.
Occasionally the Commission conducts informal appraisals of draft legislation
submitted by the Member States before definitive adoption. Although the Com-
mission can give no definite opinion on implementing measures at the draft stage,
it attempts to help the Member States at their request.
Finally, in 1990 the Commission started to organize bilateral "package" meet-
ings with the national authorities to discuss the facts of the case or legal aspects of
alleged infringements, complaints or measures to implement the Directives on the
environment with all the central, regional or local authorities concerned. Meetings
of this type have been held in Spain (twice), Portugal, Greece (twice), Germany,
Belgium, Ireland and the Netherlands.
* The Committee was set up in 1976 and has the mandate to discuss all matters of waste
management in the EEC, OJEC 1976, No L 115/73.
10 Decision 82/459 (air pollution), OJEC 1982, No L 210/1; Decision 77/585 (water),
OJEC 1987, No L 240/1.
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188 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCED E
Consequently, the formal procedure laid down in Article 169 of the EEC Treaty
is the Commissions's last resort for exercising control and enforcing Community
Jaw on the environment.
Article 169 reads as follows:
If the Commission considers that a. Member State has failed to fulfil an obligation under
this Treaty, it shall deliver a reasoned opinion on the matter after giving the State
concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by
the Commission, the latter may bring the matter before the Court of Justice.
Thus, there is a three-stage procedure under that Article:
(i) formal notice to the Member State concerned
(ii) reasoned opinion
(iii) referral to the Court of Justice.
The following figures may illustrate the evolution of these procedures during
the last years.11
Year
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
Letter of
formal notice
27
16
35
65
69
134
159
93
101
168
Reasoned
opinion
3
7
1
33
26
11
24
71
26
39
Referral to the
Court of Justice
12
-
-
2
23
10
3
11
21
14
The letter of formal notice from the Commission does not follow a specific
pattern, though it has by now acquired a more or less standard content. This is, in
part, due to the view held by the Court of Justice that the Commission's letter has
already defined the object at issue in any subsequent court proceedings. The
Commission is thus unable to include any additional points of complaint in its
reasoned opinion or when bringing the matter before the Court of Justice, even if
the Commission has itself discovered the infringement by the Member State.
11 Commission, 7th annual report to the European Parliament on the control of
implementation of Community law —1989, OJEC 1990, No C 232/35; the figures for 1990
have not yet been published.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 189
The rules allow the Member State in question two months in which to reply to
the Commission's letter of formal notice. However, since — on average — the
Commission discusses and decides on an Article 169 procedure only once every six
months, the time available to Member States to reply is almost always much longer.
The Commission's reasoned opinion closes the administrative part of the
procedure. The facts of the case have been clarified and the Member State
informed of the Commission's definitive stand on the legal issue involved. The
opinion gives a detailed account of how Community law has been infringed.
Should proceedings subsequently be initiated with the Court of Justice, the facts
no longer need to be clarified; the dispute can be confined to legal issues.
A judgment by the Court of Justice pursuant to Article 169 establishes an
infringement of Community law provisions, unless the Commission's complaint is
dismissed. What conclusions the Member State draws from the judgment and how
it complies with the Court's ruling is left to that Member State. At all events, non-
compliance with the Court's rulings on environmental issues is not frequent.
All three stages of Article 169 require an explicit, formal decision by the
Commission itself, based on a proposal from the departments concerned. In 1990,
the Commission delegated to the Member responsible for the environment the
power to decide whether to initiate the procedure whenever no details are received
on the national measures taken to implement a particular Directive. In view of the
rather formalised procedures, it always takes a considerable amount of time from
the start of the Article 169 procedure to the eventual Court judgment. For
instance, it took 52 months from the date that notice was served to obtain a ruling
from the Court in Cases 339/87 (Commission v Netherlands) and 42/89 (Commis-
sion v France) and 47 months in Case 182/89 (Commission v Belgium). As the
number of cases before the Court and dossiers handled by the Commission
increases, the procedure may take longer still.
Oneway to speed up the procedure is to start "urgency procedures", in other
words to shorten the gap between the formal decision and its implementation and
the time which the Member States are allowed to send in their replies. However,
for lack of staff and objective criteria for selecting the right dossiers, such urgency
procedures are rather exceptional. Thus, in 1990, the Commission exercised this
right only once, against Belgium's provisions explicitly authorizing an exemption
from Directive 80/51 on aircraft noise.
The Commission is not empowered to take interim measures against individual
Member States. It is only when a case has been brought before the Court that it can
request the Court to impose a provisional injunction if it fears that irreversible
damage could be caused pending the final ruling. In the only case decided so far,
Case 57/89 against Germany, the Commission asked for a temporary injunction to
stop work which threatened the habitat of wild birds. The Court rejected this
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request on the grounds that the Commission had failed to establish the urgency of
the need to stop the work.12
IV. Aspects Monitored
Three aspects of implementation of Community environmental law are moni-
tored. The Commission checks whether:
(1) the Member States have adopted and submitted their national measures to
implement the Directives;
(2) these national measures fully and correctly discharge the obligations imposed
by Community Jaw;
(3) these national implementing provisions are applied correctly in practice.
The following figures show the developments since 1981, though the repartition
is not always altogether clear:15
Letters of Formal Notice Sent to Member States
Year
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
Non-communication
of national
implementation measures
27
15
23
48
58
84
68
36
46
131
Incomplete or
incorrect
transposal of
EEC law into
national law
_
1
10
IS
10
32
30
24
17
24
Bad implementation
of transposed
legislation
-
-
2
2
1
9
58
30
37
62
12 Court of Justice, Case 57/89 (1989), ECR 2849.
13 Commission (note 6); the figures for 1990 have not yet been published. Discrepancies
from the figures on page 14 come from the unpublished Commission document.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 191
/. Failure to Give Notification of Implementing Measures
Community Directives contain a provision to the effect that Member States
must adapt their national legislation to the provisions of the Directive within a
specific time period and give notification of these implementing measures to the
Commission.
Even without such a provision, this obligation for the Member States arises in
any case from Article 5 of the Treaty, to which we have already referred. When this
specified period has expired without the Commission having received notification
of the required implementing measures, the Commission decides without further
ado to initiate a procedure under Article 169. This is justified by the fact that the
Member States have twice been formally reminded of their obligations during the
period of grace, that these obligations are clearly and unequivocally set out in the
Directive, and that past experience has shown that incorporation into national law
of environmental Directives within the fixed time-period is the exception rather
than the rule.
Asa general rule, these non-notification procedures reflect a certain slowness on
the part of the Member States to implement new Directives rather than any
deliberate attempt to evade their obligations to the Community. The Member
States often step into line shortly after the Directive enters into force. As a result,
the Court rarely has to give a ruling. Nonetheless, there are still too many cases of
failure to inform the Commission of the measures taken, giving rise to proceedings
and costs which could be avoided.
The letters of formal notice sent to the Member States regarding failure to
notify are of a purely formal nature. If notification is subsequently received from a
Member State, the Article 169 procedure has to be shelved. If necessary, a new
procedure on the grounds of incomplete implementation may be initiated, a most
intricate process.
If a Member State notifies the Commission that, in its view, its national law
already meets the requirements of the Directive, this is regarded as a formal
notification and the Commission examines the national legislation to see whether
the Member State's claim is justified. If a Member State takes the view that an
internal administrative measure is sufficient for an incorporation into national law,
the Commission again examines the content of that measure to determine whether
formal incorporation is necessary.
In all, an infringement procedure on the grounds of failure to give notification of
national implementing measures should be seen primarily as a means of pressuring
the Member States into incorporating Community environmental provisions in
their national law within the specified period of time.
In practice it sometimes takes a very long time to implement Directives on the
environment. For example, Directive 85/337 on the assessment of the effects of
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192 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCE; SENT
certain public and private projects on the environment1* entered into force in July
1988. But Greece, Portugal and Germany took until 1990 to incorporate it into
their national legislation and even then, from a legal point of view, failed to fully
comply with the Directive.
Directives 89/369 and 89/429 on air pollution from municipal-waste incineration
plants15 entered into force on 1 December 1990. At the end of 1990 notifications
were received from Germany, Portugal and the Netherlands.
Finally, it must be added that the Commission is not informed of the national
measures taken to implement international conventions on the environment, even
in those cases where the Community is a contracting party in its own right.
Consequently, the Commission does not monitor implementation of such con-
ventions within the Community. However, if the Community adopts specific legal
provisions governing fields covered by an international convention, the Member
States are, of course, required to inform the Commission of the national measures
adopted to implement these Community instruments. Consequently, these are
monitored as provided by Article 155 of the Treaty.
a) Nature Conservation
The general concern about the progressive degradation of nature, despite all
Community and national measures taken, manifests itself in the great number of
complaints in this sector, the great number of Article 169 procedures started, and
an important number of Court decisions: on 31 December 1990 the Court had
given 11 rulings, and 6 further cases were pending.
As regards Directive 83/129 as amended,16 it prohibits the importation of the
skins of certain seal pups and products derived therefrom into Member States. The
Commission monitors the conformity of national rules with this Directive. As
regards practical application, the Directive does not require any information to be
passed on to the Commission. As a result, the latter relies entirely on import/
export figures for monitoring, which are published after months or even years have
elapsed. Moreover their non-specific nature normally makes it impossible to
effectively monitor whether or not the import ban has really been complied with.
Regulation No 82/3626 on trade of endangered species of wild flora and fauna
applies directly in the Member States. Its application in practice is monitored by
the relevant management committee which meets regularly and which co-ordi-
14 Directive 85/337 on. the Assessment of the Effects of Certain Public and Private
Projects on the Environment, OJEC 1985, No L 175/40.
15 Directive 89/369 (new installations), OJEC 1989, No L 163/32; Directive 80/429
(existing installations), OJEC 1989, No L 203/50.
16 Directive 83/129 concerning the Importation into Member States of Skins of Certain
Seal Pups, OJEC 1983, No L 91/30.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 193
nates the activities of the Member States. The Article 169 procedure is initiated
only in exceptional cases and also because it is difficult to produce evidence of
illegal action.
The two main directives on nature conservation are Directive 79/409 on the
conservation of wild birds17 and Directive 85/337 on the assessment of the effects
of certain public and private projects on the environment,18 although the latter
covers other sectors as well as nature conservation.
With reference to Directive 79/409, all twelve Member States provide
legislation on the protection of birds. In a number of Member States, however, this
legislation is hunting legislation rather than legislation on the conservation of
birds.
By 30December 1990 only Luxembourg had not adopted legislative measures to
incorporate Directive 85/337 into national law. Greece, Portugal and Germany
introduced legislation in 1990, i. e. some two years after the entry into force of the
directive (3 July 1988). The delay means that projects falling within the scope of
the Directive, which were given the go-ahead after 3 July 1988 but before the
legislation entered into force, often slip through the net of environmental impact
assessment, depending on the attitude of the authorities. Portugal, the United
Kingdom and Germany even expressly included a clause to this effect in their
national legislation, although this would appear to be incompatible with the
directive.
b) Water
The Community approach to combating water pollution is not uniform and
relies on quality objectives, reduction c«f emissions and prior authorization. In
addition, the vague wording of the Community rules allows the water management
authorities scope for interpretation which — given the absence of common
sampling methods, the different frequency of sampling, etc. — gives rise to
disparities in results from one Member State to another.
In the water sector, as in other sectors of environmental law, environmental
protection is largely a matter for the administrative authorities. A number of
Member States have therefore judged it sufficient to issue administrative circulars
in order to incorporate the Community Directives into national law. A judgment
of the Court of Justice19 in a case concerning Directive 76/160 on the quality of
bathing water, did little to change the situation and proceedings are still in progress
against several Member States to require them to adopt binding provisions to
incorporate the Directives on water into domestic law. These observations apply
17 Directive 79/409 on the Conservation of Wild Birds, OJEC 1979, No L 103/1.
" Directive 85/337 (note 14).
" Court of Justice, Case 96/81, Commission v. Netherlands (1982), ECR 17-91.
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194 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
above all to the Directives based on the "quality objective's" approach which were
adopted in the Seventies.
c) Air Pollution
Leaving aside the "products" directives relating to air pollution, i.e. Directive
75/716 on the sulphur content of gasoil20 and Directive 85/210 on lead in petrol21
the Community Directives designed to combat air pollution concern two main
areas:
— authorisation of new industrial plants subject to the use of the best available
technology not entailing excessive costs;
— programmes to be drawn up and implemented in order to gradually bring
existing plants into line with the latest technology. The same approach is
adopted for areas which are sensitive in terms of limit values for sulphur
dioxide, suspended particulates, lead or nitrogen dioxide.
As regards the protection of the ozone layer, Regulation No 3222/88 is directly
applicable.
Delayed transposal is mainly a problem when it relates to more recently adopted
directives. For instance, as regards Directive 88/609 on large combustion plants22
the Member States should have adopted the necessary measures to adapt their
legislation and draw up emission reduction programmes by 1 July 1990. The
programmes were due to be forwarded to the Commission by the end of 1990.
However, by that date only Germany and the United Kingdom had forwarded
programmes and only a handful of Member States had notified the Commission of
legislative measures to incorporate the Directive into national law.
Directive 89/369 and 89/429 on municipal waste incineration plants23 came into
force in December 1990. On the date of entry into force only Germany had notified
the Commission of national implementing measures, although by the end of the
year the Netherlands and Portugal had forwarded legislative measures in respect of
the Directives.
d) Chemicals
A number of Member States are having problems keeping up with the Directives
adapting Directive 67/548/EEC24 to technical progress, and are therefore late in
20 Directive 75/716 on the Sulphur Content of Certain Liquid Fuels, OjEC 1975, No L
397/22.
21 Directive 85/210 on the Lead Content of Petrol, OJEC 1985, No L 96/25.
22 Directive 88/609 on Air Pollution from Large Combustion Plants.
23 Directives 89/369 and 89/429 (note 15).
24 Directive 67/548 on the Classification, Packaging and Labelling of Dangerous Substan-
ces, OJEC 1967, No 196/1. By the end of 1990 this Directive was amended 16 times.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 195
transposing some of the Directives on dangerous substances; it is'true however
that such Directives occur very frequently, almost one per year.
As regards Directive 88/610/EEC on the prevention of industrial accidents,
which was adopted in the wake of the Basie accident in 1986,25 the Commission has
instituted proceedings against a number of Member States for failure to notify it of
implementing measures by the date of the Directive's entry into force (1 June
1990).
Finally, mention should be made of the legislative provisions of Directive 87/18/
EEC on good laboratory practice, which have not yet been incorporated into
national law by all Member States.26
e) Noise
The Community directives on noise pollution are aimed at all noise emissions
from products. They lay down emission levels which may not be exceeded by
products placed on the market. Given that these maximum levels apply to new
products, there is little provision for monitoring the day-to-day application of the
Community rules.
Delays in incorporating directives into national law have given rise to proceed-
ings in a number of cases, although there are no specific points which need to be
raised.
f) Waste
In 1989 the Commission published a report on the application by the Member
States of four directives on waste, namely Directives 75/442/EEC (waste), 75/4397
EEC (waste oils), 76/403/EEC (PCBs and PCTs) and 76/319/EEC (toxic and
dangerous waste).27 This report was based on the limited information available at
the time, as most of the Member States had not forwarded the three-yearly reports
required by the Directives.
All the Member States, have incorporated the Directives on waste into their
national legislation. However, Directive 85/339/EEC on containers of liquids for
human consumption28 allowed Member States to choose between laying down
rules and concluding voluntary agreements, and did not therefore necessarily have
to be transposed into national law.
" Directive 88/160 amending Directive 82/501 on Major Accidents Hazards of Certain
Industrial Activities, OJEC 1988, No L 336/14.
36 Directive 87/18 on Good Laboratory Practice, OJEC 1988, No L 15/29.
-" Commission, Document SEC (89) 1455 final of 27 September 1989,
31 Directive 85/339 on Containers of Liquids for Human Consumption, O]EC 1985, No
L176/18.
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196 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCE
Nevertheless, several Member States have failed to lay down rules or draw up
voluntary agreements on the basis of this Directive. The same applies to the
programmes which were intended to provide a framework for the adoption of
these legislative instruments or rules, or for voluntary agreements.
2. Incomplete National Measures
The second stage of monitoring by the Commission is to check whether the
national rules fully and correctly implement Community law on the environment.
It is not simply a question of making sure that each Article of the Directive is
echoed by the national legislation submitted. In practice, the entire national
legislative, administrative and regulatory framework, with all its peculiarities and
unique operating procedures, has to be examined to make sore that all the
objectives of the Community regulations are attained. This examination is
sometimes further complicated by the interdependence of national and regional
legislation, which led in one specific case to more than fifty pieces of legislation for
transposing one Directive into national (and regional) law. In another case,
legislation was transmitted to the Commission which was adopted at the end of the
19th century and subsequently changed at regular intervals.
Special problems arise if the Community Directive is incorporated not by
central government, but, for example, by regional authorities. Lander, autonom-
ous provinces, etc. Each Member State is free to devolve powers in its country as it
sees fit, for example to delegate the responsibility for adopting the measures to
implement the Directive to regional or local authorities.29 The Commission must
make sure that the Directive is applied throughout each Member State's entire
territory. Generally, it can be said that in those Member States where regional
entities are responsible for adopting legislative or regulator}' environmental
measures — i. e. in Belgium, Germany, Italy, Spain, United Kingdom — a marked
delay in the transposal of Directives throughout the territory of the Member State
can be observed.
The Commission has repeatedly taken action in cases where a Community
Directive on the environment has been incorporated into national legislation by an
administrative circular. Circulars are widely used in environmental law and prac-
tice. The form of these circulars varies considerably from one Member State to
another. So, too, do their scope, legal status and, hence, compatibility with
Community law. Following the line consistently taken by the Court of Justice, the
Commission is of the opinion that Directives conferring rights or imposing
29 In Belgium, Germany, Italy, Spain and partly in the United Kingdom and the
Netherlands there exists the competence to adopt rules which transpose EEC directives,
with entities other than with the central State.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 197
obligations on private individuals cannot be properly implemented by internal
circulars which can be amended at any such time as the national administration sees
fit. The same applies to unpublished circulars or to published circulars which can
subsequently be amended by unpublished circulars. In all such cases, the public has
no way of knowing the exact law which is applicable. As the Court of Justice
stated, in such cases legal certainty commands that rules with a mandatory
character are issued.
II y a lieu de rappeler que la conformite d'une pratique avec les imperatifs de protection
d'uneDirective ne saurait constituer une raison de ne pas transposer cette Directive dans
I'ordre juridique interne par des dispositions susceptibles de creer une situation suffi-
samment precise, claire et transparente pour permettre aux particuliers de connaitre les
droits et de s'en prevaloir. Ainsi que la Cour I'a juge dans 1'arret du 15 mars 1990,
Commission / Pays-Bas (339/87, non encore public au Recueil, point 25), afin de garantir
lipleine application des Directives, en droit et non seulement en fait, les Etats membres
doivent prevoir un cadre legal precis dans le domaine concerne.30
It may be deduced from this case law that, generally speaking, administrative
measures are not sufficient to incorporate environmental Directives in national
law and that regulations or even laws are needed for this purpose, as soon as these
Community instruments pronounce prohibitions, fix concentrations or otherwise
refer to rights or obligations of individuals.
Furthermore, these legal measures must be published in an official gazette or
some other suitable form, so as to inform all persons subject to the law about
measures to protect the environment and enable them to ensure they are complied
with.
Another important problem is that of limit values. Sometimes, it is argued that
there is no need to explicitly include the limit values set at the Community level for
the concentration of certain pollutants in the air or water in the national
legislation, but that all Member States have to do is to ensure that the values are
observed in practice. The Commission has always firmly asserted that the Com-
munity limit values must be enshrined in generally applicable legislation or
regulations. It must be possible to find the limit value set by the Community in the
national rules. The Court of Justice stated in this regard:31
Thus, it is clear that legal certainty also requires the specific transposal of individual limit
values, maximum permissible concentrations and emission values into national legisla-
tion. A general reference to Community legislation is not permitted.
A Directive is also deemed to be incompletely incorporated if, for example,
national law allows administrative authorities to make exceptions to the provi-
10 Court of Justice, Case 131/88, Commission v. Germany, Judgment of 28 February
1991,asyetunreported.
11 Court of Justice, Case 361/88, Commission v. Germany, Judgment of 30 May 1991, as
ye: unreported.
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198 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORC: MEN-
sions of the national law in question, while the Directive does not provide for such
exceptions. The same applies if the definitions of the Directive are not incorporat-
ed in their entirety into national law — which would alter the scope of the
Directive.
Another example is that of Directive 85/337/EEC on the assessment of the
effects of certain projects on the environment. The measures taken by some
Member States to implement that Directive leave it entirely to the discretion of
the Member States to decide whether such an assessment is needed for projects
covered by Annex II to the Directive. However, the recitals and the various clauses
of the Directive, particularly Article 2, clearly imply that an environmental impact
assessment must also be made for the projects listed in Annex II, whenever the
nature, scale or site of the project so dictate. Accordingly, the national legislation
must make provision for the assessment of the projects listed in Annex II in such
circumstances. National legislation providing only for environmental impact
assessments of projects listed in Annex I cannot, therefore, be regarded as
complete.
Until now, little has been done to tackle the problem of sanctions provided for
by national legislation implementing the Community rules. Recently, the Court of
Justice ruled that Member States are under an obligation to impose sanctions for
non-compliance with their national provisions implementing a Community Direc-
tive.32 Each Member State is free to choose whichever sanctions it considers
appropriate, as long as they provide an adequate, effective deterrent in proportion
to the offence, and are of equivalent force to the sanctions imposed in similar cases
by the national legislation.
Financial sanctions came to Community environmental policy almost through
the back-door. Following the amendment of the EEC Treaty in 1987 and the
implementation of its Article 130d, the Council, in 1988 adopted Regulation
2052/88 on the reform of the Community Structural Funds33 or, in more simplistic
terms, on the main instruments of financial intervention of the EEC in matters of
agricultural, regional or social policy. Article 7 of this Regulation states:
Measures financed by the Structural Funds or receiving assistance from the European
Investment Bank or from another existing financial instrument shall be in keeping with
the provisions of the Treaties, with the instruments adopted pursuant thereto and with
Community policies, including those concerning ... environmental protection.
Thus, according to this provision, measures may not be financed with resources
from the Structural Funds if they fail to comply with all the provisions of
secondary environmental legislation and, in addition, the objectives of Communi-
ty environment policy, as set out in Article 130r (1) of the Treaty.
" Court of Justice, Case 68/88, Commission v. Greece, ECR [1989] 2965.
53 Regulation 2052/88 on reform of the Community Structural Funds, OJEC1988, No L
185/13.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 199
Subsequently, on several occasions the Commission suspended payments in the
framework of regional policy which were destined to co-finance projects that did
not altogether comply with environmental legislation. The main areas covered
were the construction of motorways or other infrastructure projects without a
proper environmental impact assessment according to Directive 85/337/EEC. As
evaluated from the echo in the national media, this blocking of funds had a far
greater impact on national or regional decision-making procedures than any
procedure under Article 169 could have hoped to achieve. What is more, the
systematic approach by the European Investment Bank and by the Commission, to
ask whenever a project is submitted for financial assistance whether environmental
legislation is complied with, has a marked, though admittedly slowly increasing,
preventive effect on local, regional or national administrations, particularly in the
transport, infrastructure, or economic development sectors.
The threat of financial sanctions is, of course, limited. Until now, there has not
been one single decision to refuse payment due to disregard of environmental
legislation. And in the area of large or important infrastructure projects the
political pressure exercised becomes overwhelming — casting some doubt whether
the threat of refusal to give financial assistance really is an effective tool in
monitoring implementation. In the end, much probably depends on the determi-
nation to give full effect to Article 7 of Regulation 2052/88.
a) Nature Conservation
In none of the Member States is Directive 79/409/EEC on the conservation of
birds" incorporated into national law by a single legislative instrument or set of
rules. For a start, rule-making powers in the sphere of nature conservation are
often delegated to the regions, as is the case in Belgium, Germany, Italy, Spain and
the United Kingdom. Even in a country like France, the rules governing hunting
ire laid down partly at the departmental level and on an annual basis as regards the
hunting periods. Furthermore, the rules incorporating the Directive into national
law relate to nature conservation, the protection of endangered species and
hunting, and are therefore laid down in legislation which is traditionally separate.
As a result, the Commission has to scrutinize more than twenty texts in some
Member States and study how they relate to one another, and is sometimes unable
to keep track of the frequent amendments which are made.
In a large number of Member States the rules on hunting, which were introduced
long before the adoption of Directive 79/409/EEC, have not been brought into line
with it, due partly to the activities of pressure groups. The Commission has
therefore initiated proceedings on the grounds of partial compliance against most
of the Member States, including the United Kingdom, Germany, Denmark and
34 Directive 79/409 (note 17).
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200 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
the Netherlands. In the case of Germany and the Netherlarrds, the matter was even
referred to the Court of Justice35 but the necessary amendments still have to be
made.
A specific problem concerns certain birds which are sometimes considered not
to need protection. In its proposal for Directive 79/409/EEC, the Cbmmission had
suggested to exempt such birds — jays, magpies, rooks and others — from the field
of application of Directive 79/409/EEC.36 The Council unanimously decided that
all wild birds need protection.37 When the Commission later tried to enforce
Directive 79/409/EEC, it met with considerable opposition. The United King-
dom, Germany, Denmark, Ireland and others deliberately deviated from the
Directive's requirements and provided for little or no protection for a number of
"pest" birds.38 In 1991, the Commission proposed an amendment to Directive 79/
409/EEC which allowed the hunting of a number of pest birds, thus adapting the
law to practice.39
The Directive allows for derogations "where no other satisfactory solution can
be found" (Article 9). This very general wording has led to over-generous deroga-
tions being granted under the national rules.
As regards Directive 85/337/EEC,40 the task of assessing the compliance with
Community law of the national provisions giving effect to it is complicated by the
fact that most Member States have only recently introduced legislation. These
national rules are often very complex owing to their regional nature, do not always
refer to the same criteria as Directive 85/337/EEC and contain omissions or
deviations.
The most serious problem encountered so far concerns the incorrect transposal
of the provisions relating to the assessment of the environmental effects of projects
under Annex II. According to the Commission's interpretation, Articles 2 and 4
(2) of the Directive do not allow the Member States complete discretion as to
whether or not to require an assessment of projects under Annex II; such an
assessment must be made when, for instance, the nature, scale or location of a
project so requires. Therefore, the national legislation must stipulate that each
case be examined on its own merits, or must lay down criteria for projects under
Annex II.
" Court of Justice, Case 288/88, Commission v. Germany, Judgment of 3 July 1990, not
yet reported, Case C 339/87, Commission v. Netherlands, Judgment of 15 March 1990, not
yet reported.
3& OJEC 1977, No C 24/3.
37 Directive 79/409 (note 17).
38 Of course, each Member State had its own list of "pest" birds.
" OJEC 1991, No C 63/19.
40 Directive 85/337 (note 14).
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 201
b) Water
In applying Directive 74/440/EEC (quality of surface water)/1 a number of
Member States exempt surface water which is "bank-filtered" before being used as
drinking water. In support of such exemptions they invoke a statement -entered
into the Council minutes when the Directive was adopted.42 The Italian legislation
expressly stated that compliance with certain parameters would not be monitored.
The legislation of several Member States on drinking water (Directive 80/778/
EEC)43 is a cause for concern, either because the maximum authorized concentra-
tions of certain pollutants have not been incorporated in the national legislation,
or because the national rules make express provision for certain concentrations to
be exceeded. Derogations of this kind were provided for in Germany (up until
1989), Italy, Spain (up until 1991) and Belgium.
In addition, Germany and the United Kingdom have issued recommendations
for action in the event of certain values being exceeded: this practice seems
contrary to the requirement to apply the Directive in full.
The Commission has asked the Court of Justice to give a ruling on the nature of
the obligation of the Member States to incorporate the details of Directive 80/687
EEC on groundwater into national law. The Court's decision, confirming the
Commission's viewpoint, fixed important requirements for the implementation of
Directive 80/68/EEC and, indeed, other environmental Directives.44
c) Air Pollution
The Commission takes the view that the Directives laying down air quality limit
values which "must 'not be exceeded throughout the territory of the Member
States" must be transposed into national law in such a way that the limit value laid
down is incorporated into the national legislative instrument. As there was a
difference of opinion on this point between the Commission and Germany, the
Court of Justice, to which the Commission had referred the matter, handed down a
judgment during 1991 with precise criteria as to what may be required of national
implementing legislation.45
41 Directive 75/440 on the quality of surface water intended for the abstraction of
drinking water, OJEC 1975, No L 194/26.
42 The Court of Justice has ruled that declarations in the Council minutes, which are not
published, may not be used for the interpretation of a Directive, Case 429/85, Commission
v. Italy [1988] ECR 416.
11 Directive 80/778 on the Quality of Water Intended for Human Consumption, OJEC
1980, No L 229/1.
44 Court of Justice, Case 131/88 (note 30).
45 Court of Justice, Case 361/88 (note 31).
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202 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCED -ENT
The incorporation of Directive 84/360/EEC on air pollution from industrial
installations46 into national law has proved a problem in some Member States, in
particular as regards the clause which stipulates that the authorities must require
new plants to use the best available technology not entailing excessive costs. The
problem is that while this requirement is designed first and foremost to ensure that
the Directive is actually applied in practice, this is not possible in the absence of a
corresponding requirement in the national rules. Furthermore, in the absence of a
consensus determining what the best available technology in a specific sector of
industry actually is, each Member State interprets this notion in a different way.
d) Chemicals
In the chemicals sector the problem of partial compliance arises above all in the
context of Directive 82/501/EEC on the prevention of industrial accidents and the
subsequent amendments to it.'17 The complex and innovative nature of this
Directive has led to disparities between the national rules on certain points,
particularly where they pre-date the Community rules.
e) Noise
As regards the conformity of national legislation to the Directives, Belgium
granted exemptions from Directive 80/51/EEC on aircraft noise, allowing the
regional airports more time to come into line with the Directive.48 The Commis-
sion initiated an urgency procedure, and at the beginning of 1991 was informed by
the Belgians that the exemption had expired at the end of 1990 and would not be
extended.
f) Waste
Monitoring the compliance of national legislation with the Community provi-
sions on waste has proved particularly difficult since the Commission has been
preparing substantial amendments for a number of years now, in particular to
Directives 75/442 (waste),49 79/319 (dangerous waste),50 76/403 (PCBs and
PCTs),51 84/631 (transport of waste)52 and 85/339 (containers of liquids for human
46 Directive 84/360 on Air Pollution from Industrial Plants, OJEC 1984, No L 188/20.
47 Directive 82/501 on the Major-Accident Hazards of Certain Industrial Activities,
OJEC 1982, No L 230/1.
48 Directive 80/51 on the Limitation of Noise Emissions from Subsonic Aircraft, OJEC
1980, No L 18/26.
49 Directive 75/442 on Waste, OJEC 1975, No L 194/39.
50 Directive 78/319 (note 7).
51 Directive 76/403 on PCB-PCT, OJ 1976, No L 108/41.
" Directive 84/631 on the Transfrontier Shipment of Hazardous Waste, OJEC
1984, No L 326/31.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 203
consumption)." By now, most of the planned amendments have been incorporated
in formal proposals for amending Directives. In several cases it was deemed
inappropriate, if not impossible, to initiate the procedure under Article 169 against
a Member State if the Community provision in question was liable to be amended
by the Council.
Here, too, the lack of precise definitions in the Directives has been a problem.
For example, the definition of toxic and dangerous waste in Directive 78/319/
EEC54 is so vague that it is hardly surprising if Member States adopt many varying
ipproaches to defining what constitutes dangerous waste.
Directive 75/442 and 78/319 state that (hazardous) waste must be disposed of
"without endangering human health and without damaging the environment, and
in particular ... without risk to water, air, soil and plants and animals."" From a
stricdy legal viewpoint, a clause of this kind can easily be transposed into a national
rule which, while it follows the original to the letter, may easily be circumvented in
practice in disposing of hazardous waste.
Furthermore, there is a difference of opinion between the Member States and
the Commission as to whether waste should be governed by Article 100 a or Article
130s. This has led the Commission to ask the Court of Justice for a ruling on the
matter.5* Finally, in spite of the Court decisions in 1990 reaffirming that recyclable
waste should be classified as waste,57 some Member States treat this waste as a
product and therefore exempt it from the rules applicable to waste.
These problems, allied to staff shortages and the fact that the application of
environmental law has only been systematically monitored since 1984, have meant
that there has been no systematic monitoring of the compliance of the national
rules with Community law. A further contributory factor has been the failure of
the Member States to draw up the waste management plans or programmes which
they are required by the Directives to adopt, forward to the Commission and then
implement.
The Commission has thus been mainly engaged in examining the compliance of
the national legislation with Community law which is actually being implemented.
3. Inadequate Application of Community Environmental Rules
National legislation implementing a Community Directive on the environment
cannot provide automatic protection for the environment. It must be applied in
" Directive 85/339 (note 28).
54 Directive 78/319 (note 7).
55 Directive 75/442 (note 49), Article 4; Directive 78/319 (note 7), Article 5.
* Case C55/91, Commission v. Council, OJEC 1991, No C 288/8.
57 Court of Justice, Case 206-207/89, Zanetti, Judgment of 28 March 1990, not yet
reported.
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204 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
practice. In other words, pians or programmes must be adopted and implemented,
limit values must be enforced, official licences must be adapted, etc. Even national
legislation copying a Directive word for word will remain meaningless unless it is
applied.
Every Community Directive on the environment includes a clause requiring the
Member States to inform the Commission of the national rules adopted to
implement the Directive and to send the text to the Commission. Consequently,
incorporation of the Directives into national legislation and the compatibility of
this national legislation with the Commission provisions can be monitored by
examining the texts adopted. However, the Community Directives do not nor-
mally contain a clause requiring the Member States to inform the Commission of
the effective implementation of the Community rules on the environment.
It is true that many of the Directives on the environment require the Member
States to submit regular reports on the measures taken to implement the Direc-
tives or specific aspects of the Community rules. However, not all Member States
systematically submit these reports to the Commission. Only a minority, in
particular Denmark and the United Kingdom, have fully complied with their
obligations. The Commission mentioned this in its report to Parliament on the
implementation of the Community waste Directives.58 In this case, as with
Directive 79/409/EEC,s* several Member States failed to submit their reports,
making it impossible for the Commission to publish its own three-yearly report on
the measures taken to implement the Directives. A similar situation has arisen in
the case of air quality,60 where the Commission's yearly reports have fallen behind
schedule because the Member States have been submitting their own reports late,
if at all.
Apart from the submission problem, the national reports on the implementing
measures usually give no detailed evidence of effective implementation of the rules
on the environment. Instead, they primarily provide a brief summary of the
technical and administrative measures already in place or adopted.
The reports from the Member States therefore are rarely a source of information
on effective implementation of Community environmental rules.
The Commission has conducted some studies of its own on effective implemen-
tation of the Directives on the environment in the Member States, although
inevitably only in a limited number.61 An added problem which necessarily limits
51 Commission (note 27).
" Directive 79/409 (note 17).
40 Directive 80/779 on Air Quality Limit Values and Guide Values for Sulphur Dioxide
and Suspended Particulates, OJEC 1980, No L 292/30; Directive 82/884 on a Limit Value
for Lead in the Air, OJEC 1982, No L 378/115; Directive 85/203 on Air Quality Standards
for Nitrogen Dioxide, OJEC 1985, No L 87/1.
61 These studies are not systematically published.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
205
the value of such studies is that it has proved extremely difficult to gain access to
the data held by the national, regional or local authorities on, for example, the
frequency and results of the inspections, the firms inspected, the conditions laid
down in the licences granted or the pollution levels recorded.
Consequently, the Commission's main sources of information are the com-
plaints. The complaints system introduced by the Commission in the late 1960s,
originally to smooth the way for the completion of the internal market, has
mushroomed spectacularly in recent years where the environment is concerned.
This trend has been boosted by the growing number of written and oral questions
or petitions reporting inadequate implementation of the rules on the environment.
The Commission has decided to treat these in the same way as complaints. The
following figures show the development:62
Number of Complaints and of Cases Otherwise Detected by the Commission's Own Inquiries
Environment
Year
1982
1983
1984
1985
1986
1987
1988
1989
1990
Complaints
10
8
9
37
165
150
216
465
480
Cases
otherwise
detected
_
-
2
10
32
38
33
60
42
All sects i s of EEC activity
Complaints
352
399
476
585
791
850
1.137
1.195
1.252
Cases
otherwise
detected
112
192
145
244
293
260
307
352
283
Sectors in 1990
Complaints
Cases otherwise detected
Air
Chemicals
Water
Noise
Waste
Nature
26
5
140
6
34
269
22
1
3
14
(Directive 85/337/EEC on the assessment of the effect of certain public and private projects on the
environment is included under "nature")
" Commission (note 11), 57-59; the data for 1990 have not yet been published.
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206
INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Complaints and Cases Otherwise Detected l$82-199Ot'*
1 = complaints 2 = cases otherwise detected
Country
Belgium
Germany
Denmark
Spain
France
United Kingdom
Greece
Ireland
Italy
Luxemburg
Netherlands
Portugal
Country
Belgium
Germany
Denmark
Spain
France
United Kingdom
Greece
Ireland
Italy
Luxemburg
Netherlands
Portugal
19
1
7
6
1
5
44
32
53
-
13
-
2
2
165
86
2
3
6
2
-
5
-
3
5
3
2
3
-
32
1
19
1
4
14
4
29
16
30
17
9
16
-
4
7
150
1982
1 1
1 -
1 -
4 -
1 -
1
2 -
0 C
87
2
3
6
3
4
1
3
3
1
6
5
1
2
38
•
i
19
1
6
35
5
51
36
31
13
12
15
1
2
9
216
1983
t 2
L -
1 -
1 -
3 0
88
2
3
3
1
4
2
7
2
2
3
1
5
-
33
1
1
1
2
2
4
9
19
1
18
36
-
91
43
192
24
24
22
-
5
10
465
984
2
2
2
89
2
3
3
1
10
6
9
11
3
7
3
2
2
60
19
1
0
3
1
3
11
14
2
3
37
19
1
17
56
3
111
47
125
40
19
33
3
7
19
480
85
2
1
1
1
2
3
1
1
10
90
2
5
2
_
16
2
2
4
_
9
-
_
2
42
The fact that individuals are able to register a complaint with the Commission,
can promote the creation of a Community-wide awareness of the environment,
strengthen the accessibility of the institutions of the European Communities for
*3 Commission (note 11), 57-59; the data for 1990 have not yet been published.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 207
the man-in-the-street, and bring home to the individual the fact that he bears part
of the responsibility for his environment and can contribute to its protection and
maintenance. The Commission makes every effort to encourage complaints. Every
letter complaining that Community environmental law — or Community laws
relating to other fields — is being infringed is entered in a special register of
complaints maintained by the Commission. The Commission does not require
that the complainant provides proof of his contentions, cites provisions and
Directives or observes other formalities. However, the complaint must be suffi-
ciently specific to enable an investigation to be carried out. Such vague claims as
"birds are being killed in ..." or "the water in X is undrinkable" are not treated as
complaints.
The Commission informs the complainant that his letter has been entered in the
register of complaints and, at the same time, requests the factual and legal
information from the Member State needed to assess the complaint. The Commis-
sion obtains its own expert's opinions and, where necessary, requests that docu-
ments be submitted to it. As yet there have been no formal hearings of witnesses of
the parties involved, as part of the process of investigating a complaint such action
would seldom have any practical relevance.
When the facts of the case have been clarified, the Commission makes a formal
decision within one year of receiving the complaint. If the Commission decides to
initiate a procedure under Article 169, it sends a letter of formal notice to the
Member State in question, which — like all other action taken in the course of the
complaint procedure — treats the identity of the complainant as confidential. If
the Commission has been unable to discover an infringement of Community law, it
discontinues the procedure and informs the complainant accordingly.
There is no provision for complaining about the discontinuation of the proce-
dure." However, a complainant may, of course, advance counterarguments which
can lead to a new procedure.
Yet although these complaints from members of the public, industry, non-
governmental organisations, and, on occasion, local authorities, embassies or even
government ministers express the concern felt for the environment and the
importance attached to action by the Community, the current arrangements
display two main disadvantages from an institutional point of view:
The Commission has to concentrate its efforts on the cases brought to its
attention by the plaintiffs. These are not necessarily either the most serious or the
most urgent cases. Above all, a complaint is a sign that the citizens are willing to
seek a solution to the problem facing them. If the public resigns itself to a
deteriorating environment, there is virtually nothing the Commission can do.
Secondly, effective implementation of the rules on the environment depends on
" Court of Justice, Case 247/87 Star Fruit Company v. Commission (1989), ECR 836.
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208 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
application at the local, regional or national level, which is more effective in some
places than in others — a situation that runs counter to the principle that
Community rules must be applied identically throughout the Community. Thus,
when the Commission tackles the non-respect of Directive 76/160/EEC on the
quality of bathing water as regards this or that beach,*5 it does not at the time
tackle the quality of other bathing water in the same Member State or, indeed, in
other Member States.
Directive 80/778 relating to the quality of water intended for human consump-
tion66 is one example. As the Commission had no data on the quality of the
drinking water in Greece as a whole it initiated just one procedure concerning one
specific site in that country in response to a complaint. However, after receiving
numerous complaints about the drinking water quality in the United Kingdom,
Germany, France, Spain, Belgium and other Member States, the Commission
initiated a series of general procedures based on Article 169 against those coun-
tries.
The Commission lacks the resources to assess the validity and accuracy of the
data or the reports received from the plaintiff. Basically, all it can do is to ask the
Member States for their comments on the points raised by the person lodging the
complaint. With some 500 complaints a year, this generates a constant flood of
requests for information, exchanges of documents, etc., aggravated by the fact that
the central authorities in the Member States themselves have to seek the data from
the regional or local authorities or firms concerned, a cumbersome procedure,
although by no means justifying the often lengthy delays before the Member States
reply.
The Commission has to base its own assessment of the case on the replies which
it receives. However, since the Commission lacks the resources to study each file
submitted to it in depth, there is a danger that any action it takes will be limited.
What is more, the Commission departments are steadily becoming overloaded
with processing increasingly difficult, complex technical complaints.
One such example is the procedure to assess whether the Member States have
really taken the measure to avoid "any disturbances affecting birds insofar as these
would be significant having regard to the objectives" of conserving wild birds
(Article 4 (4) of Directive 79/409),67 where some of the dossiers substantiating the
complaints are several thousand pages long. Similar situations have arisen with
complaints asking the Commission to examine whether dangerous wastes are
being disposed of "without endangering human health and without harming the
environment" (Article 5 of Directive 78/319).68 The same applies to environmental
6S Directive 76/160 on the Quality of Bathing Water, OJEC 1976, No L 31/1.
** Directive 80/779 (note 43).
67 Directive 79/409 (note 17).
" Directive 78/319 (note 7).
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 209
impact assessments, where some plaintiffs submit bulky, highly complex dossiers
requiring detailed examination to ascertain whether the rules laid down in the
Directive on the content of the impact assessment have been observed. There are
numerous examples of this kind, for instance, the construction of motorways,
highspeed railways, bridges, tunnels, dams etc.
Many Directives call for preparation of a plan or programme designed to bring
about a gradual improvement in the state of the environment. But since neither
"plan" nor "programme" is defined in the environmental directives, the Member
States' interpretations vary widely.
All too often these plans or programmes are not submitted to the Commission,
despite the specific requirements laid down in the Directives. For example, the
Commission's first report on the implementation of Directive 80/779 on air
quality limit values for sulphur dioxide and suspended particulates69 stated that
over 120 sites had been designated as highly polluted by the Member States, which
therefore should have submitted clean-up plans for them. By the time of the
Commission's fourth report 56 such sites remained. However by the start of 1991
the Commission had received just eight clean-up programmes. Moreover, the
Commission has received no clean-up programme for any of the four sites
designated by the Member States under Directive 82/884 on lead in the air.70
Finally, neither has the Commission received a single programme for the 35 zones
designated under Directive 85/203 on air quality standards for nitrogen dioxide,71
apart from a number of general measures from France to improve air quality.
There is one other reason for mentioning these three Directives. They not only
stipulate that the quality objectives which they have laid down should not be
exceeded within the territory of the Member States but also require the Member
States to set up measuring stations to see whether they are exceeded at the sites
where the highest pollution levels are suspected. However, the wording says
nothing about the number of measuring stations required. As a result, Germany
(excluding the new Lander) has 200 stations, France 85 and the Netherlands 42,
but Spain has just 15 and the United Kingdom only six,72
It is repeatedly argued in complaints that nitrogen dioxide levels in the air are
too high in one Member State or another. But all too often it turns out that no air
quality measurements are taken at the site mentioned in the complaint. Since the
complaints concerned built-up areas, this leads to the conclusion that in some
parts of the Community, the limit values are not respected all over the territory of
w Directive 80/779 (note 60).
70 Directive 82/884 (note 60).
71 Directive 85/203 (note 60).
7- Institute for European Environmental Policy, Control of Implementation of Com-
munity Directives on Air Pollution in Member States (London) 1987.
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210 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
a Member State, but rather only at those places where measuring stations are
installed.71
Apart from these procedural problems, there is one other major obstacle to
monitoring the practical implementation of the Community Directives:
The Directives, which are addressed to the Member States, not to private
citizens or firms, are often imprecisely worded. For example, several stipulate that
companies emitting pollutants must use "the best available technology not
entailing excessive cost".71* Since the Community has given no clear, precise
definition of the implications of this concept for individual industries, it is
interpreted differently from one Member State to another, from one industry to
another and, probably, even from one company to another. Article 13 of Directive
84/360 requires the Member States to "implement policies and strategies... for the
gradual adaptation of existing plants ... to the best available technology ... not
entailing excessive costs".75 The loose wording of this clause makes it virtually
impossible to monitor whether a given Member State has fulfilled its obligations
under Article 13 of this Directive at any given installation.
Article 3 of Directive 85/210 on the lead content of petrol76 requires the Member
States "to take the necessary measures to ensure the availability and balanced
distribution within their territory of unleaded petrol from 1 October 1989". The
Commission has initiated several Article 169 procedures to ensure the effective
implementation of this clause. Nevertheless, the difficulties hampering rigorous
application of Article 3 are only too obvious.
Directives 75/442 on waste and 78/319 on dangerous waste" stipulate that waste
should be disposed of "without endangering human health and without harming
the environment", and in particular "without risk to water, air, soil, plants or
animals". It is submitted, that this clause would be precise enough to oblige clean-
up measures for leaking landfill sites, but obviously gives broad scope for interpre-
tation.
Article 6 of Directive 76/160 on bathing water quality,78 in conjunction with
Annex V to the Directive, calls for the monitoring of the salmonella content in
bathing water, "should inspection ... reveal that there is a discharge or a probable
discharge of substances likely to lower the quality of the bathing water". Monitor-
ing can therefore be avoided simply by not carrying out the inspections, which are
left to the discretion of the Member States.
71 See wording of Article 6 and Annex III of Directive 85/203 (note 60).
74 Directive 84/360 (note 46), Article 4; Directive 89/369 (note 15), Article 3.
75 Directive 84/360 (note 46).
76 Directive 85/210 (note 21).
77 Directive 75/442 (note 49); Directive 78/319 (note 7).
71 Directive 76/160 (note 67).
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 211
Articles 3 and 4 of Directive 89/428 on waste from the titanium dioxide
industry7' require the Member States to prohibit all discharges of the waste into
water bodies covered by the Directive with effect from the end of 1989. However,
it also allows the postponement of this ban until 1992 or 1994 "if serious techno-
economic difficulties" so dictate. It is virtually impossible for the Commission to
monitor this clause, all the more so since the Commission bears the burden of
proof that the techno-economic difficulties are not serious enough to require
postponement once a Member State has invoked it.
The Commission's efforts to monitor effective implementation of Community
Directives have concentrated on the cases highlighted by complaints, petitions or
written or oral questions. Each case has been systematically investigated in line
with the Commission's internal instructions for handling complaints, which
reflect the guarantee given on the complaint form that every case will be looked
into.80 Beyond this, the Commission has almost no other sources of information
enabling it to assess whether the Directives on the environment are effectively
implemented. In cases where its investigations into a complaint or a matter raised
by Parliament reveal a more general problem, the Commission examines the
practice in each Member State. For example, when the Commission discovered
that Belgium was failing to comply with Directive 80/51 on aircraft noise81 it asked
all the other Member States for information to check whether the aircraft landing
on their territory complied with the Directive.
On rare occasions, the Commission departments visit a place in order to find out
more about the facts of a particular complaint. These visits take place at the
initiative of the Commission, which informs the Member State and the complain-
ant of its intention, in order to ensure that all facts can be clarified on the site.
Though the repercussions of such visits are sometimes considerable, they cannot
be called inspections, since no investigation is carried out. It would seem more
appropriate to call them fact-finding missions, since their main purpose is to clarify
all the facts of a case in order to allow a proper legal assessment of whether there is a
breach of Community law. The European Parliament has been asking for several
years for environmental inspectors to be instituted at the Commission. They
would be charged to check the implementation of EEC environmental legislation
in and by Member States.82 This request was repeated in 1989 when the Commis-
sion suggested the creation of an European Environmental Agency. Parliament
wanted this Agency to also be able to make inspections, whereas the Commission
79 Directive 89/428 on Waste from the Titanium Dioxide Industry, OJEC 1989, No L
201/56.
10 The internal instructions are not published. See, however, the standard complaint
form which has been published by the Commission and which gives complainants some
"guarantees" as regards the handling of the complaint, OJEC 1989, No C 28/6.
11 Directive 80/51 (note 48).
12 European Parliament (note 3).
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212 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
and the Member States preferred to give it the task mainly of collecting, processing
and distributing data on the environment. By way of compromise, an Article 20
was included in the Council's Regulation creating the Agency, stating that the
Council would, within two years, reconsider the question whether environmental
inspection should be one of the Agency's tasks.83
At the Community level, inspectors act at present in the areas of customs,
fishery, competition and nuclear energy. Furthermore, Community veterinarians,
together with Member States' veterinarians, visit slaughterhouses inside the EEC
and in all other countries which import meat into the EEC, in order to check
hygiene conditions. If Community inspectors can act in all of these sectors, there is
no institutional argument against having EEC environmental inspectors. The
opposition to this proposal thus seems to be rather ideological.
The Commission has, until now, refrained in two areas from systematically
taking action each time a Member State fails to meet an obligation explicitly
imposed by a Directive. The first is the submission of a clean-up plan or
programme. There have been too many such cases. For example, no Member State
has sent the Commission plans, as provided for in Article 12 of Directive 78/319,
relating to the disposal of toxic and dangerous waste throughout its territory.8*
The same applies to Directive 75/442 on waste.85 The unsatisfactory situation as
regards the clean air programmes has been mentioned above. As regards water
quality, Article 7 of Directive 76/46486 requires the Member States to determine
the level of pollution of surface and coastal waters by the substances included in
List II of the Directive and to lay down quality objectives in this area.
The second area concerns the non-submission of reports on the measures taken
to implement the Directives on the environment. Once again, there have been so
many cases that systematic action was probably considered unlikely to produce any
improvement.
The failure to submit clean-up programmes and reports on the measures taken
to implement the Directives is a sign of the weakness of the local, regional or
national authorities' infrastructure for environmental protection. Preparation and
implementation of clean-up plans or programmes calls for constant action entail-
ing the deployment of considerable human and financial resources by the adminis-
trations concerned. These resources are not available in sufficient quantity every-
where in the Community.
IJ Regulation 1210/90 on the Establishment of a European Environmental Agency,
OJEC 1990, No L 210/1. It should be noted that the word "inspection" is not used in the
text.
14 Directive 78/319 (note 7).
15 Directive 75/442 (note 49).
" Directive 76/464 on Pollution caused by Certain Dangerous Substances Discharged
into the Aquatic Environment, OJEC 1976, No L 129/23.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 213
To try to solve the problems encountered with the reports on implementing the
Directives, the Commission submitted, in 1990, a proposal for a Council Directive
to ensure more rational, systematic preparation of the national reports.87 In
particular, it proposed that these reports should be:
(a) based on a questionnaire compiled by the Commission;
(b) written sector by sector (air, water, waste, etc.);
(c) submitted at three-yearly intervals.
This proposal will, once adopted, fill a major gap in implementation of the
Community law on the environment.
a) Nature Conservation
The practical application of Directive 79/40988 represents the greatest problem
as far as monitoring the application of environmental legislation is concerned. The
Directive requires Member States to designate habitats for birds under particular
threat — listed in Annex I — and to implement specific conservation measures in
those areas. The designated habitats must form a coherent network throughout
Europe capable of ensuring the conservation and survival of these birds. So far,
some 600 habitats have been designated, about half the figure estimated to be
necessary. Only Denmark and Belgium have entirely fulfilled their obligations in
this regard.
The proceedings instituted under Article 169 relate essentially to two situa-
tions, namely an insufficiency of designated areas and the destruction of habitats
— already designated or due to be designated as areas of importance for the
conservation of the birds listed in Annex I — as a result of economic activities
(agriculture, industry, urban development, tourism, transport systems, etc.),
which in some cases receive assistance from the Structural Funds. Striking a
balance between economic interests and environmental needs is very complicated
in almost all cases. The judgment of the Court of Justice in case 57/89 which
involved a designated habitat in Germany, now provides some guidelines to the
Commission and to Member States as regards the interpretation of Article 4.89
Little information is available about the practical application of the derogations
which are granted. The annual reports which the Member States are meant to
forward to the Commission either fail to arrive or are couched in such general
terms that they make it virtually impossible to discern whether the provisions of
Article 9 are being complied with in letter and in spirit. At the end of 1990 the
17 OJEC 1990, No C 214/6.
11 Directive 79/409 (note 17).
19 Court of Justice, Case 57/89, Commission v. Germany, Judgment of 28 February 1991,
is yet unreported.
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214 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Commission published a report "Information sur 1'application de la directive 79/
409".**° The fact that until now it has not been possible to publish a single one of
the three-year reports which it is obliged to publish under Article 13 of that
Directive aptly illustrates the difficulty in obtaining appropriate information.
In the majority of Member States the implementation of Directive 85/33791 is
still in its infancy. Except in very extreme cases the Commission refrains from
intervening as regards the quality of impact studies and the subsequent assessment,
as the Directive makes no such provision. The result is that, even when the
procedure provided for by the Directive is formally observed, the impact studies
are often mediocre and almost invariably under-estimate environmental effects. In
addition, the opinions expressed by members of the public when consultations are
held are not necessarily taken into account by the authorities. The impact
assessment therefore frequently takes on the appearance of a formal exercise
designed to justify the completion of a project which has already been decided
upon on the basis of economic and technical criteria.
Furthermore, where the realisation of large infrastructure projects is in ques-
tion, such as the building of motorways, high-speed railways, bridges, tunnels etc.,
the political pressure at all levels is such that the procedural means of Directive 85/
337 are often not sufficient to ensure that the environmental impact is properly
weighed against other interests.
b) \Vater
The practical application of the water pollution directives represents by far the
biggest problem in the water area.9: With the exception of Directive 76/160,93 the
Commission receives very little information on the application of these directives.
The main source of information continues to be complaints from individuals,
which have been particularly numerous in relation to bathing water and drinking
water.
As regards the directives laying down quality objectives (Directives 75/440 on
surface water,94 76/160 on bathing water,95 78/659 on fish waters,96 79/923 on
90 Commission des Communautes Europeennes, Information sur 1'application de la
directive 79/409/EEC, Bruxclles-Luxembourg 1990, EUR 12835.
91 Directive 85/337 (note 14).
n See also Nigel Haigh I Graham Bennet I Pascals Kromarek I Thierry Lavoux, European
Community Environmental Policy in Practice, Comparative Report: Water and Waste in
Four Countries. A Study on the Implementation of the EEC Directives in France,
Germany, the Netherlands and the United Kingdom, London 1986.
95 Directive 76/150 (note 65).
94 Directive 755/440 (note 41).
95 Directive 76/160 (note 65).
94 Directive 78/659 on the Quality of Fishing Waters, OJEC 1978, No L 222/1.
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shellfish waters97 and 80/778 on drinking water),98 the Member. States were
required to draw up clean-up programmes for water which did not meet the
requirements of the Directives, in order to meet the quality objectives within the
time limit laid down by the Directives. In a large number of cases, these were either
not drawn up or not implemented, with the result that the quality objectives are
still not met. The annual reports published by the Commission on bathing water
show that some 20 % of the bathing waters covered by Directive 76/160 do not
comply with Community provisions." Failure to adhere to the maximum autho-
rized concentrations laid down by Directive 80/778 (drinking water) is a problem
in all the Member States, particular, regarding parameters for nitrates and pesti-
cides. Also, where both directives are concerned, there are cases where not all the
parameters in question are measured.
Regarding Directive 78/659,10° only three Member States have notified the
Commission of fishing waters which fall within the scope of the directive; the
figure for Directive 79/923 is four.101
None of the Member States has forwarded quality objectives to the Commission
for the substances featured in List II of Directive 76/464,102 and at least ten
Member States have not forwarded details of clean-up programmes. The forward-
ing of reports on the implementation of measures in the various sectors contained
in List I is the exception rather than the rule, and does not enable a reliable picture
to be formed as to the extent to which these Directives have been followed by the
Member States.
c) Air Pollution
All the air pollution Directives call for ongoing activity on the part of the
authorities to ensure application of the protective provisions which they contain.
This applies above all to Directives 80/779, 82/884 and 85/203 concerning air
quality, which require measuring stations to be installed in those areas judged by
the Member States to be the most polluted.103 In addition, programmes are to be
prepared to reduce pollution as quickly as possible in those areas where the limit
values are exceeded or are likely to be exceeded.
The very vague wording concerning the installation of measuring stations has
led to great disparity in the number of stations in the different Member States. It
" Directive 79/923 on the Quality required of Shellfish Waters, OJEC 1979, No L 281/
47.
91 Directive 80/778 (note 43).
** The last Report [the 7th] was published in 1990: Commission of the European
Communities, Quality of Bathing Water 1988, Luxemburg 1990, EUR 12579.
100 Directive 78/659 (note 96).
101 Directive 79/923 (note 97).
101 Directive 76/464 (note 86).
103 See references in note 61.
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216 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
was already mentioned that while there are over 200 stations in Germany (Direc-
tive 85/203), there are only six in the United Kingdom. The clause contained in the
Directive stating that the limit values may not be exceeded "throughout the
territory" is therefore impossible to monitor. On a number of occasions, the
Commission's inquiries as to the level of NO* or SO2 in a specific area have
received the reply that there is no measuring station in that area.
The problem of pollution reduction programmes in areas designated by the
Member States has already been referred to. The number of programmes and their
effectiveness in reducing pollution appear to be unsatisfactory. As the annual
reports from the Member States on the implementation of the Directives are also
late,104 the extra contribution of the three Directives to reducing air pollution
remains limited.
Directive 85/210 on the lead content of petrol105 requires the supply of lead-free
petrol to be evenly distributed within Member States by the end of 1989.
Proceedings have been instituted against several Member States which have failed
to ensure a balanced geographical distribution. Lead-free petrol has been intro-
duced more rapidly in those Member States where there is a marked price
difference between leaded and unleaded petrol.106
As regards Directive 84/360 on air pollution from industrial installations,107
there is not enough coherent and reliable information on the application to new
installations of "the principle of the best available technology not entailing
excessive costs". Moreover, the Member States have not provided any information
regarding the policies and strategies adopted to bring existing installations into
line with technological requirements. Any individual case must therefore be
examined on its own merits, which proves particularly difficult.
d) Chemicals
The Commission has been making a special effort regarding the Directives in the
chemicals sector. It organizes regular meetings with experts from the Member
States to discuss matters of a practical and legal nature relating to implementing
the Directives. These consultation meetings have apparently resulted in fewer
implementation difficulties. The cases which do arise mainly concern access by
individuals to information under Article 8 of Directive 82/50110S or the notifica-
tion of accidents pursuant to the same Directive.
ICM At the end of 1990 the Commission had adopted three reports on Directive
80/779, two on Directive 82/884 and one on Directive 85/203.
10S Directive 85/210 (note 21).
106 The Commission suggested a specific article for that purpose, OJEC1984, No C178/
5; the Council did not follow this proposal.
107 Directive 84/360 (note 46).
1M Directive 82/501 (note 47).
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 217
e) Waste
Directives 75/442 and 78/319109 require Member States to designate the compe-
tent authority or authorities responsible for planning operations in a particular
area and the content of the plans being defined by the Directives. Where hazardous
waste is concerned, only three Member States have notified the Commission of
disposal programmes. Germany has forwarded programmes for only some parts of
its territory, and even these do not meet the requirements of the Directive. None
of the other Member States has forwarded plans.
Directive 85/339"° requires programmes to be drawn up and implemented in
order to cut down the number of containers of liquids for human consumption.
Five Member States have not forwarded any programmes, and of those which did,
some were very late.
Directives 75/442,75/439,76/403 and 78/319 require implementation reports to
be forwarded to the Commission every three years.111 Almost without exception
the Member States failed to produce such reports. The Commission therefore sent
out a detailed questionnaire to the Member States on each of the four directives.
Replies were received from seven Member States and the Commission initiated
procedures against the others.112 The questions asked related mainly to the
compliance of the national measures adopted with Community law rather than to
the extent to which they were being applied.
Two-yearly reports on Directive 84/631 were due in 1987 and again in 1989.m To
date, none of the Member States has complied with this requirement.
The Commission has therefore had to rely on complaints, petitions and
parliamentary questions, and even on the media, for the bulk of its information on
threats to the environment caused by waste disposal. Very often it is a private
citizen who, for example, is directly affected by the pollution caused by improper
waste disposal, or whose favourite bathing spot is polluted by discharges of waste
and who, failing to get satisfaction from the national authorities, submits a
complaint to the Commission.
There are clearly very serious problems in most of the Member States as regards
applying the Community rules on waste. Most countries do not appear to have
detailed plans or programmes for the disposal of waste, hazardous waste in
particular, and the existing programmes are not always managed satisfactorily. The
I0» Directive 75/442 (note 49); Directive 78/319 (note 7).
110 Directive 85/339 (note 28).
111 Directive 75/442 (note 49); Directive 75/439 on the Disposal of Waste Oils, OJEC,
No L 194/23; Directive 76/403 (note 51).
112 See for instance Court of Justice, Case C-48/89, Commission v. Italy, Judgment of 14
June 1990, as yet unreported.
113 Directive 84/631 (note 52), Article 13.
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218 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
aim of the Directives, i. e. to ensure the disposal of (hazardous) waste without
damage to humans or the transfrontier shipments of.toxic waste, is virtually
impossible in the absence of precise rules and definitions.
It is therefore hardly surprising that the construction of new waste treatment
plants is the subject of controversy among local residents, and that the completion
of the internal market is greeted with apprehension as far as waste is concerned.
Accordingly, it is essential for the monitoring of the application of the rules on
waste to be stepped up at the national and Community level, in order to obtain an
integrated Community-wide waste management scheme — which does not exist at
present.
V. Monitoring Compliance With International Conventions
As stated above, the Commission does not control the implementation of
international conventions by Member States, even where the Community itself
has ratified these conventions. An exception is made only in those cases where the
EEC has adopted legislation which thus obliges Member States in their turn to
transpose EEC law into national law.
It is submitted that the Commission exercises a self-restraint which is legally
incorrect. An example might help to illustrate the issue: The Berne Convention on
the conservation of European wildlife and natural habitats of 19 September 1979
was ratified by the EEC114 and by most of its Member States. The Convention
requests the Contracting Parties to ensure the conservation of species of wild flora
and fauna, in particular those species that are specified in Appendixes I and II
(Article 4). The EEC has adopted Directive 79/409 on the conservation of wild
birds,11* but has, until now, not adopted rules on the protection of habitats of
other species. The Commission's practice, based on a recital of the decision to
become a Contracting Party to the Convention, is that the Commission may well
monitor the implementation of the obligations regarding wild birds, but not, for
instance, regarding brown bears.
The recital in question reads as follows:
Whereas the Community will take part in such implementation by exercising the powers
resulting from existing common rules and those acquired by it by virtue of future acts
adopted by the Council as well as by making use of the results of the Community actions
(research — exchange of information) undertaken in the areas concerned."*
114 Council decision 82/72 concerning the conclusion of the Convention on the Conser-
vation of European Wildlife and Natural Habitats, OJEC 1982, No L 38/1.
115 Directive 79/409 (note 17).
116 Decision 82/72 (note 114), recital 5.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 219
Thus, in practice, where the habitat of a brown bear is destroyed in a Member
State, the Commission does not undertake any steps and in particular does not
start proceedings under Article 169 against the Member State.
This practice seems doubtful. It should first be remembered that .since the
amendments to the EEC Treaty in 1987, previous disputes about EEC competence
as regards nature protection have disappeared, since Articles 130r to 130t
certainly give the EEC competence to regulate nature protection questions.
The main argument follows from the nature of the EEC's obligation under the
convention. The EEC has promised to take the necessary steps in order to protect
the habitats of (amongst others) brown bears. It follows from Article 5 of the EEC
Treaty that all Member States are obliged to co-operate to achieve this goal.
Article 5 reads:
Member States shall take all appropriate measures, whether general or particular, to
ensure fulfilment of the obligations arising out of this Treaty or resulting from actions
taken by the institutions of the Community. They shall facilitate the achievement of the
Community's tasks. They shall abstain from any measure which could jeopardize the
attainment of the objectives of this Treaty.
By becoming a Contracting Party to the Berne Convention, the EEC has
undertaken to take the necessary measures to protect the habitats of the brown
bear all over the territory of the EEC. Under Article 5 of the EEC Treaty, Member
States are thus obliged, by virtue of Community law, to take the necessary steps in
order to allow the Community to honour its obligation deriving from the Berne
Convention. Where an EEC Member State allows the destruction of such a
habitat, it makes it impossible for the Community to respect its obligation. This is
a breach of the obligation deriving from Article 5. Under the general rules of
Articles 155 and 169 of the Treaty, it must be possible for the Commission to call a
Member State to order where a specific attitude of that Member State leads to a
situation which implies a breach of the Community's obligations towards other
Contracting Parties under the Berne Convention.
The general power of the Commission is all the more evident if the brown, bear
example is varied slightly and the case is constructed so that the only habitats of
the brown bear within the EEC are located in an EEC Member State which has not
signed and ratified the Berne Convention. Under the interpretation given by the
Commission, this Member State would be free to completely destroy the brown
bear habitats, since it is neither bound by the Convention nor by any rule of EEC
law, since no Community legislation for bear habitats exists. Under the interpreta-
tion submitted here, by virtue of the Community's accession to the Berne
Convention, a Member State is obliged under EEC law (Article 5 of the Treaty) to
protect the habitats. The Commission could bring such a case before the Court of
Justice under Article 169.
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220 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
The recital which was quoted above does not contradict this result. Indeed,
when the EEC decided to become a Party to the Convention in 1981, the majority
of EEC Member States were of the opinion that the EEC had no general
competence in matters of nature protection. Since the amendment of the EEC
Treaty in 1987 this EEC competence is no longer in dispute, as Articles 130r to
1301 are very broadly phrased and cover virtually all aspects of environmental
policy. Since at least 1987 the recital of the Decision of 3 December 1981 has thus
become irrelevant.
Since the protection of habitats is the most serious threat to flora and fauna in
Western Europe, it is to be hoped that the Court of Justice will find occasion to
express itself on the issue of monitoring implementation of international environ-
mental conventions of which the EEC is a contracting party. One such way could
be a preliminary ruling under Article 177 of the EEC Treaty.
VI. Publication: Participation of Non-Governmental Organisations
The correspondence between the Commission and Member States on com-
pliance is not made public. Following some requests made in the United Kingdom,
the European Parliament repeatedly asked for the publication of the so-called
"compliance letters" i.e. the letters by which a Member State informs the
Commission of measures taken to transpose an EEC directive into national law.117
However, information given to the Commission is most often limited to the
transmission of the relevant piece of legislation.118
The letters of formal notice and reasoned opinion are not published. Occasion-
ally the Commission publishes a press release on such cases as it considers
important. The impact of these press releases is very great, particularly in the
United Kingdom with its outstanding, highly sensitive journalism. The decision to
refer a case to the Court of Justice follows the same rules.
Since 1983 the Commission publishes annual reports on the implementation of
Community legislation, which include a section on environmental legislation, but
which do not reveal details.119
The whole procedure under Article 169 is thus rather non-public. The reason
why the monitoring of EEC environmental policy has received so much public
attention these last years is due to two other features: on the one hand there is an
117 European Parliament (note 3).
111 The Commission has established a database, CELEX which contains all national
implementation legislation and which is open to the public.
"* 1st Report, COM (84) 181 final of 11 April 1984; 2nd Report, COM [85] 149 of 13
May 1985; 3rd Report, OJEC 1986, No C 220/1; 4th Report, OJEC 1987, No 338/1; 5th
Report, OJEC 1988, No 310/1; 6th Report, OJEC 1989, No C 330/1; 7th Report, OJEC
1990, No C 220/1.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
221
internal instruction by the Commission that each complainant is entitled to
receive an acknowledgement of receipt of his complaint.120 Furthermore, the
complainant is to be informed of any decision which the Commission has taken in
his case. In this way, complainants in environmental cases are informed whenever
the Commission has dispatched a letter of formal notice or a reasoned opinion or
when a case was referred to the Court of Justice.121 It is up to the complainant to
decide what use he wants to make of this information; and in Member States where
the media are open to environmental issues, the public debate can have an
enormous influence on decision-making procedures.
The second reason for public attention is the watchdog role of the European
Parliament. Not only has Parliament constantly — though until now unsuccess-
fully — urged the Commission to change its internal rules and publish letters of a
formal notice and reasoned opinion.122 Members of the Parliament also keep asking
written or oral questions on procedures under Article 169 enquiring about
advances in the procedures, thus compelling the Commission to inform the public
about pending files.
In 1990, Mr Ripa. diMeana, the member of the Commission responsible for the
environment, presented to the public a "first Commission report on the imple-
mentation by Member States of EEC environmental law", in which he gave,
Member State by Member State, information about the decisions which the
Commission had taken under Article 169.123 The relevant data published were the
following:
Decision to Open Article 169 Procedures as of 31 December 1989
Member State
Belgium
Germany
Denmark
Spain
France
United Kingdom
Greece
Ireland
Italy
Luxemburg
Netherlands
Portugal
Absence of
communication
of national
measures
11
4
1
4
1
4
12
5
8
3
4
3
Incomplete
or incorrect
transposition
of national
legislation
10
14
-
16
12
6
2
4
7
4
14
2
Bad
application
in practice
26
11
4
38
28
21
31
9
25
5
6
9
Total
47
29
5
57
41
31
45
21
40
12
24
14
60
90
213
362
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Procedure under Article 169 on 31 December 1989
Letter of Reasoned
formal notice opinion
Belgium
Germany
Denmark
Spain
France
United Kingdom
Greece
Ireland
Italy
Luxemburg
Netherlands
Portugal
27 8
13 8
5
45 9
28 6
18 8
37 5
16 5
17 16
9 2
18 5
10 4
242 76
Referred _ ,
i ^ Total
to the Court
11 46
8 29
5
3 57
7 41
5 31
3 45
21
7 40
1 12
2 24
14
44 362
Sectors
Member State
Belgium
Germany
Denmark
Spain
France
United Kingdom
Greece
Ireland
Italy
Luxemburg
Netherlands
Portugal
Water
11
9
2
12
15
16
10
7
9
5
6
2
104
Air Waste Chemicals
3 18 5
42 3
_
2 10 4
3 2 1
5 3 3
46 2
23 2
4 10 2
22
22 3
1 4
32 62 25
Noise Nature Total
2 7 46
11 29
1 2 5
29 57
20 41
4 31
3 20 45
7 21
3 12 40
1 2 12
3 8 24
7 14
13 129 362
1JO See complaint form OJEC 1989, No C 28/6.
1JI See previous note.
111 European Parliament (note 3).
12} Commission document P-5 of 8 February 1990; it should be noted that the figures
refer to decisions taken, though not necessarily executed (yet).
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This report produced strong reactions in the media in every Member State124
and from the 12 governments, though nobody seriously contested the points made
in the report that
(a) Community Directives on the environment are not properly applied by the
Member States;
(b) the quality of the environment is deteriorating and the Community legislation
which should be protecting it is failing to produce satisfactory results.
Whether, in view of the different reactions, there will be a second report on the
implementation of environmental law in 1991 is, as yet, uncertain. It is not clear
either, to what extent the discussion on access to environmental information will
influence the degree of transparency of Article 169 procedures,125
There is no specific ruling on the participation of environmental organisations
in the Article 169 procedure, though it is true that many complaints are introduced
by local, regional, national or international environmental organisations. These
organisations have specific means for selecting complaints and influencing the
media in order to make the complaint procedure part of their campaign. Their
activity in matters of enforcement is without doubt very seriously hampered by the
limited transparency of procedures. Geographically, marked differences exist,
such as for instance, numerous complaints from Spanish environrmental groups
and very few complaints from Dutch organisations.
VII. General Conclusions
The attempt to systematically monitor the implementation of EEC environ-
mental law by Member States had a number of rather important consequences.
Despite the somewhat limited publicity which surrounds the procedures, public
opinion has become aware of the possibility of taking action against environmental
degradation, contamination or pollution. While in some Member States pollution
was, and partly still is, considered to be some "act of God", the possibility of
sending complaints to the EEC Commission and having a local environmental
problem examined, has promoted awareness and increased sensitivity. The Com-
mission was seen rather as a central body, capable of even taking a stand against
124 See for instance: Pietrro Sormani, CEE, i "cattivi" dell'ecologia. La leadership negatiya
die Spagna, Belgio e Italian, in: Corriere della Sera, 9 February 1990; Alan Hope, Britain
Heads EC Pollution Culprits, in: The Guardian, 9 February 1990; La Belgique montree du
doigt par la Commission, in: La Libre Belgique, 10-11 February 1990. In France, a
Parliamentary Committee made a special report to the Parliament on the findings, Assemb-
lee Nationale, Annexe au proces-verbal du 26 June 1990, Doc. No. 1535.
m In 1990 the Council adopted Directive 90/313 on access to environmental informa-
tion, OJEC 1990, No L 158/56; the Commission committed itself to making a proposal for
extending these rules on Community institutions.
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224 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
national administrations— a possibility which the public does not seem to have in
all Member States. The turning of "soft law" into hard law and the application of
Community Directives as rules of binding law rather than as some form of
recommendation has probably surprised many local, regional and national admin-
istrations. This process of integrating Community environmental law into na-
tional environmental law is far from being completed. Furthermore, many admin-
istrations were not accustomed to seeing their practice being questioned by an
outside body and having to justify why this or that authorisation was given, or this
or that habitat destroyed. This challenging of administrative sovereignty was, at
the same time, a monitoring of the EEC environment despite national sovereignty.
Generally, it can be said that Member States accepted the Community monitoring
process, since it also brought advantages: for instance, central environmental
administration was made aware of imperfect implementation at the local level, or it
was able to successfully argue an environmental case against other, more powerful
departments of the same administration, using the Commission's letters as
support for its own arguments.
Other aspects were also important, for instance, changes of national legislation
in order to adapt it to EEC environmental requirements; or the preventive effect
which a threat to expose the Member State to a sort of a public blame from Brussels
inevitably had. If it is true to say that environmental protection profits most from
public awareness and public participation, the media echo brought about by
decisions from the EEC Commission may have contributed to avoiding some
deterioration of the environment.
The monitoring process went so far as to influence the form of environmental
law-making. The most obvious evidence for this is the gradual reduction in the use
of circulars. The fact that more and more regulatory instruments are used
demonstrates a growing maturity of EEC environmental law. Other notable
changes concern the content of legislation and its application in practice which
became more similar from one Member State to the other than would have been
the case without the EEC monitoring procedure. Also, the evidence that quality
objectives can hardly be monitored and are, in fact, almost never monitored in
Member States will undoubtedly have some impact on legislators. Lastly, more
attention is being given at the drafting stage of EEC legislation to how it would be
implemented in practice.
The specific nature of Community environmental law also creates a number of
problems for monitoring its implementation, some of which are enumerated
hereafter. Procedures take a very long time and all too often the damage to the
environment is irreparable by the time EEC steps in. Part of the delay is due to the
fact that all correspondance with Member States has to pass the Permanent
Representations of Member States with the EEC. No direct contact with polluters
or local authorities, although it is possible would allow much quicker action. In
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decentralised Member States this often causes a very serious problem, all the more
so when relations between central and regional levels are difficult.
A further major hindrance to promoting efficiency is that of administrative
secrecy. The whole procedure under Article 169 is largely non-public or even
secret. Since the Commission does not have inspectors of its own, it must rely
largely on the complainants' arguments and the administration's reactipn. It is
often doubtful whether these two sources of information are sufficient to assess a
situation properly. Mobile measuring stations and inspectors would probably be
very useful in two-thirds of all complaints. Their absence is felt very heavily.
To these problems must be added that of the absence of sanctions. It is well
known that a number of Member States quite openly do not respect Community
law requirements. In his first implementation report,126 Commissioner Ripa di
Meana expressly mentioned implementation of Community rules on waste in
Belgium and Italy. Indeed, an important number of Court descisions have come
out against these Member States — apparently without much success. Other
Member States disregard some directives for years without being sanctioned.
Public blame is almost the only sanction, and even that needs reception by the
media in order to condemn the action.
Access to national courts in environmental matters is very difficult in practice
because of the limited right to bring an action and the high costs involved. The
EEC complaints procedure might be some substitute for that fact; however, it
remains impossible for the future to properly monitor all upcoming complaints —
which might well exceed 1000 per year. Some form of decentralisation will thus be
necessary, for instance, in the form of a national complaints-handling system.
The punctual action undertaken by the Commission can be and is successful in
some cases, leading to changes in legislation or to changes in practice. However,
this action is unable to remedy any weakness in the environmental infrastructure of
a Member State. Where an administration sees environmental impact assessments,
protection of habitats, reduction of emissions to air, soil or waste as a nuisance,
which is still sometimes the case, the Commission's intervention under Article 169
is likewise seen as a nuisance rather than as an opportunity to properly protect the
environment — and to properly respect legal obligations under the EEC Treaty.
And, while Community intervention might be supportive to the environmental
administration at a local or regional level in the discussion with other administra-
tions, it cannot permanently establish a balance in the influence of these different
administrations.
The implementation procedure does not contribute greatly to the establish-
ment and implementation of clean-up plans and programmes either. Where a
national administration is not able or not willing to honour the corresponding
174 Commission (note 125).
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226 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
commitments under EEC environmental legislation, it is normally extremely
difficult to change such an attitude.
This then brings back the question raised at the beginning of this article: Can the
EEC implementation and enforcement procedure contribute some form of model
for other regions in the world?
All direct or indirect criticism voiced in this article should not let us forget
several major advantages which the Community's implementation actions in the
environmental sector have brought about and which are essentially the following:
(1) There is a "central" body which looks into national environmental legisla-
tion and — at least as important — into environmental practice in order to level its
compliance with EEC environmental rules. Neither national parliaments nor
national administrations thus necessarily have the last word on environmental
issues;
(2) Controversies are decided by the Court of Justice, which is highly respected
and has sufficient authority for its judgment to be accepted;
(3) Individuals may raise the question of the compliance of any measure with
Community environmental rules and have a guarantee from the Commission that
their case will be examined. Thus, they no longer regard environmental pollution
as an "act of God", but become aware of the possibility of protecting "their"
environment.
(4) The European Parliament's activities, the Commission's own initiatives, as
well as actions from non-governmental organisations contribute to bringing cases
of non-compliance to the attention of the public. This feature, which is linked to
the functions of public opinion within the EEC Member States, is environment's
greatest potential ally.
(5) Administration in Member States is gradually accepting that its environ-
mental actions can be questioned by the EEC administration. Thus, not only does
environmental law-making go beyond the nation-State, but so does implementa-
tion control.
Major deficiencies in the procedure are the absence of inspection possibilities on
the one hand and of sanctions on the other. Both deficiencies would not be too
important if, at the level of all Member States, inspection facilities existed and
appropriate sanctions were practised — which is the case only in a minority of
Member States.
In the competition area the Commission has managed to obtain inspectors who
control the compliance with Community competition rules all over the EEC. The
Commission itself has the power to pronounce sanctions against breaches of
competition laws. Should it one day be possible to obtain inspectors and sanction
facilities to monitor compliance with Community environmental law, then the
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 227
"Ombudsman role" of the Commission in favour of the environment would be
considerably strengthened. At that moment, the implementation control could
serve as an example for other regional organisations in the world. It seems fair to
say, though, that the EEC has already gone far in its attempt to make environmen-
tal legal rules work in practice.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 229
ENVIRONMENTAL ENFORCEMENT IN CENTRAL AND EASTERN EUROPE IN TRANSITION
WOJC1ECH S. BEBLO
Director Ecological Department, Voivodship Katowice, 25 Jagiellonska Street, PL-40-032
Katowice, Poland
SUMMARY
This paper presents an assessment of the current status of environmental enforcement in
Central na Eastern Europe and the challenges facing those trying to improve upon current
strategies and approaches. The discussion is based upon analysis of environmental law in
Czecho-Slovakia, Hungary and Poland. Different approaches undertaken by those countries are
discussed regarding institution building and law making. The environmental law and related
institutional system is built upon a framework of environmental laws (CSRF and Hungary) or from
detailed regulations (Poland).
1 INTRODUCTION
Environmental enforcement has become of great importance in Poland during the Solidari-
ty's Round Table Debate with Communist Goverment in Spring 1989. This issue was one of the
most discussed at that time and it was repeated in other countries of Central and Eastern Europe
during their transformations. Central and East European countries, that for many years were ruled
by communists, now are struggling for a new future based on human rights, a market economy
and a modern legal system [1,2].
Heavy industry, the hearth of the working class, was declared under old regime to be the
key sector of communist economy and was to be protected at any price [2], The law makers
therefore put more wishful statements into environmental laws than real rules that might disturb
the realization of socialist five year plans. Environmental law was then to show, that communist
governments like others, after the series of UN conferences in early seventies, care for the
environment. They did, by setting permissible levels impossible to comply with.
Information about the state of the environment was to be a secret though no real use of it
was possible to enforce obeying the law. The public knew about the state of the environment and
its influence on human health only from unofficial sources - the environmental groups. After the
democracy revival in all Central and East European countries environmental issues became one
of the most important political issues. People wanted to know officially as much as possible about
the state of the environment, public health and risk caused by environmental pollution. The
information caused great political pressure within communities end forced policy makers to set
new environmental laws. In all countries it opened wide debate about the set of rules and
principles to be adopted within the system of laws:
- environmental liability,
- polluter and user pays principle,
- prevent before cure principle,
- public participation in decision making and public right to know,
- decentralised integrated environmental management based upon selfgoveming principles.
The ways to achieve the goal are different in every country of Central and Eastern Europe.
It is done either by setting general system of principles and rules, from which detailed laws are to
be derived (Czecho-Slovakia) or by synthetizing the general system from detailed described laws
(Poland and Hungary) [1,3].
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230 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2 ENVIRONMENTAL ENFORCEMENT IN CZECH AND SLOCAK FEDERAL REPUBLIC
State of the environmental law in Czech and Slovak Republic (CSFR) is imposed by
recent events and separative tendencies. It may happen, that there will be two separate countries
in this part of Europe, having separate legal systems.
In April 1991 the Federal Government published a State Program of Environmental
Protection which defined polices to be adopted at republic and federal levels. Among others there
were listed issues concerning environmental laws and regulations, monitoring and information
systems and economical instruments to be applied to achieve reduction of environmental
pullution. Later on, in December 1991 there was issued a Federal Environment Act which since
the beginning of 1992 is the framework for environmental legislation. The Act adopts principle of
sustainable development and puts responsibility on every citizen regarding care for the
environment. In the Act there were also adopted other principles like "polluter and user pays".
Enforcement of environmental law in CSFR is based on a fine and penalty policy.
Penalties and fines till 1991 were too low to make any real reaction of violators. According to a
new law fines were raised several times especially regarding air pollution. The Act from 1991
introduced fee instruments to enforce and to encourage actions toward reduction of environmental
pollution. Czech and Slovak republics have established funds for environmetal protection, created
by fee and fine collection.
The responsibility of environmental policy is put on three organizations: the Federal
Committee for the Environment, the Czech Ministry of the Environment and Slovak Commission
for the Environment. The Federal Committee is responsible for the preparation of law on the
federal level and international harmonization of the environmental policy. The Czech Environment
Ministry acts through the Czech inspectorate and its district, municipal and community offices.
The Slovak Commission acts according to the same system. The republics have the right to
adopt stricter standards. The responsibility for the environment in Czecho-Slovakia is put on many
other agencies and ministries depending upon the protected component of the natural
environment. Environmental law in Czecho-Slovakia is made according to a systematic approach
regarding institution building which tends toward concentration of efforts and derives the system
from general framework of law. The legal system is being built based upon general principles.
The development of the system is made by creating of detailed regulations on water protection,
environmental impact assessment, forest protection, waste regulation (management) and air
protection.
3 ENVIRONMENTAL ENFORCEMENT IN HUNGARY
Environmental legislation in Hungary has on one hand a long tradition connected with act
from 1729 issued by Karl III or act on water protection from 1840 and on the other hand - a rela-
tively short tradition due to exclusion of environmental issues from national policy by communist
rulers. After the replacement of communist government, environmental issues began to play an
important role in Hungarian policy. In September 1990 the Ministry for Environment and Regional
Development issued a program for environmental protection in which there were outlines of
required changes in the legislation. The system of laws regulating environmental protection in
Hungary now consist of many datailed acts on air, water, solid and hazardous waste and land
use. Environmental Protection Code is under discussion and it is intended to include articles jn
environmental liability, economic instruments, emission tradings, principles and rights.
Before 1990 enforcement of environmental laws in Hungary was ineffective because all
responsibilities were put on industrial management. Nowadays this responsibility is put en
National Environment Protection Directorate, created in 1990, which acts through its 12 regional
directorates and local governments. The Directorate is an agency of Environment Ministry.
Regional directorates are responsible for issuing permits, imposition of penalties and fines and
the enforcement of environmental regulations. Money that is collected by regional directorates
create a Central Environmental Fund. In Hungary there is a separate administrative structure that
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 231
have responsibilities in water management in 12 regional offices. Environmental enforcement in
Hungary is in its beginning.
4 ENVIRONMENTAL ENFORCEMENT IN POLAND
The first complex environmental law was set in Poland in January 1980. The enforcement
issues were included in that Act by defining the role for National Inspectorate of Environmental
Protection (PIOS). The power of then PIOS was weak and therefore in 1991 a new law was
adopted providing POIS with a real enforcement power. The PIOS acts on behalf of the Minister
of Environmental Protection, Natural Resources and Forestry through the Duputy Minister - Chief
Inspector of Environmental Protection. The PIOS acts through Inspectores at voivodship level.
The Inspectorates have the right to stop activities and operations endangering the environment,
ban the sale and import of goods that do not meet national standards, act in case of extraordinary
environmental threats and is responsible to keep the public informed on the state of the environ-
ment. To reinforce the action the Inspector co-operates with prosecuting authorities, state
administrations, municipal selfgovernment and public organizations. PIOS is separated from
viovodship administration. In cases of violation of a given emission permit the Inspector imposes
a fine on the polluter or causes criminal prosecution. Environmental Inspectorate is also responsi-
ble for environmental monitoring related to country wide system.
Environmental law in Poland is enforced by fee and fine policy. Every facility must possess
emission permits according to which the voivodship administration imposes a fee for use of
natural resources. The permits are issued by the Voivodship administration that collects fees for
use of natural resources and fines for violating a given permit. The Voivodship administration is
also responsible for coordination of all efforts relating planning of investments in environmental
protection, research, regional environmental monitoring and co-operation with environmental
authorities and organisations.
The emission permit is defined during the negotiations at the voivodship administration in
presence of facility's management, PIOS, representatives of municipal authority, NGOs and
potentially endangered public. Each permit is given with respect of national environmental policy
and respective limits. The permit is issued after closure of an administration proceeding. If during
the proceeding a consensus hasn't been obtained, every party in the negotiation, not satisfied
with the result, has a right to appeal to the Ministry of Environmental Protection and finally to the
Suprime Administration Court. During appeals, the administration proceeding is suspended. It
happens, that management of given facility utilizes all rights to appeal and this way reaches
prolongation of the proceeding. After validation of the permit it is possible to impose a fee or, in
case of proved violation of this permit, a fine can be imposed.
At the local selfgovernment level the involvement in environmental issues is at present low
although the municipalities are responsible for ensuring proper water and waste management,
heat supply and greens keeping. Present debate on regionalization incorporates environmental
issues as a right to develop regional environmental policy. This is also the decentralization issue
being discussed in every country of the Central and Eastern Europe as the reaction to a central
ruling.
System of environmental laws in Poland is created from the opposite side in comparison to
the way it is done in Czecho-Slovakia - from very detailed laws efforts are made to derive a
synthesis incorporating all assumtions and principles.
5 ENVIRONMENTAL PROGRAM REQUIREMENTS AND THEIR IMPLEMENTATION
UNDER THE OLD SYSTEMS
In all countries of Central and Eastern Europe the official policy regarding environmental
protection was more aiming to desired economic growth and image creating of the communist
govememnt than a real action plan for environmental protection. In such circumstances there was
no place for real enforcement and compliance issues.
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232 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
The priorities of environmental policy were set by the central planing authority that was
taking into account the communist assumptions of social development rather than any modern
environmental policy. This led to the environmental policy resembling. This sort of policy making
resulted in environmental liability and built up industry.
As it has been described above, the regulated universe was intentionally made to be
weak. In Hungary after World War II it was officially declared, that there was no place for
environmental protection because the country had to build economical power by growth. A similar
approach was obligatory in other countries due to forced symmetry in policy making under Soviet
Union control [2]. The system began to change after first UN declaration on environment
(UThant). Those issues were then raised later on during strikes in Poland in 1980 - the year of
issuing first complex environmental law. In Poland enforcement and complioance issues were
introduced into the law - there were proposed enforcement institutions, legal and financial instru-
ments. In Czecho-Slovakia enforcement was limited by unclear competence division between
Federal and Republic's Governemnts and respective ministries [1,3]. It was difficult to determine
who had been responsible for what. In Hungary the only actions undertaken were related to
national budget planning in which there was money reserved for environmental protection as a
grant for a particular facility. This money was usually used for general inwestments with less
respect to environmental protection [1].
Environmental requirements and related payments (fees, fines and penalties) were set
artificially low. Low permissible levels were impossible to comply with and at the same time the
payments were set low and created no enforcement feedback. The management of industry was
then mainly interested in growth of production. Promoting compliance under previous regulation
was difficult, although in some cases effective. The most effective instrument to promote
compliance behavior was related to issuance of permits and setting up allowable emissions
(Poland) and announced growth of related fees. At the beginning there was no reaction. From
1990, when fees and fines were raised several times, the users energetically began creating
action plans. Nowadays from fee and fine policy there is derived financial incentive instrument
based on tax principle: the user declaring action toward cleaning the technology, has right to
utilize their own fee for investment, it is done by separate agreement included to the administra-
tion permit [4].
The system of compliance monitoring has been based upon routine audits done by the
governmental administration in Poland and by respective ministers in Czecho-Slovakia. In Poland
the compliance monitoring under previous regulation was the responsibility of governmental
administration (voivodships) and PIOS - the National Inspectorate for Environmental Protection.
Examples of environmental requirements and their implementation in reference to each element
of the general framework identified under Speaker #1 and the ability to take action to ensure
compliance, both regulatory and financial. There was no such service in Hungary under old
regime [3].
6 NEW CHALLENGES UNDER TRANSITION TO A MARKET ECONOMY
The system of environmental laws still require improvement regarding permissible levels of
emmision and allowable emission and related fees for use of the environment and fines to be
payed after proven violations of given permits. All those values shall be set at levels possible to
enforce as relates to allowable pollution and possible to bear by users as relates to fees. It is
agreed by all, that fines and penalties shall remain at its high levels. Wrong values require later
adjustments that spoil the proceedings.
Environmental policy in East and Central European Countries require modem laws derived
from their national constitutions. The governments of the countries discussed in this paper issued
their environmental policy documents and declared following the sustainable development, decen-
tralization of decision making, set up the priorities and accepted general principles. Rebuilding cf
legal systems related to environmental protection shall be done paralelly to the improvement of
the state organization and require simultaneous action in:
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 233
- adjustment of the area of activity of different environmental administration to the territorial
division of the country. This will lead to the concentration of means and efforts according
to harmonised policy, facilitate the coordination and shorten the proceedings,
- clarification of environmental administration system at all levels and decentralization of
decision making, environmental found creating and development of environmental policy,
- adjustment of standards relating emissions and effluents to those which are applied in
Western Europe and WHO,
- the state policy shall consequently apply pricing policy promoting clean technologies, clean
fuels (unleaded gasoline)
- emission trading shall be taken into consideration and applied primarily in areas of dense
concentration of industy,
- environmetnal health monitoring and risk assessment, - environmental impact assessment.
International cooperation and common environmental policy in Central and East Europe
require:
- unification of metrology as applied in environmental monitoring,
- creation of information system on the state of environment,
- joint environmantal studies and programmes like Black Triangle or Silesia.
The countries of Central and Eastern Europe will not be able to solve their environmental
problems without external contributions to their action plans. It is therefore required to introduce
incentive instruments that will facilitate privatization, attract foreign capital and accelerate the
renovation and restructuring processess:
- environmental liability must be clearly defined in law,
- taxation policy shall allow tax reduction for those investing in environmental protection. The
same shall be applied to the custom policy,
- fee collection shall permit internal use of part of the amount due payed be the user,
according to separate agreement reached during administration proceeding.
The general concern for environment is due to open market competition, privatization and
related problems with environmental liability. The trend related to support and environmental
concern is growing. Market economy forces the managers to evaluate costs when taking into
account a fee and eventual fine, with no financial intervention of central government, the
managers became more interested in diminishing the cost and avoding an eventual penalty. On
the other hand some incentives are provided based upon environmental funds, that are the
source of soft loan for environmental investments.
7 SPECIFIC EXAMPLES OF CHANGING CIRCUMSTANCES.
After the Round Table Debate (RTD) in Poland in 1989 began a decentralization of
governmental system. The municipalities became independent from the state goverment
according to Selfgoverning Act. In the field of environmental protection appeared new partners
developing their own environmental policy based on the own financial means. The issue of public
participation, raised during RTD, resulted in permanent attendance of the representatives of
NGO's, municipal selfgoverment and endangered public in the administration proceedings.
During this transition period there is an observed process leading to separation of different
regulatory and enforcement bodies in Poland and concentration of efforts within one institution in
Czecho-Slovakia and Hungary. The process is strongly influened by the political environment
which in Czecho-Slovakia leads to a division of the state, in Poland leads to a new regional
division and in Hungary - to problems related to Danube dam.
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REFERENCES:
1 Environmental Law, International Corporate Law, White and Case, April 1992
2 Andrzej Delorme, Stalin's development paradigm andenvironmental crisis, AURA 1990.
3 E.N. Lisicyn, Environmental Protection in Foreign Countries, Agroizdat 1987, Moscow.
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ENVIRONMENTAL ENFORCEMENT IN HUNGARY - TODAY AND TOMORROW
PROFESSOR DR. GYULA BAND!
Scientific Director, Copernicus Environmental Law Program of the Danube Region
SUMMARY
At the time of the present Conference, nearly two years has passed since the European
Council of the European Community released the declaration The Environmental Imperative
signed in Dublin in 1990. The declaration underlined the following among global issues:
"The environmental situation in Central and Eastern Europe presents special challenges.
We endorse the agreement reached in Dublin on 16 June 1990 between the Environment
Ministers of the Community and those of Central and Eastern Europe on the steps to be
taken to improve the environment in Europe as a whole and in Central and Eastern Europe
in particular. Remedial measures must be taken by these countries to clear up problems
which have developed through years of neglect and to ensure that their future economic
development is sustainable." (1)
The above statement is still in force, and we in Central and Eastern Europe (CEE) are not
much closer to the fulfilment of overall or even partial environmental requirements than two years
ago. If we examine the state of environment in today's Hungary then - being a bit cynical - the
slightly positive changes are more or less due to the economic difficulties effecting a number of
polluting facilities. (E.g. the use of chemicals in agriculture is much less than ever before
because of the great rise of chemical prices due to the cancellation of state subsidies to the
chemical industry.) The general political, economic, technical, organizational and legal
background of Hungary is not very favourable to environmental protection interests. Before going
into the specifics of environmental enforcement in Hungary, it is important to examine some of
these background issues in order to get a more complex view of the present situation. The
following is a list of advantages and disadvantages to environmental protection of these
background issues.
1 INTRODUCTION
1.1 • Policy Issues (Past and Present)
Advantages
1.1.1 In developing a multi-party system and a rule of law, there is a better chance for
environmental interests to be emphasized. Some political parties, movements (and even the
church) can incorporate environmental demands in their campaigns, which may provide a mutual
benefit to both the movements or parties and the environment.
1.1.2 The program of the new Government (2) was adopted in summer 1990. Although it
focuses primarily on economic issues, Chapter V is dedicated to environmental protection
requirements. Based on this Program, the Environmental Ministry in the same year made a
detailed plan of action, the majority of which has not yet been fulfilled.
1.1.3 Our international commitments are more and more favourable for the environment. For
example the convention on transboundary impact assessment (Espoo, February 1991) and the
association agreement with the European Communities gives priority to environmental interests.
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Disadvantages
1.1.4 The relationship between economic and environmental priorities in policy-making even
today puts a greater emphasis on economic interests than environmental ones.
1.1.5 A concrete environmental policy and strategy - going beyond a set of mere statements -
is missing both in national or regional policy and also on the party-policy level.
1.1.6 Due to the preceding point environmental protection in the regulatory arena has
always been - and in most cases still it is - mere "show-business". It declares a concern for
protection rather than creating a real set of political, economic and legal requirements. The
environment became a top issue in international cooperation, so the government had to respond
to this (3).
1.1.7 The transition process has resulted in numerous political, social and economic problems
especially related to social security and unemployment concerns. These run against the
interests of environmental protection.
1.2 Economic Development
Advantages
1.2.1 For the most part, the state is no longer both the potential polluter and the responsible
regulatory and controlling administration. Thus there now is a greater chance for enforcing
environmental requirements.
1.2.2 The market economy and consumer policy together may have a self-monitoring and
regulating effect (E.g., the prices of raw materials and energy).
1.2.3 There is a greater probability that an environmental - or energy saving, recycling etc. -
industry and services shall be developed as a response to new environmental regulations.
1.2.4 Foreign trading relations have a big impact on environmental protection. Western product
criteria and environmental requirements may encourage Hungarian industry to use for example
EC standards though they are not incorporated into the Hungarian regulatory system.
1.2.5 There is now a chance to develop market economy and environmental protection in
harmony, which has never existed before.
Disadvantages
1.2.6 There is a tendency to connect stricter environmental regulations with a later stage of
economic development - when "we can afford it".
1.2.7 A market economy is not an absolute self-controlling mechanism in the interests of
environmental protection. The effect of a market economy is very ambigous and partly may be
favourable for environmental protection interests (e.g., shutting down polluting industries or
developing market incentives), but can also be damaging to the environment (e.g., increased
emission also occur together with growing production or the incapability of former state industries
to clean up polluted sites).
1.2.8 The necessary economic incentives for environmental protection are missing from
Hungarian economy, as well as an understanding of the role of economic management in
environmental protection. To this we must also add the new prospects in privatization, joint
ventures, concession licences and compensation for past nationalizations, all representing
primary parts of the economic program, but alt without reference to environmental impacts.
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1.2.9 The involvement of foreign money is directly connected to the new phenomena listed
above, especially privatization. In order to attract foreign money the economic management is
willing to ease environmental criteria.
1.2.10 It is clear that our own resources are not enough for both pollution prevention and
remediation, so the setting of priorities is an essential requirement at this level also.
1.3 Technological Challenges
Advantages
1.3.1 The development of foreign trade and the involvement of foreign capital and technology
provide a better chance for the financing and use of cleaner technologies.
1.3.2 A great portion of the present technological infrastructure must be modernized in order to
make the economy competitive. This may mean again the use of cleaner technologies.
1.3.3 The relatively inefficient monitoring capacity is more and more improved due to foreign
assistance projects (e.g., PHARE).
Disadvantages
1.3.4 Hungary's present technological resources are not sufficient enough to meet the
requirements of environmental protection, and will not be changed substantially in the near term.
1.3.5 The monitoring and information systems in Hungary are less developed - a good example
is the difficulty of our telecommunication system.
1.3.6 The training of special environmental experts is developing. This is still only on the post-
graduate rather than the graduate level, so it is less for general environmental skills than for
specific ones.
1.4 Environmental Legal Issues in General
Advantages
1.4.1 The legal system needs overall restructuring. This does not simply mean several
amendments, but rather means to rebuild the old system from the ground up. There is a great
chance to incorporate environmental interests while developing the whole system,
1.4.2- The amended Constitution contains the right to environment as an obligation of the
state.
1.4.3 The creation of a rule of law state means a broader sphere of judicial review over legal
regulations (Constitutional Court), and administrative decisions, and a greater role of the judiciary
in general. All of these serve to guarantee the constitutional rights.
1.4.4 There is a separate ministry for environmental protection with a system of national and
regional offices. This dates back to 1988, but was substantially restructured in 1990. It is now
called Ministry of Environmental Protection and Regional Policy.
1.4.5 The creation of the local (self-) government system offers a greater possibility for the
protection of local environmental interests and also can serve as one representative of the public
interest.
1.4.6 There are a number of regulations in the present legai system (discussed later) which
could serve the interests of environmental protection without any or with only some minor
adjustments.
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Disadvantages
1.4.7 In spite of the difficulties in developing clean technologies, these technical solutions had
always been emphasized instead of regulation and enforcement, as the latter would have needed
direct responsibility from the state organs.
1.4.8 Due to the total reshaping of the legal system its internal harmony is and will be missing
for a longer period.
1.4.9 The creation of a rule of law state results in a number of uncertainties as to the
relationship, organizational structure, and division of power of the different actors (4).
1.4.10 Some major environmental elements are governed by central administrative agencies
other than the environment ministry without the necessary coordination. In addition, the
environment ministry has a number of other tasks that are sometimes in contradiction with its
environmental role. Further, the basic goal of separating the management/use and the protection
of a given resource is not always met.
1.4.11 Additional difficulties have developed with the division of public administration tasks
between the central, state, and local (or self-) governments.
2 OPTIONS OF ENVIRONMENTAL ENFORCEMENT - PAST AND PRESENT
2.1 Environmental Enforcement Policy
The first question is to find out whether anything like an enforcement policy or strategy
does exist or not in Hungary as this policy should govern the would-be enforcement activities. If
we examine the 16 years which since the general act on environmental protection (5) was
passed, it is quite difficult to prove the existence of such a policy. The reason lies in the fact that
the manager of the polluting activity and the organ responsible for environmental protection in at
least 95% of the cases was the same - the state. No wonder why there was little emphasis on
enforcing environmental regulations. Today the situation is a bit changed, but more than 80% of
the Hungarian economy is still in state ownership, and there are also a number of other
competing interests, as was shown in the first chapter.
The conclusion is that there was and there is no general environmental enforcement
policy in Hungary. Nevertheless there have to some extent been some attempts towards such
a policy. The first example is the strategy to save Lake Balaton. The establishment of this
strategy dates back to the end of the 1970s, but was mainly active in the beginning of the 1980s.
The poor water quality of the Balaton area proved to be dramatic, due primarily to three main
reasons: the artificial drying out of the natural filter wetland area at the mouth of the main river
flow; the extensive construction of holiday houses without sewage treatment facilities; and also
the widespread use of chemicals in agricultural production. The steps taken to restore the lake
include the restoration of the original wetland, the construction of sewage treatment plants, and
the establishment of limits on building and farming. The results demonstrated the effectiveness of
a combined environmental enforcement policy. The Balaton project has been the only example of
such a complex and successful project up till now (6).
Second, in the mid 1980s the (so called) environmental policy program selected three
major areas of future activity based on the priorities of environmental problems: air pollution,
water pollution and hazardous wastes. These priorities, however, did not really serve as tna
basis of an enforcement program due to the general lack of willingness. A good example is the
case of investment in one of the biggest hazardous waste deposit sites in Hungary - at Aszod.
Here the new 1988 taxation system - which did not differentiate according the purpose of an
investment - increased the costs of the waste site by several million forints, causing a lack of
necessary financial resources for the project. The harmful taxation system was changed only two
years later.
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A last example is the obligation of the larger towns like Budapest to develop their own
emergency plans and standards for air pollution. These plans were not complex enough -
Budapest would like to adopt a new and complex plan only this year. In addition, the immission
(ambient) standards were set so high that even pollution exceeding the public health standards
would not be deemed sufficient enough to warrant emergency action.
2.2 The System of legal Measures - Regulation
One of the most important questions of enforcement is whether the legal instruments
provide a sufficient basis for enforcement actions. The relevant legal measures can be observed
in two groups. The first is the general substantive law, containing all the instruments and
measures giving rise to an enforcement activity or compliance, and the second represents the
special rules for the different environmental elements (7). The Act No.II.of 1976 on the
protection of human environment lists six environmental elements: land, water, air, flora and
fauna, landscape, and settlement environment, where the latter covers all those possibly harmful
activities (from waste to noise) which may have an impact on the given residential, recreational,
industrial, community etc. environment. As the enforcement tools are common to all the
environmental elements and are in the first target group, the different environmental elements are
out of our interest now.
The environmental regulations will set the framework within which the different elements of
environmental enforcement - described in point 3 - may find their role and their relationship to
each other and to the given environmental policy. The basic concept of environmental regulation
appears in the right to environment, therefore the following evaluation will also be started with
this. The legislation means the higher level of regulation and the executive rules are manifested
in standard setting - meaning the high level of technical rules - and in the administrative
regulation. This latter is discussed under the next part in connection with the other elements of
administrative law.
2.2.1 Right to Environment
The best reflection of a basic philosophy of how to regulate environmental protection (8) is
the regulation of the right to environment (but of course only if we take human rights issues
seriously). The 1976 Act granted to every citizen the right to live in an environment worthy of man
(9). However, this right has not been interpreted in practice by a court.
The Constitution was amended in 1989 with the assumption that constitutional rights in the
future would serve as the basis of legal action. This Constitution regulated the right to
environment in two relatively different ways.
' Article 18 grants a separate right: "The Hungarian Republic recognizes and enforces the
right to a healthy environment for everyone."
Article 70/D treats this right as a tool for ensuring the highest possible level of physical
and mental health. In addition to protecting the manmade and natural environment, this right is
ensured by organizing a labour safety system, public health institutions and medical care.
The first of the above mentioned two articles is a direct adoption of a right to
environment, not only for the citizens but for everyone. This article clearly expresses that the
State is responsible for ensuring the implementation of this right, even within an international
aspect as it is the only way to ensure the rights for "everyone". The Government, however, has
turned to the Constitutional Court to ask for an interpretation of this article to determine whether it
really is a primary obligation of the State.
2.2.2 Legislation
The tasks of rulemaking in environmental protection, as in other continental legal systems,
are divided among the parliament, the government and local governments. In response to the
last 45 years, the new Parliament wishes to regulate all the important questions of the legal
system itself. This is a great burden if we look at the necessity of reconstructing the whole legal
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system (see 4.1, above.) This legislative burden can only be alleviated by setting priorities and
regulating according to these priorities. Unfortunately, because of a number of reasons (see,
e.g.,1.7., 2.5. and 4.7-4.11, above), environmental regulation is only a priority on paper. The
ministry program mentioned above listed a wide range of topics to be regulated in 1991, including
environmental impact assessment and the general act on the protection of environment.
However, in 1990 and 1991 there has not been any major environmental regulatory steps.
In environmental legislation we are now in a very beneficial situation, namely trying to
formulate an overall and comprehensive environmental law that covers the main legal measures
and therefore also serves as a basic document for environmental enforcement according to the
newest development patterns in the Western region (10). If one wishes to outline the major
characteristics of contemporary environmental law or environmental legal process, some
important prerequisites can be identified:
- There is a tendency towards comprehensive general acts on environmental protection,
covering the major legal instruments, the outline of the organizational structure, and the
spheres of authorities;
- The philosophy for regulation beside the respect of the peoples' right to a decent
environment is departing from the ordinary anthropocentric concept towards the rights of
future generations or even the necessity to protect biodiversity;
- The environmental protection is the major task of the state, which means the state
together with the provincial or local governments has to generate a legal, economic,
administrative and cultural surrounding within which environmental requirements can
prosper;
- Environmental protection or pollution control as it is called other places must be integrated,
with regulations of different environmental elements governed by a general act;
- The main principles of environmental regulation are prevention, cooperation and the
polluter pays principle (i.e., the polluter is responsible and liable);
- Environmental and economic management measures must also be integrated - with
environmental conditions built into economic strategies and economic incentives built into
environmental measures -instead of running parallel and separate from each other;
- The environmental criteria are severe, but with a general environmental policy the phasing
in of the different standards and measures can provide a chance for preparation;
- There is a great emphasis on public participation and all necessary preconditions, ranging
from access to information to direct rights of participation in different regulatory and
decision-making processes.
Most of the countries in CEE are drafting their environmental regulations with this kind of
concept in the mind. There are two major types of environmental legislation in the region:
framework legislation, determining only the fundamental rules and giving room for further
legislation; and detailed legislation, covering as much of the integrated pollution control
measures as possible. Both types have benefits and disadvantages and it is up to a country's
legal traditions and the present legislative trend to determine which is preferable (11).
The first version of the Hungarian draft, commissioned by the Parliamentary Committee
on Environmental Protection, was submitted to the Committee in January 1992. The draft covers
most of the general legal measures, from permit systems through economic measures to criminal
offenses and among others also has a separate section on privatization. The draft begins with the
general and conceptual questions, then addresses the management of state and local
government environmental obligations, together with the funds supporting them, and also
addresses the criteria for legal regulation from an environmental protection point of view. The
public participation provisions require a relatively detailed regulation. Among the means of
regulating environmental needs, obligations, fees, permit-systems and incentives are mentioned.
The special procedures of environmental protection administration cover among others
environmental impact assessment and procedures to be followed in the case of bankruptcy. Tho
detailed liability provisions address criminal liability, compensation of damages, insurance issues
and environmental fines.
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Meanwhile, in April 1992 the Ministry of Environmental Protection and Regional Policy also
completed a draft act, much shorter and less detailed than the previous one. This draft is not a
comprehensive piece of legislation, as it refers in a great number of cases to other legislation that
would be developed in the future. The draft does not depart greatly from the existing legal
provisions. Among others, it gives less guarantees for public participation and fails to address the
possible economic incentives.
When speaking about the situation of environmental enforcement in our country and also
that of the region, the present status and future possibilities of drafting and adopting
environmental laws is very important. This legislative process determines in the long run the
place of environmental regulations within the legal system, as well as those measures to be used
in enforcing the regulations. Therefore in the present situation, the enforcement policy depends
strictly upon the state of environmental regulation in general and the state of adopting a
comprehensive environmental protection act in particular.
2.2.3 Standard Setting
Situated between legislation and the public administration regulation, standard setting
presents a challenge of translating environmental requirements into a numeric form in order to
make enforcement programs easier. The efficiency of the standards always strictly rely upon the
main purpose of standard setting and the monitoring capacity of enforcement administration.
Standards can serve a role in prevention or serve as the basis for liability or sanctions. In the
past and today also, the preventive aspect of standard setting has not really been the most
important, except in some cases such as in the new air-pollution regulation the new installations
must ask for pollution standards before entering into operation.
The standards in air pollution and in theory in water protection are based on ambient
(immission) quality standards. From these, the emission standards are formulated. The emission
standards are generally territorial ones but may also be established on a factory-specific basis.
Setting the standards is usually the responsibility of government ministries. In air quality, the
ambient standards are set by the Ministry of Public Welfare and the emission standards are set
by the Ministry of Environmental Protection and Regional Policy, with an opportunity for the
middle level (county or capitol) local governments to establish more stringent standards.
Typically, the size of a country shall effect the division of standard setting duties. The air quality
standards in Hungary divide the country into three levels of protection.
In practice the violation of national or regional standards does not result in the
limitation or stopping of a polluting activity. Instead the national and regional standards
serve as a basis for fines. In the 1970s and 1980s, it was even difficult to make the judicial
practice believe that a standard is not a general borderline between lawful and unlawful activity
but only a way for administration to measure and prove pollution. On the other hand, if the
standards are not really used as preventive measures there impact is not really great.
2.3 The System of Legal Measures - Spheres of Law
When discussing the system of legal measures, the best option is to set up those well-
known groups of legal regulations, where the main difference lies in the role of the state in
enforcing the rules and the essence - balance of rights and obligations - of the legally
characterized relationship. These groups are:
- public administration measures, covering also the economic management,
- civil law or private law,
- and criminal law as the most stringent tool.
2.3.1 Public Administration. Administrative Law
In Hungarian environmental law, as in other legal systems, public administration is the
most important in enforcement. Administrative law controls the everyday activity of the state
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administration, covering both the central and local governments. A new but increasingly
important function of the state is to maintain the balance between environment and society.
The public administration measures in Hungary can either directly or indirectly affect
conduct. In a direct fashion, it can force a party to carry out an obligation as regulated by law or
decided in an administrative decision. In an indirect fashion, it can influence the independent
decision of a party on future activity.
1. The direct measures can be:
- Regulation, here as a secondary regulation implementing the legislation with the
authorization of the Parliament. This can be a general authorization to the government
and public administration for adopting a regulation, or a special authorization to explain
and enforce the parliamentary level regulatory provisions. Different from this is how to
regulate primarily and also in a secondary way issues of territorial and local interest within
the local (self) governments.
- The basic preventive measure in environmental protection is the permit or licence,
hopefully combined in the future with the requirements of environmental impact
assessment. Permitting today is a possible method of prevention, but these regulations
include environmental requirements as a secondary element to the main permitting
requirements. The environmental administration may only give consent to a more basic
operating permit. Here the main problem is what kind of environmental preconditions
are used in giving a consent to a basic permit. In most of the cases this environmental
consent is merely a collateral agreement to the operating permit and its impact on the
plant operation is greatly connected with the personal enthusiasm of the public servant in
question. Only in a very limited number of cases - like in nature conservation - is there a
possibility to introduce first-hand environmental permits. The permits could serve as good
sources for compliance instead of further involvement of public administrative authorities.
- Every area of administrative regulation contains the possibility of positive or negative
obligations. For example, industrial activities causing air, water or noise pollution over a
certain period of time may be stopped or limited. In addition, the use of arable land for
purposes other than agriculture without a permit is prohibited. If this requirement is
violated, restoration to the original situation (in integrum restitutio) may be required. In
practice, however, one can hardly find examples where these kind of measures are used.
2. The indirect measures can be:
- Administrative sanctions, the most frequently used measure being the environmental
protection fine. The present act formulates the general rule, stating that all persons who
pursue activities contrary to statutory provisions and official orders serving the protection of
the environment or fails to meet his obligations prescribed by the same, may be
(sometimes must be) obliged to pay a fine for environmental protection according to the
extent and dangerousness of such environmental pollution, harm or damage. The fine is
considered a measure to protect the general interests of the environment. If a polluter
pays a fine, he still may be required to pay compensation for damages or may be subject
to criminal penalties etc. These fines are media specific (12).
- A different kind of administrative sanction is the administrative levy against a violator for a
petty offence. A petty offence is a smaller violation used to penalize the negligent or
intentional wrongdoings of private persons.
- The administrative agency may enter into negotiations with the polluter, the consequence
of which can be a public administration contract, using the agency's discretionary right
to use measures other than sanctions. In the present situation, this contract is rather a
mere possibility than a frequently used method of negotiating compliance with the potential
polluters.
- The present development of a market economy favours the use of economic instruments
or incentives (13) more than even the near past. The best method of achieving
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compliance among the market players should be to use market-friendly measures which
orientate the possible polluter in the direction of meeting environmental requirements. The
first of this kind of measure was to introduce a product fee on the price of petrol in the
spring of this year.
If we examine the situation concerning the practical use of all these measures, one can
hardly find a clear-cut list of priorities in using these measures nor is there even a kind of manual
to introduce these measures to those practising environmental administration or doing business in
environmentally sensitive areas. The practical situation can be summarized like this: there is less
emphasis on prevention and more on sanctions, especially on special fines. The use of direct
intervention is very rare as are also in the case of measures requiring cooperation between the
public administration and the polluter. Today there are almost no incentives or other economic
measures used, although in the longer run these measures can have an effect of influencing the
decision-making process of the polluting economies. In short if we ask whether an enforcement
strategy exists based on the use of all these measures, the answer should be not much.
2.3.2 Civil Law (private law)
To explore existing civil law measures that offer a prospect for environmental enforcement,
two basic assumptions must be made: first, there is no need for new special civil law measures,
as the present ones are sufficient to satisfy the interests of environmental protection; second, civil
law today plays a very limited role in environmental protection. This situation is partly due to the
past preference for administrative law, and partly to the weakness of the private sphere and a
lack of willingness to litigate.
The following are the major options in the Hungarian Civil Code for safeguarding
environmental protection interests:
- personal integrity rights,
- intellectual property rights,
- nuisance (neighbourhood rights),
- trespass (possession rights),
- private contractual relationships,
- compensation of damages.
Personal integrity rights represent a good opportunity for environmental protection
interests, because they protect the rights of personal life, health and physical integrity. However,
they are rarely used to express the integrity of the private person against the state or the public
administration. The consequences of the infringement of these personal integrity rights (as is the
case with intellectual property rights, nuisance and trespass) could be numerous, ranging from
the simple statement that an activity is unlawful, to imposing conditions upon use, or even to
stopping the unlawful activity until compensation is given. The court may even impose an extra
levy on the wrongdoer if the other remedies, particularly compensation, do not fully redress the
seriousness of the unlawful conduct.
Intellectual property rights can serve as preventive measures in two ways. A direct
means is to include environmental requirements in standards for obtaining a license for an
invention. The precondition that an invention be progressive can include that the invention reduce
(or at least not increase) pollution. A less direct means is to use a label on a product that proves
it is environmentally friendly.
Nuisance law (or in Hungarian terms the regulations of neighbourhood rights and
obligations) is an easy way to prove the infringement of rights based on an environmental
content. Under Art.100 of the Hungarian Civil Code, an owner must avoid those activities which
needlessly disturb others (particularly their neighbours), or endanger the exercise of the rights of
others. Nuisance is not restricted to the actions of immediate neighbours. There is an
uncertainty as to what conduct is needless, as neighbours must tolerate some level of
disturbance.
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Trespass (or in Hungarian terms, infringement of possession rights under Art.188 of the
Civil Code) creates a theoretical right to undisturbed possession of property. Like in nuisance,
the disturbance must be examined on a case-by-case basis and balanced against locally
acceptable levels of disturbance.
All the above mentioned measures have a common characteristic that makes them
especially useful in environmental protection. No negligence or intent is required on the part of
the offender for any of these measures, which creates a kind of no-fault liability. In addition,
under the last two measures until last year could serve as a basis for indirect judicial review of
administrative decisions, which otherwise was greatly restricted (14).
Contractual relationships may also embody environmental protection interests. This
embodiment may weaken contractual obligations where there is a conflict of interests. For
example in statement No.25 (1980) of the College of Economic Cases of the Supreme Court the
court stated that a contractor has the duty to follow environmental regulations even where
responsibilities have been delegated to others.
At last we have to mention the compensation of damages under Civil Code Art.345. If
the compensation of damages is connected with endangering the environment, it shall be subject
to the strict liability provision of the Code pursuant to the rules relating to especially dangerous
activities. This practice is far from being satisfactory. The cases are limited to more simple,
individual cases due primarily to a lack of willingness to litigate. The preventive measure of
Art.341 of the Civil Code must also be mentioned. This gives authorization to courts to order
preliminary obligatory steps (e.g., to stop or limit the damaging activity) in order to avoid
damages.
Even if the present situation of labour law relations is not absolutely clear (due to pending
legislation on the labour code), reference should be made within private law issues on the
potential use of labour law regulation. In many cases, the pollution is the consequence of
some negligent employee's activity. Labour law has a possible twofold role in environmental
protection.
- First, environmental requirements could be adopted as aspects of professional conduct
(here we may also mention professional ethics, which nowadays tends to contain
environmental elements, although not in Hungary).
- Second, labour law could include a set of disciplinary rules and sanctions, also special
compensation rules for damages caused to the employer, where the damage could be a
fine imposed on the company. Both based on the new field of professional conduct but
also on the general obligation not to infringe legal regulations.
2.3.3 Criminal Law
Criminal law can hardly be included as an instrument of deterrence in Hungary's
environmental law, as there is no real practice of this kind. Criminal law can only be a last resort
(ultima ratio) to protect environmental interests, and has no concrete preventive element. An
additional difficulty in using criminal law for environmental protection is the fact that in Hungary
(as in other legal systems of Europe) criminal responsibility cannot be imposed on legal persons
(e.g., corporations). Only natural persons may be liable under criminal regulations, or those who
are acting on behalf of the legal entities.
The general environmental protection act includes a criminal provision for environmental
violations, and in 1978 the new Criminal Code enacted two special offenses: (1) damaging the
environment, and (2) damaging nature. The distinction between these two crimes is based on
whether nature conservation areas are effected. Both crimes have a version of felony and
misdemeanour. In addition, some general crimes like bodily harm or even murder could be used
in connection with environmental interests. In the small number of practical cases occurring in
Hungary, the offence of endangering life in pursuance of professional regulations proved to be the
favorite one. Of course this crime does not really reflect the special environmental interests.
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2.4 Organizational structure of environmental protection
When evaluating the present organizational system of environmental protection, the most
important questions to ask are whether this organization may easily serve the interests of
necessary integrated pollution control, and whether the structure follows the basic requirement
separating the economic use of a natural resource and the protection of the same resource. One
of the basic problems of the Hungarian environmental protection system was that the separation
of interests could not be achieved as even in the broadest level of government, the state
administration and the state owned economy existed hand in hand. The other major problem has
always been the lack of harmonization and cooperation among different organs having a role in
environmental protection, in many cases due to the lack of a clear-cut division of responsibilities.
In 1990 the Ministry of Environmental Protection and Regional Policy was established
- the third version for the central environmental administration within 3 years. The Ministry carries
the greatest responsibility in environmental protection. In addition to environmental protection its
responsibilities include regional planning, building-construction, the management of public and
historic monuments, and the supervision of meteorology services. The environmental tasks of the
ministry include air and water pollution, nature conservation, general landscape protection, noise
abatement, waste management, radiation and forest protection. For environmental
responsibilities, two centralized administrations have been established under the Ministry: the
Chief Inspectorate of Environmental Protection, with 12 regional offices; and the National Office
for Nature Conservation with 8 regional offices.
The second most important government institution for environmental protection is the
Ministry of Transport, Telecommunication and Water Management. This ministry is
responsible for water management and use - but not for the protection of water quantity and
quality, which is the responsibility of the Ministry of Environmental Protection and Regional Policy.
The Ministry of Transport, Telecommunication and Water Management has a National Office of
Water Management and 12 regional offices.
Other ministries also have a great number of environmental responsibilities. The Ministry
of Public Welfare and its Public Health Service is active in the field of pollution effecting public
health, the Ministry of Land Cultivation with its centralized system of land offices governs soil
protection, the Ministry of Interior protects settlements, the Ministry of Industry is responsible
for mineral resources and energy and the National Atomic Energy Agency is the exclusive
authority for the use and safety of nuclear power.
The conclusions driven from the above short overview: there is a lack of concentrated
environmental administration obligations, and in a number of cases the user of the environment
and the one responsible for the protection is the same organ. In addition, although the
Government is responsible for harmonizing environmental interests, this has not been realized
because the economic development pressure suppress them. Because of the lack of cooperation
and harmonization, the present draft environmental laws propose to set up consultative bodies for
this reason.
On the local and territorial level, the greatest power is in the regional organs of the
different ministries. The local governments have much less power, although they are not
excluded from taking over a greater sphere of tasks, their actual tasks are determined by their
narrow financial resources. The officials of the local governments - the mayors and the manager
- also have a number of administrative (including environmental) responsibilities given to them by
the central administrative organs. This means that in these cases they are not acting like local
government officials, but as the representatives of the central administration. The division of
powers between the central organs and the local governments still remain a major discussion
point.
From among the other public bodies, it is worth to mention the public prosecutor's
offices, which have general legal supervisory powers over the administration and partly over the
economy. They are also responsible for criminal prosecution. Although the possibilities of the
prosecutor's offices are great, they in practice have only a minor role in environmental protection,
much less than is desirable. The primary reason for this is their lack of experience in the field of
environment.
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The judicial system, with the new improved powers of judicial review over administrative
decisions, will soon have a much more direct input in environmental law enforcement. In
addition, there is a growing interest among possible parties, mainly citizens, to litigate even using
the possibility of civil law. In the courts, political and economic pressures have less input. We
may also mention here the special role of the Constitutional Court, having the power to judge the
constitutionality of any kind of legal rules.
2.5 Monitoring and Information
We examine the monitoring questions also from the point of view of obtaining and
processing information. Monitoring environmental pollution can be the duty of the administrative
organ or may be an obligation of the polluter (e.g., self-monitoring, as in the case of air-pollution
or hazardous waste regulation together with self-record keeping and recording). Both possibilities
require effective state control, as without it no self-monitoring will serve the interests of
information on the state of environment. The state-administered monitoring also must be
harmonized, as it is the responsibility of a number of organs. Instead of harmonization in today's
Hungary, the different agencies prefer to take the processed data as their own exclusive property.
This consequently means a lack of effective cooperation among state organs.
The local governments can participate only in theory in monitoring activities, having no real
stock of technical facilities (except Budapest). Therefore, they rely strongly upon the centralized
systems, and consequently the local governments depend upon the given information.
The information system is a basic condition of effective enforcement from both an
environmental administration point of view and from the public participation view. Even with the
existence of a reliable information system, the methods of obtaining and disclosing the required
information is also a vital part of an effective system. This includes:
- a reliable set of information on the state of environment in general,
- the information systems of different agencies are convertible and accessible,
- there is an obligation of the government to disclose periodically major environmental
information,
- there is an obligation of the government to provide information to the other government or
local governments,
- there is access to information on the state of environment in general, and also on specific
environmental pollution.
In the case of most of these requirements, the situation in Hungary is far from satisfactory.
This creates a major handicap for environmental enforcement (15). Some (but certainly not all) of
these problems shall be solved with the creation of a GIS system supported by the PHARE
project.
2.6 Public Participation
A great potential ally for serious environmental regulatory and enforcement policies could
be the public itself and those organizations (NGOs) which have environmental protection as their
main purpose. The past political history demonstrates an objection to public participation, under
the rationale of socialist harmony of interests, represented by the state. As a follow-up to the
prior section, an important condition to public participation is public access to information.
Access to information, clear-cut terminology of official and business secrets, and
conditions for participation issues are missing in general legal rules. The general rules of
administrative procedure do not give guidance in this field. While there is no "community right-to-
know" rule within the past administrative regulations, a recent law could create a kind of access
to information. This law establishes the Public Health Service and requires the Service to monitor
and collect data related to the public health effects of pollution. This information is available to
the public, and the Service is required to publicize data on the health effects.
As a second question, we move to the rule-making procedures where the former
socialist requirement of open discussion of legislative drafts was dismissed as being formal and
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only an alibi of the state to avoid the real democratic legislation. According to the Parliament
today, living in a rule of law state there is no formal need for open discussion. From the possible
public participation awareness only an opportunity to call for a referendum prevailed.
The Constitutional Court procedure, somewhat more than 2 years old, gives room for
citizens to ask for the constitutional review of legal rules without requiring direct involvement of
the citizen in a case. The Court's standing requirements may be the broadest in the world,
virtually covering all the cases of post-regulatory supervision and also a great extent of pre-
regulatory control. (In effect, the Court is too busy to address all cases in due time.) Citizens
may challenge the constitutionality of a regulation serving as the basis for a judicial or
administrative decision affecting their constitutional rights. The Court may invalidate the
regulation, but not the individual decision.
In administrative decision-making procedures such as permitting or direct orders, there
is no explicit rule for public participation. Under the general rules of administrative procedure,
only "interested parties" can be involved in these procedures. The term of interested party is
interpreted in a way to limit involvement to those "whose rights or lawful interests are being
affected". The interpretation of this provision today is limited to the narrowest possible sense,
covering only direct and material interests.
If we speak about administrative procedure, we should mention the different control
mechanisms where the public participation could be effective. There are no direct provisions for
public participation in this control, and no public disclosure of the control activities. Information
obtained in a public monitoring action may serve as a basis for initiating a kind of administrative
procedure. However, there is no obligation on behalf of the administrative organs even to answer
the proposal in due course. (Interestingly, the last general provision fbr public control was the
existence of national and territorial "public control offices", deleted by the new Parliament as
being only measures of a fake democracy.)
The possible participation of NGOs also requires a kind of standing in administrative
and judicial procedures, which is missing in Hungary. There are presently no legal rights to bring
a class action. The EIA process could be one to cover public participation directly, including
NGO rights, but these rules are still in a drafting stage. In civil litigation, a serious drawback in
addition to the lack of procedural solutions (such as to give standing to the NGOs) is the
requirement that costs of litigation must be paid in advance. There is no statutory exception from
this general rule based on the priority of environmental interest.
3 CHANCES FOR BETTER ENFORCEMENT
Before any speculations about the future of Hungarian environmental law, if we hope to
set up .a better enforcement system in the near future, we must have a positive expectation that it
will be achieved. Hungary already has mechanisms to create a better enforcement system. The
development of such a system mainly relies upon the serious and wilful decision of the
Parliament and Government to have real environmental requirements and strictly execute them.
In addition to these two most important central regulatory (and in the case of the Government
also administrative) organs, we have to add the possible emerging role and responsibility of local
(and territorial) governments in formulating regulations and decisions and also in executing legal
provisions. The greatest obstacles in the process of developing a new environmental protection
structure, however, can be found in the economic and financial resources rather than in the legal
system.
The first option for developing a better enforcement system is to review the present
general legal and environmental protection regulations, in order to identify those elements which
can serve the environmental protection interests easily as they stand now. There are already a
great number of useful legal measures, and we even may state that the majority of effective
enforcement possibilities are already existing. Here we can list such instruments as the permit
system, strict liability in compensation, criminal liability. These measures need not be amended
in a hurry, as the revision of selected elements of the legal system (instead of the possible
restructuring of the whole system) could easily disturb the possible utilization of the otherwise
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relatively effective measures. While using the elements of the existing system, we can also learn
how to improve them. On the other hand without this kind of practical improvement there is a
possibility to develop the new system with similar handicaps of implementation or enforcement.
As to the overview of the existing legal instruments, there are two major ways to bring
them closer to the needs of effective environmental enforcement:
- Tailor the existing instruments to the modern concepts of market economy and stricter
requirements of protection, together with the overall reconstruction of the legal system (for
example as it has happened in the case of environmental protection fines there is no use
to make a distinction between natural and legal persons, as today both may be the subject
of any kind of economic activity);
Formulate the administrative and judicial practice in the required direction of environmental
enforcement (for example, interpret the constitutional right to a healthy environment in a
way that allows it to serve as a general litigation basis, or educate judges and
administrative officials on the specialities of environmental protection cases).
These are only two of many aspects of the present unique environmental protection
system. These main aspects will assist in the creation of a potentially effective environmental
legal system. However, these are only tools in the carpenter's toolbox and if there is no skilled
carpenter (or he does not want to work) they are useless. The effective use of these tools will
turn on the existence of an environmental policy and strategy, a part of which shall be the
enforcement policy. The essential environmental policy will:
- identify priorities, both between economy and environmental protection, and also within the
several environmental protection targets;
establish time limits and deadlines for compliance (i.e. compliance schedules) and also
outline enforcement strategies;
- locate the purpose and means of use of government financial resources.
A concrete method for setting priorities could be to identify those areas where the best
result can be realised with the smallest amount of financial resources, among others in order to
attract the public. These mean in the greater number of cases simple practical solutions, like the
extended use of bottle deposit and return systems. In this way we can activate enforcement even
if the environmental financial resources are not sufficient to solve the much bigger pollution
problems, as the cleaning up of abandoned waste sites. Together with these practical steps, we
must also identify those great hazards where immediate steps should be taken.
The necessary reconstruction of environmental law should come only after an
environmental policy is adopted, which is not characteristic of the given environmental law
drafting. Without this the drafting could proceed as if it was policy-making. In the modern
comprehensive act on environmental protection, we must cover at least the following items, in
addition to using possibilities of the existing toolbox:
substantive law:
- environmental impact assessment and environmental auditing,
- public participation, NGO rights,
- market elements to be built into the developing market system and also into the
environmental law,
- funding issues.
organizational issues:
- harmonization and cooperation among government agencies and between agencies and
polluters,
- special task forces in prosecutor's and police offices,
• local government roles and responsibilities,
- ombudsman.
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Last but not least, as a general condition we should not forget about environmental law
and enforcement education in a greater context, raising the environmental consciousness of the
regulators, decision-makers and enforcement officials, and also of the public.
NOTES AND REFERENCES
(1) Although the European Community is the one organization most of the CEE countries wish
to join, more and more countries of the region also could become members of the Council
of Europe. It is worth to mention here the Council's Recommendation 1131 (1990) on
the environmental policy in Europe (1988-89), adopted on 28 September 1990. In
paragraph 7, it states:
"At a time when relations with the countries of Central and Eastern Europe are opening
up, we are also discovering the scale of the assaults on the environment in these
countries, assaults to which we cannot remain indifferent and which will require
particular attention from Europe as a whole."
(2) Program for Transition and Development of the Hungarian Economy.
(3) As Hilary French states in Worldwatch Paper 99 - Green Revolutions: Environmental
Reconstruction in Eastern Europe and the Soviet Union (November 1990): "Though their
environment do not show it, both the Soviet Union and the East European countries have
stringent environmental regulations on the books....Unfortunately, enforcement of these
laws has been poor." (p.34.)
(4) As the Worldwatch Paper 99 stated at the end of 1990 (being more or less true also
today): "Hungary still has a relatively ineffective environment ministry that, until September
1990, was combined with a public-works-style water development agency. It is too soon
to tell whether the separation of agencies will enable the environment ministry to pursue its
mandate more effectively. Ominously, the administration of construction was combined
with the environment ministry. Says environmentalist Janos Vargha: This could be a new
fox in the henhouse.' " (p.39.)
(5) The present general act in force concerning the protection of human environment is the
Act No.ll.of 1976.
(6) The 1992 Environmental Almanac (compiled by the World Resources Institute) also uses
the example of the lake as a positive one in the country: "Lake Balaton, one of the largest
fresh-water lakes in Central Europe and an important recreational area in Hungary, has
been threatened by sharply increased levels of industrial and municipal pollutants. The
excess nutrients threaten to overfertilize the lake and promote the growth of algae.
Government efforts to improve water quality, which began in 1983, have helped; after
updating 10 sewage treatment plants, the total amount of phosphorus entering the lake
has been halved." (p.490)
(7) There are more than 250 different legal regulations which directly or indirectly refer to
environmental protection interests, but all were adopted at different times and under
different circumstances.
(8) In this paper there are at least three basic regulatory philosophies concerning
environmental regulation. The main purpose of regulation differs due to these different
philosophies. The most general and common philosophy up till now focuses regulation on
the present state of mankind and takes man as the main subject to protect. The second
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possibility is to focus on future generations also, this requiring greater efforts from the
present generation, because they are not the only guardians of the environment. The third
and broadest philosophy is the concept of biodiversity, where not only the human
environment must be protected, but also the environment as it is.
(9) Act No.II. of 1976 on the protection of human environment, Art.2.(2).
(10) In the past several years we can present examples for this kind of legal evolution: the
Environmental Protection Act 1990 (1990 c.43) of Great Britain; Act No.V.of 1991, An Act
to protect the Environment of Malta; the Dutch draft of the environmental protection
(general provisions) act from September 1989, still under discussion; and the German
general Umweltgesetzbuch draft from 1991, still in the process of preparation. The latter
two reflect a commitment on the part of the drafters to develop further modem regulation.
There are also some trends towards a comprehensive international covenant on
environmental law, such as the draft of the IUCN - "Covenant on environmental
conservation and sustainable use of natural resources" from April 1991. Even in the
United States, The Conservation Foundation drafted a comprehensive environmental
protection act in 1988, primarily written by Terry Davies.
(11) Bulgaria adopted a general environmental protection act in October 1991. The act is a
general one and relies greatly on further legal provisions, but covers the most important
legal measures such as impact assessment.
The Czech and Slovak Federal Republic adopted an act concerning the environment in
December 1991. The concept is similar to the Bulgarian act. namely to give only the
outline of the regulation. The act tries to encompass the conceptual questions, such as
principles or guidelines for future regulation and practice. Based on the federal act, both
the Czech and Slovak Republics are drafting their own environmental laws.
The Polish draft was also completed last year, but has not been adopted (the act
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(15) A concrete example of the general lack of information could be found in a publication,
sponsored by the Ministry of Environmental Protection and Water Management, titled
"Studies on the National Environmental Situation" (Tanulmanyok hazank kornyezeti
allapotarol) in the Environmental Policy Series, No 1, page 37 stating:
"The precise definition of the present soil pollution situation is a question that has not been
solved because of the lack of a monitoring system....To be able to register, tackle and
forecast the soil pollution such a monitoring system, information system and evaluating
methodology is necessary which is capable to measure separately and collectively the
effects of those polluting agents having different origin (industrial, traffic, agricultural,
waste-depository and communal) and different chemical compounds and so they are also
good for shaping and using the different preventive methods."
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DEVELOPING ENFORCEABLE ENVIRONMENTAL REGULATIONS AND PERMITS
FULTON, S.F. and GILBERG, E.J.
Environmental Protection Agency, 401 M St., S.W., Washington, D.C. 20460
(United States of America).
SUMMARY
This paper discusses the need to design environmental regulations and permits to be
enforceable, and the factors that regulators need to consider to do so. The paper assumes that
the government agency responsible for environmental protection has sufficient legal authority to
develop and to enforce regulations and permits. This discussion relies heavily on the experience
of the United States Environmental Protection Agency in enforcing its own regulations and
permits.
This paper identifies several elements that are essential for enforceable regulations and
permits. We discuss why each type of provision is important and give examples of enforcement
problems that have arisen when a regulation or permit did not incorporate these elements. We
also discuss the steps EPA has taken or is now taking to assure more enforceable regulations
and permits in the future.
s
1 INTRODUCTION
An effective environmental enforcement program must ensure that the goals of
environmental protection are actually achieved. To do so, an enforcement program should be
strong, efficient, creative, and fair.
First, enforcement programs should be strong enough to have an impact on the regulated
community, to change behavior so that environmental compliance becomes standard practice
among industry. To accomplish this objective, the program must reach enough violators to pose
a credible threat of enforcement against all violators, it must assess sufficient penalties to deter
future violations, and it must effectively communicate its results to the regulated community.
Second, enforcement programs must be efficient to establish a presence within the
regulated community despite limited resources. Enforcement must use all its available tools -
administrative, civil judicial, and criminal remedies. Where feasible and appropriate, multi-media
approaches can address environmental problems comprehensively, potentially delivering greater
environmental benefit than would likely be achieved otherwise. Similarly, risk-based targeting
enables an enforcement program to devote its resources to addressing emissions or discharges
that pose the greatest threat to public health and the environment.
Third, enforcement should be creative, by striving where appropriate for environmental
results that go beyond compliance. For example, the government can seek through enforcement
to induce a violator to conduct a pollution prevention or pollution reduction project, in addition to
coming into compliance.
Finally, enforcement should be fair. If the government treats similar violators in a similar
way, industry will have greater confidence in the government and is likely to abide by the
consequences of enforcement more readily.
To enable the enforcement program to meet these objectives, environmental regulation
must either apply environmental requirements to a specific facility through clearly written permits
or ensure that generally applicable rules are clear and enforceable. Imprecise rules and permit
terms hamper good faith efforts to comply and reduce a facility's accountability for compliance
with environmental requirements.
Environmental agencies can increase compliance by developing regulations and permits
that are enforceable. A system which combines enforceable regulations with the promise that the
government will respond firmly to violations ultimately encourages a high level of voluntary
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compliance. When industry is motivated to control its own operations in order to achieve
environmental standards, the need for public expenditure on inspectors and bureaucrats can be
reduced. Thus, enforceable standards contribute to efficiency as well as to achievement of
environmental goals.
Enforceable standards also focus policy choices. A regulation that contains specific
language will gain more serious attention than a regulation written in general terms. Industries
and other affected interest groups will be more concerned about new standards when they know
that the regulation or permit can and will be enforced.
Enforceable standards are fair to industry by clearly communicating what is required.
Clear standards will enable industry to comply, will reduce the chance for arbitrary treatment by
government, and will reduce the likelihood of litigation to enforce the requirements.
To write enforceable regulations and permits, an environmental agency should integrate
enforceability considerations into its decisionmaking process. Consider, for example, the
regulatory agenda of the United States Environmental Protection Agency in implementing the
Clean Air Act Amendments of 1990. The Agency is scheduled to develop approximately 100
regulations during the first few years of implementing the new law. In addition, the States will be
issuing operating permits to an estimated 34,000 major air pollution sources in the next several
years, each of which is subject to review by EPA. The vast scope of this agenda makes it
essential that EPA consider enforceability issues throughout the regulatory process and set
priorities for effective involvement by enforcement personnel.
A regulatory agency might fail in its basic function if it writes regulations or permits that are
unenforceable. As a result, the environmental goals established by the agency might not be
achieved.
2 GENERAL PRINCIPLES OF ENFORCEABILITY
There are several criteria for drafting an enforceable regulation or permit. It must:
• Be understandable
» Precisely define the sources subject to its requirements
» Clearly establish a standard of conduct
* Clearly address how compliance is to be measured
• Include clear deadlines for compliance
• Include self-monitoring and reporting requirements
* Be adopted in accordance with correct procedures
Policymakers need to consider the feasibility of compliance in establishing the stringency
of requirements. Requirements that are unachievable obviously will result in noncompliance, and
the greater environmental benefits desired will not be attained. The most effective strategy for
regulators is to consider regulatory options which are achievable. By emphasizing practicability
and enforceability throughout the regulation development process, policymakers will increase the
likelihood of an effective regulation.
3 ELEMENTS OF ENFORCEABLE REGULATIONS AND PERMITS
3.1 Understandable
The central feature of an enforceable regulation is that it be clear and understandable.
Excessively complex regulations can lead to uncertainty among government and industry
regarding the requirements of the regulation. Such uncertainty hampers both industry's efforts to
comply and the government's efforts to enforce.
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Consider the example of the definition of "solid waste" under the Resource Conservation
and Recovery Act (RCRA). RCRA is the law that governs the management of hazardous waste
in the United States. Hazardous waste is defined to be certain types of solid waste.
The definition of solid waste is so complex that it takes three pages plus a flow chart in the
United States Code of Federal Regulations. The United States Environmental Protection Agency
(EPA) receives approximately 1000 calls per month on its telephone hotline, most of which
involve questions concerning the definition of solid waste. EPA's own study of the RCRA
program found that the definition was hard to understand for EPA, States, and industry. EPA
further found that permitting and enforcement were hampered by the complexity of the
regulations.
The consequences of unclear regulations are illustrated by a recent United States federal
court decision that a company cannot be penalized for violating ambiguous, confusing
environmental regulations. Rollins Environmental Services (NJ). Inc. v. EPA. 937 F.2d 649 (D.C.
Cir. 1991). In this case, a company had been fined $25,000 by EPA for violating regulations
governing how to decontaminate polychlorinated biphenyl (PCB) containers. The court set aside
the penalty on the grounds of "regulatory confusion." While EPA is currently rewriting this rule to
address the concerns, this example clearly demonstrates the need for regulators to write clear,
understandable regulations.
3.2 Precisely define the sources subject to its requirements
An enforceable regulation must precisely define the sources subject to its requirements.
The critical first step in determining compliance with environmental requirements is deciding who
is covered. The regulation must clearly define the regulated industry, regulated activities, and
regulated substances. Similarly, a permit must precisely state which facilities and processes are
covered.
RCRA regulations illustrate this concern. RCRA regulations require that any person who
imports a hazardous waste must comply with certain provisions of RCRA. In particular, the
regulations state that the importer must originate a manifest, the key feature of RCRA's "cradle to
grave" system of tracking hazardous waste. The regulations do not on their face, however,
clearly define "importer." It is less than clear whether the importer is the person who transports
the waste across the border, the person who acts as broker, or the person who receives the
waste. The absence of a clear definition makes it difficult for EPA to decide who to enforce
against for violations of these requirements.
A similar problem is illustrated by regulations under the Asbestos Hazard Emergency
Response Act (AHERA). AHERA regulations require that an asbestos management plan be
developed for schools. The regulations do not clearly indicate who is responsible for assuring
that the plan include the required elements. While EPA has taken the position that both the
school and the asbestos management planner are jointly responsible for each element in the
plan, the lack of clarity in the regulation creates some uncertainty regarding who EPA can enforce
against for violations of these requirements.
As another example, EPA took enforcement action against a company for violating State
regulations governing emissions from paper coaters. The company argued in its defense that it
was a paper "impregnator." that is, it saturated, rather than coated the surface of paper with
chemicals. Even though the rulemaking record showed that the State had intended to regulate
this source, a State court agreed with the company's interpretation of the regulation. A federal
court then dismissed EPA's enforcement action on the basis of the State court decision. United
States v. Riverside Laboratories. 678 F. Supp. 1352 (N.D. III. 1988). In this case, the regulation,
in the court's view, failed to precisely identify the regulated activity.
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DEFINITIONS
Does the regulation clearly define who is subject to its requirements? A regulation can
specify the type of plant, industrial activity, or regulated pollutant.
Does the regulation apply only to sources of a certain size? If so, does the regulation
state how the size of a source is to be determined? For example, a regulation may
apply to plants that produce a certain amount of a particular substance per year.
Are there any exceptions to applicability of the regulation? If so, exceptions should be
defined as narrowly as possible.
Are defined terms used consistently? Once defined, a term should be used only when
that meaning is intended.
Are the definitions and exceptions precise? Definitions should be sufficiently precise for
enforcement personnel to identify violations.
Does regulation clearly identify the legal authority for the regulation?
3.3 Clear Standard of Conduct
A regulation or permit must clearly articulate the standard of conduct expected of a
regulated source. If the regulation sets forth an emissions or discharge standard, it should
establish a numerical standard which can be measured. Policymakers should consider alternate
ways to express a standard of conduct and pick the one which is easiest to measure.
Exceptions or exemptions to a standard should be clearly stated. For example, regulators
may decide as a matter of policy that periods of startup, shutdown, or malfunction should be
given special treatment. In such case, the regulation should clearly state how such
circumstances are to be determined, and what, if any, requirements apply in those circumstances.
Moreover, the exemption should be stated in a manner that ensures that a person claiming
entitlement to an exemption has the burden of proving that entitlement in the event of a dispute,
rather than the regulator having to prove that the exemption does not apply.
Examples of EPA regulations that do not establish clear standards of conduct are
abundant. For example, EPA's AHERA regulations require schools to hire asbestos inspectors to
identify the locations of all "suspected" asbestos-containing building material (ACBM). The
regulations do not define the term "suspected," nor does it contain a list of suspected materials.
As a result, in circumstances where an inspector does not actually identify a certain material, it is
very difficult for EPA to prove that the material should have been considered "suspected" ACBM.
The environmental agency may not be able to establish emissions or discharge standards
in some instances. In such circumstances, the agency may adopt "work practice" standards, that
is, regulations which describe activity which a company must conduct to comply. Work practice
standards are, by their nature, difficult to enforce and should be avoided whenever possible.
EPA's Clean Air Act asbestos regulations are a classic example of the difficulties posed by
work practice standards. EPA's asbestos National Emission Standards for Hazardous Air
Pollutants (NESHAP) apply to persons that demolish or renovate buildings containing asbestos.
The regulations require that such persons "adequately wet" asbestos that is removed. This
standard is clearly subjective -performance cannot be measured with any precision. As a
practical result, enforcing against companies that wet asbestos "inadequately" is extremely
difficult, and EPA usually enforces only against companies that do not wet the asbestos at all.
EPA's permit program under the Clean Water Act shows the value of clear, measurable
standards of conduct. Under the National Pollutant Discharge Elimination System (NPDES)
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program, a permit holder may discharge pollutants into navigable waters of the United States.
NPDES permits contain specific effluent limitations, which restrict the quantities, rates, and
concentrations of pollutants in discharged wastewater. Having such specific requirements in
permits has greatly simplified enforcement by EPA and by citizen groups and led to high
compliance rates in this program.
STANDARDS OF CONDUCT OR PERFORMANCE
Does the regulation or permit require conduct or performance that is measurable?
Methods must exist to be able to measure whether a source is complying with the
performance standard set forth in the regulation or permit.
Are more enforceable requirements available? In particular, regulators should choose,
where possible, to set forth an emissions or discharge standard rather than a work
practice standard. Emissions or discharges can be quantified and compared against a
standard of performance.
Are exceptions clearly described? Does the regulation or permit address circumstances
during which excess emissions are excused, for example, during startup, shutdown, or
malfunction? Does the company bear the burden of proving that it is entitled to the
exemption?
3.4 Clearly state how compliance is to be determined
In developing a standard of conduct, the agency must consider how it will determine
whether the source meets the standard. Environmental goals will not be advanced if the agency
develops a standard of performance that cannot be monitored. The regulation or permit should
state clearly how compliance is to be determined. Compliance with an emissions standard may
be required at certain intervals, 100% of the time, or it can be determined by averaging emissions
over a specified time period. Where an averaging period is chosen, the regulation must be clear
on the timeframe to be used in averaging. For example, a monthly average can be determined
by calendar months, or by "rolling" months, that is, each day an average of the previous 30 days
must be used to determine compliance.
In the case of emissions or discharge standards, the regulation or permit should state how
compliance is to be demonstrated by the company. Compliance may be demonstrated by various
methods, such as an initial performance test, periodic monitoring, or continuous monitoring
performed by mechanical monitors. Specifying a test method increases the chance that the
company and the government agency will make the same determination of the amount of
emissions. The regulation or permit should also make clear whether monitoring data can be used
to determine compliance.
EPA's pretreatment program under the Clean Water Act shows the problem that can be
presented when a regulation does not specify how compliance is to be determined. Pretreatment
is the treatment of industrial wastewater at an industrial facility, before its wastewater is
discharged into a local sewer system. The pretreatment program is designed to protect Publicly
Owned (wastewater) Treatment Works (POTWs) and the environment from the harm that may
occur when toxic, hazardous or concentrated conventional pollutants are discharged into sewer
systems. This protection is achieved by regulating the nondomestic users of POTWs, commonly
called industrial users (IDs).
The governmental entity responsible for implementing pretreatment controls on Ills is
usually the local municipality through its POTW. Enforcement problems have arisen because
many of the local and federal requirements were written in general terms, with very few specific
terms. As a result, EPA has had difficultly determining whether POTWs were fully and timely
implementing their pretreatment programs.
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In response to the problem, EPA revised the pretreatment regulations to establish certain
minimum actions POTWs would be required to perform in developing and implementing their
pretreatment programs. For example, the revised regulations require POTWs to issue local
permits to all of their significant industrial users (SIDs). Each permit will specify all of the
pretreatment standards and requirements with which a particular SIU must comply. The
regulation also specifies the minimum conditions which such permits must contain. By providing
more specificity in the regulations through minimum requirements, POTWs would better
understand what the minimum federal requirements were for implementing a pretreatment
program. These regulatory revisions are expected to improve EPA's ability to monitor a POTWs
compliance with its pretreatment program implementation requirements and make EPA
enforcement easier where appropriate.
In some instances, environmental misconduct may give rise to multiple violations. In such
circumstances, it is sometimes helpful to define the relationship between such violations and a
facility's exposure to penalties. EPA's regulations implementing the Montreal Protocol on
Substances that Deplete the Ozone Layer include an effective approach to this issue. These
regulations impose a limit on the amount of ozone-depleting substances that can be produced or
imported annually (in a 12-month period). EPA has legal authority to take enforcement action to
seek civil penalties of $25,000 per day per violation. If one considers an annual total that violates
the limit to be 365 days of violation, the company would be exposed to penalty liability of over
$9,000,000, which might be unreasonable for a minor exceedance. On the other hand,
considering an annual total as one violation creates a maximum penalty of $25,000, which may
not be enough to deter future violations. EPA resolved this problem by declaring, in the
regulation, that each kilogram above the limit would be considered a separate violation. In so
doing, EPA devised an approach that directly relates the penalty to the amount of ozone-
depleting substances illegally produced or imported.
DETERMINING AND DEMONSTRATING COMPLIANCE
Does the regulation or permit specify how compliance is to be determined? For
example, is compliance determined by measuring emissions at specified intervals? Are
emissions averaged over a specified period of time?
How does the company demonstrate compliance? Is it demonstrated by performance
testing, periodic monitoring, or continuous monitoring?
How does the government determine compliance? Does the government rely on field
inspections, review of monitoring records, or review of periodic reports?
Does the regulation or permit specify a test method for performance tests?
Does the regulation or permit specify what data may be used as evidence of violations?
If applicable, does the regulation or permit specify how many violations are created by
certain conduct? This is particularly important where the regulation includes an
averaging time for determining compliance.
3.5 Clear Deadlines for Compliance
An enforceable environmental regulation or permit should state clearly the time when
compliance must be achieved. In some instances, it may be useful to include interim dates by
which the company must take intermediate steps to achieve compliance by the deadline. For
example, if a permit requires compliance in two years, it could also include deadlines for
completing engineering, entering into contracts, beginning installation of control equipment, and
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completing installation of controls. Such interim deadlines allow the government to enforce
against a company which is behind schedule before the final deadline for compliance.
The NPDES program under the United States Clean Water Act is again a useful model.
The permits specify dates for compliance with effluent limitations, including interim requirements,
and
contain compliance schedules when the date for compliance is more than one year from the date
the permit is issued.
It is important that the compliance deadline be certain and not dependent upon other
events. EPA New Source Performance Standards (NSPS) under the Clean Air Act illustrate what
can go wrong. Many of these standards require the source to comply with emission limits "on
and after the date on which the performance test... is completed." A performance test measures
emissions to determine that pollution controls are working properly. The regulations required
such a test to be completed within 180 days of starting operation of a new source. A United
States federal court decided that, if a source did not conduct a performance test, there was no
requirement to comply with the emission limit. EPA has corrected this problem in recent NSPS
by requiring that sources comply with emission limits after the date the performance test is
conducted, but^no later than 180 days after starting operation. By specifying a certain date, EPA
eliminated the possibility that a company could avoid complying with the emission limit by failing
to conduct the performance test.
COMPLIANCE DEADLINES
/
Does the regulation or permit specify the time by which compliance is required?
Are interim deadlines included? This is useful where the compliance schedule is longer
than one year.
Is compliance required by a specified date? Compliance deadlines should usually not be
entirely dependent on another event under the control of the facility, such as completing
the performance test.
If compliance is required upon the occurrence of an event, does the regulation or permit
specify the event clearly so that an inspector can determine whether the event has
occurred?
3.6 Self-monitoring, Recordkeeping and Reporting Requirements
To avoid large government expenditures in inspections and monitoring, environmental
regulations can shift responsibility to industry for monitoring compliance. Placing the
responsibility on industry will increase the rate of voluntary compliance.
To assure that a source maintains compliance with environmental requirements, the
regulation or permit must require continuous or periodic monitoring. Merely requiring a
compliance test once a year will not assure compliance. Most companies can successfully pass
an annual test even if their control equipment is not properly maintained the rest of the year.
Thus, a yearly compliance test may reveal little about the compliance status of a source under
ordinary operating conditions.
The regulation or permit should be specific regarding what the source monitors. The
monitoring should yield data that relates to the performance requirements of the regulation. A
source can monitor emissions directly, or, in some instances, a source may monitor other
operating parameters which measure the level of pollution control. If, for example, an incinerator
is used to control emissions, monitoring incinerator temperature may be useful to ensure that the
incinerator is properly operated.
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The regulation or permit should state whether monitoring done by the industry can be
used as evidence of noncompliance. Some EPA regulations allow emissions monitoring data to
be used as evidence of violations. Other regulations do not. If not, the monitoring data can only
be used to alert the government that a problem may exist and that emissions testing should be
conducted.
Environmental regulations should require sources to keep records of monitoring data and
any other information relevant to determining compliance. This may include records of emissions,
operating conditions, and operating logs. The regulation should clearly set forth the content of
the required records. These records should be made available for inspection by government
inspectors.
The regulation or permit should also specify how long the records should be kept.
Generally, EPA has required that records be kept for at least five years. United States law limits
the period of time for bringing claims for civil penalties in most circumstances to five years from
the date of the violation. If a United States environmental regulation imposed a recordkeeping
requirement of less than five years, it would allow industry to dispose of records that could
otherwise be used as a basis for enforcement.
Since governments generally do not have sufficient resources to rely on inspections of
plants or records alone to monitor industry's compliance with environmental requirements, it is
essential that regulations and permits require periodic reporting to the government. Reporting
can include monitoring data, emissions above the standard, and emergency emissions or
discharges. The regulation or permit should be specific about the content of the required reports.
It should also be clear about when the reports are required and to whom they must be sent. If
authority to enforce has been delegated to a local unit of government, the regulation or permit
should be clear about whether reports go to the local unit, the central agency, or both.
Reporting should be frequent enough to allow the government to respond to an
environmental problem in a timely way. EPA regulations require releases of toxic pollutants to be
reported, in some cases, within 24 hours. More routine reporting is typically required quarterly or
twice a year.
RCRA import regulations serve as an example of the problem associated with insufficient
reporting. The regulations require the owner or operator of a facility that receives a hazardous
waste from a foreign source to submit a notice to EPA once for each wastestream and for each
foreign source. There is no requirement to submit notice of individual shipments of hazardous
waste. Thus, the regulations significantly limit EPA's opportunity to take any action on individual
shipments.
The NPDES permit program, on the other hand, offers a good example of effective
monitoring and reporting requirements. The most important is the submission of monthly
Discharge Monitoring Reports (DMRs), which summarize discharge monitoring data and identify
periods of violations. The DMRs have resulted in easier enforcement for EPA and for citizen
groups in the United States. Generally, citizens have been far more successful bringing
enforcement actions in such circumstances than where they try to enforce other regulations that
do not include such specific monitoring and reporting requirements.
To have integrity, a self-monitoring and reporting program must include significant
disincentives for false or misleading reporting and the perception that false reports wilt be pursued
aggressively, (n the United States, false reporting is a criminal offense, and a significant portion
of EPA's environmental crimes program is directed at this kind of conduct.
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MONITORING, RECORDKEEPING, AND REPORTING REQUIREMENTS
«• Does the regulation or permit require periodic or continuous monitoring? Does it specify
the methods to be used to monitor?
» Is it clear what activity is to be monitored? Does the monitoring data show whether the
facility is in compliance?
» Does the regulation or permit specify what information is to be recorded? Does is make
clear how long records are to be retained? Are the records available for inspection?
* Does the regulation or permit require periodic reporting to the government? Does it
specify what information is to be included in the reports? Is the information enough to
determine whether the facility is in compliance?
* Is reporting frequent enough to allow the government to respond to a violation in a timely
manner?
* Is failure to monitor, keep records, or submit a report a separate, enforceable violation?
* Are exceptions to monitoring, recordkeeping, or reporting requirements clear?
* Are there serious sanctions in place for false reporting?
3.7 Adopted in Accordance with Correct Procedures
While not often considered an enforceability issue, a regulation or permit may be
impossible to enforce if it is not adopted under proper procedures. In the United States,
regulations must be adopted after notice to the public and an opportunity for public comment.
Failure to adhere to those procedures may result in a regulation being declared invalid by a court,
making it unenforceable. EPA's RCRA program is a prime example of the difficulties that can be
presented by procedural defects in developing regulations. A federal appeals court recently
declared invalid two provisions that are central to the RCRA program, the "mixture" rule and the
"derived from" rule. Shell Oil v. EPA. 950 F.2d 741 (D.C. Cir. 1991). These rules defined
hazardous waste to include any waste that was mixed with a listed hazardous waste, or is
derived from a listed hazardous waste. These provisions were adopted as part of a broad
regulation that implements RCRA, after public notice and comment. The court ruled, however,
ejeven years after EPA adopted the regulation, that EPA had failed to give the public adequate
notice of these particular provisions. Accordingly, the court invalidated the rule.
Because of that court decision, another federal appeals court subsequently set aside a
criminal conviction for violations of RCRA. U.S. v. Goodner Brothers. No. 91-2466 (8th Cir.,
June 4, 1992). A company and two individuals had been convicted of knowingly treating, storing,
or disposing of a hazardous waste without a permit. Following the Shejj decision, the court ruled
that the rule was invalid from its adoption in 1980, and that the government could not take
enforcement action in this case for illegal handling of waste based on the mixture rule. In
response to the Shell decision, EPA reinstated the "mixture" and "derived from" rules, thereby
mitigating the impact of the decision on enforcement.
Regulators should be alert to the correct procedures in adopting environmental regulations.
A regulation which includes all the necessary elements but is declared invalid based on
procedural defects is simply not enforceable.
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3.8 Additional Considerations for Enforceable Permits
A permit generally regulates either the construction or operation of a facility that is a
source of pollution. Permit requirements are typically based on requirements established in laws,
regulations, or guidance. The most common type of permit is a facility-specific permit. In the
case of a very large universe of small sources, "general" permits may be more practical. A
"general" permit is published like a regulation and gives operating permission to conduct specified
activities for anyone who meets certain conditions.
Permits can serve an important enforcement purpose by combining in one document ail
the environmental requirements that apply to a source. To be most effective in this regard, a
facility's opportunity to contest a permit's provisions should be limited to a brief period after it is
issued. Accordingly, a permit system can eliminate disputes in enforcement actions over which
requirements apply to a particular source.
Many of the elements that make up an enforceable regulation apply to writing permits as
well. There are, however, additional points which must be considered in developing a permit
system. The law or regulation establishing the requirement to have a permit must specify clearly
who must obtain a permit, and when. Most importantly, the regulation should address the
consequence of not obtaining a permit. For example, the regulation may specify that the source
cannot be operated after a particular date without a permit. In such case, the government could
take enforcement action against the source for failure to obtain a permit. Procedures must be
specified for obtaining a permit, renewing a permit, and revising a permit. The permit must
be clear regarding the length of time for which it is valid, and what requirements apply when an
application for permit renewal is pending. It should contain specific requirements such that the
source's performance can be measured. If the requirement is an emission limit, the permit should
state the time frame for determining compliance.
Enforcement problems can arise if a permit system is poorly designed. In developing
regulations to set up a new operating permit system under the United States Clean Air Act, EPA
was alert to several issues that could have hampered enforcement. First, EPA included a
requirement that each source conduct periodic monitoring of its compliance with permit
requirements. EPA regarded this requirement as important to assure that industry maintained
compliance with air pollution control requirements.
Second, EPA required that major increases in pollution could be made only if the permit
was modified. EPA wanted to assure that the permit continued to reflect the source's pollution
levels and activities, so that it could serve as the primary basis for enforcement.
Third, EPA provided flexibility for sources to make certain changes in their operations to
meet changing market conditions without obtaining a permit revision. EPA did not, however,
allow sources to operate at variance with compliance provisions, such as monitoring,
recordkeeping, and reporting requirements.
4 SOLUTIONS
The United States EPA has taken or is taking several steps to ensure enforceability of
regulations and permits. First, for several years EPA has provided training to personnel involved
in writing regulations and permits. A major element of that training has been enforceability. We
use a checklist similar to the one presented in this paper. In this way, we hope to sensitize
personnel throughout the Agency, not just in enforcement, to the need for enforceable
regulations.
Second, EPA's Office of Enforcement has developed a regulation development course
designed specifically for enforcement attorneys, which should ultimately enhance their
effectiveness in advocating enforceability in the rulemaking process. Third, EPA's
"Enforcement in the 1990's" Project made several recommendations to enhance environmental
rulemaking. Most notably, the project workgroup proposed the use of "field testing" of
environmental regulations. Under this concept, before a regulation is adopted in final form, it
would be subject to a trial period to test industry's ability to understand and comply with the
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regulation and EPA inspectors' ability to determine compliance under the regulation. Field testing
can be done as part of the initial information gathering process by the regulatory agency, or it can
be part of the public comment process on a proposed regulation.
5 CONCLUSION
Regulations and permits will protect the environment only if industry complies with them.
Government can do the most to foster compliance by writing regulations and permits that are
enforceable. Clear, specific, and practical regulations will promote a high degree of voluntary
compliance and will make it easier for governments to respond effectively to violations of
environmental requirements.
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SWEDISH SYSTEM OF INTEGRATED PERMITTING - WHETHER IT ENHANCES
COMPLIANCE AND ENFORCEABILITY
LEIF SVERNDAL
Legal Adviser, Supervision Department, Swedish Environmental Protection Agency
The Swedish Environment Protection Act is applicable to environmentally hazardous
activity. This refers to activities that are operated on a property or a permanent plant or
installation.
In the Act the concept environmentally hazardous activity is defined as
- discharge of waste water from land, buildings or installations into a watercourse, lake or
other water area;
- use of land, buildings or installations in a manner that may otherwise lead to pollution of
land, of a watercourse, lake or other water area, or ground water;
- use of land, buildings or installations in a manner that may lead to disturbance to the
surrounding environment owing to air pollution, noise, vibration, light or other such means.
The Act is not applicable if the disturbance is wholly temporary.
Anyone who intends to perform some kind of activity that is included in the concept
environmentally hazardous activity must choose such location that can be acceptable considering
environment protection.
Anyone performing or intending to perform environmentally hazardous activity shall take
such protective action, tolerate such restriction of the activity and take such other precautionary
measures as may reasonably be demanded for preventing or remedying detriment.
These fundamental permissibility rules are to be considered by any performer even if there
is no permit required. When the activity require a permit, theese rules shall be considered by the
permit authority when examining an application.
About 7000 plants or installations in Sweden are subjekt to a permit requirement. The kind
of plants and installations that need a permit are to be found in the Annex to The Environment
Protection Ordinance.
There are two different levels of permit authorities in Sweden. The Licensing Board
considers permit applications concerning the plants and installations that are supposed to be the
more hazardous ones. Applications concerning smaller plants and less hazardous activities are to
be examined by The County Administrative Board. There are 24 County Administrative Boards in
Sweden.
A permit application shall contain
- particulars, drawings and and technical descriptions required for an assessment of the
nature and extent of the environmentally hazardous activity
- an environment impact assessment
- proposals for the protective action or other pecautionary measures required to prevent or
remedy detrimental effects of the activity and proposals as to how the activity should be
inspected
- an account of the consultations that have taken place with central and local authorities,
organisations and individuals who may have an interest in the matter
The system of integrated permitting means that all the different kind of operations and
activities that occur in a plant or an installation are examnined at one occasion and by only one
authority.
When examining a permit application, the permit authority takes into consideration all the
diffenrent kind of hazardous activities that may take place within a plant or an installation.
The permit authority is responsible for carrying out a complete investigation of the case in
question. The authority makes an assessment of all the disturbances and detrimental effects that
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may occur. Operation of an environmentally hazardous activity generally leads to pollution of air,
pollution of water, noise and waste.
The permit authority also consider what protective actions or other precautionary measures
required.
According to Swedish law, an environmentally hazardous activity is subject to
consideration in each specific case. The permit authority shall in a permit decision specify in
detail the environmentally hazardous activity to which the permit relates and the conditions apply
to.
In the Swedish Environmental Protection Act there are no rules dealing with general limit
values. In this respect Swedish environmental law differ from the rules of the EC.
AN environmentally hazardous activities are under the supervision of a supervisory
authority. Such an authority has several legal instruments that can be used in purpose of
exercising supervision. Among the legal possibilities, the authority has got a right of access to a
plant or an other installation and to carry out an investigation of the plant or the installation and
the area that belongs to it.
Furthermore, anyone performing environmentally hazardous activity is obliged to, on
request, submit to the supervisory authority the information required about the installation.
In general a supervisory authority may, because of particular circumstances, issue an
injunction concerning such precautionary measures as are necessary for compliance with the
Environment Protection Act or with directives issued pursuant to this Act. A supervisory authority
may also issue prohibition of an environmentally hazardous activity if the authority consider the
operation not permissible.
If a permit has been granted according to this Act and if the permit-holder disregards any
condition specified in the permit decision, the supervisory authority may enjoin him to rectify the
matter.
Furthermore, a sentence of fines or imprisonment could be imposed on any permit-holder
who deliberately or through negligence disregards a condition specified in a permit decison.
One of the advantages of an integrated permitting is that all the operations within an
environmentally hazardous activity are dealed with at one occasion. The permit authority has got
the possibility of making a comprehensive assessment concerning the hazardous activity and its
detrimental effects.
The system of integrated permitting also implies that there is only one authority dealing
with supervision over the plant or installation. When the supervisory authority exercises an
inspection the authority has got the opportunity to get a general picture of the hazardous activity.
On the other hand the system of integrated permitting does not give you a general picture
concerning the whole country or a part of the country. As told before the permit authority makes
assessments of environmental hazardous activities in each specific case. That means that the
authority doesn't take into consideration the total effect of a number of different hazardous ac-
tivities.
I believe that the system of integrated permitting implies more advantages than difficulties.
The system of integrated permitting in combination with an extended and developed organisation
for supervision lead to an opportunity to enhance compliance and enforceability. However, I
believe that the Swedish system of permitting and supervision should be completed with rules
about limited values in specific respects.
The conclusion is that the way to ensure compliance and enforceability a system of
integrated permitting combined with specific limited values is required.
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ENVIRONMENTAL PROTECTION AND ENVIRONMENTAL POLICY IN EAST GERMANY -
EXAMPLE: SAXONY
D. ANGST
State Secretary, Saxon Ministry for Environment and Physical Planning, Ostra-Allee 23, O-8010
Dresden
1 INTRODUCTION
When the State Government assumed office in autumn 1990, the environmental situation
in Saxony was marked by a multitude of environmental burdens of every description. Not only the
classical environmental burdens, which are to be found in other industrial countries, could be
noted which include, for example, massive water contamination. In the Dresden area, the Elb,
East Germany's largest river, is almost biologically dead. We should, however, not forget to
mention too the extreme air pollution. To date in Saxony alone, emissions of sulphur dioxide were
twice as high as in the old Lander counted together. Damage to forests in the Erzgebirge also
show, however, the massive atmospheric pollutants from the CSFR. In 1989 alone, imports of
sulphur dioxide into the former GDR amounted to 638,000 t. As Saxony borders directly on this
region, it is affected most by this.
In addition, there are burdens from sites suspected of contamination* above all too from
uranium mining by Wismut AG, at present difficult to estimate, the enormous burdens due to
countryside lying fellow as a result of the mining of lignite coal as well as the heritage from the
CIS troops.
Capital required to clean up all this environmental damage will amount to several billion
Deutschmarks over the next few years.
The GDR leadership was very well aware of this damage and preventive measures were
introduced to eliminate the damage but these proved totally inadequate.
In certain parts of the GDR there was already an environmental administration which was
working, however, only against a background of economical and health objects, that is to say
environmental protection was not practised for its own sake rather only to achieve economic aims
or meet hygienic requirements.
For example, for this purpose there were five water resources boards responsible for
keeping water clean or in other words taking care that contamination did not exceed a certain
level and thus create possible economic damage.
It was the task of the regional institutes of hygiene and government environmental
inspectors to see that air pollution was kept at a bearable level so that public health did not suffer
too much.
The massive air pollution was countered by a comprehensive legal code and a large
environmental administration but this very administration did not act in the execution of these laws
for economic reasons. In addition, there was no differentiation between specialized and
enforcement administration.
2 ESTABLISHING ENVIRONMENTAL ADMINISTRATION
Against this background, the newly formed Land government started work and thus too the
environmental administration of the Free State of Saxony which was to be newly established.
Environmental administration in the old Lander orientates towards other aspects. For
historic reasons, environmental administration was established here according to media criteria
i.e. the tasks of environmental authorities are modelled on individual environmental media. There
are water resources boards for prevention of water pollution, trade supervisory offices for keeping
air clean or nature preservation authorities depending on the importance of an environmental
medium or the respective pressure to solve problems.
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Towards which aspects is the structure of environmental administration in Saxony
orientated?
First, it was necessary to establish an efficient ministry as the supreme Land authority
whose task it was to cover all environmental media and to have a interdisciplinary character. And
as it was the intention from the beginning to introduce the ecological assessment in the Land
Planning Act as the basis for Land planning, it was more than obvious also to integrate Land
development in the ministry alongside the areas general administration, water, waste and soil,
protection against emissions and nature preservation (see Annex 1).
In the environmental administration in Saxony it is necessary to differentiate between
specialized and enforcement administration. This is exactly the point which contributed to a large
extent to the failure of GDR environmental policy: the lack of proper enforcement of existing laws.
in Saxony a three-tier administrative structure has been selected {see Annex 2). As
specialized authority, a Land environmental and geological authority was allocated to the Ministry
as supreme Land authority.
The chief task of this Land authority is to cover environmental burdens in Saxony and give
information to the public. A monitoring network is being operated for this purpose which covers
and assesses all environmental media.
The administrative counties and towns forming their own counties are responsible in
Saxony for enforcing the comprehensive environmental legislation at a lower level. If larger
projects are involved or district boundaries are crossed, the presidents of the regional
administration are responsible as regional authorities. It is, however, too much to expect the
county office district authorities and presidents of the regional administration to expertly assess
environmental effects.
Therefore, to support enforcement, five specialized environmental state agencies have
been established which undertake expert valuations, make recommendations and elaborate
proposals for decision-making by the enforcement authorities (see Annex 3). With the formation of
these specialized environmental state agencies, it was possible for the first time in the Federal
Republic of Germany to achieve concentration which is not confined to one media in one
authority. This means the need for agreement and coordination at the level of more than one
authority is avoided and accelerates ratification procedure.
Sectoral environmental administration prevailing in the old Lander which is organized
according to individual sectors has been dissolved in Saxony and only one integrating specialized
authority created. This model has met with approval throughout the Federal Republic and
meanwhile attempts have been made in several old Lander to adopt parts of it and also achieve
concentration.
3 CONCLUSION
In conclusion, I would just like to briefly consider the main substance of environmental
policy in Saxony in order to give you an idea of the complexity of the tasks. Environmental policy
in Saxony is guided by a sequence of priority which may be divided into three stages
- avert dangers to directly protect human beings and the environment
- prevent risks already before dangers arise so that risks for human beings and the
environment are kept as minimal as possible
- make provision for the future which gives impetus to new technical developments with
positive environmental impact and is supposed to demonstrate the new possibilities of
growth with positive environmental impact.
The key point by far in mid schemes in the field of environmental protection was therefore
water management. Water is the no. 1 provision for human beings and making available drinking
water meriting that qualification is not always simple. Of public funds amounting to 556.7 million
DM available in 1991, almost 440 million DM were applied to water/sewage. Emphasis here was
on projects to redevelop the Elb.
However, waste management measures too, which had to be completely restructured in
Saxony after the collapse of the SeRo (secondary resource) system and the appearance of the
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 269
flood of packaging after the Wende (reversal), were subsidized with approx. 60 million DM. The
"principles of waste management" of the Ministry of the Environment, approved by the Saxon
State Government in early summer, direct the way back to the economic cycle and the way out of
the cul-de-sac of one-way products.
Measures to keep air clean are to be financed, according to the German federal law on
protection against emissions, above all by the operators of large power plants which is why the
28 million DM spent was expended above all for community and social demonstration projects.
With the structure of environmental management we have selected and the key areas set
it should be possible by the end of this decade to make up the large deficits in certain areas and
reestablish in Saxony an environment worth living in; in other areas, such as sewage clarification,
it will probably take 20 to 30 years until the pace of the western Lander is matched.
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Saclisischcs Staalsministerium fiir
Umwelt und LandescntwickJung
Ostra-Allee 23, O8010 Dresden
Telefon: 005H8(52-0
Telefax: 0051-4862-209
Ouro Minister
Frau Hera
TeL 155
J_
Parlamentarischer
Staatssekretar
Dr. Reiniricd
Tel 240
I^rsonliclicr Referent
Dr. f lentn'e
Staateminister
Vaatz
TeL 255
If
Staatssefcretar
Angst
Tcl208
Slond: I<>.
-------
Orqanisationsjibersiclit: Uinwel tverwol tuner im Freistaat .._Snchsga { ab Oh Lobe r 1991)
Az. : I 1 - 0144.30
Stand: 21.00.91
Anrn. : • = Fachaufsicht
Staatsministerium fiir Umwelt
und Landeseiitwicklung
Regienmgsprh'sidien
Chemnitz
Dresden
Leipzig
Abt. 60: Umwelt und
Regionalentwicklung
Landratsamter/
Kreisfreie Stadte
Landesamt fur Umwelt
und Geologic
Radebcul
Freiberg
StaaLliche Umweltfachamter
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Leipzig
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-------
Staatliches Umweltfachamt
Koordinierungsstelfo
Abtoilung 1
Wassor
Relcrat 11
Planung, Bilanziorung,
Trinkwasservers.
Referat 12
Grundwassor
Roferat 13
Oborirdische
GowassorAVasserbou
FlufJmeJstereien "
Refernt 14
Gewasserschutz/
Abwassef
Amtsleiter
Abteilung 2
Abfalf/ AWasten/ Bodon
Reforat 21
Abfallwinschaft
Referat 22
Industrie
Referat 23
Altlasten
Referat 24
Bodenschutz
Abteilung 3
Immissionsschutz
Roferat 31
Chemie, Enorgio,
Bergbau
Refefat 32
Metall, Elektrotnchn.
Kfz-Woson
Referat 33
Papier, Druok,
Versorgung,
Dienstleislungen,
Referat 34
Larmschutz
Geschaftsslclle
Verwoltung
Abteilung 4
Naturschutz/
Landschaftspflege
Referat 41
Kreise Gfuppo A
Raferat 42
Kroisa Gfuppa B
Rofernt 43
Aden- Biotopschulz
Stand: 15.06.92
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Stella fur
Gobiatsgeologie "
Rcgionnlo Planungsstelle"
—
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(nur Bautzen, Leipzig)
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 273
A CLEAR APPROACH GIVES FULL COMPLIANCE
HUGO A.M.A. DE VRIES
Regional Inspector for the Environment in the Province North-Brabant, the Netherlands.
SUMMARY
The Inspectorate gives attention to the enforcement of environmental legislation. In this
paper extra attention is given to:
the complicance monitoring visits to the industries, to inform these industries, and to
stimulate the authorities to take action in order to comply with the regulations;
- the development in licensing and enforcement in the Netherlands, especially in the
Province North-Brabant.
The intensive contacts of the Inspectorate with the authorities and the industries vary from
diplomatic to straight from the shoulder. These different styles are found in this paper.
1 INTRODUCTION
f1
Many reports are published on Environmental Policy in the Netherlands. I refer for
example to the National Environmental Policy Plan and Plan Plus (ref. 1, 1989, 1990; references
at the end of this paper) and the Annual Reports of the Inspectorate for the Environment (ref. 2,
1990). The environmental policy is developing all over the world (note the United Nations Confe-
rence on Environment and Development in Rio de Janeiro, June 1992). Much attention was given
to policy planning and legislation, less attention for enforcement. However for "enforcement" we
now have this second International Conference.
The everlasting work of P. Winsemius is worth mentioning here (ref. 3, 1986). He has
shown two diagrams, which present a clear view of the environmental policy, namely the "Policy
Life Cycle" of environmental problems and the "Regulatory Chain". This chain consists of four
links: legislation & standard setting, licensing, implementation and enforcement. All the links are
indispensible and are influencing one another (ref. 4,1990, with the two diagrams, ref. 5, 1990).
For about 10 years enforcement had been one of the "missing links", but for the last few
years more attention has been given to the enforcement and also to the implementation. With
sufficient facilities, an honest and dedicated implementation of the legislation can and must be
demanded from the businesses (see for the used nouns ref. 6) and the citizens. Enforcement is
monitoring this implementation, is stressing the rules and - if necessary - is amending the rules.
Enforcement can cause adjustments to the Acts (ref. 7, 1991).
The Inspectorate (for the Environment) is, together with the Governments, the Public
Prosecutors, the Police and the businesses, working intensively on implementing and enforcing
(ref. 2,5; ref 8, 1991). Some experiences of the Regional Inspectorate (i.e. for North-Brabant) are
mentioned in this paper. The second chapter refers to "Licensing, Implementation and Enforce-
ment in a broad sense", the third refers to "Enforcement in a more narrow sense", the fourth one
refers to the incentives for the legislation and standard-setting, caused by enforcement practises
and experience.
The Inspectorate of the Ministry for the Environment is an organisation with a Chief
Inspectorate and nine Regional Inspectorates. A Regional Inspectorate is mainly involved in the
so called "second line" enforcement but also involved in the "first line" enforcement. "Second line"
enforcement refers to provincial and municipal government. The main tasks of the Inspectorate
are the testing and promoting of the quality of (the execution of) the environmental policy. The
Inspectorate makes products i.e. reports on major activity aimed at passing judgement on the
quality of the environmental policy and its execution (ref. 2).
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274 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2 LICENSING, IMPLEMENTATION AND ENFORCEMENT.
At this moment the Inspectorate is working together with the relevant local governments to
attain permits for all the concerning industries by 1994 and provincial governments by 1995. That
is to say that all the industries must be granted clear cut understandable permits which can be
checked. The present situation is summarised as follows. Industries under control of the Municiple
Government i.e. mostly less offending industries are listed under paragraph BUGM and FUN.
Bigger, more polluting, industries which are under the control of the Provincial Government
are listed under paragraph BUPM (i.e. Industries which come not only under the Nuisance Act,
but also under e.g. the Noise Nuisance Act, the Air Pollution Act, the Solid Waste Management
Act).
2.1 BUGM {Contribution Decree Implementation of Municipal Environmental Policy)
By the end of the 70s only 25% of the industries operated on an adequate permit (ref. 9,
1991). For that reason a program was introduced in 1982 to implement the Nuisance Act. There
were no funds for personnel at that time, in 1984 a second program was introduced with funds for
personnel: the so called MIP, a long-range intensification program for the enforcement of the
chemical waste legislation, that supported enforcement activities (ref. 5). In 1990 a third program
was started, the so called BUGM program with substantial funds for civil service personnel. The
directive is an "adequate" and 100% licensing level, attained 1-1-1994. In the same year the
Inspectorate set up a study to look at the quality of the municipal environmental policy (ref. 10,
1991). This study takes place in a yearly basis. The 1990 report on the BUGM program (a
product) has led to the following important conclusions:
the permits must be stricter i.e. the requirements must be stricter;
the observations were reasonably good;
the compliance monitoring is insufficient.
The reasons given for the report were:
insufficient number of experienced civil servants {municipal inspectors);
municipalities did not liaise adequately with one another (intermunicipal cooperation has
begun, but municipal cooperatives not in sight);
the municipalities show a lack of interest in enforcing the regulations.
2.1.1 Improvements in Licencing
On 1st. January 1990 in North-Brabant (ref. 11) the percentage of adequate permits had
(due to the exertion of the Regional Inspectorate) risen to 55% and the intensity of the monitoring
compliance had trebled to 13%. The manpower (technical personnel) had doubled. By the end of
1991 the number of adequate licences had risen to 70-75% (in the Netherlands as a whole 50-
60%) (ref 12. 1990-1991) (fig. 1). The allocation of annual permits in North-Brabant has grown
from about 2800 in 1985 to about 4000 in 1991. At this rate we will have a 90% total by 1995.
This is not good enough. A huge effort is still necessary to ensure that we achieve our goal of
100% by 1995. Two further studies of 250 permits of complex industries in 1990 and 1991 by the
Regional Inspectorate in North-Brabant (Inspectorate N.Br.) have been completed. The only
criticisms to be found were that the stipulations within the permits were not clearly defined especi-
ally regarding the measurement of emissions.
2.1.2 Compliance Monitoring
It is the goal of the Inspectorate that the number of industries under control will be 25% by
1995. This means 15.000 controls per year in North-Brabant alone. The figure was 8% in 1985,
15% in 1990 and 21% in 1991 (18% in the whole of the Netherlands). Therefore a goal of 25% in
1995 is in sight (fig. 1).
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
275
100%
Hi 'controls'
'''':'3 % non-adeq.parmits
80%r -75% '
60%
40%
20%
1979
1931
1983
1990
1991
1995
Figure 1. Percentages non-adequate permits and "controls" (compliance
monitoring) in North-BraJbant.
250m I n
200m I n —
budget 3!Za
NMP
BUQM
own contribution
150m! n
100m In
50m I n —
Om I n
1986
1990
1991
1992
1993
1994
Figure 2. Financing municipal environmental policy in the Netherlands,
in mln: million DEL (Dutch florins).
BIZA: Department of Internal Affairs, NMP and BUGM: see text.
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276 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
During 1990 and 1991 the Inspectorate N.Br. inspected 500 industries together with
municipal inspectors. The results were:
the technical execution was conform the Inspectorate N.Br.;
the findings, however, should have been briefed more rapidly to the industries;
from the 250 locations visited in 1991, 23% does not act in compliance with the
requirements, 65% shows small shortcomings and 12% meets the requirements.
2.1.3 Organization and Personnel
Owing to the BUGM-program the manpower attributed to licensing and enforcement has
been increasing considerably in the Netherlands. In the province of North-Brabant this amounted
to 210 in 1990 and to 325 person-years in 1991. The intermunicipal cooperation with respect to
environmental activities has also been intensified. Though each municipality remains responsible
for the implementation of the national environmental regulation and policy, this cooperation has
caused a development towards "Governmental Regions" according to the Common Municipal
Regulations Act (Wgr), but they are not governments yet. The officials of each municipality are
working together and the public service organization of the mostly central-town is rendering
assistance. This organization has the possibility to tackle complex industries and regional items.
Experts can be employed, which was not possible for the individual municipality. In time this
organization will have to work for the future regional government. In the Netherlands a few of
these organizations are operational as yet. In North-Brabant the expectation is that in each of the
7 regions (with about 20 municipalities and about 300.000 inhabitants) such a public service
organization will be in effect, since all municipalities agreed upon structural cooperation in their
application for BUGM-funding. A different type of advantage of having such efficiently working
regional environmental centers, is that the province administration will be delegate part of its
tasks to these well organized and well equipped organizations. Indeed, this promotes an integral
and regional uniform approach.
2.2 FUN (Financing municipal implementation of the national environmental plan)
The National Environmental Policy Plan contains about 80 points of action that require
activities from the municipalities. The subjects differ widely. They might have connection with:
industries, soil and groundwater protection, disposal of waste, land-use planning, housing, traffic
and transport, energy, communication, education and enforcement. In contrast to the BUGM
program, the adequate level of implementation of these points of action is less well defined in the
FUN program. Compliance with the BUGM program, however, is a prerequisite for FUN financing.
In North-Brabant 90% of all municipalities meet the FUN standards. The amounts involved in
BUGM and FUN together, will nation-wide gradually increase to about DFL. 100 million in the
year 1994 (fig. 2).
2.3 BUPM (Financing province implementation of the national environmental plan)
For provinces an analogous program to the BUGM ruling has been drafted. The only
difference with the municipal directive is that the "adequate" level has to be attained one year
later (1-1-1995). The reason is that provinces have to deal specifically with large and complex
industries, as well with municipal industries. Nation-wide valid criteria to test the environmental
soundness of industry activities, are in preparation. It can be concluded from partial tests by
several Regional Inspectorates that much has to be accomplished yet in this respect (ref. 13,
1991).
2.4 Industry
In 1991 a large number of industries were checked in a uniform way by all Regional
Inspectorates. The effectivity of the environmental policy and regulation with respect to the
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 277
important target group "Industry" has been investigated. This year the findings on the quality of
licencing, emissions and waste volumes will be reported.
The first result ("product") on the specific branche of LPG-stations has been published (ref.
14,1992). Later on this subject will be worked out in detail.
The Inspectorate N.Br. was the initiator of the idea to have industries checked thoroughly
with respect to their environmental behavior and side-effects. This has provided insight in the
environmental acting of the business community in the province. Only in the last two years, in
1990 about 1000 and in 1991 about 800 industries were visited. With the BUGM checks as a
basis, specific categories were added such as, extensive air-emissions, big noise sources,
ecotoxic substances (including radio-active ones), intensive farmings and chemical wastes. As a
consequence of 65% of the 1990 visits, more than 1000 actions had to be taken, the majority of
which in the form of advices to the authorities and the company managers. In the year 1991 50%
of the checks gave rise to more than 700 actions. Whenever action was taken in 1991, apart from
the relevant authorities the involved industries were always informed about our findings, aswell in
1990 the authorities were informed, but the companies not in all cases.
The specification of the requirements, as laid down in the permit, often turns out to be of
low quality, especially when small and medium-sized industries are involved. Primarily the items
concerning:
- the registration of the original situation with respect to soil conditions;
leakproof checking of industrial waste water sewage systems;
noise level checks; and
the regulation of air-emissions with the connected monitoring obligations-.
The latter are of importance to enforcement and thus need the attention in the near future.
In fact, right at the beginning, the very early phase of appliciation for a permit, emission dates and
the environmental activities have to be submitted unambigiously. Only in that case the competent
authority is able to draw up a licence tailored to the specific situation. In the Dutch legal system
the application for a permit constitutes an integral part of the permit itself.
To enable medium-sized and small industries to obtain more insight in their emissions
(self-regulation), so called "Corporate company environmental centers" are being set-up, initiated
by and connected to the Chambers of Commerce. The first one was established in Tilburg in
North-Brabant. Nowadays almost all regions of this province have such oriented advising centers.
If the proper insight is present with the industries they will be able to apply correctly for a permit.
Furthermore, they will be able to economize their energy and raw material use. This will decrease
their costs as well as their emissions. Very convincing examples thereupon can be presented.
Large emitters, on the other hand, are stimulated to publicly present a yearly overview of their
emissions., based on mass balances. This idea originated in the U.S.A. To further the develop-
ment of the so called "in-company environmental care systems", the industry has to show the
competent authority that the registered data are reliable and verifiable (environmental
accountacy?). This is of special interest since the new Environmental Management Act puts
prevalence to target-oriented requirements specified in the permit instead of means-oriented
ones.
As stated before, these visits taught us a lot about the implementation of environmental
regulation by the industries and the enforcement of it by the local authorities (ref. 11). Moreover,
insight has been gained on how the developments in reality envolve in the business community.
with respect to their environmental care and the attention for clean technologies (ref. 15).
However, I prefer to conclude this paragraph with two characteristic activities in North-Brabant.
2.4.1 Liquified Petroleum Gas (LPGVStations
During the years 1990 and 1991 nearly all petrol stations (including LPG) in the Nether-
lands were inspected. At 30% of the stations serious offences were discovered. This figure was
decreased to 11% by October 1992. Some 400 out of the total number in the whole country of
2460 are located in North-Brabant (before 1990 there were 560 stations, but 160 stations closed
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278 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
down during the last two years. This was due to various reasons, including environmental-ones).
At the first inspection 45 installations had to be closed down immediately as leakage of LPG was
discovered. Of all stations 30 were inspected for the second time in 1991. In 10 of these cases
official reports had to be made by the Inspectorate N.Br. and the local police.
2.4.2 Intensive Farming of a Variety of Livestock
In the Netherlands 90.000 pig-, chicken-, turkey- and cattlefarmers exist who have to obey
the rules of the Act of Registration on organic fertilizers (manure). In 1992 60.000 rabbit-, duck-,
fur-bearing animal-, sheep- and goatfarmers were added to the range of this Act. We also have
some ten thousand users of organic fertilizers (e.g. agricultural farmers). For about 70% of the
area of the Netherlands this Act is relevant. The responsibility for the enforcement of this Act
depends largely upon the farmers themselves. Enforcement of this Act (administrative enfor-
cement not possible) is mainly by criminal law (with satisfactory results). However the legislation
is becoming stricter (19951), so it is now becoming more important for the Inspectorate (ref. 14, in
preparation). Therefore, we started an investigation of 250 farms in North-Brabant in 1992, mainly
to get an idea about the production of the organic fertilizers and the way they get rid of the
manure (checking of the books and collecting information about their license from the Nuisance
Act); all participants have been helpful up till now. We expect to report on these investigations
next October.
3 ENFORCEMENT
Since 1989 enforcement is not only compliance monitoring and legal action. It usually
includes the informational visit preceding a compliance monitoring visit (also inspections in
general), negotiations and compliance promotion: a set of actions with all the instruments, used to
achieve compliance. As to this enforcement - definition (enforcement in a broad sense) this
subject has already been discussed in the former chapter.
In the more narrowly sensed enforcement area the three levels of government (national,
provincial, municipal) strengthen their joined cooperation. In the province the national represen-
tatives are working together with the provincial and municipal authorities, the water-boards, the
Public Prosecutor and the local police. The compliance monitoring will be integrated. The core of
the enforcement implementation is provided on the "regional" scale. In North-Brabant there are 7
regions (paragraph 2.1.3). Before ending this paragraph with the present situation, some
examples of enforment:
in 1990 close attention was paid to an industry of the waste branch. Because the permit-
ting authority had forgotten to give a definition of the different types of waste the permit
seemed not to be enforcable. Much time and effort was lost;
a hydrocarbons-emitting industry had a permit from 1985, with the stipulation that the
emission had to be cut down in half. Each year the progress in this reduction should be
reported on. During 1990 it was obvious that the industry would not be able to reach the
goal. Because of the interference of the Inspectorate the industry was forced by the local
authority for a periodic penalty payment. This procedure had to be stopped because of
juridical reasons. A good report was sent to the Public Prosecutor by the authority. He
asked for an official report. The Inspectorate had made a calculation of the economic
benefit of this firm omitting cleaning-technology. The Public Prosecutor is now at work on
the follow-up of this case. Meanwhile the local authority has made an even stricter permit;
a second calculation of the economic benefit in another situation did not have any effect
because the Prosecutor stopped the case. In this situation as well, a new permit has been
granted to the industry. In this permit the air-emission must be cut down step by step. On
condition that the requirements are enforceable in the future. The problem is dealt with
well;
to transport some transformers, containing toxic PCB (polychlorinated biphenyls) from one
firm to another (that can break up these machineries under good environmental conditions)
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 279
a periodic penalty payment, imposed by the Minister for the Environment, came into force.
The payment did not become operative, because the transformers were removed;
in a simular situation at another place in the province legal transport was possible without
intervention of the Minister.
N.B. The transformers were imported as aluminium-scrap!.
These examples make evident that sometimes the administrative, then the criminal taw is
usable (or both).
3.1 Public Prosecutors and the Police
To encourage the Public Prosecutions Department and the Police to take more interest in
the enforcement of the environmental Acts they nowadays received substantial funds from the
Department of the Environment. With these funds more personnel, specially trained in environ-
mental affairs, must be appointed.
In the past the cooperation between the police and the Inspectorate was ad hoc. Because
of the MIP {see paragraph 2.1} the cooperation became structural. In North-Brabant 3 police-
districts have been formed, linked up with the regions. The environmental enforcement of the
police is still growing. For technical assistance and insight into the Acts the police cooperates with
the Inspectorate. That will continue in the future because of many reasons, e.g. the Inspectorate
looks after the environmental regulations, the above mentioned funds, and the Inspectorate can
fulfill the function as a court-expert.
3.2. The Structuring of the Enforcement Organization
In addition to the development of the organization focused on licensing and compliance
monitoring in the region (see paragraph 2.1.3) a structure should also be given to the enforce-
ment cooperation and an enforcement team will be formed. In the cooperation all licensing and
enforcement authorities are participating, i.e. Province, Municipalities, Water-Boards, Departments
for the environment, Public Prosecutors and the Police. These cooperations are being formed
now and will make the first planning program for enforcement this year. In this program priority
will be given to the more complex categories of industries and to projects on waste and manure
for example. These projects are suggested by the provincial enforcement committee (PROM). In
this committee the same participants are representated. under the chairmanship of the provincial
governor. The National Coordinative Enforcement Committee (LCCH), which was founded at the
beginning of this year, is a board for cooperation between Departments, involved in environmental
affairs, Department of Justice, representatives of the provinces and the municipalities, under the
chairmanship of the Chief Inspector for the Environment. The regional program is the working
map for the regional enforcement team. This team is made up of civil servants and works intens-
ively together with the local police. It is being run by the regional enforcement coordinator, an
employee of the region. An information centre is located near this coordinator. The teams are
being built up now and the programs are being formed. It is expected that by the end of 1992 the
structure of the enforcement organization in North-Brabant will be as follows.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
AUTHORITY
ENFORCEMENT
ORGANIZATION
CHARACTER
National Government
Province
Region
Municipality
LCCH (National Coordination for
Enforcement)
PROM {Provincial Coordination
for Enforcement)
RCCH (Regional Coordination for
Enforcement)
Executing the enforcement by
the enforcement-team
Triangular consultation with the
Mayor, the Public Prosecutor and
the local police
national policy and annual
programming
policy, programming and
coordination of the actions
regional policy, programming
and coordination of the actions
4 INCENTIVES FOR THE LEGISLATION, STANDARD-SETTING AND THE POLICY
PLANNING
One point of Action (A103) of the National Environmental Policy Plan (NMP) means that
there should be a selective study made of the existing and forthcoming legislation standards and
requirements, regarding enforcibility. Regarding enforcibility of rules it is of interest to find the
combina-tion of exact legal instruments working alongside a practical law. Some examples are:
carrying capacity of the target group available and enforcement capacity of the government,
promoting mechanisms for self regulation, internal company environmental management,
environmental responsibilities of industries. One can say that the experiences of the Inspectorate
are given to the main section of the enforcement of the Chief Inspectorate. This body will report
on this by the end of 1992 in the 2nd Chamber. You can think of a better liaison between the
different laws, better definitions, enforcable rules in the licences, the insufficient administrative
and penal take-actions, the insufficient instruments of civil law. There is often insufficient evidence
to penalise the industries concerned but there is also a discrepancy in the administrative
regulations regarding enforcement of the law. The final consequence should be that the
legislation that is not enforcable c.q. executable must be withdrawn (ref. 16).
The recommandations of the above mentioned experiences of the Inspectorate N.Br. are:
all the industries must be granted clear-cut understandable licenses which can be checked
in 1994 and in 1995 for the big plants;
the municipalities will liaise adequately with one another to form municipal cooperatives. A
cooperative has a well-trained and experienced apparatus at its permission;
- parallel with that apparatus an enforcement-team is available in the municipal cooperative.
In this team all the enforcement personnel of all the authorities will act together;
"permitting" and "enforcement" functions should be put in separate divisions. In the
municipal cooperatives there are consequently to be two teams;
there must be one -coordinated- government for environmental licensing and enforcement;
for the industries and the citizens the rules must be clear in order to be able to get full
compliance;
a systematic enforcement method must be used and annual programs made. Social
support is a precondition. For that reason publicity is wanted. The public must be
implicated in enforcement, because "with honey you will catch more flees than with
vinegar".
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 281
In conclusion: Enforcement is the first and the last !ink because experience and practice
with enforcement gives incentives for the legislation & standard-setting, the licensing and the
implementation. If the requirements turn out to be unrealistic or impossible to enforce, then
compliance will be impossible. A clear approach as an effort to establish popular and business
relations for the benifit of the environment gives full compliance for that reason.
ACKNOWLEDGEMENTS
The author wishes to gratefully acknowledge the stimulus and discussion received from all the co-
workers of the Regional Inspectorate for the Environment of North-Brabant, in particular Mrs. M.
Kooijman, Mrs. J. van Dijk and Mr. J. Smits, and extends thanks to Mrs. H. Buyze, Mr. A. Hutten
Mansfeld for helping partly with the translation, Mrs. M. Nijweide-Boeije for correcting the text all
over, and to Mrs. C. van Rooij-van Onselen for preparing the manuscript.
REFERENCES
1. National Environmental Policy Plan (NMP).May 25, 1989, the Netherlands. In 1990 NMP-
plus.
2. Inspectorate for the Environment, 1990 Annual Report, Ministry of Housing, Physical
Planning and the Environment (VROM).
3. P. Winsemius, Gast in eigen huis (beschouwingen over milieu-management), Samson Tj.
Willink, Alphen aan de Rijn, 1986.
4. H.J.A. Schaap, Small business Compliance, the role of local Communities; Proceedings
Intern. Enforcement Workshop, May 8-10, 1990,Utrecht, the Netherlands. In this paper
also the diagrams of the "Policy Life Cycle" and "Regulatory Chain" are shown.
5. H.E.C. Lefevre, Enforcement of environmental regulations in the Netherlands, International
Environment Reporter. 26-9-1990.
6. Business, company, firm, factory and industry are often used synonymes. I use mostly the
word business in a common sense for all sorts of workshops, and industry/company in a
sense of a manufactory, a technical workshop, that makes or manipulates material pro-
ducts. The Inspectorate mainly pays attention to these industries. Facility is - in my opinion
- more an action. When you say that legal requirement must be met by individuals and
facilities that cause or may cause pollution then it is not important if it is indoors or
outdoors (including workshops).
7. I. Kleijs-Wijnnobel & M. Kooijman, Uitvoering en handhaving van milieuwet- en -
regelgeving, Openbaar Bestuur, 1, nr 5, Mei 1991.
8. Fourth Progress report on Environmental Law Enforcement, October 1991, Ministry of
VROM.
9. J. Smits en L. van Eijsden, Met gemeentelijk milieubeleid in historisch perspectief,
Openbaar Bestuur, 1, nr. 5, Mei 1991.
10. Landelijk handhavingsproject gemeentelijk milieubeleid 1990, Ministerie van VROM,
1991/52, Staatsuitgeverij/DOP, Leiden.
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282 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
11. North-Brabant is a province in southern Holland (the Netherlands), borders on Belgium in
the South. This province with 15% of the inhabitants, 20% of the municipalities and 15% of
the industries, is reasonably representative. The province has 7 regions (municipal
cooperatives) according to the Common Municipal Regulations Act (Wgr). The
municipalities enforce the Nuisance Act and the permits of nearly all of the 400.000
businesses in the country (in North-Brabant: 60.000). The provinces have the permitting
authority for the big plants and the municipal-businesses (in North-Brabant: 1700).
12. Jaarverslagen inspectie milieuhygiene Noord-Brabant 1990 en 1991.
13. J. Blenkers, De gebreken in de milieuvergunning, RIMH Noord-Brabant, 1991 (mei),
voordracht studiedag Actuele ontwikkelingen in de milieuvergunningverlening te Utrecht
(Euroforum).
14. Landelijk Handhavingsproject LPG-tankstations, Ministerie van VROM 1992/53
15. B. Schilleman en J. Vreugdenhil, Net milieu, gesprek met een hoogleraar milieukunde en
een regionale milieu-inspecteur, Interface, tijdschrift voor bedrijfskunde, 5e jaargang, nr. 4,
4-9-1989.
16. H.J.H. May, Handhaafbaarheidstoets milieuregelgeving - actiepunt A103, tussenrappor-
tage, eind 1992 naar 2e kamer; in preparation.
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INFORMATION CAMPAIGNS BENEFIT ENFORCEMENT OF ENVIRONMENTAL LAWS
JAM, VAN EKEREN and M. VAN DER VOET
Information and Public Relations Department, Dutch Ministry of Housing, Physical Planning and
Environment, P.O. Box 20951, 2500 EZ THE HAGUE (The Netherlands)
SUMMARY
The enforcement of environmental legislation in the Netherlands was stepped up in the
mid-1980s. Although most enforcement officials had no experience at the outset, a great deal was
suddenly expected of them. Central government has attempted to support them by various means,
including information campaigns.
The Ministry of Environment is
basically pursuing a three-track policy:
(1) enforcement officials are informed and
encouraged in such a way that they
are willing and able to take the task in
hand;
(2) administrators are encouraged to
accord enforcement priority in policy,
and
(3) companies are informed of the law so
that they have no excuse for not
complying with it.
Tracks (2) and (3) facilitate the work of
enforcement officials and expedite the effect
of enforcement. In a broad sense, the
provision of information therefore contributes
to the improvement of the quality of the
environment.
1
HISTORICAL FRAMEWORK
Figure 1. The mass media (television, radio and
the daily newspapers) are a powerful means of
communication. The government holds press
conferences or issues press releases on important
matters.
During the 1950s and 1960s the
population of the Netherlands expanded
rapidly. There was a corresponding growth in
economic activity and prosperity. The other
side of the coin only became obvious after a time, as waste mountains grew and the soil, air and
water became polluted. Environmental scandals which directly threatened public health sent
Shockwaves through society in the 1970s. It was agreed that something had to be done about the
situation, and the government accordingly came up with plans, agreements, levies and subsidies.
In the 1980s it tightened up existing environmental laws and regulations and drew up a range
of new regulations. It soon became clear that these measures were not enough. Laws were drawn
up on paper and published, but no one was sufficiently acquainted with the rules and regulations and
there was virtually no monitoring of compliance.
It was in 1985 that the first serious attempts were made at enforcing environmental law, and
this year also saw the launch of the first information campaign.
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2 ENVIRONMENTAL LAW INFORMATION CAMPAIGNS
The system of environmental law in the Netherlands is fairly complex - ask any lawyer. There
are 25 pieces of sectoral legislation and a host of regulations and decrees. The situation is expected
to improve somewhat in 1993 when the Environmental Management Act comes into force,
encompassing a number of the existing sectoral acts.
2.1 Obligatory openness in government
Nevertheless, the legislation itself and the means of informing the public about it are relatively
simple. Only the minister, a handful of civil service lawyers, a number of external advisory bodies and
parliament are involved in drawing up legislation. As soon as an act has entered into force, the
government is obliged to inform the public about it, under the terms of the Government Information
(Public Access) Act. A copy of the act is published in the Bulletin of Acts, Orders and Decrees, which
contains proclamations, acts of parliament, decrees and announcements of other government
measures. It will be clear that the Bulletin is no great work of literature, but it is available to everyone.
2.2 Putting the law into action
Large industrial companies generally have in-
Figure 2. The Nuisance Act is based on the
Factories Act of 1875 and is the Netherlands'
oldest act of parliament. Over the past few years,
various categories of companies have been
subjected to orders in council, which are published
in special booklets.
house lawyers who keep a close eye on the
contents of the Bulletin of Acts, Orders and
Decrees and work out the consequences of
government measures for the company.
However, the average printer or baker has
little time for this, and it is for this reason that
the government does more than just produce
publications containing copies of acts of
parliament. The ministry responsible issues
press releases and holds press conferences
on matters of importance. Of course, this
does not guarantee publicity, but the greater
the consequences for society, the more
interest journalists will show.
The government almost always ensures
that acts of parliament, which are couched in
complicated legal terms, are translated into
language which is understandable to
everyone. This may take the form of a leaflet
which is distributed amongst those affected.
Trade associations also play an important role
in informing the public. These umbrella
organisations, which are funded by the
individual branches of industry, provide all
kinds of services. They follow closely the
activities of the government and inform their
members of anything they need to know.
2.3 Forgotten target group
Legislation always has two target groups. The primary target group consists of the public,
companies and/or institutions which have to observe the law. Government information campaigns in
the Netherlands have traditionally focused on this group. There is, however, also a secondary group:
the competent authority which is responsible for implementing the legislation. This authority issues
environmental licences to companies and institutions and is obliged to ensure that the conditions
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285
attaching to these licences are observed.
It will be clear that this secondary target group needs to be equally well informed of
environmental laws, a fact of which the government was for a long time not sufficiently aware. While
companies were inundated with colour brochures full of information, the authorities charged with
enforcing the law were left completely empty-handed. It was only when enforcement was first taken
seriously that the provision of information to administrators, licensing authorities and enforcing
authorities improved - and it is in fact still improving.
3
MEETING THE NEED FOR INFORMATION
Let us look back to the Netherlands in 1985. Imagine yourself in the shoes of the enforcement
officials. Suddenly, central government wakes up and wants environmental legislation to be better
enforced. Where do you begin? Which environmental laws should be given priority? What is your
area of authority? What are your tasks and responsibilities? How can you ensure that your activities
do not overlap those of other authorities? What is expected of you? How should you approach the
public and companies? How are you going to tackle shortcomings and contraventions? How are you
going to report on progress, carry out evaluations? How do you know if you are making progress?
Where are you to find the answers to all these questions? How are you to get hold of the information
which you need to do your job well or, at any rate, adequately?
Now let us look at
uv wijiH't;. rite tnesl \wi BraiKintse varkeiu
oerenwereld gelooft in industriele verwerking mest
things from the point of view
of central government. How
is this huge enforcement
machinery to be set in
motion? And how can it be
kept moving? Of course the
necessary steps have now
been taken. Funds have
been released to pay for the
required personnel. An
organisational structure has
been set up in order to
enable enforcing authorities
to work in collaboration with
fcr« i^S^f^lUnm "'lUIIf
'I'itstoot ammoniak
kan snel verminderen'
fcadnuun,
t
each other. Courses have
been devised to train
prospective enforcement
officials in the environmental
and legal aspects of
enforcement and provide
them with the necessary
skills. Pilot projects have
been carried out under the
supervision of central go-
vernment to enable every-
one to become accustomed
to the work of enforcement.
A great deal of
thought has also gone into
the provision of information.
How can you make sure
.
•Deverzuringis |||
lerugtedringerf
Tf -i "«uŁjv u\ LLMBL1
Jvolenvergassing voor 'schone'
•szxK&f****-1 *m •...
stroom
Figure 3. Enforcement activities can attract the attention of the
national, and even international, press. Publicity can be used as a
means of prevention, since companies are generally very concerned
about their image and are reluctant to throw away their reputation.
Press reports of measures taken against companies found
contravening environmental laws also tend to prevent other
companies from committing the same misdemeanours. However, not
all administrative officials and public prosecutors are keen on
publicity - out of court settlements, for instance, are almost always
agreed behind closed doors, although there have been calls for
more publicity.
that relevant information
reaches those involved with enforcement? How do you meet the enormous demand for information?
More generally, how can the work of the enforcing authorities be supported by information campaigns?
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4 POSSIBILITIES AND LIMITATIONS
When enforcement was tightened up in 1985, a tot of thinking had to be done. Matters
addressed included, what do you want to achieve and what can you achieve with information
campaigns? Information campaigns are not a cure-all. In general it is assumed that they can have
a certain effect on the knowledge, attitude and behaviour of the members of a target group, informing
them, motivating them and probably to a certain extent spurring them into action.
In practice things tend to be viewed from the opposite angle, starting with behaviour. Say that
the behaviour of the enforcement officials leaves much to be desired. They are achieving too few
results, are perhaps carrying out too few surveys within companies and are not devising enough
concrete measures. Such a situation must of course be rectified, and this can only be done by
looking for the causes, which can be legion. It could be that the problem lies in insufficient manpower
- a capacity problem. It could be that there is a lack of facilities for taking samples. It will be clear that
in situations like this, little can be achieved by spreading information. The person responsible must
ensure that enough staff and facilities are available.
However, the root of the problem could lie in the fact that enforcement officials have
insufficient knowledge of environmental laws or that they are unwilling to enforce them. Gaps in
knowledge or a negative attitude are problems which can be remedied by an information campaign.
4.1 Objectives of information campaigns
Taking into account the possibilities and limitations, the objectives of information campaigns
targeted at enforcing authorities can be summarised as follows:
* to keep enforcing autho-
rities informed of every-
thing relevant to the
performance of their
duties (information cam-
paigns can increase
their knowledge);
* to increase their willing-
ness to carry out their
enforcement duties
(information campaigns
can be used to promote
a positive attitude).
4.2 Target group
Besides formulating
objectives, it is important to
any information campaign
that the target group be
analyzed. Who is actually
responsible for enforce-
ment? This type of analysis
is no easy task in the
Netherlands. One complica-
ting factor lies in the fact
that responsibility for the
implementation of environ-
mental policy does not rest
Figure 4. Since 1991 the Netherlands has also had a Zakboek
Handhaving Milieuwetgeving ('Environmental Law Enforcement
Manual'), which the environment minister Hans Alders is presenting
here to an enforcement official. The Manual contains basic
information on environmental laws, methods of enforcement and
security measures and contains a glossary, a summary of all
organisations involved in enforcement and their addresses, and a
number of annexes.
with one individual or body.
For example, the environment minister does not bear sole responsibility at government level.
Although he is responsible for overall environmental policy, the Minister of Transport, Public Works
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 287
and Water Management is responsible for the Pollution of Surface Waters Act, and the Pesticides
Act and Nature Conservancy Act fall within the remit of the Minister of Agriculture, Fisheries and
Nature Management.
There are also several levels of government in the Netherlands: the provinces (12), the
municipalities (650) and the water authorities (40). And this is only the administrative side, for
enforcement also involves the judiciary, including the public prosecutions department, the police, fire
service, customs authorities, Royal Military Constabulary, railway police and numerous other special
investigation agencies. Some 30,000 people are involved in enforcement in the Netherlands, and that
figure does not include those involved in civil proceedings.
4.3 Strategy and methods
After analyzing the target group and formulating his objectives, the information officer will
examine how he can achieve those objectives. This process results in a strategy, accompanied by
proposed methods.
In the case of enforcement it soon became apparent that simply informing and motivating
informers would not be enough. In order to perform their duties, these people are largely dependent
on other people: their superiors, the authority for which they work, policymakers in general, the
legislature which draws up environmental laws and regulations, courts which try environmental cases,
the companies they monitor, and even the general public and the value it places on enforcement of
these laws.
The strategy devised to expedite the enforcement of environmental legislation therefore covers
several tracks. Besides informing and motivating enforcement Officials (track 1), priority has been
given to:
* motivating administrators (track 2), and
informing companies (track 3).
One matter which has not been discussed here but which is nevertheless very important is
communications with the legislature and judiciary.
4.3.1 Administrators
Studies have shown that the attitude of the administration strongly affects the success of
enforcement. An administrator with a negative attitude will be unwilling to equip the enforcement
department of his organisation with the power it requires. He is also unlikely to impose many
administrative sanctions (recognizance, closure). In short, an enforcement official may work as hard
as he likes, but without the support of the administration, he will achieve little.
Information campaigns can be used to improve commitment on the part of administrators. The
environment minister (through the Environmental Protection Inspectorate) regularly reminds
administrators of their responsibility for the environment and sets an example with his own
enthusiasm for the subject. Information officers use publicity and special campaigns to carefully steer
public opinion. The role of the public must not be underestimated; in a democracy the public forms
the basis of society. If it feels that something is important, administrators and policymakers also
consider it important - after all, they work in the interest of the public.
4.3.2 Companies
When an enforcement official goes to visit a company, the staff should ideally be aware of all
laws, regulations and standards with which the company must comply. This makes the job of the
enforcement official much easier. In the past, enforcement officials have arriving at a company and
finding an environmentally unsound situation, tended to be unwilling or unable to do anything about
it, since such a company would offer the defence that it was unaware of breaking the law. The
enforcement officials would then do everything they could to provide the company with the necessary
information. When they came for a second time, they would be pleased with the slightest progress.
Luckily, this situation has changed, partly due to the fact that central government, in
collaboration with a number of trade associations, has provided industry with more information. A pilot
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project carried out in the framework of the Chemical Waste and Waste Oil (Regulations) Act showed
that the three-track strategy works. Each individual branch of industry was provided with information
on the Act, in a series of colourful booklets. Those responsible for the enforcement of the Act
benefitted greatly from this
Booklet
Circulation
Environmentally safe handling of general
chemical waste/National list of licence-holders 155.000
Environmentally safe handling of chemical waste:
- Electrotype companies 8.000
- Painters 10.000
- Dentists 10.000
- Printers 15.000
- Photochemical waste 17.000
- Garages 32.000
- Car sprayers 20.000
- Anti-rust treatments 14.000
- Inland shipping 15.000
- Chemical waste: obligatory notification 40.000
- Dry cleaners 5.000
project, taking the booklets
along with them when they
went to visit companies,
should they be needed.
There would be no mercy
for those who had not
complied with the law by the
second visit!
H* »f TIB HtUEU
BECINT BU HZILF
MIUEUVEIUG OMGAAN
MCT CMENUSCH AFVAl
tin ttnt mmu
BECINT BU KZEU
IKE LUST VAN
DfU CHEMtSCH AFVAL
Figure 5 and 6. The multi-year
intensification programme (1985-1991)
focused on the enforcement of the
Chemical Waste and Waste Oil
(Regulations) Act. To assist enforcement
officials the government has published a
series of booklets which set out how each
sector can bring its production process in
line with the Act. The effect of the
booklets was tested, and no reason was
found for altering the strategy.
4.3.3 Enforcement officials
What about the enforcement officials themselves? What has the government done for them
by way of information?
Firstly, there is the magazine HANDHAVING ('Enforcement'), which comes out once every
two months and of which we are justly proud. This magazine, which is 100% government-funded and
therefore free of charge, has been going for eight years and now has more than 12,500 subscribers.
In view of the fact that readers pass the magazine on to their colleagues, the total readership is
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
289
somewhere in the region of 30,000.
HANDHAVING aims to inform enforcement officials in the fietd and to motivate them by
providing background information on environmental policy, specific information on laws, regulations
and standards, suggestions for dealing with situations which are bad for the environment, information
on the operation of administrative, criminal law and civil law enforcement instruments, examples of
collaboration between enforcement authorities, relevant training courses and publications, readers'
letters and questions (complete with answers), and a host of practical examples.
For central government, the great benefit of the magazine is that it approaches all
enforcement officials, working in a large number of organisations, as one group. A survey of the
readership has shown that officials value the magazine highly. They regard the information it contains
as useful and reliable, and the presentation (writing and design) meets with resounding approval. This
is due to the fact that, while the government funds the magazine, it has never tried to stamp its mark
on it. From the outset, HANDHAVING has been a magazine for enforcement officials by enforcement
officials. The editorial board and permanent staff - a number of prominent environmental journalists
- are supported by a rotating advisory committee of ten enforcement officials from the field. This
guarantees feedback from the grassroots.
The magazine is not entirely free of flaws. It spends a long time in production (writing, design,
printing), since articles are drawn up with the greatest care. In deviation from standard journalistic
practice, they are always
checked and corrected by
those involved. However,
the magazine can never be
entirely up-to-date. It is also
disappointing that it is read
by very few administrators.
Perhaps it is targeted too
directly at the grassroots.
The fact is that the
magazine does not offer an
effective method of drawing
administrators' attention to
environmental laws.
sector no. of
readers
police
municipalities
administration &
judiciary
provinces and public
works department
customs & fire service
total/weighted average
2,298
3,338
1,219
,994
1,314
9,163
average
reading
time
(minutes)
82
80
80
71
67
77
no. of
times
report
number
consulted
4.4
2.5
3.3
3.6
3.6
3.4
7.6
7.5
7.4
7.3
7.2
7.4
Figure 7 and 8. Some figures from a
readership survey of the two-monthly
magazine HANDHAVING (April 1991).
The figures in the last three columns are
based on responses from a representa-
tive sample; 235 readers were selected
for in-depth interview. The most important
sectors were included in the survey.
There was a further sector comprising
readers from other organisations.
HANDHAVING
I
HANDHAVING is not the only publi-
cation which is aimed at enforcement officials.
Central government produces a number of
other publications containing information
which is important to those who enforce envi-
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ronmental laws. The Handhaving Milieuwetten ('Environmental Law Enforcement1) series contains
more than fifty information packs with the results of surveys, evaluations and reports. All kinds of
theoretical and practical information can be found in the Zakboek Handhaving Milieuwetgeving
{'Environmental Law Enforcement Manual'}. Enforcement officials can consult this book when they
want to know something about a particular environmental law, and there is also a chapter containing
the addresses of all organisations involved in enforcement. The Manual was drawn up under the
auspices of the environment ministry, which also funded it. However, it is published by a commercial
publisher, who also determines its price, and is responsible for any profit or loss. This type of
public-private partnership is becoming
increasingly common.
Enforcement officials are not only
""•^T"""1 inundated with written material. Meetings are
HaoHHATiEBuiiHL also held where Ideas and information can be
exchanged. Conferences were recently held in
the regions (between a number of municipali-
ties, water authorities, the province, police,
IMM_M.,..«i~.»iu.t~ public prosecutions department and Environ-
mental Protection Inspectorate). By getting
everyone together, it was hoped that regional
collaboration could be improved. The confe-
rences were subsidised by the government,
but it was up to the regions to decide on form
and content. Some of the conferences were
designed as a way for people to get to know
each other, while at others specific procedural
agreements were reached and annual pro-
grammes of enforcement activities in the
region were drawn up. Information meetings
are also held occasionally on specific themes.
A round of such meetings will be held when
the Environmental Management Act is intro-
duced in 1993.
Figure 9. Various volumes containing information
for those who enforce environmental laws have
appeared in the Handhaving Milieuwetten series.
These relate to different types of institution - a
useful guide for on-site visits - and there are also
guides to the enforcement of different laws and
regulations. The results of enforcement campaigns
and studies (such as those on the delay in the
administrative enforcement of environmental laws,
interaction between different authorities, and
collaboration between the administrative authorities
and the public prosecutions department) are also
published.
5 IDEAL BEHAVIOUR
For information officers, an adequate (idea!) situation will have been reached if all the following
objectives have been achieved:
The legislature should attempt to integrate sectoral environmental laws and take into account
the practicability and enforceabiiity of new laws. It should also communicate regularly with the
enforcing authorities,
The judiciary should handle environmental cases as fully-fledged criminal cases. Attention
should be drawn to the environment by means of information campaigns. The more the
seriousness of environmental crimes is realised, the stricter the penalties will be.
The administration should hold the environment in general and the enforcement of
environmental laws in particular in very high regard. Motivated administrators will be more
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291
likely to ensure that enforcement programmes are implemented and that sufficient
enforcement capacity is provided and be more prepared to cover the costs of enforcement.
Information campaigns can help to motivate administrators who, once convinced of the
importance of the environment, will not hesitate to penalise companies and institutions for their
shortcomings in this area. The policy of condonernent, whereby a blind eye is turned to
environmentally damaging situations, will then be a thing of the past.
Companies should be aware of the
environmental laws with which they
must comply, and will no longer be
able to plead ignorance. They should
be aware of the consequences of
noncompliance and have a healthy
respect for the enforcing authorities.
The trade associations must recognise
the need for compliance and communi
cate directly with the government.
Those ahead of the field should exert
pressure on those who lag behind.
The public should provide support and
thereby influence political priorities.
Environmental information campaigns
will increase their environmental
awareness, and environmental
problems should be at the top of their
list of priorities. They should value the
work of those who enforce environ-
EEN BETER MILIEU
BEGINT BIJ JEZELF
mental laws.
What of the enforcement officials
themselves? In an ideal situation such as that
described above their work would be plain
sailing for them, and they would be welcomed
and respected wherever they went. Their
efforts would quickly bear fruit and they would
be able to go home satisfied at the end of the
day. One of the essential preconditions for
such a situation is the effective use of
information campaigns.
Figure 10, In September 1990 a huge information
campaign was launched in ihe Netherlands with
the motto "A better environment begins with you".
The public's attention was drawn to environmental
problems using television and newspaper
advertisements and posters. Emphasis was placed
on the fact that everyone can do their bit for the
environment. The campaign seems to have
worked; environmental consciousness and
willingness to act are on the increase in the
Netherlands.
6 CONCLUSION
When in 1985 the Dutch government stepped up its enforcement activities, very little
information was available to enforcement officials. This situation soon changed, when the need to
inform and motivate them became apparent.
The information campaigns will continue, and even be intensified, until the 'ideal' situation has
been achieved. The government has decided that an adequate level of enforcement must be reached
by 1 January 1995. If this has been achieved by this date, the thrust of information campaigns can
be shifted to ensuring that the situation is maintained, and activities can be reduced somewhat.
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ALTERNATIVE ORGANIZATIONAL STRUCTURES FOR A COMPLIANCE AND
ENFORCEMENT PROGRAM
WILLIAM M. EICHBAUM
Vice President, International Environmental Quality, World Wildlife Fund, Washington, D.C. USA
SUMMARY
This paper is about issues associated with the problem of organizing government
institutions to carry out effective enforcement and compliance programs. Compliance is essentially
that condition when all legal requirements are met by a particular member of the regulated
community. Enforcement is the set of actions taken, primarily by government, to achieve
compliance. This paper is about organizing for enforcement. It is not about how to do
enforcement, or when to do enforcement, or the legal tools necessary to do enforcement. Also,
since government structures are widely variable from one country to another, the ideas in this
paper are not meant to be absolutes. Rather, they are meant to suggest broad answers to
several organizational questions as the problem of organizing for enforcement is considered
within the context of particular governance systems.
Finally, it must be remembered that enforcement is a strategic process designed to
advance the environmental objectives of society. It must be planned, resources allocated,
preliminary actions taken, and follow up sustained — often over long periods of time. Proper
organization for this endeavour is crucial to its long term success.
This paper provides a summary discussion of the primary objectives of an enforcement
program and the qualities necessary to assure that the program achieves those objectives. The
paper then identifies and briefly discusses the basic functions of an enforcement program and
sets forth several different approaches for organizing to accomplish those functions. The paper
discusses the success with which these approaches maximize achievement of the qualities and
objectives of an enforcement program and also discusses several external factors which can
influence these outcomes.
The observations and conclusions in this paper are largely based on the author's own
experiences. These include nearly twenty years of state and federal government work in
enforcement related activities, including the creation of several new environmental enforcement
organizations. Recently, this experience has included consulting with several foreign governments
and international organizations on enforcement matters.
1 OBJECTIVES AND QUALITIES OF AN ENFORCEMENT AND COMPLIANCE
PROGRAM
1.1 Objectives for Enforcement
There is great diversity in the subject matter of environmental regulatory programs and the
strategies they embody to assure compliance with substantive requirements. Thus, the subject
matter can range across land, water, air, public health, and natural resource protection. Similarly,
techniques for protection can include a range of activities extending from economic incentives or
disincentives, to permit conditions, to denial of the privilege to do business through revocation of
permits.
Whatever the subject matter or the enforcement strategy, a reality of environmental
governance is that there must be a base-line system for compliance and enforcement. This base-
line is established through the enactment of statutes which set norms of behavior and also
establish mechanisms designed to assure compliance with those norms. The mechanisms by
which the norms (standards) of environmental behavior are established can be complex and
subject to a confounding mixture of scientific opinion and public policy objectives. In contrast, the
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purposes of the compliance and enforcement components of environmental protection programs
are comparatively easy to define. There are essentially four objectives for a compliance and
enforcement program:
1. Deter and persuade — One of the most important purposes of an effective enforcement
and compliance program is to affect the behavior of the regulated community through the
imposition of sanctions. There are multiple dimensions to this objective. First, government
seeks to assure that the object of the enforcement action does not violate the law in the
future. Second, government seeks to assure that others either voluntarily correct violations
before they are discovered by government or achieve a high level of compliance, i.e., do
not violate the law. This deterrent function is vitally important simply because government
will never have enough resources to actually take enforcement actions against a very high
proportion of violators at any given moment in time; thus, voluntary compliance is crucial to
successful protection of the environment.
2. Correct non-compliant conditions — Importantly, legal processes can be employed to seek
administrative or judicial orders directing the cessation of environmental law violations
and/or the correction of related adverse impacts. In the United States legal system, the
use of equitable relief mechanisms is an effective device to assure specific performance to
protect the environment. In addition, these mechanisms can, at least, assure that the
actions of private parties which have a potential to damage the environment are restrained
unless in conformance with applicable law.
3. Punish violators — While closely related to the deterrent function, punishment for
violations of the law has its own independent purpose. Simply stated, those who violate
the law incur an obligation to society. A violation of environmental law is usually not some
abstract event but involves a direct or indirect reality or threat of harm to the environment
or public health. Punishment can have a variety of forms ranging from specific corrective
actions, to monetary penalties, to actually serving a prison sentence.1 In general an
enforcement and compliance program will reserve this objective for more serious
violations.
4. Create a norm of expected behavior — An important function of enforcement is that the
collected body of enforcement actions, taken over a period of time, define the level of
behavior which is expected of the regulated community and the consequences when that
level is not met. In fact, this norm of expected behavior is an elaborated statement of the
more general requirements that may be set forth in duly enacted laws. This system of
interpretation is not meant to be a mechanism for weakening statutory or regulatory
requirements, but rather for filling in the blank spaces which these abstract words often
leave. In addition, to the extent that the enforcement process actually produces written
interpretations of law and regulations, such as in a judicial decision, these have important
precedential value and therefore serve as important guides for behavior.
A well designed compliance and enforcement program can achieve each of the foregoing
objectives. This is particularly important since they normally reinforce and complement each
other. However, the evolution of strategy over time will undoubtedly suggest reasons to
emphasize one set of objectives over another given the particular status of the overall
environmental protection program. In summary, the bottom line expectation is that compliance
and enforcement activities are carried out in order to maximize the rate of voluntary compliance
by utilizing resources of an agency with maximum effectiveness.
1.2 Qualities Associated with a Successful Enforcement and Compliance Program
There are several qualities which ought to be maximized through organizational (and
other) decisions in order to help achieve the suggested objectives of an enforcement program.
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Each of these is quite subjective and the specific steps which might be taken to achieve a
particular quality might be quite different in one governance system as compared with another.
However, they do provide one useful check-list against which organizational decisions ought to be
measured.
1. Strategic — Because enforcement actions cannot be brought against every violator, there
must be a strategic design to the enforcement program. For example, program managers
must assess: which kinds of enforcement actions will maximize deterrence; what are the
most important threats to the environment which need correction; and which legal
remedies will be most effective. The strategic use of scarce resources is essential to
achieving the objectives of enforcement, especialiy that of deterrence and persuasion.
2. Efficient — The use of always scarce government resources must be efficient. Wasted
inspections, or laboratory tests, or endless conversations without results simply mean that
fewer effective enforcement actions are taken. Inefficient use of resources will tend to
lower the volume of successful enforcement actions and therefore lower the rate of
voluntary compliance.
3. Swift — Enforcement actions should be swift. In essence, the time between discovering a
violation and final imposition of the appropriate enforcement sanction must be made as
short as possible through the rapid and effective deployment of the various enforcement
elements. Long delays diffuse the deterrent impact of enforcement both in the mind of the
violator as well as in the minds of those who are similarly situated.
4. Visible — The hidden or invisible conduct of enforcement serves to defeat several of its
most important objectives, namely, deterrence and the creation of a norm of behavior. In
addition, wide visibility for enforcement actions is one of the most important ways in which
the public develops confidence that government agencies are responsibly and effectively
carrying out environmental protection duties. A vigorous enforcement program focused on
major vioiators, communicated through the media, and endorsed by important political
figures, strongly contributes to visibility.
5. Fair — The overall perception of an enforcement program must be that it is fair. Fairness
not only means that individual matters are handled within the norms of legal propriety, but,
even more importantly, that over time similar violations are handled in essentially the same
fashion. For example, penalties for comparable violations ought to be equivalent. Fairness
also means that there must be enough resources within the environmental agency so that
a reasonable number of actions can be taken within a given period of time. This
perception of fairness must be held by the regulated community in order to maximize the
deterrent and persuasive effect of an enforcement action; otherwise, the perception of
arbitrary enforcement does little to help mold norms of behavior.
Additionally, if an enforcement program which is strong is, at the same time,
thought to be arbitrary and capricious by the regulated community or the public, then it is
likely that the political support necessary to its continuance will evaporate. In fact, to the
degree that fair, but strong, enforcement creates the reality of a "level playing field" for the
entire regulated community, then that can be a source of support for the program.
Increasingly, certainty or predictability is an attribute of environmental regulation which is
highly valued by the regulated community.2
6. Balanced — It is axiomatic that an agency must have a sufficient level of resources before
it is able to carry out the full range of its mandated responsibilities. From an enforcement
perspective, it is important that these resources be balanced in their distribution throughout
the agency in order to form the full range of activities necessary to enforcement on a
mutually supportive basis. For example, it does little good to have a very large inspection
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force if available laboratory facilities cannot process samples in a fashion which produces
timely results for enforcement actions.3
Each of the foregoing qualities or attributes is somewhat subjective in nature. There are no
rigorous rules for assuring that a particular set of decisions will maximize achieving one or several
of them. However, organizational decisions can help an enforcement and compliance program
achieve these qualities. The last part of the following section discusses how this is so.
2 INSTITUTIONAL FUNCTIONS AND ORGANIZATIONAL STRUCTURES FOR AN
ENFORCEMENT AND COMPLIANCE PROGRAM
2.1 Institutional Functions
The following discussion sets forth a generalized set of functions which are the component
parts, or basis, of an effective compliance and enforcement program. It is possible that in some
circumstances not every one of these needs to be present; however, experience suggests that
the most effective programs will have the capacity to perform each function. It is clear that there
can be a great deal of variety in the specific design of a particular function in a given program
setting. Where these variations are important from an organizational perspective they are
discussed in this section. However, the purpose of the following discussion is not to proscribe that
design but rather to suggest the role the function plays within the overall context of enforcement
and compliance. From an organizational perspective, it is important that each of these functions is
mutually supportive and integrated one with another.
2.1.1 Clear and Applicable Standards of Conduct
The regulated entity must be aware of the standard of conduct to which it is expected to
adhere. In general this standard of conduct is set forth as a set of qualitative or quantitative
requirements applicable to the entity and designed to achieve a specific measure of
environmental or public health protection. There are a variety of mechanisms by which this can
be achieved. Individual facilities can be issued permits which contain discharge or emission
limitations designed for the particular facility. In the alternative, orders can be administratively
issued which impose specific obligations. Finally, standards of conduct can be imposed by statute
or implementing regulation without further administrative action by an agency. However, most
often it is the permit, or equivalent document, containing standards developed by the technical
staff of the environmental agency which will be the instrument which, when violated, sustains
subsequent enforcement actions.
To supplement this process of applying standards to particular entities, agency staff must
often develop the technical basis for the standards, provide appropriate interpretation, and in
some instances provide a range of technical or financial assistance. These functions are
essentially beyond the permit; however, they may often be necessary precursors to its issuance
or helpful to assure compliance, especially in the case of smaller organizations. As suggested
below, while it is desirable that there is effective communication between the developers of permit
requirements and the enforcement and compliance staff, it is not essential that these functions be
actually integrated within the agency.
2.1.2 Inspection and Monitoring
There are a variety of ways to determine that facilities are in compliance with the
requirements set forth in permits or otherwise. Generally speaking, these inspection and
monitoring functions fall into two broad categories. There are those which are carried out by the
facility itself and those which are carried out by government.
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• Facility managed inspection can be that which is done for internal management to assure
that compliance is being achieved. Facility managed inspection or monitoring can also occur
as a result of government mandates. The government can require inspection and reporting of
the results as a regular measure to assure that the facility is complying with legally binding
requirements as set forth in a permit. However, the government may also merely require the
reporting of information so that it is publicly available, such as is the case with the Toxics
Reduction Inventory in the United States. The requirement to report is the only legally binding
obligation.
• Government inspections of facilities are primarily for the purpose of assuring compliance.
The nature, frequency, and style of these inspections can be quite variable depending on a
very large number of factors. A complete discussion of the topic is beyond the scope of this
paper but several points need to be emphasized. First, these inspections should always be
carried out with the expectation that the results might lead to a formal enforcement action.
Therefore they should be carried out so that all applicable legal requirements for an inspection
are met. Second, in order to be efficient and to avoid missing violations, it is increasingly
important to assure that inspections are carried out on an integrated basis. That is, all
regulated discharges, whether to the land, air or water, are inspected at the same time, at
least to an extent which allows preliminary screening regarding compliance status.
In addition to facility inspection, the conduct of ambient environmental monitoring by
government or others, such as citizens or academic organizations, can occasionally provide
information which leads back to a source or facility which, through a violation of legal
requirements, is causing some form of environmental degradation.
An often overlooked component of effective monitoring is the requirement for adequate
laboratory facilities to analyze samples which are obtained during the inspection process. Long
delays, inaccurate results, and inability to analyze for important pollutants must be avoided.
2.1.3 Administrative Enforcement Authority
The hallmark of administrative enforcement action is that it can be initiated through the
administrative action of the environmental agency. That is, the issuance of an order or some
similar action is sufficient to trigger enforcement action without the intrusion of external formal
judicial or other authorities. While there are wide variations in the type of administrative
enforcement actions which might be available in various legal systems, there are several
characteristics which are desirable components of a given system. Administrative enforcement
should be able to take a variety of forms including: permit revocation or modification; issuance of
administrative orders requiring specific performance; or actions imposing penalties. Also, since
the substantive objective of administrative law enforcement is importantly connected to the policy
objectives of the environmental agency, the process, while it must be fair, should not be
independent of the agency.
2.1.4 Judicial Enforcement Authority
Based on my experience, often the final arbiter of compliance with the requirements of
environmental statutes will be the external judicial system, even if only in an oversight or review
role. However, in many national settings the more pro-active use of the judicial system appears to
be a relatively under-used component of the enforcement system which is ready for development.
The nature of judicial practice within a particular country's national legal system is so variable that
it would appear overly ambitious to offer particular principles in this paper. There are, however,
several judicial enforcement authorities which raise an important organizational issue. The
authorities relate to the following:
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• Violations of environmental requirements may be subject to prosecution under criminal law
provisions. Generally, these prosecutions must be before some branch of the formal judicial
system and are relatively independent of the environmental agency.
• The courts may often be available for relief in the nature of specific performance, especially
where the environmental agency seeks a quickly enforceable order directing the defendant to
either perform a specific action or to desist from some course of activity.
• There may be non-environmental provisions of a country's legal system which are not
applicable through the administrative powers of an environmental agency but can nonetheless
be a useful remedy for an environmental harm. They may only be applicable through, and
enforceable by, the judicial system upon appropriate application by the government.
In each of the above instances, successful use of the judicial authority will necessarily
depend upon careful coordination and utilization of resources.
2.1.5 Oversight
Oversight and evaluation allow the public and the regulated community to assure
themselves that there are existing mechanisms which contribute to the achievement of effective
and fair enforcement. Oversight can be provided through a variety of approaches such as
legislative hearings, judicial review of agency actions as indicated above, agency accountability to
the national executive, and the media.4 How these entities exercise their oversight functions can
also be an important aspect by which the enforcement program achieves visibility.
It is always necessary to assure that oversight does not become a barrier to effective
enforcement through inappropriate intrusion into agency operations or relations with the regulated
community.
2.2 Organizational Options
The purpose of the following discussion is to consider several options for organizing an
enforcement and compliance program and to evaluate those options from the perspective of the
issues which have been laid out in the foregoing discussion, that is, enforcement objectives and
qualities and enforcement functions. There are also some observations about options for
overcoming the weaknesses of particular organizational models.
2.2.1 Initial Considerations
However, before entering into a detailed consideration of organizational models, it is useful
to consider two larger organizational issues which are important to compliance and enforcement
programs. First is the question of the location of the environmental functions within the overall
government. Second is the question of the range of substantive environmental issues which ought
to be included within the agency, whatever organizational model for the agency is followed.
Again, these two issues will be considered only from the perspective of enforcement objectives,
qualities,and functions.
2.2.1.1 Location within the Executive
The essential locational question is addressed through two considerations: 1.) whether the
environmental agency is at the ministerial level; and 2.) whether it is the part of some larger
government organization, for example, a public works or public health agency.
There are a number of important factors which, when viewed from the perspective of
effective enforcement, suggest that the environmental agency ought to be given ministerial or
cabinet status. First, effective enforcement requires a high degree of political commitment to the
substance of environmental protection and the reality of enforcement. Ministerial rank can be an
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important symbol of that commitment. Second, again from a compliance perspective, other
agencies of government are often the direct or indirect agents of environmental harm. Cabinet
status allows the head of the environmental agency to confront those other agencies from a
position of equality. Third, enhancing the status of an agency within government can often be a
means of improving its political independence, and thus its will to carry out effective enforcement
by allowing greater opportunity to develop a strong public constituency. Finally, cabinet level
agencies may often have greater success both within the executive branch of government and vis
a vis the legislature in competing for the financial resources so essential to build effective
enforcement capacity. The United States is one of the few major countries where the
environmental agency does not have cabinet status. This issue became a significant part of the
environmental debate between the two candidates for President during the 1988 election.
Subsequently, legislation was introduced into the Congress to elevate the agency but it has not
yet been enacted into law. Enforcement issues, as discussed above, have not been among the
reasons for this failure. It is also interesting to note that one of the apparent purposes behind the
current evolution of environmental organization in the United Kingdom (combining water
regulatory, the integrated inspectorate, and local waste authorities) is to establish a strong
environmental protection agency at the cabinet level.
Many of the foregoing considerations also lead to the conclusion that it is rarely
advantageous from an environmental perspective for environmental functions of government to be
merged with relatively unrelated programs. In fact, such integration can often serve the cause of
enforcement badly because the nature of the work of the other agency (for example, public
health) is not primarily regulatory in nature. In some circumstances, such as for small
governments where consideration of economies of scale may toe a factor, it may be useful to
consider such combinations. For example, an environmental agency and a public health agency
could usefully be combined in order to share common laboratory facilities which it might not be
possible to otherwise duplicate. Of course, this same sharing activity could take place through
agreement between two independent agencies.
2.2.1.2 Range of substantive issues
Consideration of the breadth of substantive issues which ought to be placed within an
environmental protection agency is a complex matter, and its resolution will depend upon both the
prior experiences about government organization and the expectations of various interests in
society. As a theoretical proposition, two thoughts about the nature of environmental programs
are useful. The first has to do with the way programs operate. Many programs can be
characterized as largely management in nature; that is, the programmatic responsibility to
manage a resource which is in the public domain such as parkland or wildlife. Other programs
are largely regulatory in nature. That is, regulatory systems are developed for directing activity
which may affect adversely a public value, such as the discharge of pollutants to a water body. In
fact, these distinctions are often very imprecise because, for example, successful management
may require regulation and vice versa. However, when this question is viewed from the
enforcement perspective, it then becomes apparent that at least those environmental programs
which are primarily regulatory in nature, and therefore have a strong enforcement potential, ought
to be within the same agency. A second basis for distinguishing among programs is whether they
primarily relate to problems associated with pollution discharged to the environment or to the
protection of natural resources. Again, those programs which relate primarily to pollutants will
tend to have a stronger regulatory component and therefore ought to be organized together.5
From the enforcement perspective, unifying the organization of those regulatory programs relating
to pollutants also makes sense because it allows for a more integrated and therefore efficient use
of enforcement resources. For example, an inspection of a manufacturing facility which can
examine the full range of possible pollutants whether discharged to the air, water, or land will be
much more efficient and effective than would a series of fragmentary inspections focused on
particular media, water, or only a narrow class of pollutants, for example toxics.
This discussion suggests that the following general organizational decisions would
maximize the effectiveness of an environmental compliance and enforcement program.
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• The environmental agency should be located at the cabinet level of government;
• The environmental agency should stand alone and not be combined with relatively unrelated
programs; and
. • The environmental agency should at least include all of those programs which are primarily
regulatory in nature and which relate to the management of pollution.
2.2.2 The Three Organizational Options
Initial examination of the environmental organizations of a number of countries would
suggest that there is a bewildering range of possibilities. While the variety is, in fact, extensive,
there are two major options which can be thought of as functionally defining the extreme ends of
a spectrum across which can be arrayed most of the various existing organizations. At one end of
the spectrum is the environmental agency which contains essentially all of the management
functions6 as well as all of the enforcement functions (in the following discussion the term
"unitary agency" will be used to describe this option). At the other end of the spectrum is the
organizational structure where the enforcement and compliance functions, including compliance
inspection activities, are located in an organizational unit completely separate from the
environmental management agency, such as within the state law enforcement agency (this will be
referred to as the "divided agency"). A third option, located in the mid-range of the spectrum, is
that where essentially all environmental management functions, including enforcement related
inspections, together with the lawyers necessary to carry out administrative enforcement are
located within the environmental management agency while the judicial enforcement functions are
within the law enforcement agency (the "traditional option").7
2.2.2.1 The unitary agency
The unitary agency option offers a series of distinct advantages which are obviously
derived from the fact that all enforcement, compliance, and regulatory functions are located within
one agency and managed under the direction of a common authority. These functions include
permit writing, inspection, and the conduct of administrative and judicial law enforcement. A
notable example of this option is found in the Department of Environmental Resources of the
Commonwealth of Pennsylvania. This agency was created in 1970 and, pursuant to specific
statutory language, embodies all functions relating to enforcement and compliance activities. This
agency also exists at the cabinet level of government and has within its authorities the full range
of environmental pollution and resource management functions.
The advantages of the unitary agency include the following:
1. In principle, all of the resources of the agency (particularly those devoted to enforcement
and compliance) are directed at the same set of strategic objectives. Directing resources
according to a common set of objectives strengthens the likelihood that a coherent and
persuasive environmental strategy will be achieved.
2. A further advantage of deploying the management and enforcement resources pursuant to
a common strategy is that it gives a clearer external picture to both the regulated
community and the general public, thus advancing the sense of a "level playing field" and
public confidence.
3. Communication opportunities between different functions which must contribute to effective
enforcement are potentially maximized. For example, effective enforcement is often
dependent on permits which are written in a way which facilitates enforcement.
Understanding the nuances of this issue and assuring that appropriate permits are written
is maximized if the permit writers, field inspectors and enforcement staff are in the same
agency.
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4. A unitary agency will often have relatively significant resources available and can therefore
have greater flexibility in directing these resources at the most crucial problems, including
the needs of enforcement. Conversely, resources within the agency will not be diverted to
non environmental issues.
5. The results which are agreed to in negotiated settlements of enforcement actions are often
critical to defining the agency's strategic and tactical objectives. The unitary agency can
assure that negotiated settlements embody principles which are supportive of those
objectives and, even more importantly, that results are not reached which are in conflict.
6. In an effective enforcement program, the relationships between its various functions needs
to be carefully coordinated. Thus, agency administrative actions ought to be considered in
the light of the bearing which they will have on subsequent possible criminal enforcement
actions or lawsuits seeking specific performance. Designing and carrying out this
complicated set of relationships is most effective when the task is not divided between two
agencies.
7. A unitary agency can have a well developed capacity to bring additional resources, such
as technical or financial assistance, to help regulated entities with limited means achieve
compliance.
2.2.2.2 The divided agency model
s
In the divided agency model, the environmental management functions are located in one
agency, while activities focused especially on enforcement and compliance are carried out in
another agency. As a theoretical proposition this option could include all enforcement related
inspection activities in the law enforcement agency. This would be quite analogous to the
investigative functions associated with traditional criminal law being located in the law
enforcement agency, as is the case with the Federal Bureau of investigation in the U. S.
Department of Justice. In fact, it does not appear that this approach is followed with respect to
environmental enforcement. There are some examples, such as the Attorney General's office in
New York State, where there are investigative resources in the law enforcement agency but these
are supplemental to the extensive inspection resources located in the environmental agency.
Accordingly, typically the law enforcement agency will exercise administrative and judicial law
enforcement functions through a staff predominantly composed of lawyers and will depend on the
environmental management agency for most supporting services such as inspection or laboratory
work. However, as suggested, a specialized investigatory staff may be ideally associated with the
law enforcement agency. Advantages of this model are:
1. Environmental law enforcement will be likely to be associated with more of the attributes
and tools of routine law enforcement. Thus, for example, the use of criminal prosecutions
may tend to be more common where appropriate or specialized surveillance techniques
may be more readily available.
2. In many settings, the government's law enforcement functions, as carried out by a high
level prosecutorial office, are relatively insulated from political or other inappropriate
influence, and therefore the possibilities of an effective environmental enforcement
program may be maximized.
3. The state's law enforcement officials may have more ready access to the judicial system
and therefore to the extent that environmental enforcement is a priority for the law agency,
those cases may be more likely to advance rapidly within the judicial setting.
4. The law enforcement agency can serve as a coordinating mechanism for bringing to bear
in the enforcement process resources of government which might not be readily available
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to the environmental agency. For example, government information in the securities or tax
area might be used in coordination with environmental data to advance compliance
actions.
2.2.2.3 The traditional option
The traditional option locates all environmental management functions, together with the
staff (which may or may not include lawyers, depending upon the nature of the administrative law
system) necessary to carry out any relevant administrative enforcement activities within one
agency. This option essentially reserves to the law enforcement agency the authority to carry out
judicial enforcement. As with the divided agency option, the lawyers in the law enforcement
agency are generally dependent on the environmental agency staff for carrying out all of the
functions relating to determining standards of conduct, issuing permits, and inspection activities.
However, they will have the capacity to utilize the resources pecularily associated with law
enforcement activities. The relationship between the U. S. Environmental Protection Agency and
the Department of Justice is typical of this traditional approach.
This option carries with it most of the advantages of the unitary option except that in the
case of judicial enforcement the problems of coordination between two distinct agencies become
paramount. These problems can result in slow and somewhat inefficient use of the judicial system
and perhaps some divergence in strategy between the two agencies. One of the most notable
examples of this divergence occurred when the Attorney General of a state in the United States
sued the environmental agency in order to prevent it from taking certain enforcement actions.
2.2.3 Supplemental Organizational Strategies
Over the years there have been attempts to develop new organizational tools which
address the problem of effective enforcement by adding new elements to the approaches set
forth in the foregoing discussion. One of these is the so-called "Environmental Strike Force" and
the other is the recently developed idea of the integrated inspectorate.
The Environmental Strike Force
The environmental strike force is an idea which builds on the concept of law enforcement
strike forces which have been used in other regulatory areas, such as organized crime and drug
enforcement. The core of the idea is the establishment of a small, independent unit primarily
made up of lawyers clothed with substantial authority to carry out the full range of environmental
investigation and enforcement functions — a unit which can act quickly and with a high degree of
publicity. The creation of such units in states such as Pennsylvania and California during the early
nineteen-seventies reflected a growing social and political commitment to enforce environmental
statutes.
The creation of a strike force often results from the action of a senior level political figure,
and, as a result, a strike force rarely outlasts the tenure of that individual. It also usually is highly
dependent on the field and laboratory investigative resources of the traditional agencies as well
as the body of permitting or related actions which it has taken. It often can call upon extraordinary
law enforcement assets and can command special attention in the courts. Accordingly, the
environmental strike force can be a way of merging the positive attributes of the two extreme
theoretical options discussed above. In this regard, it can greatly enhance the visibility and reality
of effective environmental law enforcement. The strike force is, however, ultimately dependent on
the environmental agency for the routine work which provides the base for all enforcement and
compliance. Its somewhat elite character and transitory nature does not make it a long lasting
mechanism by which to achieve effective environmental law enforcement.
Integrated Inspectorates
Integrated environmental inspectorates are a more recent development which, it is argued,
can contribute to more effective enforcement. They have received the greatest attention in Europe
and variations on the theme are being developed in at least England, Sweden, and Holland. The
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most fundamental conceptualization of an integrated inspectorate is based on the idea of focusing
government resources on regulated facilities on a unified basis. Thus, when permits are written or
inspections are carried out, all potential avenues by which pollution can enter the larger
environment are considered and all pollutants of concern are evaluated at the same time. It is
suggested that in an ideal integrated inspectorate, the permitting process and the inspection
process of the agency would be carried out on a unified basis. That is, the same individuafs
responsible for permit writing would also be involved in the inspection process.8
In theory an integrated inspectorate can go far, through enhanced efficiency and
consistency, to advance the objectives and achieve the qualities of an effective enforcement
program. However, the actual experience with these organizational options is sufficiently new that
whether practice will produce the benefits remains to be seen. In any case, the utilization of
integrated inspectorates should not be allowed to go forward in a vacuum. The inspectorate ought
to be an integral part of the environmental agency so that it is closely tied to the strategic
planning and standard setting functions and does not begin to create a whole new set of strategic
objectives. There must be effective coordination with actual law enforcement staff if compliance
objectives are to be met. This may actually be achieved by making the enforcement staff such as
lawyers part of the integrated inspectorate teams.9 The noted organizational changes in the
United Kingdom seem to be responsive to this need for effective coordination.
2.2.4 Discussion
Experience suggests that, in considering which end of the spectrum ought to define the
best option, most often the advantages of the unitary agency 'approach outweigh those of the
divided agency or traditional agency approaches.10 The listed advantages of each are real;
however, those associated with the unitary agency go far to advance the earlier stated objectives
and qualities of an effective enforcement and compliance program. Especially important in this
regard are the enhanced ability to achieve a common strategy, maximize communication, and
efficiently deploy resources. These advantages are very hard, if not impossible, to achieve
routinely over time in the divided agency setting. On the other hand, many of the advantages of
the divided agency model, such as its high visibility or speedy access to the courts, can be
achieved either within the unitary agency through management decisions or by agreement and
cooperation with the law enforcement agency.
While the traditional agency approach goes far to overcome the divided agency problems,
it does not easily do so for judicial enforcement activities. And, as suggested in the discussion of
the judicial function, there is a growing need to use these authorities in environmental
enforcement and compiiance programs. Unfortunately, the effectiveness of so doing may be
compromised by the organizational limitations of the traditional agency approach. While the
traditional agency approach is a common compromise between the two extremes, other than as
dictated by tradition, there seems no substantial reason to be bound by this compromise and the
opportunities afforded by effective judicial enforcement argue that it be avoided, if possible.
While the strike force variant may be ephemeral, it can achieve a few important objectives
which are primarily to correct serious violations and project high visibility. On the other hand, the
integrated inspectorate is likely to become a much more substantial component of an effective
environmental agency. As such, it may well be a vehicle for also providing a greater level of
effectiveness to environmental enforcement and compliance.
For each of the approaches discussed — unitary, divided, and traditional — questions
remain about how close the routine activities of environmental management can, or should, be
associated with enforcement and compliance activities. The following are examples:
• Should field inspectors be authorized to take enforcement action, i.e., issue an order
directing corrective action, in the course of routine inspections?
• Should the writing of permits or the establishment of standards be constrained by
enforcement and compliance considerations?
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• Should environmental data which is reported by a facility be the basis of enforcement or
compliance actions where violations are disclosed?
An affirmative answer to the above questions, and to similar ones, will advance the
capacity of the environmental agency to achieve the qualities associated with an effective
enforcement program because they enhance effective use of scarce resources. While such
questions are not usually fundamental, in an organizational sense, they exemplify tactical
advantages for enforcement which can be achieved through even modest organizational
decisions. These kinds of decisions can also often be most easily implemented in the context of
the unitary agency. Where various responsibilities are divided among agencies the management
problems begin to grow significantly. However senior officials should be aware that simply
creating a unified agency does not fully address compliance and enforcement organizational
matters. It is equally important to assure, as the foregoing issues illustrate, that the agency is
effectively managed for the objectives set forth at the beginning of this paper.
2.2.5 Factors Relating to Decentralization
The size or regional diversity of a country and the general nature of how it is governed can
strongly influence how organization for effective enforcement might take place. A large country or
one with great regional variation may chose to organize its environmental agency with a strong
regional makeup. Similarly, in a country with a system of federal government, where states have
effective and often independent powers and authorities, there are important problems in
rationalizing federal authority with that of the states.11 Both of these situations create some
similar problems for effective enforcement and, to a varying degree, some opportunities for
improvement in enforcement.
Decentralization poses serious problems for consistency of enforcement. Where
decentralization exists because of size or regional considerations, the problems can, at least in
theory, be overcome through strong management. In addition, variations in enforcement which
are positively responsive to local conditions can enhance the overall effectiveness of the national
enforcement program. In addition to the general management question, there is also the issue of
how many of the enforcement functions ought to be de-centralized. Should they include initiation
and settlement of lawsuits, as well as the permitting and inspection functions. Answers may vary
in particular settings, but as decentralization includes more elements the larger is the
management problem. Resources must be devoted to it. In addition, to the extent that
responsibilities are divided among a number of agencies at the national level, then the
management problem is even further confounded.
In a federal system, the problem is not whether to decentralize (that is a functional given)
but how to coordinate in an effective way. This situation can offer an enormous advantage for the
overall conduct of enforcement. The addition of state resources to those of the national
government can substantially increase total resources devoted to enforcement. This can be
powerful when the resources are deployed pursuant to a common strategy. While detailed
consideration of managing this relationship is beyond the scope of this paper and, in any case,
can only be resolved in the experience of each country, there are some observations that are
useful. In essence the problem for the federal government becomes one of defining how it
exercises coordination and oversight of state authorities and actions in a way which advances the
objectives of effective enforcement. Performing this function consists of the establishment of
overarching policy and a defined set of authorities at the federal level. At the same time, the
federal authority should seek those opportunities which will maximize the effectiveness of the
state authority within those overarching policies. These actions can take the form of standard
setting, training, providing specialized resources, such as aerial surveillance, and financial
support. While often difficult, the federal structure can offer one of the most rewarding
opportunities for a national environmental agency to reach out to others to multiply the
effectiveness of enforcement and compliance programs.
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3 CONCLUSION
The fundamental objectives of environmental enforcement are deterrence, punishment,
and correction of violations. To achieve these objectives, enforcement activities need to be
characterized as efficient, visible, fair, and subject to oversight. Below is a chart which sets forth
one interpretation of these relationships. The reader may have others.
How government is organized can affect its ability to meet some of these qualities and
objectives. There is an optimal model of organization which integrates all of the enforcement
functions in one agency which operates them in recognition of possible roles for other participants
including local units of government, industry and the citizenry. An integration of all of these values
and functions in a particular national setting will yield one of the ideal models for organizing for
compliance and enforcement.
QUALITIES ^___ ORGANIZATIONAL MODELS
FOR TRADI- STRIKE INTEGRATED
ENFORCEMENT UNITARY TIONAL DIVIDED FORCE INSPECTORATE
Strategic + + - + o
Efficient + + - o +
Swift - + - + o
Visible o o + + o
Fair + ooo +
Balanced + + o - o
INSTITUTIONAL
FUNCTIONS OF
ENFORCEMENT
Standards + + o o
Inspection + +00 +
Administrative + +00 +
Judicial o o + + o
Oversight o o - -
+ = Positive; - = Negative; o = Neutral
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ENDNOTES
1. The mention of penalties raises the entire question of where penalties ought to
go and the related issues about how to fund agency program activities. Organizing
for enforcement is enhanced if penalties are able to be utilized directly by the
agency for increasing its resources. There are other sources of funds which can
also be used in this way such as permit fees and special purpose taxes.
2. The idea of fairness does not mean that every violator has to be the subject of
an enforcement action. This is often patently impractical. It does mean that those
subject to enforcement action ought, on the whole, to be treated in approximately
the same way.
3. Of course, if this is unavoidable then there are enforcement strategies which can
maximize the effectiveness of inspectors who are not backed up by analytical
results from laboratories.
4. While media oversight is the most informal mechanism because it usually
cannot be structured through government policy, it may be the most powerful
because of the direct linkage to the public.
5. It is important that these distinctions not be overstated. Obviously many
resource oriented programs have major regulatory components such as is the case
in protecting endangered species. However, the distinctions are useful at least as
organizing principles for purposes of decision making.
6. For purposes of this discussion, environmental management functions include
such tasks as scientific review or research, strategic planning, standards setting
and permit issuance.
7. Of course, in neither model will the actual conduct of the judicial function be
within the agency. The administrative review authority may or may not be located
in the unitary agency. It is rarely, if ever, located within the law enforcement
agency of the divided model but may be in the environmental management agency.
8. In some legal systems it is necessary to insulate criminal investigators from
those who carry out the routine tasks of the agency, and an integrated inspectorate
would have to be modified to take this into account.
9. A further example of the efficiency associated with the integrated inspectorate
relates to the use of monitoring data which is supplied by the regulated community.
In an integrated inspectorate this data might be supplied to the inspection staff and
is, on the one hand, easily verified against permit requirements and on the other
readily available to enforcement personnel where appropriate.
10. A recent report of the Administrative Conference of the U. S. reaches a similar
conclusion. The report is entitled "Report on the Federal Administrative Judiciary."
11. In some nations municipalities can play just as important a role as do states or
provinces.
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DEVELOPING AN EFFECTIVE COMPLIANCE MONITORING CAPABILITY
MARBETH E. BIERMAN-BEUKEMA TOE WATER
Regional Inspector, Regionaie Inspectie Zuid-Holland, Huis te Landelaan 492, 2280 HH Rijswijk
P.O. box 5312, the Netherlands
SUMMARY
This paper deals with the developing of an effective compliance monitoring capability in
the Netherlands.
1 BETWEEN DREAM AND ACTION
When we are talking about enforcement in the Netherlands, it's in the context of a small,
crowded and polluted country.Fifteen million people are living and working on 37.000 square
kilometers. Quite aside from a high population density we are dealing with a concentration of
activities which burden and pollute the environment tike extensive chemical industry and equally
extensive arable and livestock farming. The environmental impact of our polluting and polluted
delta makes itself felt in all parts of the world.
The Netherlands has a clear interest in comprehensive environmental measures at a
European, if not mondial level.
It's high level of environmental "stress", however, obliges it to aim at a high level of
protection, nationally, regionally and locally.
2 ENVIRONMENTAL POLICY
In May 1989 the government presented its Environmental Policy Plan "To choose or to
loose" setting out reduction targets of polluting emissions up to 80-90 per cent from existing
levels, for the mid-term. In order to achieve the ambitious objectives of this National
Environmental Policy Plan, regulations need to be strengthened and expanded and certainly
better implemented. This means an extra challenge in enforcing those regulations.ln connection
with the Plan substantial financial means were given by the Government to the municipalities, the
provinces, the Public Prosecutors and the Police.
In the NEPP the following instruments are formulated:
- legislation
- voluntary agreements formally laid down
- financial incentives
- public information, education, communication
- enforcement, including sanctions
Although the emphasis of this paper lies on enforcement it is important to stress the merits
of having such an overall policy plan. It clarifies the roles and expected actions of all parties
concerned and it facilitates the setting of priorities for enforcement.
3 ENFORCEMENT; WHO DOES WHAT?
In the Netherlands the implementation of environmental policy is highly decentralized. The
authority responsible for implementing a given statute or other legal requirement, including the
granting of permits, is entitled to enforce - administratively or civilly - that law. The levels of
government are as follows:
14 ministries
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9 regions for the Inspectorate for the Environment
12 provinces
27 water(quality)managementsboards
643 municipalities
59 intermunicipal regions
26 police districts
The municipalities are, roughly speaking, responsible for enforcing the regulations and
permits of nearly all of the 400.000 businesses and plants in the country.The 12 provinces are
entitled to enforce the permits for approximately 3000 bigger plants, including landfills. Only a
comparatively minor part of the enforcement activities is carried out by the national government
(Inspectorate for the Environment): the Pesticides Act, the Toxic Substances Act, the Nuclear
Energy Act and parts of the Hazardous Waste Act, Clean Air Act and Water Pollution ActThe
police, the Public Prosecutors, and a number of compliance monitoring officers of various authori-
ties are appointed by the Minister of Justice as special detectives for environmental crimes. They
are entitled to enforce all standards, regulations and permits, where criminal enforcement is
appropriate.
At this moment the environmental monitoring and enforcement is executed by a taskforce
of around 1500 fulltime equivalents:
Municipalities and intermunicipal groups: 800
Provinces: 250
Public Prosecutors: 40
Police (regional coordination): ±100
Environmental Inspectorate (first line): 50
Water-boards: 100, etc.
Allthough the numbers of municipal and provincial officers are expected to grow
substantially in the coming years, due to the financial boost mentioned before, the most
spectacular increase is planned for the police. Up to 2000 police-officers will get additional
training in the near future to enable the police to play an adequate role in environmental enforce-
ment.
3.1 Inspectorate for the Environment
Organized in a central office and 9 regional offices the 300 employees of the Inspectorate
for the Environment carry out the enforcement activities (first line), that are the responsibility of
the Ministry. They also monitor and promote the execution of licensing and enforcement activities
by other authorities (second line). The Ministry is advised by the Inspectorate on matters
concerning enforcability and feasibility of proposed laws and regulations.
3.2 Police
What is the role of the police in environmental enforcement? The administrative authorities
have first responsibility in compliance monitoring and administrative and civil enforcement.
Generally speaking the police has a supportive role when, and in sofar, the need for "stronger
measures" arises. Being on the streets around the clock, the police however do a competent job
of detecting environmental violations. They are supposed to look for such violations, whether they
concern national law, provincial law, or a municipal bylaw, or violations of the legal requirements
of an environmental permit
In addition to the efforts of the central government the police have developed a number of
initiatives in recent years at both regional and local levels, with the intention of giving greater
substance to their environmental duties. These include the establishment of environmental
departments in a number of municipal police forces and appointing district coordinators in the
National Police Force.
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3.3 Public Prosecutor
In most districts one or more Public Prosecutors are involved in the enforcement of
environmental legislation, at least for part of the time. In order to allow the high priority being
given to a cleaner environment to be manifested in an effective criminal policy, a new consultation
structure has been created within the Public Prosecutions Department to coordinate policy
relating to the enforcement of environmental legislation. In 1990 19 additional personnel positions
were created to reinforce the staff at the district offices.
Public prosecutors have the exclusive authority to bring cases to court where there is a criminal
code violation, which is the case for violations of most of the environmental regulations.
They participate in a tripartite system of consultation involving the police and the mayor,
that is set up in three-quarters of the municipalities.While maintaining their own responsibility in
relation to criminal code violations, public prosecutors appear willing to adjust their actions as far
as possible to the enforcement activities/priorities of the administrative authorities. Exchange of
information between these parties develops rapidly.
4 THE ROAD TO ADEQUATE COMPLIANCE MONITORING AND ENFORCEMENT
In the Netherlands enforcement became effective from the mid-1980s onwards; especially
after a number of scandals concerning the illegal dumping and discharging of hazardous waste.
Politically it became obvious that something had to be done about the existing backlog in the
enforcement area. A program was set up by the Ministry to" intensify the enforcement of
hazardous waste regulations. This was the Multi-Year Intensification Program for the Enforcement
of the Regulations on Hazardous Waste (1984-1990). The program intensified enforcement where
the Ministry itself was responsible, and stimulated and financially supported enforcement activities
to be carried out by other authorities.
Hazardous waste was given priority under the program because of its great risks to the
environment.
The Multi-Year program was also used to encourage the local police and the Public
Prosecutors to take a greater interest in the enforcement of environmental legislation. A
conscious decision was made not to set up a separate environmental police force in the
Netherlands:The government was convinced from the outset that the local police, being on patrol
24 hours a day and well-versed in criminal law, could play an extremely important role in the
enforcement of environmental legislation.
In retrospect the approach of the Multi-Year Program made sense in more then one way:
- Local authorities reacted positively to the financal incentives in the so-called "dime-
projects"
- Proposals to participate in and benefit from the program had to be specific on parties to be
monitored, and method of monitoring and enforcement in a step_by_step approach.
- It also improved the cooperation between all parties involved in these projects: Officials
from municipalities. Inspectorate, police etc. learned to work together in a way that was
systematic and lead to visible result.
- Due to this program, the setting up of a network has been partially achieved. The
involvement of the police and the Public Prosecutors Department increased considerably.
Particular attention has been paid to the training of officials responsible for enforcing
environmental regulations. Courses have been arranged not only for the staff of the Inspectorate
for the Environment, but also for local government officials.
Network-building and distribution of essential knowledge and information have benefited
from the magazine "Handhaving" (Enforcement), that appears monthly and has a circulation of
13.000 copies. It is attractive and appeals to enforcers because they can report themselves about
their field-experiences.
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Brochures have been drawn up in recent years for the benefit of companies which,
together with informative visits, have resulted in a improved compliance with the Chemical Waste
Act and other environmental legislation.
When the Multi-Year Intensification Program was about halfway to its term(1987) a need
was felt to extend the attention to enforcement in other sectors and a project was started that
contained an extended and multimedia approach. The main elements of this program (VHIP) are:
1. Improvement of enforcement through:
- structuring: Enforcement must become an ordinary, acknowledged, non-negotiable duty for
the authorities concerned.
- Intensification: The compliance monitoring must be increased; businesses must be visited
at a certain frequency and in a systematic way. Violations must be dealt with using
standard methods that lead to timely and appropriate action.
- Integration: Measures that are aimed at sources of pollution are as much as possible
drawn up as multimedia measures aimed at one industrial branche and applicable to all
individual firms of that branche. Multi-media approach seems preferable to an approach
targeting each environmental sector separately. It makes compliance monitoring more
efficient and effective.
2. Setting of priorities:
Everyday practice and the limited staff and means necessitate the setting of priorities for
enforcement in the Netherlands. Enforcement priority should be given to businesses and bran-
ches of Industrie where compliance monitoring and enforcement activities yield the greatest
environmental benefit. In this manner the major environmental violators will receive the
greatest attention.
Comprehensive documentation has also been produced for most relevant areas for the
benefit of provincial and municipal officials. To allow a uniform and, more important, represen-
tative method to be employed in sampling and analysis for instance, the Inspectorate for the
Environment has drawn up a guideline "Sampling and the Chemical Waste Act".
5 STRUCTURING THE ENFORCEMENT
Due to the substantial financial means given by the goverment to the
municipalities.provinces, police and Public Prosecutors to achieve the ambitious objectives of the
NEPP there is a growing capacity in the enforcement area. Connected with this growing capacity
the need for more cohesiveness also grows.
At the initiative of the Inspectorate for the Environment, a model was designed in 1990
together with representatives of all agencies and ministries, including the police and the Public
Prosecutors. The main elements of this model are as follows:
- annual planning of enforcement activities by all agencies, including the police, on the three
levels of government national, provincial and regional;
- use of municipal cooperatives as the core of the enforcement implementation; five to
fifteen municipalities working together on the regional level;
- financing the cost of enforcement on the basis of performance commitments (business-like
partnerships);
- establishment of structural deliberative bodies (groups concerned with enforcement
matters) at the three levels of government (civil servant platforms as well as platforms for
elected administrators).
- in dealing with common environmental offences, the Public Prosecutor should, as far as
possible and without prejudice to his own responsibility, work with the priorities set by the
administrative authorities;
The "elected administrators" platform on the national level is formed by the National
Coordinating Committee for Environmental Law Enforcement (LCCM). The main target of the
LCCM is monitoring and stimulating the implementation of the enforcement structure as described
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above, at alt three levels of government. The LCCM also seeks to detect bottlenecks and to
provide solutions (e.g. making an Enforcement Structure Manual).
The main targets of this enforcement structure, which should be implemented and working
before 1995, are:
- all participants marching together in planning and executing compliance monitoring and
enforcement;
- realization of an integrated multi-media approach;
- the administrative authorities on the one hand and the police and the Public Prosecutors
on the other marching together (not two separate circuits!)
* Note that in the Netherlands, in or rather after compliance monitoring by civil servants, in
most cases a decision can be made either to choose the administrative, the civil, or the criminal
option of enforcement. It is important to note that in the Netherlands most compliance monitoring
and enforcement activities do not result in lawsuits. People in the Netherlands, generally
speaking, are not particularly fond of suing people and/or businesses and most cases are solved
before they would have been taken to court.
Administrative tools for enforcement are: administrative penalty, (partial) closure,
administrative coercion and revoking of permit.
Civil tools, based on tort law, are: damage recovery claims
(soil-cleanup), cases against companies to prohibit or demand certain activities.
Criminal tools (mostly based on the Economic Offences Act): imprisonment, fine, payment
of financial equivalent to the economic advantage derived from illegal conduct, obligation of resto-
ration/preservation, closedown for a maximum of one year. Moreover certain provisional and
coercive measures can be taken immediately.
With respect to the place of Criminal Law in the enforcement of environmental law, the
following distinction is made in the Netherlands:
- serious ( sometimes organized) environmental crime;
frequently occuring, less serious environmental crime;
Obviously the police and Public Prosecutors are predominantly involved in cases of the
first kind. In cases of the second kind primary responsibility rests with the administrative
authorities. If administrative possibilities are non-existent, inadequate and/or exhausted ,
prosecution is to be considered; the penal provision functions as the "gorilla in the closet".
It should be mentioned the gorilla on occasion leaves the closet when administrative
authorities are lax or unwilling to insure compliance by adequate measures.
6 WHAT HAS BEEN DONE?
The approach used by the Ministry of Housing, Physical Planning and Environment and its
Inspectorate for the Environment to define and implement environmental policy can be caracteri-
zed as THINK BIG, ACT SMALL.
The Ministry produced its environmental policy plan (shortly followed by NEPP+) and
initiated the designing of an organizational model for the enforcement structure in the Nether-
lands. While" thinking big" it visualised a large and ambitious concept for the short and mid-term.
Given the fact that traditionally the implementation of environmental policy(like most other
policies) is highly decentralized, there is an obvious need for the government to:
- insure that both the central and local levels of government build the necessary capacity to
assess compliance;
- provide financial incentives;
- support with training, information and every facility needed;
- promote the sharing of succesfull experiences;
- introduce a practice of business-like relationships between the government and other
authorities;
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- to monitor the quantity and quality of progress made towards the goals set in the NEPP+
and enforcement model;
- to increase the efficiency in permitting and inspection work by developing standard
regulations for many standard types of small industries;
In short: there is a need for many different small actions and initiatives to pave the way
towards the envisioned targets.
7 1992: WHERE DO WE STAND?
As a result of a tremendous effort during the last decade to shape conditions for an
adequate compliance monitoring and enforcement capability a respectable forwards momentum
has been achieved;
- among the steadily growing ranks of officials involved a sense of "common
professionalism" prevails;
- two-way communication has been set up. resulting in positive feedback and open criticism;
- working in a systematic way with uniform enforcement methods is becoming the rule rather
then the exception; at least in theory;
- with the achievement of clear results there is a growing sense of enforcement being
exciting, which in itself is culture-building.
However, a lot still remains to be done. In many cases enforcement activities are
frustrated by one or more of the following causes:
- There is a backlog in licensing: About half of the plants/industries in the Netherlands is still
functioning without a permit, without an adequate permit or has not even applied for a
permit.
- Laws and regulations change constantly and some badly needed regulations are produced
at snails-pace on account of heavy lobbying and pressure: In one province alone about
7000 plant- and fruitgrowing greenhouse-industries function without the necessary permits.
Integrated regulations for this branche have been on the agenda for years, but final
decisions are put of time and again.
- In some cases permits can only be issued on the basis of an approved (by the Minister)
Provincial Plan; for instance a waste Disposal Plan. Individual plants can not be blaimed
for the fact that a Provincial Plan is lacking!
- About 30 environmental laws exist in the Netherlands, with a multitude of provincial and
municipal regulations based on these laws. This makes compliance monitoring and
especially using a multi-media approach extremely complicated at times: Six formal
procedures are prescribed for instance to monitor the handling of chemical waste;
"standard", "shipping", "small", "EEC", "residual oil" and "low-risk export". They are all
based on the Hazardous Waste Act and have their own forms and procedures.
A clear choice has been made to concentrate the programming and execution of
enforcement of environmental laws on the regional level. The appears to be a viable choice IF
and IN SOFAR the officials responsible for the regional enforcement task will have enough
mandate to steer clear of the daily hassle caused by conflicting economic interests.
8 EPILOGUE
From practically nothing a great deal has been achieved in one decade. Compliance
monitoring and enforcement are firmly on the political agenda as necessary instruments for
implementing the strategy. A start has been made on building up enforcement structures; more
actual enforcement is occuring and money and manpower have been made available. A
tremendous amount of work remains to be done to develop solid standards for compliance
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monitoring work and enforcement. What constitutes an adequate monitoring visit? How frequently
should certain categories of plants be visited? The guidelines in use leave a lot to be desired.
Practical tools should be developed to enable the setting of essential priorities: less "bean
counting" and greater benefit for the environment, A target has been set for the realisation of an
adequate level of performance for licensing, monitoring of compliance and enforcement, for
January 1995. A terrific effort is still to be made to meet this target. This is a challenge, but a
challenge that has to be met, since the environment cannot afford failing experiments.
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INTEGRATED LICENSING, IMPLEMENTING AND COMPLIANCE MONITORING
JACQUELINE ALOISI DE LARDEREL
Director Industry and Environment Programme Activity Centre United Nations Environment
Programme UNEP IE/PAC
1 INTRODUCTION
As stressed in the UNCED Agenda 21, the ability of a country to foilow sustainable
development paths is determined to a large extent by the capability of its people and its institutions
as well as by its ecological and geographical conditions. Agenda 21 thus calls for strengthening
national capabilities in order to enhance countries' abilities to devise sustainable development policies
and strategies.
Development of a legislative framework is certainly one element of the overall capacity
building. However, it is far from being enough, and constant follow-up of the implementation of those
regulatory measures must be ensured, leading eventually to their improvement.
In this presentation, I would like to focus on the promotion of sustainable industrial activities,
and raise 3 main points:
1. The need for an integrated approach.
2. The need for a permitting scheme based on environmental and risk assessment studies.
3. The need for compliance monitoring. <-
These comments are based on a report, "From Regulations to Industry Compliance : Building
Institutional Capabilities"*, based on examples from both developed and developing countries, which
the UNEP IE/PAC has just published.
2 THE NEED FOR AN INTEGRATED APPROACH
All too often environmental laws have been designed to tackle a single medium problem such
as water pollution, air pollution, solid waste. But this division of the environment into separate media
fails to recognize that pollutants move from one medium to another. A very successful air emissions
reduction programme, for example, can merely transfer the pollutants to another media. Successful
measures to treat water discharges could simply result in the creation of sludges that are
subsequently landfilled, causing soil contamination and underground water pollution, not too mention
health and safety hazards.
To enforce single medium laws, authorities naturally respond by developing a system of single
medium enforcement. Inevitably, this causes a situation where those enforcing air pollution laws are
at odds with those enforcing water pollution laws. Compliance with air pollution standards, for
example, might lead to reduced air emissions but increase effluents for water authorities to deal with.
A non-integrated approach also tends to encourage traditional, end-of-pipe controls (e.g. filters,
scrubbers, cooling towers, electrostatic precipitators) which not only tend to transfer pollutants from
one medium to another, but which, despite considerable investment costs, bring no economic
payback. An integrated approach, on the other hand, encourages at-source, cleaner production
measures, reducing the amount of wastes to be disposed of, minimizing energy and raw material
consumption, and preventing pollutants from appearing in any medium.
A single medium approach also means that different agencies are inspecting the same plant,
requiring facilities to fill our forms and provide much of the same information. This can cause
confusion for a company not to mention added paperwork, duplication of effort and disregard for
public authorities' administrative complexity and inconsistency.
To avoid these problems, the development of an integrated approach is indispensable. The
single medium focus needs to be shifted to a multi-media focus on all releases of pollution from their
source, namely industrial facilities. Such an integrated approach allows pollutants to be followed from
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one medium to another. One integrated permit can then be issued to each regulated facility, and
integrated inspections can be conducted by a single agency - or at least real and effective
coordination between media-specific agencies.
Even if the laws themselves are still developed on a single medium, the inspection (and the
inspectorate organization) should take into consideration the total environmental impact of a facility
and ensure that the overall damage to the environment is minimal. Corrective measures within the
single permitting system should ensure minimum integrated environmental damages as the plant
manager is stimulated to minimize the plant's overall releases.
3 PROPOSAL FOR A PERMITTING SCHEME, BASED ON ENVIRONMENTAL IMPACT AND
RISK ASSESSMENT STUDIES
Once environmental policies and standards have been defined, a permit should be seen as
a legal prerequisite to do business. Without it, or in violation of it, a facility should not be able to
operate legally. In many countries, potentially polluting facilities now must receive from government
an environmental permit (also called licence or authorization) before they are permitted to operate.
The purpose of the procedure is to ensure a minimum impact of the activity on the environment.
Depending on their culture, their historical background, their overall legal and administrative
context and their financial resources, different countries need to set up different types of permitting
(licensing) procedures. But although the approaches may be different, they must all address the
same questions: who should be required to have a permit; which government body should receive
the permit application and which should ultimately issue and monitor the permit; what is the process
by which a permit is decided upon; and what should be in a permit.
3.1 Permitting
Most laws contain licensing or permitting provisions for potentially polluting facilities. As all
human activities are, in fact, potentially polluting, from a restaurant or garage, to a metal finishing
plant or a chemical plant. Government has to set priorities using criteria to assess the importance
of threats to public health or the environment such as industry sector, or type of activity, processes
and chemicals used, size of the facility, location etc.
Depending upon the degree of potential threat to public health or the environment, two levels
of licensing procedures have often been established:
- large and medium-sized companies, or other facilities with potential high environmental impact
e.g. those handling hazardous or toxic materials.
- facilities with minor pollution discharges. These may not be required to obtain permits as their
pollution levels are considered low. But they are generally required to notify the authorities of
their activities.
The permitting authority may be at the national, regional or local level, reflecting the country's
structure of government. In some countries the licensing authority may be the national Ministry of
Environment, in others it may be at the provincial or municipal level, and in others it might be a
specialized board, outside of the government. At any level, however, the permitting authorities need
to be independent of political influences.
3.2 The permitting procedure
Based on the experiences from some countries, one can define essentially six steps in the
permitting procedure:
(1) planning - when industrial developers should contact the appropriate authorities to explore
the environmental implications of their project
(2) application submission
(3) examination of the application by the authorities and consultation with the public
(4) issuing the permit
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 317
(5) notification of the permit decision to the applicant
(6) publication of the permit
The permit should include the following elements:
- a description of the corporate environment policy;
- a general description of the plant a detailed map of the site and of the surroundings;
- a detailed description of the manufacturing process which will be used (in some cases, part
of this information will be considered as confidential);
- the environmental impact assessment (E!A) which is the core of the application. !t is on the
basis of the content of the study that the measures to control emissions will be defined, and
the emission levels set up.
- the risk assessment study;
- pollution prevention measures the company intends to take;
- the proposed emission levels
- hazardous waste treatment and disposal measures (including the name of the waste handling
firm if the waste is treated outside the company);
schedule of the implementation of the measures to be taken, in case of existing facilities;
- the emergency response plan in case of an eventual accident (per environmental sector in
detail);
- future developments as a logical consequence of the application.
- proposed monitoring procedures to be used by the company, parameters to be monitored,
frequency of analysis, methodology for monitoring a laboratory where the analyses have to
be performed, book record keeping;
- reporting procedures (how and to which particular authority);
the signature of the responsible officer;
Let me underline at this point one of the problems faced by developing countries authorities
in checking EIA and risk assessment studies. Efforts are currently being made to transfer
environmentally sound technologies. Schemes to provide decision-makers in developing countries
with the necessary information are being set up such as the OzonAction Information Clearinghouse
within the UNEP IE/PAC OzonAction programme and the International Cleaner Production
Information Clearinghouse (ICPIC). Both are aimed at providing examples of currently available
cleaner or CFC-free technologies, names of experts, list of organizations, and other sources of
information.
Also, guidelines are being developed such as the OECD "Guiding Principles for Chemical
Accident Prevention, Preparedness and Response", which are being reviewed in UNEP to broaden
their scope to the whole world. But this is not enough; polluting technologies are being transferred
between countries, resulting in polluting facilities. To avoid this, should not we promote a scheme for
the export of technologies adopted from the Prior Informed Consent principles in the field of export
of chemicals? This would help authorities in developing countries in issuing their permits and
controlling their plant operations.
4 MONITORING COMPLIANCE
Once a permit is granted, it is essential that the government checks to make sure emission
levels, hazardous waste disposal measures and other aspects of the permit are being complied with.
Systematic inspection of industrial facilities is essential to ensure that the pollution limits stipulated
in the permits are being complied with. If they are not, the government must then have the will and
ability to take timely and appropriate steps best suited to its country (e.g. education, persuasion,
fines, possibly jail) to see that its laws are enforced.
Verifying compliance involves systematic inspections to ensure that permit requirements are
being met and that measures prescribed by authorities are being implemented. Integrated
inspections, or at least coordinated inter-agency inspections, help to ensure that pollutants are not
simply transferred between air, water and land. Inspections offer authorities an educational
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318 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
opportunity to help companies develop integrated environmental management systems. The first
inspection is usually unannounced to determine the willingness of the plant to comply. Once a plant
has established good standing, advance notice of inspections might then be given to facilitate
information gathering (in some countries, however, all inspections are unannounced, although
companies in good standing may be inspected less frequently). Some degree of organizational
independence from the government body issuing the permits is necessary to ensure unbiased and
effective monitoring of compliance.
Overall tasks performed by an inspectorate differ from country to country but may include all
or some of the following: advising companies on permit requirements, in some cases issuing the
permit (although not by the same department which does the inspections), making inspections,
follow-up to ensure that post-inspection requirements are met, keeping records, providing regulatory
and technical information, involving the public in monitoring the performance of local facilities,
promoting sound environmental management, taking and/or developing systematic enforcement
actions when necessary.
5 CONCLUSIONS
At the Earth Summit, there was a consensus that environment should be seen as a production
factor, not as a burden to the economy. As Dr Tolba, the Executive Director often underlines,
development will not last unless it is built on firm ecological foundations. "Cleaner Production" is the
key cornerstone in reconciling economy and ecology. "Cleaner Production" is the continuous
application of an integrated preventative environmental strategy to processes and products so as to
reduce the risks to humans and the environment. This approach brings financial gains resulting from
the savings on raw materials and energy which end-of-pipe treatments do not.
Certainly, proper integrated control of industrial facilities is one of the tools to promote cleaner
production through the use of better environmental management practices and cleaner techniques.
This is why we at UNEP believe that these efforts should be extended to all parts of the world,
including developing countries. I congratulate US/EPA, the Commission of the European
Communities and the Dutch Ministry of Housing, Physical Planning and Environment in organizing
this conference for East and Central European countries and for enabling a few representatives from
developing countries to also participate.
We hope that we can look forward to their support to UNEP in cooperating with developing
countries to strengthen their institutional abilities to meet the needs of sustainable industrial
development.
"From Regulations to Industry Compliance", Technical Report Series N°11 (1992). Available
from UNEPIE/PAC, Tour Mirabeau, 39-43 quai Andre Citroen, 75739 Paris Cedex 15, France.
Fax (33-1) 40 58 88 74.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 319
COMPLIANCE MONITORING IN NORWAY
GRO R0DLAND
Head of Department, State Pollution Control Authority, Norway, SFT.
INTRODUCTION
This paper covers how the work of monitoring industry's compliance with environmental
legislation is organized in Norway. Development in, methods used and results gained by,
compliance monitoring are described.
1 THE STRUCTURE OF INSPECTION SERVICES - CENTRALIZED AND LOCAL
ACTIVITIES
The monitoring of compliance with rules and regulations is carried out by the body that is
given the authority to do so in the respective laws and regulations. The authority that grants the
permit also exercises supervision and control to ensure that any conditions imposed in the permit
are complied with.
In Norway this means that compliance monitoring in industry is centralized to one
authority, SFT, which is also responsible for all reassessment/review of industry's self-monitoring
activities.
The local county pollution control authorities are responsible for compliance monitoring in
aquaculture, agriculture, sewage treatment, municipal land fills and so on.
The local municipalities are responsible for health and for land use.
In SFT the responsibility for environmental enforcement in industry is divided between two
departments. The Department of Industry issues discharge permits to various industrial
enterprises or companies. The Control Department is responsible for determining the industry's
compliance with the terms of the permits. In 1992 a total of 22 persons are occupied with
monitoring the industries compliance.
2 SFT'S PROGRAMME FOR MONITORING COMPLIANCE
In Norway 1500 enterprises have been granted discharge permits. The permits are usually
multimedia, and cover water, air, noise, industrial waste and hazardous waste. This means that it
is possible for the inspectors to monitor compliance on a multimedia basis during one and the
same visit to the enterprise.
It is not adequate nor necessary to inspect all the 1500 enterprises at the same frequency
or with equal thoroughness. In order to get the best possible effect from our limited inspection
capacity, enterprises that have been granted permits are divided into four control classes.
The classification is based on the potential emissions from the enterprise and their toxicity.
The environmental sensitivity (air and water quality) of the surroundings are also taken into
account.
The most polluting enterprises are placed in class 1, which includes 50-60 enterprises/
plants (e.g. chemical industry, pulp and paper industry, aluminium industry, ferro alloy industry,
large foundries, off-shore oi! installations). Small enterprises producing only a limited amount of
pollution are placed in class 4 (e.g. small dairies, slaughterhouses and small asphalt plants).
SFT monitors compliance by means of:
* reports submitted by the enterprises
* inspections
* environmental auditing
* source testing
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
A schedule for compliance monitoring for the enterprises depending on control class has been
worked out. This is outlined schematically in Table 1.
Table 1 Schedule for compliance monitoring in facilities with discharge permit
Class No. of facilities
1 50
2 100
3 350
4 1000
Reports to SFT
once or twice
a year
once or twice
a year
once a year
Inspections
frequency
(minimum)
annually
once every 2nd
year
once every 2nd
- 3rd year
depending of
type of
discharge and
complaints
Audit frequency
source testing
(minimum)
once every 3 years
once every 6 years
depending of type of
discharge
TOTAL
1500
3 COMPLIANCE MONITORING
3.1 Self-monitoring
In the case of large enterprises (classes 1 and 2) the permit includes a requirement to
establish and maintain a well defined self-monitoring programme. Smaller enterprises (classes 3
and 4) are usually required to have a less comprehensive self-monitoring programme.
A self-monitoring programme will usually contain :
* a source testing programme
* record keeping
* written procedures for important activities that can effect the discharges
* routines for submitting reports to the authorities
All major enterprises also have to submit a report on emissions to SFT, usually once or
twice a year. This provides information on emissions from the enterprise (seen in relation to the
requirements and emission limits) and on waste. This self-monitoring is indeed the backbone of
the programme to monitor compliance and the reports are used to help to set priorities for the
inspection programme.
During 1992 SFT will examine and revise the self-reporting system. The reports submitted
by enterprises are to be standardized in order to simplify processing and use.
In case of violation the report is to include a description of the corrective action taken to
avoid recurrence.
From 1. January 1992, ail enterprises have to meet the requirements in a new regulation
concerning internal control.
This regulation places an increased emphasis on the responsibility of the enterprise/
company management for controlling pollution.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 321
3.2 Inspections
Inspections are unannounced and last for 3-8 hours in the field.
The total workload per inspection is 3 - 5 days.
The objectives of an inspection are :
* To check whether the enterprise is in compliance or not
* To collect evidence in the case of non-compliance, to ensure the necessary
enforcement action.
* To ensure high quality of the self-reported data
* To demonstrate that the authorities take compliance seriously
Inspections may focus on one or more of the following :
* Does the enterprise have a valid discharge permit ?
* Has the required pollution monitoring or control equipment been installed ?
* Is the equipment being operated correctly ?
* Are records of self-reported data properly prepared and maintained ?
* Is the enterprise conducting the required sampling and analysis properly ?
* Does the enterprise management plans and practice support the required
compliance activities ?
* Are there any signs of willful violation of regulations and/or tampering with data ?
A written report is always sent to the enterprise following an inspection. The inspector
presents findings from the inspection supported by, monitor readings, copies of files, photographs
and other material of importance for enforcing the regulation. Any collected samples are sent to
an approved laboratory for analysis.
The Control Department carries out 300-400 inspections annually.
3.3 Environmental auditing and source testing
Until 1988 compliance was monitored only through the reports submitted by the enter-
prises and through inspections.
It was then decided that a more thorough inspection was needed for enterprises in control
classes 1 and 2. The first year these inspections had the form of emission source testing only,
but already in 1989 SFT started to include an element of auditing.
The extent of environmental auditing has since increased gradually. In 1992 all the thorough
inspections contain elements of auditing.
Source testing is still used to a large extent, but mainly to verify findings in connection
1 with the audit.
Through inspections and reports submitted by the enterprises we have learned that the
continuous discharges and the most elementary problems in pollution control are reduced. But
violations often occur in connection with accidents, irregular production, or poor maintenance.
By performing audits SFT does not only monitor whether the facility is in compliance, we
also often find the reason for non-compliance. Often non-compliance is caused by inadequate
management and the lack of control systems.
Auditing also gives us a possibility to underline the managements responsibility towards
better housekeeping. A follow up of the audit from authorities is quite often a demand for better
preventive actions and systems.
The main parts of an audit cover:
* interviews with personnel at all levels of the enterprise (from management to operators on
the production floor)
* reviewing files and documents
* verifying that procedures are followed, e.g. by source testing, reviewing records and
watching operations.
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322 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
These inspections are usually carried out by 2 or 3 inspectors who stay in the field/at the
enterprise for 4-5 days. The total time involved in an audit varies from 3 to 7 weeks.
In 1991, 39 audits were carried out by SFT, The number will be increased to 50 in 1992.
4 FUNDING
SFT's control activities are financed by fees (imposed since 1986), based on the principle
that the pollutor must pay. In 1992 the fees were as follows :
Table 2 Fees
Control class
1
2
3
4
Per inspection
US Dollar
2,200
1,600
1,200
500
Per source test/
environmental audit 1)
US Dollar
23,700/15.000
15.000/ 9,000
5,000
5 RESULTS
In one third of the unannounced inspections compliance is found. For the remaining two
thirds, more or less severe violations are found. Approximately 10% of the inspected enterprises
have what we consider serious violations. These percentages have been relatively constant
throughout the years, but the cause for violation have changed.
The development in types of violations from 1987 till 1991 is given in the following table.
Table 3 Violations revealed during unannounced inspections (in %)
Violation
Exceeding production limits
Acute Pollution
Defective or insufficient technical
equipment
Insufficient maintenance
Insufficient self-monitoring
Exceeding discharge limits
Insufficient/illegal handling of waste
or chemicals
1987
11
1
22
5
22
22
13
1988
6
4
13
10
21
26
11
1989
6
2
13
7
21
21
18
1990
3
4
9
7
27
20
19
1991
9
7
17
11
29
22
24
From 1987 till 1991 we inspected mainly enterprises in control classes 1, 2 and 3, and an
improvement with regard to technical equipment was found. There are also fewer cases of
violation of production limits.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
323
The increase in number of violations concerning the handling of waste and chemicals are
probably due to intensified control in this field. Increased attention and a demand for better quality
from the authorities explains the development with regard to self-monitoring.
During 1991 we carried out an inspection campaign for enterprises in control class 4. The
inspected enterprises had seldom or never been inspected before. The results are suggestive.
The causes for violation are mainly the same as for enterprises in the higher control classes
several years ago.
This campaign is the reason for the increase in violations uncovered due to exceeding
production limits and insufficient/defective technical equipment found in the reports from 1991.
The results from the campaign clearly demonstrated : Inspection is necessary in order to
gain compliance.
The results from the audits carried out in 1991 are given in table 4.
Table 4 Violations and observations revealed during audits in 1991
Cause
violations
Number of
enterprises with
observations
Insufficient control/
management system
Insufficient system for
self-monitoring
Exceeding discharge limit
Insufficient reports to SFT
Insufficient/illegal handling
of waste/chemicals
Insufficient prevention
against accidents
Defect or lack of technical
equipment
Total number of audits: 39
26
21
15
13
8
7
4
35
21
3
4
8
13
3
Findings from an audit are reported either as violations or as observations. Findings which
can not be considered as non-compliance, but where SFT finds it necessary to point out a possi-
bility for improvement are defined as observations.
The pattern of violations are to a great extent the same for audits as for the unannounced
inspections.
The audits, however, give us a better possibility to reveal non-compliance and possibility/
need for improvement in the control/management system.
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324 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 325
US EXPERIENCE AND DIFFERENCES BETWEEN CIVIL AND CRIMINAL INVESTIGATIONS
AND USE OF CENTRAL ELITE FORCE TO SUPPLEMENT LOCAL INSPECTORS
WILLS, CARROLL G.1 and G!PE, DONALD C.2
1Deputy Director, National Enforcement Investigations Center, Office of Enforcement, United
States Environmental Protection Agency, Building 53, Denver Federal Center, Denver, Colorado
80225 (United States of America)
2Chief, Technical and Training Support Branch, National Enforcement Investigations Center,
Office of Enforcement, United States Environmental Protection Agency, Building 53, Denver
Federal Center, Denver, Colorado 80225 (United States of America)
SUMMARY
The United States' environmental enforcement program relies on well trained technical
field inspectors at the Federal, State, and local levels. Field inspectors perform a variety of
compliance inspections and investigations1' to identify civil and criminal violations of the
environmental laws and to support resulting litigation. At the Federal level, the decentralized
inspection force is supplemented with a central elite inspector corps located at the National
Enforcement Investigations Center in Denver, Colorado. This paper briefly summarizes the U.S.
experience in environmental inspections, discusses the unique features of providing technical
support to civil vs. criminal investigations and the role of a central elite corps to supplement
Regional inspectors and identifies inspector training activities within the U.S. Environmental
Protection Agency.
1 INTRODUCTION
The Environmental Protection Agency (EPA) was established in December 1970 and
consists of ten Regional Offices located throughout the United States. Each Regional Office has
a broad range of responsibilities in carrying out Congressional mandates for environmental
protection by the vigorous enforcement of Federal environmental laws and regulations. These
Regional Offices are supported by an EPA headquarters infrastructure consisting of program
offices which provide policy guidance. Figure 1 shows the EPA organizational structure including
the relationship between EPA headquarters and the ten Regional Offices.
Since its beginning, EPA's enforcement authorities have increased steadily, both through
strong enforcement provisions in newer environmental legislation and amendments that provide
greater enforcement powers under the older laws. EPA and the States, under programs
delegated or approved by EPA, carry out comprehensive programs to promote high levels of
compliance by conducting compliance monitoring activities (including inspections) to detect
violations. Firm, but fair, enforcement action may be taken against violators to correct violations
and create a strong enforcement presence.
Personnel conducting compliance inspections and field investigations play an essential and
key role in the success of the national enforcement programs. The vast majority of compliance
inspections and field investigations are conducted by a well trained and decentralized field
inspector cadre from either the ten EPA Regional Offices or from State and local organizations.
Most inspections are conducted at the State level (1).
' The terms "inspections" and "investigations" are comparable except that investigations involve
broader issues than inspections and typically require more in-depth evaluations of facility and
operating procedures.
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ADMINISTRATOR
DEPUTY
ADMINISTRATOR
ASSISTANT ADMINISTRATORS
Air and
Radiation
Research &
Development
Policy Planning
& Evaluation
Water
External
Affairs
Pesticides
& Toxic
Substances
Solid Waste
& Emergency
Response
Administration
& Resources
Management
Enforcement
National Enforcement
InvestigationsCenter
REGIONAL OFFICES
Region I
Boston
RegionVI
Dallas
Region II
New York
Region VII
Kansas City
Region III
Philadelphia
RegionVIII
Denver
Region IV
Atlanta
Region IX
San Francisco
Region V
Chicago
Region X
Seattle
Tl
CO*
i
m
(Q
0)
o
I
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 327
The decentralized field inspector capability is supplemented by a central elite inspector
corps organizationally situated in the EPA Office of Enforcement and physically located at the
National Enforcement Investigations Center (NEIC) in Denver, Colorado. The organization of the
Office of Enforcement is shown in Figure 2. The NEIC supports the Agency by conducting
special investigations for both the civil and criminal programs.
2 COMPLIANCE ACTIVITIES
2.1 Field Inspection Program
The field inspection program within the environmental program is conducted by
environmental inspectors who are located throughout the governmental environmental community
at the Federal, State, and local level. Within the Environmental Protection Agency, there are
approximately 1850 personnel performing compliance inspections. Of these, about one sixth are
new and about five sixths are experienced (2); however, even the experienced Federal inspectors
have relatively limited experience with an average of only about two years on the job. In contrast,
NEIC technical inspectors average approximately 15 years experience.
Inspectors have a variety of backgrounds. The majority of EPA inspectors are scientists or
engineers {1){3}. State inspectors have been observed to have approximately the same
backgrounds as the EPA inspectors.
There are extensive demands on the environmental inspectors' time with a minimum
number of mandatory inspections required each year as well as,the need to inspect targeted
facilities. Approximately 250,000 inspections are conducted annually. The States conduct
approximately 85 percent of all inspections, EPA conducts about six percent, and contractors
conduct the remainder (1)(4). In addition to conducting the inspections, the inspector must also
develop information and devote the time necessary to support any subsequent enforcement
action.
Inspections and subsequent case preparation frequently require a team approach.
Analytical support from either a government or contract laboratory is often needed. Each EPA
Region2", most States, and NEIC have laboratories which support the field work. In addition,
many Regions and States rely on contract laboratories to handle analytical work loads in excess
of government laboratory capacity. Legal staff, information specialists, financial analysts, etc., are
also necessary to support the field inspector during all phases of the inspection. The support
team will provide legal guidance and information on processes, compliance status, products,
ability to pay, etc.
The States shouldered a significant share of the nation's environmental enforcement
. workload; in FY 1991, over 10,000 civil judicial and administrative actions were taken by States.
At the Federal level, in FY 1991 there were over 1600 civil judicial and administrative cases
reflecting action under twelve environmental programs (5).
Only a relatively small number of Federal inspectors, estimated at 25 percent, perform 80
percent of the inspections; the rest of the inspector's time is taken up by various program
activities (1). Furthermore, the vast majority of EPA inspectors specialize in only one program
area (e.g., air, water, hazardous waste) and are not cross-trained in multiple programs. The
demands on the Regional inspector's time frequently prevent the inspector from spending the
time necessary to learn and conduct the more thorough complex multi-media investigations. As
the trend continues towards multi-media investigation and the holistic approach it offers, however,
the demand will increase for more inspectors with multiple program training and experience. As
of late 1990, nearly all of NEIC inspectors, but only approximately 15 percent of the Regional
inspectors, had training with a multi-media perspective (6). Information on the status of multi-
media inspectors at the State level is not readily available.
Region 9 laboratory is currently under construction.
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Compliance Analysis
& Program Operations
(CAPO)
National
Enforcement
Investigations
Center (NEIC)
Denver, CO
Office of Enforcement (OE)
Office
of Civil
Enforcement
(OCE)
Office of
Criminal
Enforcement
(OCE)
Office of
Federal
Activities
(OFA)
Office of
Federal Facilities
Enforcement
(OFFE)
c
CD
ro
O
rn
O
(3
EU
O
3-
CD
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 329
Environmental compliance inspections and the multi-media approach have evolved over
the years. Prior to the late seventies, each inspection was program specific and concentrated on
determining compliance with only one environmental law or one aspect of an environmental law
(e.g., an inspection to determine compliance with the waste discharge permit requirements of the
Federal Clean Water Act). By the end of the seventies, NEtC had determined that it was much
more effective and efficient to combine inspection objectives to include more than one
environmental law, and thus developed the procedures for "multi-media" inspections. The multi-
media approach, which has been strongly endorsed by EPA management (5), was determined to
have several advantages over a program-specific inspection including:
• A more comprehensive or holistic and reliable assessment of a facility's
compliance status with fewer missed violations
Better assurance that pollution is not transferred from one medium to another
• A higher probability to uncover/prevent problems before they occur or before
they manifest an environmental or public health risk
• Ability to respond more effectively to non-program specific complaints, issues,
or needs and develop a better understanding of cross-media problems and
issues, such as waste minimization, pollution prevention, and control of toxic
materials
Better focus senior management in the regulated community on the broad range
of environmental compliance issues, better ensuring that they do not overlook
significant environmental problems
Better potential for enforcement
2.2 Criminal Enforcement Program
Concomitant with the development of the multi-media approach, the EPA
recognized the need to be more vigorous in its pursuit of criminal sanctions for violations of
environmental laws. On January 5, 1981, the Deputy Administrator directed the creation
of the Office of Criminal Investigations in Washington, D.C., and the hiring of a trained
investigative staff. Also in January, 1981, the Attorney General of the United States
confirmed the authority of EPA to initiate, or assist in, investigations into potential violations
of the criminal provisions of the environmental statutes that the Agency administers.
Among the program's responsibilities were supervision of all Regional criminal case
development and referrals, development of Agency-wide training and policy, coordination
of the Agency's joint investigative program with the Federal Bureau of Investigation (FBI),
and liaison with the Department of Justice (DOJ) and outside law enforcement agencies.
The criminal enforcement program hired an in-house staff of 23 experienced
criminal investigators which had expanded to over 70 by 1992. Most of the agents were
formerly with such law enforcement agencies as the FBI; Drug Enforcement Administration;
Bureau of Alcohol, Tobacco and Firearms; or the Internal Revenue Service. The agents
were deputized by DOJ as Special Deputy United States Marshals, giving them full law
enforcement authority to execute search warrants, make arrests, and carry firearms.
The Pollution Prosecution Act of 1990 recognized the benefits of the criminal
investigation program and the need to expand the number of criminal investigators up to
200 by Fiscal Year 1995. The current number of investigators is inadequate for several
reasons. The Congress has placed an increased emphasis on criminal enforcement by
upgrading many offenses from misdemeanors to felonies. Additionally, as public
awareness of environmental crimes has increased, the public has become more willing to
provide "tips" concerning environmental crimes which have substantially increased the
workload of the investigators. States are now requesting help in developing their own
criminal investigation programs which also puts a growing demand on the Agency's
criminal investigators. Finally, the current number of criminal investigators forces the
Agency to use its prosecutorial discretion in many cases and develop a civil case rather
than an enforcement case (7).
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330 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2.3 Civil Investigation Program
Inspections/investigations are continuing to evolve with the addition of civil
investigators to the inspection arsenal. The Pollution Prosecution Act of 1990 authorized
50 civil investigators by recognizing that the Agency's technical inspector/investigator corps
would benefit from the addition of a expertise presently not readily available to the media
programs. Civil investigators have received in-depth training and have specific skills and
abilities in the areas of interviewing and records evaluation which enable them to assist
technical and legal staff by locating corporate and personnel assets, determining corporate
structures and ownership, locating witnesses, etc.
The NEIC is piloting the civil investigator program to develop and demonstrate the
contributions that civil investigators can make to Agency enforcement programs and to
define potential roles of civil investigators in multi-media investigations. This information
will be used as a basis for Office of Enforcement policy decisions concerning full
implementation of the civil investigator provisions of the Pollution Prosecution Act.
2.4 Technical Support
From a technical standpoint there is a high degree of similarity between civil and
criminal cases although more stringent procedural aspects are followed in the development
of criminal cases. Substantially more interaction is also required between prosecutors,
investigators, and technical personnel in the development of a criminal case. The
technical personnel supporting a criminal case must fully understand precisely what the
criminal investigators and the prosecutors need to support the case. Furthermore, and
perhaps even more important, the technical personnel must fully understand all legal
constraints surrounding the criminal investigation and must rely heavily on the prosecutor
and criminal investigator for guidance.
While the States conduct most of the civil investigations, most of the technical
support for the criminal enforcement program comes from EPA inspectors and from the
NEIC3"'. Generally, technical support for case development can be broken down into six
different areas which are discussed below.with civil/criminal technical support contrasted:
2.4.1 Development of background information
A civil investigation will include extensive background research and may often
expand the background research to obtain detailed information about process operations.
The investigator on a civil investigation is interested in developing an in-depth technical
understanding of facility operations to enable the investigator to better identify areas where
a facility operator may have unknowingly failed to identify or properly handle waste
streams. The criminal investigator is looking for willful violations.
During this phase of a criminal investigation, NEIC assists by providing financial,
regulatory, and historical information on the target industry or individual. This is
accomplished by accessing the extensive computer data systems available through NEIC
Information Services. Research may also be done on the target facility's manufacturing
processes to determine the probable waste streams the industry is likely to generate and
under which specific Federal statutes these wastes are regulated. When necessary, covert
samples are collected from the target facility to provide additional support for probable
cause of a criminal search warrant. The civil investigator rarely has a need for covert
sampling, as entry is usually consensual.
"" NEIC piloted the criminal investigation program during the 1980's and, in cooperation with the
criminal investigators, developed the procedures for providing technical support to the agents
during the conduct of a criminal investigation.
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2.4.2 Preparation of an investigative plan
No matter how large or small the investigation, up front planning is necessary to
assure success and the accomplishment of objectives. Generally, a written investigation
plan is desirable. For large scale investigations and for investigations involving more than
one organizational element (e.g., criminal investigation), a formal written plan is almost
essential. A written plan serves two purposes: (a) it assures that alt investigation team
members know the needed investigation activities, required standard operating procedures
and protocols, unique procedures, and team member responsibilities; and (b) it provides all
interested parties with a clear understanding of the extent of the technical support to be
provided.
2.4.3 On-site fieidjnvestigations
The technical investigator is responsible for the collection, documentation, and
maintaining chain-of-custody of physical evidence. All aspects of these activities are done
in a manner which at some future time are fully defensible and accountable in the Federal
court system. Although civil cases require documentation, it is usually not to the extent of
a criminal case. Additionally, entry under civil authorities is usually consensual while site
entry under a criminal case is usually with a warrant.
The technical conduct of the investigation is also different between a criminal and a
civil case. During a criminal investigation, the investigators are limited in what can be
sampled or evaluated to that which is precisely listed in the criminal search warrant.
Furthermore, on-site investigations under a criminal search warrant are usually limited to a
specific number of days (typically ten days). During a civil investigation, the investigator
has substantially more latitude to sample or evaluate anything they desire within the very
broad guidance of the environmental laws and the only limitation on time is the availability
of the investigator.
Prior to 1990, most criminal cases were media specific (8); however, consistent
with the Agency's emphasis on multi-media enforcement, by FY 1991 the criminal
enforcement program also emphasized the multi-media approach (5).
2.4.4 Analytical support
Ideally, a laboratory representative will assist in determining the analytical needs of
the investigative activity. On a civil investigation, samples may be analyzed at a Regional
or State laboratory, the NEIC laboratory, or a non-government contract laboratory. Most
samples collected in support of criminal investigations are analyzed by EPA laboratories.
Approximately 40 percent of the samples collected for a criminal case are analyzed at the
NEIC laboratory, which is the Agency's primary forensic laboratory. The Regional
laboratories analyze another 40 percent and State and local laboratories analyze the
remaining 20 percent.
2.4.5 Preparation of a technical report
Perhaps the most obvious difference between technical support in civil and criminal
cases is evidenced in the technical reports. A technical report for a criminal case contains
only the specific facts observed during the investigation and the specific results of the
analytical work. The report contains no conclusions or interpretations. On the other hand,
a civil report contains extensive information about the background of a facility, the process
operations, discussions between the investigator and employees, and the conclusions and
interpretations resulting from the investigation. Neither the civil nor criminal report will not
identify areas of noncompliance, however, such observations may be made in separate
correspondence.
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2.4.6 Case preparation and litigation support
During this time period critical review is done of all data and known facts relating to
the investigation. Technical personnel work closely with the case agent and the assistant
U.S. attorney aiding in the interpretation of sample data and determination of how the
information supports witness and informant testimony. Decisions are made at this time,
supported by witness testimony and physical evidence, as to which specific Federal
regulations have been violated. This information is then used for the preparation of a
Federal indictment. Once the case is brought to trial, all personnel involved in the
investigation must be prepared to testify in court as government factual or expert
witnesses. All documents, records, and evidence are preserved throughout the case
preparation and litigation phases of the enforcement activity. This procedure is very similar
in both civil and criminal cases.
For a specific investigation, each time period is variable and the activity required to
achieve each of the four segments of the investigation can vary from days to six months or
more. It should be recognized that, on the average, a successful environmental criminal
investigation will take approximately 18 months; a successful civil case may take more
time.
3 CENTRALIZED INVESTIGATIVE TEAM
For the last twenty years, EPA and other Federal and State organizations have
been aided in the enforcement of environmental laws by a centralized investigatory center
known as the National Enforcement Investigations Center (NEIC) located in Denver,
Colorado. Founded in 1970. the NEIC was originally known as the National Field
Investigations Center-Denver. It was an operations unit of the enforcement program of the
Federal Water Quality Administration in the U.S. Department of Interior. The early
responsibility of the Center was to perform water pollution studies for administrative
enforcement actions and public hearings under the Clean Water Act. In December 1970,
the Center was transferred to the newly established EPA and began reporting to the Office
of Enforcement and General Counsel (now Office of Enforcement) at EPA Headquarters.
In July 1975, the Center became the National Enforcement Investigations Center, with
responsibility for conducting pollution investigations and preparing administrative, civil, and
criminal enforcement cases under all Federal environmental laws.
NEIC serves as a principal source of expertise involving civil and criminal litigation
support for complex investigations having national and/or significant Regional impact on
EPA and State regulatory programs for air, water, toxics, pesticides, radiation, and solid
waste pollution control. The major function of the NEIC is to gather evidence and provide
information for case preparations in support of EPA enforcement actions. This includes
litigation support for complex investigations in all environmental programs. The Center's
investigative teams normally become involved in situations where large scale investigations
exceed the resources of the Regional Offices or where special technical expertise or
investigative skills are required. Whereas Regional and State level investigations are
usually conducted with only a limited number of personnel over a one or two day period,
investigations conducted by the NEIC typically include more people over an extended
period of time. Five to 30 or more technical staff may be involved in an NEIC level
investigation, and time on-site usually takes one to two weeks with some investigations
requiring several months.
The NEIC's case preparation activities are unique in that these investigations are
performed full-time in contrast to Regional Offices who have other ancillary responsibilities.
As a result of this full-time commitment, probably more litigation experience exists at the
Center than at the Regional Offices combined. Emphasis is placed on NEIC's quick
response, which often includes short notice field investigations of activity such as waste
dumping or emissions that potentially endanger public health or welfare.
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The Center has about 120 employees, of which approximately 35 are highly skilled,
senior level, investigators with extensive experience in conducting field investigations. In
addition, about 90 contractor employees perform a variety of services related to the
Center's function. The professional disciplines of the Center's employees include civil,
sanitary, environmental, chemical and industrial engineers; civil investigators; biologists;
microbiologists; geologists; hydrologists; information management specialists; physicists;
and chemists. An attorney staff provides litigation support to EPA and/or the United States
Department of Justice in prosecuting environmental offenders in formal regulatory or
judicial proceedings resulting from NEiC investigations.
NEIC is a nationally-managed source for investigative, technical, scientific,
administrative, and information management support that is necessary to the preparation of
almost every significant environmental case. The Center is frequently called upon by other
Federal and State agencies to provide expert advice, consultation, and assistance for
pollution control and remedial actions and may also support other Federal or State actions
by conducting overflow chemical analyses. The Center has had extensive experience in
the development of environmental investigatory techniques and has gained national and
international recognition through participation in many of the Agency's most important civil
and criminal enforcement cases. As noted earlier, NEIC has been the lead in developing
new compliance monitoring approaches and has developed the multi-media investigation
techniques and strategies. One of the Center's most recent initiatives is the development
and piloting of the new Civil Investigator program.
More specifically, the Center's primary responsibilities include:
Conducting thorough, multi-media investigations of the most complex facilities
nationwide using the special expertise developed in conducting complex multi-
media investigations
• Assuring the adequacy and validity of scientific and technical evidence, including
data collection and analyses, and review and development of analytical techniques,
methodologies, and computer information systems
Providing training and specialized technical assistance to EPA Headquarters and
Regional Offices in support of criminal investigations
• Providing expert testimony on a wide variety of specialized subjects in support of
enforcement actions
Providing expertise and guidance to the Office of Enforcement for the development
of multi-media enforcement strategies and evidence management
• Providing national expertise to Headquarters and Regional Offices of EPA and the
Department of Justice in evaluating a broad range of waste disposal and emission
problems, and monitoring technology and remedial programs not normally available
on Regional staffs
Developing the emerging Civil Investigator program and providing technical support
to that program
Cases are referred to NEIC by the Office of Enforcement at EPA Headquarters,
Regions, or the DOJ (including the FBI). Cases are usually referred to NEIC in writing
after preliminary discussions between NEIC and the requestor; however, in emergency
situations requiring quick response, a telephone call may be all that is required. By the
time a case is referred to NEIC for investigation, it has already been through a number of
preliminary steps. Regional Office case screening procedures assist in identifying potential
enforcement cases for NEIC support. If a State or EPA Region is aware that a serious
environmental problem exists and has concluded that there is no likely resolution short of
enforcement action, the situation is already fairly complex. An investigation is usually
required, questions of motivation arise, and identification of other potentially responsible
parties and environmental impacts must be considered.
The NEIC works very closely with the referring organization in responding to a case
preparation request. To accomplish efficient case development and management, core
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teams are established for the purpose of close and continuous communications among the
investigative participants throughout the entire case development process.
The core team normally consists of representatives within the investigative,
technical, and legal fields, including appropriate representation from the United States
Attorneys' Office or the Department of Justice. The initial functions of the core team are to
discuss the statutory and regulatory provisions suspected to have been violated and to
determine what evidence must be obtained to ascertain whether the violations have
occurred. If criminal activity is suspected, the core team will include NEIC staff who have
received special training in the conduct of criminal investigations as well as appropriate
representatives from EPA's Office of Criminal Enforcement and/or the FBI. Given the
areas of expertise represented, the core team has the ability to minimize potential
problems before they arise during an investigation. For example, decisions can be made
and modified as necessary regarding sampling and testing, including what should be
sampled, how many samples should be taken, and what analyses should be performed.
NEIC case investigations include activities identified in the section Technical Support. To
assist in understanding the general scenario in the use of a centralized team to
supplement decentralized inspection capabilities, several case studies are presented:
One example where the resources and expertise of the centralized NEIC were
required was the National Hazardous Waste Ground-Water Task Force initiative. This
national Task Force was formed as a result of concerns over whether hazardous waste
treatment, storage, and disposal facilities were complying with the ground-water monitoring
requirements issued under the Resource Conservation and Recovery Act (RCRA). Prior to
the mid 1980's, the purity and safety of ground-water was taken for granted. That
assumption was shaken when preliminary EPA studies found that many facilities had not
complied with the ground-water monitoring requirements of RCRA and thus did not know if
contaminants were entering and contaminating the ground-water. The massive goal of the
Task Force was to perform a comprehensive evaluation of all commercial hazardous waste
treatment, storage, and disposal facilities nationwide to determine (a) whether or not the
facilities were in compliance with the regulations and (b) whether or not contaminants were
entering the ground-water.
The Task Force, national in scope and transcending Regional boundaries.required
expertise in conducting large scale technical investigations and an extensive resource
commitment. The centralized elite force already in existence immediately filled the need.
NEIC's role in the Task Force was to develop and implement field protocols and
procedures to assure a nationally consistent approach to identifying ground-water
monitoring compliance problems. This role could not have been assumed by any single
region.
NEIC initially provided training for the Regions and States (and contractors who
assisted in the sample collection) involved on the Task Force on proper procedures for
evidence collection and handling, including the handling of confidential business
information. To establish consistency nationwide, and to provide "on the job" training to
each Region and involved State, NEIC led the investigation at the first facility investigated
by the Task Force in each of the ten Regions.
Although contract laboratories were used extensively during the Task Force
activities, the NEIC laboratory personnel provided expertise to the Task Force in evaluating
facility laboratories. The purpose of the laboratory evaluation was to determine if the
laboratory had the appropriate personnel and equipment to perform the required analysis
and to determine if the facility laboratory was following the correct procedures. This
expertise is not normally found in the Regions. Additionally, the NEIC laboratory provided
a duplicate analysis of select samples from each NEIC lead investigation to confirm that
data from the contract laboratories met EPA quality requirements.
In keeping with the Center's mission of gathering evidence and providing
information for case preparation, NEIC approached each Task Force investigation as an
enforcement case. As a result, most NEIC Task Force investigations resulted in follow-up
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enforcement action. One investigation ultimately developed into a criminal case which
culminated in an 18.5 million dollar criminal penalty, the second largest to date.
Another example where the centralized team approach was necessary involved an
on-going investigation of the Department of Defense (DOD) and their contractors charged
with the disposal of DOD generated hazardous wastes nationwide. NE1C was initially
requested to evaluate contractor performance and compliance in the disposal of the
wastes. NEIC expanded the evaluation to include multi-media issues involving DOD
generation and handling of wastes through contractor transportation and ultimate disposal
(i.e., cradle-to-grave). Wastes were tracked from generation in one Region to disposal in
another Region, frequently passing through multiple Regions. This national effort, like the
Hazardous Waste Ground-Water Task Force, could not have been assumed by a single
Region. The centralized approach identified patterns of conduct and the need for
substantial changes to the way DOD disposed of hazardous wastes. As a result of this
national effort, approximately 40 DOD installations and over 100 contractors were
evaluated; almost 400 environmental violations were found. Both civil and criminal actions
were taken in response to almost all violations, and approximately ten percent of the
contractors were ultimately determined to be ineligible to receive further contracts.
NEIC resources have also been used for protocol development and piloting of new
Agency initiatives or regulations, implementation of Agency strategies such as company-
wide investigations of multi-regional companies, and training. Some specific recent
examples of NElC's projects include investigations of the United States' two largest multi-
regional hazardous waste disposal companies, implementation of the toxics in air initiative
(in response to the new Clean Air Act Amendments), development'and implementation of
protocols for enforcing the RCRA Land Ban restrictions, and implementation of multi-media
investigations at Federal Facilities. All of these examples demonstrate the efficiency and
cost effectiveness of utilizing a centralized elite force with broad ranges of expertise and
experience to implement large scale inspections and investigations to determine
environmental compliance.
4 TRAINING
Achieving and maintaining a high level of compliance with environmental laws and
regulations is one of the most important goals of the EPA. Personnel conducting
compliance inspections and field investigations play a key role in the success of the
national enforcement programs. Given the relative inexperience of inspectors, the
increasingly complex laws and regulations being enforced, and the need for national
consistency in the way the laws and regulations were being enforced, a need for a
systematic, agency-wide, compliance inspector training program was identified. In June
1988, the Administrator of the EPA issued a policy entitled "Agency-wide Program to Train,
Develop and Recognize Compliance Inspectors and Field Investigators". EPA Order
3500.1 was adopted. This order required basic and program-minimum inspector training.
EPA's compliance programs developed program-specific curricula, combining self-study,
classes, and on-the-job training; total training hours vary for each program and range
upward from approximately 150 hours (including on-the-job training), depending upon the
complexity of the program (9). The Office of Enforcement designed the basic inspector
course, "The Fundamentals of Environmental Compliance Inspections". This basic course
is required of all inspectors regardless of program assignment. The Inspector Training
Advisory Board, composed of Regional and Headquarters compliance program managers
and led by the Office of Enforcement, oversees implementation of the program. The
primary goal of this program is to foster quality compliance inspections and field
investigations as critical components of the EPA's compliance monitoring and enforcement
functions. The training identified under this program is required of all EPA inspectors and
investigators.
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As noted earlier, State and local personnel conduct the majority of environmental
compliance inspections and investigations under delegated or approved programs. While
the EPA cannot require that State and local personnel take part in this training program,
EPA is working with these agencies to encourage State and local training programs to
identify and meet training needs for their compliance inspectors/field investigators. These
agencies are welcome and encouraged to use all relevant Agency training materials and to
participate wherever possible in the training opportunities offered by EPA.
One of the most fruitful EPA initiatives to build stronger environmental enforcement
programs at the State and local level has been the establishment of four regional
environmental projects, that is, the Northeast Environmental Enforcement Project, the
Midwest Environmental Enforcement Association, the Southern Environmental Enforcement
Network, and the Western States Hazardous Waste Project, funded by the Office of
Enforcement. The training programs provided by these State organizations provide
training to the regulatory, investigative, and prosecutorial components of State and local
governments. In FY 1990, these organizations offered a dozen courses and trained over
500 State, local, and Federal members of the enforcement team.
On November 16, 1990, the President signed the "Pollution Prosecution Act of
1990" which mandated the establishment of the National Enforcement Training Institute
(NETI) within EPA's Office of Enforcement. EPA Administrator Reilly formally established
NETI on November 8, 1991. The primary function of NETI is to train Federal, State, and
local lawyers, inspectors, civil and criminal investigators, and technical experts in the
enforcement of the Nation's environmental laws. To carry out this function, NETI
personnel, with the assistance of other EPA, Federal, State and local personnel, are
developing core curricula for all categories of enforcement personnel; providing basic
enforcement training with a multi-disciplinary, multi-media perspective; developing and
delivering generic enforcement skills training; and coordinating with all EPA program
offices in the development and delivery of enforcement specific training.
To assist in the delivery of courses, two NETI training facilities will be established:
NETI-West in Denver, Colorado, and NETI-East in the Washington, DC, area. NETI-West
began operations in July 1992, with a small management staff provided by NEIC and
faculty provided by NEIC, other EPA Offices, and various other agencies. The training
facilities will reach far into providing the needed knowledge, skills, and abilities to promote
team approaches to environmental enforcement.
5 CONCLUSIONS
A centralized investigative center has proven, through over twenty years of
experience, to be an invaluable supplement to Regional inspectors in enforcement case
preparations. In cases where large scale, complex investigations may exceed Regional
resources or require specific expertise not normally available in Regional Offices, a
centralized team can provide the personnel and resources for quick responses and
detailed case preparation activities. This is particularly true in the conduct of multi-media
compliance investigations for enforcement purposes. When an enforcement team is
available to conduct case preparation on a routine basis, the necessary procedures and
legal safeguards are in place to effectively and efficiently carry out Agency regulatory
responsibilities. This type of centralized team would be useful at all levels of
environmental enforcement, including State and local governments,
The centralized team has proven to be particularly useful with the increased
emphasis on the use of criminal enforcement authority contained in the environmental
statutes; many of the criminal cases investigated involve multiple environmental laws. The
cross-training of team members has provided an excellent mechanism to achieve the
Agency's multi-media objectives.
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REFERENCES
1 Wasserman, C.E., "Overview of Compliance and Enforcement in the United States:
Philosophy, Strategy and Management Tools", prepared for the International
Enforcement Workshop, May 8-10, 1990, Utrecht, The Netherlands.
2 United States Environmental Protection Agency, "Building the Enforcement
Infrastructure: Compliance Inspector Training", Compliance Policy and Planning
Branch, Office of Compliance Analysis and Program Operations, Office of Enforcement,
October, 1990.
3 U.S. Environmental Protection Agency, Office of Human Resources Management, "EPA
Workforce Snapshots", October 1991.
4 U.S. Environmental Protection Agency, Office of Information Resources Management,
Facility Index System (FINDS).
5 U.S. Environmental Protection Agency, Office of Enforcement, "Enforcement
Accomplishments Report FY 1991", 300-R92-008, April 1992.
6 United States Environmental Protection Agency, Memorandum from James N. Strock,
Assistant Administrator, Office of Enforcement, Subject: Training Status of Multi-Media
Compliance Inspectors, January 10, 1991.
7 Pollution Prosecution Act of 1990. 101st Congress, 2d Session, Senate, Report 101-
366.
8 United States Environmental Protection Agency, Letter from James N. Strock, Assistant
Administrator, Office of Enforcement, May 28, 1990, to the Honorable Joseph I.
Lieberman, United States Senator.
9 United States Environmental Protection Agency, Agency-wide Program to Train,
Develop and Recognize Compliance Inspectors/Field Investigators: A Program
Description", June 1988.
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UK EXPERIENCE !N ESTABLISHING AN INSPECTORATE FOR INTEGRATED POLLUTION
REGULATION
I. HANDYSIDE
Head of East Division, HMIP, Howard House, 40-64 St Johns Street, Bedford, England MK42 ODL
SUMMARY
Her Majesty's inspectorate of Pollution (HMIP) was formed in 1987 by bringing together
separate pollution inspectorates covering air, water, waste and radioactive substances into a fully
integrated environmental protection inspectorate. HMIP is responsible for implementing
integrated pollution regulation of industrial processes under the Environmental Protection Act
1990 (EPA 90}1 and also discharging responsibilities under the Radioactive Substances Act
I9602, the Water Act 19903 and the Health & Safety at Work Act 19744. HMIP also has
responsibility for overseeing waste regulation and ensuring greater public involvement in the
regulatory process.
When formed in 1987, HMIP had a staff of 177 which is now 301 and is planned to rise to
458 in the next few years.
This paper describes some aspects of development of HMIP, its current mission and
experience to date in implementing integrated pollution regulation.
1 INTRODUCTION
One of the most significant changes in the UK in the past decade has been the dramatic
increase in public concern about the environment.
Central to the strategy for environmental protection is the principle of stewardship which
arises from the acknowledgement that we do not inherit the earth from our parents, we borrow it
from our children. We must pass on our environment to future generations in a state which
allows them to meet their own needs. This lies at the heart of a second principle of sustainable
development which is widely accepted by governments around the world as a foundation for living
with our environment. This does not mean zero growth or an end to consumption. Economic
growth is essential if we are to maintain and improve living standards around the world and to
afford the care for the environment that sustainable development demands. Industry's role is to
provide the technological innovation and advances needed to meet the goal of sustainable
•development. But this must be done with full public knowledge and an openness that gains the
full confidence of the public.
2 ENVIRONMENTAL PARTNERSHIP
It is important to emphasise the roles to be played by industry, the public, as citizens or as
members of environmental pressure groups and of regulators such as HMIP in protecting and
preserving our environment for future generations. There exists an inter-relationship between
Government, industry and the public, with HMIP sitting in the middle with important two way
relationships with each one.
The UK Government formulates policy on environmental protection and issues regulations
and sets standards which HMIP must administer in regulating industry.
Industry in its turn must operate efficiently and effectively using clean technologies to
ensure that no harm is done to the environment. This has not always been the case in the past.
Indeed the first major piece of environmental legislation in the UK, the Alkali Act5, came into
force in 1864 to control discharges of hydrochloric acid because they had turned once verdant
countryside in North-West England into an industrial wilderness. There can be few more
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important areas in which industry and the business community need to raise, and to be seen to
be raising, standards than the environment. For this to happen however, far more companies will
need to pay rigorous attention to the quality of their environmental management. This will be
particularly important as environmental pressures continue to rise in the years ahead. The
business community will need to pay heed to three dynamics: setting standards, understanding
markets and managing environmental performance. Those who get these right will find
environmental pressures enhancing rather than hindering their competitiveness. Those who get
them wrong will be losers. The message to industry is clear. Good pollution control goes hand in
hand with technical excellence and business, rather than being an obstacle and a drain on
resources.
The public for its part is increasingly playing the role of "green watchdogs". When a
member of the public, either as an individual or as a member of a pressure group, suspects that
a problem is occurring in the environment, HMIP welcomes being alerted to suspected pollution.
We are developing a much closer and responsive relationship with the citizens of England and
Wales.
3 HMIP'S MISSION FOR THE 1990s
HMIP's mission is to protect the environment by regulating industry to prevent pollution.
To do this HMIP carries out the following activities:-
i) authorises, enforces, inspects and monitors under the relevant legislation;
ii) consults openly and widely and reports on its performance;
iii) provides expert advice to Government;
iv) initiates research and development and disseminates results;
v) works cost effectively and to the highest professional standards.
HMIP has set itself the following objectives:-
i) Integrated Pollution Regulation (IPR) and Integrated Pollution Control (IPC)
implementation;
ii) preventive approach;
iii} high profile regulation;
iv) demonstrable effectiveness; and
v) proactive research.
None of this is completely new. HMIP and its predecessor inspectorates have done a
good job and the benefits can be found in any industrial town in the UK. The current challenge is
to do all of this even better and in doing so, show that HMIP is at the leading edge of
environmental regulation.
3.1 Integrated Pollution Regulation
With the bringing into force of Part 1 of the Environmental Protection Act in April 1991,
HMIP's regulatory framework became based on a truly cross-media philosophy. IPC and HMIP's
other main regulatory functions are being carried out in accordance with the philosophy of
integrated pollution regulation.
First it involves a systematic approach to regulation, which means developing the
appropriate systems to ensure that HMIP's responsibilities are discharged efficiently, effectively
and consistently in a consistent manner across all of the Inspectorate. Second, to implement
these systems needs adequate guidance to inspectors and third, comprehensive training.
Training helps maintain the level of professional expertise that is so vital to the effective
functioning of the Inspectorate.
With a range of different, but integrated regulatory functions to perform, it is essential for
HMIP to have the necessary range of expertise available. For this reason we have developed a
team approach to field regulation. This is the fourth strand of the IPR approach. Teams are
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made up of "professionals" each with their own specialist background and experience such as
waste management, air pollution control, radioactive substances, administration etc. Each
member will have the same basic training but will continue to develop his specialism and make
this expertise available to colleagues. In this way, HMIP is able to take an expert and balanced
view of pollution as it affects all media.
HMIP's field operation is divided into 7 geographic Regions as shown in Annex 1. Each
Region has 5 to 6 inspection teams who are responsible for ensuring that all HMIP's regulatory
functions are discharged in that Region.
3.2 The Preventive Approach
From an environmental standpoint, prevention is better than cure. For operators it is cost
effective to reduce the creation of waste at source and much less disruptive to design effective
controls and operating procedures into a plant, rather than face later remedial action. Any
remaining wastes which are necessarily produced should be disposed of in the most
environmentally acceptable way.
The three elements of the Inspectorate's approach are:-
i) guidance on process design and operation, in particular, through Chief Inspector's
Guidance [IPR] Notes;
ii) avoidance of pollution risk by rigorous scrutiny and process design and operating
arrangements, and reduction of waste creation at source, through the authorisation
process; and
iii) deterrence, by using authorisations to set up monitoring regimes which will bring lapses in
performance quickly and reliably to the attention of the operator, HMIP and the public; and
by effective monitoring, inspection and enforcement regimes.
3.3 High profile Regulation
The history of the Inspectorate can be traced back to 1864 when the first Alkali Act was
introduced. Since that time the Inspectorate has grown in size and in the areas of responsibility it
covers. Regulation has been carried out effectively in the past, but the current public concern
about environmental issues means that HMIP must demonstrate explicitly that it is doing its job
effectively and be fully responsive to public concerns. HMIP will be seen to be active in
inspections, audits, securing improvements and also prosecutions where appropriate. HMIP will
also show a rapid and flexible approach, particularly to concerns raised by the public which will
be dealt with in a systematic manner and with the minimum of delay.
But what does this mean in practice? The Environmental Protection Act provides for much
'greater public involvement in the regulatory process. For example, by requiring the Inspectorate
to keep public registers available at our regional offices. We now have public registers available
for Integrated Pollution Control, radioactive substances, atmospheric and water pollution
regulation. But HMIP must go much further than simply meet legal obligations, by being pro-
active in making the public more aware of our day to day activities. HMIP must present a human
face to members of the public, we must be credible and above all, accountable.
We have taken steps recently to ensure that the regulatory systems we operate yield
information that is available to and comprehensible by the public. For example, in future, the
Inspectorate's annual report will be used to review our activities and our findings, to review our
self-auditing procedures, our enforcement activities and the results of out monitoring strategy.
3.4 Demonstrable Effectiveness
It is not good enough that HMIP simply discharges its regulatory responsibilities, we must
also seek ways of verifying our effectiveness by using appropriate performance indicators.
Monitoring of the environment will play a key role here. Proposals are already in hand to carry
out national monitoring of key parameters so that trends in levels of contaminants in the
environment can be ascertained. Certain parts of UK industry are also planning to develop and
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use their own environmental performance figures. This is just one way in which we can check
the effectiveness of our work.
To aid work planning, HMIP has developed a comprehensive system of "norms" for the
time to be spend on inspecting and overseeing each sector of industry so as to ensure fully
effective regulation. These norms can be varied upwards or downwards, depending on the
pollution potential of individual factories in the light of the size and frequency of operation or the
competence of the operator. HMIP is also currently testing systematic procedures for Operator
Competence Assessment (OCA) and the Pollution Risk Potential (PRP) of their processes.
In assessing the competence of operators, HMIP inspectors will be examining their
performance against set criteria which include compliance with authorised limits, plant
maintenance, records, plant instrumentation, managerial competence and commitment to
environmental matters. Pollution Risk Potential will depend inter alia on an assessment of the
toxicity of substances being handled, the scale of operation, incident history, complexity of
operation and the potential for non-routine releases.
These assessments are currently the subject of field trials and results should be available
towards the end of this year.
HMIP will also carry out internal checks on the quality of our operations and procedures.
The introduction of quality assurance systems is vital to demonstrate the high and improving
quality of the Inspectorate's activities. To this end we have recently adopted a Quality Assurance
Programme which has the aim of achieving accreditation under British Standard 5750.
3.5 Pro-active Research and Development Programme
There is not only a need for short-term technical answers to today's pollution problems,
but also for strategic forward planning in the long term. This particularly applies to HMIP's
research programme. The main objective of the research is to provide necessary support for our
regulatory activities. Research needs to be pro-active and have definite long-term goals which fit
in with regulatory requirements. For example, HMIP is developing assessment methodologies
necessary for making judgements on the impact of harm caused by releases to each
environmental medium and for ensuring that authorisations are fully consistent with the concept of
Best Practicable Environmental Option (BPEO). We shall be looking increasingly at how risk
assessments can play a role here. There is also an important need to keep abreast of
developments in process technologies and techniques so that the guidance to inspectors can
have the benefit of thorough reviews of available techniques.
4 INTEGRATED POLLUTION CONTROL
As most of the industries HMIP regulates are aware by now, the statutory basis for IPC is
provided in Part 1 of the Environmental Protection Act 1990. IPC requires that no prescribed
process can be operated without a prior authorisation from HMIP. The prescribed processes to
be controlled under IPC and the timetable for their introduction into the new systems as well as
the prescribed substances are set out in detail in the Environmental Protection {Prescribed
Processes and Substances) Regulations 19916 and are summarised in Annexes 2 and 3.
The Environmental Protection (Applications, Appeals and Registers) Regulations 19917
outline the procedures for applying to HMIP for authorisation, the information required by HMIP,
the bodies which HMIP must consult and requirements for advertising the applications and for
placing relevant information on a public register.
The requirements for involving the public in the authorisation procedure are a key aspect
of IPC. They reflect our philosophy that the public has a right to know about pollution issues
(subject to safeguards where essential, for confidentiality). HMIP is required either to grant an
authorisation, subject to any conditions which the Act requires or empowers it to impose, or to
refuse it. HMIP must refuse it unless we consider that the applicant will be able to carry on with
the process in compliance with the conditions in the authorisation.
In setting the conditions, the Act places HMIP under a duty to ensure that:
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 343
- The Best Available Techniques (both technology and operating practices) Not Entailing
Excessive Cost {BATNEEC) are used to prevent or, if that is not practicable, to minimise
the release of prescribed substances into the medium for which they are prescribed; and
to render harmless both any prescribed substances which are released and any other
substances which might cause harm.
- Releases do not cause, or contribute to, the breach of any direction given by the Secretary
of State to implement European Community or international obligations relating to
environmental protection, or any statutory environmental quality standards or objectives, or
other statutory limits or requirements.
When a process is likely to involve releases into more than one environmental medium
(which will probably be the case in many processes prescribed for IPC), the Best
Practicable Environmental Option (BPEO) is achieved, ie the releases from the process
are controlled through the use of BATNEEC to give the least overall effect on the
environment as a whole.
The concept of BATNEEC contains an inbuilt dynamic towards higher standards because
as available techniques improve, environmental protection standards be raised.
Process operators, and indeed the public, will require an assurance that BATNEEC is
applied in a rational and consistent way. BATNEEC standards for each class of IPC process will
be set out in published guidance notes which will be issued to inspectors. In preparing the notes
HMIP will review available techniques internationally as well as tapping industry's own expertise
and experience. Right at the outset, industry, through its various representative bodies, will have
an opportunity to offer views on the factors that will need to be covered in each note. And before
a note is finalised it will be issued in draft for comment and discussion by all interested parties.
5 CHIEF INSPECTOR'S GUIDANCE NOTES
The aim of the Notes is to provide guidance to inspectors on the main emission standards
for prescribed substances arising from each process. They also outline the minimum standards
that are expected to be attained by existing plant, and what constitutes BATNEEC for new plant
and processes.
In preparing the Guidance Notes8 HMIP takes into consideration the results of BAT
research reviews that we have commissioned. Over thirty reviews of BAT have so far been
commissioned.
This procedure will continue until around 180 Guidance Notes are issued and plans are
already in place for the revision of the first Guidance Note on Large Combustion Plant. As more
up-to date information, proven technology and standards come to light, others will also be
updated.
6 IPC IMPLEMENTATION - EXPERIENCE TO DATE
IPC came into force on 1 April last year with the first tranche of processes being
introduced. These included all new or substantially changed processes and all existing large
boilers and furnaces. As with all innovatory and complex new systems, the implementation of
IPC has involved tackling a number of difficult issues. Although HMIP has considerable
experience of dealing with applications under other statutes, a considerable amount of
preparation was required in advance of the April start date. This included an extensive training
programme for all HMIP inspectors and key administrative staff. We also carried out a series of
six trials involving key sectors of industry to test the proposed application and determination
procedures.
To coincide with the introduction of integrated pollution control (IPC), the Department of
the Environment published: "IPC - A Practical Guide"9 to assist both ourselves and industry in
meeting the requirements of the legislation. In addition, HMIP has published five Industrial Sector
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344 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Guidance Notes. In conjunction with the issuing of an extensive range of guidance
documentation, each Region of the Inspectorate has invested a considerable amount of time in
publicising the regulation procedures by attending numerous technical conferences and by
holding a series of regional seminars on IPC which representatives from industry were invited to
attend.
Even with the extensive preparations carried out by HMIP and industry, there have been a
number of hiccups in the early stages of IPC implementation. First we were very disappointed at
the quality of the majority of IPC applications, although some were more than adequate, requiring
only minor additional pieces of information, the majority fell below what was necessary, some well
below. In particular, some applications did not provide sufficient information to enable HMIP to
carry out the environmental assessments necessary to determine IPC authorisations. As a
consequence, HMIP had to write formally to many applicants specifying extra information that was
required and this has, in turn, caused some delay in determining authorisations. However,
processing of the first tranche of applications is now more than 90% complete, except for those
where the applicant has appealed against HMIP's decision not to allow the applicant's claim for
confidentiality.
In the light of our experience with the first tranche of IPC applications, HMIP inspectors
have visited most operators who are due to apply for authorisation of the second tranche of
processes (due 30 June 1992) to encourage operators to improve the quality of their applications.
7 CONCLUSIONS
The introduction of IPC has brought about a more structured relationship between UK
industry and HMIP. Industry must be the provider of comprehensive information on which HMIP
determines authorisations - a point emphasised by our going back to industry to request more
information. Industry must also demonstrate compliance with authorisations by carrying out its
own monitoring, instituting quality assurance procedures and generally providing information that
assures the Inspectorate that the conditions in an authorisation are complied with.
HMIP will, of course, carry out inspections and conduct independent monitoring surveys.
In future HMIP's inspections will be more intensive than in the past and we will be looking not
only for compliance with authorisations but also to ensure that the industrial techniques used are
of the required standard, ie that they are consistent with BATNEEC. This includes quality
assurance, training and related aspects.
But HMIP will not squeeze British industry to death by generating paper mountains and
seeking infinite detail about processes. There is a balance to be struck here so that industry can
operate efficiently and effectively, using clean technologies to ensure that no harm is done to the
environment. However, HMIP will take a very serious view if potentially polluting plant is
operating without complying with the pollution control legislation. We are committed to ensuring a
safe and dean environment and enforcing the legislation. If necessary, we will demonstrate our
determination to tackle polluters by using the sanctions available in the legislation including,
where appropriate, prosecution.
HMIP must be efficient in determining applications and enforcing authorisations. We will
ensure that our systems are publicly accountable and will not be any hindrance to companies
who can demonstrate that they are environmentally responsible.
REFERENCES
1. Environmental Protection Act 1990, chapter 43, London, HMSO
2. Radioactive Substances Act 1960, chapter 34, London, HMSO.
3. Water Act 1989, chapter 15, London, HMSO.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 345
4. Health and Safety at Work etc Act 1974, chapter 37, London, HMSO.
5. Alkali Act 1863, London, HMSO.
6. Environmental Protection (Prescribed Processes and Substances) Regulations 1991, Statutory
Instrument No. 472, London, HMSO.
7. Environmental Protection (Applications, Appeals and Registers) Regulations 1991, Statutory
Instrument No. 507, London, HMSO.
8. Chief Inspector's Guidance to Inspectors, Process Guidance Notes, IPR series, London,
HMSO.
9. Integrated Pollution Control - A Practical Guide, Department of the Environment and the
Welsh Office, London, 1991.
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346
INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
HMIP REGULATORY REGIONS
ANNEX 1
.r SOUT — *
1*5' iirtir
U'^X
Ł"*
[®J HMIPHQ
@ Regional HQ
ffi Sub-Regional Office
— Sub Regional
Boundaries
~ Regional Boundaries
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
347
ANNEX 2
TIMETABLE FOR IMPLEMENTING INTEGRATED POLLUTION CONTROL
EPA
SCHED.
REF
1.3
1.1
1.2
1.3
1.4
5.1
5.2
5.3
3.1
3.2
3.3
3.5
3.6
4.1
4.2
4.7
PROCESS
1
Fuel & Power Industry
Combustion (>50MWth)
Boilers and Furnaces
Gasification
Carbonisation
Combustion (remainder)
Petroleum
Waste Disposal Industry
Incineration
Chemical Recovery
Waste Derived Fuel
Mineral Industry
Cement
Asbestos
Fibre
Glass
Ceramic
Chemical Industry
Petrochemical
Organic
Chemical Pesticide
COMES
WITHIN
IPC
1 .4.91
1.4.92
1.4.92
1.4.92
1.4.92
1.8.92
1 .8.92
1 .8.92
1.12.92
1.12.92
1.12.92
1.12.92
1.12.92
1.5.93
1.5.93
1 .5.93
APPLY CHIEF
BETWEEN INSPECTOR ' S
GUIDANCE
NOTE ISSUED*
1.4.91 & 30.4.91 1 .4.91
1.4.92 & 30.6.92 1 .2.92
1.4.92 & 30.6.92 1 .2.92
1,4.92 & 30.6.92 1.2.92
1.4.92 & 30.6.92 1 .2.92
1.8.92 & 31.10.92 1.4.92
1.8.92 & 31 .10.92 1.4.92
1.8.92 & 31.10.92 1.4.92
1.12.92 & 28.2.93 1.6.92
1.12.92 & 28.2.93 1.6.92
1.12.92 & 28.2.93 1.6.92
1 .12.92 & 28.2.93 1 .6.92
1.12.92 & 28.2.93 1.6.92
1 .5.93 & 31 .7.93 1 .11 .92
1 .5.93 & 31 .7.93 1 .11.92
1.5.93 & 31 .7.93 1 .11.92
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
EPA
SCHED.
REF
4.8
4.3
4.4
4.6
4.9
4.5
PROCESS
1
Pharmaceutical
Acid Manufacturing
Halogen
Chemical Fertiliser
Bulk Chemical Storage
Inorganic Chemical
COMES
WITHIN
IPC
1
1
1
1
1
1
.5
.1
.1
.1
.1
.5
.93
1.93
1.93
1 .93
1 .93
.94
APPLY
BETWEEN
1
1
1
1
1
1
.5.93
.11.93
.11.93
.11.93
.11.93
.5.94
& 31 .
& 31
& 31
& 31
8 31
& 31.
7.93
.1.94
.1.94
.1.94
.1.94
7.94
CHIEF
INSPECTOR'S
GUIDANCE
NOTE ISSUED
1
1
1
1
1
1
.11
.5.
.5.
,5.
.5.
.11
.92
93
93
93
93
.93
Metal Industry
2.1 Iron and Steel
2.3 Smelting
2.2 Non-ferrous
Other Industry
6.1 Paper Manufacturing
6.2 Di-isocynate
6.3 Tar and Bitumen
6.4 Uranium
6.5 Coating
6.6 Coating Manufacturing
6.7 Timber
6.9 Animal and Plant
Treatment
1.1.95 1.1.95 & 31.3.95 1.7.94
1.1.95 1.1.95 & 31.3.95 1.7.94
1.5.95 1.5.95 & 31.7.95 1.11.94
1.11.95 & 31.1.96 1.5.95
1.11.95 & 31.1.96 1.5.95
1.11.95 & 31.1.96 1.5.95
1 .11.95 & 31.1.96 1.5.95
1.11.95 & 31.1.96 1.5.95
1.11 .95 & 31.1.96 1.5.95
1.11.95 & 31.1.96 1.5.95
1.11.95 1 .11.95 & 31.1.96 1.5.95
1
1
1
1
1
1
1
.11
.1
.1
.1
.1
.1
.1
1
1
1
1
1
1
.95
.95
.95
.95
.95
.95
.95
1
1
1
1
1
1
1
.1
.1
.1
.1
.1
.1
.1
* Target date
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 349
ANNEX 3
PRESCRIBED SUBSTANCES
Release to air: Prescribed substances
Oxides of sulphur and other sulphur compounds
Oxides of nitrogen and other nitrogen compounds
Oxides of carbon
Organic compounds and partial oxidation products
Metals, metalloids and their compounds
Asbestos (suspended particulate matter and fibres), glass fibres and mineral
fibres
Halogens and their compounds
Phosphorus and its compounds
Particulate matter
Release to water: Prescribed substances
Mercury and its compounds
cadmium and its compounds
All isomers of hexachlorocyclohexane
All isomers of DDT
Pentachlorophenol and its compounds
Hexachlorobenzene
Hexachlorobutadiene
Aldrin
Dieldrin
Endrin
Polychlorinated Biphenyls
Dichlorvos
1,2-Dichloroethane
All isomers of Trichlorobenzene
Atrazine
Simazine
Tributyltin compounds
Triphenyltin compounds
Trifluralin
Fenitrothion
Azinphos-methyl
Malathion
Endosulfan
Release to land: Prescribed substances
Organic solvents
Azides
Halogens and their covalent compounds
Metal carbonyls
Organo-metallic compounds
Oxidising agents
Polychlorinated dibenzofuran and any congener thereof
Polychlorinated dibenzo-p-dioxin and any other congener thereof
Polyhalogenated biphenyls, terphenyls and naphthalenes
Phosphorus
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350 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Pesticides, that is to say, any chemical substance or preparation prepared
or used for destroying any pest, including those used for protecting plants
or wood or other plant products from harmful organisms; regulating the growth
of plants; giving protection against harmful or unwanted effects on water
systems, buildings or other structures, or on manufactured products; or
protecting animals against ectoparasites.
Alkali metals and their oxides and alkaline earth metals and their oxides.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 351
COMPLIANCE MONITORING IN POLAND: CURRENT STATE AND DEVELOPMENT
JERZY JENDROSKA
Research Group on Environmental Law, Institute of Law, Polish Academy of Sciences, Wroclaw
1 INTRODUCTION
Communist governments were notorious for their fallacious development policies and poor
environmental records. It is less known however, that - at least in Poland - environmental
problems were not caused by the absence of environmental laws, but first of all by the fact that
these laws were not enforced.
When the communist government collapsed in 1989, there were no doubts that a new
environmental policy was badly needed, and that this new policy, in order to be implemented,
required not only new laws, but first of all an effective enforcement, based on a comprehensive
system of monitoring compliance. A significant progress in this area was made in 1991, the
reform however is still far from being completed.(l)
Bearing in mind that sufficient organizational arrangements are a prerequisite for an
effective regulatory scheme, before describing more in detail the current state and perspectives of
monitoring compliance, it will be useful to present an overview of the organizational
arrangements, emphasising their shortcomings and the attempt to remedy these shortcomings
made in 1991.
2 ORGANIZATIONAL ARRANGEMENTS
2.1 The overall structure and its shortcomings before 1991
Responsibilities for monitoring compliance with environmental laws are divided between
public health and environmental authorities. As a public health authority acts the State Sanitary
Inspectorate.
The Inspectorate is a central agency, with the Chief Sanitary Inspector at the top, and
regional inspectors (at the voivodship level) as well as district inspectors (at the municipal or local
commune level). The number of the Inspectorate's employees totals several thousends. The
Inspectorate has a well established system of area monitoring and inspectors have broad
inspection and enforcement powers. In carrying out its activities, however, the Sanitary
Inspectorate is interested in compliance with environmental standards only insofar as the public
health or occupational safety and health issues are involved. Therefore, despite the fact that its
area monotoring data provide a valuable input to monitoring compliance, the role of the Sanitary
Inspectorate in environmental law enforcement is of secondary importance, as compared with the
role of environmental authorities. And here, the division of powers between environmental
authorities was a very controversial issue for years.
In the communist government's environmental regulatory programme, the most significant
authority and responsiblity for administering environmental laws resided with a governor (the chief
of the governmental administration in a voividship). Governors were made responsible not only for
issuing permits, setting individual allowable emmission and discharge levels, and collecting fees
for use of natural resources but also for monitoring compliance and enforcement. Governors, in
carrying out their functions as environmental authorities, were assisted by their environmental
officers, and their Environmental Survey and Monitoring Centres (commonly referred to as
OBiKS). Altogether, in 49 voivodhips, the number of environmental officers in 1989 totalled 1325,
whereas the number of OBiKSs1 employees totalled 2422.
The Environmental Protection Act of 1980 (EPA 1980) supplemented the framework of
environmental authorities with a central government's monitoring compliance agency: the State
Environmental Protection Inspectorate (commonly referred to as PIOS). The organizational
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352 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
structure of PIOS, as provided by the EPA 1980, consisted of the Headquarters and 6 Regional
Offices. PIOS was a relatively small agency (about 400 employees) reporting directly to the
Environment Minister. PIOS did not have any enforcement powers. The major shortcomings of
the above described organizational arrangements were: lack of clarity as to the roles and
responsibilities of various agencies involved in monitoring compliance and enforcement, and lack
of coordination of their efforts. They used an assortment of methods and procedures, which
prevented any comparison of results. There was no system of checking the calibration of
instruments, and no certification of laboratories. The agencies were understaffed and equipped
with absolute, manually operated measurement devices(2). Bearing in mind the size of regulated
community (more than 40.000 registered stationary sources of air pollution, about 3.000 industrial
plants discharging effluents directly to watercourses) , there is nothing surprising that inspections
were to no avail.
PIOS was meant to be an "environmental watchdog", that was however a watchdog
without teeth: it had neither sufficient tools to coordinate monitoring efforts nor any enforcement
powers. Polish law provided that only individuals could be held criminally liable, but prosecutions
against directors of polluting companies were rarely brought to courts by public prosecutors(S). As
an equivalent of criminal liability of legal persons, the EPA 1980 established special administrative
sanctions. Governors were empowered to halt activity endangering the environment and to
impose non-compliance fines. Governors however, being primarily responsible for the economic
development of their voivodship, were extremely reluctant to halt any economic activity and
limited themselves to imposing fines. Bearing in mind that non-compliance fines were very low
and offered a cheaper option than compliance, there is nothing surprising that environmental laws
were in practice unforceable.(4)
2.2 Improvements: the State Environmental Protection Act of 1991
The 1991 Act is an attempt to remedy the above described shortcomings by strehghtening
the role of PiOS. The Act gives PIOS enforcement powers previuosly carried out by governors
and provides it with the sufficient status and resources to cope with its new
responsibilities.
The 1991 Act incorporated OBiKSs to the structure of PIOS, which now consists of the
Headquarters and 49 branches at the voivodship ievel. The number of its employees totals 2.500.
Inspectors have the power to impose non-compliance fines, to halt activity endangering the
environment, and to ban the sale and import of raw materials, fuels, machinery and other
technical appliances and goods which fail to meet environmental requirements. No new facility or
activity which may cause harm to the environment, may start operation, until PIOS is notified and
satisfied with the application of mitigation measures (this powerful new tool has prooved itself
recently, when the new Warsaw Airport, an investment worth US$ 2 billion, having been formally
opened by the Prime Minister, was prevented from starting operation by a PIOS inspector). Apart
from enforcement powers and inspections, PIOS is responsible also for assessing the risk of.
preventing and combating the accidents (ecological disasters), as well as for management of the
nationwide environmental data system. To this end it has some coordination powers, as for
example: tocertify that laboratories apply good laboratory practice or to provide guidelines as to
the methods of measuring, sampling etc. All agencies involved in monitoring compliance are
bound to cooperate with PIOS by coordinating plans of inspections and exchanging information.
PIOS cooperates also with the police, customs officers and border officers.
3 FORMS OF COMPLIANCE MONITORING
3.1 Inspections
Inspections are conducted only by government inspectors. They may notify the facility prior
to inspection or arrive unannounced. Inspectors plan inspections, gather data in and/or around a
particular facility, record and report on their observations, and - if there is a direct danger to
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 353
human health or life, or direct and significant danger to the environment - have the right to issue
decisions as to preventing the risk, which are to be realised immediately.
Inspections may be routine (those usually planned on the monthly base) or "for cause"
(usually as a result of citizens' complaints, police reports or the request of a governor).
Inspections may also be either complex ones or single-media oriented. In case of the first ones,
usually there are 10-12 inspectors involved, and their task is to examine entire environmental
performance of a plant. In case of the latter ones, there are only 1-3 inspectors involved, focusing
on a single issue (for example: water management within a plant). The average capacity of a
PIOS's voivodship branch is 3-4 complex inspections or 20-30 single-media inspections.The
recent PIOS's policy favours complex inspections.
The inspector has the right to enter facilities (with experts or whoever else he needs), to
interview facilities' personnel, to have access to all files, documents and records, to observe
operations, and to take samples for analysis. The inspector has to provide the manager of
inspected facilities with his report. The manager has the right to introduce to the report his
comments or reservations.
The report is a basis either for issuing a decision as to applying some new mitigation
measures or for enforcement measures (non-compliance fines or halting harmful activity) to be
imposed by the chief of the respective voivodship branch of PIOS. It is worth mentioning that
PIOS is entitled to recover the costs of inspecting facilities if the inspection resulted in findings of
non-compliance.
3.2 Self-monitoring, recordkeeping and reporting by the regulated community
Self-monitoring, recordkeeping and reporting are required by regulations in relation to
water pollution, air pollution and storage of waste.
In case of self-monitoring and recordkeeping, the general regulatory requirements are
usually being translated to facility-specific requirements via permits. Only air pollution regulations
provide for specific requirements in certain cases (for example, a plant in which a stationary
source emits within an hour more than 12000 kg of S02 or 800 kg of dust, is bound to monitor
emmision from each emitor permanently). In case of reporting, the detailed requirements are
provided by the regulations themselves. Reporting is not related to permits but to a scheme
providing special fees for the use of natural resources (for use of water, for discharge effluents to
water, for air emmission and for storage of waste) (5). The regulations provide for detailed
requirements as to reports and set 31 of January as a deadline for producing an annual report. If
a plant fails to meet the deadline or requirements as to the report, the fee is charged upon
discretion and applied are fee rates of the day (this provision is very important because fee rates
are being increased usually every year).
3.3 Environmental auditing
The EPA 1980 authorises governors to require from managers of existing facilities to
provide an environmental impact assessment concerning their facilities. The assessment is to be
prepared by the expert indicated by the governor, but costs are to be borne by the manager of
facilities. In case of not providing the assessment within the fixed time, the governor may
commission an expert to prepare it on the expense of the manager of facilities at question.
Experts can be drawn only from the list of verified EIA experts, which is carried out by the
Environment Minister. The 1990 regulations on the EIA provides for detailed requirements as to
the content of ElAs concerning existing facilities.(6) Besides the requirements established for
project-related ElAs, ElAs concerning existing facilities should: 1) refer to information about the
state of the environment gathered prior to construction, and during operation of a given plant or
facilities, 2) take into account the quantitative data as to the water consumption and all kinds of
pollution, gathered during operation of a given plant or facilities, 3) estimate the present and
anticipated impacts on particular elements of the environment and on human health. In 1990 the
Environment Minister prepared a list of the top 80 industrial polluters in Poland, and requested
respective governors to require ElAs from their managers. These ElAs were not meant to serve
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354 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
primarily as enforcement tools, but to serve as foundations for establishing special pollution
reduction programmes, to implementing which they were obliged over the next three to five years.
The same scheme is being applied currently at the voividship level, where the top polluters for
given areas have been recognised (there are about 800 those locally significant polluters).
3.4 Citizen complaints
There are no special programmes that encourage citizen involvement in monitoring
compliance or help educate and train citizens to detect and report problems. Nevertheless, citizen
complaints are estimated to be a significant source of detecting violations (PIOS's inspections
resulting from citizen complaints are estimated about 100 a year). Very important role play here
members of non-professional guards (Nature Protection Guard and Angling Guard) which are the
"mailed fists" of nature conservation NGOs (7). Though they are trained to assist governemtal
agencies onlyin enforcing nature conservation laws, they often reports also on non-compliance
with pollution standards.
3.5 Area monitoring
Area monitoring does not use as yet sophisticated methods and is based on stationary
stations of ambient monitoring. Well established networks of such monitoring stations are
maintained by the State Sanitary Inspectorate and hydrological and meteorological services. PIOS
only recently is trying to supplement these network with some more sophisticated monitoring
techniques. The above mentioned national environmental data base system (commonly refered to
as Monitoring System) is being created now by PIOS with a significant foreign financial
assistance.
4 PERSPECTIVES
The improvement in monitoring compliance, though significant, does not seem to be
sufficient. First of all, the existing regulatory scheme has to be redesigned in relation to
environmental auditing. Under the existing scheme, companies may reasonably argue that
monitoring compliance is that what they are paying taxes for, and as long as their non-compliance
has been proved, they should not be made responsible for the costs of performing audits.
Moreover, governors designate auditors, but that is a company which pays additional costs if an
EIA has to be corrected.
The new law must choose between two options: either environmental auditing treated as
an element of building credibility of companies or treated as an element of enforcement. In the
first case new environmental auditing scheme in Poland would be similar to the eco-auditing
scheme currently being considered by the EC. There is still to be decided whether this kind of
scheme should be voluntarily or obligatory, but there are no doubts that companies should be
free to choose auditors (perhaps from the list of veryfied auditors) and that should be some
incentives for building credibility in this form (perhaps an eco-label).
If, however, auditing is to serve as an element of enforcement, there is no doubt that
companies should not be made paid for audits and be responsible for the mistakes done by
auditors.
It must be mentioned.that in course of law-drafting works, two new forms of monitoring
compliance are being considered.
The first form is aiming to get the public involved in monitoring compliance by redesigning
the institution of public environmental wardens provided by the EPA 1980. In the new design,
wardens, being nominated from the well-qualified and responsible citizens, would have almost the
same rights to inspect facilities as PIOS inspectors have. Wardens would be assisting PIOS in
monitoring compliance and have the right to institute enforcement proceedings similar to public
prosecutor powers.
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The second form being considered is reforming decision structures within corporations.
The aim is to link (following German (8) and Japanese (9) experiences) corporate's environmental
control with governmental control and to have a kind of publicised environmental control within
corporations. To this end, the top polluters (listed by the Environment Minister) would be obliged
to establish a separate "environmental service" with an environmental director at board of
directors level. The environmentai director would have some statutory duties and powers within
the company. There should be also defined qualifications of those legally charged with
environmental responsibilities (for example: with self-monitoring, recordkeeping or reporting) in the
companies listed as top polluters, and a special procedure in which their nomination or dismissal
would need to be consulted with PIOS.
REFERENCES
1 Jendroska, J., Environmental Law in Poland in a Transition Period: Recent Development of
Legislation, Tijdschrift voor Millieu & Recht, in press.
2 Nowicki, M., Environment in Poland. Issues and Solutions, Ministry of Environmental
Protection, Natural Resources and Forestry, Warsaw, 1992.
3 Radecki, W. and Rotko, J., Entwicklung des Natur- und Umweltschutzrechts in Mittel- und
Osteuropa, Nomos Verlag, Baden-Baden, 1991.
4 Jendroska, J., Integrated Pollution Prevention Through Licensing Procedures in Poland,
submitted for publication.
5 Jendroska, J. and Radecki, W., in: Z. Bochniarz and R. Bolan (Eds.), Designing Institutions
for Sustainable Development: A New Challenge for Poland, Hubert H. Humphrey Institute,
Minneapolis, 1991, pp. 57-76.
6 Jendroska, J., State of Environmental Law: Poland, submitted for publication.
7 Jendroska, J. and Nowacki, K. in: M. Fuhr and G. Roller (Eds.), Participation and Litigation
Rights of Environmental Associations in Europe, Peter Lang, Frankfurt am Main-Bern-New
York-Paris, 1991, pp. 39-56.
8 Rehbinder. E., Jahrbuch fur Rechtssoziologie und Rechtstheorie, 12(1988)
9 Bothe, M., Auslandisches Umweltrecht IV. Umweltschutz in Japan, Erich Schmidt Verlag,
Berlin, 1975, pp. 184-189.
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ENFORCEMENT OF THE ENVIRONMENTAL POLICY IN THE FIELD OF THE MONTREAL
PROTOCOL IN THE CSFR
MIROSLAV KOTASKA, VLADIMJR REHACEK
1 INTRODUCTION
Environmental questions currently form one of the most important internal as well as
international political problems calling for an increased attention of any state.
One of the most important problems of the environmental protection is the protection of the
atmosphere. Adhering to undertakings of the Montreal Protocol concerning substances damaging
the ozone layer and to its London refinement presents a basis for minimizing damages resulting
from the reduction of the thickness of the ozone layer.
Already in the period of the directive political and economic regime, Czechoslovakia as a
relatively advanced industrial country with its own production and consumption of compounds
damaging the ozon layer, followed the development concerning the Vienna Treaty and Montreal
Protocol and implemented certain, though if limited, porvisions necessary to prevent further
damages to the ozone layer.
It is for example possible to remind that already since 1981, in Czechoslovakia, the use of
carbon dioxide as a driving gas for aerosol products has been started. Mechanical spraying
pumps have also been developed and patented in Czechoslovakia on the basis of own research
results and their production has been started. Thus, the concumption of Freons in Czechoslovakia
did not exceed 0,5 kg per citizen annually up to the end of the 1980's.
A specialized working site of the Czech Hydrometeorological Institute has also paricipated
for 30 years in the observastion and research of the ozone layer within the scope of the
monitoring project of the world Meteorological Organization (WMO). The solar and ozone
observatory of this Institute in Hradec Kralove is a part of the global monitoring network and it
performs daily measurements of the total ozone amounts in the atmosphere.
All these activities, however, occurred without a deeper co-ordination by the state policy.
The attempts to co-ordinate these approaches can be observed only after 1987 in
connection with the Vienna Treaty and Montreal Proctocol.
From the standpoint of the central planning system, an apprehesion was, however,
encountered that by signing these documents, guaranties will originate, which could be hardly
fulfilled by the central authorities. Thus, the works carried out for providing the Czechoslovak
approach to the problems mentioned, were particularly aimed at the investigation of economic
results.
A complex technical and economic analysis was elaborated, which indicated impacts
particularly in the foreign currency and investment regions. The possibility of adhering to
requirements of the Montreal Protocol was shown to be quite realistic, of course with high
requirements for centrally assigned financial means for investments. On the other hand, the
positive approach to the Montreal Protocol was shown to be more advantagenous than accepting
of the hazard of negative economic impacts resulting from disregarding it.
Together with the approach to the Protocol, requirements occurred for introducing a
number of subsequent provisions of the co-ordination, organization, research and production
nature in the field of the state sphere as well as in particular organizations, since without their
implementation, the production capacity of a great variety of goods containing substances
damaging the ozone layer would be reduced by at least several milliards of Kcs annually. The
state authorities, however, ever hesitated to implement the approach to the Montreal Protocol.
Only the change of the political situation in the CSFR in the November 1989 essentially accelera-
ted the attempts for the international cooperation in the field of ecology and also facilitated more
rapid accepting of a decision concerning the approach to the Montreal Protocol.
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2 THE ORGANIZATION OF FULFILLING THE VIENNA TREATY AND MONTREAL
PROTOCOL
Even under new economic conditions, the importance and need of the role of the state in
solving the regulation of the production and comsumption of substances damaging the ozone
layer was shown.
In the CSFR. in accordance with the valid Constitution and Constitutional Laws, the
formulation of the state ecological policy from the organinzation, legislative and international-law
standpoints falls into the competence of the Federal Committee for Environment.
This central authority currently replaces the Federal Ministry of Environment from the
standpoint of the international law and it organizes the fulfillment of tasks resulting for the CSFR
from the internationally accepted treaties and documents. This particulary means the determinati-
on of further procedures in the relevant region of the time schedule of preliminary works,
treatment of regulation schematic diagrams with respect to specific features of particular
consumers of Freons in the CSFR, and preparation of legislative provisions with a possible
consideration of legislative provisions with a possible consideration of economic tools for adhering
to this international undertaking.
In the preparation of relevant provisions, the Federal Committee for Environment tightly
cooperates with Republic authorities for environment - Ministry of Environment of the Czech
Republic and Slovak Commission for Environment.
3 THE PRODUCTION AND CONSUMPTION OF SUBSTANCES DAMAGING THE OZONE
LAYER IN THE CSFR
The CSFR does not belong to the group of the most important producers and consumers
throughout the world: in spite of this, the production and consumption of compounds damaging
the ozone layer is of importance.
The production of regulated Freons (types 11, 12 and 113) was of about 2 000 ton
annually in 1986 to 1991, that of tetrachioromethane was of about 5 000 ton annually.
The consumption of Freons in the initial year of the regulation (1986) was about 7 000
ton/year and its portion of about 70% was covered by the import. Halones (20 to 50 ton/year)
and methylchloroform (of about 250 t/year) are imported to cover the complete volume of their
consumption.
The distribution of the consumption is similar to that in the other industrially advanced
countries (driving gases for aerosols, coolants, blowing agents, cleaning means and solvents).
4 THE APPROACH TO PROVIDING THE MONTREAL PROTOCOL IN THE REGION OF
THE STATE SPHERE
After joining the Montreal Protocol, a problem was encountered of implementing provisions
necessary for fulfilling duties resulting from this document.
We believe that there is no uniform method for a further continuation in the signatory
countries for providing the fulfillment of the Montreal Protocol. The provisions adopted should
concern the economic as well as state sphere.
In the economic sphere, the producers, users and importers of the substances damaging
the ozone layer will be forced to face technical problems and simultaneously to provide the
economically most advantageous solution. In the market system, this duty will be imposed onto
the organizations themeselves, in spite of the fact that a possibility of state subventions cannot be
precluded in certain cases.
The task of the state authorities should particularly be the formation of legislative
provisions, of the system for following and checking the undertakings accepted, the elaboration of
basic data within the scope of the international co-operation, the mediation of the technical help
and the assistance during its organization, the control of fulfilling undertakings, etc.
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The policy of the state authoristies must be, of course, in argreement with the activity in
the economic sphere.
We have primarily encoutered the requirement for the system approach, which could be
employed to obtain a program including basic concepts considering the method of fulfilling the
duties imposed by the Montreal Protocol.
The basic task of the system approach include the processing of the following items:
- system of the program management (managing and executive authority)
- legislative provisions
- economic tools supporting the regulation
- regulation plan
- methods of providing and checking the settled regulation (in connection to the legislative
accepted)
- proposals of replacement for the regulated substances
- method of keeping records and balances of the production, consumption and foreign trade
with the regulated substances ( montoring system)
- project of the collection, recovery and recycling of used coolants
- program for the information and involvement of the public in favour of replacing the
substances damaging the ozone layer.
Particular points are stepwise being implemented in accordance with this concept.
A top controlling authority was established as an advisory board of the Federal Committee
for Environment including representatives of the Committee and of further Ministries interested in
this topic (particularly Republic Ministries of environment, industry, agriculture and economy),
producers and big consumers, which is supposed to co-ordinate the whole problem in direction of
the domestic as well as foreign economic sphere. It assigns relvant tasks, considers the
provisions proposed and provides methodic guiding of the exucutive authorities.
The focus of interest is in the territory of the Czech Republic, where all the production and
of about 80 to 85% of the Czechoslavak consumption are concentrated.
As the executive authority, we consider as purposeful establishing of two national centres
providing the recording, balancing, regulating, controlling and informational activities.
Besides this, for solving the complicated replacement of Freones and halones in the
cooling and anti-fire technique, we considered a proposal of establishing expert groups including
specialists working in these branches as reasonable.
The group of specialists in the cooling techique also deals with the problem of the
collection of coolants, of their recovery and recycling (including training of service technicians,
issuing of licences for this activity, etc.).
We assume the following problems to be treated by the executive authority:
f. Following of the production, consumption, import and export of compounds damaging the
ozone layer.
2. Processing or possibly control of these data, processing of summarizing balances for
domestic central as well as foreign authorities (Federal Committee for Environment,
UNEP).
3. A cooperation in forming the regulation plan in accordance with the London Supplement to
the Montreal Protocol.
4. The informational activity concerning newly accepted undertakings and the supplement to
the Montreal Protocol.
5. Following of replacement for the compounds damaging the ozone layer and further data
concerning this problem from foreign data bases.
6. A program for informing the public about the danger resulting from the damage to the
ozone layer and about provisions for avoiding the daily use of substances damaging this
layer.
When treating the legislative, we considered different variants of approaches. Last, with
respect to the association of the CSFR to the EC countries it was shown that the Czechoslovak
legislative tools should be obligatorily prepared in agreement with the EC countries. At the end of
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1991 a proposal of the Law concerning compounds damaging the ozone layer of the Earth was
prepared., which was based on the COUNCIL REGULATION (EEC) No. 594/91 dated 4. 3.1991.
The regulation in the CSFR accepts the term as well as volume restrictions of compounds
damaging the ozone layer, identical with those in the EC countries.
A regulation plan has also been elaborated with respect to these conditions. First, the
regulation of the production and use of aerosol products is included, after that the regulation of
expanding agents for producing the expanded materials, of cleaning products and solvents and
last, the replacement of coolants and limited use of regulated compounds for medical purposes is
presented.
There was a considerable discussion concerning the methods of implementing the
regulation. Possibilties were considered either of introducing a certain quota system for particular
consumers or of implementing the regulation solely on the basis of legislative provisions and
related Regulations.
After taking into account all the advantages and disadvantages with respect to the existing
development of the consumption of substances damaging the ozone layer under the new
economic conditons in the CSFR, we achieved a conclusion that the regulation solely with the
help of suitable legislative provisions will be sufficient. Thus, the method is similar to those
employed in the EC countries - see e.g. a Regulation concerning the prohibition of using certain
halogenated hydrocarbons damaging the ozone layer, dated 6.5.1991, issued in the FRG.
We do not deny the possibility that the method used e.g. in the USA, co-ordinated by the
Environmental Protection Agency (EPA), where production and consumption permits are issued
for the predetermined amounts, could also be used in our country. It would be, however,
impossible to control particular directions of tie use in the same manner due to unreadiness of
our refrigeration industry to introduce a replacing coolant, so that resulting regalatiom scheme
would be the same as in the first case. It would be, however, achieved in a much more complica-
ted manner.
Even in the use of procedural regulations, it will be necessary to consider possible
exceptions, e.g. in the case of sprays for asthmatic patients.
The following and control of the obligatory regulation of compounds damaging the ozone
layer is anchored in the legislative. The producers, importers and consumers are due to keep
relevant records and to submit relevant reports.
These reports are accumulated and evaluated by the executive authority, which elaborates
on the basis of them summarizing balances for domestic central authorities and for the UNEP
secretariate in Nairobi.
The data aubout the import have been yet obtained in the monopolistic importer Chemapol
joint-stock Co.
With the degradation of the central management and with making possible the foreign
trade activity for many furhter subjects it will be necessary to use custom authorities similarly as
they are used in abroad. This approach was partially also recommended at the session of
signatory countries of the Montreal Protocol in London in June 1990, where a conclusion was
approved that the compounds damaging the ozone layer should occur in the statistical nomencla-
ture as soon as possible.
Thus, the regulated substances should be included into the custom tariff of rates in a
detailed classification according to Attachments to the Montreal Protocol.
5 A RECAPITULATION OF THE PROBLEM AND EXPERIENCE WITH INTRODUCING
THE MONTREAL PROTOCOL IN PRACTICE
On Juni 21, 1990, the Government of the CSFR has approved the Montreal Protocol and
since Dec 30, 1990, the CSFR officially became a party of this proctocol. On June 4, 1992, the
Federal Government approved the Supplement to the Montreal Protocol, accepted in London in
June 1990 and appointed the minister of the CSFR Government J. Vavrousek to implement
provisions connected with accepting the changes and the Supplement to the Montreal Protocol, to
elaborate a program of reducing the use of compounds damaging the ozone layer and to present
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reports to the Government about the implementation of this program. In addition to the above
mentioned program, a proposal of the federal legislative was also prepared, which already
considered new regulations of EC countries concerning compounds damaging the ozone layer
issued in 1981 with respect to the association of the CSFR to EC countries.
During the elaboration of principles of the state policy concerning the Montreal Protocol,
requirements were manifested for a cooperation and acquiring of experience in advanced
signatory countries.
For this purpose, thanks to the Netherlands, which was willing to help very much, a project
of the Czechoslovak-Holland cooperation wa established. Within the scope of this project, the
Czechoslovak concept of the CSFR approach was conculted and the experience with introducing
the Montreal Protocol in practice in different branches of the economy as well as in the state
sphere was acquired.
The first practical experience with the approach of Czechoslovak organizations interested
in fulfilling the Montreal Protocol can be considered as positive.
The enterprises altogether undrestand the need of the regulation of ecologically harmful
substances and they prepare reserve solutions within the range of their possibilities. This is
hindered by insufficient investment financial means, which were formerly assigned for similar
cases by central state authorities, it is most simple to replace expanding agents and cleaning
products, where the technology solution is not connected with high investment requirements and
is being performed in a cooperation with a foreign supplier of the relevant technology. There is
also a positive effect of the privatization process, during which the state enterprises change their
owners in favour of the foreign particpation.
The replacement in the refrigeration industry will be complicated, since the introduction of
new coolants is connected with high investments. The solution should be obviously also found in
a cooperation with foreign partners, possibly also with granting a credit.
Nevertheless, with the beginning of the transition to the new economic conditions,
particularly since 1991, in the CSFR, there is a strong decrease of the consumption of com-
pounds damaging the ozone layer. As an illustation, it is possible to mention that in 1991, the
consumption of the regulated Freons dropped to 42% of the initial value in 1986.
This was mostly due to the restructuralization of the production and market problems
connected with the economic stagnation. However, thanks to an increased openness of the
Czechoslovak economy to abroad, the Czechoslovak enterprises have already started to actively
implement substitution methods, as e.g. the production of aerosol products with replacing
propellents (propane-butane, air, etc.).
It is considered that the state policy in the regulation of substances damaging the ozone
layer (as indicated in preceding chapters) will be completely implemented since the beginning of
1993. It will undoubtedly contribute to providing duties imposed by the Montreal Protocol.
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DEVELOPING AUTHORITIES AND LEGAL ENFORCEMENT CAPABILITIES TO RESPOND TO
ENVIRONMENTAL VIOLATIONS
VICKI A. O'MEARA
Acting Assistant Attorney General, Department of Justice, Environment and Natural Resources
Division, 10th & Constitution Ave., N.W., Room 2143, Washington, D.C. 20530 (U.S.A.)
SUMMARY
This paper provides an overview of over twenty years of U.S. experience in designing
effective authorities to enforce our environmental laws and policies. The effort draws on our
legislative, executive and judicial branches. Section 2 surveys the roles of federal, state and
citizen enforcers. Section 3 looks to various legislative authorities underlying our enforcement
program. Section 4 considers specific executive branch enforcement policies and procedures,
particularly as they relate to proceedings in our courts. Section 5 concludes with some ways the
U.S. has devised to ease the enforcement burden.
1 INTRODUCTION
Over twenty years of U.S. experience have shown that two elements are vital to ensuring
a clean environment: (1) a sound and comprehensive set of environmental laws and standards;
and (2) swift and certain enforcement for those choosing to ignore those laws and regulations.
Generally, U.S. enforcement is designed to correct non-compliance, remove the profit
reaped by the illegal pollution, impose additional penalties -- including the possibility of imprison-
ment - to deter more violations by the actual polluter and others in the regulated community, and
to redress the actual damage done. In the recent past, enforcement of U.S. laws has resulted in
billions of dollars in cleanups and new pollution control equipment, and tens of millions of dollars
in civil and criminal penalties.
Many nations, like the U.S., have enacted strong environmental laws. The U.S., however,
may use different means of enforcing those laws than other countries. In Mexico, for example,
with an extensive body of environmental law and regulation, enforcement is almost exclusively the
province of the executive branch. Rarely does the judicial branch of the Mexican government ever
enter the enforcement picture.
In the U.S., by contrast, while relying heavily on administrative authorities ourselves, the
use of the judicial branch by the executive to enforce environmental laws is at the heart of our
enforcement system and philosophy. As we enter our third decade of enforcement, the lesson in
the U.S. is clearer than ever: bringing civil and criminal prosecutions against environmental
offenders ~ and the threat of prosecution for those tempted to violate the law ~ is the surest way
to make the regulated community adhere to environmental standards and employ responsible
environmental practices.
2 OVERVIEW OF U.S. ENFORCEMENT
2.1 Powers of the Federal Government
Enforcement by the federal government of environmental laws and standards may take
several forms: (1) administrative (handled within the executive branch agency); (2) civil; and (3)
criminal. The latter two are pursued in federal courts by the Department of Justice on behalf of
federal agencies, primarily EPA.
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2.1.1 Resource Specific Statutes
Federal enforcement is governed by federal taw, and in the U.S. system, unlike that of
many countries, federal environmental law is usually broken down according to the media or
resources affected. Unlike many nations, we do not have a single overarching environmental law.
For example, we have enacted the Resource Conservation and Recovery Act to regulate trans-
port, treatment, storage and disposal of hazardous waste. The Clean Air Act and Clean Water Act
regulate discharges into those media.
Our Superfund law, which forces cleanup of abandoned hazardous waste sites, and holds
private parties liable for cleanup costs and damages to natural resources, takes enforcement a
step beyond other laws. Building on principles of common law tort, Superfund provides for strict
joint and several liability. Superfund also provides for recovery of triple damages if responsible
parties refuse to clean up after being ordered to. Thus, Superfund's enforcement clout is a
powerful deterrent to polluters.
2.2 Powers of the States
Federal enforcement authorities often work side-by-side with State authorities. Many
federal environmental laws (e.g., Clean Water Act, Clean Air Act) encourage States to develop
their own regulatory and enforcement programs to parallel federal law. If States do so, and their
programs are approved by EPA because they are consistent with national pollution standards and
policies, States may be given "delegated" authority to issue permits and take enforcement
actions. Moreover, States are free to enact environmental laws more stringent than federal laws.
2.2.1 Scope of State Enforcement
In practice, States with "delegated" authority issue the vast majority of all permits and
bring the largest number of enforcement actions against violators.
Depending on the state legislation, state enforcers may be able to impose administrative
penalty orders for violations, and bring judicial actions for civil, and sometimes criminal, penalties
in state courts. In recent years, State authorities have been particularly active in enforcing their
laws against illegal dischargers of toxic substances.
2.3 Role of Private Citizens in Enforcement
An additional piece in the U.S. enforcement picture is the role of private citizens, including
groups or organizations. In some circumstances, and consistent with U.S. constitutional "standing"
principles, many federal environmental laws give private citizens the right to go to court and seek
to enforce those laws against violators. Depending on the law, citizens are entitled to seek
injunctive relief or civil penalties, payable to the U.S. Treasury.
2.3.1 Relationship of Citizen to Federal Enforcement
When a citizen sues a private violator, and the case concludes through a settlement (not a
formal judicial determination), the terms of the settlement are not binding on the federal govern-
ment. We are still free to bring our own enforcement action on the same violation if we believe
the settlement in the citizen's case to be inadequate.
2.3.2 Review of Citizen Enforcement by Federal Government
Under most environmental laws which permit suits by citizens, the federal government
must receive notice of the suit 60 days before the citizen can file it in court. This allows federal
authorities the opportunity, if they choose, to bring the case instead of the citizen. Moreover, if the
citizen does proceed with the case because federal authorities have not filed their own action,
federal authorities may "intervene" in (i.e., join) the citizen suit.
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Lastly, if federal authorities do not bring the case, and do not intervene in it, they are still
entitled to review any proposed final settlement of the case. If they believe that the proposed
settlement is not adequate, they will try to persuade the parties to change the terms of the
settlement. If this fails, federal authorities may try to persuade the court not to accept the
proposed settlement.
At each step along the way, our citizen suit laws are designed with a firm purpose in mind:
to allow the federal government to ensure that all environmental enforcement - even when a
private citizen, not government, is the enforcer - be conducted in as uniform and consistent a
manner as possible.
3 U.S. ENVIRONMENTAL ENFORCEMENT PRINCIPLES AND CAPABILITIES
3.1 Administrative, Civii or Criminal
To most Americans, environmental violations are not all equal. Measured according to
such standards as harm to the environment or to human health, some are relatively minor. This
public perception of a sliding scale of environmental violations - least to most severe -- has
prompted our Congress, typically with the support of the executive branch, to design laws with
levels of punishment corresponding to the magnitude of the violation.
Beyond linking the severity of the punishment to the severity of the violation, practical
reasons also underlie the sliding scale approach in U.S. law. If administrative sanctions were not
available to tackle the vast majority of violations, and our federal courts and federal enforcers
were pressed to handle all violations, large or small, the burden on the courts and the govern-
ment would be immense, and beyond our present capabilities.
Generally, on the bottom end of the scale, the least serious offenses are subject to
administrative sanctions only. In the middle are civil judicial sanctions. On the top end, offenses
carrying the greatest risks to society and which society deems the most worthy of harsh punish-
ment, such as dangerous illegal acts undertaken knowingly and willfully, are prosecuted as
crimes. For individuals, criminal prosecution means one of the stiffest penalties in the U.S. legal
system - the specter of imprisonment. In practice, the vast majority of enforcement actions are
administrative. Criminal prosecutions represent the fewest.
3.1.1 Who May be Prosecuted
Not only individuals and companies, including owners and operators of facilities, may be
charged with violations of environmental law. Municipalities and other political subdivisions are
also subject to enforcement actions.
3.2 Range of Enforcement Actions
Administrative, civil and criminal actions usually carry the following range of sanctions:
o Administrative: orders to comply with law by a specific date which are enforceable in court,
and usually the possibility of monetary penalties (law usually sets cap on maximum
penalty) (1);
o Civil: monetary penalties (with no maximum level set by law and up to $25,000 per day for
each violation), injunctive relief (e.g., orders to comply with environmental law, cease
operations), and litigation costs;
o Criminal: monetary penalties (no maximum level set by law and up to $25,000 per day of
violation) and, for individuals, imprisonment.
3.2.1 How Civil Penalties are Calculated
The amount of civil monetary penalties a court may impose is usually designed by law
(e.g., Clean Water Act, 33 U.S.C. 1319(d)) to reflect several factors:
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o Seriousness of the violations;
o Economic benefit resulting from the violation;
o Prior history of such violations;
o Good-faith efforts of defendant to comply with law;
o Economic impact of penalty on the defendant;
o "Such other matters as justice may require".
Executive branch policy statements may also be employed to help determine the penalty
amount.
3.2.2 Other Forms of Civil Relief
Beyond monetary penalties, a remedy sometimes available administratively, or under the
court's power to issue injunctions, is a so-called "environmental project." Environmental projects
are becoming increasingly used to redress environmental violations, and can be ordered in cases
brought by the government and in cases brought by private citizens. Generally, there are five
categories of projects: pollution prevention and reduction, environmental audits and restoration,
and enforcement related public awareness projects. (2) and (3}
An environmental project is an undertaking by the violator to either restore the resource it
injured or destroyed, or to preserve the resource from such effects in the future. In any event, a
critical requirement is that there be a "nexus," or connection, between the violation and the
project. This generally means, at a minimum, two things: the medium polluted must be the
medium restored or preserved by the environmental project; and the project must benefit
resources affected by the pollution. The following hypothetical case helps illustrate the point:
o Suppose a company admits to discharging illegal amounts of pollution into the
headwaters of a river, violating the Clean Water Act. While settlement of that case
should entail a substantial monetary penalty to the U.S. Treasury, U.S. law and
practice also might permit the company to agree to fund an "environmental project"
which replaces fish stocks killed by the discharges. Or, the company might be
permitted to buy and preserve wetlands adjoining the river which are downstream
of the discharges and were undoubtedly polluted by the discharges. Both environ-
mental projects appear to have a "nexus" to the illegal discharges.
3.2.3 How Criminal Penalties are Calculated
The amount of criminal monetary penalties a court may impose is usually designed by law
(e.g., Clean Water Act, 33 U.S.C. 1319(c)) to reflect several factors:
o Whether the violation was "negligent" or "knowing" (defendant subject to $25,000 penalty
per day for "negligent" violations, and $50,000 penalty per day for "knowing" violations);
o Whether the violation "knowingly" placed another person "in imminent danger of death or
serious bodily injury" (defendant subject to $250,000 penalty per day);
o Guidelines of the U.S. Sentencing Commission.
3.2.4 Other Forms of Criminal Relief
Our criminal laws contain a rough equivalent to civil "environmental projects." Under the
principle of "restitution," courts may, as a condition of probation, require that criminals restore the
fruits of their crimes. This means that, besides being subject to a monetary penalty and possible
imprisonment, the criminal must, as a condition of probation, make restitution for the offense.
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3.3 Whether to Prosecute Viotator Civilly or Criminally
Civil charges are far more common than criminal charges. For the government to bring
criminal charges, compelling circumstances must be present. Among the factors we consider
when contemplating bringing criminal charges are the:
o Nature and extent of the harm, or threat of harm, to human health or the environment. The
more serious the harm, the more likely criminal prosecution will be justified;
o Violator's history of compliance with the law. A long history of violations may suggest the
need for criminal prosecution;
o Violator's degree of cooperation with regulators and law enforcement officials, including full
and prompt disclosure of violations and steps taking corrective action;
o Impact of the conduct on our regulatory program. Have records been destroyed or
falsified? Since the integrity of our regulatory scheme is heavily dependent on accurate
and timely reporting, we take very seriously any reporting violations that undermine our
regulatory scheme;
o Deterrent value of prosecution. How likely is it that others in the regulated community will
be motivated by learning of this prosecution to stay within the law? Given limited govern-
ment resources to police environmental crime, deterrence is always a major consideration.
3.4 Prosecutions of Corporate Officials
Many U.S. environmental laws allow for prosecution of "responsible corporate officers."
This means that if a high-level company official knew about dangerous conditions, or deliberately
closed his or her eyes to such knowledge, and consciously decided to do nothing in his or her
power to remove or avoid the dangerous conditions, the official may be subject to criminal
prosecution.
3.5 Natural Resource Damage Claims
When it is air, land, water or wildlife that is injured, and that resource or resources belong
not to a particular person, but to the public as a whole, traditional civil enforcement methods may
fall short. For one thing, exactly who can bring a civil lawsuit for such broad and diffuse damage?
For another, how can a price tag be put on, say, the myriad ramifications of a large
oil spill? U.S. law has designed a way to deal with large scale environmental damage, while still
preserving the twin objectives of all our enforcement - compensation and deterrence. This is
done through natural resource damage claims. Under several of our environmental statutes,
natural resource damage claims work as follows;
o The government (national, state or Indian tribe) is made a trustee on behalf of the public.
The government then brings an action, for example, against the owner of the ship which
spilled large amounts of oil into a bay. When the government recovers funds as a result of
the natural resource damage claim, it spends the funds to restore or rehabilitate the
injured land, water and wildlife resources.
o As appealing as natural resource damage claims are to address episodes of massive
pollution, they do present federal enforcers with considerable challenges. Measuring and
assessing environmental damage can be enormously complex. Giving a dollar value to a
single dead bird after an oil spill is difficult, much less multiplying this task by hundreds or
thousands of times for all affected fish and wildlife species. Add to this task the difficulty of
assigning values to water or land, and some idea is had of the challenges facing the
government trustee seeking natural resource damages.
3.6 Parallel Civil and Criminal Proceedings
Many U.S. laws authorize both civil and criminal enforcement for the same illegal conduct.
This poses potential problems for federal enforcers. If two prosecutions, civil and criminal, go
forward simultaneously, investigators and attorneys may begin overlapping one another and
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undermining the other case. Therefore, enforcement officials must be careful to avoid duplicative
enforcement. Several years ago, EPA and the Department of Justice fashioned policies to deal
with such circumstances.
Generally, when both civil and criminal prosecutions are possible for a single pollution
incident, a criminal proceeding should be brought and resolved before a civil action. In part, giving
priority to the criminal case reflects the fact that criminal penalties are more severe than civil
penalties, and violators should face these severe penalties as quickly as possible. However, if
danger to public health or the environment is imminent, needing speedy corrective action, a civil
proceeding to bring "injunctive" relief may precede the criminal action.
4 STRUCTURE AND PROCEDURES OF U.S. JUDICIAL ENFORCEMENT PROGRAM
4.1 Role of Department of Justice
By federal law, the Department of Justice is the litigating arm of the executive branch of
government. Department attorneys thus represent federal agencies in court. Most judicial
enforcement of our environmental laws, civil and criminal, is handled by the some 300 attorneys
in the Department's Environment and Natural Resources Division, headquartered in Washington,
D.C. The Department's ninety-four U.S. Attorney's Offices throughout the nation also enforce
environmental laws for violations (particularly criminal ones) within the jurisdiction of the individual
Office. When the case is handled by a U.S. Attorney's Office, that Office coordinates its litigation
decisions with Environment Division officials in Washington. In this way, we ensure as uniform
and consistent an application of environmental laws as possible.
4.2 Relationship of Department of Justice with other Agencies
The critical task of conducting the initial investigation and fact-finding necessary to bring
the case is handled by the Department's "client" agencies. These agencies possess the technical
expertise to gather evidence and undertake often sophisticated analyses necessary to assess
whether environmental violations have occurred. The primary client agency of the Department of
Justice on environmental matters is EPA. (4)
Because of the close working relationship between EPA and the Department of Justice,
we hold monthly high-level meetings which track the progress of cases, confer on resources and
case loads and discuss other policy matters.
When EPA has completed an investigation, and documented environmental violations it
believes are serious enough to warrant prosecution in court, (not merely through EPA's own
administrative powers), it sends a "referral package," containing all necessary factual information,
evidence, proposed case strategy and settlement terms, and its recommendation for prosecuting
the case, to the Environment Division of the Department of Justice or the U.S. Attorney's Office.
In FY 1991, EPA referred 393 civil judicial cases and 81 criminal cases to the Department of
Justice. (During that same period, EPA took 3,925 administrative enforcement actions). (5)
4.3 Considerations for Bringing Judicial Enforcement Actions
Department of Justice attorneys review the referral package from EPA. Attorneys examine
the referral package with two main considerations in mind: (1) whether the facts provided
constitute a violation of law; (2) whether, even if the facts provided might technically constitute a
violation of law, Department policies or other considerations militate against bringing the case, or
against bringing it on the grounds recommended by EPA. A hypothetical example illustrates the
point:
o The Clean Water Act generally requires that anyone wishing to fill wetlands, such as a
swamp, obtain a federal permit before doing so. EPA investigators have learned that a real
estate development company has filled in four acres of year-round swamp - a wetland -
on its property. EPA has also uncovered many additional facts. The company president
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knew that a permit was required. He had in fact approached federal officials, but was
angry to learn that the permit process would take many months. The president wanted to
fill immediately in order to turn the quickest profit. The company also knew, EPA found,
that its swamp had particularly valuable ecological values. Company officials had been told
by their employees that it was the only remaining swamp in many square miles. Numerous
species of migratory birds used the swamp to nest and feed, and the swamp was also vital
to help purify the drinking water of nearby residents. Knowing ail this, EPA found, the
company nevertheless proceeded to fill the swamp to build a parking garage.
o The referral package describing such facts to the Department of Justice would appear to
present a good case for prosecution. The case could be civil or, given the apparent open
and willful disregard for the law, perhaps even criminal. The land was protected wetland
under the Clean Water Act, a permit had not been sought, the land had unusually valuable
ecological characteristics and the company openly flouted the law. If Department attorneys
were satisfied that such facts would be persuasive to a jury and judge in the judicial district
where the swamp was located, and that witnesses, documentary and technical evidence
could present a convincing case, the Department might well take the case to court.
o On the other hand, consider one or more somewhat different facts. The swamp was not
under water more than a few months each year. The judicial district in which the swamp is
located has in the past been a hostile forum to such government actions. In three such
earlier cases, either judges or juries found the charged landowner not liable. Mindful of
such circumstances, and given the already high demands on Department resources, the
Department might decide that its enforcement priorities should be directed to other
environmental violations. Thus, while the referral package might possibly establish a
violation of the Clean Water Act, other strong considerations might convince the Depart-
ment to decline to bring this case in court.
4.4 General Enforcement Policies
4.4.1 Publicity
When one facility learns that another facility in the same industry or in the same general
area has been prosecuted, the first facility will, in all likelihood, take steps to avoid committing
violations of its own. This principle is at the core of an important objective of all enforcement -
deter future violations by making the enforcement a widely known fact. It does little good to
prosecute an industry here and an industry there without alerting all industry to the fact that
prosecution possibly awaits any who break the law. Government does not have unlimited
resources. It gets the most "mileage" from those prosecutions it is able to bring by showing all in
the regulated community examples of violators who have been forced to pay substantial monetary
penalties or even go to prison. Thus, the federal government often accompanies the filing of
administrative, civil and criminal actions by simultaneous, detailed press releases telling the public
and the media.
4.4.2 "Multimedia" and Special Enforcement Initiatives
As all know too well, when a waterbody, forest or city is assailed by pollution, that pollution
usually comes from more than a single source. Pesticide runoff from farms, and acid rain caused
by nearby industry, may both contribute to degradation of a bay. Urban areas are often burdened
with combined industrial, automotive and other discharges into air, water and land.
Increasingly, we are using multi-media considerations in priority setting and taking enforce-
ment actions. We are also using special enforcement initiatives to package cases for maximum
impact. (6)
For example, recognizing the occasional shortcomings in targeting a particular pollutant in
a particular medium, when an entire region surfers from multiple pollution sources, the U.S. has
begun to confront environmental damage on a region-wide scale. It does this through
"multimedia" enforcement initiatives. As the name suggests, these initiatives may consist of
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4.5.6 Assessing the Case
o After a substantial investigation has been completed, does the case still hold up, or should
prosecution be declined because the case now looks weaker than it originally did?
o Should certain new charges be added or old charges dropped?
o Have negotiations been attempted as a way to settle the case without going through the
time, trouble and risk of having the case decided by a judge?
4.5.7 Having the Court Decide the Case
o If negotiations to settle the entire case fail, can time and effort for all concerned still be
saved by settling or eliminating some of the issues to be resolved?
4.5.8 Structuring a Settlement
o If it will take a long time to meet the terms of the agreement, what interim milestones may
be established to track performance, and what penalty schedule might be employed in the
agreement to set consequences for failure to meet the milestones?
4.5.9 After the Case Concludes
o Assuming the charged violator has been found liable, what penalties should the govern-
ment recommend? Have all relevant factors required by law and government policy been
considered in recommending the penalty?
o If the government loses the case, is there a right to appeal the result to a higher court? If
so, should an appeal be taken?
5 EASING THE ENFORCEMENT LOAD ON FEDERAL AUTHORITIES
While enforcement will always be the cornerstone of ensuring compliance with environ-
mental laws and standards, we should not expect that administrative or judicial actions alone are
the exclusive means of ensuring environmental compliance. Even if they were, enormous execu-
tive and judicial resources necessary to police compliance with environmental laws, particularly in
times of budgetary pressures, would take a high toll.
Fortunately, the U.S. has successfully employed certain policy tools to encourage industry
to reduce pollution outright, with the additional advantage of saving industry substantial costs
along the way. The consequence of less illegal pollution is, of course, less need for federal
government enforcement. Moreover, when enforcement is necessary, we are promoting ways to
simplify and streamline the judicial process.
5.1 Incentives to Industry to Comply with Regulations
Market-based, economic incentive approaches to environmental compliance are becoming
progressively more intertwined with U.S. technology-based command and control regulations. The
essential idea is quite simple: give industry the encouragement and flexibility to harness its free-
market, creative energies, and it can achieve cost-effective, overall levels of pollution control that
equal or exceed command and control results.
To date, air pollution has been the main arena for use of market-based incentives. Under
the amended Clean Air Act, EPA has created a market to trade units of allowable emissions. A
business can shift emission units among different sources within its plant, so long as the plant
does not exceed its overall emission limitations. A new emission source is allowed to open in an
area otherwise barring new emissions if the new source obtains more than offsetting decreases in
emissions from other sources in the area. This scheme not only can save industry tens of millions
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of dollars, it causes no increase in aggregate emission levels. Just such a program of tradeable
emission credits has been quite successfully used to phase out lead in gasoline.
Emissions trading is also the heart of the amended Clean Air Act method for controlling
emissions of sulfur dioxide, a key precursor of acid precipitation. The Act requires an overall
reduction in the amount of sulphur dioxide emitted by U.S. power plants, it then allocates a
limited level of emissions to power plants. Utilities that can cost-effectively reduce their emissions
below their allocated level can sell the resulting credits to power plants that find it more expensive
to reduce emissions to allowable levels. It is estimated that this program will reduce sulphur
dioxide emissions by 40 percent over ten years. Anticipated savings are estimated at about $800
million per year over the amount that would be spent on traditional regulatory controls.
A market-based incentive of a somewhat different cast than trading is information
disclosure. Here, the incentive to comply is not a government-set pollution level. Rather, the
incentive is consumer pressure. If, for example, the public knows that a nearby company has
transported or released certain toxic substances from its facility, company sales might well suffer
as a result of public alarm. This is precisely the thrust of the 1986 Emergency Planning and
Community Right-to-Know Act. 42 U.S.C. 11001. Under that statute, companies are required to
divulge the nature and extent of toxic chemical transfers and releases.
5.2 Environmental Audits
Department of Justice policy offers an industry a way to reduce the chances that it will be
criminally prosecuted for environmental violations. (7) If an industry will audit and police its own
environmental activities, then voluntarily disclose to the government any environmental violations
it discovers, the Department will take this cooperative attitude into account when deciding whether
to bring a criminal prosecution in a particular matter. More specifically, we ask whether the
industry has:
o Made a voluntary, timely and complete disclosure of the matter under investigation;
o Cooperated with the government fully and promptly;
o Taken measures to bring its harmful activities into compliance with the law, and adopted
procedures to identify and prevent future noncompliance.
5.3 Simplifying Judicial Enforcement
It is an axiom in the U.S. legal system that it is better to settle a legal dispute than to try
the case in court. Taking a case all the way to civil or criminal court is invariably more expensive,
time consuming and unpredictable for all concerned than when the parties to the dispute settle
the case between themselves. In practice, fortunately, the vast majority of cases settle without the
need for a judge or jury decide them.
The U.S. judicial system, and the rules under which it operates, give strong encourage-
ment to settlement of cases. Our federal judges are burdened with many cases, and usually try to
do all they can to ensure that parties explore every possible avenue of settlement before
proceeding into the courtroom. In practice, settlements between federal authorities and private
parties are reached as they are in most other nations ~ by means of negotiation. The parties sit
at the table and work through their differences toward a mutually agreeable solution.
One new method of relieving the enforcement burden on parties and courts alike is alter-
native dispute resolution (ADR). A recent law (Administrative Dispute Resolution Act of 1990}
encourages disputing parties to employ such techniques as mediation and arbitration. ADR has
one great virtue - it avoids the kind of protracted, expensive litigation that has come to burden
the American legal system the past several decades. By easing the time and costs of enforce-
ment, ADR, as any successful negotiation, frees up federal resources to take on wider enforce-
ment responsibilities.
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5.4 Curbing Litigation
Litigation in the United States has swollen to such a point that it now exacts exceedingly
high costs on our society. Each year, approximately $80 billion is spent by individuals, businesses
and governments on direct litigation costs and insurance premiums. Acutely aware of this burden,
President,Bush recently ordered ail federal attorneys to conduct their litigation in ways designed
to reduce the time and expense for all litigants. (8) The President ordered attorneys to avail
themselves of methods designed to settle cases, to take steps to streamline the often enormously
taxing "discovery" process, and to keep "expert" theories out of our courtrooms that are not
widely accepted. By employing these and other measures, the President hopes to set an example
private attorneys wiil follow in conducting their own litigation.
REFERENCES
1 Reich, E. and Shea, Q., in: A Survey of U.S. Environmental Enforcement Authorities, Tools
and Remedies, Proceedings of Internationa] Enforcement Workshop, Utrecht, the Netherlands,
May 8-10, 1990.
2 Policy on the Use of Supplemental Enforcement Projects in EPA Settlements, February 12,
1991.
3 Interim Policy on the Inclusion of Pollution Prevention Conditions in Enforcement Settlements,
February 25, 1991.
4 Regional Enforcement Management: Enhanced Regional Case Screening, December 3,1990.
5 EPA FY 1991 Enforcement Accomplishments Report.
6 Enforcement Four Year Strategic Plan, EPA Document 21E-2001, February 1991.
7 Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of
Significant Voluntary Compliance or Disclosure Efforts by the Violator (Department of Justice),
July 1, 1991.
8 Executive Order 12778, Civil Justice Reform, October 23,1991.
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THE PUBLIC PROSECUTOR OFFICE OF HUNGARY AND ITS DEVELOPMENT
SANDOR FULOP
Public Prosector Hungary
INTRODUCTION
According to our Constitution, Hungary's Chief Public Prosecutor is elected by the
Parliament of Hungary for a six year term on the proposal of the President. The two deputy is
appointed by President on the proposal of the Chief Public Prosecutor. The further prosecutors
are nominated by the Chief Public Prosecutor. They are working on three levels, following the
structure of our court system: the first instance /towns/, the second instance /counties/, and the
Chief Public Prosecutor's Office, besides our Supreme Court, actually placed in the same building
in Budapest, the Capitol City.
1 THE FUNCTIONS OF THE PUBLIC PROSECUTOR OFFICE
The main functions are delineated in the Constitution itself, under the section 51, and are
detailed in the amanded Act V. of 1972, about the Public Prosecutor Office /PPO/. In general, the
Chief Public Prosecutor and PPOs protect the civil rights of citizens and consequently prosecute
all the offenses that are harmful or perilous for the constitutional order, the safety and indepen-
dency of the Country. The prosecutor surveys the police investigation or himself investigates,
represents the criminal charge side on the courts. The other area of our work is also involved in
the Constitution: the prosecutor assists in the law compliance of the organisations and citizens in
the country. In the case of noncompliance he is supposed to make legal steps in the protection of
legality.
The Act about prosecutors gives more detailes of the function.According to this, there is
three main branches of our work: criminal law, civil law and administrative law functions.
1.2 The criminal law function
In our criminal procedure, the Police has an independent role in the investigation.
Following the practice of the past decades the investigation has been divided into two parts: the
so called operative phase, and the investigation in its narrower sense. The operative phase has
not been the subject of the criminal law regulation at all, but it has had some administrative law
rules and otherwise has fallen out of the scope of legal supervision. The forthcoming new Police
Act is going to change this highly debated situation.
The prosecutorial supervision now actually begins only from the second phase of the
investigation, when the Police communicates the so called well founded suspicion to the
defendant, allowing him to protect himself and to hire a defence attorney. From this stage the
police prepares official records on the investigative steps, and these are open to the prosecutorial
supervision. Nevertheless, the supervision has not taken place in all the cases. It is definitely
mandatory when the defendant passes a complaint against the communication of the suspicion,
when the defendant is under arrest or in the cases of highest importance. The supervision of the
police investigation is made through the overview of the files, or accomplishing some investigative
actions, such as the survey or hearing witnesses. One of the strongest tools of the supervision is
the supplementary investigation. The prosecutor may order it if the facts of the case have not
been discovered properly or the rules of procedure have been violated in a way considerably
imparing the settlement of the case. In the evaluation of the work of a policeman the supplemen-
tary investigation represents a bad trait, so he tries to avoid it by frequent consultation with the
prosecutor on the evidence or legal matter of the cases. There are some crimes, such as the
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offences against adminstration of justice or crimes committed by or against policemen, which are
totally investigated by the PRO. In the draft of the New Crimninal Procedure Act it is proposed to
bring to this group of crimes the environmental crimes, too, because their investigation requires
special expertise and they are often difficult from legal side as well.
When the investigation is finished, the prosecutor examines the records coming from the
Police /in the overwelming majority of the cases/ and may prepare the indictment. This phase of
the criminal procedure is a clearly prosecutorial one, where he is the only decision making official.
The prosecutor fulfills here the filter role, not leaving inproper cases to go further to the court. So
he can order a supplementary investigation, and he can suspend the investigation or even can
abandon it, too. It does not mean that we have a discretionary right, because the Hungarian
criminal procedure accepts the principle of legality, that is every case has to be passed with an
indictment, only the obstacles of punishability can exclude it, or the case where the suspect
cannot be identified and no result may be expected from the continued procedure.
On the trial stage of the criminal procedure, the judge, as the president of the division,
shall conduct the evidence process, striving to clarify the material truth. In the continental criminal
procedure system the prosecutor and the defence attorneys have less deciding role in the court
proving process as in the clearly adversiat systems. Nevertheless the prosecutor could have a
deciding role in a mainly negative way: the withdrawal and the modification of the charge binds
the court.
Our prosecutors have not any bargaining position with the defendants. After the
sentencing phase the function of the prosecutor in the criminal process is to supervise the due
accomplishing of the imprisonments or other punishments.
1.3 The civil law function
In general the Act about prosecutor says under the section 4, par 121, point e./, that the
prosecutor takes part in the maintaining of the due process in the Civil Procedures. The amanded
Act II. of 1952, under the section 2/A gives the rights to the Public Prosecutor to institute a
lawsuit out of important state or social interest, or if the person entitled thereto is for any reason
unable to defend his rights; he may also take action in any phase of the lawsuit in the interest of
observing legality. In the course of taking action in a lawsuit and in a lawsuit instituted by the
prosecutor he shall be entitled to all rights which are due to a party in a lawsuit: but he may not
come to terms of arrangement, may not waive rights, may not acknowledge rights respectively.
Although this function was given to the PPO in the last political regime with a quite different
purpose, it seems to be tailored to the tasks of the environmental protection, where there is
always a strong social interest, and the entitled persons usually are not in the position that
enables them to defend their rights, and even the exact circle of the plaintiffs can not be defined
easily. Using the famous section 2/A, the prosecutor could solve one of the main problem in our
recent early environmental cases, the question of the capacity to sue. I have to add to this survey
of the funtions of the PPO that it is not in practice yet to begin civil law cases in the name of a
concerned community, although the legal possibilities are given in a fortunate legal situation.
1.4 The administrative law function
The third branch of our funtion is, as usually called "the general supervision" that is the
overview of the processes and the administrative law and labour law decisions in the centralised
state organisations, municipialities, and other organisations /associations etc./ of the society. This
function has been very popular, the citizens has turned to the PPOs with several complaints
about administrative law decisions, and the PPOs themselves have run regularly preplanned
supervision programs at the several organisations. In the vaste amount of cases the
administrative law prosecutor can solve the legal problems by advising proper legal steps or
clarifying the legal situation itself. If it is not enough for the maintaining the due process, he can
warn the leaders of the concerned organisation, or ask for further data, or an inward survey. The
storngest tool of the administrative law supervision is the protest on legal ground against an
enforcable decision. The PPO could propose in his paper the suspending of the execution, too. it
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the organisation does not agree with the protest, it has to pass it to its superior organisation. The
confrontation takes place rarely, our administrative law prosecutors have extremely broad
connection system in the whole range of the administrative organisation, and this PRO function is
widely accepted and appreciated. Yet, the administrative law function together the civil law one
seems to lose its position in comparison with the criminal law functions. On the theoretical level
many experts object the maintaining of the previous regime's overal legal supervisor organisation.
Others agree that in the new democratic political system there has to be balances against the
governmental power. They say, that together with the President, the Ombudsmans /not elected
yet/, the Constitutional Court and even the free Press, the PPO can be one element of this
balance system through its civil and administrative functions, too. Without wanting to decide the
theoretical and political debate, I could insist on the meaintaining the "not only criminal law"
prosecutional system, from the special viewpoint of handling of the environmental cases.
2 WHY IT IS CRUCIAL TO HAVE THE POSSIBILITIES FOR THE PARALELL
PROCESSES?
According to the centuries old practice, our continental criminal law can not handle the
enterprises, associations, etc, as to whom criminal liability is imputable. This point can make
extremely difficult to use the criminal liability for the so called corporate committed environmental
crimes, because the decisionmaking structure in a big corporation can be so sophisticated, that it
is almost impossible to find the responsible persons. But once you have found them, and let us
say punished them strongly, the corporation probably will continue its environmentally harmful
practice just with an other management. Naturally the criminal procedure can leave a message to
the new staff, but the economic enticement for the noncompliance could be enormous, and the
new leadership can put their hopes to the reorganisation of an extremely deceiving decision-
making structure. It seems to be the only succesfut environmental enforcement solution to begin a
strong civil law case against the firm in the same time with the criminnal one. The coordinated
fight against the wanton noncompliant, big sized corporation requires a law enforcement
organisation with authorities in the field of criminal, and civil law as well. As far as the
environmental noncompliance cases usually have their previous history in the administrative law
enforcement, it is also useful if the organisation in issue has a certain adminstrative law input,
too. The only organisation which fits to this requirements is the PPO, in its recent form.
3 THE STAFF OF THE PPO
According to the functions, our staff is divided to criminal, civil and administrative law
departments. Out of the roughly 1000 prosecutors in the Country, there is not more than 200
prosecutors on the charge of the civil and administrative law cases. Their number used to be
more than one third of the whole, and is diminishing continually. They are uncertain about the
future of their deparments because of the strong plans o* "clarifying the profile" of the PPO,
although there is not any definite decision yet concerning their position. The retaining of these
highly experienced and professional administrative lawyers is essential from the viewpoint of the
environmental enforcement. They will not be easily superseded later by other administrative
lawyers, because this work in the PPOs needs a special experiance and training. The losing of
the adminstrative law staff is specially painful because of their widespread connections towards
the several levels of the administrative system. It seems to be urgent to make clear for them that
they have a sound future in the PPOs, as environmental protecting specialists, amongst other
important tasks.
Besides, the criminal law staff has also very important specialities useful to the
environmental enforcement. Being the largest part of the PPO, their departments are divided to
several subdivisions, as the investigation supervision, the representation of the charge at the
courts, the supervision of the accomplishing of punishments, juvenile delinquency cases, traffic
crime cases and some others. The separation of tasks are more definite on the level of the Chief
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Public Prosecution Office, and the bigger County Prosecutor Offices, and less definite on the local
level. Because of the specialisation, our criminal lawyers have advances in comparison with other
professionals. The criminal law staff also has a good possibility to build up good work connections
towards the Police which , as it was seen, tends to use the prosecutor's technical and legal
advises frequently.
4 TRAINING
The Hungarian educational system does not contain colleges, but after the secondary
school, the students can go to universities immediately. The Law School takes four and half
years, and the graduated can look after jobs in Courts, PPOs, Private Attorneys' or elsewhere.
After at least two and half years practice and further learning he/she passes the bar exam, and
gain his/her appointment as judge, prosecutor, etc. The PPOs put stress on the high level training
in their postgraduation system. The future prosecutor visits alt the departments on the first and
second instances in the PPOs. Their workload is nearly equally divided between the learning the
law materials of the Bar Exam, and resolving practical legal problems in the cases. There is
nearly 150 young colleagues on legal Practice at PPOs, and taking the avarage three years
period before their exam, it means at least 50 appointments of new prosecutors per year. This
number is hardly enough to fulfill the positions in our offices becouse the state salary never can
compete with the private firms offers, and a couple of years practice in the PPOs is a good
background for getting a job in the private sector.
5 THE CONSTITUTIONAL POSITION OF THE PRO
In the short introduction of the PPO of Hungary, I could not avoid to mention this highly
debated issue. Although the theoretical opinion tends to decline to that direction that PPO has to
belong to the Government and to the Department of Justice, the recent situation is different.
There is an independent PPO in our system, and only the Parliament excercises the right of the
controll over the PPO through the person of the Chief Public Prosecutor. This independency can
cause some difficulties, too. Because of being a politically neutral organisation, the PPO in the
Parliament in the most of cases can not gain any aim from any parties, and even it means
frequently an easy victory for a party to challenge the Chief Public Prosecutor, who tends to lose
the final votings. On the other side in the civil life, and from the Press, the PPO gets better and
better appreciation, sometimes only from the reason of being independent from the government.
In reality the PPO is trying to avoid any confrontation with any political problem, and restricts itself
to the legal issues in the strictest sense. Oterwise there is little possibility for the change in our
highly debated constitutional position because of the need for a two-third majority in the
Parliament for any amandments in the Constitution. The leader parties have only a simple
majority, and the opposite parties are consequently objecting of bringing the PPO under the
Government.
6 POSSIBILITIES OF A BROADER PARTICIPATION OF THE PPO IN THE
ENVIRONMENTAL LAW ENFORCEMENT
As we could see, the PPO has got in a paradox situation: in the ever changing political
situation it is remaining unchanged. Yet we are experiencing that the stress in our work is shifting
to the criminal law side, and we are losing our best civil and administrative law experts. I have
tried to clarify that even in this recent situation the PPO has a fortunate position for becoming the
key organisation in the environmental law enforcement. We could undertake the task of the
developing sound, paralell cases against the environmentally noncompliant big sized
corporations, too. On the other side, this undertaking could provide an opportonity to retain many
of the non criminal law experts, offering them a long run, valuable prospect.
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Finally I have to call attention to a basic difference between the operation of the legal
programs in Central Europe and in America or Western Europe. It has definite historical basis that
in our region nobody can accomplish a legal program unless determines its structural details, not
only the material ones. Here is not enough to delineate the aim of an Act and to set out the legal
orders and prohibitions. We have to build up or point out the executive structure, with an exact
hierarchy in the decisionmaking, with the . . elements of the process and with the deadlines. And
that is the very problem in our Environmental Enforcement. Since 1976 we have had a first class
Environmental Legal System, which has reached the world standards in itself. But the
responsibilities for the execution are not clearcut enough, and in reality Hungary's environmental
status is deteriorating with high speed. The civil law and criminal law enforcement are missing
totally, because of lack of any departments in the Police and PPO, lack of a legal practice of the
beginning and developing the cases. The draft of the new overall environmental code has to pay
more attention to the structural side of the enforcement, and has to give definite authorities to the
Police and PPO as well. The leadership and the staff of PPO have commitment to this work, and
the Public, the NGOs have been urging us to get more involved in the environmental law
enforcement.
i would like to thank for his professional advises to Mr. Steghen Stec. our CEELI liason.
Special thanks to Mrs. Erzsebet Kazsmer and Ms Judit Hornung for their indispensable technical
assistance.
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DEVELOPING EFFECTIVE ENFORCEMENT PROGRAMS AT THE STATE LEVEL
LEE PADDOCK
Assistant Attorney General, State of Minnesota, United States of America
1 THE CONTEXT
The federal nature of the political system, the size of the country, the number of regulated
facilities and the pervasiveness of environmental regulations all dictate that the states play a central
role in environmental programs in the United States. (1,2) Congress has delegated the
implementation and enforcement of most federal environmental laws to states. (2,3) In addition,
states have adopted their own environmental laws which, in some cases, are much more
comprehensive than federal environmental laws. Because of the important role of states in the
environmental programs in the United States, the experience of states may be useful to other
countries in designing their environmental enforcement programs.
This paper focuses on the development of environmental enforcement programs in the State
of Minnesota. Minnesota is a mid-sized state with a land area of 218,600 square kilometers and a
population of about 4,200,000. The State's economy is based on technology, light industry,
agriculture, tourism and timber. There is some mining and oil refining but otherwise little heavy
industry. Minnesota consistently has been one of the most innovative states over the past 25 years
in addressing environmental problems. It was among the first states to authorize citizens to initiate
lawsuits to prevent pollution of the environment, to enact a state hazardous waste disposal site
cleanup (Superfund) law, and to require companies to undertake pollution prevention planning.
Minnesota was the first state in the United States to adopt an acid deposition standard.
Until the mid-1980s, both national and state environmental programs tended to focus on
discharges from larger industrial facilities and on publicly-owned sewage treatment works. The
number of regulated facilities was relatively small numbering in the tens of thousands nationally and
in the thousands in Minnesota. (4,5) Beginning in 1986 with the expansion of hazardous waste
regulations to small quantity generators (those who generate between 100 and 1,000 kilograms of
hazardous waste in a month), the number of regulated facilities in the United States and in Minnesota
dramatically increased. The scale of the enforcement problem is demonstrated by the number of
facilities now subject to environmental regulation in Minnesota. There are nearly 20,000 small quantity
hazardous waste generators, 33,000 regulated underground storage tanks, more than 10,000 facilities
subject to community right-to- know reporting requirements, 6,000 infectious waste generators and
in excess of 17,000 regulated public drinking water supplies. (8,9)
In addition, thousands of other facilities are subject to toxic water pollution requirements under
the Clean Water Act and hazardous air pollutant and chlorofluorocarbon restrictions under the Clean
Air Act. Finally, thousands of companies and individuals are affected by bans on landfill disposal of
waste tires, lead-acid and nickel-cadmium batteries, old appliances and waste oil. In total, far more
than 100,000 facilities are now covered by environmental laws in Minnesota. (4,5) Many of these are
small businesses and government facilities.
Enforcement programs in most states were originally designed to deal with the relatively small
number of larger facilities that were the focus of the environmental regulation in the 1970s.
Enforcement authority tended to be centralized in a single state agency and the range of
enforcement tools was usually limited. The two primary enforcement tools were notices of violation
(warning letters) and civil judicial enforcement involving penalties and injunctive orders that could be
imposed by a court. While this approach to enforcement may have been adequate in the 1970s and
eairty 1980s, it has proved to be inadequate in the context of rapidly expanding environmental
programs in the late 1980s. For example, an audit of environmental enforcement programs in
Minnesota conducted in 1990 found that the centralized inspection staff of the state hazardous waste
regulatory office would be able to inspect small quantity hazardous waste generators (drycleaners,
automobile repair shops, printers, etc.) once every 100 to 300 years. (6) The same audit also found
that notices of violation were often an ineffective tool in gaining compliance with environmental laws
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380 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
and that civil judicial enforcement was too time consuming and expensive to address the large
number of violations in the state. (6)
2 OBJECTIVES IN REDESIGNING MINNESOTA'S ENFORCEMENT SYSTEM
The rapid expansion of environmental programs, the limited number of enforcement tools
available to governmental officials and the limited financial and personnel resources available for
environmental enforcement necessitated substantial reforms in the enforcement system in Minnesota.
To build a more effective and more efficient system, several steps had to be taken. These included
expansion in the range of enforcement tools, introduction of enforcement techniques that would more
effectively deter violations, increased reliance on a team approach to enforcement, expansion of the
universe of regulators, increased enforcement funding and promotion of voluntary compliance. The
actions initiated by the Minnesota Attorney General's Office and the Minnesota Pollution Control
Agency in the period of 1987-92 to meet these objectives are discussed below.
2.1 Expansion of Enforcement Tools
The principle focus of reform efforts has been on the expansion of enforcement tools available
to regulators. Several new enforcement tools have been authorized by the legislature since 1987
including field citations, administrative penalty orders and criminal enforcement. The expanded range
of tools permits regulators to more closely tailor enforcement actions to the nature of the violation.
Tools such as field citations and administrative penalty orders minimize the procedural requirements
that are needed prior to assessing a penalty thereby allowing enforcement officials to handle a much
higher volume of cases. At the other end of the spectrum, criminal cases are expected to deter
serious violations. Thus, while the criminal cases may require more time and effort to prosecute, they
are seen as a cost effective part of an overall enforcement strategy.
2.1.1 Field Citations
Field citations are enforcement documents issued by inspectors in the field, just as a police
officer might issue a traffic ticket. Field citations are typically used to address clear-cut violations,
requiring the violator to correct tine violation and pay a small penalty. The administrative appeal
process is usually simplified to avoid long legal proceedings. (1)
Minnesota is using field citations in a two-year pilot project to try to deal more effectively with
illegal disposal of used appliances, waste tires and batteries and refuse along roadsides and in state
parks. Under the program, staff from the state's Pollution Control Agency (the state's principle
environmental regulatory agency) and Department of Natural Resources (the agency that manages
state parks and regulates hunting and fishing) are authorized to issue field citations based on the fine
schedule set out in Table 1.
TABLE 1
Field Citations Fine Schedule
Appliances - $ 100 per appliance up to a maximum of $ 2,000
Waste tires - $ 25 per tire up to a maximum of $ 2,000
Lead acid batteries - $ 25 per battery up to a maximum of $ 2,000
Other refuse - $ 1 per pound of $ 20 per cubic foot up to a maximum of $
2,000
An expedited hearing before an administrative law judge is the only method for challenging
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a field citation.
Experience in the first five months using field citations has begun to demonstrate that they can
be an effective tool in addressing smaller environmental violations. Thirty-nine citations averaging
slightly over $100 were issued during this period. A significant increase in the number of citations is
expected as enforcement personnel become more familiar with the citations process.
Should the field citations pilot project prove successful, the program will likely be expanded
to other minor violations of state environmental laws, in addition, local law enforcement agencies that
deal with solid waste disposal problems have expressed interest in the field citations program
because it may be more efficient than the misdemeanor criminal (maximum jail term of 90 days and
maximum fine of $700) sanctions that are currently used by local law enforcement officials to deal
with these violations. The burden of proof is higher for the government in criminal proceedings and
if a misdemeanor citation is challenged, the court procedure typically is much more time consuming
and expensive than an appeal of a civil field citation.
2.1.2 Administrative Penalty Orders
Administrative penalty order (APO) authority allows an administrative agency (rather than a
court) to order violations to be corrected and to assess civil penalties. Typically, the penalty order
may be appealed either to an administrative law judge or to a court. The U.S. Environmental
Protection Agency has used APOs in some of its programs for several years. The maximum penalty
that may be assessed in an APO is usually significantly lower than the maximum penalty that could
be imposed by a court. The tradeoff is that an APO frequently takes far less time to prepare than a
civil case filing and the appeal from an APO often involves an expedited process. APOs are normally
issued by a central or regional office of an environmental agency rather than by an inspector as in
the case of field citations. About 30 states now have authority to issue APOs.
In Minnesota, APO authority was first granted to the Pollution Control Agency's hazardous
waste program in 1987. The use of APOs proved very successful in returning hazardous waste
violators to compliance. (6) Because APO's in Minnesota were designed to substituted for the use
of notices of violation (NOVs) in many cases, penalties assessed for violations that are not repeat
or serious violations are forgivable if the violator corrects the violation within 30 days. During the first
three years of issuing APOs, the number of NOVs issued by the Pollution Control Agency
dramatically decreased (6), while the number of APOs has increased to close to 100 per year. The
forgivable feature of Minnesota's APO law has been controversial. Some feel the approach gives
violators one free violation. Others feel that the use of forgivable orders as a substitute for NOVs
(which do not include any threat of penalties) is a more effective way of achieving compliance with
environmental requirements.
The ceiling for penalties in APOs in Minnesota is $10,000. The ceiling in other states and
under the federal law is often higher. Under the Clean Air Act, for example, the maximum penalty that
can be assessed by the U.S. EPA Administrator is $200,000. The ceiling for APOs in Minnesota was
based on the time necessary to negotiate settlements of civil enforcement actions. An analysis of
enforcement actions indicated that almost no penalties were being assessed for violations that would
warrant penalties of $10,000 or less because the time needed to negotiate a settlement of a potential
civil enforcement case was too great. The result was that, prior to 1987, only NOVs were issued for
less serious violations. In Minnesota and most other states, civil enforcement cases are usually
settled before a civil court action is actually filed. These settlements are referred to as stipulation
agreements or consent orders.
A summary of the use of administrative penalties under Minnesota's hazardous waste program
is set out in Table 2.
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382 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
TABLE 2
Hazardous Waste Administrative Penalties 1/1/88-4/8/92
Total APOs issued 232
Percentage with forgivable penalties 76%
Average penalty $2,562
Average nonforgivable penalties $5,353
• Based on the experience with APOs under the hazardous waste program, the legislature in
1991 extended the authority to issue APOs to any violations of programs administered by the
Minnesota Pollution Control Agency. Appeals from APOs are heard before an administrative law
judge or in state court. Fewer than five percent of the APOs issued in Minnesota are appealed and
only one has been appealed to district court. The use of APOs has allowed the Pollution Control
Agency to initiate far more formal enforcement actions at far less cost and using much less staff time
for each case than the previous approach of relying on settlements of potential civil judicial cases.
2.1.3 Criminal Enforcement
While state and federal environmental statutes have included criminal sanctions for several
years, criminal enforcement was not utilized extensively until the mid-1980s. Criminal enforcement
became more prominent for several reasons. First, it was becoming clear that some companies
viewed civil penalties simply as a cost of doing business, refusing to change underlying practices that
violated the law. (5,8) Second, because of the high cost of disposing of hazardous waste, some
traditional "criminals" became involved in the hazardous waste disposal business. Third, public views
changed making some environmental violations such as disposal of hazardous waste so socially
unacceptable that legislatures adopted criminal statutes to help prevent the activity. Over 30 states
have adopted felony (a felony is a crime punishable by more than one year in prison) criminal
statutes for illegal disposal of hazardous waste. Finally, the large number of regulated facilities
necessitated the use of enforcement tools such as criminal prosecution that could effectively deter
some of the most egregious environmental violations. (5,8)
Minnesota adopted its first environmental felony law in 1983. That law covered illegal disposal
of hazardous waste. The law was expanded significantly in 1987 to cover illegal storage, transfer,
treatment, transportation and disposal of hazardous waste. In 1990 and 1991. additional crimes were
added for failure to report spills of hazardous substances, submitting false statements, discharges
of air or water toxics in excess of limits established in a permit, illegal disposal of medical waste, and
disposal of solid waste at an unauthorized location in
return for a financial benefit. The Minnesota environmental crimes are set out in appendix A. Criminal
enforcement is now one of the routine options considered in enforcement cases where a person is
believed to have knowingly violated the environmental regulations covered by the criminal law. Even
though less than five percent of all enforcement actions will be criminal cases, the cases are
increasingly seen as an important part of the overall enforcement program.
2.2 Deterrence
Because of the rapid increase in the number of regulated facilities beginning in the late 1980s,
techniques that not only punished individual violators (specific deterrence) but deterred others from
violating environmental laws (general deterrence) became increasingly important. (7) In Minnesota,
general deterrence efforts have been focused in three areas: targeting industries or geographic areas
of particular concern, better communication about enforcement actions and increased use of criminal
enforcement.
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2.2.1 Targeting
Targeting of specific industries, pollutants or geographic areas can be an effective method of
deterring violations beyond the specific cases developed as part of a targeted enforcement initiative.
(1, 7) Minnesota has worked with several states in the central part of the country on two initiatives
that involve both geographic and industry targeting. The first effort involved used oil facilities. Several
facilities in four states were targeted for simultaneous inspection and sampling to determine whether
hazardous wastes were being illegally mixed with used oil.
The second effort involves the coordinated filing of several enforcement actions against
hazardous waste transporters in six states. Hazardous waste transporters have been the subject of
isolated criminal enforcement actions in several states, but hazardous waste transporters had not
been a priority for inspections or enforcement actions. The purpose of the targeted action is to
establish a strong enforcement presence among hazardous waste transporters in the central part of
the United States to deter illegal conduct.
2.2.2 Communicating about Enforcement Actions
Enforcement actions against individual companies can be leveraged to generally deter
environmental violations by better publicizing the enforcement actions. Over the past two years, the
state has increased efforts to regularly inform the print and electronic media through press releases
and press conferences about key enforcement actions. The media in Minnesota is particularly
interested in environmental crimes cases.
A second vehicle for achieving general deterrence through communications about enforcement
actions is through newsletters directed to regulated facilities. The Pollution Control Agency publishes
newsletters for facilities subject to solid waste, hazardous waste and underground storage tank
regulations. The Agency staff is currently considering increasing the coverage of enforcement actions
in these publications to increase the impact of the cases.
One of the key elements in designing the hazardous waste transporter initiative discussed
earlier was communication about enforcement actions to achieve general deterrence results. Several
cases will be filed simultaneously to help garner regional press coverage. The participating states
also hope that the initiative will be significant enough that the transportation trade publications will
write about the enforcement actions.
Finally, one interesting development in the Minnesota has been the publication of
environmental newsletters by corporate law firms. These newsletters often highlight important
enforcement cases, thereby enhancing the deterrent effect of the cases.
2.2.3 Criminal Enforcement
Criminal enforcement of environmental laws appear to be particularly effective in generally
deterring violations. As one commentator noted:
"The deterrent effect of the environmental statutes is enhanced . . .if responsible
individuals within the corporation know that they may not sanction or participate in
illegal activities without subjecting themselves personally to the possibility of
substantial fines and/or imprisonment." (8)
Although Minnesota has not attempted to measure the general deterrent effect of
environmental crimes cases, experience over the last five years indicates that the effect is significant.
Perhaps the best indication that criminal enforcement has a general deterrent effect is the large
number of seminars for corporate officials that are now being offered on the issue of environmental
crimes and the increasing coverage of environmental crimes issues in trade and legal journals. This
trend was particularly noticeable in Minnesota shortly after the state concluded a high profile criminal
case against a large manufacturing company that employed over 3,000 people in a rural area of the
state.
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384 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2.3 Enforcement Teams
Criminal enforcement of environmental laws often involves the expertise and resources of
several governmental agencies. Because of the technical nature of the violations and the relatively
small number of cases, it is difficult for state and local agencies to assign staff to do environmental
crimes work on a full-time basis. Further, it is difficult to marshal! these resources on an ad hoc basis.
To address this problem, the Attorney General's Office in 1989 created an interagency
"Environmental Crimes Team" (E-Team).
The E-Team is made up of two attorneys and two investigators from the Attorney General's
Office, personnel from the Minnesota Pollution Control Agency who conduct inspections and provide
technical support, a representative from the Department of Transportation (the Department of
Transportation is responsible for regulating hazardous waste transporters), a representative of the
Department of Agriculture (the Department of Agriculture regulates pesticides) and representatives
from the Department of Natural Resources which has over 170 conservation officers throughout the
state and the capability to do aerial surveillance with light aircraft.
The mission of the E-Team is to provide centralized support services for the investigation and
prosecution of environmental crimes cases statewide. The E-Team serves as an investigatory
resource for, and provides technical assistance to local prosecutors who are interested in handling
environmental crimes cases. Prosecutors from the Attorney General's Office are available to
prosecute cases if a local prosecutor chooses not to handle a case. The E-Team also is responsible
for training state agency staff and local environmental and law enforcement staff (including local
police officers) about criminal enforcement issues. Finally, the Team works with federal officials to
help coordinate federal and state criminal enforcement activities in Minnesota.
The E-Team has proved to be a critical part of Minnesota's environmental crimes enforcement
effort.
2.4 Expanding the Universe of Regulators
One of the ways of responding to the rapid increase in the number of regulated facilities is
to expand the number of enforcement personnel. Tight budgets in most states in the United States,
however, have precluded significant expansion of state enforcement personnel. One method of
addressing this problem is to involve personnel from other agencies or units of government who
traditionally have not been directly involved in environmental enforcement activities. (1,9) This
approach will only succeed, of course, if the other agencies or units of government see clear benefits
from their involvement.
The field citations program discussed earlier is an example of expanding the universe of
regulators. Under the pilot program, Department of Natural Resources conservation officers are
among the persons authorized to issue citations. While these conservations officers had some
involvement with enforcement of solid waste disposal laws in state parks and forests prior to the
creation of the field citation program, the new program provides a much more effective and efficient
tool for these conservation officers. As a result, the officers are more interested in solid waste
enforcement. The involvement of the 170 conservation officers in the state will greatly expand the
personnel who are enforcing solid waste violations in the state.
A second major initiative to expand the universe of regulators is a study of the role local units
of government could play in environmental enforcement. The Dutch government is a leader in
developing local governmental environmental enforcement capability. (10). Based on this model,
Minnesota is now assessing which enforcement programs could be most effectively enforced at the
local level and what resources are needed to support local governmental enforcement. (1,11) Local
units of government could be involved in enforcement-related activities in several ways including
observing and reporting violations, educating regulated facilities, assisting state officials with
enforcement actions, permitting facilities and directly bringing enforcement actions.
The study is examining 16 programs to assess whether local governmental units could
assume a greater role in administering these programs. A set of 12 factors are being used to analyze
whether greater local involvement would be appropriate. A list of the programs being examined and
the evaluation factors are attached as appendix B. The final report from the study is to be submitted
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to the state legislature in November 1992.
2.5 Expanding Financial Resources
Enforcement funding in Minnesota and in most other states has not increased nearly as
rapidly as the enforcement workload has expanded. (4,6) Finding new sources of funding, therefore,
is important to the success of enforcement programs. This new funding is coming from two principle
sources: fees and penalties.
Over the past five years, the reliance on permit, license and emission fees to support
environmental programs including enforcement has increased a great deal. (5.6) At the national level,
the best example of the use of fees is the Clean Air Act which requires states to impose a $25 fee
for each ton of emissions to support the state air pollution control programs including enforcement.
Minnesota also places significant fees on the sale of pesticides and fertilizers, hazardous waste
generators, underground storage tanks and facilities that release hazardous substances into the
environment, a portion of which is used for enforcement. The increased use of fees reflects a greater
emphasis on a "polluter-pays" philosophy, as well as the need to look to other sources of funding
as state budgets have become tighter over the past few years.
A second approach to increasing enforcement funding that Minnesota has pursued is the
dedication of a percentage of the funds collected as penalties to additional enforcement activities.
The Environmental Enforcement Act of 1991 appropriates about $700,000 to the Attorney General's
Office, the Pollution Control Agency and the Department of Natural Resources for environmental
enforcement activities. The $700,000 is about one-half of the expected annual environmental
enforcement penalties for fiscal year 1992.
The use of penalties to support enforcement programs was controversial. Some opponents
asserted that the use of penalties for funding enforcement would encourage the imposition of
excessive penalties. The legislation protected against this result by dedicating only about half of the
penalties expected to be assessed in a year to enforcement. In addition, the legislature appropriated
the funds to the agencies based on specific budgets submitted by the agencies. Using penalties to
support enforcement is a growing trend in the United States.
3 INCREASING VOLUNTARY COMPLIANCE
Voluntary compliance has always been critical to the success of environmental programs in
the United States. However, because of the rapid expansion in the number of regulated facilities,
voluntary compliance is even more crucial now. The state is promoting voluntary compliance in
several ways.- The first is through education of persons subject to environmental regulations. The
Pollution Control Agency conducts workshops, distributes newsletters and prepares regulatory fact
sheets in connection with many of its programs. Unfortunately, while many people subject to
regulation feel these efforts are a key to increasing compliance, these programs tend to be
underemphasized and underfunded.
Another approach to increasing voluntary compliance is through providing technical assistance
to businesses. Minnesota is among the national leaders in providing technical assistance to facilities
to help them minimize emissions and reduce waste generation. The Minnesota Technical Assistance
Program (MnTAP) was created in the early 1980s and operates through the University of Minnesota.
MnTAP's original emphasis was on hazardous waste issues, but it now focuses on a broad range
of pollution problems. To help maintain credibility with industries it works with, MnTAP is not part of
the Minnesota Pollution Control Agency, the state's environmental regulatory agency. Part of the
funding for MnTAP comes from emissions fees.
The Attorney General's Office is working on two new programs to promote voluntary
compliance. The first is a pilot program to train managers of small and medium-sized businesses on
how to develop and implement better environmental management systems for their companies. The
Dutch government, as part of their National Environmental Policy Plan, is promoting the development
of environmental management programs by businesses in the Netherlands. (10) These programs
include the adoption of company environmental policies, compliance and emissions reduction goals.
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386 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
internal monitoring and reporting procedures, internal training programs and periodic auditing of the
system. (10) Many large companies in the United States have adopted systems of this type. The pilot
project is designed to build on the Dutch concept and the experience of larger U.S. companies to
help small and medium-sized companies improve their environmental management programs.
Finally, Minnesota is beginning to assess how its enforcement policies can be best designed
to promote voluntary compliance with environmental laws and to promote emissions reductions.
Issues that will be part of this assessment include the structure of penalty policies, the use of
information obtained from environmental audits conducted by businesses in enforcement actions, and
the issue of whether companies who have committed to programs that achieve environmental results
well beyond what the law requires should be dealt with differently in an enforcement proceeding than
companies that has not made such a commitment.
4 CONCLUSION
The rapid increase in the number of regulated facilities in Minnesota has required a dramatic
redesign of the environmental enforcement system in a period of only five years. Results are not yet
in for all of the initiatives, but early indications are that the reforms have produced a more efficient
and more effective enforcement program.
REFERENCES
1. United States Environmental Protection Agency Office of Enforcement, Enforcement in the
1990s (October 1991).
2. United Nations Conference on Environment and Development, United States of America
National Report (1991).
3. National Association of Attorneys General, State Attorneys General Guide to Environmental
Law (1990).
4. Humphrey and Paddock, The Federal and State's Roles in Environmental Enforcement: A
Proposal for a More Effective and More Efficient Relationship, 14 Harvard Environmental Law
Review 7 (1990).
5. Paddock, Environmental Enforcement at the Turn of the Century, 21 Environmental Law 1509
(1991).
6. Office of the Legislative Auditor, Pollution Control Agency (Jan. 1991).
7. Office of Enforcement, U.S. Environmental Protection Agency, Principles of Environmental
Enforcement (Feb. 1992).
8. McMurray & Ramsey, Environmental Crime: The Use of Criminal Sanctions in Enforcing
Environmental Laws, 19 Loyola Los Angeles Law Review 1133 (1986).
9. Netherlands Ministry of Physical Planning and Environment, Environmental News from the
Netherlands 1991-4.
10. United States Environmental Protection Agency and Netherlands Ministry of Physical Planning
and Environment, International Enforcement Workshop Proceedings (1990).
11. Conerton and Paddock, The Need for a Principled Expansion of the Role of Local
Government in Environmental Enforcement, 16 William Mitchell Law Review 949 (1990).
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387
APPENDIX A
Minnesota Environmental Crimes
Crime
Illegal disposal of hazardous
waste
Illegal storage, treatment,
transportation or transfer of
hazardous waste
Discharge of a toxic
water pollutant in violation
of a permit limit
illegal sewering of a hazar-
dous substance
False statements
Illegal disposal of infectious
waste
Failure to report spills of
hazardous substances
Discharge of a hazardous
air pollutant in violation
of a permit limit
Disposal of solid waste at an
unauthorized location
5 years
3 years
3 years
3 years
2 years
1 year
2 years
3 years
1 year
$50,000
$25,000
$50,000/per day
of violation
$50,000/per day
of violation
$25,000
$10,000
$25.000
$50,000/per day
of violation
$15,000
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APPENDIX B
Local Government Study
MPCA Programs/Activities forpotential local delegation
Hazardous waste generator education
• Complaint investigation and resolution
Open burning
Storm water permits for industrial uses and construction sites
• Pretreatment permits for industrial facilities
• Used tire management and enforcement
• Permits prior to construction
• Special waste management (batteries, lamps, etc.)
• Used oil compliance and enforcement
• Nuisance complaints (odor, dust, litter, etc.) and support
• Underground disposal (e.g., community independent septic systems)
• Permits for very small quantity generators of hazardous waste
• Coordination for small volumes of hazardous waste
• Feedlots
Municipal sludge disposal management and permits
• Industrial permits (Federal and State Pollution Discharge Elimination Systems)
EVALUATION FACTORS
Number of facilities
Importance of access to the regulator
Interest of the local government
Size of the local government
Capacity of the local government
Need for local government to design a special program
Amount of state oversight needed
Legal issues involved
Expertise required
Availability of training
Availability of funding
Relationship to existing programs
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SYSTEM TO SUPERVISE ENVIRONMENTAL DUTIES AND TO PURSUIT INFRINGEMENTS
TAKING CLEAN AIR MANAGEMENT AS EXAMPLE
PROFESSOR DR.-ING. MANFRED PUTZ. Ministerialdirigent
1 THE LEGAL SYSTEM OF IMMISSION CONTROL IN GERMANY
The Federal Republic of Germany is a federal state and consists of 16 states ("Lander")
itself. The Federal parliament possesses the legislative power, as far as the Constitution
("Grundgesetz") does not concede the right for legislation to the states ("Lander").
The environmental laws, belongs to the competing legislation in the Federal Rep. of
Germany. In order to establish rules which are valid within the whole Federation, the federal
parliament ("Bundestag") has used its rights and has proclaimed, inter alia, the "Federal
Immission Control Act" (FICA).
It is the purpose of the Federal Immission Control Act to protect human beings, animals
and plants, water, the atmosphere as well as cultural assets and other material goods against
harmful effects on the environment.
The provisions of this Act shall especially apply to the establishment and operation of
industrial installations. Furthermore the Act contents requirements on the nature of installations
and chemical or technical products.
At least the Act contents special regulations concerning instruments protecting certain
areas.
Industrial installations shall be established and operated in such a way that harmful effects
on the environment are be prevented. According to installations not subject to licensing the
requirements given by the Act and the ordinances issued hereunder are similar but less strictly.
2 ORGANIZATION AND STAFFING IN NORTHRHINE-WESTFALIA (NRW)
2.1 Legal framework of supervision
Environmental legislation of supervision operators duties, given by the environmental
legislation are the first step to reach environmental protection. But as important as these duties is
the supervision by the authorities.
I would like to give you an introduction which instruments by law are given to the
competent authority.
2.1.1 Article 52 Federal Immission Control Act (FICA)
According to Art. 52 FICA the competent authority shall supervise the implementation of
this act and of any ordinances issued hereunder. This means that the implementation and
acceptance of this act is guaranteed not only as an operators duty but also within special tasks
given to the authorities.
Therefore Art. 52 FICA says, that owners and operators shall undertake to grant the staff
members of the competent authority free access to such premises and to enable such persons to
carry out tests and, finally, to furnish such information and produce any such supporting
documents as are needed by such persons to perform their duties.
2.1.2 Article 17. 20. 21 Federal Immission Control Act
Besides the possibility of getting infirmations according to Art. 52 FICA, the authority is
able to influence the operation of installations.
In order to perform the obligations resulting from the FICA or from any ordinances issued
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licence. And, following Art. 17, Para (1), if after the issue of such licence the protection attended
to the general public or the neighbourhood against harmful effects on the environment or other
hazards, considerable disadvantages and considerable nuisance turns out to be inadequate, the
competent authority shall give such subsequent order.
Art. 20 gives the authority the instruments of prohibition and closure. If the operator of an
installation subject to licensing does not comply with an additional condition imposed, and
enforceable subsequent order given or a conclusive obligation ensuing form an ordinance issued
under the PICA the competent authority may prohibit all or part of such operation pending
compliance with such condition, order on obligation ensuing form such ordinance issued under
the PICA. The competent authority shall give orders to close down or dismantle an installation
established, operated or materially laterad without having been licensed to do so.
Even after having become final, a licence duty granted under the PICA may be revoked in
its entirely or in part for any future operation.
This is possible under Art. 21, for instance, if the licensing authority were entitled by virtue
of facts having occurred subsequently to refuse to grant such licence and non-revocation might
be of prejudice to the public interest.
2.1.3 Finally under Enforcement Administration Act of Northrhine-Westfalia the authorities have
the task to make sure that the operators realize their orders. Therefore the authorities
have the opportunity of forced payments or that their orders will be done by other persons.
2.2 Liability of contravenes
Beside such orders, shown above, the German Law is able to punish contravenes against
environmental legislation.
2.2.1 Art. 325 ff Penal Code (PC)
Under Art. 325 PC anyone should be punished who makes wilfully on negligently
incontrary to duties given by the authority air pollution and noise, which liable to cause harmful
effects on the healthiness of anybody or important objects.
Operating an installation which not have been licensed is under Art. 327 PC also not
allowed as doing the same thing within a specific area.
2.2.2 Finally Art. 62 PICA contains a lot of Administrative Offenses which shall be liable to
payment of a fine up to 100.000,= DM.
According to the constitution, the execution and enforcement of most federal laws, in this
context of the PICA, is the responsibility of the federal states ("Lander"). They establish the
authorities and control the administration.
Taking the state of Northrhine-Westfalia as example, the enforcement of the PICA and of
the ordinances issued hereunder is the duty of 22 state inspectorates. The state inspectorates are
lower state authorities according to the organisation structure of the state. They are supervised by
five so called "Regierungsprasidenten" (Presidents of provinces), department "inspectorates", as
middle state authorities. The top state authority for air pollution control is the ministry of the
Environment, Regional Planning and Agricultur (MURL) at Dusseldorf, which superintends the
state inspectorates, the Presidents of the Provinces and the state agencies.
The state inspectorates in their function as authorities for air pollution control supervise wether
the operators of installations are compliance with legal prescriptions. They inspect the plants,
perform measurements and pursue offences against the laws, if the state inspectorates find out
an administrative offence, they impose fines. Serious cases are reported to the public prosecutor,
who carry out the criminal procedure.
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ENVIRONMENTAL ENFORCEMENT BY MUNICIPALITIES IN THE NETHERLANDS
DRS. P.PH. DORDREGTER
director of the Association of Netherlands Municipalities, VNG.
ENFORCEMENT: Collaboration and persistence
1 GENERAL REVIEW OF THE ENFORCEMENT SYSTEM IN THE NETHERLANDS
Enforcement is the ultimate test of environmental policy - in fact, of every area of policy.
Enforcement involves forcing the regulated society to conform to the rules. The fact that there are
various means for doing this will be discussed a little later. Above all, enforcement is the final link in
the policy cycle, and thereby the prelude to the first policy-making link.
Confronted with the regulated society, and thus the practical situation, the new policy-making
requirements imposed by everyday practice become clear. I should mention now that the
effectiveness of the instruments used certainly forms part of this feedback, which has the character
of an evaluation. Enforceability and public acceptance are important assessment criteria in this test.
In the Netherlands, municipal authorities bear primary responsibility for environmental policy.
These authorities are responsible for supervising the vast majority of the country's companies;
400,000 in all. This enormous number of companies includes many organisations which place a
limited burden on the environment. As an example, I can cite the combined residential and office
buildings, or which 50,000 are subject to licensing requirements. Provincial authorities are
responsible for about another 3,000 companies, either because of the complexity of the industrial
processes used or because of their high external impact.
The Netherlands covers an area of some 35,000 km2, has a population of 15 million, and is
divided into 12 provinces and 649 municipalities. The provincial authorities, and the municipal
authorities in particular, have an open administration in which a large number of tasks are carried out
within an integrated policy framework. The municipal tasks may be strictly autonomous duties, such
as responsibility for drains and sewers, or duties imposed by national legislation, which can allow
municipalities a greater or lesser margin for independent policy-making.
The entire territory of the Netherlands is also divided into water authorities. These are directly
elected, functional regional organisations, which bear responsibility for water management and
purification of waste water.
Naturally, the municipalities not only concern themselves with the companies within their
boundaries, but also ensure that everyone in their territory complies with the relevant environmental
regulations. They supervise moped noise levels, for instance, and discharges of chemical wastes
into sewers (cleaning agents, paint remains, medicines etc.) or the street (from lubricants when
engine oil is changed, to dog dirt etc.); they also monitor the composition and presentation of
domestic refuse (compulsory separation of organic wastes, building and demolition wastes, domestic
chemical wastes etc.).
In view of the enormous number of potential polluters and actual transgressions, formal
enforcement can never cover the entire population in full. Priorities must be set, and a mix of
instruments must be applied.
Municipal authorities are not the only enforcers: a multitude of different organisations may
concern themselves with the same company. In addition to the general environmental licenses
issued by local authorities under the Nuisance Act, many of the 400,000 companies are required to
hold special licenses under other legislation. The water quality inspector may, for instance, call on
certain companies to conduct checks of water quality control. In addition to the general
administrative bodies, the police and the public prosecutor have their own powers of investigation for
the enforcement of criminal law and could, in principle, operate independently of municipal
administrative enforcement activities.
Environmental policy is made at different levels. Legislation and the relevant standards and
directives provide the framework within which other tiers of government must operate, The aim is
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allow the greatest possible amount of local policy-making freedom, in order to ensure a customised
approach. Naturally, the margins of freedom vary from one area of policy to another.
Unlike many other countries, central government in the Netherlands does not, barring a
handful of exceptions (e.g. for nuclear power), perform first-line supervision of compliance with
legislation. Central government inspectors supervise the ways in which other tiers of government
perform their duties. Controls aimed at certain branches of industry can cut across municipal
priorities in extremely aggravating ways. Coordination of the actions of different government
agencies is urgently needed. For a company, it is incomprehensible and exceedingly annoying to
have a succession of different enforcers moving in.
2 POSITION OF MUNICIPAL AUTHORITIES IN ENVIRONMENTAL POLICY IS NOT SELF-
EVIDENT
The fact that municipal authorities have an important environmental task has not always been
self-evident. Despite their statutory duties, municipal authorities have allowed many companies to
operate without licenses and have certainly not conducted enough inspections. For more than a
century, these authorities have been able to avail themselves of the Nuisance Act, which affords
them responsibility for controlling local disturbances by companies.
When real environmental policy was developed, the government did not opt to extend the Nuisance
Act, but introduced new legislation, with stringent rules, for each new approach laboriously agreed
in Parliament. Consequently, each compartment was regulated separately in law and, moreover, the
provinces were made responsible for the majority of the new tasks, rather than the municipalities.
Responsibility for purification of waste water and the relevant installations was actually withdrawn
from the municipalities by law.
With each new piece of legislation, new financial resources were generated to fund its
implementation. In an era of stringent austerity measures, this became increasingly difficult
(municipal authorities receive about 75% of their income from central government). Licensing also
became increasingly expensive, due to the tighter requirements imposed in response to increasingly
complex processes and the use of more hazardous substances.
For a time, municipal authorities were unpopular with the environmental movement and with
many politicians, as they were felt to be too close to local industry to be able to take an independent
view in the field of tension between economic and environmental interests. Gradually, the idea
gained ground that environmental policy needs to be as close to the public as possible, and must be
formulated in direct correlation with other areas of policy. In fact, it was precisely the political
approach, rather than the technocratic one, which proved to be the most effective.
Relationships between municipal and central government, originally confrontational and
marked by scepticism, has now changed into a partnership: tasks are undertaken jointly, using the
strengths of both partners. Research established the number of officials required at each level for the
different municipal environmental tasks, and the costs. The studies showed that a population of
70,000 is the minimum needed to carry a proper official apparatus. Collaboration between municipal
authorities is therefore essential. Central government made financial resources available on a
structural basis, issuing instructions that within five years, all companies falling under the
responsibility of the municipalities should be properly licensed and should be inspected with the
proper frequency. To encourage collaboration, a 25% bonus was offered over and above the basic
amount in case of collaboration. At national level, the operation was led by a steering group in which
the Environment Department, the inspectorate and the Association of Netherlands Municipalities
(VNG) worked together.
The National Environmental Policy Plan Plus (NEPP-Plus) has since been published,
operationalising national policy in a large number of action programmes. To clarify what is expected
of municipal authorities in the execution of this plan, all the objectives have been translated to the
municipal level, assigning priorities and the relevant official action. This document is known as the
Framework Plan of Approach and is the pride of the Department and my own organisation. All
municipal authorities use the Framework Plan to define their own situation and to prioritise action.
With the help of the Framework Plan, they have all prepared their own environmental policy plans,
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interpreting the points for action in terms of their own situation. This document serves as a basis for
discussions with industry and environmental organisations and is included in the regional talks of the
municipal authorities working in partnership. Local communities now know what they can expect of
their municipal authorities.
3 REGULATION SYSTEM
Before continuing with the theme of enforcement, I must first explain the regulations
themselves. In a large number of branches of industry, licenses are no longer required. Instead,
these branches are subject to General Terms and Conditions. Individual companies themselves must
ensure that they comply with the requirements. Plans to form, expand or change a business must
be reported to the local authority. The municipal authorities do still conduct inspections to check
compliance with the General Terms and Conditions.
The repeal of licensing requirements was a result of central government deregulation efforts.
The branches concerned consist of small, fairly uncomplicated businesses of a homogenous nature:
butchers, bakeries, LPG stations, etc.
The NEPP-Plus laid down a large number of target reductions in emissions, which must be
realised within a specific period. The plan also names the branches of industry which must make a
particular contribution to the reductions, known as the policy target groups. Target reductions are
agreed with industry for individual substances and are laid down in a declaration of intent, which is
then elaborated in a covenant. The three tiers of government hold joint talks with representatives of
the branch of industry concerned, and each sign the covenants. A covenant has already been
concluded with the basic metals industry and one with the graphical industry is almost complete.
Covenants are a national 'bubble': they show total national volumes of pollution levels
considered admissible for emissions of a specific substance. This makes clear what is expected of
a branch of industry. The municipal authority is given some indication of the standards which can be
imposed in a license. The distribution of pollution control measures will have to be considered within
the branch of industry itself. Clearly, this will demand a considerable amount of consultation. Industry
feels that covenants should, in fact, serve as a package of standard conditions and that therefore,
there should be no scope for further development by a municipal authority. The municipal authorities
adhere to the target group policy, because this means that environmental policy is internalised in a
branch of industry and is developed in a corporate environmental plan by the individual companies.
This plan serves as the basis for negotiations with the local authority. However, municipal authorities
explicitly want a considerable margin of policy freedom in order to tailor final licenses to the situation
required locally. In the enforcement situation, that could lead to problems in future.
The licensing and enforcement situation is complex, as I have already shown. There is every
reason for concerted action. Different parties in society must help to create a desired situation
through coordinated action: a system of countervailing power. Strictly formal enforcement, on the
basis of administrative and criminal law, is only one option within a wide spectrum of different
instruments. An orchestra does not always want to use only its heaviest instruments, like the
kettledrums and tubas: the same applies in government.
4 CONDITIONS FOR ENFORCEMENT
A number of conditions must be met in order to realise effective implementation of
environmental policy, and thereby, its enforcement. Firstly, a municipal authority must clearly define
what it wants and must make this visible in a proper document. Secondly, the policy must be
discussed as far as possible with the different target groups, in an open procedure.
The partners must be told what has and has not happened to their contribution, and why.
Where possible, the partners' requirements must be satisfied. This can mean adaptation of the policy
itself, or changes in the phases of execution. Standards and figures often seem extremely hard and
fast, with a scientific basis, but on closer inspection, are ultimately a political compromise.
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Operating in this way can sharply increase public support for policy. General public
information must complete the process. The public, too, must be able to see how any compromises
are reached and must be shown that high environmental returns have, nevertheless, always taken
priority. In the negotiations with industry, the creation of a basis for sound control must be agreed:
this could be a corporate environmental plan, but also a certain method of supplying information,
together with the appropriate monitoring system.
I have depicted support for policy as a fairly harmonious process: in reality, of course, this is
not always the case. A government organisation needs partners in order to pursue its policy,
certainly in industry, where economic gain can quickly gain the upper hand. It can be made clear to
banks and insurance companies that the government will not only bring licenses up to date, but that
enforcement action will follow. Experience shows that the RABO Bank is by far the best enforcer if
a guarantee is needed for a company loan. Trade unions have an interest in ensuring high standards
of environmental hygiene in companies, both for the health of their members and for the continuity
of the company. Finally, the public can be asked to keep a watch and to inform local authorities or
the police if environmental transgressions are suspected, or to institute civil proceedings themselves.
Publicity is needed to let the public know the municipality's environmental plans. It can also
be used to promote desirable environmental conduct. Some directors of municipal environmental
services use publicity as a weapon to make reluctant companies conform more quickly to licensing
requirements. Press announcements of targeted campaigns in a certain area or branch of industry
markedly improve collaboration from the companies concerned. In any action against a company,
the presence of the press, tipped off in advance, can make it clear to other potential transgressors
in the same branch that the steps are being taken in earnest.
5 PRIORITIES ARE UNAVOIDABLE
I have already mentioned the enormous number of potential enforcement situations and the
fact that it is impossible to pay the same level of attention to all of them, everywhere. A set of
priorities will have to be drawn up for inspections, based on the potential burden which different
companies can place on the environment. In other companies, unannounced random checks must
be introduced. The enormous amount of work involved makes it obvious that butchers and bakers
could mostly be left to their own devices and that one should rely on external tip-offs in these cases.
Self-regulation should be encouraged as far as possible. I have already described how this could be
done.
It must in any event be made clear to everyone that action will be taken if violations are
discovered. An obvious step would be to require restoration of the former situation, for instance in
the case of discharges into the soil by compulsory cleaning, or compulsory replanting, in the case
of unlawful felling of trees. If no appropriate response is made to the detection of a violation, action
must be systematically pursued, in escalating stages. Ultimately, criminal proceedings may be
necessary. Naturally, these will be required where criminal activities are involved, and the closure of
the company will be the obvious step. But Dutch law does not make matters easy for enforcers. If
a municipal authority announces a company closure, the company concerned can appeal to the
Council of State. If the company has been operating for a long time without a license, or in violation
of license terms, the Council will tend to overturn the closure decision. Tolerance of a violation is
then interpreted in the transgressor's favour: which is a rather remarkable situation. After all, a
company should comply with the law, but it is not the company, but the supervisory authority which
is held liable for such compliance. These roles urgently need reversal. A company which operates
without a license, or in contravention of license terms, should be charged for the economic benefits
it has illegally enjoyed. This would have a considerable effect as a preventive measure.
Enforcement is a difficult task, and it requires training. It is certainly not always an easy
matter to identify the regulation which has been contravened from among the multitude of central
government, provincial, municipal and water board regulations which simultaneously apply to one
and the same company. The method of action and of gathering evidence also requires precision. It
can cost officials a fair amount of difficulty to act in a company which confronts them with large
amounts of counter-knowledge. The right attitude also has to be taught. To assist municipal
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authorities in this area, the Association of Netherlands Municipalities (VNG) has published a Guide
for Supervision and Action on Environmental Legislation, describing the successive phases.
6 COLLABORATION IS ESSENTIAL
Inter-municipal collaboration is essential in order to formulate and implement effective
environmental policies. The whole of the Netherlands is, by now, covered by partnership areas. In
the first instance, these involve joint use of sufficient official capacity. In time, collaboration grows
towards a regional environmental service and a policy-making body. Ultimately, the absorption of
these regions by genuine regional administrative bodies, which are directly elected, is inevitable.
Enforcement involves a variety of different administrative organisations: municipal authorities,
provincial authorities, inspectorates, the police force and the public prosecutor. The Environment
Department encourages the formation of enforcement regions.
We already have tripartite consultation between Mayors, in their capacity as heads of the
police force, their local Chiefs of Police and the public prosecutors for the districts concerned, in
which public order and investigation are discussed in general terms. In some cases, the municipal
Alderman responsible for Environmental Affairs will take part in the talks, in order to coordinate
enforcement of environmental policy.
A major reorganisation of the police force is currently on its way in the Netherlands. The
country is divided into 23 police regions, which are far larger than the environmental regions.
Separate enforcement regions, corresponding to the environmental regions, will now operate within
the police regions. The enforcement regions will reach agreements on priorities, methods of action,
where more than one local authority is involved, publicity and coordination of the action to be
pursued. In many cases, persuasion is tried first when violations are discovered, followed by official
action, with criminal proceedings as a last resort, or as additional action. However, where existing
organisations are involved, the inspectorates and environmental organisations do tend take the view
that matters have gone beyond the information and persuasion stage!
If necessary, the different stages of the enforcement process must be organised and followed in
ways which ensure that procedural errors or inaccuracies in one phase cannot jeopardise the
success of a later one. The use of standard procedures wherever possible, and the creation of a
joint computerised data base, can be a great help here.
Environmental offenses do not always involve malicious intent. This is why information is so
important. Many contraventions are inadvertent. Here again, information or a different organisation
of the process should be used reduce the margin of error as far as possible. Where there is lack of
interest, information will not be enough and corrective action will be needed, with or without a degree
of publicity. In the case of criminal offenses, a mix of instruments should be used, including criminal
proceedings. Sometimes the possibilities for official and criminal enforcement overlap. For instance,
the judiciary can require significant improvements in environmental quality as part of a settlement.
Generally speaking, criminal law is not yet adequately geared to handle environmental
offenses. The penalties are usually exceptionally light and as a result, limitation periods are short.
In the Netherlands, many environmental offenses are still not covered by the Economic Offenses Act
and even when they are, do not rank very high. Consequently, the instruments for tackling
environmental offenses and the accompanying penalties are equally weak.
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CHOOSING AMONG CRIMINAL, CIVIL JUDICIAL, AND ADMINISTRATIVE ENFORCEMENT
OPTIONS
A COMPARATIVE DISCUSSION OF UNITED STATES AND NETHERLANDS EXPERIENCE
VAN ZEBEN, D.J.1 and MULKEY, M.E.2
'Directorate-General for Environmental Protection, VROM, P.O. Box 450, 2260 MB
LEIDSCHENDAM (The Netherlands)
2Region III, EPA, 841 Chestnut Building, Philadelphia, Pa. 19107 (United States of America)
PRELIMINARY NOTICES
Mr. van Zeben is currently Head of the Environmental Crimes Department and Criminal
Assistance Team for the Environmental Inspectorate in the Directorate for Environmental
Protection for the Ministry of Housing, Physical Planning, and the Environment of the Nether-
lands. In that position, he manages the group of people who are responsible for the inspectorate's
criminal information system as well as a range of technical and investigative experts who provide
assistance for the prosecutions of environmental crimes. Prior to taking this position, he was a
public prosecutor located in the Hague with responsibility for a variety of environmental criminal
cases. Ms. Mulkey is Regional Counsel for Region III of the United States Environmental
Protection Agency. Her office is responsible for providing legal support to EPA's civil, criminal,
and administrative enforcement activities in the five-state region which includes Pennsylvania,
Virginia, Maryland, West Virginia, Delaware, and the District of Columbia. The views expressed
here are those of the authors and do not necessarily reflect the views or positions of their
respective agencies or governments. The authors wish to acknowledge the assistance of Bob
May, a senior lawyer in the Environmental Inspectorate of the Netherlands, Elisabeth Schippers,
one of the state's attorneys who represent the Dutch government in the civil courts, and Martin
Harrell, the Regional Criminal Enforcement Counsel for USEPA Region 111.
For convenience, the United States Department of Justice and the Netherlands Ministry of
Justice are here collectively called the Justice Ministries. The Directorate General for Environment
of the Netherlands Ministry of Housing, Physical Planning, and the Environment and the United
States Environmental Protection Agency are collectively called the environmental agencies. For
ease of reading and because this is not intended for publication under academic standards, we
have chosen not to include formal legal citations to the various provisions of the laws of the
United States and the Netherlands or to written legal authority for the conclusions of law we
include here. We have provided a list of references which we believe will be more or less readily
available to the reader upon request from the source of the publication referenced.
SUMMARY
This paper presents a discussion of the considerations involved in choosing a formal
enforcement response from among three options: criminal prosecution; cases brought in the civil
courts; and administrative enforcement actions. The paper assumes that the enforcement
program making these choices has decided that there is an important role for formal coercive
actions and has available a legal framework that provides at least some opportunity to bring legal
action in criminal courts, in civil courts, and under administrative or executive governmental
authority. The discussion draws extensively on the experience of the enforcement programs of
the United States and Netherlands, both of which have enforcement programs and legal systems
which fit these assumptions.
This paper discusses four primary factors which affect the choice of formal enforcement
options, beginning with the factor of the principal purposes or goals of enforcement. We identify
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five such goals and evaluate how each of the enforcement choices fits within the framework of
this set of purposes/goals. The additional factors which are described and evaluated are the
factor of legal characteristics and limitations of the applicable laws, the factor of the facts and
circumstances of each particular case or violation, and the factor of practical realities and
considerations. Within each of these sections, the laws and experiences of the United States and
the Netherlands are used to illustrate how each factor can influence and affect the process of
choice among the three types of formal enforcement options.
1 INTRODUCTION
Societies who value environmental protection and governments who have chosen to adopt
policies and enact laws to promote environmental protection must evaluate and address the
questions relating to enforcement of environmental laws if the goals of environmental protection
are to be converted into actual results. This fundamental role for enforcement considerations in
any system aimed at environmental protection provides the background and basis for discussion
of a number of aspects of enforcement. Among those potential topics is the area of specific legal
instruments for the implementation of enforcement in specific circumstances or cases. While
those legal instruments may take a number of forms, three of the most fundamental in western
jurisprudence systems are criminal enforcement, civil judicial enforcement, and administrative
enforcement.
The purpose of this paper is to discuss both the ideal and the actual processes and
factors influencing choice among available enforcement instruments for use in any given case
and for various types of cases or circumstances. We recognize that a discussion of choice among
criminal, civil judicial, and administrative enforcement involves certain assumptions that may not,
in fact, be present in the practical circumstances in which decisions about enforcement are
actually made.
For example, a free choice among these three options requires, in the first instance, that
all three be available. In fact, in the Netherlands, the civil judicial option is available only under
limited circumstances and for limited purposes, as we will discuss more fully later. Briefly, the
limitation arises from the fact that the Dutch environmental laws do not specifically authorize
access by the government to the civil courts for the purpose of enforcing the statutes. Therefore,
the government may use the civil courts only under some general legal theory available to any
private party, such as tort or contract. However, a wide range of situations can be addressed in
this manner, ranging from recoupment of the costs of government response to pollution to
emergency actions to prevent pollution events. Similarly, under certain U.S. environmental
statutes, the civil judicial option is not available for penalty actions (Toxic Substances Control Act
and Federal Insecticide, Fungicide and Rodenticide Act). We should also note here that the
ultimate recourse at the end of all administrative proceedings in the United States is to the courts,
either by appeal taken by the enforcement target or by action taken by the government to enforce
the final administrative action. In that sense there is no purely administrative option.
A discussion limited to choices among these three options implicitly rejects the choice of
informal enforcement options which invoke no specific legal process. In fact, all enforcement
programs make at least some use of informal mechanisms to effectuate enforcement, and both
the United States and the Netherlands have experienced periods of time and circumstances
where there has been fairly extensive use of informal types of responses to enforcement
situations. However, both countries have adopted clear national policies favoring formal legal
response for significant enforcement matters, and we have made a conscious decision here not
to include informal actions among the choices covered by this paper.
Another implicit assumption is any discussion of free choice among these options is that
the same persons or institutions can control decision-making and implementation of all three. In
fact, in both the United States and the Netherlands, the cast of players and decision-makers
changes somewhat depending on which option is being considered. In both systems, for example,
a case that is declined by the prosecuting authorities within the justice ministries cannot be
pursued as a criminal case even if the enforcement decisionmakers within the environmental
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agencies would choose the criminal option for that case. On the other hand, the prosecuting
personnel in the justice ministries are not likely to be involved at all in the dialog and decision-
making as between civil judicial and administrative authorities.
Further, it is important to bear in mind throughout that practical realities may override the
theoretical reasons to prefer one option over another. If one area is hampered by seriously
inadequate resources, disinterest or hostility from key persons or institutions, for example, it will
obviously be a less palatable choice regardless of its apparent correctness for the facts and
circumstances of a particular case. We think that practical limitations are so important that we
discuss them below as one of the factors influencing the decision among enforcment options.
Finally, it is important to acknowledge that the handling of any one case does not
necessarily involve the simplistic choice of just one of these three options. In fact, it is not
uncommon at all that a criminal case may also require some use of civil or administrative process
to address ongoing environmental hazards or recoupment of governmental costs expended to
address environmental damage. Similarly, as noted above, administrative enforcement may have
to be combined with activity in the courts to make it effective in the face of continuing resistance
on the part of the enforcement target. During the course of civil judicial proceedings as well,
administrative authority may be properly used in some circumstances, although that approach
would be extremely rare in the Dutch system. The specific strategies and rationales for integrating
multiple use of these options in a given case is beyond the scope of this paper.
In spite of these complexities, we believe it is possible to improve the implementation of
environmental enforcement through careful consideration of how choices among enforcement
options are being and should be made in both the United States and the Netherlands. We will
discuss in turn the primary criteria or decision factors which we see as relevant to the decision
about which enforcement option(s) are best for a given set of circumstances, using information
about actual practice in the two countries throughout to illustrate these principles and general
ideas.
2 PRIMARY FACTORS INFLUENCING CHOICE OF ENFORCEMENT OPTION
The primary factors affecting choice among enforcement options, which we will discuss in
turn, can be identified as follows:
1. Purposes or philosophy of the enforcement program; goals, results sought, and the like.
2. Legal characteristics, qualities, aspects, and limitations of each type of proceeding under the
applicable law.
3. Nature of the facts, evidence, and surrounding circumstances of each particular case or
violation.
4. Practical realities or limitations affecting the implementation of each option.
3 THE FACTOR OF PURPOSE OR PHILOSOPHY OF THE ENFORCEMENT PROGRAM
3.1 Elements of Purpose and Goals of Enforcement Programs
Although the very idea of an enforcement program implies something about the purpose -
to enforce the law - it is possible to identify a number of aspects of enforcement purpose and
philosophy which are likely to affect the way enforcement is implemented, including the ways
choices are made among available enforcement tools. In general, the purposes behind the choice
to pursue any specific case will be one or more of the following:
1. Achieving compliance by the target of the enforcement action.
2. Promoting deterrence by "sending a message" to this violator and other violators to encourage
compliance now and in the future.
3. Addressing environmental emergencies or hazards of immediate concern.
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4. Reducing overall environmental risks over the longer term.
5. Promoting fairness and even-handedness, and enhancing fair competition through a "level
playing field".
There may also be certain subsidiary purposes, which are usually considered because
they bear some relationship to the primary purposes identified above. For example, the
enforcement authorities may want to test new or unused legal theories in an effort to strengthen
overall enforcement. It may be important to obtain experience in a certain area or type of
proceeding. Certain types of cases may be brought to maintain the credibility of an enforcement
agency or even of specific enforcement instruments or tools. Each of the three types of
enforcement instruments can be evaluated in light of how well it achieves these purposes.
3.2.1 Deterrence and Criminal Enforcement
The criminal option appears to us to be best suited for promoting deterrence, as it is
generally regarded as the most severe sanction available from the standpoint of actual conse-
quences (possible loss of liberty and/or severe fines) and public perception (stigma). It may also
carry additional consequences, as in the provisions of the United States Clean Water (Section
508) and Clean Air (Section 306) Acts requiring the barring of a facility subject to criminal
conviction from participating in government contracts until it is removed from the list of such
facilities. Under the Dutch criminal law, conviction for economic crimes (which include
environmental crimes) can result, for example, in the loss of certain civic rights, required labor,
and/or the stoppage of some or all business activities at the location of the offense for up to one
year. The existence of a record of a criminal offense also has a lasting impact on any violator.
The criminal enforcement process is likely to send a potent message to any violator, and if it is
accompanied by enough publicity to assure that other violators know of the action, it is also a
powerful message to them as well. Even in the deterrence area, however, the criminal sanction
may not achieve the desired purpose if there is a more significant likelihood that the case will be
lost or dismissed, or if the sanctions imposed are too light. For example, if the criminal fine does
not recapture the economic gain obtained through violation and if there is also no imprisonment
or other consequence, a violator may be willing to calculate that it is advantageous to violate the
environmental law even if there is a likelihood of criminal enforcement.
3.2.2 Environmental Compliance and Criminal Enforcement
The idea of environmental compliance should not be entirely separated from deterrence, of
course. The whole point of deterrence is to prompt compliance by not only the target of
enforcement but by others who learn the lesson that violations do not pay. In this sense, criminal
enforcement is well suited to the compliance purpose.
Criminal enforcement can also be an effective tool for achieving specific compliance at a
given facility and for addressing environmental emergencies where the legal system provides a
mechanism for the prosecutor to use legal options to govern the behavior of the violator. In the
Netherlands, for example, both the prosecutors themselves and the criminal courts have the
authority to impose so-called preliminary measures during the period prior to trial. These
measures can impose restraints on certain activities and/or require proper storage of materials.
The preliminary measures authority of the judges entends to orders to partially or completely stop
operations or order an outside administrator be put in control of the business or operation. These
authorities are set forth in articles 28 (for prosecutors) and 29 (for judges) of the Economic
Crimes Act, which applies to environmental offenses, among other economic crimes. These
measures are limited to six months duration, and do not survive the conclusion of the trial. As
part of the final decision in a criminal proceeding, Dutch judges can require total or partial
stoppage of business activities for a one year period, appoint an administrator to the business of
the convicted person, or impose an obligation to perform the acts required by the environmental
laws or to refrain from the acts prohibited by those laws. By contrast, the United States courts
generally do not hear petitions for injunctive type orders in the context of criminal proceedings,
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and U.S. prosecutors do not have any comparable authority to the preliminary measures under
Dutch law. There is some potential for environmental compliance requirements in sentence
conditions, but that requires waiting until the end of the criminal enforcement process, perhaps
including appeals. Bail conditions may also provide some limited opportunity to indirectly govern
compliance behavior in some cases. Other than limited orders directly related to the criminal
case, such as to preserve evidence, court orders for environmental compliance activities and to
address environmental emergencies require the initiation of civil proceedings in the United States.
3.2.3 Risk-based Planning and Criminal Enforcement
The use of criminal enforcement as a tool to address the areas of greatest environmental
risk requires planning and targeting criminal investigative resources and/ or the allocation of
resources to the development of criminal cases on the basis of areas which pose the more
serious risks. In general, a criminal enforcement approach that relies on more or less random
identification of criminal violations, such as through tips or incidental to police patrols, may not be
welt suited to promoting the goal of directing enforcement toward the highest risk targets or
industries. In both the United States and the Netherlands, criminal enforcement has experienced
a period during which criminal cases were identified outside the process of targeting of
enforcement priorities developed for use by the environmental enforcement agencies. When that
type of approach dominates, the criminal enforcement program will fit fully with risk-based
planning only to the extent that compliance monitoring activities targeted by the enforcement
agencies are able to identify criminal cases and to have those cases included with cases
identified through the more random approaches and/or to the extent that the randomly identified
cases are in the priority areas.
The existence of a disparity between the way criminal cases had been identified and the
priorities set by the enforcement agencies has been a concern in both the United States and the
Netherlands, and both governments have introduced some mechansims to enhance the
integration of criminal enforcement with overall enforcement priority-setting. Given the
independence of the prosecuting authorities from the environmental agencies, this has generally
taken two forms, coordination and the selective supplementation of resouces for criminal
enforcement consistent with the goals of the environmental agency. In the first instance, the
environmental agencies and the prosecuting authorities can develop dialogs and coordination
mechanisms to foster joint planning and common understandings about what kind of criminal
cases should be pursued and why. This process of integration between the Ministry with
environment responsibility and the Justice Ministry is particularly well developed in the
Netherlands, where a wide variety of mechanisms are employed to effectuate coordination and
joint planning. These include regional and national groups who meet frequently and involve not
only the environment ministry and public prosecutors (justice ministry), but also the national police
force (interior ministry,, organized into 25 police regions) and provincial (12 provinces) and
municipal (>600 municipalities) officials, all of whom have important roles in environmental
enforcement in the Netherlands. Coordination occurs among officials are all levels, ranging from
the highest elected officials, through senior civil service management, to working-level networks.
The United States has also seen a number of mechanisms for such coordination between
the Environmental Protection Agency (EPA) and prosecutorial authorities in the Justice
Department, ranging from joint participation in national enforcement conferences, joint
participation in environmental crimes task forces in selected areas, sustained coordination by EPA
criminal attorney and investigative personnel with a large number of the ninety-three United
States Attorneys' offices, to coordination between the highest levels of environmental enforcement
management at the Environmental Protection Agency and the Department of Justice.
The environmental agencies also control significant aspects of the resources necessary to
support often complex and technically difficult environmental crimes cases. They have both
investigatory and legal personnel available to identify, develop, and support the prosecution of
these cases. They are also often the best or only source available to prosecutors for technical
assistance in areas like sampling and analysis or disciplines like toxicology, hydrogeology, or
biochemistry. By exercising decision-making authority over how such resources are used, the
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environmental agencies can significantly influence the nature and direction of environmental
criminal enforcement. By this combination of coordinated planning and resource support, risk-
based enforcement planning can be a key factor in the criminal enforcement choice.
3.2.4 Fairness and Criminal Enforcement
Criminal enforcement also has an important role in ensuring fairness and even-
handedness. A fair system should have some way to differentiate between degrees of
seriousness of violations and culpability of violators. The use of the criminal option for the more
serious and more willful violators helps establish an over-all sense that the governmental
response is appropriate to the circumstances. For this factor to be properly served, however,
cases that are similar should be handled similarly. This can be a problem if local prosecutors in
different parts of the country have significantly different views about which cases are appropriate
for criminal prosecution, or if the approach to levels of imprisonment or fines is very different. This
latter issue has been tackled in the United States by the publication of sentencing guidelines
applicable to environmental cases and applicable for judges in all federal courts. Judges may only
depart from the guidelines for good cause stated in the record of the proceedings, and departure
from the guidelines can form the basis for an appeal by either prosecutors or defendants. In both
countries, the central office of the Justice Ministries maintain a role in management and oversight
of the overall nation-wide docket of criminal cases as a mechanism for some control over
consistency. In the United States Department of Justice, the Assistant Attorney General for
Environment and Natural Resources maintains an environmental crimes section which provides
assistance to United States Attorneys for criminal cases and supports the Assistant Attorney
General's role in docket oversight for environmental crimes. Perhaps because of the central role
played by criminal enforcement in the overall environmental enforcement program, the
Netherlands Justice Ministry has developed extensive planning and management programs
specific to environmental crimes. These include the development of guidelines imposed by the
advocates general, who are senior to public prosecutors and who work in the appellate courts.
These guidelines from the advocates general cover the methods of prosecution, appropriate
sentences, settlement provisions, and the like. If a given prosecutor does not follow the
guidelines, the deviation must be justified. In addition, the public prosecutors, including the
advocates general, all report to one of the five regional Prosecutors General, each one of whom
also specializes in one or more types of criminal enforcement, and there is a Prosecutor General
responsible for environmental crimes. There is also a full-time national coordinator for
environmental enforcement within the Justice Ministry who provides a mechanism for the sharing
of information about on-going cases through informal and formal written communications and
meetings. Finally, in both countries the efforts of the environmental agencies to participate in
environmental criminal enforcement through assistance and coordination with the prosecutors
also provide a mechanism for some impact on consistency and common approaches to these
cases.
3.2.5 Summary of Relationship Between Purposes of Enforcement and Criminal Enforcement
In summary, the criminal enforcement option is normally the most effective choice for
maximizing the deterrent impact of enforcment, but its effectiveness for promoting compliance,
addressing environmental emergencies, or supporting longterm planning objectives like risk
reduction depends on a number of factors that may not be present in all criminal enforcement
programs. Proper exercise of criminal enforcement authority fully supports the principle of overall
fairness of an enforcement program.
3.3.1 Environmental Compliance and Civil and Administrative Enforcement
Civil judicial and administrative enforcement appear to be somewhat similar to each other
in their relationship to the basic purposes of enforcement, but there can be important differences.
Both types of authorities permit the issuance of orders for compliance and orders to address
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environmental emergencies. However, if an administrative order does not achieve its intended
result, then the enforcement authorities must begin the process of obtaining judicial assistance in
enforcing the order or obtaining the necessary actions. By contrast, when a judicial order is
issued for compliance or to address environmental emergencies, violations of that order become
contempt of an order of the court, and the full authority of the system to enforce court orders is
immediately available. This availability of oversight by a court can be particularly important when
the compliance activities are to occur over a significant period of time, and it is important to
assure that interim milestones are met. In the United States, court orders are generally preferred
for compliance orders involving the installation of major pollution control equipment, for example.
These orders are often entered by the court on consent of the parties after settlement
agreements are reached. Assuming the ready availability of both civil judicial and administrative
order authorities and comparable ease of use, it would appear that the judicial option is often
preferable for the purpose of obtaining effective compliance. However, as we discuss below, there
may be legal and practical limitations that make these options not equally available or similarly
easy to use.
3.3.2 Deterrence and Civil and Administrative Enforcement
Where the administrative and civil judicial options both provide for adequate sanctions in
the form of civil penalties or similar burdens, they can both be effectively used to promote
deterrence. Since a principle point of deterrence is to motivate the regulated community to comply
before the government identifies them as violators, it is important for this purpose that the
government be able to assure that violators are worse off for being caught by the government
than they would be if they had complied without government involvement. Therefore, both the civii
and administrative sanctions must be capable of imposing penalties in excess of the economic
benefits from non-compliance plus some additional amount necessary to ensure adequate
motivation to choose compliance over the potential consequences of enforcement. For this
purpose, it may be necessary that the sanction exceed the amount of damages caused by the
violations and it is definitely necessary that the sanction not be limited to violations that continue
after detection by the government. (Otherwise, all violators could simply halt violations upon
detection and escape all consequences.) For both of these considerations, there are currently
limitations of the civil and administrative sanctions under Dutch law. Dutch civil courts are
available for use by the governmental enforcement authorities only when the government can
identify a cause of action based on private law, such as tort or contract. Therefore, the primary
monetary sanction available in the civil courts is the recovery of costs expended by the
government in response to a negligent or otherwise tortious act by a polluter. Where the costs of
responding to pollution are significant, the requirement to pay these costs can have a profound
deterrent effect. However, many types of violations do not lead to the expenditure of significant
governmental response funds. Very significant air and water pollution, for example, may move so
quickly in the environment that the government could not undertake clean-up activities. Other
important types of violations, such as those relating to the proper documentation of the
movements of hazardous waste, may not be directly associated with environmental pollution at
the point of the violation. Dutch administrative law currently has no mechanism for imposing
penalty sanctions for past environmental violations, although Dutch administrative enforcement
tools like license revocation and facility shutdown can provide significant sanctions for past
violations. Under certain of the Dutch environmental laws, the competent governmental authority
can impose an administrative compliance order which includes an economic compliance incentive
of significant sums for each day of continuing violation. For types of violations that can be halted
immediately, this mechanism does not provide a deterrence effect or message to other violators.
However, for violations which cannot be quickly corrected, this kind of administrative economic
sanction has deterrence potential, depending on the levels of sanction for each day of continuing
violation, the period of time necessary to achieve compliance, and the relationship of the resulting
sanction to the economic benefits enjoyed by the violator from the period of prior violation. This
administrative economic sanction, called a Dwangsom, is discussed in more detail in section 4.3
below.
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The availability of comparable civil judicial and administrative penalties varies among U.S.
environmental statutes. In the Solid Waste Disposal Act (Section 3008, also known as Resource
Conservation and Recovery Act and generally identifiable as the principle law regulating
hazardous waste) and the Emergency Planning and Community Right to Know Act (Section 325),
the provisions for administrative and civil judicial penalties are essentially identical, with the same
amounts set for each violation per day and with no absolute caps set on the total penalties.
Under the Clean Air and Clean Water Acts, the same amount for each violation per day is
provided, but the administrative option may be selected only up to a limited total penalty
($125,000 for the Clean Water Act, Section 309 and, absent Attorney General approval, $200,000
for the Clean Air Act, Section 113). On the other hand, only administrative penalties are available
for violations of the Toxic Substances Control Act and the pesticides law.
Because there are circumstances where the judicial and administrative options are roughly
comparable in terms of the scope of sanctions, we can consider whether one has any greater
inherent capacity to promote deterrence. One could speculate that the greater formality and the
additional burdens of appearing in the courts might serve to promote deterrence. Because
publicity is so essential to the message-sending aspects of deterrence, it is also possible that
judicial actions are more likely to be newsworthy or otherwise to become more widely known.
Recent United States experience with administrative cases involving very substantial penalities
appears to support the conclusion that these differences in deterrence potential may not be very
great. Big or otherwise interesting cases obtain publicity in both forums, and the higher the
stakes, the more likely the process is to be taken seriously, regardless of forum.
3.3.3 Risk-based Planning and Civil and Administrative Enforcement
To the extent that civil and/or administrative enforcement are available and effective to
achieve compliance and deterrence goals, they can also be managed to maximize the
effectiveness of an environmental enforcement program in terms of risk-reduction. To achieve this
goal, the enforcement program must have mechanisms to channel its investigative efforts to the
areas of highest risk-reduction potential and must also be able to choose which cases to pursue
and how to pursue them at least partly on the basis of risk-reduction potential. In circumstances
where the civil or administrative approach has proven effective in achieving environmental
compliance at specific violating facilities, the use of this kind of enforcement at facilities which
pose high risks would have a direct and immediate impact on the risks which compliance can
affect. For this reason, both the United States and the Netherlands make use of a range of
emergency and longer-range civil and administrative authorities to focus on compliance goals
whenever a facility or situation presents conditions of high environmental risk. When there is
evidence of imminent potential hazard from pollution, both systems are well-equipped with civil
judicial and administrative enforcement responses. Under the Netherlands Clean Air Act, there is
express administrative authority for short duration orders to prevent or control air pollution
emergencies. (Chapter 5). Under most Dutch environmental laws, however, the administrative
tools to address emergency conditions are the dwangsom already discussed and the
bestuursdwang or administrative force whereby the government can, after proper notice, perform
the necessary actions to halt violations and recoup the costs afterwards. Several of the United
States environmental statutes contain provisions for administrative orders to address conditions
involving imminent and substantial endangerment to public health or the environment or similar
language. (CERCLA, Section 106; RCRA, Section 7003, Clean Air Act, Section 303). Under
CERCLA, also known as Superfund, the government may also expend monies to respond to the
release of hazardous substances and seek reimbursement from responsible parties. The civi:
courts are available under Dutch law upon a showing of negligence or unlawful act and the
imminent threat of damages to the government, as, for example, the prospect that the
government will be required to expend response funds. The court procedures provide for a short
proceeding and immediate determination by the president judge based on a balancing of the
interests of the parties. Following such a procedure (called a kort geding), either party may file &
case for a full adjudication of the merits of the claims, may appeal the decision, or the emergency
decision may stand without further proceedings. United States environmental laws make express
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provisions for institution of civil proceedings to obtain court orders to prevent or mitigate actual or
threatened imminent and substantial endangerment to public health and the environment. (See
Section 4.2 below).
Both countries are also attempting to improve the targeting of investigative efforts so as to
improve the effects of overall enforcement in areas of higher environmental risk. Both have
underway a systematic effort to target certain industries, processes, or pollutants for specific
emphasis and study. For example, in the Netherlands, specific targetting of enforcement activities
has been designed and carried out for several important industrial sectors, such as LPG stations
and pesticide depots. In addition to these nationally planned efforts to focus on certain industries
or activities, the regional coordination process has led to special efforts based on regional
problems. In the area between the Hague and Haarlem, for example, there has been emphasis
on enforcement of the Pesticides Act as it affects the flower bulb industry centered in that region.
Public prosecutors have worked out "project sessions" in some of the courts, where a number of
similar cases are dealt with together. Various of the regional inspectorates have emphasized
specific sectors, ranging from grain drying facilities to hospitals. The factors considered in
selection of industrial sectors included the extent of potential environmental threat as well as
extent of activity of that sector, and other matters.
Similarly, in the United States, there have recently been a series of national targeted
enforcement initiatives, such as the 1991 filing of a large group of cases under several laws all
relating to the pollutant lead (Pb) and the multi-media enforcement efforts related to the Great
Lakes, the Chesapeake Bay, and the Mexican border. All of these initiatives were selected partly
on the basis of risk considerations. Region III of EPA is now in the second year of an effort to
develop enforcement responses at sites which were chosen for their risk-reduction potential and
which are studied and characterized on the basis of a risk analysis as a part of the process of
determining whether and how to pursue enforcement. These sites were generally not identified for
attention through the normal process of detection of violations but were initially targetted on the
basis of apparent significance of environmental risk based on available information about
emissions, toxicity, and exposure potential. Enforcement actions have been pursued at several of
these sites, include a steel plant and two chemical manufacturing facilities.
In sum, the close relationship between the planning and priority setting by the
environmental agencies and their ability to make or affect decisions about civil and administrative
enforcement makes possible a close relationship between these enforcement options and risk-
based enforcement goals. Which of these options is better suited for this purspose will largely
depend on which fits better with the compliance or deterrence purpose, and on which is more
practically available and effective.
3.3.4 Fairness and Civil and Administrative Enforcement
An enforcement system is likely to provide for greater fairness if the enforcement agencies
have a range of options to permit a more tailored response to each situation. For that reason
alone, the use of civil and administrative responses for appropriate cases can promote fairness.
The issue of fairness and the perception of fairness can be important in the choice between civil
judicial and administrative enforcement. Civil judicial enforcement usually involves a more
complex and burdensome process, but also a process which provides the opportunity for
determination of the outcome by courts which are independent from the enforcement agency. By
contrast, administrative enforcement is generally more informal and efficient for all participants,
but the adjudication of disputes (that is, the conduct of any hearing or appeal) is, at least in the
first instance, under the control of the environmental agency which initiated the enforcement
action.
Administrative enforcement mechanisms are generally structured to address the possible
concerns about fairness by providing for administrative procedures designed to assure some
separation between the agency as enforcer and the agency as adjudicator. In the Netherlands,
the administrative measures must be preceded by a warning. If violations continue, the
administrative order can be initiated by the enforcement agency, and the recipient of the order
may appeal the order and may seek a stay of its effect pending appeal. The stay request and
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appeal are heard by an administrative court which has the final determination authority without
further appeal. This administrative or executive court is an independent entity within the national
government, which hears administrative cases arising not only in the environment ministry but in
other ministries and at other levels of government. In the United States, the provisions of the law
that establish administrative order and penalty assessment authority also provide for mechanisms
to insure that there are procedural rights for persons against whom such actions are directed. For
compliance orders, it has been determined by the United States courts in most instances that the
, opportunity to challenge EPA action is available when EPA (through the Department of Justice)
brings a civil judicial action to enforce the orders. State of Alabama v. EPA, 871 F.2d 1548, I557-
60 (11th Cir.) cert denied, 110 S. Ct. 538 (I989) (CERCLA orders); Southern Pines Associates v.
U.S., 912 F.2d 713 (4th Cir 1990) (Clean Water Act). For administrative penalty assessments
(and for compliance orders under the Resource Conservation and Recovery Act), the U.S.
environmental statutes provide for the right to administrative hearings which are conducted by
administrative law judges or presiding officers located within the Environmental Protection
Agency, but under requirements which include a bar on mixture of functions between the
enforcement personnel and the adjudicating personnel as well as a bar to communications about
the merits of any case between agency enforcement and decisionmaking personnel, except in the
presence of all parties to the administrative proceeding. Depending on whether the administrative
hearing in conducted under the adjudicatory hearing requirements of the Administrative
Procedures Act, there may be other safeguards to independence of the administrative judges,
such as independence within the general personnel system. In the United States, there is
recourse to the civil courts at the end of the administrative appeals process, so that the particular
action can be challenged on the grounds of lack of fairness, among other things.
In general, there is no good reason why administrative enforcment need be any less fair
than enforcement which invokes independent courts at the outset. Because administrative
procedures can be less burdensome, potentially less costly, and somewhat more informal and
perhaps, therefore, less harsh in tone and atmosphere, they may even be perceived as promoting
fairness. There is also the fact that agency administrative judges can develop considerable
expertise in the environmental laws and related technical areas and may, therefore, be able to
determine the issues in a more informed and efficient manner and be more likely to render similar
results in similar cases. This potential for greater consistency in results for similar cases can be
further enhanced where there is a process for internal agency appeal of the result from the first
level of agency hearing, as is the case for the administrative hearing procedures under the U.S.
environmental laws.
3.3.5 Establishing Legal Precedent Using Civil and Administrative Law
On occasion, it will be important to the enforcement agencies to obtain certain results on
key legal issues in order to strengthen the overall compliance, deterrence, or risk-reduction
effectiveness of enforcement. If, for example, there is is difference between the environmental
agency and much of the regulated community about an interpretation of regulations or permits,
this can lead to widespread failure of regulated enterprises to comply with the agency's
interpretation until the matter is resolved by one or more cases in which the agency interpretation
is upheld. Similarly, if there are issues about whether certain entities can be held liable, such as
individuals who engage in certain activities within the context of employment by corporations, it
may be important to establish the answers to such questions through decisions in enforcement
cases. In evaluating the civil judicial and administrative enforcement options for this purpose, it is
important to know how much weight a decision in either forum will carry, as well as how likely the
matter is to have a favorable outcome from the point of view of the enforcement purpose. It may
also matter how quickly a result is likely to be obtained. Although it generally appears to be
accurate to say that decisions of the courts carry somewhat more weight than administrative
decisions, it is important to remember that United States administrative decisions can also wind
up in the civil courts, and those decisions are determined by the courts under a standard of
review that involves considerable deference to the agency. Whether the civil courts are more or
less likely to render decisions to the liking of the enforcement authorities may vary depending on
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the type of issue or even on the particular part of the country where the case is initially heard. For
technically complex issues or those requiring specialized environmental expertise, it may be more
suitable to attempt to adjudicate the matters in the administrative forum.
In general, the selection of the right set of facts and circumstances for cases designed to
test legal issues may be more important than the choice of civil judicial or administrative forum.
We have not emphasized this enforcement purpose in our discussion of criminal enforcement
because, as discussed below, it is generally desirable in criminal cases that the issue of whether
there is a clear violation be as well established as possible. However, under laws where there are
significant restraints on the circumstances under which civil or administrative cases can be
brought, as is to some extent the situation in the Netherlands, it may be necessary to consider
the use of criminal enforcement proceedings to resolve difficult legal issues that are of particular
importance to an enforcement program.
3.4 Summary of Enforcement Purposes and Choice Among Criminal, Civil Judicial, and
Administrative Enforcement
An enforcement program can evaluate the use of various enforcement options on the
basis of how well each option will promote the basic purposes of enforcement. In both the United
States and the Netherlands, the criminal, civil judicial, and administrative options have the
potential to promote the principle goals of enforcement, although it is difficult to generalize about
which types of mechanisms are always best suited to which enforcement purposes. As we have
discussed, the particular design of each option under the law of each country often makes a
significant difference as to how well suited that option is for a particular purpose. Excellent
examples of those differences are seen in the greater flexibility of the Netherlands criminal
procedures in their ability to obtain environmental compliance and the greater availability of
sanctions in U.S. civil and administrative provisions with the resulting improvement in deterrence
potential. The availability of all three options and their careful and strategic use will maximize the
ability of an environmental enforcement agency to accomplish ail of the primary purposes of
enforcement that are important to the agency.
4 FACTOR OF LEGAL CHARACTERISTICS, QUALITIES, AND LIMITATIONS IN CHOICE
OF OPTIONS
As we have indicated in a number of specific instances above, the specific terms of the
applicable criminal, civil, and administrative laws can make a great deal of difference in the
reasons for selecting one over the other for any particular case. In this section, we identify some
of the key legal or structural characteristics of each of the three options under U.S. and Dutch law
which are significant for purposes of considering choices among the options. It is not our purpose
here to provide a comprehensive or detailed explanation of the legal structure of these three
enforcement tools as set forth in U.S. and Dutch law, but rather fo use examples drawn from
these two systems to illustrate the role of such considerations in the choice among enforcement
options.
4.1 Important Legal and Structural Characteristics of U.S. and Dutch Environmental Criminal
Law
The criminal provisions of U.S. environmental laws are specifically set forth in each of the
environmental statutes, and there is some significant variation among them. All of the statutes
contain provisions for criminal prosecution of knowing and/or willful violations of all or most
requirements, but only the Clean Water Act (Section 309) and the Clean Air Act (Section 113)
contain provisions for criminal prosecution of certain types of negligent (careless) violations.
Generally, the government can prove that a violation is knowing or willful by showing that the
violator knew what he was doing and did so voluntarily, not accidentally. There are some very
limited provisions for strict criminal liability in U.S. environmental laws, as for failure to give notice
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of spills of hazardous substances above a designated quantity (Section 103 of the
Comprehensive Environmental Response, Compensation and Liability Act). Under the various
U.S. environmental laws, criminal sanctions also vary considerably. Contrast, for example, the
maximum $50,000 fine per violation and one year imprisonment for convicted pesticide registrants
and producers under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (Section
14) with the maximum $50,000 per day of violation and three years imprisonment for knowing
violators of the Clean Water Act (Section 309), with double these limits for second offenses.
(These two examples do not include either the lowest maximum criminal sanction found in U.S.
environmental laws or the highest.) Some of the statutes provide for increasing the sanction for
second offenses and for knowing endangerment of persons; others do not. The Criminal Fines
Act also provides a mechanism for increasing maximum fines in environmental cases in certain
circumstances, such as where the death or serious injury of a person resulted from the violation
or where the violator is a corporation. In environmental crimes, as in all other crimes, the U.S.
government must prove the guilt of the defendant beyond a reasonable doubt, and the defendant
has the right to a jury trial.
Under the Dutch environmental laws, each specific law also contains specific penal
provisions, although some of these are limited to defining the violations so that they come under
certain sections of the Economic Crimes Act. (See, for example, Section 28 of the Pollution of
Surface Waters Act and Section 77 of the Soil Protection Act.) Under the Dutch environmental
and criminal laws, there is generally strict criminal liability, that is, the prosecutor need only prove
that the offense was committed by the accused and is not required to establish that the defendant
did so knowingly or willfully. However, the level of sanction can usually be increased upon a
showing that the offender knew or had serious reason to suspect, for example, increased risk to
the health of others (Air Pollution Act, Section 91) or of the pollution of the soil (Soil Protection
Act, Section 78). Similarly, under the Chemical Waste Act (Section 55), acts performed
intentionally are defined as serious offences in contrast to minor offenses when performed other
than intentionally. The Economic Crimes Act, which applies to most types of violations under all
the environmental laws , distinguishes between intent crimes and guilt, or strict liability crimes.
The maximum penalty for intent crimes is two years imprisonment and Dfl. 100,000 for
businesses, in contrast to maximum sentences of six months and Dfl. 25,000 for the lesser, strict
liability offenses. (Alt fines may be added to a sum sufficient to recapture the economic benefits
obtained from the violations.) A few types of environmental crimes are covered under the Penal
Code, where significantly higher prison terms, up to 12 or 15 years, may be available for knowing
endangerment to the public health and threats to life, respectively. Other legal aspects of criminal
sanctions under both systems are discussed above, in sections 3.2.1 and 3.2.2, ranging from
economic consequences like limitations on government contracting opportunities and loss of
control over business operations to personal consequences like loss of rights to civic
participation. Where some of these sanctions are available only under certain of the
environmental laws, as, for example the government contracting provisions found only in the U.S.
Clean Air Act (Section 306) and Clean Water Act (Section 508), then the choice of criminal
enforcement for violations of those laws may also differ.
In addition to the matter of available sanctions and the issue of whether the government
must prove knowing or willful behavior, the legal aspects of criminal law that can affect when and
whether it is a preferred choice include such considerations as the period covered by the statute
of limitations (how long after the commission of the crime the government may prosecute), the
limitations and mechanisms affecting investigations of criminal activity, and the nature and
constraints of the procedural requirements governing criminal trials. One example of the effect of
these factors on choices is the longer statute of limitations period available under Dutch law for
persons who knowingly and willfully discharge pollutions to the soil, air, or surface waters where
they know or should have known that it may cause danger to the public health (Penal Code
Article 173a). Another example is significant differences in investigative tools available under the
Economic Crimes Act and the Penal Code. For economic crimes, investigators have available a
number of tools particularly designed for the investigation of business operations, such as the
authority to impound administrative records and operations, open and sample packages, access
to all places of business operations. Penal code investigative authorities do not include these
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specific tools, but violations carrying longer prison terms (currently four or more years), most of
which are now included in the penal code, open up the use of investigative techniques like wire-
tapping, emergency searches, and preliminary detention of suspects. These differences can lead
a prosecutor to focus an investigation on non-environmental aspects of a case which involves
both environmental crimes and other violations which carry longer potential prison terms.
In the United States, investigative techniques and tools are significantly affected by
whether the investigation is for civil/administrative or criminal purposes. Once the investigation
has focused on potential criminal liability, a number of safeguards for the rights of accused
persons are in effect, ranging from the role of the grand jury in determining whether and how
testimony of witnesses is to be considered in felony cases to the specific Constitutional
requirements relating to interrogations, searches and seizures, and right to counsel.
Finally, it is important to note in this section that the criminal law and criminal procedures
may be very different in their ability to directly impose requirements relating to environmental
compliance. As we discuss in section 3.2.2 above, the Dutch environmental criminal law does
provide significant mechanisms for environmental compliance requirements, while the United
States system leaves that task largely to civil and administrative law.
4.2 Important Legal and Structural Characteristics of U.S. and Dutch Civil Judicial Law
There are a number of fundamental and significant differences between the civil judicial
systems of the United States and the Netherlands which combine to help explain some of the key
legal and structural differences in how these two systems can work for environmental
enforcement. In the first instance, the United States system is in the English common law
tradition, where the decisions of higher courts are binding on lower courts and the notion of legal
precedent (stare decisis) is accorded formal authority. The Netherlands has a code system,
where each judicial decision can theoretically be issued without regard for prior determinations in
other cases. In practice, this difference is not nearly so profound as it might seem. Civil judicial
decisions in the Netherlands are widely reported and prior decisions are relied on by advocates
and judges. Lower courts accord full deference to the determinations of higher courts, and higher
courts are unlikely to reverse their own earlier outcomes. On the other hand, United States judges
can and do distinguish current cases from prior cases in ways that permit some variation from
ruling decisions, and higher courts may on rare occasions abandon prior decisions by reversal.
Consequently, this apparently dramatic difference between the two systems does not appear to
be particularly significant in the current context of environmental enforcement.
Other historic differences, however, do appear relevant in the environmental context. The
first involves a fairly complex matter of legal history in the two countries which we risk severely
oversimplifying, but which basically relates to the role of the government as litigant in the civil
courts. At this point in American jurisprudence, it is a long accepted concept that the United
States government will appear as civil plaintiff for the enforcement and implementation of a wide
range of governmental funtions. The jurisdiction of the civil courts over such actions is expressly
provided in many federal laws, including all of the environmental laws. Compare, for example, the
language of the Clean Water Act (Section 309), where "the Administrator [of EPA] is authorized to
bring a civil action. . . for any [specified] violation . . .in the district court of the United States",
with the langauge of the Toxic Substance Control Act (Section 17), where "the district courts of
the United States shall have jurisdiction over civil actions to. . .compel. . .the taking of any action
required by [the Act]." In general, the U.S. environmental statutes also provide for access by the
government to the civil courts in environmental emergencies, whether or not there is a specific
violation of the environmental laws. See, for example, Section 303 of the Clean Air Act, Section
504 of the Clean Water Act, or Section 7003 of the Resource Conservation and Recovery Act.
There is no comparable history of access by the Dutch executive authorities to the civil courts. In
general, the Dutch legal system has established a clear distinction between governmental (or
administrative) law on the one hand and civil or private law on the other. While the government
can and does appear as a litigant in the civil courts, it enters them largely as a private party, with
claims which are the same as or analogous to claims available to private litigants, such as
contract or tort claims. The notion of effectuating uniquely executive authority in the civil courts is
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mostly alien to the history of civil jurisprudence in the Netherlands. Nevertheless, the Dutch civil
courts do recognize the special nature of the interests which government is entitles to protect and
the special manner in which the potential or actual experience of damages occurs to the
government. Further, there are certain express statutory provisions for the government's use of
civil courts to obtain reimbursement of pollution response costs, such as set forth in Article 21,
paragraph 11 of the Soil Cleanup Act.
As a result of this important historic difference of the role of the courts, U.S. environmental
statutes have routinely provided an enforcement role for the civil courts while Dutch statutes
make no such express provision for use of the civil courts. Consequently, the Dutch government
(national, provincial, or municipal) may seek action from those courts only when it has a cause of
action like those available to all private litigants, such as for recovery of costs expended as the
result of the negligence (tort) of another or to prevent the commission of a tort, i. e. for
emergency action to halt a dangerous situation which, if left unchecked, could result in the
government's being damaged through having to expend funds to respond to the situation. In
these kinds of cases, the key issue is not whether there is a violation of the environmental
statutes, but whether there is an action in the nature of a tort by which the government has been
or appears about to be damaged. Of course, evidence of violation is relevant to the issue of
whether there is negligence, but it is not necessary, and it is not sufficient in the absense of a
showing of damages or the threat of damages. There have been a number of cases successfully
pursued in the Netherlands using this approach, primarily to recoup costs for soil cleanup
activities. State vs. Philips Duphar (Volgermeerpolder) (Civil Court, May 31, I989); State vs. Akzo
(Civil Court, December 12,1990); State vs. Aaprunol (Civil Court, November 10,1989). There has
also been some use of the emergency order authority of the civil courts. State vs. Benchiser
(Supreme Court, April 14, 1988). However, the availability of the civil courts for environmental
enforcement remains limited.
Because of the more extensive role provided for civil judicial enforcement under U.S. law,
it is possible in that system to identify other legal structural factors relating to the civil judicial
option which are relevant to the choice among enforcement options. For example, there are some
important differences among U.S. environmental laws relating to both injuntive (compliance order)
authorities of the courts and to penalty provisions. Under the Toxic Substances Control Act, for
example, there is no express provision for administrative orders for compliance, so that there is
only the choice of the court for obtaining a clear legally binding order to comply. However, the
penalty authority of TSCA is limited to the administrative forum. This creates the dilemma of
either choosing a solely penalty enforcement approach, a solely injunctive action enforcement
approach, or pursuing enforcement in two different forums, even though the issue of liability will
be the same for both. Although TSCA is the only statute that presents this particular scheme, the
Resource Conservation and Recovery Act provides the other extreme: complete injunctive and
penalty authority in both the judicial and administrative forums. Under this statute and most of the
others, the enforcement authorities are generally presented with the issue of whether to seek
compliance orders directly from the courts or whether to first issue such orders administratively,
with the option of seeking to enforce the administrative orders in the courts in the event of
violations of the administrative order. This decision is usually affected by the extent to which it is
important to seek penalties for past violations at the same time, the complexity and duration of
the compliance tasks to be addressed by such orders, the anticipated likelihood of compliance,
and other strategic considerations. However, the choice of whether to invoke the civil judicial
option must be informed by a careful analysis of the specific legal provisions for judicial enforce-
ment contained in the environmental laws that are relevant to the facts of the case. Indeed, the
differences in such provisions may also affect that choice of which environmental statute(s) to rely
on in circumstances where the facts of the case permit a choice among statutes.
4.3 Important Legal and Structural Characteristics of U.S. and Dutch Administrative Law
In general, administrative enforcement authorities can be divided into injuctive or order
authority and penalty authority. Both U.S. and Dutch law contains elements of both types of
administrative enforcement, although the current Dutch environmental statutes do not contain
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provisions for administrative penalties for past violations. The administrative order authority under
both sets of laws, however, is generally very broad and clear. For the same historic reason that
has separated Dutch governmental/administrative law from civil/private law, the
laws of the Netherlands provide for extensive administrative powers to implement and enforce
executive authority. Therefore, under both the General Environmental Act (overall coordinating
environmental law) and the specific environmental statutes, there are provisions for withdrawal or
revocation of licenses (permits) (e. g. General Environmental Act, Chapter 8, Title 8.1, paragraph
8.1.2, section 8.22-8.26; Chemical Waste Act, paragraph 10, section 13-14; Air Pollution Act,
Chapter IV, paragraph 2, section 33-37) and for closure of facilities (e. g. Nuisance Act, Chapter
VII, section 28; Air Pollution Act, Chapter IV. paragraph 3, section 39.) These authorities are in
addition to the dwangsum (order imposing economic incentives for future compliance) and
bestuursdwang (order for governmental implementation of the compliance action), which can be
imposed after warning and are subject to the right of appeal to the administrative court.
U.S. environmental laws do not expressly provide for all of the specific actions detailed in
Dutch law, but most of the statutes do provide for issuance of administrative orders to compel
compliance with the law and implementing regulations as well as orders to prevent, control, or
respond to environmental emergencies. In a few statutes, this is very limited. The absence of
express administrative order authority in TSCA is discussed above. The FIFRA also lacks express
order authority except for the unusual and strong mechanism of the stop sale order provided in
Section 13 whenever a pesticide is believed [by EPA on the basis of inspections or tests] to be in
violation of the Act. The Emergency Planning and Community Right to Know Act also lacks
express administrative order authority. Most of the other U.S. environmental laws do provide for
the issuance of compliance orders (e. g., Section 309 of the Clean Water Act, Section 3008 of the
Resource Conservation and Recovery Act, Section 113 of the Clean Air Act) and/or orders to
address environmental emergencies (e. g. Section 1431 of the Safe Drinking Water Act, Section
7003 of the Resource Conservation and Recovery Act, Section 303 of the Clean Air Act, Section
106 of the Comprehensive Environmental Response, Compensation, and Liability Act). There are,
however, some important legal differences among these provisions. Specific legal and/or factual
findings must be made under the terms of each provision. Of particular interest to the issue of
choice of enforcement option is the provisision of the Clean Air Act emergency order authority
limiting its use to circumstances where "it is not practicable to assure prompt protection of public
health or welfare or the environment by commencement of.. .a civil action."
Administrative provisions for the asssessment of penalties for violations of the
environmental laws are available under most of the U.S. environmental laws, but are limited
under the Dutch laws to the dwangsom provision applicable to the primary environmental laws,
which provides for the imposition of economic incentive sanctions for a specified sum per day for
violations which continue after the imposition of the Dwangsom (General Environmental Act,
Chapter 18, section 18.7-18.16). The legal nature and limitations of both U.S. and Dutch
administrative penalty provisions are discussed at some length in sections 3.3.2 and 3.3.4 above,
and will not be repeated here. It is important to repeat in this area that there are significant
differences among the various U.S. environmental laws containing penalty provisions, and that,
therefore, any choice among criminal, civil judicial, or administrative options must be informed by
a careful analysis of the specific provisions that may be applicable in any given case.
5 THE FACTOR OF THE NATURE OF THE FACTS, EVIDENCE, AND SURROUNDING
CIRCUMSTANCES FOR EACH CASE AFFECTING CHOICE OF OPTIONS
There are vitally important policy considerations that enter into the choice of enforcement
options, as discussed above under the factor of the purposes or goals of enforcement, and there
are also essential considerations relating to the legal and structural characteristics and limitations
of the various enforcement options. Nevertheless, it is also important to remember that the
specific facts and circumstances of each case will have a great deal to do with which
enforcement option is best suited to the particular case at hand. One of the lessons that
enforcement experience teaches is that every case much be considered in light of all the
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information available about that specific case and that enforcement cases cannot be sorted into
general categories with any ease. We recognize, therefore, that any discussion of the kinds of
case-specific factors that affect enforcement will also be too general for immediate application to
specific new enforcement cases. This paper does not attempt to provide any kind of exhaustive
list of facts or circumstances that would determine whether a case is better suited for criminal,
civil judicial, or administrative enforcement. Instead, we try to identify several examples of how
the factor of case-specific facts, evidence, and surrounding circumstances can affect that choice.
5.1 Facts and Circumstances Affecting the Appropriateness of Criminal Enforcement
In general, the fact that the criminal sanction is the most severe also means that criminal
cases need to be clearer and easier to prove in order to succeed. Both prosecutors and judges
(and juries) are reluctant to threaten someone with the stigma of criminality or the threat of loss of
liberty if the legal obligation at issue is unclear or if the evidence of failure to meet that obligation
leaves significant open questions. Consequently, ambiguously worded regulations or permits can
make it very difficult to pursue criminal enforcement even if the acts committed by the alleged
violator are offensive and cause environmental harm. If the requirements of the applicable law are
unclear and it is also not obvious that the acts involved caused specific environmental problems,
then the case is even less well suited to criminal enforcement. This problem of poorly written
standards, actual or apparent loopholes in permits, and similar uncertainties about the obligations
of alleged violators has presented problems with enforcement, including criminal enforcement, in
both U.S. and Dutch experience. As a result, both countries have increased their focus on
improving the enforceability of laws, regulations, and permits. Extremely complicated or
sophisticated legal requirements can also present a problem for criminal enforcement, where the
judge and/or jury may feel that the requirements were sufficiently difficult to understand that the
criminal sanction seems unduly harsh. A related problem arises when there are significant
disputes between the government and the alleged violator about the proper interpretation of the
applicable law. Although the existence of disagreement in legal position between the enforcing
government and defendants in criminal cases is likely to occur in many cases, some of these
disagreements will represent more difficult issues where the position of the defendant has some
significant chance of prevailing in the courts. When the disputes over interpretation are of that
type, the case may be better suited for civil judicial or administrative enforcement.
A problem related to the enforceability of the applicable law is the matter of whether the
evidence gathered in investigations is properly aligned with the applicable legal standard. For
example, are samples of emissions or substances at issue taken in the manner and using the test
methods which match the definitions and specifications set forth in the law or permit? Does the
evidence establish not only that certain acts occurred or failed to occur, but that the potential
defendant is the person whom to law requires to act in the required manner? Under both Dutch
and U.S. laws, certain requirements relating to both the obligation to obtain permits and to
substantive requirements depend on the size of the operation or the volume of materials involved.
Consequently, proof of the total volume of emissions, the amount of waste handled, or similar
facts may be as essential to the case as proof that actions were taken in violation of the
emissions standards or permitting requirements. If there is uncertainty about whether the
evidence clearly establishes all of the elements of the offense, then the case may be poorly
suited for criminal enforcement, where the burden of proof for the government may be greater as
a matter of law, and where, in any event, the risk of the government's losing the case is probably
greater because of the general tendency of criminal judges to exercise additional caution where
criminality and/or loss of liberty are at stake.
One of the types of circumstances which can affect the suitability of criminal enforcement
is the prior history of the involvement of the government with the potential defendant. On the one
hand, a clear pattern of governmental interpretation and actions which should have assured that
the violator knew of the requirements can be very helpful. On the other hand, a pattern of
governmental awareness of the violations without definitive enforcement action or with only limited
and variable enforcement response allows potential defendants to present an argument that the
government actively condoned, either explicitly or implicitly, the violations. Whether or not this
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argument is a sufficient legal defense, it certainly can make the case less appealing, especially
for the imposition of significant criminal sanctions. As discussed in section 4.1 above, the ability
to prove knowing or willful behavior may have legal significance for whether a crime has been
committed and/or for the scope of available criminal sanctions. Even where this kind of proof is
not specifically required, evidence of such behavior is helpful, especially in criminal cases.
Generally, the legal standard for proving intent in environmental crimes in both the United States
and the Netherlands is whether there was general intent, that is, intent to do the forbidden acts,
rather than specific intent to violate the law at issue. However, the case is strengthened by
evidence that the violator formed the intent for some personal or business gain, such as to make
money or to obtain some favorable treatment. It is further strengthened if there is evidence that
the violator was, in fact, aware of the legal requirements at issue. The strongest type of intent
evidence would include evidence of specific intent, that is, premediated action for the purpose of
evading the known legal requirements.
Finally, the choice of criminal enforcement may be affected by the extent to which the
activities have caused and are continuing to cause environmental harm. The seriousness of the
consequences of criminal acts is generally important in determining whether a case makes a
good criminal case. In fact, where there are particularly serious consequences, other concerns
relating to such things as clarity of the legal standard or prior governmental involvement may
become less important. However, continuing environmental harm can present a problem for
criminal enforcement in legal systems where the criminal law is not designed to fashion
injunctions or other requirements relating to on-going environmental compliance. The differences
between Dutch and U.S. criminal law in this regard are discussed in section 3.2.2 above. Where it
is necessary to bring civil or administrative enforcement actions to address on-going
environmental problems, the issue of whether to also pursue criminal enforcement must be
considered. The result could be parallel civil and criminal enforcement, which introduces a
number of complications into the exercise of enforcement choices. Decisionmaking about and
management of parallel proceedings is beyond the scope of this paper, but, as we warned in the
introduction, it is always important to bear in mind that enforcement choices can and sometimes
should involve combining two or more enforcement options.
5.2 Facts and Circumstances Relevant to Differentiating Between Civil Judicial and
Administrative Enforcement
All of the specific facts and circumstances discussed above relate to whether criminal
enforcement is appropriate for cases involving certain issues. If those issues point away from
criminal enforcement toward civil judicial and/or administrative enforcement, there may still be
important case-specific facts or circumstances that favor one of these remaining options. Many of
these will be closely tied to the legal characteristics of these two options, as discussed in sections
4.2 and 4.3. For purposes of this section, assume that we are comparing these two options under
a system like that in the United States Resource Conservation and Recovery Act, where the
administrative and civil judicial options are fully available and provide an essentially identical
range of authorities and sanctions. With that assumption, it is possible to identify certain kinds of
facts that can be significant in choosing between them.
Where the violations at issue are all in the past and there is no need for specific or
detailed requirements for compliance activities, the simplicity and relative efficiency of the
administrative approach has great appeal. Under these circumstances, considerations like the
speed at which the matter can be resolved may not be as important as the overall transaction
costs necessary to accomplish the government purpose, which is usually general deterrence, and
in any event the administrative approach may also be faster. By contrast, a case involving on-
going violations by a stubborn or intransigent violator may be much better suited for the civil
courts, where the powers of contempt and/or general credibility and authority of the courts within
the society may be necessary to alter the violating behavior.
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6 THE FACTOR OF PRACTICAL REALITIES INFLUENCING THE CHOICE OF OPTIONS
Although the policy framework, the legal provisions, and the case-specific facts and
circumstances all influence the choice among enforcement options, these factors cannot be
considered in isolation from the very practical realities of the enforcement system in which the
choices are being made. For example, a system cannot practically choose the criminal
enforcement option with any frequency if there are not enough criminal prosecutors or criminal
.courts to handle the cases. Similarly, no system will want to make use of an enforcement option if
the decisionmakers (i.e. courts) who will hear the cases under that option do not generally
support the use of that option for environmental violations. Often these practical realities can be
identified and addressed over the longer term. For example, the Dutch government has expanded
the number of prosecutors so that both the existing and additional public prosecutors can devote
more effort to environmental crimes. Both U.S. and Dutch enforcement authorities have worked to
provide the courts with the cases and information in those cases which will allow the courts to
understand the importance and suitability of such cases for enforcement in the courts.
One area of practical consideration which merits some further discussion here is the
impact on choices which comes from the involvement of multiple agencies or institutions in the
enforcement process. In both the United States and the Netherlands, civil judicial and criminal
enforcement require the involvement of institutions outside the environmental agencies. In both
systems, criminal enforcement decision-making and implementation is under the control of the
justice ministries. In the United States, civil judicial cases are also referred to the Department of
Justice, which provides the litigating attorneys who serve as lead counsel for the United States in
the civil courts for environmental cases. In the Netherlands, the government must retain private
counsel to represent it in the civil courts. These attorneys, generally referred to as the state's
attorneys, are retained (and paid) in much the same way that private parties secure counsel to
represent them in the civil courts. The involvement of these additional institutions and persons will
increase the transaction costs of the enforcement choices which require their involvement. On the
other hand, the use of these choices will provide for access to the additional resources and
specialized expertise that these institutions and persons bring to the enforcement process. The
effect of these considerations will tend to encourage the choice to limit the criminal and/or civil
judicial option to the more significant or complex cases, although that is definitely not a necessary
result. Indeed, there are currently a significant number of relatively minor environmental crimes
being prosecuted in the Netherlands, probably because of the involvement of the regular police in
environmental enforcement and the resulting high volume of direct enforcement activities
originating from police and prosecutors, sometimes with little or no involvement of the
environmental agencies. Similarly, where U.S. environmental statutes do not provide a viable
administrative option for minor cases, as was until recently the case under the Clean Air Act, a
number of civil judicial cases have been brought for relatively straighforward past violations and
more modest penalties than is otherwise typical in civil judicial cases.
Resource constraints in general is the other practical consideration which merits some
further discussion here. If the resources favor one type of option over the others, that factor alone
will tilt the enforcement system toward that choice. If the resources to investigate or otherwise
identify violations exceed the resources to follow through with enforcement responses, the system
may respond by choosing the easiest or least costly option wherever possible. Alternatively, the
availability of more cases than can be readily pursued may actually enhance the role of decision-
making about enforcement choices because of the awareness that, when every case cannot be
pursued, the choice of which to pursue and how becomes more important. In talking about
resources, it is important to consider not only the number of persons or the amount of money
which is directed toward each enforcement option, but also the nature of the skills, training.
motivations, and experience of the personnel who are available. Again, if these elements of the
resources tend to be significantly stronger for one option, there may be a tilt toward that option
within the system. Finally, the relevant resources are not only those for enforcement personnel
and institutions, but also for the courts or administrative processes where the enforcement cases
are presented and resolved. If there are major delays caused by these kinds of resource
limitations, an otherwise desirable enforcement option may be rejected.
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7 CONCLUSIONS
The process of making choices among available enforcement tools or procedures involves
several complex factors. An enforcement program seeking to effectively manage the process of
choice among criminal enforcement, civil judicial enforcement, and administrative enforcement
must prepare for such choices with a clear understanding of what goals or purposes govern the
enforcement program. Based on that decision, the choices must also be informed by a full
understanding of the legal and structural charactistics and limitations of each of the options as
well as by an analysis of the facts and circumstances of each particular case that is the subject of
the choice. A weighing of the impact of all these factors can result in the choice of the
enforcement option(s) that are best for achieving the desired purposes and best for the case at
hand, so long as any additional practical realities are also taken into account. This paper has
identified the possible goals of enforcement and discussed how the choice of enforcement options
is affected by the choice of goals. We have also attempted to illustrate the role played by legal
structure, case-specific facts, and practical realities, drawing from enforcement experience in both
the United States and the Netherlands. Although the actual process of such choices in other
governmental systems will involve different legal structures and other differences, the analysis
provided here for these two systems illustrates the complex process of enforcement choices at
work. We hope that it will be useful to the enforcement programs of these two countries and that
it will provide a basis for consideration of enforcement choices in other nations as well.
REFERENCES
1 Principles of Environmental Enforcement, USEPA Office of Enforcement (February 19,
1992).
2 Fourth Progress Report on Environmental Law Enforcement, Netherlands VROM (October,
1991).
3 1990 Annual Report, Inspectorate for the Environment, Netherlands VROM.
4 U.S. Sentencing Commission, GUIDELINES MANUAL, Section 2Q (November, 1991).
5 Enforcement Four-Year Strategic Plan, USEPA Office of Enforcement, 21E-2001
(February, 1991).
6 Enforcement Accomplishments Report FY 1991, USEPA Office of Enforcement 300-R92-
008 (April, 1992).
7 Enforcement Accomplishments Report Fiscal Year 1991, USEPA Region Ml (February,
1992).
8 Marzulla, R.J., National Environmental Enforcement Journal, (Dec. 87-Jan 88)3-10.
9 Lefevre, Hans, Enforcement of Environmental Law in the Netherlands, Netherlands VROM
(May, 1992).
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THE ENVIRONMENTAL PROSECUTOR: THE EXPERIENCE OF A "CENTRAL COMMAND"
THEORY OF ENVIRONMENTAL ENFORCEMENT
STEVEN J. MADONNA
Assistant Attorney General/New Jersey State Environmental Prosecutor, 25 Market Street,
CN 118, Trenton, New Jersey 08625 (United States of America)
PERSPECTIVE
The State of New Jersey, like most states in the United States, has a significant
commitment of manpower and resources within the three primary components of its environ-
mental enforcement effort. These include the administrative enforcement elements within the
Departments of Environmental Protection and Energy (DEPE), Health and Labor, which are
designed to secure broad-based compliance with reasonable and realistic regulatory programs
through the use of easily administered fines and penalties; the civil enforcement area of the
Environmental Protection Section of the Division of Law (DOL), which brings to bear the general
civil remedies available in the state court system in the form of prohibitory and mandatory
injunctive orders, as well as civil trial and penalty proceedings; and the criminal investigative
section within the Environmental Prosecutions Bureau of the Division of Criminal Justice (DCJ),
whose presence and efforts are most effective in deterring the repeat offender, the syndicated
criminal, or others who engage in crime for profit or otherwise consider civil penalties as a cost of
doing business. Additionally, the New Jersey State Police Marine Services Bureau and the Solid
and Hazardous Waste Unit each have responsibilities which overlap the three primary enforce-
ment components.
Each of these enforcement components utilize resources of varying degrees of intensity
depending on the nature, extent and timing of the appropriate initiative or response. While each
enforcement mode has the potential to be effective when used properly, each can be grossly
ineffective and even counter-productive if used in an untimely or uncoordinated manner. In an
effort to maximize the State's utilization of these resources, on January 24, 1990, Governor Jim
Florio of the State of New Jersey, USA issued Executive Order #2 establishing the Office of the
State Environmental Prosecutor (OSEP). The State Environmental Prosecutor (SEP) was
charged with the responsibility for coordinating the use of these enforcement resources in order to
maximize their efficiency and effectiveness and to create and integrate them into a compre-
hensive Statewide environmental enforcement program. Additionally, the SEP was required to
personally prosecute those enforcement cases which involve either chronic environmental
offenders, or situations which pose a serious threat to public health or the environment, as well as
ensuring that these "priority cases" receive enhanced and expedited handling.
Steven J. Madonna was designated an Assistant Attorney General by New Jersey
Attorney General Robert J. Del Tufo and appointed by Governor Jim Florio as the SEP. State
Environmental Prosecutor Madonna and Attorney General Del Tufo organized the Office around a
management core concept. Rather than attempt to create an additional bureaucracy in the
enforcement effort, it was deemed more efficient to establish a management core to supervise
and manage the existing resources of State Government in a more effective, coordinated fashion.
Housed in the State's Hughes Justice Complex, the office, totaling sixteen individuals, is
staffed with the SEP, seven Assistant State Environmental Prosecutors, three Investigators, an
Executive Assistant; and four support personnel. Thirteen of the sixteen staff positions were filled
through relocation of staff from other State agencies.
The remarks of Attorney General Del Tufo in the Foreword to the State Environmental
Prosecutor's Second Annual Report summarize the unique role of the Environmental Prosecutor
concept:
"...the Office of the State Environmental Prosecutor is as unique and innovative a
concept as it is new. Just completing its second year of operation, the office's
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experience demonstrates quite clearly that State Government can be more efficient
and effective by simply being more resourceful.
...with the mandate of the Executive Order that all departments and agencies
cooperate fully with the State Environmental Prosecutor, the Office has been set up
to function as a management core. It operates through, and in coordination with,
the numerous State, county and local agencies, divisions and departments involved
in the criminal, civil and regulatory environmental enforcement effort. Acting in this
fashion, the Prosecutor not only oversees the prosecution of "priority cases," but
also works to insure the coordination of initiatives, information exchange, and day
to day enforcement activities. The Prosecutor has also overseen the creation of
environmental units in County Prosecutors' Offices and works closely with them in
enforcement matters. The Prosecutor is not restrained by the arbitrary limitations of
the resources or jurisdiction of any given agency, division or department, nor has
he any vested interest in highlighting or using the tools or resources of any
particular agency, division or department. Herein lies the true uniqueness of the
concept of the New Jersey Environmental Prosecutor. Faced with a significant
'environmental incident,' the Prosecutor has the unfettered discretion to coordinate
the nature and timing of the most appropriate, efficient and effective enforcement
response. Whether it be criminal, civil or administrative, or any combination
thereof, whether it be State, county or local, the Prosecutor is free to exercise his
judgment as to the nature and timing of the preferred response or responses. The
ability to proceed in this "holistic" fashion avoids duplications of effort, contradictory
theories of enforcement, and insures the full and proper utilization of our State
Government resources, irrespective of the division or department in which they
formally reside.
As described, the New Jersey Environmental Prosecutor is a position unique in the
ranks of environmental enforcement."
1 COMPREHENSIVE STATEWIDE ENVIRONMENTAL ENFORCEMENT PROGRAM
1.1 State Agency Coordination
The first step in creating a comprehensive Statewide environmental enforcement program,
one of the primary responsibilities of the SEP, was establishing a system of coordination of the
initiatives, personnel, and resources of the various environmental enforcement Divisions and
Departments of State Government. The SEP initiated the appointment of representatives within
each of the Divisions and Departments to act as liaisons with the OSEP. Assistant State
Environmental Prosecutors were likewise assigned to coordinate and manage the relevant
enforcement activities of these various Divisions and Departments. They have also been
instrumental in establishing working protocols of operation with their respective liaisons and
agencies. The coordination of the use of the resources and personnel within these State
agencies by the SEP is designed to maximize the efficiency and effectiveness of the State
environmental enforcement program as a whole. This effort is being supported by a project to
provide for computer linking and data access between the various Divisions and Departments of
State Government.
In furtherance of this comprehensive program, coordination and supervision by the OSEP
occurs daily in the context of the selection of the appropriate action and agency in a given case
and in other non-case oriented initiatives. These include:
1.1.1 Voluntary Audit/Compliance Program
In an effort to instigate more responsible environmental practices within the State's
business and industry community, the SEP has proposed a Voluntary Audit/Compliance Program,
Drawing upon widely accepted environmental principles, the SEP, working with the Division ot
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Criminal Justice, the Division of Law, the Department of Environmental Protection and Energy,
and the County Prosecutors, and with comments from various responsible practitioners and
members of New Jersey business and industry groups, has drafted a checklist of desirable
business practices which experience has shown will have a positive impact on the pollution
prevention effort. The program provides that the implementation and responsible operation of
these business practices could benefit and assist a business in the event of an unforseen
environmental "incident" which may normally carry criminal ramifications. These business
practices are to be incorporated as factors to be promulgated by the State Environmental
Prosecutor, the Attorney General, and the Director of the Division of Criminal Justice, as a
guidance document to be considered by the State's prosecutors when making decisions on
whether or not to charge an environmental crime, the nature of the charges, and the identity of
the defendants.
It is the belief of the State Environmental Prosecutor that broad-based implementation and
operation of such programs are essential components of a successful pollution prevention effort
and the protection of our natural resources.
1.1.2 Clean Harbors and Rivers Task Force
The upgrading of offenses relating to crimes impacting on the waters of the State of New
Jersey along with the inclusion of the new statutory concept "significant adverse environmental
effect," are key components of the recently enacted New Jersey Clean Water Enforcement Act.
With these new tools, the SEP has established a multi-agency task force dedicated solely to
coordinated criminal enforcement of New Jersey's clean water statutes. This task force has, as
its primary responsibility, the coordinated investigation and prosecution of alleged incidents of
criminal water pollution in a manner which will insure the diligent, but reasoned and uniform, use
and interpretation of the new statutory provisions.
1.1.3 Solid Waste Enforcement Initiatives
The OSEP organized a joint effort by the State Police and DEPE for a one week period in
April to pursue forfeiture actions against solid waste transporters hauling solid waste from a solid
waste transfer station in Newark in violation of State licensing laws. During the around-the-clock
operation, would-be transporters were informed that they were subject to possible vehicle seizure
and forfeiture actions if they hauled the waste in violation of A-901 screening procedures and
truck licensing requirements. As a direct result, the gypsy haulers ceased their illegal operations.
The OSEP continued to coordinate efforts on behalf of the New Jersey State Police
Hazardous Materials Unit and the Solid Waste Division of the DEPE to insure the safe,
environmentally sound and legal movement of soiid waste over the State's highways. Through a
continuing series of vehicle checkpoints in different areas of the State, approximately 2,300
violations have been detected. Appropriate citations were issued and approximately 35 solid
waste vehicles were placed out of service since the implementation of this initiative in 1990.
1.1.4 Scrap Tire Initiative
The OSEP continues to pursue an initiative designed to address the blight of used tires
that are piled up at various sites throughout New Jersey. The impetus for the initiative resulted
from a tire fire that raged at a site in Jersey City. New Jersey, in 1991, sending acrid smoke into
the air for hours and interrupting the flow of traffic on a major north/south interstate highway.
DEPE, at the urging of the SEP, has undertaken a survey of the locations, quantities, and
site characteristics of the worst tire dumps in the State. To date, eleven sites have been
identified and inventoried, accounting for more than 7.5 million tires. The majority of these
abandoned tires are located on lands situated over the pristine Cohansey Aquifer of the Pine
Barrens. The results of the survey will serve as the basis for the development by the State of an
enforcement/remediation strategy with respect to these sites. The OSEP is working with the DOL
and the DCJ to review the facts and circumstances which gave rise to the tire site accumulations
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and to consider enforcement actions against those responsible for creating this menace. Further,
the OSEP has notified State and local law enforcement authorities of the potential fire problem
inherent in tire site accumulations and of the need for increased vigilance.
1.1.5 Pinelands .initiative.
The OSEP has recently joined forces with the Pinelands Commission in an enforcement
initiative designed to protect and preserve the natural beauty and resources of the Pinelands. An
Assistant State Environmental Prosecutor has been assigned with the primary responsibility to
assist the Pinelands Commission in the development and prosecution of civil and criminal
environmental cases occurring within their jurisdiction. This Assistant State Environmental
Prosecutor will meet on a regular basis with staff of the Pinelands Commission to prioritize
enforcement matters and insure that they are given appropriate attention. In furtherance of these
efforts, the OSEP is working closely with the county prosecutors and State and local law
enforcement authorities in the seven counties in which the Pinelands Reserve is located to
prosecute environmental crimes.
1.1.6 Racetrack Initiative
As a result of continuing problems with water quality in waterways adjacent to horse
racetracks in New Jersey, the OSEP initiated discussions and efforts aimed at instituting interim
procedures and permanent solutions regarding racetrack manure handling practices. The aim of
this process has been to have appropriate temporary and permanent pollution control strategies
implemented by the racetracks. This will minimize, if not eliminate, the contamination of the
adjacent waters by manure-contaminated runoff,
1.1.7 Direct Sewage Discharge Initiative
The OSEP continues coordination of the efforts of the Marine Services Bureau of the New
Jersey State Police, various County Health Departments and the DEPE to end direct discharges
of business and household sewage and waste into various waterways, bays, and shellfish
breeding areas of the State of New Jersey. Since the implementation of this initiative in 1990,
399 summonses have been issued by the Marine Police to cease such discharges. Efforts are
likewise underway to address remediation alternatives with local sewage authorities and county
and local health officials.
1.1.8 State Agency Compliance
The OSEP initiated a project that will inventory and make recommendations regarding
compliance problems at State facilities. This project will include the distribution of a request for
information to all agency heads to inventory known environmental problems along with proposed
solutions. The resultant information will provide the basis for a complete analysis of the scope of
this problem. With this information available, it is expected that the Administration will be in a
position to define the measures necessary to result in the State becoming a model of
environmental compliance.
1.2 County Coordination
One important component of the SEP's Statewide environmental enforcement program is
an increased emphasis on county agency enforcement. (The State of New Jersey is divided into
twenty-one regional units of government called counties.) The county prosecutors' offices and
county health departments have been designated as the core of the county component of this
network. They are looked to as the catalyst in each county for the formation of county
environmental enforcement task forces, consisting variously of county Hazmat Teams, county
sheriff's departments, departments of public works, emergency services departments and the like.
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As the focal point of county level enforcement activity, they will be the immediate point of contact
and coordination with the OSEP. As currently operating, information and case referrals move
routinely between the OSEP and the county components.
In 1991, the OSEP completed the training of at least one assistant prosecutor and one
investigator from each county, and has since begun training newly assigned personnel with
classroom and field instruction. Likewise, in 1991 the OSEP arranged for a four day County
Health Inspectors Training Course to sensitize these individuals to the relevant procedures and
operations of the criminal justice system, and the signs and symptoms of criminal conduct.
Although all twenty-one counties have basic environmental enforcement capability, eighteen
counties are effectively operating environmental crimes units, twelve coming into existence in the
last year. Two Assistant State Environmental Prosecutors have been assigned to work exclusively
on the operation and further development of these county environmental enforcement
components. They are responsible for providing the county prosecutors with assistance, including
the necessary technical and legal support to properly investigate and prosecute environmental
crimes cases; designating and assisting with the investigation and prosecution of county level
priority cases; and providing complementary civil and regulatory support when necessary.
1.3 Local Component
Local agency involvement in the overall environmental enforcement effort is critical to its
success. It is the everyday responsibilities of the local police officer, fire inspector, code and
health enforcement officers that provide the opportunity to observe the signs and symptoms of
unlawful environmental practices. In order to identify the proper agencies to make up the local
enforcement component, the SEP has been and continues to meet with various agencies of local
government, as well as organizations such as the Association of New Jersey Environmental
Commissions, North Bergen Volunteer Health Officers, the Passaic River Coalition, the Statewide
Association of County Health Officers, the Morris County Safe Neighborhood Group and the New
Jersey Environmental Federations to review and evaluate the possible options.
1.4 Federal/Interstate Coordination
A Statewide comprehensive environmental enforcement program will invariably have
aspects of enforcement that must be coordinated with adjoining states and various federal
agencies. In this regard, the SEP was designated by Executive Order #2 to be the State's liaison
to other states and federal agencies and accordingly has routine discussions with the United
States Attorney, the EPA Headquarters and Regional Administrator, and representatives of the
adjoining states and their representatives in the Northeast Hazardous Waste Project.
The SEP serves as a member of several national level environmental committees and
working groups - the EPA Steering Committee on Federal/State Enforcement Relationship, the
EPA Advisory Council of the National Enforcement Training Institute and the Environmental
Committee of the Council of State Governments. The SEP, working with the United States
Attorney and the EPA Regional Administrator, are forming the New Jersey Federal/State
Environmental Task Force. This unique project is proposed to include representatives from the
Federal Bureau of Investigations, the United States Environmental Protection Agency, the United
States Coast Guard, and the United States Attorney's Office and New Jersey representatives
including the SEP, the DCJ, the DEPE and other State and county support agencies, as needed.
It is designed to provide a forum for the coordination and investigation of environmental
enforcement cases that have a national or regional significance.
1.5 Public Education and Outreach
The SEP considers public involvement a critical component of the comprehensive
statewide environmental enforcement network both in terms of detection and prevention. For this
reason, the OSEP has placed a high priority on the need to respond to requests for information
and invitations from citizens, community groups and business/professional organizations to
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participate in various events. These events have provided the OSEP with opportunities to
promote more responsible personal and business environmental practices and to familiarize
individuals and groups with the consequences of irresponsible environmental practices, the need
for public involvement in detection and prevention, and the role and strategy of the OSEP in the
New Jersey environmental protection effort.
To facilitate formal citizen involvement and to underscore its importance, the Governor
and the State Environmental Prosecutor announced on September 19, 1990, the implementation
of the Information Awards Program. This program was designed to provide a cash award to
citizens for information that result in fines or penalties from the illegal disposal or ocean dumping
of solid, medical, hazardous, or low-level radioactive waste, disposal or ocean dumping.
2 ENVIRONMENTAL TRAINING PROGRAMS
In addition to training courses sponsored for county prosecutors' attorneys and
investigators, and county health inspectors, the OSEP planned and sponsored training programs
throughout the year for Marine Police personnel, the then Board of Public Utilities investigators,
sheriffs officers, and local fire, police and health officials. Additionally, a program has been
initiated by the OSEP with the Police Training Commission and the Division of Criminal Justice to
incorporate an environmental crimes component within the police training academies.
3 STATE PRIORITY CASES
One of the primary responsibilities of the SEP is the identification, investigation and
prosecution of civil, criminal and administrative priority cases. Whether identified on the State,
county or local level, priority cases are, by definition, those which have an unusually great
potential to adversely impact on the health and safety of our State's citizens, and the quality of
our environment. For this reason, the SEP is charged with the responsibility to handle, or
oversee the handling of, these priority matters and to insure that there is the necessary
commitment of personnel and resources to exact an expeditious and conclusive resolution.
Working with and through the DCJ, the DOL, and the DEPE, the OSEP's efforts have resulted in
indictments, convictions, sentences, administrative enforcement actions, civil actions, Court
orders, penalties, fines, assessments, and debarments, the highlights of which follow:
3.1 Ciba Geigy - Ocean County
After more than seven years of litigation, the SEP successfully coordinated a record
breaking global resolution of the Ciba-Geigy litigation, highlighted by criminal pleas to violations of
the New Jersey Clean Water Enforcement Act by the corporation and the two indicted middle-
level managers. This criminal/civil/administrative resolution package of not less than $63.5 million
could easily become a $75 million package over the next ten years. Resolving the indictment,
civil penalty action, and other issues involving the disposal of hazardous/chemical wastes in Cell
2 of their lined landfill, Ciba-Geigy will pay a $5.5 million civil fine, $3.5 million criminal fine, $2.5
million contribution to purchase wetlands in the Toms River basin, reimbursement of the State's
expenses in excess of $2 million, and the establishment of a $50 million cleanup fund. In what
are yet unliquidated costs to the company, Ciba-Geigy has agreed to install a state-of-the-art cap
on Cell 1 to reduce leachate production to a virtual zero; increase the monitoring wells and testing
at Cell 1; remove and dispose of the Cell 2 liner as a hazardous waste, and close Cell 2;
continue pumping, treating, and re-injecting the Cardinal Drive pollution plume in perpetuity or
until the pollution is removed; all of this to be accomplished under the paid oversight of the
DEPE. This resolution represents a landmark coordinated criminal, civil, and administrative
environmental enforcement package.
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3.2 Exxon Company, U.S.A.
The SEP successfully coordinated the global resolution of the criminal and outstanding
civil issues involving the January 1, 1990 Exxon inter-refinery pipeline rupture. Culminating a 12-
month criminal investigation by the SEP and the Division of Criminal Justice, Exxon, the world's
largest corporation, pled guilty to a criminal negligence violation of the Federal Clean Water Act
on March 20, 1991. Concurrently, a civil agreement was reached, also culminating the lengthy
mediation process by the SEP and the Division of Law. The direct efforts of the SEP working
with the Divisions of Criminal Justice and Law resulted in the payment of an additional $15 million
in criminal and civil fines and penalties, as weli as reimbursement for natural resource damages
to the States of New Jersey and New York and the Federal Government ($5 million in criminal
fines and penalties and approximately $10 million to natural resource damage). This was in
addition to the prior recoupment of $18 million for containment and spill cleanup costs, $25
million for a Marine Operation Study and the costs of the implementation of the preventive
recommendations, and $661,000 for a preliminary natural resource damage study thus bringing
the entire resolution package to $59 million. Additionally, the agreement imposed strict controls
over the reopening and reuse of the pipeline and required training and procedures incident
thereto.
3.3 White Chemical Co. - Essex County
In April of 1990, this Office learned of potentially catastrophic conditions at the facilities of
White Chemical Co. in Newark, including the presence of approximately 8,000 rusting drums of
hazardous chemical on site. The execution of search warrants in May of 1990, developed
evidence which resulted in the State Grand Jury returning a five count indictment in December,
charging White Chemical Co. and its president and owner, James W. White, each with crimes of
the second, third, and fourth degree. The case is currently pending trial.
As a result of information gathered at the scene, the SEP was able to expedite the
issuance by the DEPE of a Spill Fund Directive which allowed the State to begin the immediate
stabilization of the most dangerous threats at the site. During the next five months, DEPE
removed, repacked and/or segregated significant quantities of the most dangerous substances.
DEPE's actions taken pursuant to the initiative of this Office resulted in a substantial reduction in
the risk posed by conditions at the site. EPA has taken over final remediation of the site.
3.4 HUB Recycling, Inc.
The OSEP, operating with the Division of Criminal Justice, returned a 19 count indictment
charging HUB Recycling, Inc. of Newark and its operators and affiliated companies with a range
of environmental and financial crimes arising from the operation of an illegal dump at the HUB
site in Newark. Purportedly a recycling facility, HUB allegedly accumulated over 105,000 tons of
debris under Interstate 78, which was ignited into a fire that raged through the materials, and
resulted in the intense heat warping the girders of the overpass. A civil suit to recoup money
damages was subsequently initiated by the OSEP in cooperation with the Division of Law.
3.5 Hagaman Site - Ocean County
After more than five years of futile litigation by Lakewood Township municipal enforcement
authorities who attempted to halt and remediate hazardous accumulations of solid waste at the
Hagaman site, this case was declared a priority by the SEP in 1991. The SEP promptly obtained
an initial injunction in the Ocean County Superior Court prohibiting Hagaman from operating at
the site, and allowing the DEPE exclusive possession of the site for the purpose of conducting
site stabilization and cleanup.
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3.6 Warren County Garage
Information referred by the OSEP to the DCJ and the Warren County Prosecutor's Office
resulted in the initiation of an investigation into allegations that 55 gallon drums of hazardous
waste were buried by county employees at the Warren County Garage. The SEP designated the
matter as a priority and coordinated the joint agency investigation which culminated with the
return of an indictment against a supervisor in the Warren County Road Department on March 12,
1992, charging him with Release and Abandonment of Hazardous Waste and Toxic Pollutants.
The same Grand Jury also prepared and released a presentment which reflected the genera!
principle that government should set the example for private industry in the environmental
protection effort. It expounded the simple but innovative recommendation that county government
should establish the position of "Environmental Compliance Officer" with the primary responsibility
insuring that county government facilities, operations and personnel are functioning in rigid
compliance with all applicable environmental statutes and regulations. It also noted that the first
responsibility of this new officer should be to conduct a county-wide environmental audit, including
an inventory of the historic and present environmental compliance status of all facilities,
equipment, operations, and employee practices for purposes of remediation and budgeting.
3.7 National Waste Disposal - Mercer County
In a case that resulted in the largest penalty awarded after an Office of Administrative Law
hearing, the OSEP took the lead in prosecuting four administrative complaints by the DEPE
against National Waste Disposal, Inc., a solid waste and hazardous waste collector based in
Mercer County. The claims against National Waste involved the operation of several illegal soiid
waste facilities, unlawful storage and transfer of asbestos, violation of State waste flow directives,
and failure to transport hazardous waste to the appropriate disposal facilities.
Following thirty-one days of evidentiary hearings in the Office of Administrative Law,
Administrative Law Judge Joseph Fidler found that National Waste violated the Solid Waste
Management Act on over three hundred occasions. Judge Fidler recommended an assessment
of $6,000,000 in penalties against National Waste, a revocation of National Waste's licenses to
collect solid and hazardous wastes, and a debarment of the owner from future operations in the
solid and hazardous waste industries.
3.8 Northeastern Recycling - Bergen County
In response to numerous complaints from the Borough of Hillsdale in Bergen County
regarding an unlicensed solid waste facility operating under the guise of a recycler, the OSEP in
cooperation with the DOL, drafted and coordinated the issuance of an Administrative Order by the
DEPE against Northeastern Recycling Co., assessing $3,750,000 in penalties and ordering
cessation of operations. When Northeastern ignored the Administrative Order, the OSEP filed a
complaint in the Superior Court which resulted in the entry of a judicial consent order, which
permanently barred the defendant's operation of the unlicensed facility. The Order further
provided that the DEPE could continue to prosecute in the Office of Administrative Law the claim
for penalties for the unlicensed solid waste facility operation.
3.9 United Wood Recycling - Hudson County
United Wood Recycling of Jersey City was a sham wood recycling operation, which
accumulated a mountain of wood and other ignitable wastes stretching approximately 900 feet
long, 100-125 feet wide and 20-25 feet high. The local fire officials had declared it an imminent
fire hazard and had tried unsuccessfully on numerous occasions to shut down the operation and
stabilize the fire hazard. The OSEP, noting the futility of the State and local administrative
enforcement efforts, declared the matter a priority case and, working in cooperation with the DOL,
initiated a civil injunction action in the Hudson County Superior Court. The Honorable Robert
Tarleton ordered the facility closed, and the operators and property owner to take immediate
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steps to stabilize the site and remove the accumulated waste material. The waste materials at
the site have since been removed and sent to authorized facilities and the operation has been
permanently shut down. In a separate administrative proceeding, the DEPE in conjunction with
the OSEP, issued an Administrative Order and Notice of Civil Penalty Assessment wherein United
Wood was assessed a civil administrative penalty of $140,000. This matter will be prosecuted in
the Office of Administrative Law.
3.10 Diamond Hills Estates Sewage Treatment - Warren County
The OSEP received information that the Diamond Hills Estates sewage treatment plant
located in the Township of Mansfield consistently discharged pollutants into the Hance's Brook in
violation of the terms and conditions of its permit. The OSEP working with the DEPE, not only
initiated enforcement actions seeking a total of $1,657,062 in penalties from the corporate
operator, but has also initiated a search for a viable alternative to the continued operation of the
plant by this corporation.
3.11 Debarments
3.11.1 Solid Waste and Recycling Industry
Six principals and three employees of five New Jersey solid waste carting firms were
debarred, in most cases permanently, from engaging in the solid waste collection/disposal and
recycling industries in New Jersey as a result of settlement agreements finalized in conjunction
with the OSEP. Concluding some seven years of litigation in this restraint of trade prosecution
originally initiated by the Board of Public Utilities, this resolution of the case underscores the
commitment of the SEP to remove undesirable elements from the State's waste/recycling
industry.
3.11.2 Jersey Carting - Bergen County
The OSEP declared as a priority and successfully litigated in the OAL an administrative
prosecution initiated by the former Board of Public Utilities against Jersey Carting and its
principals. Administrative Law Judge Diana Sukovich issued an Initial Decision in this matter
recommending that the owners of Jersey Carting be debarred from the solid waste industry and
pay a civil penalty of more than $100,000, and that their license to haul solid waste be revoked.
Judge Sukovich's decision was based on Jersey Carting's repeated violations of State solid waste
flow directives requiring certain billing disclosures to customers. The Initial Decision has been
forwarded to the DEPE Commissioner for Final Decision.
3.12 Interstate Recycling, Inc. - Union County
In October 1990, the OSEP, working with the DOL, successfully secured from State
Superior Court Judge Frederick C, Kentz, Jr., a permanent injunction closing down a solid waste
facility in Hillside, operating as a sham recycling center. During the latter part of 1991, the OSEP
litigated the penalty portion of the proceeding for nine days in the Superior Court of New Jersey,
Chancery Division and successfully secured the award of a $175,000 penalty to the DEPE for the
illegal operation.
3.13 Standard Tank Barge Cleaners - Hudson County
Over the past several years, Standard Tank of Bayonne had gained notoriety as a
persistent and recalcitrant polluter of the State's waterways. In actions initiated by the OSEP with
the DOL in the New Jersey Superior Court last year, Standard Tank was enjoined from further
violations of its NJPDES permit and from illegally storing millions of gallons of contaminated
wastewater in four barges at Standard Tank's Bayonne facilities. In June 1991, under the
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direction of the OSEP, the DEPE issued to Standard Tank a final termination notice of its water
discharge permit and a denial of air permits for boilers used to incinerate hazardous waste.
These additional steps further solidify the position of the OSEP and the DEPE that this formerly
blatant polluter will not be allowed to continue to operate in New Jersey in disregard of the
environmental laws. As a result of these enforcement initiatives, Standard Tank is currently
operating under severe restrictions, which prevent it from discharging anything into the
waterways.
3.14 Engineered Precision Casting Company - Monmouth County
The OSEP became involved in a matter in which Engineered Precision Casting Company
and its two principals were assessed $4,450,000 in an Administrative Order by the DEPE for
numerous violations of the company's water discharge (NJPDES) permit. This matter is of
significance in that it is the first action brought by the DEPE seeking to hold responsible corporate
officials liable for the violations of the company. Working with the DOL, the OSEP was
successful in arguments to the Administrative Law Judge, later confirmed by the DEPE
Commissioner, that the Water Pollution Control Act allows for responsible company individuals to
be held liable for the environmental misdeeds of the company.
3.15 CPS and Madison Industries - Middlesex County
Longstanding industrial activities by CPS Chemical Company and Madison Industries in
Old Bridge Township resulted in pollution of the aquifer underlying the Runyon Watershed,
ultimately threatening the Perth Amboy water supply wells. As we reported last year, the SEP,
within six months of his involvement, was able to end ten years of maneuvering and technical
delays and secure the implementation of the first phase of the cleanup - the initiation of pumping.
Throughout 1991, the OSEP, the DEPE, and the City of Perth Amboy have continued their
concerted efforts, this time aimed at preserving valuable water supplies by the implementation of
a groundwater recharge program. At the same time, their efforts have been directed at the
companies to undertake soil studies designed to identify any lingering sources of contamination
and the ultimate remediation of the condition.
3.16 Noble Oil - Burlington County
Noble Oil Corporation, located within the Pine Barrens of Tabernacle Township, is a waste
oil processor with significant illegal discharges, on-site contamination and ongoing operational
problems. Enforcement efforts against this company have been undertaken by the State in
various forums without significant success for over a decade. Designated a priority case of the
OSEP, a joint State/local enforcement action brought in the New Jersey Superior Court against
this waste oil dealer resulted in a judicial liability determination and an interim injunction against
the use of certain facilities, and a Court Order requiring the company to pay for a cleanup study.
A temporary shutdown of the facility was ordered by the Court pending Noble's posting of a bond
to pay for an investigation of pollution at the site. The study and litigation continue.
3.17 Texas Eastern Transmission Pipeline Company - Various Counties
The OSEP working with the DEPE, brought to a successful resolution a cleanup/penalty
action initiated against Texas Eastern Transmission Pipeline Company with respect to PCB
contamination at its three compressor stations in New Jersey (located in Hanover, Linden and
Lambertville). The penalty action was resolved in September 1991 for $1 million dollars
($850,000 in penalties and $150,000 in administrative costs) payable in three installments over
two years. Likewise, the clean up of the contamination was undertaken by Texas Eastern at its
expense pursuant to an ECRA Administrative Consent Order.
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3.18 Cardile Property - Cape May County
In the Spring of 1991, the OSEP learned that numerous enforcement actions taken over
the past three years by no less than three separate Divisions within DEPE had failed to deter a
chronic offender from continuing illegal solid waste dumping and coastal wetland filling activities in
an area directly adjacent to the Grassy Sound in Cape May County. The OSEP quickly brought
the various enforcement staffs together, consolidated all the violations and obtained a permanent
injunction in the Superior Court, not only restraining this offender from further violations, but also
requiring the defendant to develop a plan of remediation and to implement the terms of the plan
at his expense. Penalty aspects are pending.
3.19 Saudi Diriyah - Cumberland
The OSEP was notified by the State Police Marine Bureau that they had retrieved a plastic
bag of solid waste from the Delaware Bay, which was directly traceable to a Saudi Arabian
registered vessel which had recently passed through that area. After researching the best legal
sanction for this type of violation, the OSEP contacted the Coast Guard and proposed a
cooperative prosecution under the MARPOL Protocol which implements the "International
Convention for the Prevention of Pollution from Ships." On the basis of the evidence secured by
the State Police Marine Bureau, the Coast Guard was able to assess a civil penalty of $20,000
against the owner of the vessel - the first such MARPOL prosecution undertaken by the Coast
Guard operating out of the Philadelphia Port. As a further part of the resolution package, the
owners equipped the vessel with an incinerator, gave written warnings to the subject vessel and
master that reoccurrence of the violations will not be tolerated, and sent letters regarding
compliance with MARPOL regulations to all of their other vessels.
3.20 Secaucus Municipal Utilities Authority
A series of illegal connections to the Secaucus Municipal Utilities Authority ("SMUA") made
by a variety of high-usage commercial developers who were improperly sanctioned by the SMUA
were brought to the attention of this office. The OSEP expended significant hands-on efforts to
resolve the matter in an expedited fashion. This resulted, on August 31, 1990, in the entry of a
consent judgement by Judge D'ltalia, Hudson County, settling the matter. Fines in the amount of
$1.52 million (the largest penalty ever collected in a single action under the New Jersey Water
Pollution Control Act) were assessed against the SMUA for allowing illegal connections and
against the illegal connections. The fines are scheduled to be paid over the next three years. In
addition, sewage system improvements in the $400,000 range will be performed by Hartz
Mountain, Inc. as a result of the settlement. This case highlights the effectiveness of the SEP
concept. By being able to marshal) all of the appropriate information and devote a significant
amount of time to a case over a short period of time, a very large penalty was obtained.
Furthermore, the resources of the MJDEP and the Division of Law, while used extensively during
the negotiations of the settlement, will not be required in lengthy litigation.
321 Criminal Sentences
Working with and through the Division of Criminal Justice, and the County Prosecutors'
Offices, the OSEP has meted out almost 27 years of incarceration against 17 defendants during
the first two years of its existence, yielding an average of over 1 and 1/2 years of jail time per
defendant. Examples of particular sentences include the following: the president and vice pres-
ident of a New York international trading company were sentenced to three years each in State
Prison for the illegal storage and abandonment of hazardous waste; a laboratory employee was
sentenced to thirty days in the county jail and three years probation for the abandonment of bags
and boxes of medical waste; a company executive was sentenced to two hundred days in the
county jail and three years probation for the unlawful discharge of oil based products containing
PCBs, which could have flowed into the State's waters; an owner of a surplus supply company
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was sentenced to 180 days in jail and five years probation for his role in the release,
abandonment and storage of hazardous wastes (toluene, ethyl, benzene, mercury, lead,
chromium, etc.), along with creating the risk of widespread injury; the owners of an auto salvage
company were sentenced to 300 days and 150 days in the county jail, respectively, for their roles
in the dismantling of an oil tanker containing petroleum residue and other pollutants which were
discharged into the ground; the owner and employee of an auto body shop were sentenced to
nine, months and six months in the county jail, respectively, for their roles in the illegal
transportation and disposal of hazardous waste; an unlicensed hauler was sentenced to five
years in State Prison after being convicted of the unlawful transportation and disposal of
hazardous waste; the President and an employee of a graphics company were sentenced to a
year less a day and 6 months in the county jail, respectively, for their roles in abandoning drums
of hazardous waste in adjacent counties; and a property owner was sentenced to five years in
State Prison for releasing a toxic pollutant, illegal landfilling, and illegally operating a solid waste
collection business.
4 CONCLUSION
The appointment of a State Environmental Prosecutor in New Jersey has had a significant
positive impact on the environmental enforcement effort in the State. The utilization of this
"central command" theory of enforcement has replaced the uncoordinated and often times
ineffectual efforts of the past with calculated and coordinated enforcement initiatives. No longer
are the components of the New Jersey enforcement effort uninformed or ill equipped to respond
to day to day challenges.
The coordination of the various enforcement arms of the State agencies into one
command has permitted the State to maximize the use of its personnel and resources in the form
of joint agency initiatives and diligent and effective prosecutions.
This has led to previously unparalleled successes in the enforcement of New Jersey's
environmentaf laws. Chronic polluters and offenders have been systematically neutralized to the
end that compliance is the rule and not the exception.
The State Environmental Prosecutor has methodically molded the numerous State,
County, and local enforcement elements into a comprehensive environmental enforcement
"machine", with institutionalized lines of communication and protocols of operation. Relevant
information is introduced into the system and allocated to appropriate levels and components of
the program. Civil, criminal and/or regulatory responses are informed, measured, and
coordinated to insure the most effective and efficient response.
Priority cases are prosecuted from a position of strength, with the necessary complement
of information and resources. Potentially volatile environmental issues are moved through the
courts with the dispatch necessary to avoid a repetition of the, at times, "catastrophic"
consequences of the past. Reasoned, diligent, and effective prosecutions are the hallmark of
New Jersey's new "centralized command" approach to environmental enforcement. Responsible
environmental practices within the regulated community are the result.
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THE APPLICATION OF CRIMINAL LAW INSTRUMENT IN THE ENVIRONMENTAL LAW
ENFORCEMENT
HAMZAH, A.1 AND SURACHMAN, R.M.2
1Public Prosecutor for the Republic of Indonesia
2Senior Public Prosecutor for the Republic of Indonesia
1 INTRODUCTION
1.1 Indonesian Environmental Legislation
The Stockholm Declaration on Human Environment (1972) also triggered the Indonesian
government to develop an environmental management policy and to materialize the
environmental protection programs in line with the policy. Nevertheless, it was not until 1978 that
the Ministry of Environment came into being. Four years later the 1982 Environmental
Management Act was promulgated. This Act is intended as the "umbrella provisions" under which
the future Indonesian environmental legislation will be drafted. 1
It does not mean, however, that prior to 1982 there were no legislation dealing with the
environmental protection, environmental management, and environmental enforcement.
Munadjat Danusaputro, the first Indonesian Professor of Environmental Law, divides the
Indonesian environmental legislation into the classical type and the modern one. Whereas the
classical type consists of laws and regulations promulgated during the Dutch colonial time, the
modern type consists of laws and regulations enacted after getting the independence.2
The first type is rigid, sectoral, and consumption oriented,3 such as reflected inter alia in
the 1920 Fishery Conservation Ordinance, the 1926 Nuisance ordinance, the 1931 Wild Animal
Ordinance, the 1936 General Water Regulation, and the 1941 Nature Protection Ordinance.
The second type is flexible, integrated, and environmental oriented,4 such as found inter
alia in the 1948 Cities Planning Ordinance, the 1960 Health Basic Act, the 1964 Atom Energy
Act, the 1973 Continental Shelf Act, the 1982 Environmental Management Act, and the 1990
Conservation of BioNatural Resource Act.
Equally important, criminal provisions relating to environment have been sporadically
prescribed in the 1915 Indonesian Penal Code. For example, articles 202, 203, 204, and 205
stipulate the protection of human health; articles 172 and 502 stipulate the nuisance; and article
302 and 540 stipulate the protection of animals. Still, in case of these penal code offences the
attention is focused on the offender or the sanctioned conduct not on the interest of
environmental protection or environmental management.5
1.2 Environmental Law: Revisited
Since the time of Hammurabi men have searched the meaning of law. Yet what Kant
indicated not less than two hundreds years ago remains unchained: "Noch suchen die Juris ten
eine Definition zu ihrem Begriffe von Recht."6
It is not easy indeed to find a definition of law that would meet the satisfaction of all
jurists. The same is true of formulating the meaning of environmental law. For the purpose of
writing this work paper only one definition has been chosen. It says that environmental law is
part of the law dealing with physical environment and it is applicable to prevent or to overcome
the problems of environmental pollution, environmental exhaustion, and environmental damage.7
According to this definition, the environmental law deals only with the physical
environment, or the physical surroundings of men. It does not deal with the social environment,
or the relation between men and their surroundings.8 Hence, the Indonesian environmental law
does not deal, for example, with the so called "cultural pollution" of Bali Island caused by the
continuing influx of foreign tourists.
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The meaning of environment for men, on the other hand, may be found in the quality of
environment. This environmental quality has some relations with the environmental value for
human health and safety, with the environmental vaiue for a variety of utilizations, and with the
environmental values themselves detached from particular utilizations.9
Also, we should mention environmental problem. This problem is a social phenomenon
too and not mere a natural science one. As a result, the environmental problem deals also with
social phenomena such as population growth, migration, and social behaviour in the forms of
producing, migration, and recreating.10
We may say that the environmental problem is the deterioration of environmental quality. This
deterioration may be seen in the forms of environmental pollution, environmental exhaustion, and
environmental damage.11
1.3 The Function of Environmental Law
Functionally, the environmental Law provides the norms for the positive side of social
behaviour. The norms may directly command or prohibit the society. However, the
environmental law often provides norms indirectly. That is quite true when it gives a ground upon
which the authorities provide norms to the regulated persons.12 In the meantime, the existence
of a good environmental law is not a guarantee for a good environmental quality. Some more
factors such as education, technics, and financial incentive are needed to gain that quality.13
1.4 Environmental Oriented Development Concept
Within the context of Indonesia the function of environmental law is to guard and to
champion the policy of the environment oriented development concept,14 or to stimulate further
economic growth without permanent damage to environmental quality. The time is due for the
Indonesian people to reach the goal of "sustainable development", or "the development that
meets the needs of the present without compromising the ability of future generations to meet
their own needs. 15
2 ENVIRONMENTAL LAW ENFORCEMENT
2,1 Cross Section of Legislations
Despite its modem characteristic, the present environmental legislation also proofs to be
an intricate one. Environmental legislation is indeed a cross section of a variety of laws,16 such
as constitutional law, administrative law, civil law, criminal law, and tax law as well.
The constitutional law describes the public organizations and its powers to apply and to
enforce the environmental law. The administrative law regulates the environmental policy and
environmental standards such as the system, the procedure, and the control of licensing. The
civil law provides remedies for obtaining compensation for environmental damage. The criminal
law provides coercive norms under which the people obey the environmental law. And the tax
law may be violated in case there is any infringement of environmental laws motivated by
economic but illegal goal.
2.2 Environmental Regulatory Chain
The environmental law may be enforced by two methods. Monitoring compliance through
negotiation, licensing, and control is the preventive method. On the other hand, sanctioning
against violations through administrative law, civil law, or criminal law instruments is the
repressive method. 17
Thus, environmental law enforcement may be understood as:18
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to mean the observance of the environmental law through supervising and
inspection, as well as the detection of violations of that law, the reparation of the
environmental damage it has caused and taking legal action against the
offender(s).
Enforcement is generally the weakest link in the regulatory chain of any government
environmental policy plan. The process cycle of the plan consists of legislation, standard setting,
licensing, implementation and enforcement. The movement of the cycle is continuing and the
feedbacks of enforcement become beneficial inputs for the legislation process. To tell the truth,
adjustment and correction of environmental legislation would be more successful if it is based on
the experience obtained in the enforcement process.19
Particularly, in Indonesia factors like geography, education, technic, instrument, and
finance have a great impact upon the present situation of environmental law enforcement.
2.2.1 Geographical factor
Indonesia consists of five big islands and about 13,600 small islands and the population,
which is pluralistic in nature, has reached over 180 million. Due to its different background in
culture, tradition, value, and religion, it is not unusual if they have different insight too. Some of
them need special protection of the Government with special treatment and even with special
laws and regulations. And to reach the people living in remote and isolated areas, the
communication system should be improved and an information network should be installed.
2.2.2 Educational factor
Actions and measures should be taken systematically to help the people become more
aware of law and more familiar with ecological matters. And it is necessary for the people to
realize, that the ignorance of law is not a good defence for not obeying the law.
2.2.3 Technical factor
Generally the law enforcement agents lack of experience, sound knowledge, and technical
skill in handling environmental offences with effective and efficient. Therefore, intensive but
comprehensive training on environmental law enforcement should be organized for groups of
civilian investigators, police, public prosecutors, and local as well as provincial government
officials. The next step is public prosecutors specializing in environmental problems should be
appointed to be involved in every stage of environmental law enforcement. Likewise, the judges
should be familiar with the environmental laws and regulations.
2.2.4 Instrumental factor
A regulation on environmental impact assessment was promulgated in 1987. It is followed
by setting the standards of surface water, effluent, liquid waste, ambient air, and emission. Yet
some more legal instruments should be provided to implement the 1982 Environmental
Management Act. For example, there are no regulations to compensate victims of environmental
damage; to assign activities for which "strict liability" principle be applied in case of environmental
damage occurs; and to prosecute the corporation because of its criminal liability in committing an
environmental offence.20
2.2.5 Financial factor
In addition to technical know how and managerial skill, adequate financial incentives are
needed for the success of environmental protection programs. Likewise, big budget and funds
must be available if the role of environmental law enforcement will be intensified.
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in spite of those factors, the Government is now more firm in stressing the increasing role
of enforcement. What is more, the year of 1991 was declared by the Minister of Environment,
Professor Emi! Salim, as the Environmental Law Enforcement Year of Indonesia.
2.3 Instruments of Enforcement
Legal norm and legal instrument are the two sides of a coin. Legal instrument is the tool
to maintain, to control, and to enforce the norms.
the environmental law may be enforced by administrative instrument, civil instrument, and
criminal law instrument. This order does not reflect a preference of applying each of those
instruments. All of them are of the same importance. For example, it is possible to apply criminal
law instrument as the first choice, especially if the norm has been intentionally violated or if the
violation is committed by a repeater or if the environmental damage is serious and irreparable.
Again it is not unusual in some jurisdictions (e. g. in the Netherlands, in the United Sates,
and in Canada) that environmental law is enforced through the parallel proceedings, where
administrative actions or civil actions are pursued simultaneously with criminal actions.21
2.3.1 Administrative instrument
It is proportionally effective, however, to apply the administrative instrument if the offence
is trivial and the environmental damage is reparable. Mostly the government officials having local,
provincial or sectoral jurisdiction are vested with powers to apply this instrument. They have
authority to stop environmental standard; consequently, they have authority to stop violations of
the environmental standard. Whereas criminal law instruments are designated to impose
sanctions on the violator, administrative instruments are focused on the violation.22
In the Netherlands the administrative sanction may be in the form of bestuurdwang.23 and
in Indonesia it is called paksaan pemeliharaan hukum.24 Both are the same: action taken by the
administrative authority without the intervention of the court. In the United States it is known as
administrative action.25 Some of the administrative actions are known as "police powers" in
administrative law. The actions are used only in exceptional circumstances and known in many
countries.26
Next, there is penalty for noncompliance. In the Netherlands it is called dwangsom.27 or
"administrative daily fine" and it is almost similar to administrative fine known in the United
States.28 Again, there is the sanction of revoking the permit or the license. This is the most
severe administrative action and known in most countries of the wortd.29 In Indonesia this
measure is provisioned inter alia in the 1926 Nuisance Ordinance.
Last year Indonesian administrative courts just began to operate under the Act No. 5 of
1986 concerning the Administrative Justice System. It means it is possible now for any person or
a private legal person to ask administrative judge to test the validity and the legality of an
administrative action taken against the person.30
In the Indonesian administrative law, any administrative action taken in the form of
ketetapan which is the same as beschikkinq in the Netherlands administrative law is a juridical
decision. Therefore, any government authority taking such action should adhere to "the principle
of good administration". The administrative court may annul his decision otherwise.SOa
2.3.2 Criminal Law and Civil Instrument
Particularly, in Indonesia people like to resort to criminal law since civil proceedings will
take years. And equipped with coercion powers, public prosecutor in Indonesia will enforced the
final judgment of criminal court in an expedient means. The enforcement of final judgment in civil
proceedings will take longer time. Other factor for the choice is the possibility of imposing more
severe criminal sanctions on some offenders. For the committing of certain environmental
offences the suspect is detainable in Indonesia.
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Civil instrument wi!i be the first choice when there is no sufficient evidence for criminal
proceedings. Legally and practically, in civil proceedings the onus of proof is less strict than in
criminal proceedings.
In Indonesia, public prosecutor as lawyer of the State may appear in civil proceedings
when the state is the party. In the future civil instrument will be increasingly importance for the
enforcement of environmental law in Indonesia. The instrument will be possibly applied to claim
compensation of a serious environmental damage in particular. Also it will be applied widely to
secure injunctions or in case criminal prosecution can not be instigated due to the lapse of
time.SOb
2.4 Factors of the Enforcement
As has been noted, all of the legal instruments are of the same importance. In practice,
the choice of the appropriate instrument to be applied will depend on some factors of the
enforcement.
Therefore, it will be more effective and efficient if the enforcement agents proportionally
consider the following factors,31 such as, whether:
(1) the offence is a dolus (not a culpa)
(2) the offence is very serious
(3) the offence is very sensitive because of publicity
(4) the offence is not willing to cooperate in securing compliance
(5) the offender is a repeater (recidivist)
(6) the offender is a corporation (not an individual)
(7) the proof of guilt needs sophisticated evidence
(8) the environmental damage is irreparable
(9) the cost of administrative sanction is not recoverable because of e.g. bankruptcy(IO) the
reaction of the local community as the victim of environmental violation is strong
If the answers to those questions are positive, it is appropriate to apply the criminal law
instrument at the earliest stage of enforcement.
3 ENVIRONMENTAL LAW ENFORCEMENT THROUGH CRIMINAL LAW INSTRUMENT
3.1 Ultimum Remedium
As has been noted, the order of the legal instruments, viz. :administrative, civil, and
criminal law instrument does not reflect a preferential order.
At the same time, in some countries criminal law has played only a supporting role in the
enforcement of environmental law. Criminal law instrument, moreover, in the past regarded
traditionally as the last resort, or ultimum remedium. Within the context of the adage, criminal law
proceedings will not be pursued, unless administrative action or civil action has been taken but
failed to reach the desired results.32
3.2 Current Trend
That traditional view has gradually changed. This is due to the fact that the role of the
criminal law relating to environmental offences is of increasing importance. For example, in the
Federal Republic of Germany some efforts have been done to extent the sphere of criminal law
by formulating new offences and changing the nature of delicts.33 And then in 1980 a new
section under the heading of "Offences Against The Environment" was inserted into the German
Penal Code. One of the reasons is to expose the socially harmful nature of environmental
offences to the attention of the public.34 What is more, at the Eighth UN Congress held in
Havana, Cuba (September, 1990) Germany called upon the member states inter alia "to give
more effective shape to their criminal law relating to environmental offences."35 Earlier, Germany
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had been successful in strengthening the criminal law to protect environment at the Federal as
well as Lander level. Hence, some regulatory statutes (Ordnunqswidriqkeiten) relating to the
environment have provisions referring to Penal Code.36 Further, the Seventeenth Conference of
European Ministers of Justice held in Istanbul, Turkey (June, 1990) gave a positive response to
the proposal of Germany on the harmonization of the criminal law of each participant states
relating to environmental offences.37
In the Netherlands, the adage of ultimum remedium within the context of criminal law
instrument has been left. The reason is it often led to discussions between administrative officials
and the public prosecutor about the question if the last resort situation had been reached.38
3.3 Other Efforts and Measures
The experience of several countries has revealed that compliance may be easily secured
only when the promotion or the enforcement is backed by criminal sanctions.
Some industrial countries and a few developing countries have followed German path.
They have reshaped their criminal Saw relating to environmental offence inter a|ia by introducing
new section dealing with crimes against the environment in their penal code.39
In some European countries such as Portugal, Spain, Hungary, and, before 1992, the
Soviet Union, serious environmental offences have been part of penal code.40 The situation is
the same in the Netherlands, moreover, a great number of environmental offences have been
categorized there as economic crimes. Accordingly, the criminal proceedings of such offences
are ruled by special procedure stipulating in the WED (Wet Economische Delicten. or [the 1950]
Economic Crimes Act).
This categorization has some advantages. For example, the investigators have greater
power; the public prosecutor can apply provisional measures and has more opportunities to settle
the case out of court; and the judge specialized in economic crimes can impose a variety of
special sanctions and measures.41 And although there is no suspicion of any offence, inspection
is permitted, and search as well as seizure are more possible. In short, police power under Dutch
environmental law are somewhat more extended than under general criminal procedure.42 This
practice derives from the rule under the Dutch penal code, which is in harmony with the legal
maxims: lex specialis deroqat legi general! and generalibus specialia derogant.
3.4 The Role of Public Prosecutor
Generally, public prosecutor has more privileges then the police in relation with the court.
He is, in any event, the filter of the criminal justice system, since in committing criminal cases to
trial, the court is dependent on the decision of the public prosecutor whether the prosecution will
be conducted or not. Even in jurisdictions where the decision of public prosecutor in dropping the
case needs confirmation of the court, most of the time the court will give a positive response to
the demand of the public prosecutor.43
To be sure, in countries where the police have a very limited discretionary power, the
prosecutorial discretion of the public prosecutor is of great importance, especially if he holds the
powers of investigation as well as the power of directing any other law enforcement agency.
Within this context, the public prosecutor of Japan or of the Netherlands is the right model of the
public legal officer holding the key position in the administration of criminal justice.44
In Japan, the prosecutorial power has long been monopolized by the public prosecutor.
And the suspension of prosecution system, which has gained public acceptance in Japan, has
been practised widely, by which the public prosecutor is allowed to suspend the prosecution of
an offender, if he deems the prosecution appear unnecessary "because of the character, age
and environment of the offender, the gravity and the circumstances of the offence, or the
conditions subsequent to the commission of offence."45 As a result, more than 50 per cent of the
property cases (e. g. theft) committed by very old offenders are practically dropped by the public
prosecutor. 46
In fie Netherlands, the dropping of the procedure is exercised widely by the public
prosecutor and has long been recognized as the "normal" decision and is independent on the
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consents of the court. As a result, less than 50 per cent of the cases delivered to the prosecution
service end up in court.47
3.5 Opportunity Principle Versus Legality Principle
The prosecutorial discretion practised in Japan or in the Netherlands has its roots in what
is known as the "opportunity principle", or "the principle of discretionary prosecution. "Under the
opportunity principle, the public prosecutor may decide not to prosecute the case if the
prosecution is inappropriate, undesirable, or if it poses greater harm to the public or the
government than to nonprosecution decision. In contrast to this, under the "legality principle", or
the principle of mandatory prosecution, the public prosecutor almost always has to commit any
case to the court for its adjudication.48
France has applied the opportunity principle since the years of the revolution. It was then
followed by several continental countries such as the Netherlands, Belgium,49 Norway,50
Sweden and later adopted in Japan, Republic of Korea, lndonesia,51 and Israel. Italy, Australia,
and Germany, on the other hand, have chosen the legality principle. In Italy and Austria only the
court may drop the procedure at the request of the public prosecutor after considering the
circumstances of the offence or the offender.52 Whereas Germany, after having applied this
principle very strictly, eventually gave room for the exceptions as can be seen in articles 152,
153153e, 154154e of the Strafprozessordnung.53
In Germany, for example, the public prosecutor, may drop the cases (including of house
breaking, white collar offences and nonviolent sexual assault on children, saves those serious
crimes such as murder, robbery, arson, and rape), if "he thinks that the degree of guilt is low and
that public interest does not require a prosecution."54 In the event that the dropping of procedure
needs confirmation of the court, the court will almost always give it.55
Within the context of environmental offences, practically the public prosecutor of Germany
has wide discretion too. It is interesting enough that most of environmental offences, economic
offences and not serious offences (petty offences, or contraventions) are stipulated in
Ordnunqswidrigkeiten; consequently, the public prosecutor of Germany may drop such cases. In
other words, German prosecutors may apply discretionary prosecution, or the opportunity
principle in handling nonpenal code offences.56
In the jurisdictions of common law, the decision to prosecute or not to prosecute (including
the decision of choosing either summary procedure or indictment procedure) is the domain of
Crown Attorney,57 which in England, for example, is called "Crown Prosecutor". To some extent
he applies a variation of the opportunity principle even though the principle is not officially
known .58
In the United States, the district attorney is almost always autonomous in exercising
prosecutorial discretion.59 He may drop the procedure or use "pleabargaining" to dispose
cases.60 In many jurisdictions, generally American prosecutor even "determines the level of
punishment in nonjury and nontrial cases."61
3.6 More Measures of Diversion
European prosecutor (e.g. in Sweden, Denmark, Norway, and the Netherlands) are vested
with power to levy the maximum amount of fines for settling of cases out of court; and especially
in Sweden, the payment of fines is a legal alternative to a six month prison sentence.62 In the
Netherlands, this procedure is called transactie. or "transaction", and may be used in settling
even serious cases,63 since fine as criminal sanction is available for all penal code offences.
This diversion measure is also used widely in Denmark and is increasingly used in Norway.64
Again in Norway prosecutors may dispose penal sanction without court intervention, called as
patale unnlatese: the approval of the Attorney General is not necessary, unless the measure is to
be used for disposing more serious offences.65
As has been noted, the opportunity principle has been practised in the Netherlands for a
long period of time. The Officier van Justitie. Dutch prosecutor, may decide to prosecute or not to
prosecute with or without conditions.66 The dropping of procedure by Dutch prosecutors may be
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based on three ways. First, charges are dropped for reasons of policy {trivial offence, old age,
damage settled). Second, charges are dropped for reasons of technicality (over 90 per cent
usually due to lack of evidence). Third, the case is combined with other case of the defendant
already being prosecuted.67
Those three ways of disposing cases are used widely in Japan too. We have discussed
earlier the role of Japanese prosecutors in relation with the opportunity principle.68 As a matter
of fact, diversion measures are known in every stage of criminal justice administration in Japan.
3.7 Police Discretion
In several jurisdictions discretion is even used at earlier stage of enforcement. For
example, the police in the Netherlands may offer transaction for violators of minor traffic
offences. In Sweden, the police may impose fines for minor offences.69 Ticketing procedure for
minor traffic offences is practised by the police in Japan, Singapore, and Indonesia as well.
These kinds of diversion will be appropriate to be extended to minor environmental
offences too. It has been a practice in Canada where the environmental inspectors may institute
a ticketing procedure.70
3.8 Indonesian Experience
The opportunity principle has been the law in Indonesia for a long period of time,71 and
yet in practice, it is very rarely exercised by the Attorney General. In Indonesia, only the Attorney
General may drop cases for reasons of policy.72 As a result, the public prosecutor who wants to
drop a case for reasons of policy has to ask the Attorney General to exercise the power. We are
of the opinion that Indonesian prosecutors should be equipped with the same power, especially if
the offence is trivial, the offender is very old, and the victim is cooperative. Unless the case to be
dropped is serious or sensitive, the consent of the Attorney General is not necessary either.
It is interesting to note, that diversion measure known as transaction in several European
countries was used widely by public prosecutors in Indonesia during the 1950s and the 1960s.
That practice was used under the 1955 Economic Crimes Act. It will be appropriate if it is
extended to less serious environmental offences too.
4 INCARCERATION SANCTION AS THE ULTIMUM REMEDIUM IN THE ENFORCEMENT
OF ENVIRONMENTAL LAW
4.1 Alternatives to Incarceration
Since its inception the United Nations has showed its global interest in motivating all
nations of the worfd to enhance the prevention of crime. Its impacts may be seen, for example, in
many efforts done by several countries and pursued by some conferences and seminars at
international and regional level focusing on the treatment of offenders, e. g. the alternatives to
incarceration as criminal sanction.
As Fogel pointed out, fines (as alternatives to incarceration) are still dominant in the
Continental system as well as in the Anglo-American system.73 Next, probation plays a
significant role even though it shows a great variations.74 Some innovative diversions in the post
Word War II should also be mentioned, inter alia in the forms of suspension of prosecution,75
declaration of guilt, suspension of sentence pronouncement and guilt pronouncement, no
declaration of a sentence,76 and even the abolishing of incarceration.
4.2 Fines as Criminal Sanction
Within the context of environmental law enforcement, there are a variety of fines, viz. :
conventional fines, daily fines, day fines, and conditional fines.77
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Conventional fine is the one known for a long period of time. They are fixed mainly in
penal codes of many countries.
Daily fine may be imposed by criminal court "as a lump sum or for every day the offender
delays in performing its obligations (i. e. operating in violation of relevant permits)."78 The longer
the violator delays compliance with the court order, the bigger the financial sanction pay. It has
been stipulated in France, Belgium, and with variation in England.79
Day fine is the one determined by using a multiplier factor based on the monthly income
of the offender and on the gravity of the offence.80 It has been the rules in Germany, Austria,
Sweden, Denmark, and Finland.81
Conditional fines is the one which may be combined with particular conditions, viz. :the
reparation of environmental damage and the payment of victim compensation.82 It has been
known in Germany, Sweden, and with certain modifications in the Netherlands, Belgium, and
France. The fine will not be enforced unless the violator commit another offence during the
probation period.83
In theory, conditional fine can be applied also in Indonesia pursuant to general rules
stipulated under the Book I of the Indonesian Penal Code. In practice, it is almost never used.
4.3 Probation System
Probation in the Continental System followed the Belgian model. In Belgium, a conditional
sentence called in French sursis has been stipulated since 1888.84 It is then adapted in France,
Italy, Germany, Austria, Sweden, Norway,85 and the Netherlands; later it is adapted in Japan,
Republic of Korea, and Indonesia.
Again in Belgium, there is a probation system before trial and it is imposed by public
prosecutor. This prosecutorial probation is adapted in Germany, to be instituted by German
prosecutors by refraining from prosecution relating certain offences.86 These kinds of pretrial
probation are widely used in the United States, and it is called "diversion".87
In the Continental system of probation the determination of guilt is essential and the
imprisonment sentence is not executed under certain conditions. The convicted is put in the
community during the probation period with or without supervision.88 On the other hand, in the
Anglo-American system of probation, especially in most American jurisdictions, probation is not a
penal sanction, and the guilt determination is not essential. If the offender is found guilty, the
pronouncement of sentence will be suspended. Since the penal sanction is not yet pronounced,
the offender is at liberty supervised by a probation officer with or without conditions.89 And in
both systems probation is of course revokable.
In the meantime, some efforts have been taken to abolish incarceration as criminal
sanction. In Finland, for example, the use of imprisonment was reduced through decriminalization
of offences, reformulation of criminal rules for other offences, and further development of the
alternatives to penal sanction.90
4.4 Incarceration as Ultimum Remedium
After all the alternatives to be applied to a particular case have been explored, but the
enforcement agent fails to find the most appropriate one, the case should be committed to court
for adjudication. If the guilt then is found it is for the judge to consider the most appropriate
sanction for the offender.
There are a variety of criminal sanctions to be chosen, e. g. conventional fine, daily fine,
day fine, and conditional fine. The next choice is suspension of guilt pronouncement or sentence
pronouncement with conditions. If the sentence is pronounced,either fine sanction or
incarceration sanction or both may be suspended with conditions. With regard to environmental
offences the possible conditions are inter alia, the restoration of environmental damage, the
payment of victim compensation, or the posting of deposits.
In any event, imprisonment or incarceration as criminal sanction, especially in relation with
environmental offences, should be the last resort, or the ultimum remedium.91
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Within the context of Indonesian penal system, alternatives to incarceration as criminal
sanction tor the environmental offences may be elaborated through conventional fines and
conditional fines, and mainly through conditional imprisonment with or without supervision. Under
a probation scheme a special condition may be imposed with a suspended sentence. The special
condition is the restoration of environmental damage.
5 CLOSING REMARKS
5.1 More Severe Penal Sanctions
The trend of industrial countries has indicated the moving towards more severe
incarceration as penal sanction for offences relating to environment.92
Still, innovative alternatives to incarceration are more and more available in the
Continental system and in the Anglo-American system as well. David Fogel's study or Skoler and
Sullivan's report for example, mentioned about court warning, punitive warning, no declaration of
a sentence, community service order, abolishing of incarceration, posting of deposits,
conventional fines, daily fines, day fines, conditional fines, application of funds from fines to
restore environmental pollution, prohibition on the practice of profession, disqualification of the
offender, or declared as being ineligible for government grant, loan, and contracts, closing of
firm, publication of conviction that may damage the reputation of the relevant enterprise.93
5.2 Prosecutorial Discretion
We have seen in both opportunity and legality principle that it is not impossible for public
prosecutor to exercise his discretion in disposing cases, in many criminal justice systems the
public prosecutor is indeed a semi judge. Accordingly, he may drop the charge or the procedure
with or without conditions; he may offer transaction, the waiver of prosecution.94 and pretrial
probation, or prosecutorial probation; even he may imposed penal order with or without the
consent of criminal court.
Those diversion measures will be of great significance in terms of effectiveness and
efficiency when they are applied to environmental offences.
5.3 Some Notes On Indonesia
Unfortunately, the role of Indonesian prosecutors in using the opportunity principle is not
very dominant. In the future, the power to drop cases for reasons of policy should be vested to
all prosecutors. Some are at the same time even trying to end the prosecutorial discretion and
suggesting that Indonesia adhere the legality principle. Most of them do not Know, however, that
even in the legality principle there is room for prosecutorial discretion as we have seen in
Germany. Moreover, many of them are confused about the legality principle under procedural
criminal law and the legality principle under substantive criminal law.95
There are some more legal hampers yet to be overcome in Indonesia. For example, under
commune crime rules the corporate criminal liability is still de leqe feranda. or ius contituendum.
As a result, according to Indonesian criminal law a legal person is not punishable unless it
commits economic offence.96 Therefore, some are advocating the efforts to corporate
environmental offences into the 1955 Economic Crimes Act, like it has been the law in the
Netherlands. Within the next five to ten years, when the draft of new penal code is enacted,
corporations will be also punishable in Indonesia. In fact it is possible to insert new article into
the present penal code stipulating the liability of legal person.97
In addition, there are some environmental provisions which are too abstract in terms of
definition and sanction as well. The role of judges is of decisive importance to avoid mult:
interpretable situations. Therefore, workshops and discussions on innovative sanctions for the
Indonesian judges should be organized too. The Indonesian legal drafters, on the other hand.
should be more aware of not prescribing ambiguous or abstract provisions and definitions.98
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 439
Finally, lack of good laboratories is another problem in Indonesia and it has resulted in
several dismissal and acquittal judgments for very serious or sensitive environmental cases.
Thus, scientific evidence piays a very important role to answer whether or not pollution has
occurred.
5.4 Conclusion
The adage of ultimum remedium is not relevant to the criminal law instrument as a
response to a particular environmental law violation, but to the imposing incarceration as a
sanction to the particular environmental law violation.98a
The enforcement of environmental law needs expertise and special technical skills. It is
only natural if the office of public prosecutor has special department relating to environmental
offences staffed by special trained public prosecutors, like those offices in the Republic of Korea,
the Netherlands, Canada, and in the near future may be in Indonesia.
Again, a good enforcement of environmental law needs good legislation, good knowledge
of law, good administration, and enough capacity of infrastructure. Notes/References
REFERENCES
1 Kusnadi Hardjasoemantri, Environmental Legislation in Indonesia, 2nd ed. (Yogyakarta:
Gajah Mada University Press, 1989), p. 7; cf. Siti Sundari Rangkuti, Hukum Lingkungan
dan Kebijakan Lingkungan Dalam Proses Pengembangan Hukum Nasional Indonesia
(Surabaya: Airlangga University Press, 1987), p. 117; see also Act No. 4 of 1982
concerning Basic Provisions for Management of Living Environment, general elucidation.
2 Munadjat Danusaputro, Environmental Legislation & Administration in Indonesia (Bandung:
Alumni, 1972), pp. 3640; also Munadjat Danusaputro, Hukum Lingkungan, Buku II, cet.
ke2 (Jakarta: Binacipta, 1985), p. 38.
3 Danusaputro, Hukum Lingkungan, p. 38.
4 Ibid.
5 cf. Compliance and Enforcement of Environmental Law: Sanction and Strategies,
mimeographed (1989), pp. 12.
6 L. J. van Apeldoorn, Inleiding tot de studie van het Nederlands recht, rev. J. C. M. Leyten,
17th prnt. (Zwolle: W. E. J. Tjeenk Willink, 1972), p. 1.
7 Th. G. Drupsteen, "Inleiding," in Milieurecht, eds. W. Brussaard et al. (Zwolle: W. E. J.
Tjeenk Willink, 1989). p. 4. 8 Ibid., p. 2.
9 Ibid. , p. 3
10 Ibid. , p. 4.
11 Ibid. , p. 3
12 Ibid., p. 5.
13 Ibid.
14 cf. "Foreword [of] Professor Emil Salim [(Minister of Environment of the Republic of
Indonesia)], "in Promoting Environmental Study Centres in Indonesia in Support of
Sustainable Development, Mohamad Soerjani (Jakarta (?) : n. p. , 1989), p. v; also cf.
Edwin W. Tucker, Text, Cases and Problems on Legal Regulation on the Environment (N.
p.: West Publishing Co, 1972), p. 1.
15 As formulated in Bruntland Report; see WCED, Hari Depan Kita Bersama, trans.
Bambang Sumantri (Jakarta: PT Gramedia. 1988), p. 12; and also VROM, National
Environmental Policy Plan ('s Gravenhage: SOU Uitgeverij, 1989), p. 7.
16 cf. J. Schreurs et al. , Environmental Law, Course Module, trans. M. A. G. Wennekers
(Rijkshogeschool Usselland, 1990). p. 4.
17 C. J. Kleijs-Wijnnobel, "Handhaving van Milieurecht," in Milieurecht, eds. W. Brussaard et
al. (Zwolle: W. E. J. Tjeenk Willink, 1989), p. 399; H. E. van Helten, "Environmental
Enforcement and the Police," in Proceedings II: International Enforcement Workshop, the
Netherlands VROM and the United States EPA, p. 25; and cf. B. Ter Haar, "International
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440 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Inspections: The Example of the Chemical Weapons Convention," in Proceedings I:
International Enforcement Workshop, the Netherlands VROM and the United States EPA,
p. 321.
18 G. E. Tulp et al, "The Phases of Enforcement Process," Course Module, trans. M. A. G.
Wennekers (Rijkshogeschool Usselland, 1990), p. 3.
19 Hans J. A. Schaap, "Small Business Compliance, the Role of Local Community," in
Proceedings I: International Enforcement Workshop, the Netherlands VROM and the
United States EPA, pp. 8891.
20 cf. Gustaaf Bieseveld and Emiel van den Berg, "Priorities For Environmental Legislation in
the Republic [sic] Indonesia," Expert Report, VROM, 1990, pp. 2427: see infra pp. 3536.
21 For the Netherlands, see G. E. Tulp and J. Schreurs, "Instruments for Environmental
Law Enforcement." Course Module, trans. M. A. G. Wennekers (Rijkshogeschool
Usselland, 1990), p. 28 and for the United States, see Edward E. Reich and Quinland J.
Shea III, "A Survey of U. S. Environmental Enforcement Authorities, Tools and Remedies,"
in Proceedings I: International Enforcement Workshop, the Netherlands VROM and the
United States EPA, p. 65. For Canada and other countries, see Compliance, p. 38 and p.
50
22 cf. Tulp and Schreurs, p. 26; also cf. Hans Fangman, "Criminal Enforcement of
Environmental Legislation," in Proceedings I: International Enforcement Workshop, the
Netherlands VROM and the United States EPA, p. 131.
23 Kleijs-Wijnnobel, pp. 410411; see also the Netherlands Municipality Act (Gemeentewet),
arts. 152 and 210 as well as the Netherlands Province Act (Provinciewet), art. 116.
24 See Act No. 5 of 1974 concerning Basic Provisions for Regional Administration [in
Indonesia], art. 42 and its elucidation.
25 Reich and Shea III, p. 67.
26 Compliance, pp. 4344.
27 Kleijs-Winnobel, p.418.
28 Reich and Shea III, p. 72; "criminal daily fine", see infra n. 78. 29 Compliance, p. 44.
30 BudiartJ et al., Terjemahan UndangUndang Nomor 5 Tahun 1986 tentang Peradilan Tata
Usaha Negara." (Jakarta: Badan Pembinaan Hukum Nasional, 1988).
30a cf. Indroharto, Usaha Memahami UndangUndang Tentang Peradilan Tata Usaha Negara.
(Jakarta: Pustaka Sinar Harapan, 1991), pp. 307312.
30b Similar to the present practice in the Netherlands; see Fangman, pp. 130131.
31 Compliance, p. 52. Also see Tulp and Schreurs, p. 29.
32 For the Netherlands, see Fangman, p. 131; for the United States and other European
countries, see Daniel L. Skoler and Katherine McG. Sullivan, "Criminal Enforcement of
Environmental Laws European Experience and Perspective," in Environmental
Enforcement, eds. Katherine McG. Sullivan (Washington, D. C. : American Bar
Association, 1978), pp. 2829.
33 Wilhelm Schneider, "Criminal Law Relating to Environmental Offences," in Prevention of
Crime and Treatment of Offenders, Bundesminister der Justiz, 1990, p. 19.
34 Schneider, p. 19.
35 Ibid., p. 21.
36 Ibid., p. 19.
37 Ibid., p. 21.
38 See Fangman, p. 131.
39 Compliance, p. 31. In fact, the proposal of Germany to strengthen the criminal law relating
to environmental offences is not in contrast with the general opinion of the delegates to
the Seventy First UNAFEI International Seminar on Promotion of Innovation in Criminal
Justice Administration for the Prevention of New Criminality held in Tokyo, Japan (Feb.
March, 1986) stating that in addition to narcotics and drug offence, economic crime, white
collar crime, corruption, computer crime, and international terrorism, environmental offence
is identified as a new dimension of criminality; see UNAFEI Report No. 30, December
1980, pp. 105106; pp. 111 112; and pp. 118119.
40 Compliance, p. 22.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 441
41 Tulp and Schreurs, p. 18.
42 Fang man, p. 130.
43 For Germany, see Hartmuth Horskotte, "Decision Making by the Police, the Prosecutor
and the Court," Lecture 1, UNAFEI, 1980, p. 31; for the United States, see Delmar Karlen,
Geofrey Sawer, and Edmond M. Wise, Anglo-American Criminal Justice (New York and
Oxford: Oxford University Press, 1967), p. 28.
44 R M Surachman, "The Prosecutorial Discretion," work paper submitted to the Cairo
Conference on the Law of the Word (1983), p. 6.
45 Takeshi Satsumae, "Suspension of Prosecution: A Japanese Long standing Practice
Designed to Screen Out Offenders from Penal Process," UNAFEI Report No. 15,
November 1978, pp. 100115; cf. Japanese Code of Criminal Procedure, art. 248; see also
infra n. 68.
46 Koichi Miyazawa, "Crime and Victimization of Elderly in Japan," paper submitted to Bali
International Conference on Criminology (1990), p. 3; see also infra n. 68.
47 Horskotte, p. 29 and p, 32.
48 Satsumae, p. 101 and Horskotte, p. 29. It is noteworthy that the legality principle is also
known in substantive criminal law. Within this context, the legality principle means that no
one will be pronounced guilty of any criminal offence for his actions which did not
constitute a criminal offence at the moment of his actions. This rule is in harmony with the
maxim of nullum delictum, nulla poena, sine praevia lege poenali. In other words, it is in
contradiction with ex post facto laws. Whereas within the context of criminal procedure,
the legality principle (mandatory prosecution principle) is opposed to the opportunity
principle (discretionary prosecution principle); see also infra n. 95.
49 Although it may be true, Mulder pointed out that the opportunity principle is not officially
known in Belgium and France. The prosecution service of both countries, however, may
drop a case as what they call it in French as classer sans suite; see A. Mulder,
"Doelstellingen en middelen van strafvervolging," in Tussen Misdaad en Straf, eds. H.
Bianchi et al. (Nijkerk: Uitgeverij intro, 1991), p. 45.
50 In Norway, the opportunity principle, which has been the law since 1887, provides the
Norwegian public prosecutors with very wide discretionary powers more than those of the
Nether lands or of Japan; see Helge Rostad, "Criminal Law, Crime and Punishment in
Norway A Brief Sketch," UNAFEI Report No. 30. December 1986, pp. 143145.
51 See Surachman, p. 8; and infra nn. 7172.
52 Surachman, p. 8; see also Horskotte, pp. 3032.
53 As discussed by Professor Koya Matsuo in his lecture at UNAFEI, Tokyo, Japan, on June
8, 1982; see also David Fogel, On Doing Less Harm (Chicago: UIC Office of International
Criminal Justice, 1988), p. 238: see also infra n. 86. 54 Horskotte, p. 30; see also infra n.
86.
55 Horskotte, p. 31.
56 Mulder, pp. 4445; also cf. Fogel, p. 196; and infra n. 86.
57 Compliance, p. 31.
58 cf. John Wood, "Prosecution Policy in England and Wales," The Asian Journal of Crime
Prevention and Criminal Justice No. 8, 1990, p. 41, p. 43, and pp. 4647.
59 James L. LeGrande, The Basic Processes of Criminal Justice (New York and Beverly
Hills: Glencoe Press, 1973), p. 74.
60 Ibid. , p. 73; see also Paul B. Weston and Kenneth M. Wells, The Administration of
Justice, 2nd ed. (Englewood Cliffs: Prentice Hall, Inc., 1973). pp. 7980.
61 Fogel, p. 237.
62 Ibid.
63 Ibid., p. 116 and p. 238.
64 Ibid., 237; for Norway, see Rostad, p. 147.
65 Fogel, p. 237.
66 The Court System in the Netherlands (N. P. : Ministry of Justice, 1990), p. 4.
67 Ibid., pp. 45; also cf. Fangman, p. 129.
68 Supra nn. 4546.
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442 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
69 Fogel, p. 40.
70 Compliance, p. 19.
71 Prior to 1961 Indonesian prosecutors like their counterparts in Japan and in the
Netherlands were vested with power to drop cases for reasons of policy i. e. if the
prosecution would harm either the government, the state or the public; cf. Surachman, p.
7 and p. 25.
72 The 1961 Prosecution Service Act, art. 8 and the elucidation of art. 77 of the 1981 Code
of Criminal Procedure. The power was endorsed recently under art. 32 (1) c of the 1991
Prosecution Service Act. Still, the elucidation of that article implies that the power will not
be used widely.
73 Fogel, p. 12.
74 Ibid., p. 13.
75 In Japan, it is practised since the preWorld War I. 76 Fogel, p. 13.
77' Skoler and Sullivan, p. 30 and p. 32.
78 Ibid. p. 30.
79 Ibid.
80 Ibid.; see also Fogel, p. 203.
81 Fogel, p. 203.
82 Skoler and Sullivan, p. 30.
83 Ibid.
84 Fogel, p. 13.
85 See Rostad, pp. 142143 in relation to Norway,
86 Fogel, p. 238, p. 196 and p. 199; see also supra nn. 5356.
87 Fogel, p. 238.
88 Ibid., p. 13.
89 Ibid., p. 12 and p. 119.
90 Professor Matti Joutsen, of the Research Institute of Helsinki, credited the neo classicists
with such efforts; see Fogel, p. 33.
91 For example, the Italian court imposed prison sentence upon the five Icmesa executives.
On appeal, however, four of the sentences were overturned and the fifth sentence was
suspended; see Ved P. Nanda and Bruce Bailey, "Challenges for International
Environmental Law," work paper submitted to the Seoul Conference on the Law of the
World (1987), p. 6.
92 Whereas efforts have been done to abolish incarceration in relation with most offences,
severe penal sanctions have been introduced in many countries (e. g. Swiss since 1976).
Other efforts covered the introducing of corporate criminal liability (the Netherlands, for
economic offences, since 1950 and for commune offences, since 1976); and
"criminalization" of culpa offences exposing human life and health to danger (Hungary,
since 1976). Again, severe penalties stipulated in Federal environmental Protection Act of
Germany (since 1974) introducing fines of up to 100,000 DM and prison sentences of up
to ten years; and in the 1990 Conservation of BioNaturai Resources Act of Indonesia
introducing fines of up to 200 million rupiahs and prison sentences of up to ten years; cf.
Skoler and Sullivan, p. 31 and p. 32 and Loebby Loqman, "Pertanggungan Jwab Pidana
Bagi Korporasi Dalam Tindak Pidana Lingkungan Hidup," in Presiding (Jakarta: Skrep &
Walhi, n. d),
93 See Skoier and Sullivan, passim; and Fogel, p. 13.
94 For the "waiver of prosecution" in Scandinavia, see Fogel, p. 30, pp. 4445, and p. 238; the
practice in Norway, see stad, pp. 144145.
95 See supra n. 48.
96 See Andi Hamzah, Hukum Pidana Ekonomi, rev. ed. (Jakarta: Penerbit Ertangga, 1986),
pp. 2628; and Andi Hamzah, "Tanggung Jawab Korporasi dalam Tindak Pidana
Lingkungan Hidup," in Presiding (Jakarta: Skrep & Walhi, n. d.), pp. 8283.
97 It can be inserted into Chapter III (Book I) of the present Code.
98 These phenomena also exist in relation with economic crimes acts and regulations in
general "leaving much discretion to those trying to enforce the law"; see Matti Joutsen,
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"'Civilizing the Control of Economic Crime: Alternatives to the Criminal Justice System in
the Prevention and Control of Economic Crime," UNAFEI Report No. 31, April 1987, p.
160.
98a cf. Joutsen, p. 171 and passim in relation with economic crimes.
99 As discussed by Professor Th. G, Drupsteen in his lecture at the Attorney General's Office
in Jakarta, Indonesia, on 27 October 1990.
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ENFORCEMENT OF CANADIAN LAWS OF ENVIRONMENTAL PROTECTION AS APPLIED
TO FEDERAL FACILITIES
PAUL CUILLERIER
Director Office of Enforcement Environmental Protection Environment Canada
1 INTRODUCTION
In Canada, The Federal Government is the largest single player in the Nation's Econony. It
employs more workers than any other organization. It maintains facilities to administer Federal
Prorgramms and house the employees who run them, to carry out research and other laboratory
work, and to store the goods that it needs to carry out Federal activities of many different types.
Each year, Canada's Federal Government purchases some 10 billion Dollars in both goods and
services. Also, inevitably, Federal Facilities Release Emissions and effluents into the environment
and must deal with the waste that the facilities and their activities generate.
Canada's national government takes the position that the environment is everybody's
business. Solving Environmental problems will take considerable time and effort. The federal
government recognizes that it must do its part to achieve a healthy environment and a pros-
perous economy for all Canadians, now and in the future. One part of the federal government's
role in meeting that commitment is compliance by federal facilities with federal Environmental
laws.
/
2 CANADIAN ENVIRONMENTAL PROTECTION ACT
Environment Canada is responsible for enforcing the Canadian Environmental
protection act that became law in July 1988. The full title of the legislation is "an act respecting
the protection of the environment and of human life and human life and health". The title clearly
defines the purpose of the statute. Also, the declaration or preamble of the Canadian Environ-
mental protection act states that "protection of the environment is essential to the well-being of
Canada". That phrase underscores the importance placed by the government of Canada on the
concept of Environmental protection.
In a summary of a few words, the act provides a comprehensive approach to Environmen-
tal protection, covering activities that could result in pollution affecting land, inland waters, the
ocean and the atmosphere. It gives the government of Canada powers to set national regulations
for any substance that threatens to harm the environment or the health of Canadians. Those
regulations may encompass the entire life cycle of substances -- from their development and
manufacture through transportation, distribution, storage, use, and ultimate disposal as waste.
It is significant that section 4 of the Canadian Environmental protection act states that
the act is binding on her majesty in right of Canada - in other words, the federal government of
Canada must comply with the law. In addition to the full act applying to government as well as to
the private sector, cepa has a special part, which is targeted specifically to federal departments,
boards, agencies, and federal crown corporations, which are corporations of the state, as well as
federal lands, works and undertakings. That part allows the creation of regulations specific to
federal departments and the federal entities listed above, to control emissions, effluents and
waste handling practices.
3 FISHERIES ACT
In addition to the Canadian Environmental protection act, environment Canada enforces
the pollution prevention provisions of the fisheries act. That act is probably Canada's first
Environmental statute, and has been in force since 1868. The purpose of the statute is to protect
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446 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
fish, fish habitat and human use of fish. One of the strongest provisions to achieve that statutory
objective is the prohibition against the deposit, into waters where fish are found, of any substance
that is harmful to fish. Like cepa, the fisheries act states, in section 2, that the federal govern-
ment is subject to the act and all its regulations.
So, the concept of federal law applying to Canada's federal government is not new in
Canadian law. But what is new is that in 1988 the minister of environment announced the
intention of his department to treat the public sector, that is government, the same way as the
private sector in terms of enforcement of Environmental law. The minister believed that the
federal government must be exemplary in its Environmental behaviour and specifically committed
the government of Canada to that goal.
Consequently, in July 1988, environment Canada published its enforcement and compli-
ance policy for the Canadian Environmental protection act which provided equal treatment in
enforcement to both government and non-government regulatees. The soon to be published
compliance policy for the habitat protection and pollution prevention provisions of the fisheries
act takes the same approach.
4 COMPLIANCE AND ENFORCEMENT
The basic principles of the enforcement and compliance policy for the Canadian Environ-
mental protection act are:
- compliance with the act and its regulations is mandatory;
- enforcement officials will be fair and consistent in their application of the law, and use
rules and processes securely founded in law;
- enforcement officials will apply the act with an emphasis on prevention of damage to the
environment; and
- enforcement officials will encourage the reporting to them of suspected violations.
These principles are repeated in the soon to be published fisheries act habitat protection
and pollution prevention provisions compliance policy.
A fundamental difference between the two policies, however, is that the cepa policy
commits enforcement officers to examine every suspected violation and to take action consistent
with the policy; and the fisheries act requires enforcement officers to respond to suspected
violations, giving priority to those that result in or pose the greatest harm to fish, fish habitat
or to human use of fish.
The cepa policy requires examination of every suspected violation, while the fisheries act
policy requires priorization of suspected offences for investigation.
You might think it strange for an enforcement and compliance policy to state, as basic
principles, that compliance with the law is mandatory and that enforcement officers "will only use
rules, sanctions and processes securely founded in law". They may seem to you to be "givens"
or self-evident truths.
But, in the past, environment Canada's approach to law enforcement had shown to regu-
latees that the department was flexible on compliance. Regulatees had experience with officials
who were prepared to use rules and processes that were not provided for in federal Environ-
mental laws and that were not even enforceable civil contracts. These were measures such as
letters
Acknowledging and tolerating non-compliant behaviour for specified lengths of time, or
giving commitments not to enforce the law if Environmental studies were done.
The negotiation of compliance and the use of tools not provided for in legislation did not
work - hence, the need to stipulate as basic, general principles that "compliance with the act and
its regulations is mandatory" and that only rules, sanctions and processes founded in law would
be used. The government of Canada wanted to signal that its previous reliance on negotiation
had ended and that it was returning to the philosophy that the law applied to everyone equally.
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So, within environment Canada, which officials enforce the Canadian Environmental
protection act and the pollution prevention provisions of the fisheries act? In both cases,
enforcement officials are individuals designated as inspectors.
It is inspectors that have the most frequent and regular contact with government depart-
ments and other federal bodies affected by the legislation. Inspectors have three principal roles.
They can:
- carry out inspections to verify compliance with the law;
- direct that preventive or corrective measures be taken in an emergency when there is
danger to the environment, human life or health, caused when the unauthorized release of
a regulated substance has occurred or is about to occur; and
conduct investigations to obtain evidence of violations.
They can also review options for preventive and corrective action generally, explain legal
requirements, including warning of potential violations, in order to assist government agencies as
well as individuals and companies in meeting their obligations under the Canadian Environmen-
tal protection act and the fisheries act. That activity by inspectors must be undertaken with
great care in order to ensure that inspectors who are, after all, enforcement officials do not
inadvertently assume the role of a technical consultant.
Inspectors normally have training in engineering or sciences like biology, chemistry,
geology or Environmental sciences. It is this background that enables inspectors to understand
fully and enforce regulations such as those that deal with liquid effluents, atmospheric emissions,
limits for releases to the environment of toxic substances, and storage of toxic substances such
as polychlorinated biphenyls or pcbs.
Some inspectors may specialize strictly in the investigation of offences. Those investi-
gation specialists have expertise in areas such as:
- investigative techniques;
- gathering of evidence and procedures to ensure continuity in the control and custody of
evidence;
- taking statements and soliciting information from witnesses;
- securing and execution of search warrants;
- court procedures;
- preparation of special reports for crown prosecutors who bring charges laid under the
Canadian Environmental protection act and the pollution prevention provisions of the
fisheries act to trial; and
- appearing as witnesses in court proceedings.
Investigation specialists may be scientific personnel having the same background as other
inspectors, may be former Environmental investigators for a provincial or territorial government, or
former police officers.
But what do these statutes and the inspector and investigation functions described above
mean in the day-to-day world of the operations of Canadian government departments? It means
that the government of Canada is serious about "going green". It means that, under the
Canadian Environmental protection act and the pollution prevention provisions of the fisheries
act, inspectors will verify compliance at federal facilities. And they will be every bit as serious
about the need for those facilities to comply with the law as if they were inspecting a private
company.
Under cepa and the fisheries act, federal government employees are personally respons-
ible for unlawful acts done by them in the course of carrying out their duties. This principle
applies to everybody -- ministers included:
Federal employees can be personally liable if:
- they knowingly violate a regulation under cepa or the fisheries act;
- they are unaware that a regulation exists and they violate it (this is because federal
employees are responsible for knowing the regulations under the Canadian Environmen-
tal protection act and the fisheries act that apply to their work);
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- they know that a regulation is being, or will be violated, and they do not report to their
supervisor;
- they falsify information or neglect to provide full information about a violation or suspected
violation when requested to do so by the minister of the environment or a cepa or
fisheries act inspector; and
- a cepa or fisheries act inspector has directed the employee to take preventive or remedial
action when there is a release or potential release to the environment of a regulated
substance that will violate the law, and the federal employee does not obey the direction.
In keeping with the 1988 commitment by the government of Canada to be exemplary in its
Environmental behaviour, federal departments and their employees have a moral obligation to
show leadership by practicing sound Environmental management.
Sound Environmental management involves three basic things:
- preventing violations before they occur;
- reporting violations; and
- reducing the harm and correcting any damage caused by violations.
One of the best ways to prevent violations before they occur is to know the law and
accompanying regulations. Environment Canada believes that promotion of compliance through
information and education is essential. Promotion is an effective tool in securing conformity with
the law. Accordingly, environment Canada undertakes public education and information transfer,
through distribution of publications, activities such as seminars for both government and private
industry, technology development and technology transfer programs, and consultation during the
development of new regulations and the amendment of existing ones.
Under its public education and information program, environment Canada distributes upon
request:
- copies of the Canadian Environmental protection act and of the fisheries act and their
accompanying regulations;
- Environmental quality guidelines and objectives, guidelines governing the release of
substances to the environment, and Environmental codes of practice;
- the enforcement and compliance policy for cepa and, when it is published within the next
few months, the compliance policy for the habitat protection and pollution prevention
provisions of the fisheries act;
- a list and short description of court decisions related to the statutes and their regulations;
and
- fact sheets, handbooks and reports on relevant subjects.
Environment Canada does not want to see any surprised looks on the face of officials who
work elsewhere among the federal family of departments, boards and agencies. While environ-
ment Canada's role is to protect the environment in accordance with federal laws, it is in the
department's interest to help meet the Canadian government's overall commitment to Environ-
mental protection and to exemplary behaviour by federal institutions. After all, we don't want to
see violations anywhere, and knowledge of the law and regulations is the first step to ensure that
regulatees comply. Also, since 1988, environment Canada has held over 26 major educational
and information sessions with other federal government departments, boards, commissions,
agencies and federal crown corporations. This figure does not include the numerous smaller,
informal sessions that have been held or the technical sessions for discussion of items like
specific pollution control technologies, testing protocols, sampling techniques and Environmental
effects monitoring.
Environment Canada believes that, during regulation development or amendment, consul-
tation with both regulatees and the beneficiaries of regulation results in better and more effective
Environmental protection instruments. The department also recognizes that compliance with
regulations is more likely when regulatees have been involved in regulation development. For
those reasons, environment Canada regularly consults with affected parties:
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- at the stage of determining whether an Environmental problem exists that requires
resolution;
- at the stage of choosing the appropriate tool for control, including codes of practice,
guidelines for release to the environment of toxic substances, as well as regulations; and
- during the development of the regulation itself.
Canadian federal regulations must be published in a national register called the Canada
gazette. Regulations are first published in part of the gazette and there is a comment period
during which anyone - companies, Environmental groups, Environmental law specialists from the
private sector, and ordinary citizens -- may send comments to the government of Canada. The
government's regulatory policy calls for a comment period of at least 30 days. Therefore, for
regulations under the pollution prevention provisions of the fisheries act, the minimum comment
period is 30 days. However, the Canadian Environmental protection act provides for a longer
period, namely a minimum of 60 days.
The consultation with affected parties and the public reduces the annoyance and anger of
regulatees who will likely be antagonistic if they believe that government is "springing" something
on them with no opportunity for them to have their say. That doesn't mean that grudging
compliance is avoided, because most of us don't like rules - but at least again, no surprises.
When a cepa inspector carries out an inspection for the first time at a facility, whether
government or private sector, he or she brings a copy of the Canadian Environmental protect-
ion act, the relevant regulation and the cepa enforcement and compliance policy. This ensures
that the person in charge of the facility has in his or her possession copies of the legal
requirements and the policy under which cepa inspectors operate. The same conduct applies for
inspections under the pollution prevention provisions of the fisheries act.
5 RESPONSES TO VIOLATIONS
Now, I wish to talk about the responses to violations used by inspectors and investigators
under the Canadian Environmental protection and fisheries acts. If an inspector or investi-
gator is able to substantiate that a violation of cepa or the fisheries act took place, they will take
action consistent with specific criteria and choose the appropriate enforcement measure from the
different types that I will review shortly.
First, the criteria ~ when inspectors discover a violation, they will apply the following
factors when deciding what enforcement action to take:
- nature of the violation -- this includes consideration of the seriousness of the harm or
potential harm, the intent of the alleged violator, whether this is a repeated occurrence and
whether there are attempts to conceal information or otherwise subvert the objectives and
requirements of the act.
- Effectiveness In achieving the desired result with the violator -- the desired result is
compliance with the act, within the shortest possible time and with no further occurrence of
violation.
- Factors to be considered include the violator's history of compliance with the act and
regulations, willingness to co-operate with enforcement officers, evidence of corrective
measures already taken, and whether other federal, provincial or territorial authorities are
taking enforcement action for the same offence under another statute.
- Consistency in enforcement - enforcement officers intend to be consistent in their
handling of violations. Therefore, they will consider how similar situations were handled
when deciding what enforcement action to take.
The Canadian Environmental protection act and the pollution prevention provisions of
the fisheries act, administered by environment Canada have a limited range of enforcement
measures that inspectors can use. Those measures are:
- warnings, used under both statutes;
- directions by inspectors, provided under both statutes;
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- ministerial directions under the fisheries act allowing the minister to request regulated
facilities to carry out monitoring or to provide the minister with certain data, measurements,
or other information;
- ministerial orders under the fisheries act to restrict, change or close down a polluting
operation, but only with approval of the federal cabinet;
- remedial orders, only available under the Canadian Environmental protection act, that
enable the minister to Recall, from the marketplace, toxic substances or products
containing toxic substances that violate the law;
- prohibition orders, also only available under the Canadian Environmental protection act,
that enable the minister to prohibit manufacturing, importing, distribution, use, processing,
sale and so on for substances that are new to the Canadian marketplace and that have
been manufactured or imported in violation of the law;
• injunctions to stop illegal activity or to prevent it from taking place, available under both the
fisheries act and the Canadian Environmental protection act;
- prosecution, of course; and
- civil suits to recover costs such as funds spent to clean up toxic or harmful substances
released illegally into the environment or into water where fish are found, funds spent by
inspectors to prevent illegal releases, or spent to publish information that individuals,
companies or government agencies had failed to publish when ordered to do so by the
courts.
While both statutes provide authority to issue tickets, similar to tickets for speeding or
parking fines, cepa and fisheries act inspectors do not have that tool available to them yet.
However, under the federal contraventions act, which will likely be in effect by January 1, 1994,
environment Canada enforcement officials will be able to issue tickets for certain violations.
Because tickets are designed to be issued for offences where evidence is immediately observ-
able, environment Canada has limited ticketable offences to those that involve failure to file
reports by the prescribed date, failure to include all required information in reports, failure to have
identifying labels on containers of chlorobiphenyls or pcbs, and other similar offences.
All these enforcement tools can be used against individuals, private companies and
government bodies that violate federal Environmental laws. But there are difficulties that we
encounter when environment Canada inspectors inspect and investigate, and from time to time,
bring charges against other federal departments and agencies. In Canada, it is still a relatively
new thing for one federal body to prosecute another for violating federal Environmental laws.
Many federal departments still do not fully realize that they are subject to the law. And they tend
to feel almost hurt by the notion that another department would hold them to account for their
actions. They sometimes express the view that all federal departments are part of the same
family and should protect each other from punitive action. The cases described below give an
idea of these problems.
An inspector under the Canadian Environmental protection act observed a dredge
operated by a federal department which appeared to be carrying out work in violation of a permit
granted under the ocean dumping provisions of cepa. The dredge was operating in June when its
permit obliged it to operate three months later in the month of September.
The inspector investigated and confirmed that the dredging violated the permit. He detailed the
nature of the violation and began to prepare evidence in order to apply for a search warrant. The
search warrant was executed at two locations belonging to the department - at the dredge and a
regional office of the federal department. All the evidence gathered led to charges being laid
against the federal department.
This was the first time that a federal department was charged under the Canadian
Environmental protection act. And because it was a matter of one government body charging
another, that is the queen vs. The queen, environment Canada used a prosecutor who was not
an employee of the federal department of justice but was in private practice, to avoid problems of
conflict of interest for the department of justice who acts as solicitor to all federal departments.
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Environment Canada's objective in this case was a significant penalty and a finding of
guilty to deter other departments and managers from neglecting their obligation to comply with the
law.
The court decision rendered on June 4, 1992 was more punitive than either environment
Canada or the defendant expected! The sentence was a fine of $1.00 Without costs. But the
court also imposed an order directing Environmental restoration work at a landfill site to a value of
not less than $100,000, to be carried out on or before June 4, 1993. The presiding judge also
stated two important things:
(1) while the actions of the defendant were not malicious or premeditated, they could not be
forgiven; and
(2) that government employees must be held to the strictest standards because the public
entrusts them with protecting the environment.
Another case may also be of interest to you. In 1988, there was a disastrous fire at a
warehouse where a toxic substance, namely chlorobiphenyls or pcbs, was stored in enormous
quantities. About 3,000 people were evacuated from their homes for nearly three weeks while
the fire was brought under control and cleanup of toxic residues took place. The environment
minister then proclaimed, under the Canadian Environmental protection act, an emergency
order setting out stringent requirements for storage of pcbs to avoid another such incident.
After the order was in effect, a cepa inspector carrying out a routine inspection at a federal
facility discovered pcbs stored in contravention of the order. He issued an inspector's direction
under section 36 of the Canadian Environmental protection act. But the federal facility refused
to comply, saying that it had no budget to store the toxic substance in accordance with the order.
Further inspections continue to reveal a failure to comply. The manager for the facility even
offered inducements to the cepa inspectors to close their eyes and forget about the violations.
This all led to environment Canada seeking a search warrant to gather evidence against
the federal facility. Environment Canada inspectors executed the search warrant and found
evidence of continuing violation as well as evidence of the quick attempt to store some of the
pcbs as required under the emergency order.
Charges were brought by environment Canada against the federal facility and its manager
for violation of the order made under the Canadian Environmental protection act. Faced with
the amount of evidence submitted against the facility and the manager, both agreed to plead
guilty. The court levied a $25,000 fine against the federal facility and, in return for a guilty plea,
gave a conditional discharge to the manager which directed him to pay $5,000 to an
Environmental fund and to undergo six months' probation.
A third case involves deposit of a deleterious or harmful substance to water where fish are
found. Under the pollution prevention provisions of the fisheries act, it is prohibited to deposit
substances that are harmful to fish to any water where fish are found, or to any place from which
the substance can enter water where fish are found, unless the deposit is authorized by regulat-
ions under the fisheries act or another federal law.
At one of its regional offices, a federal department violated the prohibition contained in the
pollution prevention provisions of the fisheries act. Apparently, over a 12 month period, gasoline
and diesel oil leaked from tanks into storm sewers and then into fishery waters. Gasoline and
diesel oil are substances that is known to be harmful to fish, and there are no federal regulations
authorizing the deposit of gasoline and diesel oil to water where fish are found.
The department had developed policies and procedures to deal with Environmental
hazards. Environment Canada's evidence showed that those policies and procedures were not
followed in this case.
In view of the nature of the offence and the seeming lack of due care, environment
Canada brought charges against the department for the illegal discharge. There have already
been two weeks of trial on this matter, and, in September 1992, the trial judge will hear the
department's argument that one federal department cannot charge another with a violation of
federal law.
As I mentioned earlier, section 2 of the fisheries act states specifically that the federal
government is subject to the statute and all its regulations. With that clause and after the June
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1992 judgment that found a federal department guilty of charges brought by environment Canada
for a violation of federal Environmental law, you might think that the validity of the queen bringing
charges against herself would be established. But the defence lawyers intend to pursue the
argument anyway. We will see what the courts decide in September. But, while we are not
complacent, we are not worried. Environment Canada is confident that the principle of federal
law applying to federal departments is well founded.
6 CONCLUSIONS
Environment Canada hopes that these cases and others currently under investigation will
help drive home the notion that the federal government must comply with its own laws. But we,
in Canada, are still feeling our way through the legal and policy matters surrounding one entity of
the queen charging another with violating federal Environmental law. That has not, however,
weakened our determination to set the federal house in order and ensure that federal depart-
ments and agencies comply with Environmental law.
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THE 'ECOLOGICAL SEMAPHORES' FOR FOURTEEN PATHS OF OWNERSHIP CHANGES IN
POLAND
PIOTR SYRYCZYNSKI, Ph.D.
Chief Inspectorate for Environmental Protection, Control Department, 00-922 Warsaw, 52/54
Wawelska Str, POLAND
INTRODUCTION
The paper deals with the experience of the last year in coordinating the environmental law
enforcement with the process of privatization of the formerly state-owned enterprises. In view of
tremendous growth in the number of sale deals and liquidation proceedings, environmental
protection agencies are currently preparing new methods which will establish revised operating
policy. These methods will consist of various so called 'ecological semaphores' - the law or
administrative check - points for supervision or steering this process. The above solutions were
worked out by a comparatively narrow staff of lawyers, economists, people involved in
environmental protection and those having industrial experience. These solutions are the
inconspicuous attempt to settle ecological problems, set or left during stormy, involving millions of
people process of ownership transformations in Poland. It is necessary to add that the solutions
presented in this article are being fought against by a considerable group of people involved in
this process. Even some foreign specialists are against them because they create difficulties and
modification of invented by them "the only just" solutions. As an example, during one sectoral
privatisation programm only 3% of funds has been used for evaluation the present environmental
condition of the enterprises.
1 THE REVIEW OF THE EXISTING SITUATION
To accomplish its aim of improving the condition of the environment, the Polish State
Inspectorate for Environmental Protection (PIOS) participates in the process of the ownership
changes. Whenever the most environmentally detrimental state-owned factories are prepared to
the above - mentioned process, PIOS utilizes a wide array of tools to enforce the desirable
direction of technological changes. Prompt and effective action on the part of PIOS depends
deeply on the quick selection of the appropriate legal decisions issued during this process.
In order to put this discussion in the proper context, there must be an understanding of the
present situation within which we are working. The privatisation process goes independently from
an enforcement action. This process has its own laws and regulations which does not contain the
relevant ecological clauses. On the other hand Polish ecological law was created in the different
industrial, economical and political situation. This law has not yet adjusted itself to the quick
ownership changes. On both sides we can find the insufficient knowledge of many legal acts and
the practice of their implementation. The typical examples are following:
- undersigning the privatization contracts which infringe the ecological acts or
- fixing the ecological taxes and rules which slow down the privatization process of some
Polish industrial sectors.
Any established practice is hard to change. In recent months at least the four centres
inside the administration in Poland have increasingly taken the biggest responsibility for
the implementation of the privatisation process:
- Ministry of Finance, which supervises the state-owned banks and makes big deals, in
which part of debts guaranteed by the government is being taking over.
- Ministry of Industry and Trade, which supervises the majority part of Polish state-owned
industry, especially the heavy industry, and participates in the joint-venture deals.
- Ministry of Ownership Changes, which represents the State Treasury and sells the stocks
of the previously state-owned plants or the assets remained from liquidated enterprises.
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- The vojevods (district governors), who are responsible for issuing permits (decisions) and
represent the State Treasury in the process of privatisation of small and medium sized
enterprises.
The ownership changes occur by fourteen different ways. The given amount of various
methods is approximative, in fact there are many modifications, non-typical means of
transformations, , which sometimes are on the edge of the law. The process of transformations is
not static, some paths are temporarily more predominant and there are "rush hours" because the
considerable amount of enterprises pass them at the same time. Some time later new paths take
the leadership.
At the beginning of this process at least three kinds of state-owned enterprises can be
found. These are so-called normal enterprises, acting on the basis of general rules (i.e. common
enterprises, making about 70% of a whole), state-owned enterprises joined (many years ago)
into the big groups ("copper", "sulphuric", "air", "pharmaceutical" etc.) and enterprises acting on
special rules (railway, airports, harbours, banks, defensive industry etc.).
The final result of this process are numerous compositions (joint-stock companies, limited
liability companies, cooperatives, societies, foundations involved in economic activity, agencies or
firms with foreign capital etc.). They possess the mixed ownership structure, they often produce
something different from their predecessors. In addition, they are not always full legal successors
of firms, from which they originated. Sometimes on the basis of property of one previously state-
owned firm several (in extreme cases several hundred) firms came into existence. They profit
together from the remnants of the former plant. Some investors try to cut out the most profitable
part of the factory (usually the newest unit) and to let loose the remnants (eg. old power plant,
land with accumulated wastes, old unit with the majority of workers etc).
Rapidity and spontaneousness of this process cause that the environmental protection
agencies have problems with proper identification of economic entity which is a party of legal
proceedings. The examples of such cases are the following:
- joint use of one chimney by many new economic entities, emitting substances from similar
production processes,
- delivering of dangerous wastes to the area rented from other company, financially
dependant on parent company, the producer of those wastes,
- complicated forms of renting (leasing) of technological installations, sometimes even the
parts of one production line.
- taking over the management of the state-owned enterprise by other companies or persons
(liquidator, syndic, commissioner-manager etc.).
Past experience indicates that at present we deal with continuum of various forms of
ownership from full state ownership to private ownership. The only common characteristics of
those subjects is that in their activity they aim to maximize their profit. When a state-owned
enterprise is concerned its aim is to maximize earnings of the staff. In those enterprises the board
of management is under the strong influence of the Council of Workers.
Not all of the legal instruments of enforcement produce effect in case of such instable
process like the process of ownership transformations. The rudder sufficient for steering a long
Viking boat would be useless for steering a catamaran.
In order to show how different are the processes of ownership transformations a dozen or
so typical examples are given below:
- commercialization of the state-owned enterprise into so-called "one man company of State
Treasury" and then offering its stocks to the new owners,
- liquidation of the enterprise and lending (renting, leasing) of its property to a new
company, at which at least 50% of owners are the previous workers of the enterprise,
- liquidation with selling the assets to many new owners,
- giving the management of a state-owned enterprise to a group of managers appointed by
another company, sometimes with the participation of the former board of directors,
- giving the management of a state-(100%)owned joint stock company to other company for
indemnity in a form of a part of stocks,
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- giving the part of property of a state-(100%)owned company in exchange of the debts,
which were encumbered with the former enterprise or State Treasury,
- creating on the basts of one unit (producing department) a joint-venture company, using
the infrastructure of all the remaining enterprise,
- simultaneous transformation and possible sale of several enterprises with similar range of
production to various investors within one branch of industry,
- programme of grouping of a dozen or so enterprises within national investment funds (so
called mass privatization programme),
- disposal of the property of the former enterprise on the basis of insolvency (bankruptcy)
law.
- setting the new enterprises on the basis of taking over licences (concessions) for
excavating minerals,
- increasing of equity capital of existing state-owned company by a new investor,
- division and uniting enterprises within existing law.
Please note that some of these processes are connected with signing by a new owner
various obligations. The examples of these obligations are the obligations to create new jobs or
to invest the agreed amount of money. As it was mentioned earlier, under the terms of many
bills, the different organs of state administration i.e. vojevods or ministries have the right to act
on behalf of State Treasury.
2 ENFORCEMENT TOOLS VERSUS PRIVATIZATION PATHS
It was established that some enforcement tools are not effective for some privatisation
paths or they give the opposite effects for them. Some important examples are given below, I
hope they will carry this point.
2.1 Charges or ecological taxes
The existing system of financial tools consists of collecting charges from (mostly state -
owned) enterprises in order to finance capital investments of protective equipment in other
enterprises. Charges are paid for the amount of emission which is within the range of the
obtained permit. In practise it is the considerable redistribution of capital which can be allocated
to various aims. At present substantial part of foreign investors, which want to take over the
enterprises, demand temporary releasing from charges, usually until they recover the invested
capital. Previous payers, i.e. the big state-owned firms which are in the difficult economic positron,
cannot bear the due charges. This situation puts slowly the whole system out of order. New
payers, which are small private enterprises, are numerous but very little, sometimes the expenses
of obtaining the charges exceeds their value.
The only privatisation path, on which charges gave the significant result is the capital
privatization method. Potential investors stated that the existing level of charges is an effective
encouragement to modernize technology quickly. The charges stimulate to build proper protective
installations. Pulp and paper industry and heavy chemistry industry can be the examples.
Conclusion:
The imposition of charges for the using of the environment is the appropriate tool for
achieving the desired direction of restructurization in the capital privatisation process. This tool is
not valid for the paths where numerous little firms are convened.
2.2 Monetary fines and other administrative penalties
It was established that the penalties inflicted for single offenses areas a rule much more
low in value then existing obligations among enterprises. These debts exceed many times those
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inflicted fines. Additionally the biggest debtor of the enterprises is often State Treasury. The debt
of the Treasury and the mutual debts of the enterprises disturb the influence of fines. Some debts
of the state-owned firms are, at the moment of transformation, taken over by the Treasury. Some
of the enterprises know it, they do not even appeal against fines but they do not pay them.
The powers of the enforcement agencies are defined by law. There are some other
administrative tools among them, too. The agencies can order the firms to install new sampling
and monitoring devices or to design and to build new, proper waste collecting facility. The firm
managers can be compelled by additional fines to meet the obligations. Ministry of Ownership
Changes hold sway over the managers of the firms. During the preparing to the sale deal the
managers cannot to undertake to start new big investments. For example the managers of the big
pulp facility has obtained the written ban on starting the new waste water treatment plant until the
sale deal is over.
•Conclusion:
The imposition of monetary fines is not the useful tool during ownership changes process
when there exists the big amount of mutual debts between State Treasury and the state-owned
enterprises. The administrative orders for new environmental protection units are not the efficient
tools if this firm is going to be sold recently.
2.3 Strict administrative prohibitions, among them bans on some kinds of imports, exports and
the preferential customs duties
In Poland many administrative rules concern the materials and products in aim to achieve:
- the better sanitary control,
- elimination of products which contain environmentally dangerous substances,
- suppressing the production of some kinds of wastes,
- concessions for firms dealing with some kinds of substances.
All this bans are easy to impose. The practice shows that the majority of work is for the
customs officers not for the environmental protection agencies. This type of ban would be
advantageous if the customs were without of job but it is hard to achieve when there are many
neighbour countries with different economic situation. The customs must prevent the smuggling of
more important items eg. arms, narcotics etc.
Those bans have the strong influence on the industrial practise, not only on the ecological
situation of our territory. The ban on import of wastes deteriorated the economic situation of paper
industry but its influence on the ecological situation in the whole was small. So far this ban has
not given the stimulus for collecting the paper wastes. The ban on import of all kinds of scrap
gives the job for little smelting factories abroad. The ferrous and nonferrous scraps are processed
into bars or plates before entering Polish territory. The lifting of this ban would give much more
cheap metal in our market and the bigger unemployment in the Polish mining industry, too. The
diminution of customs duties on coal tar (for stopping its production in Poland) has caused the
overproduction in Poland. Polish coal factories have not been able to sell their tar, which every
day was produced as an additional by-product during the production of coke. The diminution of
customs duties on asbestos - containing products (for stopping their production in Poland) has
caused that the prices of imported asbestos-cement pipes were lower than the other iron or PVC
pipes. The administrative bans or preferential customs duties can be applied only for simple,
clear situations. At the process of ownership changes majority of foreign investors attacks this
system. It does not give them the feeling of stability although their investment would be good for
ecological situation. All administrative bans are unpredictable, they depend on the political ideas.
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Conclusion:
Bans against the import of selected items or preferential customs duties have achieved the
results only in some cases. The abuse of the bans gives many bad side results, especially during
the ownership changes process.
2.4 Suspending of some types of production or decreasing its scale
Stopping of the unlawful production activity is possible but very rare. Usually it concerns
only little and unimportant units or machines. All the processes of ownership changes are
connected with the painful process of conscious changes. Millions of people have found
themselves in the market economy for the first time in their life. They try to preserve their jobs.
Their protests grow stronger and more desperate. In such circumstances instead of the direct
stoppage of production there can be used some other indirect methods.The best example is the
situation of one southern district (vojevodship). In this area at least 60% of all workforce is
connected with mining and smelting industry. For the economic reasons at least half of them
ought to be made redundant. For the ecological reasons the output of this mine and smelting
enterprise ought to be reduced by half. Approximately 70% of the workforce in this enterprise
ought to be dismissed because of the economic and ecological reasons. This would leave 42 %
of the working population temporary unemployed in this area. Such decisions would cause high
political instability.
Conclusion:
The stoppage of the production by administrative orders is not the best method against the
big state-owned enterprises.
2.5 Indirect methods
The first indirect method has been applied. The representatives of environmental agencies
(PIOS, Ministry of Environmental Protection) has participated in the committees preparing the
restructurization programmes for some industrial branches. Such programmes are connected with
liquidation of some enterprises and assigning credits for some other ones. Such participation can
be much more efficient now.
Our agency possesses as detailed information as Ministry of Industry about the present
situation and production of the industry. At present, on the basis of new act, passed in August
1991, the new, centralized and efficient structure of the State Inspectorate for Environmental
Protection has been established. It consists of 49 inspectorates with the laboratories and
inspection teams. The regular inspections of the biggest industrial enterprises give the possibility
to evaluate the basic economic and ecological changes in the various industrial branches.
These data, aggregated in the computer system of the Chief Inspectorate, can help during the
discussion with the Ministry of Industry and Trade and other governmental and non-governmental
agencies. The only problem is the implementation of our opinions in the final decisions.
The second indirect method has been proposed quite recently. It is cooperation with
banks, especially the banks which analyze the credits for new industrial activities. At present the
nine biggest banks make the "restructurization" of their credit portfolios. They want to stop credits
to the worst enterprises and they need the most detailed information in this subject. The stoppage
of the credits for the old enterprise is sometimes the good, quick and efficient method of fighting
against pollution. It is the better method than the imposition of administrative orders done by
environmental agencies. There has been organized the first course for the credit department
employees recently. They have been informed about the new rules and their future
implementation.
The third indirect method is considered now. It would be the cooperation with the State
Commission for Securities. This agency controls all the documents of the firms, whose stocks will
be in the public trade. This commission can suspend its decision until the firm will obtain all the
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needed environmental decisions and agreements. If any firm try to sell its stocks, it will be obliged
to show the proper environmental audit. The sale of stocks to the public ought to be connected
with the proper information for the potential buyers. This method can be applied to the minority of
privatisation paths only. Not all of them go through this public sale of stocks. This method is the
most efficient on the path named "manager contracts", where the reward for the managers is paid
as an agreed percentage from the value of the sold stocks. It can be applied for the paths named
"the employees in a leveraged buy-out" and "mass privatisation", too.
The fourth indirect method originated after the agreement between Ministry of
Environmental Protection, Natural Resources and Forestry and Ministry of Ownership Changes
had been signed. This agreement proposed to organize the Constant Interdepartmental Team for
solving the problems on the border between the privatisation and ecology. This team will help to
exchange the information and it will propose the changes to the existing privatisation and
ecological acts. At present majority of potential foreign investors wants to obtain the information
about the ecological situation of the enterprise which is put out for sale. This information ought to
show some kind of "compliance schedule" for every part of this enterprise.
Conclusion
There are many indirect methods which can be applied by environmental agencies during
the ownership process. They can give the desired results if the appropriate tools are chosen.
2.6 Compliance schedules
Compliance schedules would be supervised agreements between environmental agencies
and enterprises. There are some practical problems which suppress the implementation of this
tool:
- The Polish administrative code does not give the permission for the government agencies
to sign the agreements with the firms or private persons. The agencies can only give
administrative orders, although some of these decisions can be more flexible with data of
their implementation. No agency can give the permission for temporary repealing the law.
It will be possible if the parliament changes this above mentioned act.
- The multi-year experience of Polish ecology is against the above mentioned agreements.
The managers of Polish enterprises have not taken into consideration some of the
previously signed agreements. They are under influence of workers, Ministry of Industry
and Trade and the deteriorated economic situation of their factories. There is a lack of
efficient fines for not executing this schedules.
- The Polish ecological law is based on administrative law. It gives high possibility of
political influence on decisions. The agreed schedules would be opened to influence
during the course of their implementation. The civil law is usually much more independent
from political changes.
- Every schedule must give the permission for not paying the fines and charges during its
implementation. It gives the economic entity involved better situation than the other ones.
It can be very important factor during the sale of the whole industrial branch for the foreign
investors. The privileges for one enterprise will be the reason for obtaining this same
privileges by others. The whole system of collecting the fines and charges can be
destroyed.
Conclusions:
The implementation of the compliance schedules needs the changes in Polish ecological
and privatisation law. It gives much more power into the hands of negotiators but it will decrease
the amount of fines and charges paid by enterprises. This money has been used for new pro-
ecological investments. The compliance schedules ought to be done with some kind of judicial
procedure and the agreements ought to be signed under the civil law. In f/7/s way they would not
be susceptible to the political influence.
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2.7 The other underestimated tools
There are many provisions in Polish law which gives the possibility to implement some
enforcement decisions.
- Article 432 of Polish Commercial Code gives the opportunity of increasing the capital of
joint stock company. It has been used as a tool for investing into new protection unit for
one zinc and lead processing plant.
- Article 21 of Polish Privatisation Law gives Ministry of Ownership Changes the power of
the enforcement of organizational and technical changes in state-owned joint-stock
companies. PIOS tries to achieve the substantial technological change in one of the
biggest Polish non-ferrous metal processing plant.
- Article 20 of this Privatisation Law gives Ministry of Ownership Changes the power to state
the scope of economic and technical reviews of state-owned enterprises. It can be used
for implementation of the environmental audits for every privatisation path.
The State Inspectorate for Environmental Protection aims to implement the environmental
audits for all privatisation paths. It is needed especially for liquidation path, where some wastes,
buildings and ground are left. Although environmental impact assessment exists in the Polish
law, it is not suitable for application in all privatisation paths.
The lack of the special provisions impedes the judicial enforcement of the privatisation
mistakes. I think that civil judicial enforcement is the last and only way for "liquidation" route
connected with the dissolution of an enterprise. After the liquidation or bankruptcy of the
enterprise only the fines against the last managers of this firm can give the desired effect.
Conclusion
It is imperative to change the Polish bankruptcy and liquidation law and to implement the
solutions known from other countries. At present bankruptcy law is from the year 1934 and it has
no ecological provisions.
3 ENVIRONMENTAL AUDITING
Polish environmental protection agencies have proposed the method of environmental
audits for the privatised or proposed for privatization enterprises. It is based partially on "Generic
Protocol for Environmental Audits at Federal Facilities" from USA and on the basis of own
experience of its authors. This instruction has not been implemented yet. Ministry of Ownership
Changes has not agreed yet for implementation of the audits. Only one path (so named "capital
privatisation") is connected with environmental audits.
This is partly due to the fact that the use of the Privatisation Law has brought some
deficiencies to light, on the other hand problems are caused by the fact that some political forces
try to speed up the whole process.
There are the problems of money for those audits and finding the specialized teams.
These technicalities can be solved with cooperation with many Funds and Programmes for Help
for Central and Eastern Europe.
I think that the environmental audits during the privatisation ought to answer the five or six
questions:
1. What is the present ecological situation of the firm?
2. What ought to be done for achieving the compliance with the Polish (and EEC) rules?
3. What kind of the administrative decisions are needed?
4. How much will the whole restructurization process cost?
5. Who will be responsible for implementation of the results of the audits (new owner, State
Treasury. Ministry of Privatisation etc.)?
6. What kind of legal tools ought to be implemented during the sale deal?
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The majority of audits gives only the answers to the first question. The audit of the Polish
oil and gas industry is the best example of this type of audit.
The answer to the second question needs collecting the environmental requirements from
various involved parties. The answer for the third question is crucial for new investor who wants
to have the stable situation. The answer for the fourth question is important during the sale deal
of the firm or the assets. The fifth question is connected with the problem: 'Who will announce the
inevitable shut-downs?". The sixth question can be answered by the legal advisors to the
government of, Poland.
The more complicated issue is the implementation of the results of those audits. Their
results give the big job for Ministry of Ownership Changes. It must restructurize these enterprises,
to divide them or/and to clean their area. It must change the normal way of their sale and
negotiate the special contracts. Nobody likes having more work. If you want to sell the car you
ought to repair the tyres, to adjust the engine and to wash the body. Ministry of Ownership
Changes would achieve the better prices if it made this effort on the basis of the results of the
audits.
Environmental audits would give the new requirements for these enterprises. Ministry of
Ownership Changes would be obliged to consider them during the sale.
Environmental requirements will be put forward by:
- firms performing these audits.
- inspectors carrying out normal controls of these facilities,
- voivodes and environmental division subordinate to them,
- independent ecological organizations.
- other law entities, which are personally interested in this matter.
Environmental requirements will be determined before the consent for a particular stage of
ownership transformation is given. In many cases environmental requirements will be a matter of
negotiations with potential investors. I am convinced that such an approach will be approved by
those who want to understand the obligations they will have to fulfil, as well as by banks which
prefer to avoid granting credits for investments, whose accomplishment, for ecological reasons,
will not be possible.
The examples of determination of those requirements are:
a) For plants operating on the basis of old-fashioned technology, with a lot of "past
contamination" cases, there can be imposed the following conditions:
- until a deadline, eliminating past pollution which still endanger people.
- sharing of costs for eliminating other kinds of pollution which do not directly endanger
people can be negotiated if by a certain deadline the plant will modernize its
technology to the level meeting the environmental standards.
b) The plants overexploiting natural resources will for sure have to limit their production to the
level ensuring reasonable management of those resources.
- the deadlines for recultivation of degradated areas and waste disposal sites can be
negotiated.
c) For the plants whose legal situation would qualify them to be closed (due to the lack of
water permits or exceeding the standards for emission to the air), the main requirement
will be the deadline to satisfy legal requirements. This date will be determined as
technically possible and comparable with deadlines imposed in such cases in EEC or
USA.
- ways of clarifying the legal situation will be the matter of interest of the given plant.
However, in Poland it is not possible to grant a water permit if the plant does not have
environment protecting equipment.
d) For plants whose difficult economic situation results from high penalties for violation of
environment protection rules it is possible to postpone the date of payment if they are
accomplishing the investment that would eliminate reasons for that penalty.
The fulfilment of the obligations included in privatisation contracts will be controlled and
executed by State Inspection for Environmental Protection.
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The ownership process in Poland needs the environmental audits. The decision is in the
hands of Ministry of Ownership Changes. Now the majority of foreign investors demand the
proper audits or they do them themselves. The cost of an audit is shared by the Ministry and the
investor.
Conclusions
The sale deals need the proper evaluation of the firms. The environmental audits ought to
be the basis for the desired restructurization or the sale of the firm. Somebody ought to be
responsible for the implementation of their results. The price for the enterprise with complicated
legal, environmental and economic situation is lower than for the other one. The idea of "quick
privatization" would give more troubles with ecological problems
4 EXAMPLES OF 'ECOLOGICAL SEMAPHORES'
There are eight examples of "ecological semaphores" shown in this chapter. They cover
the majority of existing ownership paths. I think, that every new path ought to have its own point
of ecological supervision.
4.1 Improvement of efficiency of financial penalties paid by enterprises.
It would reasonable to establish a new kind of fines for enterprises that are subsidised by
the State Treasury. Normal financial penalties are not effective against such firms because they
obtain from Treasury a fixed amount of money which is bigger than their fines. I think that the
Environmental Protection Act ought to be changed by adding one sentence:
"If economical entities obtain (indirectly or directly) subsidy for its activity from State
Treasury and encroach beyond the limits of emission the additional financial penalty is imposed
on the responsible manager of this firm. This supplementary penalty, equal to the amount of
single average monthly salary of this director (president) is paid by him. The fine is announced
twice in the regional newspaper covering the area of firm activity."
4.2 Reinforcement of protection against leaving the ecological damages during privatization of
the state-owned enterprises
Recently, a proposition has been put forward, to add one sentence to the Council Ministry
Decree on the register of the state-owned firms. The vojevodship inspectorates for environmental
protection will be able to oppose the enrolment (registration) of the liquidation, division or joining
of the state-owned firms. They will be able to demand the additional reviews if they suspect that
this decision would be detrimental to the environment. The most important is obtaining the answer
to the question who will be responsible for the accumulated wastes on the ground of the former
state-owned firm.
The second method of the strengthening of this protection will be incorporation of new
sentence into the Geology and Mining Law. This sentence will make "the recultivation fund"
compulsory. At present many state-owned mines are in very bad economical situation. They do
not accumulate capital for recultivation and this situation is highly dangerous for the environment.
There ought to be done special provisions for the bankruptcy law which can be used during the
special situation of the mine bankruptcy.
4.3 The protection against the import of the "dirty technologies"
The act on the establishment of the office of Ministry of Environmental Protection, Natural
Resources and Forestry gives this Ministry the task to verify the technologies which are
implemented in Polish industry. There are no other special acts on this subject. I think that this
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office will organize the special group for implementation of this task. This group ought to define
the rules and scales for verification.
It seems proper to add two sentences to the act on the limited companies with foreign
partnership. This act would state the supplementary rules for the creation of this firms.
"The formation of the firm, which will produce wastes in the amount bigger than 10 tons
per year or the dangerous wastes in the amount bigger than 1 ton per year, ought to be done by
special additional permission. The use of the technologies which are forbidden in any EEC
country needs the special permission, too."
This proposition will be considered soon.
4.4 Environmental audit as an indispensable part of the documents for the application to the
Stock-Exchange Commission
It seems to be useful to add to the "Law on Securities Trading and Mutual Funds" a new
item needed from an emitent (i.e. a person initiating offering stocks). This supplementary
information ought to be render accessible to the public and it ought to contain financial situation,
profits and losses, economical prospects for this firm and the results of ecological audits of its
factories and area."
This proposition will be considered soon.
4.5 Supervision over the liquidation process of the state-owned enterprises
It seems to be useful to add to the article 37 of "Privatisation Law for State-Owned
Enterprises" (i.e. so called "liquidation article") a sentence which will explain accurately the
transfer of ecological liabilities during this process.
The second supplementary item ought to guarantee that the decisions regarding the
stoppage of the ecologically detrimental production are valid against new economic entities, too.
The new Council Ministry Decree on the method of liquidation of the state-owned
enterprises ought to explain hitherto existing problems with the remained contaminated areas,
rents for the ill workers, unpaid fines and charges, the costs of demolition and recultivation.
4.6 "Ecologization" of the mass privatization process
It seems to be useful to impose the obligations on the investments funds created within
"mass privatization" process. These funds ought to take into consideration the aims of
eco-development. It can be achieved by simple financial stimulus which is usually better than no
matter which persuasion.
"The agreement between a fund and a managing firm should include the obligation to
perform ecological audits and use its results in companies, in which a stockholder is a fund. The
salary for the management of the fund is reduced beginning from the second year of
management by the amount equal up to 10% of the value of financial penalties paid for breaking
the environmental regulations by the companies, in which the main stockholder is a fund. The
value is calculated with regard to the share of this fund in the total capital of the firm."
This provision was proposed in April 1992. Since that time Ministry of Ownership Changes
and the group of foreign advisors have tn'ed to block the incorporation of this provision into the
"Law on Mass Privatization of State-Owned Enterprises". Instead of this they have incorporated
at least several enterprises with bad ecological situation into this process.
4.7 Ecological items for Bankruptcy Law
It seems to be useful for the organisations interested in protecting environment to bring on
the amendments of the article 204 of "Bankruptcy Law". The ecological debts (payments anc!
penalties and the cost of recultivation) ought to be included among preferential claims. These
debts should be estimated by the means of an audit.
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4.8 Ecological tools in management contracts
It seems to be useful to impose a little ecological provision on the management contracts
signed in a virtue of the article 45 of the "Law on the State-Owned Enterprises". Such clause
would be connected with the method of calculating the earnings of those managers.
"The criterions of estimation the effectiveness of management are established with regard
to the results and changes in environment which has been done during the contract. Payment of
the agreed amount of shares, mentioned earlier, can take place only after proving that in duration
of the contract the reduction of the value of an enterprise for the reasons connected with
environment have not occurred."
The Polish environmental protection agencies have numerous examples when the
managers of the firms (state-owned, private, cooperatives etc.) achieved quite good economic
results by the method of accumulating wastes on the territory of their firms. The wet method of
production of titanium dioxide with producing ferric sulphate is the biggest one.
5 OBJECTIVES FOR THE NEAR FUTURE
The most important task in the near future is introducing to the privatization the ecological
provisions. I hope that these provisions will give the positive results. It will make possible to avoid
some mistakes which has been done in this process before.
Next task is to convince all the foreign investors that without proper approach to this
problem they would not achieve the results. We observe positive changes in this approach in a
form f.e. declaring a considerable part (even to 30%) of the value of future investments for
investments improving ecological situation of the enterprises which are being taken over.
6 CONCLUSIONS
This paper, prepared for the panel speech #19, examines the remedies available to the
various ownership changes processes. The author hopes that the presented solutions are not the
only effective steps. The privatization process is so swift and alternating (like a mountain river) so
not all "good advices" can be used. PIOS negotiates with the representatives of Ministry of
Ownership Changes the most appropriate approach to the above-mentioned problems. The
implementation of the environmental auditing for the capital and liquidation paths is one of the
desirable results. The information for the supervisory boards deals with the inevitable changes of
permissions and their results (new charges and fines).
The conclusions and suggestions put forward in this material are being prepared or
accomplished at the moment. We hope that common action of many people will make possible
their effective application.
The opinions expressed in the present article are individual opinions of the author and they
are not necessarily correspond with official, being in force direction of activity of Polish
government agencies.
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ENFORCING THE LAW AT GOVERNMENT OWNED OR OPERATED FACILITIES
HOMONNAY, DR. A.
Director, Enviromark Ltd, P.O. Box 27, H-1453 Budapest, Hungary
SUMMARY
Under the circumstances of the command economy the interests of environmental
protection were pushed into the background because of considerations underlying the socialist
model of economic development. State decisions were enforced practically without opposition,
which lead to a catastrophically high level of environmental pollution.
After the transformation of the economic and political system the necessary democratic
procedures required for the settlement of conflicts between state, regional and local interests
have not been formed yet. The enforcement of environmental protection interests is still very
difficult because of the delay in the re-creation of the relevant legal regulations inherited from the
previous regime, real or seemingly important sociological considerations and the still significant
proportion of state owned companies.
The transformation of environmental legislation, its adjustment to EEC guidelines, and the
establishment of the funding of environmental protection independently of the state budget are
urgent necessities.
1 INTRODUCTION
In the West it has frequently been assumed that under the circumstances of a command
economy and the dominance of state ownership it is extremely easy to harmonise interests and to
enforce the law. Our experience however has proved that the exact opposite is the case. The
merging of the state's economic and administrative functions in most cases resulted in the state's
economic policies being based on ideological and strategical considerations, which led the
national economy to disastrous consequences in the short term, while with regard to
environmental protection it led to compromises which are now endangering our natural resources.
In Hungary, which was the first country in Europe to pass strict laws on environmental protection
(the Law on Water Resources), as well as regulations concerning the protection of the quality of
water resources of 1961, which could have provided up-to-date legal guarantees in this respect,
these laws nevertheless failed to fulfil their function because the state's political and economic
structure did not allow the consistent enforcement of these regulations.
In fact, legal regulations were mercilessly enforced against private individuals, sometimes
even overstepping the law's own limitations, while organisations owned by or entrusted to the
state were to all intents and purposes above the law, as a result of the political standing of their
leaders: they alone enjoyed all the advantages of the state's protectionist policies.
In order to be able to assess the impact of the changes that have recently taken place in
the Hungarian proprietary system it is necessary to give a brief summary of the history of the
environmental legislation which is still in effect today.
2 ENVIRONMENTAL LEGISLATION
The 'buds' of environmental legislation were present as early as the Law on Water
Resources which was prepared in the last century. This law assumed its up-to-date form in Law
IV of 1964. One of the first legal regulations in Europe on the protection of the quality of water
resources came into being in 1961. This regulation set the maximum limit for the issue of various
types of sewage and prescribed a penalty fee for those exceeding these limits. This was modified
several times later on, but an exclusive right of decision in these matters has always remained in
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the hands of the Chief Authority, governed in accordance with political (economico-political) or
other considerations.
The first law on the protection of the environment, regulating the management of the
individual elements of the environment as well as the utilisation of these overall, was passed in
1976. Separate laws regulated the protection of the quality of the air (1986), the conservation of
the environment (1982), the management of dangerous waste (1981) and noise prevention
(1983). Between 1964 and 1988 more than a hundred laws, including national standards, were
indirectly concerned with environmental protection issues.
It was characteristic of the party state legislation system that laws on the same subject,
but passed at different levels of the legal hierarchy, contained ambiguous or even contradictory
regulations. In order to put an end to this a major overhaul began in 1987 and still remains to be
completed.
It was characteristic of ail legal regulations passed under the command economy system
that they allowed not only legal and other necessary exceptions to the law, but also some which
were dependent upon the economic and political leadership then in power.
A classic example of the above, in fact the subject of longstanding practice, was that the
Head of the Hungarian Office of Water Affairs was entitled to reduce the amount of the penalty
fee established by a court (he could in fact completely abolish it) if the penalty fee was more than
the relevant company could afford to pay.
Another example of such anomalies, although in this case lacking any legal justification, is
that drains owned by or entrusted to the state, even though they heavily polluted the environment,
were for many years exempt from penalties, and when a legal process was initiated against them.
the court established an unrealistically low penalty fee.
Similar cases could be cited from the area of legislation concerning the protection of air
quality, too. The management of dangerous waste remained legally unregulated over a long
period of time, and even when the relevant legislation was finally passed, it was not enforced
against Soviet and Hungarian military and national defence organisations. The discovery of
dangerous waste by external institutions was hindered by the fact that several of these
establishments were managed under conditions of tight security. This meant that even if it was
suspected that dangerous waste was not being managed in accordance with the relevant legal
regulations no legal process or investigation could be initiated and consequently no penalty could
be imposed on these establishments.
3 THE PRESENT SITUATION
After the commencement of the transformation of the political and economic system in
Hungary the legislative system has also undergone both formal and substantial modification. In
accordance with the legislative practice of parliamentary democracies; along with the fact that the
range of Parliament's authority has significantly increased, codex type laws have now come to the
forefront. 40 years of communism distorted ail legal institutions, and thus virtually all legal
regulations - from standards to laws - must be either modified or completely transformed. It is
understandable that the supervision of legal regulations related to environmental protection has
not yet been carried out and the new law on the environment has not been prepared despite the
fact that the overall concept of the new law has already been worked out.
In the new situation establishments operating under the circumstances of a market
economy and polluting the environment are subject to legal regulations established for a
command economy, something which inevitably leads to a number of difficulties in the
enforcement of the law. As a result of the transformation of the proprietary system ministerial
decrees, formerly applied exclusively in relation to state owned legal entities (or legal regulations
of a lower category) need to be extended and interpreted accordingly, which may occasionally
raise the question of the legitimacy of these regulations. The preventive power of presently valid
legal regulations has decreased, the system of environmental financing has not yet been formed
and the financial situation of potential polluters - especially in the case of companies in which the
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state is still a majority proprietor - significantly hinders the enforcement of financial sanctions
against them.
Those polluting the environment may be divided into three main groups in accordance with
their form of ownership. The first group still continuing to cause the greatest amount of pollution
are manufacturing and service providing companies in majority state ownership.
The second group consists of companies transferred and to be transferred into local
council ownership. The range of companies in majority ownership is increasing. It is hardly at all
possible to enforce environmetal requirements on the first group for which there are two main
reasons:
1. Most manufacturing companies utilise out-dated technology, their sites are overloaded and
they cannot afford to install the approapriate environmetal protection eqiupment.
2. Most state owned enterprises do not produce substantial profits, as a consequence of
which they cannot accumulate resources and therefore they cannot afford to invest in
nonprofit making activities. Because of their lack of their solvency financial sanctions
against these companies remain inefficient. Despite of the above the maintenance of these
companies is necessitated by certain other considerations.
Sources of pollution belonging to the second group are in a similar situation as those in
the first group with the only difference that they are less subject to state preferences and
therefore the enforcement of environmental requirements seems to be more likely for them. It
must be noted however that the transfer of certain manufacturing and service companies into
local council ownership began only a year ago and has not been completed yet. Consequently,
certain extra legal considerations justify a certain period of moratorium with regard to them, with
exception of outstandingly damaging sources of pollution, of course.
No sociological obstacles stand in the way of the enforcement of the law with regard to
enterprises in majority private ownership because the state operating its administration does not
have to take into consideration extra legal factors. It must be noted that newly formed private
enterprises seldom utilise outdated technology. Most of them try to meet EEC standards from the
commencement of their operations. In the case of a number of enterprises however the
company's transformation into private ownership does not bring about the transformation of the
relevant company's structure and technology in which case the polluting of the environment
continues to take place. In such cases as these the taking of measures is perfectly feasible.
4 LEGAL MEASURES IN THE SERVICE OF THE ENFORCEMENT OF ENVIRONMENTAL
INTERESTS
The only measures presently available for the enforcement of environmental requirements
are those left behind by the previous regime.
4.1 Standards
The working out of standards serving the enforcement of environmental requirements has
already begun but this activity is at present restricted mainly to emissions and methods of their
measurement. Technological standards concerning individual branches of industry and the service
sector have not yet been worked out. The adoption of EEC guidelines is in process.
42 Criminal law
The Law on Environmental Protection and the Criminal Code contain the notion of
environmental crime but the legal elements of this crime have yet to be given a detailed
interpretation. With the exception of a number of outstandingly serious cases institutions dealing
with criminal matters have not reported on such cases officially. In order to be able to enforce the
law the offence must be specified by the legislator in detail in order to make possible its
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prosecution if serious damage has been caused to the environment even if no harm has been
inflicted upon human life, health and property.
4.3 Licensing
The most important measure serving the enforcement of environmental requirements is
licensing which looks back upon a relatively long history in Hungary. Activities influencing the
natural condition, of water resources could not be conducted without a license after the Law on
Water Resources was adopted in the last century. Later the Law on Environmental Protection
made licensing obligatory for the utilisation of air and soil too. The requirement of a license in
order to be able to conduct activities influencing the condition of the environment however failed
to improve it. Deviation from the practice and unlicensed activities were sanctioned only by the
imposition of penalty fees. It was also difficult to control the fulfillment of conditions laid down in
these, licenses. In several cases the establishment of sewage purifying or smoke filtering
equipment was prescribed by the environmental authorities and although these were either not
installed at all or their quality failed to meet the relevant standards. The authorities did not take
further measures against these manufacturing or service activities.
In the course of the updating of the system of legal regulations concerning environmental
protection the rules of sanctioning will presumably also be modified.
4.4 Penalty Fees
The most efficient legal measure serving the enforcement of environmental protection
interests has been and still is administrative penalties despite all the defects related to this
measure . The most important penalties are for air pollution and sewage emission.
Penalties for sewage emission were first regulated in 1961. This regulation has been modified
several times since then and at present this regulation prescribes 30 various limitations in this
respect regulating the quality of sewage which may be emitted. The limit values prescribed by the
regulations depend on the protection category of water resources and the penalties to be
imposed may be increased or decreased by several modifying factors.
Despite the classification of emission limit values as described above local circumstances and the
level of 'saturation' of the environment were taken into consideration hardly at all and this system
failed to promote the transformation of technologies used by companies polluting the
environment.
Basically the same can be said in relation to penalties for air pollution.
It is certainly true that as a result of the imposition of penalties the increase of the level of
environmental pollution came to a halt. This process was noticeable primarily in the case of
industrial companies.
Organisation
Until the 1970s the protection of the environment had been basically restricted to the
protection of the quality of water resources. The Hungarian Environmental Council, later
Environmental Office, commenced its activities as an independent organisation. Later, having
merged with the Hungarian Office of Water Management, the Hungarian Environmental Office
continued its activities until 1989 as the Ministry of Environment and Water Management, when,
as a result of the transformation process, water management affairs were transferred to the
Ministry of Transport, Telecommunications and Water Management. Regional development was
transferred to the Ministry of Environment.
The separation of water management affairs from the Ministry of Environment seems to be
a mistake, because it has resulted in ambiguities with regard to executive activities as well as the
distribution of the range of authorities belonging to these two spheres. Parallel ranges of authority
and procedures have been formed as a result of this decision, which has led to an increase in
administrative expenses related to environmental protection and water management, significantly
increased staffing levels, and at the same time, because of the division of authorities between the
two spheres, brought about the decrease of the efficiency of their activities.
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Before the transformation of the economic and political system public opinion could not be
enforced with regard to the licensing of industrial activities affecting the environment as a result of
the lack of organisational conditions necessary for the enforcement of local interests. The attitude
of the command economy was the reason behind such a situation, because it did not allow the
enforcement of alternatives different from the considerations of central planning. After the
transformation process the situation has fundamentally changed. It is a well known fact that under
the previous regime the opposition's first activities were centered around the issue of
environmental protection. Similarly, after the completion of the transformation process signs of
democrafjsation first became evident in the course of public debates concerning environmental
protection. Despite this, because of the lack of a proper organisational framework as well as the
underdevelopedness of democratic procedures in local councils, the general public has
participated in the actual effective decisionmaking process only with great difficulty and in many
cases, unfortunately, with a negative effect. It is especially true in relation to cases where the
state tries to implement investment serving the interests of the country as a whole against local
interests, including the storage of dangerous waste, the planned locations of which could not be
established because of the opposition of the local population.
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THE U.S. ENVIRONMENTAL PROTECTION AGENCY'S INTEGRATED MANAGEMENT
STRATEGY FOR ENVIRONMENTAL COMPLIANCE BY THE FEDERAL GOVERNMENT
MCCALL, T.W.L
Deputy Assistant Administrator For Federal Facilities Enforcement,
Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 20640
(United States of America).
SUMMARY
The US Environmental Protection Agency (EPA) uses integrated management strategy to
promote sound environmental practices among federal agencies. This strategy integrates
enforcement, cooperation, and rewards in a continuum of relationships with the other federal
agencies.
EPA's challenge in federal facilities enforcement is substantial. The federal government
employs over 2.5 million people, and occupies 387,000 buildings. It has 27,000 installations and
is landlord of 729 million acres. This expansive presence requires that EPA regulate thousands
of federal facilities and assist them in their environmental planning, (Appendix A)
The bedrock for the integrated management strategy for federal facilities is reliable data
which identifies environmental performance at each governmental installation. EPA's data bases
provide the information needed to target enforcement, cooperation, or rewards, as appropriate, to
achieve reduction of environmental risk and to maximize pollution prevention.
Cooperation with other federal agencies is the normal mode of interaction, but regulatory
sanctions will be applied when required to achieve environmental compliance. Specific
enforcement initiatives complement other EPA initiatives whenever feasible to enhance the
environmental benefit of both efforts. For example, achieving a high rate of environmental
compliance and significant pollution prevention efforts at the many military installation fringing the
Chesapeake Bay has been a significant part of EPA's geographic initiative to emphasize
environmental protection of the Bay.
EPA is working with other federal agencies to develop a reward system which recognizes
exemplary environmental protection, and again the Chesapeake Bay is providing an opportunity
to tout federal environmental achievement. Last fall the Deputy Administrator of EPA and I toured
the giant Norfolk Naval Base and gave a press briefing, praising the pollution prevention efforts
there.
EPA encourages public awareness and participation as essential aspects of EPA's efforts
to foster public confidence in the federal government's environmental record. The public needs to
be aware of the federal government's environmental record in order to have sufficient knowledge
to influence federal environmental decisions through publicity (adverse/adulatory) and participation
in federal agency environmental planning.
U.S. Public confidence in the federal government's environmental record has been low but
is improving now, and cleanup of hazardous waste at federal facilities is a major item of public
interest in the U.S. EPA is certain that involving the public in the federal agency environmental
process will improve the environment decisions made by the federal government, and the
public's confidence in government.
1 INTRODUCTION
This paper will examine the elements that comprise the U.S. EPA integrated management
strategy for environmental performance by the federal government. The goal of this strategy is
that the federal government shall meet or exceed compliance with all applicable environmental
law and regulations. The ultimate objective is to have the federal government set the standard
for the entire Nation in environmental behavior.
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To reach these lofty goals two fundamental things have to happen. First, governmental
agencies must incorporate environmental goals into the performance of their governmental
missions. Second, government employees must believe it is their duty to comply with
environmental laws. In order for these aspirations to materialize as good environmental
performance, certain irreducible elements of sound administration must exist.
The first element is that there be a body of law and regulation that sets forth
environmental standards. In the United States, this consists of local, state and federal
environmental statutes and federal regulations to which the federal government must adhere.
These laws and regulations need to be written in a manner which specifies that the federal
government is included as a member within the regulated community.
Although certain immunities or exemptions from the law for the federal government may be
necessary to allow the exercise of the federal function, these immunities and exemptions must be
narrowly drawn. The scope of immunities and exemptions must be limited to protecting only that
activity which is essential to the accomplishment of the missions of the federal government and,
when possible, further limited to shielding only activities which are uniquely governmental. For
example, an exemption from vehicle air emission standards should be drawn tightly enough to
exempt military tanks and other combat vehicles, but not exempt general purpose automobiles
used in the Department of Defense (DOD) Headquarters motor pool. The governmental mission
being protected is national defense, and only so much Department of Defense activities as are
uniquely military (e.g. vehicles used for combat) should be shielded from compliance
requirements. In the U.S., overly broad sovereign immunities often have led to friction between
the federal government and the public because they appear to allow the government to go
unpunished for violations of environmental law which are essentially the same violations that are
punished when committed by anyone else.
The second element is that there be an agency or agencies responsible for regulating the
behavior of the rest of the government. The U.S. EPA is one such agency. Other federal
agencies regulate other aspect of environmental law. State governments have analogous
agencies.
The third essential element is technical assistance and training. The regulator and the
regulated community share responsibilities to develop curricula which go beyond merely teaching
employees how to achieve technical compliance, and which promote an environmental ethic.
Fourth, regulatory agencies must assess environmental performance and advise the
regulated community on how well they are doing and where environmental performance can
improve. The regulated community should be encouraged to establish auditing and analytical
capabilities for internal use also so that they can assess their own environmental strengthens and
weaknesses, and improve their performance without the assistance of the regulatory agency.
No amount of inspecting, reporting, monitoring and self assessment, or other monitoring,
will be successful, however, unless there is a plan by which environmental requirements
uncovered by monitoring can be programmed for and funded. In the U.S. Government, there is a
process by which the federal agencies can identify their capital construction and other
environmental requirements, so that those items can be properly accounted for in the federal
budget. The U.S. EPA plays a role in this fifth element of sound environmental administration.
EPA has the opportunity to review and evaluate the other agencies' proposed plans prior to their
budget submissions. Theoretically, this process provides a mechanism for the proper allocation
of resources to achieve, maintain, and even exceed, environmental compliance. In practice, this
process has been cumbersome, resource intensive, and has not always identified and funded
projects in a timely manner that avoids noncompliance with environmental law.
The final element to a successful compliance strategy is enforcement. Enforcement
response is appropriate in instances when for some reason the other elements of a successful
compliance program have failed to yield compliance. In these instances, a coercive response is
necessary to convey the gravity of the failure to achieve satisfactory environmental performance.
Enforcement action further establishes the benchmark from which a compliance agreement or
consent order can be fashioned which will eventually bring the federal facilities into environmental
compliance. EPA's enforcement options against other federal agencies are limited to
administrative orders issued only after the opportunity is provided for the other agency to contest
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the order within the Executive Branch. As discussed below, however, the enforcement available
against federal facilities include enforcement by States and localities and by citizen suit. Taken
together, the full range of civil judicial, criminal, and administrative options are available, except
as limited by the sovereign immunity of the federal government and a almost never exercised
possibility of a short duration Presidential exemption from law.
2 THE INTEGRATED MANAGEMENT STRATEGY
2.1 Legal and Regulatory Authority
Major federal environmental statutes require environmental compliance with specific
criteria and standards established for different environmental media: air; water; and land. Other
federal statutes prescribe compliance requirements for specific substances or classes of
substances such as toxics or pesticides. One federal statute, the National Environmental Policy
Act (NEPA), establishes a process which the federal government must use to analyze its actions
which may affect the environment. Taken in combination, the federal government is thus required
by statute to act in a environmentally conscientious manner. The statutes are then implemented
by regulations and executive orders which require acceptable environmental performance. State
laws generally have similar applications.
In the U.S. Executive Branch, Executive Order 12088 requires each agency of the federal
government to comply with environmental law and cooperate with and consult with EPA, state,
interstate, and local agencies in achieving compliance. Each agency is required to request
adequate funds to comply with "applicable pollution control standards". The request for funds is
submitted through EPA to the Office of Management and Budget (OMB). Agencies are then
required to spend the funds for the environmental purposes for which they were requested.
Executive Order 12088 authorizes the Administrator of U.S. EPA to resolve environmental
conflicts between federal agencies, but if unable to resolve such controversies, the Administrator
is to request the Director of OMB to resolve the conflict.
Permits, compliance agreements, and cleanup agreements are the primary mechanisms
for translating statutory and regulatory authority into environmental performance and compliance
standards for specific federal installations. These devices are what actually establish many of the
environmental requirements which federal agencies must meet to comply with law, regulation, and
Executive Order 12088.
2.2 Regulatory Agency Responsibilities and Organization.
There must be a repository within government that is charged with encouraging, assisting
or coercing federal agencies to comply with the statutory and regulatory authorities. The U.S.
EPA is one such repository agency. State governments have similar regulatory agencies and
many municipal and county agencies also have regulatory enforcement responsibilities. This
paper will focus on the federal level; specifically on U.S. EPA.
The U.S. EPA has found it essential to aggregate authority within the agency for regulating
federal facilities on environmental issues. This has been done by forming two offices dealing
exclusively with federal facilities. These offices are located within the Office of Enforcement,
headed by the Assistant Administrator for Enforcement. Under the Assistant Administrator is a
Deputy Assistant Administrator (DAA) for Federal Facilities Enforcement. Reporting to the DAA
are the Office of Federal Activities (OFA) and the Office of Federal Facilities Enforcement
(OFFE).
U.S. EPA could have chosen to replicate a microcosm of itself inside OFA and OFFE by
giving these two offices authority to administer all aspects of all environmental laws at all federal
agencies. Frankly, U.S. EPA lacks personnel and monetary resources for such an elaborate
structure without sacrificing other valuable environmental programs. Further, an attempt to
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create such a structure at the expense of other bureaucracies within EPA would have created
unbearable intra-institutional friction. Neither the expense nor the fight could justify such empire
building.
Consequently the offices responsible for overseeing the environmental performance for the
entire federal government number just about 60 people total between them. Translating this to
dollars and national agenda, OFFE (with less than 30 people) is responsible for overseeing the
federal govemments's approximately $9.5 billion cleanup budget for fiscal year 1993. OFFE will
receive $30 million to fund its oversight of the $9.5 billion effort. To stretch $30 million of
oversight over $9.5 billion of effort requires that OFFE carefully choose when to become involved
in specific regulatory disputes. These limited resources are most suited to formulating policy
providing policy advice. Even its policy role must be confined to applying policies developed by
other programs to federal facilities, except when the matter is unique to the federal government or
involves program administration. For example, OFFE will rely on the Office of Solid Waste and
Emergency Response and the RCRA (Resources Conservation and Recovery Act) Enforcement
Division for leadership on RCRA enforcement policy. OFFE will work together with these other
entities and apply their general policy guidance in a way that makes sense for federal facilities.
Finally OFFE will rely on EPA's Regional Offices and state agencies' to actually carryout the
policy.
To summarize the organizational choices made by EPA in regulating federal agencies:
OFA and OFFE promulgate policies and guidance limited to defining the application of
environmental issues to the federal government. OFA and OFFE relate with the other program
offices within EPA to ensure that environmental policy is applied consistently to other federal
agencies. They also coordinate primarily with Regional EPA offices, and to a lesser extent, with
State and municipal environmental regulators, who actually execute the regulatory actions at
federal government facilities. Resource scarcity requires this institutional networking.
2.3 Training Technical Assistance and Compliance Monitoring
The history of environmental compliance at U.S. federal facilities has shown that a
substantial portion of compliance problems can be remedied by proper education and training of
personnel. Personnel who are adequately trained in the technical and ethical requirements of
their environmental responsibilities, are essential for a good environmental record. Most
environmental violations in the federal sector are equivalent to administrative oversight or lack of
knowledge regarding simple, fundamental environmental requirements.
The bulk of training of governmental personnel has to rest with the agency with
responsibility for complying with the law. Again, resource constraints are a major factor in
allocating responsibility for training. U.S. EPA does not have enough personnel to conduct
adequate training for other agencies. U.S. EPA however, can assist the regulated community in
setting up training, and can provide selected training.
A second reason that the regulated community must assume most of the burden for
education and training is that the needed expertise does not exist at EPA. EPA, for example,
does not have staff who are experts in the industrial processes related to nuclear submarine
maintenance. That expertise is with the Department of the Navy.
Professional engineering associations, educational institutions, and other experts and
associations often will be better able to conduct seminars, formal education, or conferences on
environmental topics that U.S. EPA. Training in environmental enforcement is, however, an
example of an area where EPA is the appropriate educator. Our National Enforcement Training
Institute (NET!) is supported by and part of the Office of Enforcement's (OE) National
Enforcement Investigations Center (NEIC). NEIC is an organizational unit of OE having primary
responsibility for providing technical support for EPA's enforcement program. NEIC provides
technical support for federal facilities just as it supports other OE enforcement (as well as the
Department of Justice, the FBI, and State and local law enforcement among others). The NETI
courses are among the training and technical assistance available from NEIC. NEIC and NETI
are two more examples of how the small OFA and OFFE staff can draw from other institutional
resources to network into a vibrant national environmental program for the federal government.
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A different example of building a national program with limited resources is the one person
education staff supported by OFFE. The person is located in the field, not Headquarters. She
teams with the U.S. Air Force to present a 3 1/2 day course which imparts baseline legal,
technical, and community involvement aspects of hazardous waste cleanup work at Air Force
installations. The course requires the Air Force and EPA participants to work together as a team
to design strategies for dealing with a cleanup scenario. "Staff" for the course are volunteer EPA
experts who to provide the participants with the legal, technical and community involvement
requirements needed for the team to overcome their cleanup problem in a lawful, technically
sound manner that has public support. This innovative effort provides a strong mechanism for
establishing a better working relationship between the Air Force and EPA. The team approach
helps transform an adversarial relationship between the regulator and regulated community into a
team with extensive expertise to achieve common goals. It is an excellent example of an
"enforcement" activity in the federal government outside of the command and control relationship.
I hope to offer this cross between training and technical assistance to other federal
agencies to the extent a limited budget will permit. Technical assistance is provided by EPA to
federal facilities in variety of forms. Workshops which provide technical details of implementing
environmental requirements are a common form of technical assistance. Guidance documents
and fact sheets answering certain specific technical questions are other commons forms of
technical assistance. Both the Office of Federal Activities and the Office of Federal Facilities
Enforcement have regularly scheduled information transfer meetings and perform clearinghouse
and other information exchange functions for other agencies.
A trained work force needs a management structure which encourages the
accomplishment of environmental objectives. Accordingly, EPA encourages other federal
agencies to rate all personnel on their environmental performance and to periodically and
systematically audit their environmental programs to identify actual and potential environmental
problems. Personal accountability for environmental behavior and an effective environmental
auditing program assist the regulated community to become more responsible for their
environmental performance.
2.4 Compliance Monitoring
The federal government has not yet achieved a level of environmental performance that
allows self assessment and self auditing by the regulated community to be the only means of
monitoring compliance. Compliance monitoring by the U.S. EPA is required. Compliance
monitoring can be broken into two categories. The first category is information provided by the
regulated organization to the regulator. The information ranges from record keeping to periodic
notification and reports of non-emergency and emergency nature. This information not only
provides a profile of environmental performance, but also is a self disclosure of environmental
non-compliance. Record keeping and reporting requirements under the Clean Water Act are a
primary means of monitoring effluent discharges from permitted sources into U.S. waters.
Regulatory inspections, however, constitute the bulwark of compliance monitoring. U.S.
EPA and other regulatory agencies within the United States conduct periodic inspections of
federal facilities to ascertain the degree of environmental compliance. U.S. EPA coordination with
State inspectors is especially important, given the number of environmental regulations which are
administered by state governments in the United States. Seventy to 80% of environmental
inspections are by State and local government.
Permits, whether monitored by the regulated community, reviewed by the regulator, or
both, form a principal basis for assessing federal facility compliance with environmental law.
They establish often provide the standards or conditions to be monitored for compliance in air,
water, and hazardous waste.
Compliance monitoring results must become the basis for budget planning in order to
convert the results of monitoring into projects to maintain compliance. As mentioned previously,
Executive Order 12088 requires that federal agencies annually submit their plans to meet their
pollution control responsibilities to the U.S. EPA for review. OMB Circular No.
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A-106 describes the process for developing and maintaining Pollution Abatement Plans. The A-
106 circular requires that federal agencies develop plans that assure their facilities meet the
standards of federal, state, interstate, and local law and regulations. Such plans are to describe
all project costs needed to conform to regulatory requirements. The agency plans are to include
milestones for design, construction, and completion of the projects in the Pollution Abatement
Plans. The milestones, in turn represent agency commitment to comply with the standards
established by statute or regulation, assuming that the identified projects will be funded by the
Congress. EPA theoretically reviews and notes each project for adequacy and priority.
The link between compliance monitoring and farsighted budget preparation is essential if
government is to meet legal environmental requirements when carrying out other missions. The
A-106 process attempts to provide that planning coordination in the U.S. System. For Fiscal Year
1992 federal agencies identified 7,088 projects for abating pollution with a price tag in excess of
$5 billion dollars. The A-106 statistics graphically demonstrate the federal government's
increased commitment to fighting pollution. The 1992 figures represent an almost ten fold
increase in projects and an additional $4 billion in funding over levels in 1988. (Appendix B)
The A-106 system is not without flaws, however. Unfortunately, the A-106 system does
not ask for budget data to be presented in the same format that some agencies do cost
estimating. This has been a problem for the Department of Energy in particular, where their
actual planning data must be converted to an essentially artificial reporting mechanism at the cost
of many lost cumulative years of work.
Another problem with the system is requiring EPA to review and assess the data. My
OFFE Office Director estimates it would take 60-90 new people to adequately review the other
agency submissions. That is potentially more people than on my entire Headquarters staff.
These new people would have to be experts in cost estimating, not environmental experts. That
fact was driven home when the Administration "scrubbed" the Department of Energy's (DOE)
fiscal year 1993 budget for environmental cleanup and waste management.
The DOE budget review was an extraordinary undertaking which consumed 12,500 hours
of OMB staff work, 13,400 of Army staff hours, and numerous hours from other agencies
participating in the budget review. The item by item budget review involved teams of auditors
and engineers inspecting every DOE facility and every environmental budget document. The
excruciating review was necessitated by fears that even an almost $5 billion DOE waste cleanup
and management budget would be insufficient to meet legal environmental obligations. During
the review it became clear that U.S. EPA lacked expertise to evaluate the dollars needed to
perform a particular project. Our input was confined to advising on what the environmental law
required be done to satisfy the law. How much it cost could be better estimated by DOE,
auditors, or construction engineers.
Again, the lesson is to build a federal facilities regulatory role carefully, to rely on
networking, and to avoid tasks not suited to a staff specializing in environmental requirements at
federal facilities. Finally, the lesson to be relearned in this experience is that in the federal
government, the regulated agency will do most of the work needed to meet environmental
requirements; e.g. cost-estimating, contracting, or administering the cleanup or workcenter. The
regulator assists, oversees, rewards or sanctions.
2.5 Enforcement Options
EPA does not sue other agencies of the Executive Branch to enforce environmental
compliance. Neither, can EPA unilaterally order another Executive Branch agency to comply with
an administrative order. The other agency must be provided an opportunity to contest the
proposed order within the Executive Branch. Unilateral administrative orders have been deemed
an unconstitutional interference with the President's authority to manage the Executive Branch of
government. This Constitutional limitation does not apply to state or local governments, or
citizens. To the extent the sovereign immunity of the federal government has been waived,
criminal, civil judicial, and unilateral administrative options are available to states and local
government. Citizens can sue to the extent sovereign immunity is waived and citizen suit is
authorized by statute. The determination of the scope of the waiver of sovereign immunity varies
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from statute to statute. Federal employees are subject to prosecution for criminal violations.
Such violations would be referred by EPA to the Department of Justice for prosecution at the
federal level.
The foregoing factors subject federal government agencies to civil judicial, administrative,
or criminal enforcement, from state or local government, and the citizen, as well as to
enforcement from within the Executive Branch. Adding to the enforcement mechanisms are the
National Environmental Policy Act (NEPA) and, Section 309 of the Clean Air Act (CAA). The
federal government is sensitive to public comment and perspective, in particular, adverse public
press.
The consequence is that there is a great deal of environmental enforcement leverage
against the federal government; to find the leverage one must look beyond a traditional analysis
of administrative, civil judicial, and criminal options. One must factor in the voice of the public,
the role of the states, and the extraordinary administrative review mechanisms provided
exclusively against the federal government by NEPA and section 309 of the CAA.
2.5.1 NEPA and Section 309 CAA
NEPA differs from other environmental Statutes in that it does not specify compliance
standards, but establishes a process by which the federal government is to assess the impact of
its actions upon the environment. This succinct four page statute requires that the federal
government address adverse environmental impacts which cannot be avoided if federal
government actions significantly affect the quality of the human environment. The federal agency
must then examine alternatives to the proposed actions and other issues. EPA influences the
other federal agency's environmental performance by making comments on the adequacy of
matters within EPA's environmental expertise. EPA will also cooperate formally with another
agency from the inception of the NEPA evaluation to assist in developing an environmentally
acceptable course of action.
The most effective environmental enforcement levers in NEPA are the avenues the Act
provides the public. First, the public participates in meetings with the Federal agency to discuss
the scope of the proposed federal action, and later, the public comments on the adequacy of the
government's analysis of environmental impacts, including alternative solutions and environmental
mitigation. Finally, NEPA provides the avenue for the citizen to sue the federal government for
procedural errors in complying with NEPA or for substantive failures in the required environment
analysis. These NEPA lawsuits, threats of lawsuits, and the attendant adverse publicity are
substantial enforcement options that NEPA fosters exclusively against the federal government.
(Some states have similar requirements for state actions affecting the environment.)
Section 309 of the CAA provides EPA the availability to review other federal agencies'
major actions, including proposed regulations or legislation. Although the review authority is in
the Clean Air Act (CAA), EPA's review authority goes beyond impacts on air quality. Section 309
authorizes EPA to consider public health, welfare, and environmental quality. Section 309 was
added to the CAA, in 1970 because Congress felt more teeth needed to be added to NEPA.
Consequently, under its section 309 authority, EPA can even challenge another agency's decision
that their proposed action does not require a NEPA environmental impact statement. EPA
publishes its reviews for public consumption and can refer environmentally unsatisfactory projects
or projects with insufficient environmental analysis to the President's Council on Environmental
Quality (CEQ). In practice, EPA's comments under its section 309 authority receive the great
deference owed to avoiding adverse publicity, citizen lawsuit, and/or referral to the President's
CEQ.
2.5.2 Citizen Participation
We too often think only of formal enforcement mechanisms when defining the universe of
options available to regulatory enforcement agencies. These formal options are more important
to U.S. EPA federal facilities enforcement now than in the past, but the role of the public in
achieving environmental performance from the federal government remains important. The
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emphasis at EPA is in facilitating interactive discussion between the public and the federal
government as the preferred option to litigation between the public and the federal government.
EPA's program to stimulate public awareness and participation are still evolving, but
includes a national advisory commission to the Administrator of EPA on cleanup of hazardous
waste at federal facilities. The EPA participates with the U.S. Department of Energy (DOE) on
their Programmatic Environmental Impact Statement for cleanup of their massive environmental
waste problems and management of their future waste streams in an environmentally sound way.
EPA also sits on two DOE public advisory boards on environmental issues, and participated on
DOD's Base Closure Task Force which was also open to the public and had appointed
representatives form the public sector.
2.5.3 Cleanup and Compliance Agreements
Among the principal EPA administrative enforcement mechanisms against, federal
facilities are cleanup and compliance agreements. Cleanup and compliance agreements between
the regulated community and regulators are important means for EPA to link compliance planning
and environmental performance. Such agreements implement the law by requiring a series of
environmental activities over time. There are two primary environmental laws in the U.S. that
govern hazardous waste cleanup and management. These are, CERCLA, or Superfund, which
deals with the dangers posed by hazardous waste sites and RCRA, the Resource, Conservation
and Recovery Act, which governs (among other things) waste management activities at facilities
currently generating waste. One group of these agreements is the Federal Facility Agreements
(FFA), pursuant to CERCLA. These are the agreements used to plan cleanup activities at our
major hazardous waste sites at federal facilities. As of May 21, 1992, EPA had entered into 103
of these agreements. A second form of agreement is used to bring federal facilities into
compliance with the law. These are Federal Facilities Compliance Agreements (FFCA), pursuant
to RCRA. FFCAs allow the federal government to institute an orderly and planned process to
bring non-compliant facilities into compliance with the law. FFCAs also implement other federal
environmental laws. (Appendix C)
In my statement to the United States Senate Committee on Energy and Natural Resources
on May 21, 1992, I described the importance of these cleanup and compliance agreements in the
following terms.
"The federal government is investing significant resources in addressing environmental
cleanup and compliance issues at federal facilities. Cleanup and compliance agreements provide
a key framework for determining how and where these resources are to be applied over the long
term and are a valuable tool for a number of reasons. First, these agreements provide for
accountability to the public. They are enforceable in federal district court by States and citizens,
and they allow for some degree of public involvement in and scrutiny of the federal government's
environmental management decision-making process. Second, these agreements provide
management plans for federal facilities to implement their programs by establishing long-term
schedules and milestones. Third, these agreements provide a framework for discussing and
setting priorities and determining funding needs. Finally, they clarify the respective roles,
authorities, and responsibilities of the parties, thereby promoting greater coordination in
implementing the requirements of these agreements. This is particularly important in agreements
where states are signatories. Because of the commitment by the federal government that these
agreements represent, they are very important to improving the credibility of the federal
government with respect to meeting its environmental management responsibilities."
In the previous paragraph I described the importance of the Federal Facilities Compliance
Agreement (FFCA) as the customary enforcement response to major violations which require time
and the expenditure of capital to achieve compliance with environmental laws and regulations.
FFCAs are negotiated between the regulator and non-compliant party. Another negotiated
compliance instrument is the consent order. EPA's policy is that consent orders are appropriate
when agreements are being negotiated jointly with a State and that State has administrative order
authority and are also an option when EPA has order authority itself under statute. Violations of
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a consent order can be enforced through the courts whereas violations of FFCA are enforced
through dispute resolution within the Administration.
Once EPA discovers an environmental violation, and makes a determination of non-
compliance, it then takes its initial enforcement response. The initial enforcement response will
vary depending on the type of violation and the record of the violator. Generally, EPA issues a
Notice of Violation (NOV), or equivalent notice as the initial written notice in cases where
significant violations must be addressed. These NOV's are issued to the Facility Director or Base
Commander, and describe the violation and how it was identified. The NOV goes on to state
consequences of not meeting the requirement of the law or regulations. The notice will specify
dates by which the violator must respond or face issuance of an order or formal escalation of the
enforcement action. If the authority under which the NOV is being assessed is a statute
authorizing citizens suits, that authority is often cited in the NOV.
In some cases the federal agency will have corrected the violations before receiving the
Notice and will provide written certification to that effect. In other cases the violation is corrected
in a short time. In such cases the federal agency again will submit a certification to EPA that the
violation has been connected with substantiating documentation to demonstrate that the situation
has been corrected. In the more serious cases requiring formal response action, EPA will
negotiate with the noncompliant activity resulting in either a FFCA or a consent order.
Sometimes negotiations between these parties cannot be resolved. In such cases
disputes are resolved by elevation through the bureaucracy in formal dispute resolution,
potentially to the Administrator of EPA and possibly to the Office of Management and Budget for
resolution. These enforcement procedures are often lengthy and have subjected the Federal
government to criticism that it lacks enforcement integrity when it comes to-applying
environmental law to the government. It also leads to the perception that federal environmental
violators are held to lesser standards than the private sector. As noted earlier the need to
negotiate enforcement is derived from the Constitutional separation of the three branches of the
federal government and the concept of the unitary executive branch. Under this concept, all
federal agencies are seen as acting as one entity to carry out the will of the Chief Executive. The
executive branch, in turn, being a single entity, cannot take courses of action contradictory to
itself.
2.5.4 Criminal Enforcement
Despite all the innovative, pain reducing enforcement options discussed above, sometimes
overtly coercive measures are the most appropriate enforcement mechanism. Criminal sanctions
are the ultimate coercion. The federal government can't be sent to jail, but federal employees
who commit criminal violations of environmental law can be criminally prosecuted. There have
been only rare instances when federal employees have criminally violated environmental law.
The cause celebre was a criminal case in the late 1980's which led to the conviction of three
civilian employees who worked for the U.S. Army at the Aberdeen Proving Ground in Maryland.
The employees were found guilty of criminal violations of RCRA in the performance of
their duties developing chemical warfare systems. The appellate court affirmed their criminal
convictions, and rejected their argument that they were protected from criminal prosecution by the
federal government's sovereign immunity. The court found that the government's sovereign
immunity did not extend to criminal activities of individual government employees.
The highly publicized case sent shock waves through many sectors of the federal
government. No one incident did more to arouse institutional sensitivity to environmental
responsibilities in the federal government than did this criminal case.
2.5.5 State and Local Government Enforcement
State and local enforcement against the federal government is not restrained by the
unitary executive concept of the Executive Branch, but is limited by sovereign immunity and the
financial and personnel needed to pursue as powerful on entity as a federal agency. Despite
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480 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
these limitations, state and local government enforcement actions constitute the bulk of regulatory
actions against the federal government.
3 RESULTS
What are the results of this holistic -- education to planning/sanctions to rewards --
approach? The federal government's environmental record is improving, and the record allows
for room for still further improvement. Rates of compliance with discharge permits under the
Clean Water Act improved from 91% to 98% between fiscal year 1989 and 1991. The
comparable non-federal rate stood in excess of 98% over the same three years. Rates for
compliance with the Clean Air Act improved slightly from fiscal year 1990-1991, and were just shy
of similar rates in the non-federal sector. Federal compliance rates were almost the same as
non-federal rates under the Safe Drinking Water Act. (Appendix D)
It is the federal government's waste cleanup and hazardous waste management that has
gained most attention and most criticism in the U.S. Here the record of improvement is post
marked and the room for further improvement is greatest. The Department of Energy alone is
asking for $5.5 billion dollars for fiscal year 1993 to cleanup and manage waste. Compliance
rates with RCRA have been traditionally lower in the federal sector than in the non-federal sector,
particularly in the important sector including facilities the store, treat or dispose of waste (TSD).
In fiscal year 1989, federal TSD's were rated as complying with RCRA in 39% of inspections.
That rate for federal TSD appears to have increased to 59% by FY 91, with a 63% rate of
compliance over the entire federal RCRA spectrum. If these preliminary data are validated, this
would be a better compliance rate than that achieved in the non-federal sector. (Appendix D).
4 CONCLUSION
Enforcement of environmental law at federal agencies involves many actors actuating
many levers. At U.S. EPA enforcement is part of an integrated management strategy.
Accordingly, enforcement isn't always what one normally considers enforcement. It is a
continuum from education to incarceration. It stretches from incentives and rewards to sanctions
and penalties. Public discussions and press coverage are paired with lawsuits and administrative
sanctions as means to influence behavior.
For states, local governments and local citizens sovereign immunity sets the boundaries
for formal enforcement, but the pressure of adverse public opinion is not so fenced.
The enforcement of environmental law by the federal government with regard to the
federal government can be seen and understood through the concept that the executive branch is
one entity. Executive Order 12088 reflects the collective environmental responsibilities all
agencies in the Executive Branch. It defines EPA's role to include technical assistance and
training, cooperation and enforcement within the federal government. Based on the precepts in
Executive Order 12088, the federal facilities environmental enforcement program is aimed at
building institutional capacity within the federal government to comply with environmental law.
This capacity requires training and technical assistance, both from the regulated federal
community and from the EPA. Compliance monitoring becomes a measure of effectiveness of
this institutional capacity to comply, and the A-106 budget process becomes the planning tool
which converts compliance monitoring into environmental compliance.
In those cases where the system fails to achieve compliance the federal system provides
for enforcement consistent with the concept of a single executive branch. This enforcement
response relies on negotiated settlements between the regulated community and regulator.
These negotiations have been subject to criticism for the failure to treat the federal government
with the same enforcement zeal as the private sector. The results of these negotiations are
FFCA's and consent orders. These compliance mechanisms put the federal government on
compliance schedules to correct environmental problems across the country, and have driven the
expenditure of billions of dollars for federal environmental projects.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 481
Federal Facilities Agreements (FFA) are a final, and most important, tool to identify and
remediate environmental problems at federal facilities. These agreements set the schedule to
cleanup hazardous waste at our federal facilities. FFAs have obligated billions of dollars for
environmental cleanup. Taken together, the A-106 program, FFAs, FFCAs, consent orders,
provide U.S. federal government the mechanism for programming for and achieving its
environmental obligations.
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The Agency's Federal Facility Challenge Is Substantial
387,000 Buildings
>2.5 Million Employees
27,000 Installations
729 Million Acres
The Agency's Federal Facility Challenge is Substantial
Environmental
Program
• RCRA (TSDs Only)
(AIlFFs)
• SDWA (PWSS)
• AIR
• EPCRA (GOCOs Only)
• CWA (NPDES) Major
Minor
Number of Regulated
Federal Facilities
334
4^96
5,313
451
87
147
1,047
omcr of FTDimAt fACiunu IHTO«CEMIKT
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483
APPE:;DI:< B
Total Number of OMB A-1Q6 Pollution Abatement
Projects Proposed by Federal Agencies for FT 1988 - FY 1992
Projects
8000-
7000-
6000-
5000-
4000-
3000-
2000-
1000-
0
758
1.458
4Ji5
7.088
FY88 FY89 FY90 FY9I FY92
Fiscil Years
6/19/92
Total Dollars Requested fur OMB A-106 Pollution
Abatement Projects for FY 1988 - FY 1992 for All Federal Agencies
Dollar*
(WOO)
Million
FY88 FY89 FY90 FY9I FY92
Fiscal Years
6/19/92
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
A??r-:Dix
FEDERAL FACILITY 1NTERAGENCY AGREEMENTS (1AG)
Number of Signed lAGs by Agency
DOE - 13 (Covering IS NPL
sit*s ind non-NPL
site) \
Other - 1 (Covering 1 NPL sit*}
\
DOD • 89 (Covering 93 NPL
sites and I non-NPL
site)
Total = 103 (Cortring 109 NPL titti and 2 non-NPL tiltt)
6/t9/92
RCRA FEDERAL FACILITY COMPLIANCE AGREEMENTS
Number of RCRA §3008(a) Agreements by Agency
Other (9)
Defense (4)
DOE (7)
Air Force (H)—
f—Army (19)
Navy (19)
Total -73
6/19/92
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Oil II I 01 111)1 UA1 I At II I I II s 1 Nl 01U I Ml \ I
Federal, Non-Federal
Compliance Rates Under Non-Superfund Statutes
FY 1991 F'x^l'ra'
RCKA
Compliance
Non-Federal
RCKA
Compliance
Federal
I'WSS
Compliance
Non-Federal
I'WSS
Compliance
Federal
Nl'DES
Compliance
Non-Federal
NI'Dl-S
Compliance
Federal
Clean Air
Act
Compliance
(F-Y89 D.i la
Not
Available)
Non-Fed oral
Clwm Air
Ait
Compliance
(l^YHy Data
Not
Available)
RCRA = Hazardous Waste Law
FWS8= 8af« Drinking Water Law: Public Water Systems
NPDES= Water Discharge Permit Program
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
NPDE5: Compliance Rate Comparison
FY89
FY90
Total Compliance Rate
Total Federal Facility Compliance Rate
OE/OFFE
SIPDES DATA
30-Jun-92
• •;•* '_'...-;. .':
"~. '•?''-":';:.-•
||p-
Total Universe (Major)
Total Inspections
Total Facilities Out of Compliance
Fed Fac Universe (Major)
Total FF Inspections
Total Federal Facilities Out of Compliance
% Universe
% Inspections
% Out of Compliance
Total Compl. Rate
Total FF Compl. Rate
^&" '^"f - '^^'^"'V'^" l
;:S-FY89:;;
7,369
50.100
733
148
252
22
2%
1%
3K
99%
91%
': ~;";-'"*»Mii^
8 Fraf
•' . • •••-.';' ~^iS«r
7.131
39.063
973
148
245
16
2%
1%
2%
98%
93%
' L:\FY9t ,,'^
7.173
42,609
405
146
600
12
2%
1%
3%
99%
98%
Documentation: NPDES
The information for the following chart and graph was taken from PCS on the week of June 22,
1992 by Frank Varisco of the Computer Science Corporation (for FY91 figures). The program contact
was Mike Mundel, Office of Water. The information shown for FY89 and FY90 was also taken from
PCS but pulled during carry April, 1991. The figures listed under violations are actually the number of
facilities out of compliance as of the last day of the fourth quarter for each fiscal year.
A. Chart Comparison of Universe, Inspection and Violation Data
for FY89, FY9Q, and FY91.
B. Graph: Comparison of Total and Federal Facilities Compliance
Rates for FY89, FY90, and FY91
PCS= Permit Compliance system, an automated data base
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
487
AIR: Historical Qomplianrp Status at
Federal Facilities FY90-Q1
350
FttVt
A/Wo?
OE/OFFE
AIR DATA
t*'
•
I" . : :• ',""'
l> -'-.•:•. L
'•-.' - -',,- '
• -
:P ' ' ' :
Total Universe
Total Inspections
Class 1 Violations
Federal Facilities Universe
Federal Facilities Inspections
Federal Facilities Class 1 Violations
% Universe
% Inspections
% Violations
Total Compliance Rate
Federal Facilities Compliance Rate
:.:""""
36.311
34.667
1.572
436
307
30
1.20%
1.15%
1.01%
95.47%
02.44%
131
38,077
32.866
1.575
448
305
25
1.18%
1.20%
1.S4*
05.21%
03.67%
;m
30.776
• •
451
• •
• «
1.13%
.
.
.
•
A/of*: Complisr.c* ntw aucutszont
unknown complmnc* status.
area* In comp&anc*, non-cotnpttsncf. and
• FY02 status extends to the end of the third fiscal year quarter.
• • Inspections and violations w*l not be calculated until the end of fiscal year 1002.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Air Compliance Rates for FY90-91
FY90
Frti
7/1/9?
Documentation: AIR
This information for B. and C below was pulled from the AIRS Facility Subsystem (AFS) on
June 22 and June 24,1992. The milestone reports were developed by Mark Antell of the Stationary
Source Compliance Division. FY92 information is represented is the status as of the end of the third
quarter—inspections will not be calculated until the end of the fiscal year. Information on the first
graph was obtained from a February 25,1992 Memorandum from Michael H. Shapiro, Deputy Assistant
Administrator for the Office of Air and Radiation entitled "Federal Facilities Enforcement Initiatives'.
A. Graph: Historical Compliance Status, FY90-91
B. Chart Comparison of Universe, Inspection and Violation Data for FY89, FY90, and FY91.
C Graph: Comparison of Total and Federal Facilities Compliance Rates for FY89, FY90, and
FY91
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489
PWSS Compliance Rate Comparing
Between Total and Federal Facility Rates
For The Last Three Fisral
13*
tit
FED. FAC Compline* R*fe
FYJ»
TOTAL CarfUfKt R»it
FY»
FY91
3 TOTAL Co-pilaw Hut • FED. FAC CoBpUam RMt
Documentation: PWSS
The information for the following chart and graph was obtained from Larry Weiner at PWSS.
The system used was the Federal Reporting Data System (FRDS-D) and the pull date for FY91 data was
June 10,1992. For the previous Fiscal Years, the pull date was in March, 1991. The total violations and
Federal facilities violations indicate the total number of PWSS' with violations (facility orientation).
FY91 Non-Community Total SNCs and Federal Facilities SNCs were, in previous years, a part of Non-
Transient, Non-Community categories, now they have been broken out into Non-Community as well.
A. Chart Comparison of Universe, SNC, Inspection, and Violation Data
for FY89, FY90, and FY91. Including:
B. Graph: Comparison of Total and Federal Facilities Compliance Rates for FY89, FY90, and
FY91
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490 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 491
CIVIL ENFORCEMENT: PAYING FOR THE PAST
MEIJENFELDT, HUGO G. VON
Deputy Manager Soil Clean-up Division, Ministry of Housing, Physical Planning and Environment,
P.O. Box 450, 2260 MB Leidschendam (from 1993: P.O. Box 30945, 2500 GX Den Haag), The
Netherlands.
1 INTRODUCTION
In the United States and to a lesser extent in the European Community, environmental law
is not only being enforced through public law (compliance with regulations, penalties imposed
under criminal law, etc) but also through the civil law. The latter leads to legal actions which result
in the following judicial rulings:
- an injunction prohibiting behaviour which threatens the environment;
- an injunction enforcing behaviour which protects the environment;
- a judgement that recovery must be made for any damage to the environment.
Public law enforcement is successful mainly because it demands compliance with
environmental standards. Civil law enforcement, because of its association with property rights, is
mainly associated with a subject to which companies and private citizens attach prime importance
- money: they feel the financial consequences of their environmental behaviour directly in
their pockets.
When putting civil law into effect, a clear distinction must be made between environmental
damage which has occurred in the past - often a mortgage on which neither interest nor principal
appear to have been paid - and the threat of environmental damage in the future. It is obvious
that of the two it is remedying inherited pollution which poses the greatest problem. Because the
Netherlands has gained more experience in this area than other Western European countries, this
will be the topic of this paper.
1 shall first give an explanation of the policy based on the principle "the polluter pays" and
how this policy has been implemented. I shall then go into the legal aspects of cost recovery
based on court proceedings with regard to tort and unlawful enrichment, as well as the obligations
of poNutors and land owners to undertake clean-up operations themselves or to give a
guanrantee that clean-up will be carried out. Finally, I shall look at the extent to which this set of
instruments can be applied in countries without financial-economic resources.
2 POLICY
The initial reaction to the discovery of an environmental legacy of catastrophic size
appears to be the same in every country, namely emphasis on joint responsibility for both the
causes of, and the solutions to, the problem. In 1980, in both the United States (after Love Canal)
and in the Netherlands (after Lekkerkerk), this resulted in large sums of tax payers' money being
spent on cleaning up serious soil contamination. More than ten years later, this is the reaction
prevailing in Central and Eastern Europe. It should be noted that the tax burden on business and
population is being spread out due to loans from the West. The European Bank for Reconstruc-
tion and Development in London has already taken the necessary initiatives.
The attitude that the causes of past environmental damage is a joint responsibility
warrants a critical reception. In the West, the damage to the environment is the consequence of
industrial processes, which have occurred in the context of a free market economy. As long as
there were subsequent (considerable) profits, it was strictly maintained that these were strictly the
responsibility of the individual companies. Now that losses are being incurred, one cynically notes
that industry, in particular, is suddenly advocating collective solutions.
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492 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
The reasoning of Western companies surprisingly fits in with the situation in Central and
Eastern Europe and also the standpoint of the developing countries at the UNCED congress in
June this year. They point to the dreadful conditions at the end of the World War II. There was a
miraculous reconstruction of Western European industry which finally brought prosperity to
everyone. Everyone should therefore contribute to the clean-up of the accompanying pollution.
These collective solutions mostly conflict with the principle applied to environment policy
that the polluter should pay. Even taxes on industry will often apply to companies which have not
themselves contributed to environmental damage. This was the reason why in 1982 the Dutch
parliament rejected the government's proposals for taxes on industry for soil contamination and
advocated recovering costs on an individual basis.
The expectations for successful cost recovery were anything but high that year. Scientists,
lawyers and government officials responded to the government's optimistic attitude with reserve, a
gloomy outlook and even sarcastic remarks. In 1983, the Netherlands sued the polluters in two of
the largest ctean-up projects (costing approximately $ 50 million each): Shell in the Gouderak
case and Philips-Duphar in the Volgermeerpolder case.
I believe the government's willingness to sue systematically has been rather
underestimated. From the very beginning, the stubborn misconception has persisted (notably on
the side of industry) that there would be no more than a limited number of principal and large-
scale legal actions. The purpose of these legal actions was thought merely to be to force a
judicial precedent on the issue of who carries responsibility for the pollution legacy. Moreover,
there was speculation about the tradition, ascribed to the Dutch government, to decide on tough
measures and then not carry them out but make compromises and tolerate infringements.
Later years show a rapid rise in the number of summonses. The Dutch adoption of what is
considered to be the American style of taking legal action came as a surpirse to many.
Table 1. Summonses served by the Dutch government
Year Number Amount (in million $)
1983
1984
1985
1986
1987
1988
1989
1990
1991
2
2
8
13
28
29
35
21
14
46,5
47,2
17,2
6,8
12,9
23,3
52,8
142,1
19,7
154 368.5
No exception has been made for public organisations (municipalities, regional authorities,
provinces, ministries) or companies - partly - owned by the government (Dutch Railways, Dutch
State Mines etc). They should on the contrary set an example to industry as a whole. In general
this is the case. The Ministry of Defence for instance has its own soil clean-up programme worth
$ 250 million.
It can be assumed that the increasing number of summmonses as well as the legal
judgements in favour of the government are the cause of the changed attitude among polluting
companies. One must also bear in mind the negative publicity, the high legal bills and the long
period of uncertainty before judgement is finally given. Taking these factors into account,
companies (and government) prefer to settle out of court.
A settlement might mean that the clean-up costs already incurred or to be incurred would
be paid by the government. Instead of or in conjunction with this, companies can investigate
and/or clean up current or abandoned sites at their own expense. There are major advantages for
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 493
companies if they commission the project themselves. For instance, it would be possible to link
the timing of the remedial measures with that of other operations, renewal projects for example.
Moreover, companies would then have direct control over the costs of their own clean-up project.
Industry's change of attitude has tremendously increased voluntary clean-ups, which are
arranged between the company concerned and the local authority (for instance petrol stations).
The exact number of clean-ups is not known, but it can be assumed that almost 1000 projects
were realised by mid-1992. Only part of these were realised with the intervention of the centra!
government (table 2).
Table 2. Settlements with the Dutch government
Year Number Amount (in million $)
1983
1984
1985
1986
1987
1988
1989
1990
1991
_
2
5
6
8
7
11
9
7
_
10,7
1,4
1,0
2,2
4,8
13.6
13,7
3,2
55 50,6
Negotiations are never held on the basis of "striking a bargain". Nor can alleged doubt
about the legal bases of the claim induce the government to deviate from full payment.
Exceptions are made for certain actual conditions. For instance, if more than one polluter is
involved. Furthermore, the ability-to-pay principle is applied. In general, the government is willing
to guarantee the continuity of a company by reducing the sum claimed, as long as the company
is economically and environmentally valid and as long as the legal dispute ends in recognition of
liability.
3 ORGANISATION
The Dutch Minister for the Environment is responsible for recovering costs. He has
enlisted the support of the State Attorney in this task. Legal proceedings to recover costs take
place in three consecutive stages: finding the perpetrator(s), establishing liability and payment.
At the initial stage, each case of soil contamination where a financial contribution in
accordance with the law has been or will be made is subject to fact finding. The facts concerning
the perpetration and the actual legal position will mainly come from the relevant local authority,
while the facts concerning the soil contamination are dealt with by the province. On the basis of
the accumulated facts, together with some additional detective work (for instance in the Trade
Register), the State Attorney will advise on the legal procedure.
In cases where costs can be recovered from the beginning, the initiative rests mostly with
provincial or local authorities. They negotiate with the pollutor or land-owner about surveys and
clean-up operations with full payment of costs for their own account.
The second stage involves establishing liability. This stage directly carries out the advice
of the State Attorney or is a consequence of the fact that no or no complete agreement has been
reached during the negotiations (and thus government money must be spent). The Minister can
request the State Attorney to continue negotiating or to initiate legal proceedings.
The third stage is collecting the money. This stage - if no 100 - percent payment is
involved - follows on from the second stage. There therefore needs to be a court ruling or an
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494 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
acknowledgement of liability. In other words, the liability question must be answered, before
payment can be demanded.
Account is taken of the circumstance that the claims on individual companies and people
are usually large in relation to their business or household. The judge has authority to mitigate the
claim, if awarding full damages would have unacceptable consequences. Moreover, the above-
mentioned ability-to-pay principle applies to settlements.
Not only the costs of the state but also those of the provincial and local authority are
recovered. If the total exists remain below the threshold amount of the local authority, the Minister
is also authorised - and prepared - to recover costs.
4 LIABILITY BASED ON TORT
In contrast to the United States, where strict liability with retroactive effect applies in law,
cost recovery in the Netherlands is based on liability in common law, which is primarily based on
tort.
Any person who commits a tort against another person which can be imputed to him is
obliged to make good the injury suffered by the other person as a consequence. In this case, tort
means: a breach of another's rights (for instance, property) and acting or neglecting to act
contrary to a legal duty (a permit for instance) or not complying with an unwritten duty of care,
without there being justifiable grounds for doing so.
When aswering the question of whether there has been culpable tort, it is particularly
important that the matter is judged according to the expertise and the level of knowledge availa-
ble or should have been available the time about the danger or the hazardous nature of the
substances deposited in the environment. The words "should have been available" mean that
recognition of the danger or the hazardous nature according to objective norms must be
established.
The judicial decisions of the courts and courts of appeal clearly laid down a number of
rules
- encountering substances in the environment closely related to the local use of the land
legally justifies the assumption that the land user is the polluter, unless the latter proves
otherwise;
- for assessing and tackling the contamination, the Soil Clean-up Guidelines of the Ministry
(including the well-known C-values) are the standard criteria;
- bringing hazardous substances into the environment and failing to check their
harmiessness is an act of negligence;
- functionaries within a legal entity who are personally to blame for the contamination are
held liable for the damage in person;
- being in possession of, or acting in compliance with a government licence or permit does
not indemnify one from damage claims;
- moreover, inadequate government supervision does not qualify as a relevant excuse for
contamination.
The Supreme Court of the Netherlands has so far given a ruling on one judicial question,
namely if the polluter should have known at the time that he could also be acting unlawfully
against the government.
The government considered this a superfluous clause and scrapped this clause in the Act
of 1982, but the Supreme Court ruled in 1990 that this was an ambiguous act. The same year,
the government had to introduce a bill in parliament to dispose of the ambiguity. This bill was
evidently not superfluous because the Supreme Court came to the conclusion this year that the
polluter has only needed to know since 1975 that the government could claim damages from him
if he contaminated his industrial site. Without this amendment to the law, 25-per-cent of the clean-
up costs would have been non-recoverable on the basis of this judgement.
In 65 of 154 court cases, one or more judicial rulings have been given.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 495
Table 3. Judicial rulings
1986 1987 1988 1989 1990 1991
2 7 11 25 24 27
5 LIABILITY OF THE OWNER
The owner or user of property or limited rights to the property can be liable for any
environmental contamination connected with it. Not only his behaviour but also his capacity are
determining factors.
5.1 Sometimes the owner is already strictly liable, for example for collapsing buildings and
leaking storage tanks (Civil Code, section 6:17, former section 1405).
5.2 Under common law the owner is responsible for his property, which means the owner is
obliged to take steps as soon as he notices that his property is in a dangerous state.
Admittedly, those steps cannot be enforced by means of an administrative order as in
Germany, but the owner is certainly liable for any damage ensuing as a result of his
negligence.
5.3 Based on the Soil Clean-up Interim Act, section 21.2, the costs of survey and cean-up
may be recovered, if the owner, user or entity with limited rights unlawfully profits from the
clean-up. He profits unlawfully if he couid have had knowledge of the damage to the
environment.
The entity with rights to the property profits if the property acquires a higher re-sale value
after clean-up, a higher practical value or offers higher collateral. The extent of profit
gained can be determined by taking the difference between the value of the site before
and after clean-up. Neither the actual purchase price, nor rent nor interest rates play a
role, only valuation by reasonable parties according to objective criteria, if, for example, a
polluted parcel was bought for $ 300,000 in the past, the value before the clean-up is
assessed at $ 100,000 and the value after clean-up is assessed at $ 500,000, the profit is
not $ 200.000 but $ 400,000. Even if the site had been bought for $ 500,000, the profit
would still be $ 400,000.
5.4 With transactions with contaminated real estate, the owner must take account of a serious
drop in market value as a result of environmental damage. This also applies to transac-
tions as a consequence of expropriation by the government, since the drop in value has
an effect on the compensation awarded.
The lower value is not so much due to fears of health hazards as to fewer possibilities for
using the ground. There are then the above-mentioned obligations of the owner, the
innumerable obligations under public law to perform surveys and undertake protective
measures, as well as an obligation to give a clean-up guarantee at the time of the
transaction.
5.5 Industry and the government have made far-reaching arrangements for current industrial
sites in order to survey and clean up tens of thousands of sites in the next twenty years.
The costs will be borne by the business concerned, usually the owner. Defaulters will be
confronted by an administrative order to clean up the soil.
The arrangements also contain many facilities. Owners who can demonstrate that they are
innocent can request a financial conribution from the government. Companies can deduct
the costs of an approved clean-up plan from tax. They can also obtain government-
guaranteed credit facilities from the banks.
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6 CONCLUSIONS
1 have just outlined policy, organisation and legal possibilities for claims for past
environmental damage in the Netherlands. Results are achieved on the basis of classic common
law rather than on the basis of new tough instruments. The unpaid account from the past is
presented systematically and successfully to the original poliutor or to the present owner.
The success of this range of instruments assumes that - as is the case in the West - the
majority of the businesses will not get into insurmountable financial difficulties as a result. Even
so favourable fiscal and credit arrangements are needed by some of the liable companies.
Thought must be given to small family businesses (including metal and woodworkers, laundries,
petrol stations). Financial and legal regulations are also necessary for vendors and purchasers of
polluted sites.
In my opinion, one should not rush to the conclusion that for this reason the individual
instrument will not be successful in Central and Eastern Europe. During the reconstruction of the
economy in this part of Europe, where collectivisation is making way for individual responsibility,
creative solutions are needed.
There is a strong argument to indemnify new owners completely - for the sake of a free
investment climate - from liabilities arising from existing pollution. It is expected that Western
companies, particularly American, but to an increasing extent also Western European businesses,
will give this top priority in their investment programmes. This was also the major conclusion of
the International Conference on Privatisation, Foreign Direct Investment and Environmental
Liability in Central and Eastern Europe (Warsaw. 19-21 May 1992).
On the other hand, giving an indemnity must at least be based on payment of the full
purchase price without any reduction. In Czechoslovakia and Poland the government has already
decided to put (part of) the proceeds towards the direct clean-up costs of the site and future
clean-up costs (deposited, for instance, in an escrow account or a fund).
A maximum financial contribution to the clean-up as part of the Offset Requirements or
Peer Matching need not cause an insurmountable deterioration of the investment climate. Furt-
hermore Western banks can desire that a certain share of the loan be used to restore the
environmental quality. Tax facilities can then also be made for this share of the loan (for instance
in the case of Environmental Bonds).
It is very important that old or new owners are prepared to undertake clean-up
programmes on their own initiative. This will be a great need for mild tax rates, credit guaranteed
by Western states and possibly a direct contribution from the government. Moroever, ample time
must be allowed for clean-ups to take place in stages. The financial risk can be reduced by
establishing clear clean-up standards and guidelines for enforcement.
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PRIVATIZATION AS AN OPPORTUNITY TO ENHANCE COMPLIANCE.
POLAND'S PERSPECTIVE
DR. STANISLAW WAJDA
Advisor to the Minister of Environment, Natural Resources and Forestry
1 INTRODUCTION
It is a well known fact that Poland, similarly to other post-communist countries of Central
and Eastern Europe (CEE), has inherited a heavily polluting industry and seriously degraded
environment. In addition, Poland has inherited a weak enforcement system and a tradition of non-
compliance of the industry with environmental requirements. In spite of the enactment of a
number of new environmental acts, the basic environmental law still come from the communist
time: the 1980 environmental act, the 1974 water law, the 1982 act on the protection of
agricultural and forest lands. Its is needless to say that the laws are not always tuned to new
political and economic circumstances. There was, however, a very important legislative
development in 1991: it was the enactment of an Act on State Inspectorate for Environmental
Protection which empowered the Inspectorate with broad competencies. From the past
experience we have learned a lesson that without a firm enforcement of environmental
requirements in relation to all economic subjects we will not manage to achieve goals of
sustainable development.
2 ESTABLISHING A NATIONAL ENVIRONMENTAL POLICY
Nearly three years ago Poland initiated fundamental changes in her political and economic
system. Essential elements of this process include on the one hand privatization of state-owned
enterprises, the main source of the environmental degradation, on the other.implementation of the
policy of sustainable development. The concept sustainable development found its expression in
the National Environmental Policy (NEP) which was adopted by the Government in 1990 and
approved by the Parliament in 1991. The main goal of the new policy is "the attainment of a
balance between social, economic, technical and environmental conditions in the process of
development". According to the NEP, privatization processes will be used for the improvement of
the environment degraded by the industry and mandatory environmental audits will be introduced;
the audits will enable to make calculations of costs of the recovery of the environment and they
will be essential for negotiation of the price of a privatized enterprise.
The NEP emphasized that; "One of the basic principles of the new environmental policy
should be the principle of law-abidingness. This under our conditions means the necessity of
reconstruction of the legal system and the system of enforcement in such a way that no
opportunities will exist for circumvention of the law for reasons of 'circumstances outside one's
control, public interest or impossibility'".
3 THE PRIVATIZATION OF STATE-OWNED ENTERPRISES
The privatization of the today's dimension was launched by the 1990 Act on the
Privatization of the State-Owned Enterprises. Strangely enough, the then widely discussed
National Environmental Policy was completely ignored by law makers dealing with privatization.
Therefore the 1990 privatization act is void of any express and direct environmental
considerations. It soon turned out to be one of the essential defects of the privatization law. This
shortcoming of the privatization process has been criticized by the western investor as not
allowing him to make sensible business calculations. This shortcoming was quite early realized by
the Ministry of Environment which offered the Ministry of Privatization appropriate cooperation and
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assistance in introduction of necessary changes in the privatization practices, so as to take into
account interests of the environment. Unfortunately the level of the cooperation is still low and the
pace of progress is too slow, however lastly the situation is changing quickly for better. It is
worthy to note that a growing number of environmental NGO's is getting alerted by the unfriendly
treatment of the environment in the privatization process.
4 PRIVATIZATION BY COMMERCIALISATION AND LIQUIDATION
The privatization in Poland as based on the above mentioned 1990 privatization act and
the 1981 Act on State-owned enterprises, has two main tracts: commercialisation and liquidation.
Related to the latter one is bankruptcy (based on the 1934 decree) which is growing in number
and which is likely to cause a lot of serious environmental problems if not addressed timely. The
privatization through liquidation is the most popular way of privatization. Till the end of March,
1992, the Minister of Privatization had approved altogether 1127 motions for liquidation: 492 were
based on the 1990 act and 635 on the 1981 act. There have been some 40 cases of the
privatization through commercialisation.
4.1 Commercialisation
Commercialisation as regulated by the 1990 act consists of two stages. First a State-
owned enterprise is transformed into a joint stock company or limited liability company of the
State Treasury. Second, its shares are disposed to third party (or parties. The second stage
constitutes the genuine privatization. In accordance with Article 8 of the 1990 privatization act a
commercialized company assumes all rights and duties of the privatized state enterprise.including
those deriving from administrative decisions. This is so called general succession. As a rule, the
liabilities of the company are transferred on a new owner. This general succession covers
liabilities resulting from the past contaminations as well as obligations to comply with binding
environmental requirements. It covers also permits and licenses issued for the enterprise before
its commercialisation. They are automatically transferred on the new owner. In the 1974 water law
there is a provision (Article 29) which provides for the same automaticism:" Legal successors of
an enterprise assume rights and obligations contained in permits".
There is, however, a possibility to negotiate allocation of environmental liabilities between
the investor and the State Treasury. As a matter of facts this occurs when a State Treasury
company is purchased by western investors. For the time being, the Polish investor ignores
consciously or not consciously potential consequences which may arise from the automatic
transfer of environmental liabilities.
A State-owned enterprise, usually small or medium size, can be privatized through
liquidation. This can be accomplished on the basis of the above mentioned 1990 privatization act
or the 1981 act on state-owned enterprises. The term "liquidation" as used in this context is
unclear and confusing. On the one hand, "liquidation" can be understood as a termination of a
State-owned enterprise as a legal person on the other, the term denotes disappearance of the
enterprise as an economic entity. Under the 1990 act, the reason for liquidation is change of
ownership (privatization), while under the 1981 act, the reason for liquidation is its bad economic
situation. Article 37 of the 1990 privatization act provides that a state-owned enterprise may be
converted to private hands in one of the three ways: 1. the liquidated enterprise or integrated
parts of its assets may be sold; 2. the enterprise or integrated parts of its assets can be
contributed to a company; 3. the enterprise or integrated parts of its assets can be let (lease).
As already mentioned, there are no specific provisions in the 1990 act or the 1981 act (as
amended) regulating a question of environmental liabilities for a new owner or the State Treasury.
Therefore the question of liabilities has to be considered on the ground of the 1964 civil code. As
a rule, the alienation of a state-owned enterprise or integrated parts of its assets entails joint and
several liability of the purchaser and the alienator (State Treasury). Generally, the purchaser is
liable to the limit of the price he paid for the enterprise. He is liable for everything that he knew at
the moment of purchase or that he should have known, unless he is able to prove his due
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diligence behaviour. In this context environmental audit can piay an important role as a fulfilment
of the due diligence requirements. Unfortunately, it is virtually, it is virtually not performed in this
path of privatisation.
4.2 Liquidation
in the privatisation through liquidation are almost exclusively involved Polish investors,
mainly management and workers of the liquidated enterprise. They spend usually all their savings
for a purchase or lease of their enterprise and therefore they lack necessary money for pro-
environmental investments. It seems that this category of enterprises will have many problems
with environmental compliance. This question cannot be left unaddressed any longer.
5 INCORPORATION OF ENVIRONMENTAL ISSUES
Although there are no express or direct environmental provisions in the privatization law, it
is possible, basing on a broad interpretation of the 1990 privatization act, to introduce at least
some of them. It presupposes however, that environmental issues are considered as equally
important as fiscal ones. According to Article 5 § 2 of the 1990 act, a motion for transformation of
a State-owned enterprise into a State Treasury company should include economic and financial
assessment. Since environmental liabilities, particulary those concerned with past contamination,
could be very extensive, it seems logic that the assessment should include also environmental
assessment. The latter one could be done on the basis of environmental audit. Therefore it
seems justified to consider the invoked article as a basis of environmental audit. Another
opportunity to introduce environmental audit stems from the wording of Article 20 § 1 of the
privatization act: "Before offering shares to third parties the Minister of Privatization shall order
that an economic and financial study be prepared for the purpose of asset valuation as well as
establishing whether the implementation of organizational, economic or technical changes is
required". Next article of the act (21) constitutes a good ground for requirement of pro-
environmental restructuring: "The Minister of Privatization can make it condition that company
shares are only offered to third parties after the implementation of changes, as referred to in
Article 20 § 1". Unfortunately there are no similar provisions applicable to privatization through
liquidation. It seems that the only way to include environmental considerations to liquidation
(without amendment of the 1990 privatization act) is enactment of a special decree of the Council
of Ministers which is envisioned in Article 25 of the 1981 act.
6 ENVIRONMENTAL AUDITING
As mentioned above, it was the western investor who raised questions concerned
environmental issues in the process of privatization in Poland. Similarly to the US or West
European practices he expected that environmental liabilities would be discussed on the basis of
environmental audit. To meet his expectations, the environmental audit began to be performed.
The audits, commissioned by the Ministry of Privatisation, are now performed also for the purpose
of the so called sectoral privatization (in this plan, enterprises within the same industrial sector
are grouped and processed together for privatization). The main aim of the audits is to identify an
extent of soil and ground water contamination caused by a privatized State-owned enterprise. The
scope of the audits is limited to the area of the enterprise; there are no off-site examinations.
Results of the audits constitute part of privatization contracts and as such are confidential. Neither
the Ministry of Environment nor any local environmental authorities or environmental NGOs are
involved in or have any access to the audits or its results. This situation, as likely to cause public
suspicion, is much criticized and it should be changed as soon as possible.
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7 RESPONSIBILITIES FOR CLEAN-UP
Environmental audit helps to establish costs of cleanup and control technology. Based on
the information disclosed by an audit, the seller and the purchaser can negotiate who will hear
responsibility for these costs (as a matter of fact, the State Treasury cannot give to the investor
unlimited environmental liability). Such questions are solved on an ad hoc basis. As a rule,
adjustments are made in the purchase price to reflect the purchaser's assumption of responsibility
for cleanup. Sometimes the government accepts that a portion of the purchase price should be
reserved in an escrow account for environmental cleanup. The purchaser agrees to commence
environmental cleanup within an agreed upon time and the government agrees to share the costs
and expenses of remediation. In such transactions cleanup standards are establish by referencing
Western European Standards(l).
It seems that from the perspective of the Polish environmental law, the above policy
deserved few words of criticism. First of all, there is no legal vacuum in the field of restoration of
contaminated soil. The 1980 environmental act provides in its Article 13 that the polluted soil
should be restored to a proper state, however, it is not defined what is meant by the "Proper
state". But it is the competence of the local government (wojewoda) to define a level and way of
fulfilment of the restoration obligation (Article 82 of the 1980 act). In this context, it is strange that
the local government is not involved in negotiations with potential investors and his prerogatives
are not respected. A similar situation exists under the 1982 act on the protection of the
agricultural and forest lands (article 29 and article 32). In this case, the competent organ to
decide on cleanup is situated belongs to the local selfgovernment. One could imagine that
disregard for the competencies of the local authorities could cause some problems, mainly if the
authorities have varying perceptions of the cleanup. This disregard for the local authorities sends
also a bad message to the local population. The new owner should care of his good-neighbour
image from the very beginning. There are no doubts, however, that cleanup standards for Poland
should be worked out and adopted soon.
8 MANDATORY AUDITING IN THE PRIVATIZATION PROCESS
The Ministry of Environment, almost from the very beginning of the privatization in Poland,
voiced the opinion that environmental audit should be a key element of this process. The Ministry
believes that within the range of actual needs it should be obligatory both for the commercial and
liquidation privatization. In order to overcome shortages of the privatization law, the Ministry of
Environment initiated last year a vigorous collaboration with the Ministry of Privatization.
Unfortunately, such developments as the elections to the Parliament, change of the Government
suspended the cooperation which was resumed again in April this year. In May a joint working
group was set up and a formal agreement on cooperation between the two ministries was signed.
The main task of the group is to introduce environmental audit into the privatization process as a
mandatory requirement, work out rules for allocation of environmental liabilities between the new
owner and the State Treasury and establish unit for solution of pending environmental problems
emerging in the privatization process. The unit will be composed of some 10 people., highly
skilled professionals (audit managers, permit managers, environmental lawyers). The unit will be
involved in negotiating of individual privatization contracts concerned with allocation of liabilities
for past contaminations and pro-ecological restructuring, it will closely collaborate with the Ministry
of Environment, mainly State Inspectorate for Environmental Protection, and local environmental
authorities.
9 ENFORCING ENVIRONMENTAL REQUIREMENTS
The State Inspectorate for Environmental Protection will play a vital role in compliance
enforcement. The Inspectorate outlined its enforcement program at the Warsaw Conference on
Privatisation, Foreign Direct Investment and Liability in Central and Eastern Europe (19-21 May,
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1992). It was stated there that the special attention of the agency would be paid to the heaviest
polluters which are both on the national and local lists (respectively 80 and 800 enterprises).
However, the State Inspectorate, being aware of the backwardness of some branches of the
industry will take a balanced approach in specifying environmental requirements for privatized
companies. In many cases environmental requirements will be a matter of negotiations with
potential investors and the agreed upon environmental commitments will be monitored and
enforced by the State Inspectorate. Before a consent for a particular stage of ownership
transformation is given, detailed environmental requirements will be put forward. For instance: 1.
the plants operating on the basis of outdated technology, with contaminated sites endangering
human health, will be required to undertake a cleanup action within a given time. It will be
possible to negotiate with an enterprise a sharing of costs of remediation of less dangerous
contamination if the enterprise modernize its technology to the required level; 2. the businesses
overexploiting natural resources will be required to cut their production to the level guarantying a
reasonable exploitation. As in the above case, it will be possible to negotiate deadlines of
remediation actions; 3. the plants which are legally qualified for closure {lack of necessary permits
or licenses) will be given a chance to meet the required standards. The deadlines for them will be
determined as technically feasible and comparable to similar ones in the EEC; 4. the plants
whose economic hardship is caused, among others, by the imposed penalty for violation of
environmental requirements will be eligible for abatement or inclusion of the penalty to the cost of
pollution control investment which will eliminate the reason for the penalty.
10 ENFORCEABILITY
One of the fundamental principles of the successful compliance policy is to ensure that the
environmental requirements themselves are enforceable. It is a well known fact that too strict
requirements cause delays and delays undermine the credibility of an enforcement program.
Very stringent requirements were introduced by the 1990 Regulation on the protection of
air against pollution. The regulation provides for ambient quality standards which are to be met by
1998 and which are stricter than most of those adopted by the OECD countries. The regulation is
addressed to conventional power plants. For the purpose of the regulation the plants are
categorized into 3 groups: new plants (C), existing-modernized plants (B) and existing non-
modernized plants (A). However, the intention of the 1990 regulation is to apply the strictest
standards of emission of SO2, NOx and particles is to new boilers only. Others are expected to
meet lower standards. The government is aware that in many locations they cannot be met within
the next decade or so. The question is what policy is adopted by the government to ensure that
the regulation is complied with?
Two key issues have to emphasized in this context. First, a legal basis is needed for
regional environmental authorities (wojewoda) to issue realistically enforceable permits for plants
operating in non-attainment regions. Second, the permits should include compliance schedules
indicating enforceable emission reduction targets of, say 5%-10%, for one or two years intervals,
so that regional authorities could monitor improvements and take immediate actions in case of
failure. It would be a mistake to merely set reduction targets for distant dates and wait until the
polluter comply without a possibility of an administrative action if no progress is demonstrated. On
the other hand, there are no technical possibilities for gradual improvements in many plants; a
typical abatement investment results in a substantial emission reduction, but only after several
years of a "non-improvement" phase. Thus, in order to make sure that gradual progress does
occur, as well as to offer financial incentives to those environmental champions who reduce their
emissions more than required, the government see emissions trading programs as a necessary
element of any viable regional or sectoral restructuring process. A special provision on
marketable permits is included in the draft environmental protection act. In the energy sector
marketable permits should help large power plants to meet their permit requirements by abating
low-stack, dispersed emission sources rather than their ones. One pilot project in Upper Silesia
region is already under way.
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11 CONCLUSIONS
For many years charges for economic use of the environment (intake of water, discharge
of used water, emissions to air, disposal of waste, cutting trees and bushes) were very low and
did not constitute an important factor in economic calculations. This situation changed radically
last year when a new Regulation on charges for the economic use of the environment was
adopted. Certain charges for the most menacing pollutants increased so radically that they
endangered economic existence of some industrial sectors (for instance pulp and paper industry),
not to say their ability to invest in pollution control equipment. Therefore the reasonableness of
the regulation and the industrial policy of the Ministry of Environment became a topic of
discussion in Parliament (2). A representative of the Ministry confirmed that the charges imposed
by the regulation had not been preceded with cost/benefit analysis. He blamed partly the industry
for the situation, because of its weak response and too general comments on the draft regulation.
Nevertheless, he added that the Ministry of Environment is ready to amend the regulation so as
to make it more feasible for the industry.
The experience with the regulation seems to be a very important lesson both for the
industry and the Ministry of Environment, The industry has learned that environmental regulations
could decide about their very existence and therefore they should actively participate in legislative
process, on the other hand, the Ministry has learned that too tough regulations could bring quite a
different environmental result than anticipated.
REFERENCES
1. R. Greenspan Bell; Industrial Privatization and the Environment in Poland, ELR 2-92 p.
10095
2. O oplatach ekologicznych, Gazeta Przemystowa 12.04.92
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THE POLISH PROHIBITION OF WASTE IMPORT
WOJCIECH RADECKI
Polish Academy of Sciences, Institute of Law
1 INTRODUCTORY REMARKS
When in the second half of the 1970s a draft of the Polish Environmental Act was
prepared, the significance of waste problem was not fully recognized. That was probably a cause
that the legislative norms dealing with waste included into the Environmental Protection and
Management Act passed on 31 January 1980 were rather curt. They indicated only some
protective directions, signaled main obligations being a burden on producers of waste, obligated
local bodies to create conditions being friendly to protection against waste, introduced fees for
gathering waste according to the law and fines for gathering waste contrary to the law as well as
determinated the responsibility for petty offences consisting in violation of obligations connected
with ensuring requirements of environmental protection against waste or economically useless
raw materials, products or used package.
The provisions of the Environmental Protection Act have been extended in the executive
order pased by the Council of Ministers on 30 September 1980 on environmental protection
against waste and other pollution as well as on maintaining cleaness and order in towns and
villages. Furthemore they have been extended too in the executive orders on fees and fines in
the environmental protection.
In the end of the 1980s Poland grew an object of interest of many firms from West Europe
and the United States as a place where waste might be put down. After disclosure of some
transactions which had as a result many barrels of old paints, varnish and other chemicals,
leather waste, etc. brought into the Polish territory, the legislative counteraction was iniciated in
order to stop such activities. On 27 April 1989 the amendment to the Environmental Protection
Law was passed (it came into force on 1 July 1989). As regards waste import two new norms
have been introduced:
- into section 8 of chapter II "Environmental protection against waste and other pollution"
new Article 53a has been added: Article 53a. Import of waste from abroad is prohibited
into chapter III "Penal provisions and fines for violation of protective requirements" new
Article 108a has been added: Article 108a. 1. Who imports waste from abroad to Poland,
he is a subject to penalty of imprisonment up to 3 years and fine. 2. In a case of minor
weight the perpetrator is a subject to penalty of imprisonment up to one year, restriction of
liberty or fine.
In such a way the Polish legislator has adopted the most restrictive position, compatibile
besides with the Basel Convention signed on 22 March 1989 on the Control of Transboundary
Movement of Hazardous Wastes and their Disposal, having introduced an absolute prohibition of
importing any waste. This prohibition cannot be repealed and its violation has beeb always
recognizing as a crime.
There are some doubts and difficulties as well as some unfavourable effects from the point
of view of environmental protection, which have been caused by the introducing such an absolute
prohibition.
2 DOCTRINAL AND PRACTICAL INTERPRETATION OF, ARTICLES 53A AND 108A OF
THE ENVIRONMENTAL PROTECTION ACT
The absolute prohibition of waste import treats all matters which according to the Polish
law are recognized as wastes. The legal definition of waste is written in Article 3 point of the
Environmental Protection Act which as "waste" requires to understand used objects and solid
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substances as well as liquid substances not recognized as sewage, originating in connection with
human existence or economic activities, useless in place or time in which they had originated and
ardous to the environment.
Regarding to this definition it ought to be underlined that the Environmental Protection Act
does not use a term "hazardous wastes". The Polish law knows classification of wastes
distinguishing three categories of special wastes:
- waste menacing contamination (it means waste containing radioactive substances),
- waste menacing infection (it means waste containing pathogenic microorganisms),
- waste specially harmful to the environment (it means waste containing substances
recognized by the Minister for Health and Social Care as poisons or harmful means).
Attachment of waste to any above mentioned category of special waste results essential
consequences according to the internal law. For example the way of disposal and neutralization
of special waste have to be agreed with the regional governor. Nevertheless this question has no
significance for Articles 53a and 108a of the Environmental Protection Law. The prohibition of
waste import encompasses all waste and not only special ones belonging to categories involved.
Therefore the only condition required by prohibition of waste import is that an object or a
substance is waste in general according to Article 3 point 5 of the Environmental Protection Act.,
The last provisions gives a substantial definition of waste based on two criteria:
uselessness and ardousness to the environment. The term "uselessness" has been related to the
time or place when or where waste had been originated. The Polish legislator has used an
alternative. It means that used object or substance cannot be recognized as waste only in such a
case if it is useful simultaneuosly in place and time where and when waste had been produced.
As a consequence an object or a substance being useless in a country where it had been
produced but useful in Poland ought to be recognized as waste in the meaning of the Polish law.
The second criterion is of normative character. Article 3 point 6 of the Environmental
Protection Act determines that "ardousness to the environment" is to be understood as physical
phenomena or staes impending life or making nuisance, especially noise, vibration, air pollution or
pollution by waste. Such a definition requires to suppose every useless substance imported to
Poland in order to store it - as waste because the necessity of storage decides about its
ardousness. As regards objects or substances imported in order to economic use or liqidation it
must be said that their ardousness to the environment results of air pollution (for example after
combustion) or producing derivative wastes.
The State Inspectorate for Environmental Protection accepts the following interpretation:
As waste is to be recognized every object (substance) useless abroad that should be in Poland
landfilled or liquidated (in the last case because of air pollution). On the other hand some kinds of
objects (substances) useless abroad may be imported to be used in Poland if their using does not
result air pollution, sewage or derivative wastes. When it will be stated that such an object (a
substance) useful to economic use requires for example previous cleaning away of tramp
elements (a for example mettalic scrap polluted by oil), it means it must be treated as waste. The
State Inspectorate for Environmental Protection (subordinated to the Minister for Environmental
Protection, Natural Resources and Forestry) coordinates using of these principles. On 29 August
1990 an agreement between the Chief Inspector For Environmental Protection, the Chief Sanitary
Inspector, the Chief of Custom Office and the Chief of Boundary Guard was signed. The
agreement deals with protection of state territory against waste import. Its essence consists in
such a procedure that if some doubts regarding to the character of goods disclosed on border
have been occured. the Customs Service or the Boundary Guard are obliged to inform the State
Inspectorate for Environmental Protection. If necessary, the State Inspectorate for Environmental
Protection together with the State Sanitary Inspectorate make suitable activities in order to clear
the case. However it was not possible to organize on borders special laboratories because of
high costs.
In October 1990 all boundary passages were provided with portable dosimeters serving to
the control of goods in direction of their posible contents of radioactive substances.
The other fields of activity of the State Inspectorate for Environmental Protection are
controls over economis subjects and giving opinions about likely import of goods which might be
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admitted as waste. The State Inspectorate for Environmental Protection cooperates also with
environmental services from other countries.
Above mentioned solutions, being worked out in practice, have been confirmed in
legislation. Thus the Act passed on 12 October 1990 on the Boundary Guard included into tasks
of this guard prevention of transportation accros the border wastes and harmful chemicals as well
as radioactive substances. This Act empowers officers of the Boundary Guard to stop and to
move back to the sender harmful radioactive substances, chemicals and biological means from
the state border.
The Act passed on 20 July 1991 on the State Inspectorate for Environmental Protection
included into its tasks changing informations with the Customs Offices and the Boundary Guard
about import of goods prohibited or restricted in consideration of environmental protection as well
as cooperation with the Boundary Guard in border zones.
The outlined here activities give some effects. According to informations presented in the
report by the Chief Inspector for Environmental Protection in the period from July 1989 to January
1991 Poland was offered for gathering or liquidating at least 17,622,000 tons of useless wastes.
In the most cases it was be possible to prevent these transactions.
It looks differently with a question as regards import of useful wastes. In the same period
from July 1989 to January 1991 projects for processing wastes provided together 767,000 tons of
waste. From this amount 61,000 tons of wastes were imported and processed, among them
24,000 tons of zinciferous wastes and 22,000 tons of waste paper.
Very rigorous approach of the Polish legislator causes some difficulties in practice. An
example may be import of waste paper which according to the opinion of the State Inspectorate
for Environmental Protection in some cases may be advisable from the point of view of
environmental protection in Poland.
It is so because some kinds of waste paper are not generated in Poland, therefore the
only one alternative would be extension of cutting trees in forests. The State Inspectorate for
Environmental Protection gives sometimes permissions on import of waste paper. It is however
not to deny that conformity of such permissions with the law is very doubtful because waste
paper is legally recognized as waste. More over, opponents to such sollution pointed out that
import of waste paper in some manner relieved Polish administrative bodies from a duty to
organize in a proper way buying waste paper in our country. Actually it is so because the
question of buying waste paper has not found a proper solution and looks very week.
There was another example famous in 1991 import of waste sulfite liquor from Norway. In
the Polish provisions dealing with fees for waste there is a position "waste sulfite liquor". Fees for
such wastes are ones of the biggest therefore waste sulfite liquor was recognized in an implied
way as a harmful waste. Meanwhile the Minister for Environmental Protection, Natural Resources
and Forestry has written to the Chief of Customs Office that waste sulfite liquor was not waste
because it had been produced in the Polish works but in insufficient amount, therefore for many
years it had been supplemented by import from Czechoslovakia. Thus, according to the minister's
opinion, when waste sulfite liquor is used completely, in 100 percent, it cannot be treated as
waste but rather as raw material indispensable for production. Concomitently the minister points
out that waste sulfite liquor is an toxic substance and if it cannot be used as a whole, it will
acquire characteristics of waste.
On the other hand some experts say that the copper works Glogow and Legnica using
waste sulfite liquor employ out-dated technology. As a result all waste sulfite liquor (and also
sulphur and other harmful substances) gives into air. If these works had been modernized, the
import of waste sulfite liquor would be unnecessary.
The discussion seems to be rather hopeless. Waste used in economy does not stop to be
a waste. On the other hand if using waste sulfite liquor is necessary in Polish conditions of
technology, it must be imported, but legal provisions ought to be formulated in a different way.
The Polish public opinion is very sensitive to waste import from abroad. According to the
famous report of the Greenpeace (by Andreas Bernstorff and Jim Puckett) from October 1990, at
least 46,000 tons of wastes were imported into Poland, t would like to remember that every case
of waste import has to be treated as a crime. There are no informations about criminal proceedins
which would be ended with indictment. In newspaper we can find some figures about several
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proceeding on Article 108a of the Environmental Protection Act in course, but there are no data
available about courts decisions in such cases.
Sensivity of the public opinion to waste import gets sometimes grotesque forms. Two
years ago there was a famous case of 500 barrels of toxic wastes brought from abroad. In
summer they had to be destroyed on a military testing ground. One night a group about 200
persons, inhabitants from neighbouring villages, animated by the chief official of a group of
villages, made an irruption into that testing ground and destroyed facilities serving to
neutralization of dangerous wastes. As a result neutralization was impossible. The Minister for
Environmental Protection, Natural Resources and Forestry in published in newspaper opinion has
said it had been a result of obscurantism and ignorance. Probably it was a right opinion but an
action of people did not arise in emptiness. The people in Poland have no indispensable
knowledge about wastes. Besides warming up atmosphere on the waste import has brought to
such flagrancy.
3 LEGISLATIVE PROJECTS
Poland wants to ratify the Basel Convention on the Control of Transboundary Movement of
Hazardous Wastes and their Disposal; this question is decided and the ratification should be done
in the nearest time. New provisions about waste import must be conformed to the convention.
In March 1992 a new version of the Waste Act Draft was prepared by the Ministry for
Environmental Protection, Natural Resources and Forestry. The designers give up a substantial
definition of waste and define it as all matters or movable goods originated as a result of human
existence or economic activity which are disposed or whose disposal is intended or should be
made.
An essential supplement to this definition will be separation of dangerous waste, it means
such wastes which because of their source, chemical or biological composition may be imminent
over human life or health or natural environment. A register of dangerous wastes should be
defined by an executive order passed by the Minister for Environmental Protection, Natural
Resources and Forestry in agreement with the Ministers for Health and Social Care, for Industry
and Trade, for Agriculture and Food Economy.
Chapter 4 of the draft is entitled "International Circulation of Waste". It is consisted with six
articles, which should be named in full contents:
Article 22. An international circulation of waste is to be understood as waste import from
abroad into the Polish territory, transport of wastes originated from abroad through the Polish
territory as well as waste export abroad from trie Polish territory.
Article 23. International circulation of dangerous waste is prohibited in realation with states
which are not parties of Convention on the Control of Transboundary Movement of Hazardous
Wastes and their Disposal signed in Basel on 22 March 1989.
Article 24.
1. Import of dangerous wastes from abroad in prohibited.
2. Import of other wastes is admissible only with consent passed by the Chief Inspector for
Environmental Protection.
3. The consent defined in pan 2 may be passed if:
1) waste is destinated for economic use,
2) there are not in the country available wastes suitable for equivalent economic use or
there are ones in insufficient amount,
3) economic use of imported waste will not provoke menace for natural environment and
especially will not contribute to enlargement waste gathered on earth surface.
4. The Chief Inspector for Environmental Protection may condition giving consent to:
1) presentation by the importer of waste an opinion of appointed expert about compliance
vw'tfi conditions defined in part 3,
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2) securing in time defined in consent return to the exporter such a part of imported waste
which in economic use has not been completely processed.
Article 25.
1. Export of dangerous waste is admissible exclusively with consent passed by the Chief
Inspector for Environmental Protection.
2. The consent defined in part 1 may be given under condition that it would be obtained
consents of proper agencies from importing state and transiting states.
3. The provisions of parts 1 and 2 are respectively used in a case of transit dangerous waste
through the Polish territory.
Article 26.
The Minister for Environmental Protection, Natural Resources and Forestry may by an executive
order define that provisions of Article 23 should be respectively used to circulation with other
waste.
Article 27.
The Minister for Environmental Protection, Natural Resources and Forestry will define pattern of
consents used in internal and international circulation of waste.
In connection with such provisions there are projected - different than to day penal
provisions. They will be defined as follows:
Article 29.
Who imports dangerous wastes from abroad, he is a subject to penalty of imprisonment up to 5
years.
Article 30.
1. Who without a demanded permission imports from abroad wastes other than dangerous or
exports them abroad, he is a subject to penalty of imprisonment up to 3 years.
2. In the case of minor weight the perpetrator is a subject to penalty of imprisonment up to
one year, restriction of liberty or a fine.
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SOME INFORMATION ON ENFORCEMENT CONCERNING SOLID AND HAZARDOUS
WASTES DISPOSAL IN CZECHOSLOVAKIA
KAREL VELEK
Czechoslovak Society for Environment
The theme of discussion includes Solid and Hazardous Wastes and the actual situation in
compliance with and enforcement of current laws and regulations. To understand this problem
better, however, it would be useful to compare it with other environmental media, especially with
the problem of water and air protection.
CSFR with its 15 million inhabitants comprises of two republics and has been governed by
100 district councils representing the state government institutions. Even in this single fact there
is something new: only four years ago there existed the two-level system of management under
which the concept and special programs were being operated by relatively well equipped regional
government institutions of 10 regions (7 of them belonging to the Czech and 3 to the Slovak
republic). The Public Health Service, for example, has maintained its two-level system of
management of regional laboratories including the possibility of appealing against the decision of
a district public health officer to the regional public health officer. The district councils have
established their own environmental departments analogous to those in larger cities. Even the
small communities have their officials commissioned with executing the environmental policy.
Their number and qualification considerably differs between particular districts. In former seats of
regional authorities there were sometimes some 20 university or high school graduated
professionals on water management (it was the strongest group), air pollution, preservation of
natural resources and forests and on wastes disposal management.
Due to the geographical reasons {our inland situation determines that with the exception of
Danube practically all the rivers spring in CSFR and flow out of the country ) as well as due to
the historical reasons considerable adjustments of the river flows and to some extend also certain
wastewater treatment covering wastewaters from towns and industry were necessary as early as
at the beginning of this century. The Hydrological Institute of T. G. Masaryk employing more than
a hundred professionals existed before the Second World War already. Together with the work of
the Hydrometeorological Institute and on the large administrative areas operating government
authorities this structure provided for a relatively highly qualified system of management. In the
50ies, the laws and regulations on water preservation were passed and the headquarters and
regional inspectorates for state watermanagement inspection were established. Also established
were the headquarters for water basins management. In that time, this concept was a very
progressive one. This type of organization was known even in the U.S.A., for example, where it
was being made use of by several interstate watermanagement agencies responsible for
managing river basins in case rivers were forming borders between the U. S. states and it was
expected to be more efficient to manage particular river basins as a whole.
Due to the reckless development of heavy industry pushed ahead in accordance with a
doubtful idea that Czechoslovakia should have become a "steel heart of the socialist camp" and
consequently due to a considerable neglect and transfer of water preservation among minor,
second-class problems an overall deterioration of water quality in rivers and basins occurred and
in a number of locations even serious damage and threat to the underground waters appeared
(Bratislava, Ostrava). Even among the hydrologists the situation prevailed that constructors of
dams were clearly being given preference. These often undervalued and even suppressed the
endeavours of their collegues-hydrologists aiming at water treatment etc. This may apply, for
example, to the first objections against Gabcikovo-Nagymaros waterworks at the beginning of
60ies.
I am mentioning this history in details on purpose because it demonstrates the fact that
even under the relatively qualified state authorities, with the existing strict watertreatment
standards and subject to the objections of non-governmentat organizations (NGO), that is, the
fishermen and environmental activists (however, they were not allowed to protest too loudly)
practically all our rivers have become polluted up to the degree III and IV. Industries as well as
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the socialist agricultural enterprises easily got the exception status when they were not complying
with the requirements to build wastewater treatment plants. Those were, anyway, financed both
mostly and insuficiently from state budget.
Probably even more undesirable situation applied to the air pollution. In this area, not
earlier than in the 70ies it was decided that the Ministry of Forest and Water Management (that
preferred to operate rather as a production department) should have been responsible also for air
pollution monitoring and control).
Denial of the basic principles of heat and electricity using in industry and to a certain
extent even in agriculture and towns (e.g. poorly isolated prefabricated blocks of flats and
infrastructures) resulted in the fact that together with the former GDR we find ourselves not only
at the leading position in per capita energy consumption but also among the countries suffering
the worst air pollution. At the same time, the concentration of energy production based on burning
coal containing sulfur in the area of Podkru^nohcW in Northern Bohemia contributed considerably
to a critical state of pollution in these particular areas. As even in big cities there is a high number
of places heated by coal containing 2-3% of sulfur and only in 1993 the cars belonging to firms
and not having catalyzers will not be allowed to the centres of Praha and Karlovy Vary, air
pollution has been regarded to be our most serious environmental problem.
In 1971 the first attempts were made to prepare The Law on wastes under the condition
that the Ministry of Forest and Waster Management would have been equipped appropriately for
the control, inspection and management of wastes. The original draft of this law was returned
back to the authors in a way that the top ministerial officials of that time did not dare to try to
push it ahead any more. Officially it was due to formal reasons but most probably it was refused
because the reasoned statement in fact openly put down requirements for large investments into
the higher-quality sanitary landfills, incinerators, etc. Only more than ten years later (when all the
Western European countries had updated their laws on wastes once or twice already) another
round of negotiations started concerning the possibility of passing the law. Anyway, the suggested
idea was rather simplifying the problem reducing it first of all to the possibility of obtaining
significant source of raw materials. The law was even intended to concern just the secondary raw
materials and thus it was the Ministry of Industries that was commissioned to prepare its draft.
In that time the efforts of NGO played a considerable role which was a predecessor of
currently existing Czechoslovak Society for Environment, whose Working Group for Wastes
elaborated and later on, during the two national conferences, also approved the basic principles
for the Waste Disposal Act. This draft including the provisions on prevention, reuse and disposal
of wastes as well as on some principles concerning state government authorities was accepted to
a considerable extent. But the complex solution came not before the drafts were prepared after
the 1989 revolution having been submitted by the Ministry of Environment and Federal Committee
for Environment and supported by the Slovak Commission for Environment that was established
later on. It is necessary to mention within this introductory part that in the period of 1990-92 the
environmental responsibilities in Czechoslovakia have been devided among the Federal
Committee for Environment (which is responsible - besides the responsibility for nuclear power
stations - for various national programs and for the whole agenda of international relations and
cooperation), the Czech Ministry of Environment and the Slovak Commission for Environment, the
latter two being the executive authorities. The Czech Department governs, with the help of its 12
territorial divisions (regional offices) 70 district councils, e.g their environmental departments.
To show how compliance and enforcement should be realized I am mentioning The
Principles of Current legislation. The Act No. 238 of 22th May 1991 (1) on Wastes includes
definition of basic terms. It includes the principles similar to those of EC and to a considerable
extent even to those valid in Austria and Germany (definition of wastes, hazardous wastes,
waste-producer, or waste disposal).
The Basic Provision maintains that both the legal and natural persons are obliged to
prevent waste generation and create conditions for its reuse and processing. Legal and natural
persons are obliged to carry out these activities solely within the facilities that have been
designed for this purpose.
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Any import of waste to be disposed of on the territory of the Czech and Slovak Federative
Republic is prohibited. The ban does not apply provided the following conditions are fulfilled at the
same time:
- The waste import is based on a contract on providing the Czechoslovak partner with a
verified and already realized disposal technology meeting the world scientific and technical
standards.
- All the imported waste will be disposed of while simultaneously the total amount or the
degree of harmfulness of similar wastes produced in our country will be reduced.
- Import, transport and storage of such wastes are allowed only if approved by the Czech
Ministry of Environment or analogous authority in the Slovak Republic. The above
mentioned authorities have established special commissions for considering such imports.
Similarly, there is a ban on exporting hazardous wastes without a written consent of both
importing and transit countries.
The duties of legal and natural persons related to waste management have been set by
the law on the level of republics (2) that defines the role of state administration in waste
management and has been the main tool for compliance and enforcement.
The highest authority within the state administration responsible for environmental issues
is the Ministry of Environment of the Czech Republic that reserves the right of final supervision
as for the elaboration of the waste disposal programs on the republic level and the right to decide
about the import, export or transit of wastes.
The Czech (Slovak in the Slovak Republic) Environmental Inspection (3) has been
monitoring compliance with the lega! regulations concerning wastes management both within
other bodies of state administration and legal and natural persons involved in waste management
activities. The inspection can impose penalties in accordance with the Act on Wastes that may
range between 10 000 and 300 000 crowns (that is, 100 times a 1991 average salary) in case the
waste generator:
- does not elaborate a consistent waste management scheme
- fails to secure a source-sorted waste collection
- does not ensure waste utilization or disposal of the wastes
- does not keep records on wastes in accordance with a special code of conduct (4)
- does not label properly the products or their covers from the point of view of their recycling
or elimination.
The penalty from 20 000 up to 500 000 crowns can be charged in case the generator:
- does not allow access of checking authorities into the processing (storing) facilities or does
not submit the necessary waste management documentation or even does not provide
true and full information
- performs waste collection, purchase, processing or elimination without being licenced for
that or violates the provisions of the licence, acts without having the approved rules of
conduct or handles the wastes outside the approved facilities.
The penalty from 100 000 up to 10 million crowns can be charged when the most serious
vioiations of law occur, especially in these cases:
- the regulations on waste import and export has been violated
- the hazardous wastes are not collected and stored separately or are not manipulated in
accordance with the special regulations of the Public Health Office concerning protection
of public health
- the waste generator does not fulfill the obligation to notify and report to the authorities and
does not keep records on liquidation of hazardous wastes
- hazardous waste is being transported without permission or the transporter violates the
permission
- the waste generator does not respect the order of state authorities charging him/her with
the duty to eliminate, in exceptionally urging cases and in the interest of the public, the
wastes in his/her own facility capable of doing so.
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The Inspection, at the same time, sets terms and conditions for bringing the violator to
compliance. The Inspections offer a qualified help to the local (district) authorities.
The inspection is managed from the Headquarters and has 8 regional inspectorates in the
Czech Republic. Similarly, an analogous Headquarters of regional inspectorates is being
established in the Slovak Republic. In the Czech Republic, the Wastes Division employs 49
persons including administration personnel.
Inspection is thus the main authority responsible for enforcement. It came into being in
1991 when it was officially established. In the mean time it has still been gathering knowledge
being derived especially from the many years of experience of the Division for Water Protection
and the Division for Air Protection.
The main state administration authorities responsible for compliance are the district
councils.
The districts in Czechoslovakia have an average 150 000 inhabitants. According to the
Federal Act on Wastes and legislation of the republics on the state administration the District
Council
a) approves waste management programs according to the Decree No. 401/91 (5)
b) grants approval to
- facilities engaged in wastes elimination
- hazardous wastes disposal
- issuing the Operating Instructions for waste processing
- business in waste handling
In case of not meeting the conditions or violating the regulations the District Council may
withdraw its approval.
c) makes statements on
- establishing waste elimination facilities
- waste management plants construction and building of other waste management related
facilities already in the stage of the building scheme or its change (e.g. the first step of
project documentation)
- changes in waste management related technological processes
d) controls compliance with the decisions aimed at suppressing the law-violating activities
e) is authorized to use enforcement measures as well as to set terms for bringing the
violator to compliance, it is also authorized to stop the activities contributing to
waste generation if there was a danger of a serious environmental damage. The District
Council is also authorized to charge penalties thus being authorized to practise
enforcement. The district councils represent at the same time a sort of concept-making
bodies as they are commissioned to work out waste management programs on the district
level based on the programs of producers and communities.
At this point it is necessary to mention that the claims determined by the given duties (and
it is far not the full account of them) highly exceed the possibilities of managing them given the
existing number and qualification of the district councils' personnel.
Extremely important from the point of view of compliance is elaboration of the waste
management programs of producers who may be legal and natural persons conducting waste
generating activities as well as communities on the territory of which the municipal waste is being
generated. According to the Decree of the Czech National Council No. 401/91 of 16th August
1991 (5) each producer generating more than 100 tons of wastes a year or more than 50
kilograms of hazardous wastes is obliged to elaborate, until 31st August 1992, a program for the
period of 1992-97. According to the above mentioned Decree and in compliance with the Federal
Act on Wastes and the Republic Act on State Administration, this document should be approved
by the district council, tn accordance with the general rules of conduct this should be as any other
application settled within 30 days. As it is clear from the following text, this task is most probably
not viable within the given term and strictly for all the waste generators of whom may be even
several thousands. That is why the exception is possible and the authorities may not necessarily
be obliged to comply with the given term. Such a situation is mentioned also in the Case Study 2
in Principles of Environmental enforcement. It concerns the situation when the Dutch regional
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authorities were not able to ensure, due to the lack of qualified personnel, that all the wrecker
yards detected would be inspected properly and in time and thus they had to accommodate the
original plan while hiring more personnel for meeting their goals.
The purpose of the legislative institutions is to ensure through the programs elaboration
the basic identification data on the generator or community
- analytical data concerning wastes quantity and quality including the data on their
generation
- elaboration of the proposals for reducing, utilization and elimination of wastes
- bringing under control all the relevant documentation related to the executive authorities.
The main identification data include:
for the generators: Characteristics of the the enterprise and its establishments
(subsidiaries) which is far from being easy to gather, for example, in case of the state railways,
the networks of bus transportation, the distributors of motor fuels, etc. Characteristics of the
production processes including determination of basic problems of waste management.
for communities: Characteristics of the community, its representatives and responsible
persons, basic information on the community, data on the quantity and structure of wastes
generated, information on dump sites, the list of legal and natural persons engaged in waste
disposal within the community, information on preserved, green belts and other environmental
interests.
The main analytical data include:
for the generators: the review of production sites where the wastes are being generated,
may be utilized or eliminated. The wastes generated have to be, and that is very much
demanding, sorted according to the Catalogue and categorization of wastes (6) which is
practically identical as for the sorting and codes of wastes with the categorization used in
Germany - e.g. the LAGA Catalogue - or with the catalogue used in Austria. In an enterprise
where several tens of waste types are being generated and a proper evidence including weighting
of the wastes has not yet been executed it is rather a difficult issue. Determination of some waste
types is subject to the interpretation - that means the responsible personnel must decide whether
some waste will be regarded as hazardous (the records about this type of waste will have to be
kept if more than 50 kilograms of it a year are being generated) or just as others (in this case
recordkeeping is obligatory when more than 100 tons of such a waste is being generated). As
some confusions still exist, new amendments to categorization including instructions on
interpretation are being worked out currently. The Terminological Norm (7) is going to be an
important aid. It will present definitions of the most frequent terms including their English,
German, Russian and French equivalents. This norm should be elaborated during this year if the
plan is met.
Contemporary experience suggests that responsible determination of quantity (in case of
wastes and sludge it is necessary to know the contents of water) will be a difficult task for many
enterprises and even more demanding will be the control of correctness of these data. During the
single detailed statistical investigation in 1987 (the wastes having been sorted into approximately
400 groups according to their composition) various misunderstandings, mistakes and even
concealments of some types of wastes occurred. These occurred despite the then Federal
Statistical Bureau and State Planning Commission had issued a very detailed and voluminous
instruction at that occasion (cca. 60-page guidelines).
for communities, the data and conditions concerning collecting communal wastes are
given.
Survey of wastes concerns the originating, utilized and temporary and finally deposited
wastes sorted into the groups of hazardous, special (e.g. important from the point of view of
national economy) and others. It also concerns some special points on handling these wastes,
security conditions and fire protection. The survey further concerns the data on non-waste
generating technologies and recycling in production and description of facilities for elimination
of wastes run by the producers (dump sites, incinerators, waste sorting and processing facilities
including the technical parameters and quantities of processed wastes of their own or of other
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subjects). The survey and characteristics of not already used dump sites is given on this place,
too, mentioning the quantities and characteristics of deposited wastes and the state of
reclamation or rescue of these old dump sites. All this should provide the first systematic review
of this type of contaminated sites. Also mentioned are the costs of processing and elimination of
wastes as well as the information on self-monitoring reports of the enterprises and on how these
data are being submitted to the competent state authorities in accordance with the government
Decree on Waste Reporting (4).
The designing part represents the purpose of the program itself and includes the
organizational and technological measures aimed at reducing waste generation, its sorting,
material and energy utilization and waste liquidation. It is also necessary to keep in mind the
supposed changes in production especially with regard to the attenuation programs the purpose
of which is to close down out-dated facilities and gradually change over to the more effective and
energy and material less demanding types of production with lower waste generation.
The documentary part includes copies of decisions of the competent authorities
concerning waste management programs of the generators, records on prospective controls, etc.
The generator must add the statement of the respective local council (including his/her own
analysis and objections in case he/she does not agree with the opinion of the local council).
Included within the documentary part will be later on also the approval of the respective local
council as well as information on possible changes incorporated into the program on the basis of
demands of the respective authority.
Generally it is supposed that the district (local) authorities can decide about granting the
producers special conditions, e.g relaxation about handling the wastes for a certain period of
time necessary for accommodation to the new conditions if these are not able, in time the
program is being elaborated, to fulfill the duties set by the law. Such relaxations may apply only
for a period up to five years since the Act on Wastes has entered into effect, e.g until 1996.
The waste management program for the district is being constructed differently.
Besides the introductory part describing the characteristic features of the district, the survey of
wastes generated, utilized and eliminated has been included in the analytical part using the
system of sorting wastes into the groups of special, hazardous, other and communal wastes
which is in accordance with the catalogue and categorization of wastes.
The survey of waste generators is also included as well as the characteristics of the
wastes generated and the survey of communities generating communal wastes including the
analysis of how they are being handled. Similarly, the survey of waste collecting and processing
facilities within the district is referred to including their technical and operational parameters. The
not yet resolved problems are also mentioned on this place (the problems of capacity, efficiency,
financing, administration, etc.).
The designing part wilt contain organizational and investment plans, expected and
documented designs for structural changes aimed at reducing waste generation and the program
of rescue and reclamation of dump sites. Measures to coordinate activities with other districts will
be of special importance.
As an appendix the map should be enclosed on a scale
1:30 000 with the most significant waste generators, facilities, protective zones, etc introduced
into this map. Enclosed in the appendix should be also the approved programs of waste
generators as well as the programs elaborated for the communities.
Extremely intensive preliminary and committed negotiations are expected to take place
during the last quarter of this year. The opinion was voiced several times that the programs
should be just taken over by the district councils and approved gradually during the following
period of time according to the urgency given, for instance, by the state of preparations of
facilities construction, by the necessity to negotiate on common facilities or in case of a serious
clash of interests.
Public interest groups, NGO and citizens are expected to comment on the problem and
submit important suggestions as everybody has the right to get acquainted with the district
programs.
It is clear that at this juncture the complex solution of the task is necessary because it is
not possible to set any chronological priorities and solve the problems step by step. The task
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involves both all the waste generating units and the state administration authorities on the district
and local levels as well as a number of officials at the Czech Ministry (or the Slovak Commission)
of Environment. Frequent contacts take place currently between the competent officials. The
district officials could, for example, meet at a two and a half day long seminar organized by the
Czech Ministry of Environment in cooperation with the Czech Society for Environment.
A number of impulses and ideas sprang out from the negotiations, as for example:
- in case of some enterprises with a great number of subsidiaries (or workshops)
located over the whole territory of the country it would be useful to negotiate the program
in advance on the level of the Wastes Division of the Ministry of Environment. After this
division makes a statement on the respective problem, the program will be submitted to
the district council in the place where the seat of the headquarters is located (this may
apply to the railways, the regional bus transportation services, distribution of motor fuels,
etc.). Nevertheless, the statement of the local council where particular units are located will
be necessary. According to the Decree No. 401 the district council is obliged to cooperate
on elaborating its own district program with waste generators situated on its territory in
order to ensure the feedback necessary for obtaining the statement and approval of the
district authorities, even though it may include some additional demands.
- first entrepreneurial associations are emerging capable of working out programs
applying to multiple communities and sometimes also to multiple production subjects and
aiming at resolution at the same time also the problems of funding the construction of the
necessary facilities. This concerns especially separated salvage aiming at utilizing at least
the basic components of communal wastes (glass, paper, kitchen wastes, etc.) and
constructing the dump sites for the rest of the wastes. At the same time the hazardous
components that may become a part of communal wastes should be brought under control
(e.g.bacteries, fluorescent tubes, remains of chemicals, etc.) The first associations are
going to be financed on the share holding principle by the firms and communities aware of
the fact that national resources for funding (see information on the Fund for Environment
later on) will be highly limited.
- the general concept of hazardous wastes disposal on the whole-republic scale is missing
urgently. This will be a part of the Waste Sector Study that is to be worked out within the
framework of the project funded by CEC firms Environmental Management (GB), CESL
(Portugal) and Dagh Watson (It) until May 1993. The absence of such a concept resulted
in the attempts to push through, for instance, a great number of incinerators of hazardous
wastes attached to various large industrial enterprises. Anyway, this was fundamentally
lacking the complex attitude that would consider addressing such related problems like a
complete service aimed at collecting and transporting hazardous wastes on regional level.
Foreign experience supports a small number of large-capacity facilities providing services
like collection and transportation of hazardous wastes even from a great distance because
the share of the cost of transportation represents just a small part of the overall cost. The
customers prefer complex services, e.g. the take over of any and all of the hazardous
wastes. The problem is that the way of funding of such large facilities has not yet been
resolved (this concerns the assessed 50-100 mil. US $) which is expected to be one of the
main tasks of the above mentioned study to solve.
- the NIMBY syndrome (Not In My Back Yard) occurs. A number of plans of larger-scale
and efficient regional solutions (e.g. processing of old accumulators, processing and
deposition of residual wastes coming from the galvanic sludge, incinerating of liquid
combustible wastes in cement factories, etc.) are being refused by the local and often
even district authorities with the explanation that the authorities are not going to approve
"imports of wastes from other sites". This considerably reduces especially the possibilities
to use favourable hydrological conditions for building larger regional dump sites equipped
according to the European standards as they are applied even within the Decree of the
Czech government on the Details Concerning Wastes Handling (9).
- the evaluation of investment plans representing as a whole most probably less efficient
solutions than would be represented by the more efficient larger regional facilities, has
not yet been coped with sufficiently as for the methods are concerned. The investor can
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always more easily obtain financial resources ranging from 10 to 30 mil. crowns for
building a smaller incinerator of local industrial wastes. Such a facility can usually be easily
approved as it intends to bum only the wastes generated within the walls of the particular
enterprise or if need be the communal "wastes generated within our own community or
district". Anyway, a number of these incinerators do not refine the products of combustion
well enough, their chimneys are low and thus it is sure that their specific environmental
pollution burden per a ton of combusted waste must be heavier than it would be in case of
combusting wastes on the large scale given the permanently controled facilities.
from the practical point of view it is not yet clear to what extent will the district and local
ministerial divisions create, and thus be contributing to the realization of, regional waste
management concepts. In the mean time the idea prevails that they should be preferably
engaged in administrative activities, e.g. negotiating the supposed programs, control
activities, etc.
The waste management programs in general represent a highly demanding and complex
activity that should within a short period of time, some 2-3 years, considerably reduce the scale of
our 15-20 years of backwardness behind the legislation and practice regarded as a standard in
the developed countries and contribute considerably to the efficiency of compliance and
enforcement. The fact that all the officials and scientists engaged in inquiring into the problems of
waste handling have been currently engaged in developing, negotiating and control of waste
management programs contributes a lot to the increase in their practical knowledge and insight
into the problem.
I am going to mention some other legislative regulations exercising an influence upon
compliance and enforcement. The Details on Wastes Handling are of a great practical
importance (10). They set the principles for handling hazardous wastes, they bring about
categorization of wastes for dumping through determination of classes of extracts predetermining
the dump sites construction as well as the principles of sealing the dump grounds or reclamation.
Originally, the prerequisits concerning covers ought to have been set but this problem will be
solved separately.
The Details will be followed by an even more detailed, recommended Czech and Slovak
State Norm on Wastes Dumping.
The possibility of making use of the support of the Czech Environmental Fund established
under the legislation passed by the Czech National Council is very important for compliance (10).
Similarly, there exists also the Slovak Environmental Fund. The Fund has been a special
organization with its own statute, with its director appointed by the Ministry of Environment and
with its advisory board - the Council of the Fund - appointed by the minister, too.
In accordance with a special instruction, it is possible to provide means, on the request
and in compliance with the statute of the Fund, to support measures aimed at environmental
protection and improvement, especially aimed at
- supporting investment and non-investment activities
- supporting research, development, production of and implementing appropriate
technologies
- supporting monitoring environmental media and (ecological) processes
- repayments of installments and interests of loans provided by the Fund (which is a matter
typically of non-interest-bearing loans and subsidies)
- supporting educational activities and dissemination of environmental information
Unfortunately, the Fund itself is not that rich. As for the year 1992 some 25 billion crowns
were designed mostly for unfinished wastewater treatment plants and air pollution control
projects. The share assigned to waste handling projects will be at the disposal not earlier than in
1993 when there will be penalties and fees paid for waste deposits flowing in on the receiving
side of the Fund (see later). The Fund has its source of income in:
- fees paid for discharging pollutants into the air and waters
- fees paid for water taking and extracting minerals
- penalties for violating the regulations and measures of environmental protection
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state subsidies, shares from tax revenues, contributions from individuals and organizations
Related to the activities of the Fund is the Act on Fees for Waste Deposition (11). This
Act passed by the Czech National Council aims at enforcing restrictions on land annexations and
the risk of polluting ground waters. The fees are scaled according to the harmfulness of the
wastes and according to the dumpsite's compliance with the required standards set by the
legislative regulations, as it is seen in the following table. Some relaxation of the assessed fees
has been anticipated for a three year's period and after that the fees will have to be paid in a full
scale.
Table
1
groups of dumpsites
1.
2.
3.
. 4.
5.
soils and deads
other wastes
(except No.1)
solid communal
wastes
special wastes
except hazardous
and those under No.3.
hazardous wastes
fee rate I
crowns/t
0
10
20
40
250
fee rate II
crowns/t
1992
1
25
20
110
3000
1993
3
70
70
320
4000
1994
6
140
210
640
5000
The fee rate I. applies to the dumpsites secured in accordance with the government
Decree on the Details of Waste Handling. The fee rate II. applies to the dumpsite not secured in
compliance with this regulation. If the insufficiencies are not removed (given the relaxation during
1992 and 1993) the full fee will be paid. The classification has been carried out according to the
Catalogue and categorization of wastes (6).
The fees for dumping were subject to strong objections especially by the large power
stations that were demanding separate categorization for the powerplant flue ash maintaining that
it concerned nearly an inert material and that the cost increased by the fees would be reflected in
the consumer prices for electricity.
Conditions for Wastehandling Entrepreneurial Activities and Conditions for
Hazardous Wastes Handling are determined by even more detailed regulations. Immediately
after the legislation was passed the permits were being granted (too generously) for the
entrepreneurial activities, especially for those concerning collecting and processing secondary raw
materials. Nowadays the claims are much more strict and both examinations and controls of
qualification for these activities are necessitated. The License for Audit Elaboration and
Environmental Impact Assessment has been granted separately. The elaboration of EIA has
been imposed by the Environmental Act in case of particular types of investment projects and
changes in technologies where a more serious impact on the environmental media could be
expected. The more detailed documentation concerning EIA has been defined in the Czech Act
(13) and even more details could be found in the Instruction and Explanation published in the
Bulletin and Newsletter of the Czech Ministry of Environment. In these journals one can find
further details, description of experiences and an explanation of the environmental legislation
ammendments. As for the wastes specialization, The Wastes magazine is being issued as an
official magazine partly funded by the Ministries of Environment. Its first and second volumes are,
too, dedicated to a considerable extent to the information on legislative regulations and
experience with their implementation. There is also another independent magazine We and the
Wastes published by the private company Universa with the professional support of the Czech
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518 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Society for Environment. Besides various ideas and critical stimuli concerning regulations on
waste management it contains also practical technical information about activities in
Czechoslovakia and reports from various conferences and seminars abroad. A number of
privatized and newly originated firms carry on, on the business basis, an educational activity
organizing seminars and courses. The seminars of TOCOEN (Toxic Organic Components in the
Environment) are on a highly professional level. They are organized by the University of T. G.
Masaryk in Brno and oriented especially at the problem of toxic substances like PCB, PCDD, etc.
Various NGO active in the waste management problems contribute to enforcement, too.
For example, the Union of Nature Protectors commissioned one of its organizations to be
engaged in the activities aimed at liquidation of old dumpsites. The organization called The
Children of Earth struggled against the use of PET bottles endeavouring to make the producers
rt cycle these covers. The producer accepted the challenge and promised to process all the clean
bottles under- the condition they would be collected and brought to the respective facilities. The
problem now stands that the collection, shredding and expedition to the producer are not
reasonably resolved. Similar activities in the field of waste handling are being currently prepared
by the Czech organization of Greenpeace. Systematic educational activities and dissemination of
information including establishing the feedback to the Ministries of Environment (the Federal and
the Czech ones) are carried out by the Czechoslovak Society for Environment. It has been
organizing qualification courses for the state administration officials and officers as well as for the
employees in various industries, it organizes also specialized seminars and conferences ( this
year, for example, the conferences on waste dumping, complex environmental protection and
control in some industrial aglomerations and on solidification of wastes took place). Furthermore,
through a number of activities aimed at increasing the qualification of educationalists and other
cultural workers it has been endeavouring - within the framework of the Ecomenius foundation -
to train the trainers. The Czechoslovak Society for Environment wants to make a contribution to
pushing through of an important program aimed at "Reducing redundant waste generation
through reasonable management of packaging" the solving of which it would like to ensure
through the work of an interdisciplinary team consisting of the members of the society. The
problem of covers has not yet been assigned to a special ministerial department. Unfortunately,
financial resources to support these programs are very poor and limited and funding of this
project is uncertain. The Czechoslovak Society for Environment endeavours even to overcome
the undesirable effects of the NIMBY syndrome. It participates in the environmental information
network, takes part in the council of the Green Circle, etc.
From the technical point of view , this all concerns the following topical tasks:
1. Reducing excessive dangerous wastes generation including their elimination while using,
to a considerable extent, existing facilities as
- standard-quality landfills belonging to the preparation plants of uranium industries
processing especially inorganic wastes containing toxic metals (being used in previous
recycling of economically extractable shares and solidification of wastes from
galvanizing facilities)
- cement factories where combustion is possible including the use of heat originating
while incinerating a number of types of liquid wastes and alternative fuels obtained
from wastes on the basis of swarf saturated by the hydrocarbon remnants,
sludge, etc. In the longer term also crushed plastics and waste paper will be included.
2. Clarifying the meaning of "reasonable" when considering number and level of equipments
of regional incinerators or centers for elimination of dangerous wastes. As it was already
mentioned, many enterprises are interested in building incinerators to eliminate their
wastes and (for a good price) also undesirable wastes in their regions.
3. Adopting and implementing schemes of separate collection of the main components of
communal wastes within the communities of various magnitude including technologies
aimed at miscelaneous utilization of worse-quality paper and kitchen wastes suitable for
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compost production, plastics processing into the products for sale or interproducts,
catching non-ferrous metals and atuminium from the metals collected, etc.
4. Managing reconstructions of inconvenient dumpsites as practically all the operated
dumpsites are leaking and changing them into acceptable landfills. Technical and
organizational managing of a great number of cases when auditing is necessary, or as the
case may be, the simplified method EIA used for assessment of the risk rate concerning
particular facilities is necessary in the situation when large-scale rescues are not a realistic
solution. This task is important even for reporting and decision-making on the future of old
landfills (the costs of rescue of one single large landfill of chemical and communal waste in
Chabaj-ovice were assessed at approximately 1 billion US $).
5. Clarifying the technical and operational conditions for solidification as a method suitable for
elimination and utilization of various types of wastes. The stability of the products of
solidification worked into the building materials and deposited for long periods of time
(many tens of years, even centuries) has also been a challenge.
From the legislative and organizational points of view a number of pressing problems
have been already analyzed. In general, the most important thing in the mean time is to "absorb"
a great number of regulations representing clearly a heavier work-load upon the personnel within
the state administration and self-government as well as upon the entrepreneurs and employees in
various industries than it is usual within the better-established environmental sectors (like water,
soil, air or forest sectors).
As far as various tasks are concerned, I myself regard these as particularly important:
1. It is absolutely vital to elaborate a set of stimulative and repressive tools in order to
prevent waste generation and decrease environmental hazards caused by wastes. This
may be achieved through
- effective packaging management, their regeneration and recycling in compliance with
the recommendations of the EC and taking the experience of some European countries
(Germany, the Netherlands) into consideration
- publishing catalogues of non-waste generating technologies and supporting
consultation services directed at their implementation
- elaborating more detailed guidelines to help eliminate pollutants from material flows
(Hg, Pb, Cd, PVC, C! organic solvents or diluents, etc.)
- aim at long-term functioning, repairable products with a high degree of regeneration
ability (large electronic household facilities, computers and other electronic devices,
cars, etc.) Also implementing the method of leasing where it is possible to offer
complex services and not just provide a number of facilities and devices changing
gradually into the consumers' waste.
2. A great fortitude is necessary when working on increasing the quality of particular waste
management programs that appear to be the main tool of compliance and enforcement. It
is also necessary to adjust and ammend particular regulations in accordance with the
knowledge and information acquired within the practical activities.
3. As knowledge has been the key point in technical solutions and administrative economic
decision-making in the environmental policy, training, education and efficient advertising is
particularly important. Following an agreement between the education and environmental
ministries, it is necessary to extend all the suitable forms of training for the wastes
generators, state administration workers, self-governments and youth. To achieve a more
profound relation to environmental protection it would be necessary to make use of vast
possibilities of cooperation with foreign environmental institutions, especially with the NGO.
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520 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
4. To achieve the desirable accent of the state administration when implementing
enforcement to prevent waste generation and ensuring an efficient waste management it is
necessary to increase deterrence. Unfortunately, under the situation when all the state
administration is undergoing an essential restructuring process after the 1989 revolution,
the idea that police, judicial institutions or other departments of state administration would
participate on enforcement seems to be rather unrealistic. Nevertheless, as for the next
couple of years, this task is highly actual and it is vital to seek the ways how to make use
of good examples (see the Netherlands, etc.)
5. We are not much practically experienced in implementing efficient financial and taxation
tools, may they be repressive or stimulative. Ministry of Finance tries not to make the
implementation of the new taxation and fees system too complicated and thus it is difficult
to push through controlled additional charges to the price to obtain in this way new means
able to bring remedy. The additional charge proposed for oils that would help in realizing
the collection of used oils, emulsions, etc. and their regeneration was repeatedly rejected.
Even for resolving these problems it would be desirable to make use of the knowledge
achieved in the market economy countries.
6. As we can see from the above mentioned themes, making use of the knowledge acquired
by the EC countries, USA, etc. is currently highly actual. These countries realize
compliance and enforcement since they have passed their legislations on waste
management in the 70ies. One of the main and highly actual tasks has thus been
improving the operation of information channels, certain coordination of activities and
extension of the experience of prospective employees of state administration,
self-governments, entrepreneurs, educationalists and NGOs.
BIBLIOGRAPHY
1. Federal Act No. 238/1991 Coll. of Laws of May 22,1991, concerning waste.
2. Act of the Czech National Council No. 311/1991 Coll. of Laws of July 8, 1991. on state
administration in waste management.
3. Act of the Czech National Council No. 282/1991 on the Czech Environmental Inspection.
4. Provision of the Czech Government on the details of wastes handling 1992).
5. Federal Act No. 309/91 Coll. of Laws on protection of the atmosphere against polluting
substances (Atmosphere Act).
6. Act of the Czech National Council No. 389/1991 Coll. of Laws of September 10, 1991,
concerning protection of atmosphere and fees for its pollution. Decree of the Ministry of
Environment No. 401 of August 16, 1991, on waste management programs.
7. Provision of the Federal Committee for Environment of August 1, 1991, which promulgates
categorization and waste catalogue.
8. The Czechoslovak State Terminological Norm on Wastes, 1992.
9. Statistical investigation on wastes and landfills in 1987.
10. Act of the Czech National Council No. 388/1991 Coll. of Laws of September 10, 1991, on
State Environmental Fund of the Czech Republic
11. Act of the Czech National Council No.../1992 Coll. of Laws of January 22, 1992,
concerning fees for depositing waste into the environment.
12. Federal Act No. 17/1991 Coll. of Laws of December 5, 1991, concerning the environment.
Provision of the Federal Committee for Environment of August 1. 1991, which
promulgates a list of pollutants, categories of pollution sources, generally valid emission
limits, emission limits for polluting substances and recommended limits for declaring
regulation stages.
13. Act on the Environmental Impact Assessment of Building Structures, Activities, Concepts
and Products of April 2, 1992 passed by the Czech National Council
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 521
RESULTS OF THREE YEARS OF ENFORCEMENT OF REGULATIONS ON
TRANSBOUNDARY SHIPMENTS OF HAZARDOUS WASTE IN THE NETHERLANDS
MARION FOKKE-BAGGEN
Ministry of Housing, Physical Planning and Environment Environmental Inspectorate
SUMMARY
The EC-Directive on transboundary shipments of hazardous waste was implemented in
Netherlands legislation on October, 15th 1988. At the same time, a special bureau was
established, in order to enforce the Regulation on import, export and transit of hazardous waste.
This paper provides an overview of the experiences of this bureau, after three years of
practical enforcement. The method of working and the Enforcement Strategy of the bureau are
discussed. Finally some cases illustrate practical problems of enforcement of regulations on
transboundary shipments.
The conclusion is that co-operation between authorities, the fast ratification of relevant
treaties and, within the E.G., the effectuation of the Regulation on transboundary shipments of
hazardous waste are of crucial importance.
Besides, it seems to be necessary to continue active, physical monitoring next to the
inspection of documents, on the basis of an enforcement strategy including transboundary
shipments of recyclable hazardous waste.
1 INTRODUCTION
The European Directive, pertaining to the import, export and transit of hazardous waste
was implemented in Netherlands legislation on October 15th, 1988, when the Regulation on
import, export and transit of hazardous waste entered into force.
This Regulation is a part of the Chemical Waste Act. In principle, import, export and transit
of hazardous waste are not allowed, without permission of the competent authorities. The
Regulation implies procedures for notification beforehand of the intended shipment and
accompanying documents with the transport, proving the permission of the competent authorities.
The responsibility for execution of the legislation concerned rests with the central
Government. Therefore, the Minister of Housing, Physical Planning and Environment is
responsible for execution and enforcement of the legislation concerned.
Simultaneously with the decision to implement the E.C.-Directive, it was decided to start
enforcement of the legislation seriously by creating a special bureau for the control of trans-
boundary transports within the Environmental Inspectorate.
This bureau started at the end of 1989 with real enforcement of relevant legislation. At this
moment the bureau has 19 staff members.
After almost three years of practical experience, some interesting aspects concerning
enforcement of the legislation on transboundary shipments of hazardous waste can be mentio-
ned. First of all the Netherlands policy concerning transboundary shipments of hazardous waste
will be discussed briefly.
The amount of transboundary shipments of hazardous waste is illustrated in some figures.
Next, the working method of the bureau, responsible for enforcement of the legislation concerned
and the Enforcement Strategy to be followed, are discussed.
Finally, it will be useful to present some characteristic practical examples as well as some
connected conclusions in general.
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2 POLICY AND SOME FIGURES
2.1 Policy
The policy upon which the examination of applications for permission to import or export
hazardous waste is based, is mainly described in plans and programs of the government. At the
end of 1991 it was decided to create a new plan, the Multi-year Plan for Chemical Waste, in
which the intended disposal system of chemical waste will be described in detail.
Like each country within the European Community, the basis of the Netherlands policy is
that waste should be processed or disposed in the country of origin. However, a multinational
approach is necessary for some specific waste substances. The special condition of the soil and
the high density of population in the Netherlands play a role as well.
In 1991, the Netherlands had insufficient combustion- and dumping capacity for high toxic
chemical- and some bulk chemical waste.
In short, the lack of sufficient capacity as well as the lack of disposal structures were, in
general, reasons to allow the export of waste. Permission to import waste in order to process into
the Netherlands will only be given if the disposal or processing of Dutch waste will not be
jeopardized. At the same time, a criterium for allowing import is the fact that the country of origin
have no or not enough possibilities to dispose of the waste.
2.2 Figures
Figure A shows the amount of imported waste in 1989, 1990 and 1991. The fluctuation in
the amount of imported hazardous waste is caused by the import of contaminated soil to cleaning
facilities.
220-
200-
180-
160-
140-
120 i
iooi
SO-
60-
«-
rc
IncinwaSon
(ysjenem. treatment
recycling
1969
1990
1991
figure A
Figure B shows that the amount of exported hazardous waste in recent years has been
stable, although there are significant changes in the way the waste has been disposed of. The
amount of waste which is landfilled has decreased from 106,5 kiloton in 1989 to 63,5 kiloton in
1991. On the other hand, the amount of waste which is incinerated has increased from 55,5
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523
kiloton in 1989 to 81,5 kiloton in 1991. The amount of hazardous waste which was transported in
transit via the Netherlands was 29,5 kiloton. excluding non-ferrous metals destined for recycling.
In 1990, this was 38,5 kiioton.
kiloton
240-
220-
200-
180-
160-
140-
120-
100-
80-
60-
40-
20-
0-
fysj
1969
1990
1991
figure B
The following table (figure C) shows the relationship between the Netherlands and 7 countries
playing an important part in the import into, export out of and transit of hazardous waste via the
Netherlands. The table gives the number of companies involved with transboundary shipments of
hazardous waste. It is found that our direct neighbouring countries are the most important part-
ners. There is a clear connection concerning transboundary shipments of hazardous waste with
particularly Germany and Belgium, but also with the United Kingdom. More-over, waste is
exported to France, while Ireland and Italy are important countries of import and transit.
Country
The Netherlands
Germany
Belgium
United Kingdom
France
Ireland
Italy
Type of company
Producer
185
100
20
3
1
13
14
Holder
100
58
30
4
1
14
7
Consignee
29
34
18
20
8
-
-
figure C
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524 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
It is found that 95% of the Netherlands waste to be exported is shipped to Belgium,
Germany and France. More than 70% of the transit of waste through the Netherlands originates
from Germany. The United Kingdom is an important country of destination. Particularly Germany
and Belgium export waste into the Netherlands.
3 METHODS OF WORKING
3.1 The organization
Concerning the enforcement philosophy to be foliowed, the choice was made to set up a
centrally organized and managed enforcement unit with a partly regionally located staff. The
arguments for- choosing such a centrally organized and managed enforcement unit are the
following:
- transport and transboundary shipments are no local/regional, but nationwide affairs;
- it is important that the number of authorities with final responsibility in this field will be
limited;
- enforcement of an international Regulation requires a central information- and co-
ordinating unit at central government level;
- politically, the creation of a recognizable enforcement unit was considered important;
- value was set on national consistent action, meaning clear and unambiguous actions, in
case of violations of the Regulation;
- reasons of effectiveness and efficiency.
In order to respond quickly to signals from the network, the central unit is attended by field
inspectors, who mainly perform the executive activities and live and work in their own
region. Therefore, the bureau divided the Netherlands into three regions.
A clear distinction between the tasks and responsibilities of the central and regional units
should optimize effectiveness of enforcement.
Management, co-ordination, information, planning and (judicial) support are the principal
tasks of the central unit, as the field inspectors are mainly occupied with, as already said, executi-
ve activities like monitoring compliance and taking action against violations.
Next to the way in which the enforcement unit has been organized, a second important
principle is the co-operation with several other authorities. These authorities are, because of their
own responsibilities, able to do activities in the field of enforcement of legislation on
transboundary shipments of hazardous waste.
These authorities, the network, are mostly involved in enforcement, like the customs,
police, port authorities, foreign colleagues, etc.
The network is of crucial importance because these authorities can fulfil an "eye and ear
function" and/or do activities concerning transboundary shipments of hazardous waste.
3.2 Experiences with this method of working
At the end of 1991, the effectiveness and efficiency of this way of working has been
evaluated.
This evaluation made clear, that the activities of the enforcement bureau contribute highly
to the prevention of illegal transboundary shipments of hazardous waste. For example, the
number of notifications of non-ferrous transports increased from 100 to about 600 monthly.
Furthermore, the evaluation made clear that it would be worthwhile to emphasize co-
operation with the network, in order to improve effectiveness and efficiency of enforcement.
The intention is to start a process of change in the coming years by which next to the "eye
and ear function", also less complicated activities could be done by the network, with the central
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 525
bureau within the Environmental Inspectorate as the co-ordination and information centre.
The central bureau, as the national working enforcement unit will specialize in complex
large scale enforcement activities.
In short, an adequate level of enforcement concerning international legislation is achieved
by:
- the creation of a central enforcement unit and the use of enforcement officials who are
specialized in the enforcement of the regulation involved;
- the organization of one central information and co-ordination centre;
- the realization of an optimal co-operation with the network, including international
authorities.
4 PHILOSOPHY OF ENFORCEMENT
4.1 The Enforcement Strategy
In order to realize planned and systematic action against offenders of legislation
concerning transboundary shipments of hazardous waste, a so-calied Enforcement Strategy (a
concrete enforcement policy) has been developed. This Enforcement Strategy has been created
as follows.
First of all the violations have been classified in relation to the impact of the violation on
the basis of uniform judgement criteria.
Violations have been divided into two categories:
Category 1: procedural or administrative violations;
Category 2: transboundary transports without transport- or receipt notification.
Further, relevant policy decisions and interpretations of legislation have been examined
and included in the Enforcement Strategy.
On the basis of this information, an Enforcement Strategy has been made. This strategy
describes the enforcement action which should be taken in case of a particular category of
violations. It is described as well at which moment action should be taken and who is responsible.
The Enforcement Strategy mainly consists of the following;
in case a "category 1 violation" is established for the first time, a warning letter is sent to
the company involved, eventually combined with an inspection visit. The offender should
take measures in order to comply with legislation.
In case of recidivism, criminal action is taken by making an official report to the public
prosecutor.
In case a "category 2 violation" is established, in principle, criminal action will always be
taken and an official report will be made. In certain cases, the Public Prosecutor is advised
to impose a so-called preliminary measure, in order to freeze the situation so that no
further environmental damage can be caused. Complementary administrative enforcement
measures can be taken.
The administrative approach includes two possibilities of taking action. In the first place,
hazardous waste which has been imported or exported illegally, can be returned to the country of
origin at the expense of the offender by using an administrative compliance order. It is possible
as well to impose a "dwangsom", meaning an administrative compliance order which includes an
economic compliance incentive of significant sums for each day of continuing violation.
4.2 Experiences with the Enforcement Strategy
It was found that the Enforcement Strategy creates clarity which is appreciated by both the
Public Prosecutor and the network.
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526 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
In cases of non-compliance with the Regulation on import, export and transit of hazardous
waste, there is always an international component. Foreign companies act contrary to the law as
well, which makes efficient and effective enforcement more complicated.
Therefore, the following practical solutions are used in relation to companies:
* Compliance with the Regulation could be achieved via the Netherlands companies, by
advising them to urge their partners to comply with Dutch legislation.
* Dutch companies, like agents, transporters, storage or transhipment companies etc. are
responsible for a proper course of affairs.
This implies that they are responsible as well for compliance with the Regulation. In case of
no compliance, criminal action and/or administrative action can be taken.
* A warning letter is sent in case a foreign company acts contrary to the Regulation. Official
reports are'made as well and compliance order or a dwanqsom can be used.
Apart from the specific Netherlands legislation, the following complicating factors play an
important role in general:
Different countries use different definitions of waste. Waste in one country is considered as
commodity in the other country.
- The definition of hazardous waste is not uniform in each country.
- The way in which the E.G.-Directives have been implemented in national legislation differ
from one another.
For non-E.C.-countries, the differences in definitions and legislation concerning
transboundary shipments of hazardous waste are even larger.
By reason of the above mentioned factors, there is often a lack of knowledge of legislation
in other countries. Sometimes this results in a lack of co-operation between foreign countries.
Other countries do not or can not always respect violations of regulations, because the situation
is not contrary to law in the own country, or because they do not know the legislation in other
countries. In the following part, examples of the above mentioned will be given.
This kind of problems can be solved by:
* to further a fast ratification of treaties on international level, like the Treaty of Basel;
* to effect as soon as possible the Regulation on transboundary shipments of hazardous waste
within the E.C.;
* finally, to promote the bilateral exchange of information on legislation and enforcement and to
make formal and informal appointments and covenants between the authorities in the different
countries.
5 CASES
5.1 Case 1: transit of zinc waste
Below, the transit of zinc waste via the port of Rotterdam is described, on the basis of 2
separate (but related) cases.
January, 18th. 1991:
The river police of Rotterdam found a shipment of zinc waste in the Port of Rotterdam,
stored in a warehouse, in order to be transported to Poland for recycling.
This material is a non-ferrous waste and contains high amounts of hazardous "heavy
metals" such as cadmium and zinc.
For transit via the Netherlands compliance with the Regulation on import, export and
transit of hazardous waste is obligatory.
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In case waste is considered as non-ferrous waste, from which the non-ferrous metals will
be recycled, it is possible to use a simplified procedure. This means that it is not necessary to
ask permission for the transport beforehand. However, the transport should be notified and should
be accompanied by documents, proving recycling of the waste.
Because the company involved did not comply with the procedures, the bureau respon-
sible for the enforcement made an investigation in order to find the origin of the waste. It was
found that the waste origins from several companies in a nearby country and was collected by an
other company in that country. The latter transported the waste to Rotterdam in order to export it
to Poland. The Polish authorities were asked whether they agreed with the import of this material
to Poland or not.
The authorities made clear that they did not want to import this kind of waste. Recycling of
this kind of waste in an environmentally safe way was not possible in Poland.
The Netherlands tried to get help from the country of origin and the company concerned, in order
to return the waste to the country of origin. Up till now it has not been possible to return this
waste. The waste still remains in Rotterdam, waiting for reshipment to the country of origin.
May, 28th. 1991:
Another shipment of zinc waste was found in a warehouse in Rotterdam, the same where
the above mentioned zinc waste has been stored.
The composition of this waste is almost the same as the composition of the above
mentioned zinc waste.
This waste was also collected in the same nearby country by a company that turned out to
be the neighbour of the company collecting the other shipment of zinc waste!
This shipment was not bound for Poland, but for the former USSR. We found out that the
Soviet company involved was a production factory of injection-needles, which has nothing to do
with zinc waste.
We formally asked the Soviet authorities to agree with the import of this waste. They
answered that it was not allowed to import this kind of waste to this company. The waste still is
stored in the Port of Rotterdam as well.
5.2 What can we leam from these examples?
5.2.1 Non-ferrous recycling
These two examples, that are closely related, illustrate the problem with "recyclable" non-
ferrous waste. The Netherlands of course stimulate the recycling of non-ferrous waste. Recycling
does not only prevent that these hazardous waste pollutes the environment, but enables the re-
use of these substances as well.
However, our practical experience with enforcement shows that large quantities of
hazardous waste are shipped round the world, wearing false colours.
Next to it, it is possible that the trader really intends to offer a shipment non-ferrous waste
for recycling, although there is no client at that moment. After the transport, it is found that
efficient economical recycling is not possible. However, the transboundary shipment of hazardous
waste already took place illegally.
Finally the simplified non-ferrous procedure is used by people who are not very particular
with the environment, shipping unrecyclable hazardous waste, without permission of the compe-
tent authorities.
In short: it is important to continue the regular inspection of non-ferrous transports,
even if transports of non-ferrous waste will be shipped like transports of "general
cargo" in the future (OECD-decision). It is important as well to find an international
standard definition of recycling (can we speak about recycling If only 5% of a waste
shipment can be recycled and 95% is dumped).
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5.2.2 Waste or commodity
In 1991 when it became clear that there was no destination for the above mentioned
waste, the Netherlands tried to co-operate with the country of origin, in order to return the waste
to the sender by using administrative compliance order. However, in the opinion of the country of
origin the material was no waste but commodity. Therefore this country refused co-operation.
Therefore, the procedure of administrative compliance order could not be used.
It is very important to come to one definition of waste with regard to commodity and
one list of hazardous waste and non-ferrous metals.
Till that time the countries concerned should respect legislation in other countries.
There should be compliance with legislation in all countries concerned.
At this moment a dwangsom-procedure has been started against the companies in the
country of origin. However, due to the problem of borders, up till now it has not been possible to
force the companies to pay.
5.3 Case 2: export of hazardous waste via an agent
In July 1991 the enforcement bureau was called by a customs office at the border
between the Netherlands and Belgium.
The customs found a tank-container with - according to the forms - an oil/water mixture,
which is considered as hazardous waste, coming from France, via Belgium to the Netherlands.
Such a shipment should be accompanied by a special form, indicating that approval for this
shipment has been given by the competent authorities.
In case of the above mentioned tank-container, the information on the notification form did
not fully comply with the shipment:
- the date of transport on the form did not correspond with the actual date of transport;
- according to the forms, the shipment should be transported from the Netherlands to
France, instead of the opposite.
The enforcement bureau detained this transport. It was found that a Netherlands producer
exported this waste to a processing company in France. The driver declared that he left the
Netherlands two days before, the date mentioned at the form. The transport had not been inspec-
ted then. The processing company in France took samples, in order to analyze the material. The
waste was refused on the basis of this analysis and returned to the original producer. The French
company refused the waste, because of no compliance with the acceptation norm. The samples
of this waste showed a percentage of 3% organic chlorines, more than allowed in the
environmental license of the processing company, for which no logical explanation could be
given. The maximum percentage which could be processed by the French company is 2% orga-
nic chlorines.
Samples were taken and it was found that the accompanying forms did not correspond
with the contents of the tank-container. False colours were worn.
As a result, an investigation was started in order to find out if waste substances were
frequently exported to France in this way. Therefore, the customs were asked to "signalize" the
agent concerned, which means that the computerized customs-system automatically gives a
signal in case transports from this agent are im- or exported.
In October 1991, 8 transports were signalized within one week. These transports came
from different producers, but were shipped by the same agent. After inspecting, samples were
taken from 6 containers. One of this containers has been refused in France as well.
As a result of the above mentioned and due to other signals, it was suspected that this
waste agent illegally organized transboundary shipments of hazardous waste for other compa-
nies. Furthermore, it was found that this agent made his clients believe, that he had a Chemical
Waste Act license, which turned out to be untrue.
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tn consultation with the Public Prosecutor, it was decided to do a judicial investigation,
which has been started by the local police with the assistance of a specialized division of the
Environmental inspectorate, the Environmental Assistance Team. At this moment this
investigation has been completed successfully. We are waiting for this case to appear before the
court of law.
5.4 What can we learn from this example?
First of all, it is important to inspect regularly, in order to check if the transport corresponds
with the forms. The experiences with enforcement show that shipments with hazardous or non-
ferrous waste sometimes did not correspond with the notification.
Secondly, this example shows the importance of international co-operation between both
monitoring and criminal investigation authorities. Offenders of legislation cross frontiers and take
advantage of bad co-operation and, as a result, ignorance of authorities.
In the third place, close co-operation between monitoring and criminal investigation
authorities is of crucial importance.
In the Netherlands, the infrastructure has been created in such a way, that for criminal
investigation relevant monitoring findings and information found by inspection activities within the
Environmental Inspectorate, are joined at one central information point, the Central National
Information point Environmental Crime (CLIM).
Furthermore, a specialized unit at the Environmental Inspectorate can support judicial
authorities in case of a criminal investigation. This unit has well trained specialists who can assist
in case of the necessity of a criminal investigation. Information is available at the Centra!
National Information point Environmental Crime.
Finally, this case shows that monitoring compliance and enforcement are necessary for the
whole waste chain, from the original producer till the final processing company and all connected
links. Decentralisation of enforcement competencies often takes place at the same time with
decentralisation of licensing competencies. This is defensible from the point of view of efficiency,
provided that the central authority remains responsible for enforcement of legislation for the whole
chain.
6 CONCLUSIONS
In general, on the basis of three years of practical experiences in enforcement, the
following conclusions can be drawn.
A. Co-operation with other authorities (on national and international level) is of crucial
importance for the approach of enforcement of legislation concerning transboundary
shipments of waste.
Making appointments, in order to realize an adequate exchange of information and the
respecting of responsibilities and possibilities of each other, will result in an effective
approach.
B. Next to the "inspection of documents", active physical inspection is necessary. The total
waste chain deserve particular attention (from the cradle to the grave).
Furthermore, there should be consistency between monitoring activities and actions as a
result of violations.
C. Monitoring compliance should take place on the basis of the Enforcement Strategy.
Prompt action is necessary, in order to maximize the deterrence of enforcement activities.
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D. Practical experiences with enforcement show that all sorts of hazardous waste are shipped
all over the world, pretending recycling, without adequate inspection of the environmental
consequences. Therefore, it is very important to continue the inspection of this waste
shipments, particularly in case regulations will be relaxed.
E. Within the E.G., the quick effectuation of the Regulation on transboundary shipments of
hazardous waste and the related standardization of legislation concerned is essential.
Worldwide, a fast ratification of treaties like the Treaty of Basel is necessary.
7 REFERENCES
1. Netherlands case study in enforcement of hazardous waste import/export, by J.R. Bouma
and J.J.A. Gerardu, Proceedings International Enforcement Workshop, May 1990, Utrecht
(the Netherlands).
2. Jaaroverzicht in-, uit- en doorvoer van gevaarlijke afvalstoffen 1991, Bureau Meldingen
Wet chemische afvalstoffen, Directoraat-Generaai Milieubeheer, mei 1992 Leidschendam.
3. Handhavingsuitvoeringsmethode voor de Regeling in-, uit en doorvoer van gevaarlijke
afvaistoffen (Wca), Inspectie Milieuhygiene, hoofdafdeling Handhaving Milieuwetgeving,
oktober 1991.
4. Regulation on import, export and transit of hazardous waste, Ministry of Housing, Physical
planning and Environment, 1988, The Hague.
5. Fourth Progress report on Environmental law enforcement, Ministry of Housing, Physical
planning and Environment, October 1991, The Hague,
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 531
THE ROLE OF THE CITIZEN IN ENVIRONMENTAL ENFORCEMENT
ROBERTS E. and DOBBINS J.
Environmental Law Institute, 1616 P Street, N.W., Washington, DC 20036
(United States of America).
This paper was written with guidance from Margaret Bowman, Director, Environmental Program
for Central and Eastern Europe. Additional guidance was provided by Elissa Parker, Director of
Research and Training.
SUMMARY
This paper explores the ways in which citizen involvement can improve the fairness and
effectiveness of environmental enforcement. Section 1 of the paper discusses the overall value
of such citizen involvement. Section 2 surveys the wide range of roles citizens can play in the
enforcement process. Section 3 focuses on ways in which citizens can use the courts to work
towards environmental enforcement goals. Section 4 examines citizen involvement in practice,
highlighting some practical considerations relevant to designing and implementing citizen
participation mechanisms.
1 INTRODUCTION
Citizens are one of a nation's greatest resources for enforcing environmental laws and
regulations. They know the country's land and natural attributes more intimately than a
government ever will. Their number makes them more pervasive than the largest government
agency. And because citizens work, play, and travel in the environment, each has a personal
stake in its beauty, health, and permanence. (1) Citizens are omnipresent, motivated, and
uniquely interested in environmental quality.
A bird-watcher walking in the woods sees chemical waste flowing through a stream, traces
the source to a neighboring factory, and alerts government agencies to the factory's violation of
its emissions discharge permit. A local citizen group in a small town near a coal mine suggests
to a state mining agency practical ways, based on the citizens' own observations of the mine in
operation, of making environmental standards for mines easier to administer and enforce. A city
resident notices that municipal buses are emitting noxious fumes, sues the bus company, and
wins a court order requiring the company to place pollution control devices in the bus exhaust
systems. These are just a few examples of the many and varied influences citizens can have on
the process of environmental enforcement.
Drawing on the resources of citizens can enrich and strengthen the environmental
enforcement process in several ways. First, citizen participation in environmental enforcement
taps the direct, immediate connection between individuals and their environment. Citizens are
uniquely knowledgeable about their own communities. Their day-to-day observations give them
access to information about environmental conditions that the government could never obtain.
Involving citizens in environmental enforcement encourages productive use of this information.
The intimate connection between individuals and their own communities also enables
citizens to concentrate on localized environmental problems. A federal or even a state
government agency might not consider such "small-scale" threats to the environment serious
enough to justify action on the national or regional levels. But correcting these harms can be vital
to the survival of a particular town or rural area. Citizen participation in environmental
enforcement thus broadens access to enforcement resources.
Second, the injection of varied, non-institutional perspectives and information sources into
the enforcement process may improve the quality of enforcement decisions. For example, the
views of individual users of a national park on how a ban on logging in the park should be
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implemented may well differ from those of a timber company that wants to restrict logging by its
competitors. Both are likely to be different from the position of the government enforcement
agency which lacks the funds to investigate and prosecute violations. Allowing and encouraging
the hikers and loggers to affect the outcome, by, for example, participating in government
enforcement actions or suing on their own to implement the ban, may increase compliance, deter
violations, and contribute to a more realistic and responsive environmental enforcement strategy.
The dynamic between citizens and the government agencies officially charged with
enforcing environmental laws adds to the potential effect of citizen participation in this area. In
the context of environmental enforcement, citizens and government are presumed to share a goal
-- that of maximizing compliance for the good of all. This presumption of a common interest is
reflected in the dual meaning of the adjective "public," when used in conjunction with the
operation of a democratic system of government. In this context, "public" refers both to the
citizenry at large -- which engages in "public participation" -- and to the government -- which
formulates and implements "public policy."
Yet tension sometimes arises between these two "public" entities. The government may
fear that citizen involvement in environmental enforcement will disrupt its own enforcement efforts
and will reduce its flexibility to tailor enforcement decisions to particular circumstances. (2)
Government enforcers may also believe that if enforcement actions in the courts are mounted on
a piecemeal basis, rather than as part of a coordinated strategy, poor judicial precedents may be
set that could hinder further enforcement efforts. (3) Consequently, government agencies
sometimes decline to support, or may even resist, private enforcement initiatives.
Citizens, on the other hand, often suspect government agencies of not properly fulfilling
their enforcement responsibilities. Citizens may view government employees as overly
susceptible to the influence of the business interests they regulate. (4) Or they may attribute
government inaction to bureaucratic inertia. Either way, agency enforcers often are seen as
overlooking or impeding environmental protection goals. (5)
This tension between government and citizens can result in improved environmental
enforcement. The government's desire to prevent citizen action it views as disruptive can
encourage agencies to take their own regulatory or enforcement steps. The public's suspicion
that government may not vigorously implement certain laws may prompt the legislature to grant
citizens a statutory right to bring a lawsuit to require the government to perform its assigned
regulatory duties. And in instances when the government insists on inaction, citizen participation
can replace government enforcement. Not only may compliance be achieved, but the
government can be forced to account publicly for its own inaction. (6)
When the interests of the government and the citizens are similar - as is often the case -
individuals can fill gaps in government enforcement caused by resource constraints. (7) The
sheer size of the citizenry, for example, enables individual citizens to monitor compiiance
throughout the nation and identify violations an understaffed investigative agency might miss. An
enlightened government agency can also use citizen volunteers to implement a comprehensive
enforcement strategy. This could both help the government meet its enforcement objectives and
avoid the potential conflicts that may result from piecemeal enforcement efforts.
Finally, public involvement in enforcement is a logical next step for democratic political
systems that have encouraged public participation in the creation of environmental statutes and
regulations. (8) Allowing citizens to have a concrete role in implementing the regime they
helped to design strengthens public support for and awareness of environmental goals. If citizens
are denied a role in enforcement, or if they are not educated about and encouraged to assume a
permitted role, even the most sophisticated system of environmental protection laws may exist
only on paper. Several countries in Central and Eastern Europe, for example, have for years
boasted a system of stringent environmental controls. Yet these provisions have seldom been
enforced by the government. (9) Nor do these countries have a tradition of citizen
participation in public affairs that can be drawn on to promote or supplement government action.
Developing and nurturing a role for the citizens in enforcement efforts could provide the missing
ingredient necessary to make these countries' environmental protection goals a reality.
On paper, the environmental laws in Central and Eastern Europe are not dramatically
different from those in the United States. Yet the U.S. has been more successful in implementing
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and enforcing those laws. One major difference between the two systems is the role of the
citizen in the environmental enforcement process. The public has played an increasingly
important role in the U.S. in forcing industry and government to comply with environmental
statutes since the beginning of the modern environmental movement in the late 1960s. Over two
decades of U.S. experience with citizen enforcement mechanisms have distilled some principles
that may be applicable in other countries as well. Drawing on the experience of the U.S. and of
selected other countries with various forms of citizen enforcement efforts, this paper analyzes
various avenues for public participation in environmental enforcement.
2 THE RANGE OF PUBLIC INVOLVEMENT IN ENVIRONMENTAL ENFORCEMENT
Avenues for public participation in enforcement are many and varied. Some require
special expertise, and some require only energy and common sense. Some involve working
alongside the government, some place the citizen in the shoes of the government, and some call
for citizens to oppose the government's activities. Some require extensive financial expenditures,
and some cost only time. Separately or in concert, these mechanisms can help to effectuate
compliance with environmental controls.
2.1 Collecting Information for Use in Enforcement
On the most basic level, citizens can use their eyes and ears to identify areas in need of
further regulation and to monitor compliance in areas already regulated. (10) Individuals are
uniquely qualified for this role. As ever-present observers in their local communities, citizens are
particularly good at identifying unusual occurrences. They may, for example, notice the presence
of an oil sheen on a river, an unusually serious emission from a smokestack, or the activity of a
developer in a swamp. These occurrences might escape the government enforcer unfamiliar with
community conditions and unequipped to perform frequent field investigations. Citizen monitoring
can occur informally, as a result of chance observations of individuals in their communities.
Citizens can also monitor on a more regular basis through community, regional, or national
environmental organizations.
Such citizen participation in information-gathering and reporting efforts is critical if
enforcement goals are to be met. The sheer size of environmental problems and the increasing
demands on limited government resources combine to make environmental agencies woefully
unequipped to perform all necessary investigatory and monitoring duties. In the United States, for
example, over 60,000 permits have been issued under the Clean Water Act alone -- only one of
several environmental protection statutes - and government funding for enforcement efforts has
consistently fallen throughout the last decade. (11) Government agencies simply cannot take
full responsibility for gathering the information necessary for effective environmental enforcement.
2.1.1 How to Assemble Information
2.1.1.1 Physical Observation
Methods of collecting valuable environmental data are numerous. One way is to gather
information from physical observation. For example, some organizations in the United States
have begun "harborwatch" programs to identify oil spills or other emissions in local
harbors. (12) Others teach citizens to "walk" streams, identifying locations of pollutant
emissions and observing the effects of these emissions on water quality or indicator
species. (13) Although detailed scientific monitoring of pollutants is too expensive and
complex for most individuals to undertake, certain simple tests (judging the density of plumes of
air pollutants, for example) can be learned by citizens. (14) Violations identified through
these information-gathering activities can then be reported to environmental organizations or
government agencies or can be publicized through the media.
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Because of the benefits that can be gained from citizen monitoring, government often
chooses to promote these activities. Government support may range from establishing an office
to receive reports of violations to providing funding for citizen groups collecting environmental
information. Through such programs, federal and state government agencies in the U.S. have
been able to accomplish monitoring that would otherwise be impossible by tapping into the time
and energy represented by concerned individuals.
Although many environmental problems are obvious from a distance, it may be difficult for
citizens to acquire detailed information about threats to the environment that can only be
perceived at close range. Sometimes citizens can take advantage of public access to natural
resources to scrutinize potential violations. For example, in the United States, the public is
allowed access to rivers, streams, and beaches, and can use those routes to approach and
examine points of pollution emission. (15) If access via public waters is not possible, a more
costly alternative for obtaining information would be to take to the open skies to monitor pollution
emissions or the management of natural resources from the air. (16)
In most cases, however, the activities that threaten to violate environmental controls will
take place on private property to which citizens will not have direct access. One approach to
encouraging citizen involvement in environmental enforcement would be to permit citizens to
enter private property to undertake environmental monitoring when warranted by a serious threat
to public health. Another option would be to allow citizens to assist the government in carrying
out its own environmental monitoring activities. For example, water quality legislation in Argentina
allows private parties who have filed a complaint about a facility to participate in any inspection of
the facility during the investigation. (17)
Another means of obtaining access to private property for monitoring purposes is for a
citizen to file a lawsuit against an alleged violator. In the United States, filing such a lawsuit
allows a plaintiff to conduct discovery on topics relevant to the case - including, in lawsuits
brought to enforce environmental laws, the extent of the pollution caused by the alleged violator.
As part of this discovery process, the court can order the defendant to admit the plaintiff to its
property to collect such information. (18)
2.1.1.2 Use of Government Information
Citizens can also gather data about environmental violations through the use of
information collected by the government, either through its own efforts or by means of reporting
requirements imposed on polluters. In the United States, for example, many federal and state
environmental regulations require regulated parties to submit periodic reports about their pollution
emission levels or their storage, use, and discharge of hazardous materials. (19)
In order for the information gathered by the government to benefit the public, citizens must
be afforded access to that information. Several means of citizen access to government-held data
are provided in the U.S. Some U.S. environmental statutes that impose self-monitoring and
reporting requirements also require the data reported to be made publicly available. In addition,
the federal government is subject to a generalized information access law, under which the public
can ask to review or copy certain information in the possession of government agencies. (20)
Finally, for citizen monitoring to be truly effective, it is important that citizens be able to compare
the monitoring reports against clear compliance standards, such as individualized permits or
regulatory limits. (21) These standards must also be publicly available.
2.1.2 How to Use Information
Once citizens have gathered environmental data and sifted through it to identify violations,
they may put their information to a number of uses. One possibility would be to approach the
violators directly in an attempt to induce voluntary compliance. Publicizing the violations in the
press or through community meetings could create pressure on industrial polluters to comply.
The citizens could also choose to alert the government to their findings. In the United
States, most state and federal agencies are set up to receive information reported through both
formal and informal citizen monitoring. (22) Of course, there is no guarantee that agencies
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can or will act on the report of a citizen. If the government decides that enforcement proceedings
are warranted, however, information gathered by citizens -- or testimony about observations by
citizens -- may be used in court as evidence against the violators. Under some U.S. statutes, if
the information provided leads to a criminal conviction or civil penalty, the government may
reward the reporting citizen with up to $10,000. (23)
Alternatively, citizens may be able to use the information they have collected by going to
court themselves to enforce environmental controls. (24) For example, after collecting and
analyzing a large volume of water pollution reporting data, one U.S. environmental organization
filed a series of lawsuits against industrial polluters who were violating toxic discharge limits
contained in their permits. This concerted litigation effort was largely responsible for the initial
growth of citizen suits in the United States in the mid-1980s. (25) Considerations relevant to
determining how citizens might be able to advance environmental enforcement goals through the
court system are discussed in more detail in Section 3 of this paper.
2.2 Participation in Government Regulatory or Enforcement Action
A second avenue of citizen involvement in environmental enforcement enlists the
resources of citizens to complement agency regulatory or enforcement efforts. In this context, the
government will have chosen a particular vehicle for accomplishing environmental protection
goals, and the citizen will bring his or her viewpoint to bear in ensuring that the government's
actions are as well-informed and effective as possible.
2.2.1 Commenting on Regulations and Permits
A government agency charged with administering an environmental statute may have
decided to issue a regulation setting specific standards by which to achieve the goals spelled out
in the law. Or the agency may have already established such standards, and it may be working
within them to determine the content of a particular polluter's environmental permit. Allowing the
public to comment on proposals for regulations or on the terms and conditions of permits may aid
in future enforcement activities. The public can contribute practical knowledge of real-world
conditions that will help the agency to devise rules or issue permits that are feasible and effective.
In addition, the public can review the regulations and permits with an eye towards future
enforcement efforts and ensure that the regulations and permits contain clear standards and
procedures that will ensure simple and effective enforcement. (26)
2.2.2 Participating in Government Enforcement Actions
If the government has chosen to bring an enforcement action against an alleged polluter, a
citizen can still play a role in the enforcement process. Several mechanisms exist in the United
States that permit citizens to make their views known during enforcement proceedings. For
example, citizens may intervene in suits brought by the government against potential violators.
By joining a lawsuit as an interested party, a citizen would not have primary responsibility for
prosecuting the case, but could still take part in negotiations and make his or her perspective
known to the judge. Because the court may be reluctant to strain judicial resources by allowing
unrestricted participation in the lawsuit, the right to intervene might normally be limited to citizens
with tangible interests in the outcome of the case. (27) However, most U.S. environmental
statutes that authorize citizen enforcement suits also grant citizens the right to intervene in
government enforcement proceedings. (28) In any event, even citizens with purely
ideological concerns can participate in a case by filing non-binding amicus curiae, or friend-of-the-
court, briefs setting forth tneir positions.
2.2.3. Reviewing the Terms of Consent Decrees
Finally, the filing of a lawsuit, or even the threat of a lawsuit, by the government will
typically lead to negotiations between the government and defendant. In many cases, the parties
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can agree on a settlement without resorting to a court adjudication. In enforcement actions, these
agreements, called consent decrees, are usually entered with the court as a sort of contract
between the parties and have the same enforceable effect as a court judgment. If a citizen has
intervened in the case, that citizen will be a party to the consent decree and will be involved in
the settlement negotiations. (29) Even when a citizen is not actively participating in the case,
the government prosecutor may be required to publish the proposed consent decree and request
public comment on the decree. (30) Any comments by the public on the decree can be filed
with the court, which will take them into account in approving or rejecting the agreement.
2.3 Recourse to Courts When Government Is Unwilling or Unable to Act
A third category of citizen involvement consists of instances in which the public may seek
direct access -to the courts to accomplish environmental enforcement objectives. For example,
citizens may go to court to prompt tardy government regulatory action. The defendant in such a
case would be the responsible government agency, in its capacity as a regulator.
Alternatively, citizens may mount enforcement actions against violators of environmental
controls when the government lacks the desire or the ability to prosecute. In the course of its
operations, the government itself may engage in conduct that harms the environment. This is
particularly true in countries, such as the post-communist nations in Central and Eastern Europe,
in which industry and property ownership have been nationalized. Therefore, the defendant in an
enforcement suit could be either a private party or a government agency acting in its proprietary,
rather than its regulatory, capacity.
2.3.1 Lawsuits Pressuring Agencies to Regulate
2.3.1.1 Non-Discretionary Agency Decisions
Most environmental protection statutes in the United States set forth general goals or
objectives, while delegating to an administrative agency the responsibility of implementing those
general goals through regulations and the issuance of permits. For example, a statute may direct
that discharge of toxic pollutants into surface waters be reduced by a certain percentage, and it
may charge the agency with the tasks of defining which pollutants are covered by the directive
and approving plans to achieve the specified goal. If the agency does not perform its obligations
under the statute, the target set forth in the law will never be achieved. One essential role of
citizens may be to ensure that agencies carry out the tasks the legislature has assigned to them.
Citizens could be permitted to fulfill this role in several ways. One way would be to allow
citizens to go to court to force agencies to perform their specific statutory assignments. Several
U.S. environmental statutes contain provisions allowing citizens to seek judicial review of an
agency's failure to act as the legislature has instructed. (31) These provisions permit "any
person" to bring suit against an agency for failure to perform an act or duty which is not
discretionary under the statute - i.e., for not doing something that the statute says the agency
"shall" do. (32) The citizen must notify the agency before bringing the suit to give the
agency an opportunity to avoid litigation by performing the required regulatory action. If the
citizen wins the suit, the court may order the agency to perform the act or duty it has
delayed. (33)
2.3.1.2 Discretionary Agency Decisions
Although the mechanisms described above allow citizens to require government action in
cases where the legislature has mandated it, they do not necessarily extend to situations in which
the decision whether or not to regulate is within an agency's discretion. Nor do they allow
citizens to prescribe the content of the regulatory action taken by the agency. In the United
States, citizens can challenge discretionary agency decisions about whether and how to regulate,
either under particular environmental statutes or under a generalized act governing the
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procedures to be followed by administrative agencies. (34) However, prevailing in these
discretionary suits is difficult. Typically, an agency's substantive decision wilt be reversed only if
it is found to be "arbitrary and capricious" or if it is "contrary to law." Courts have interpreted the
"arbitrary and capricious" requirement as warranting reversal of an agency action only when the
action lacks any reasonable basis in fact. Moreover, U.S. courts tend to defer to agency
decisions in matters within the regulatory expertise of the agency. Courts will even defer to a
"reasonable" agency construction of the statute the agency is administering, barring clear
statutory language to the contrary. (35)
Even though it may be difficult for citizens to succeed in such suits by challenging the
substantive outcome of a discretionary agency decision, challenges to the method by which the
agency reached its conclusion may be more promising. Experience in the United States has
shown that courts will defer to agencies' substantive decisions, but only if they are sure that the
agency has taken a "hard look" at the available options. If the decisionmaking process appears
sloppy, or if the views of certain constituencies have been entirely ignored, the court may find that
the agency has acted in an "arbitrary and capricious" manner. The threat of citizen challenges to
discretionary decisions is thus an effective means of ensuring that agencies at least consider the
perspective of the public in their decisions. (36)
2.3.1.3 Enforcement Decisions by the Agency
In the United States, the reluctance of courts to infringe on the discretion of government
agencies has also precluded the public from contesting an agency's decision not to take a
particular enforcement action. Federal and state agencies in the United States enjoy the doctrine
known as "prosecutoria! discretion," which leaves the decision whether or not to enforce a
requirement against an individual entirely to the judgment of the prosecuting party. (37)
Even though citizens cannot force agencies to take enforcement action, they may be able to take
on the role declined by the agencies and sue the violators themselves. (38) These citizen
enforcement actions are discussed in Section 2.3.2 below.
2.3.2 Lawsuits Pressuring Others to Comply with Laws, Regulations, and Judicial Standards
If the government has made clear its intention not to prosecute, or even simply if a citizen
has a personal stake in a matter that a remedy provided under an environmental statute cannot
adequately satisfy, the citizen may decide to enforce environmental controls against a violator. In
the United States, citizen enforcement of environmental controls can be pursued directly by
means of citizen suit provisions contained in particular environmental protection statutes.
Even in the absence of a statutory authorization of citizen suits, opportunities exist for
citizens to obtain judicially-enforced sanctions against industrial or government polluters.
Countries with systems of rights and remedies that have evolved from a tradition of case-by-case
adjudication, such as the United States or Great Britain, offer "common law" causes of action to
protect against or redress environmental harms. And in other countries whose legal system is
based on a civil code, that code may provide general environmental rights that can serve as the
basis for judges to remedy environmental harms in particular cases.
2.3.2.1 "Citizen Suits" or "Enforcing Suits"
One method of harnessing the energy and commitment of citizens to effectuate public
environmental protection goals is to authorize citizens to enforce environmental laws and
regulations. In the United States, most environmental statutes contain "citizen suit" provisions
enabling citizens to prosecute violators of the statutory regime. (39)
Such citizen suit provisions have their roots in over two hundred years of U.S. law. Since
1790, United States citizens have been able in limited cases to sue to vindicate certain public
rights - those granted by statute to the population as a whole. (40) These citizen suits have
been used to enforce federal regulations in diverse areas ranging from antitrust to consumer
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protection. (41) Citizen suit provisions are said to create "private attorneys general," for they
confer upon the individual the right to enforce public laws against other citizens.
Although the concept of a citizen suit is not new, the statutes permitting citizen
enforcement of environmental laws and regulations are unique. In most other areas where citizen
suits are permitted, a personal economic interest, such as an interest in correcting unfair
competition or preventing fraud, must coincide with the claimed public rights. In citizen suits
brought under environmental protection statutes, however, there is no such personal economic
stake in the outcome. The environmental statutes truly provide citizens with the authority to
represent the interests of the public. Environmental citizen suits, in their strongest form, might
even be characterized as permitting citizens to sue on behalf of the environment itself. The
United States is almost unique in this grant of power to the private citizen: Few other nations
have extended such rights. (42)
The U.S. Clean Air Act (CAA), enacted in 1970, was the first federal environmental statute
of the modern era with a citizen suit provision. The CAA provision's underlying structure is the
basis for citizen suit clauses in almost every other major piece of federal environmenta!
legislation. Today, citizens can bring suit against private parties and government for violations of
certain sections of statutes regulating air, water, toxic waste, endangered species, mining, noise,
the outer continental shelf, and more. (43) Under many statutes, the remedies available to
the citizen are equivalent to those granted to the federal agency charged with administering the
statute. (44)
The basic citizen suit provision permits any "person" (including an individual, organization,
or corporation) to sue any other "person" (including the United States) who is violating the
requirements of the given Act. Before filing suit, a citizen must notify state and federal agencies
as well as the alleged violator that a lawsuit is impending. This notice provision serves an
important purpose, because the threat of a citizen suit often prompts the violator to halt its
violations, or at least to negotiate with the potential plaintiff. As long as the violation continues
and the state or federal government is not pursuing a "diligent enforcement" action against the
alleged violator in court, a lawsuit may be filed. Once the suit is filed, the government has no
power to dismiss it, and may affect the outcome only by intervening in the case.
If the citizen wins, the court may order the defendant to stop the violating activities. In
certain circumstances, the court costs and attorney fees associated with bringing the action may
be awarded to the plaintiff. Some statutes allow the plaintiff to ask the court to impose civil
penalties upon the violator, payable to the U.S. Treasury. (45)
2.3.2.2 Common Law or Civil Code Suits
Even in the absence of mechanisms for enforcing specific environmental controls set forth
in a system of statutes and regulations, citizens can still achieve environmental protection
objectives in the courts. Both common law systems such as that in the United States and the
civil code systems that prevail in many other countries provide latitude for judicially-developed
methods of remedying environmental harms. Under these systems, environmental controls are
not enshrined in statutory or regulatory standards, but are developed on a case-by-case basis by
courts applying general legal principles to the facts of each lawsuit. A receptive judiciary can
employ the flexibility inherent in such systems both to offer citizens redress for environmental
degradation that injures them individually and to correct harms to public environmental interests.
2.3.2.2.1 Common Law Suits
Prior to the adoption of recent environmental statutes in the United States, the only way in
which a private citizen could prevent environmental harm through the courts was by exercising his
or her rights under common law. These rights are based on precedents set during centuries of
case-by-case adjudication in Great Britain and the U.S. They allow individuals to counteract
harms caused by the behavior of others by seeking compensation for those harms and/or
obtaining a court order halting the offending behavior. Even with the advent of statutory citizen
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suit provisions, common law causes of action continue to provide an important mechanism for
achieving environmental protection goals.
Most common law environmental claims require some injury or threat of injury to the
plaintiff's person or property. The most common "environmental" common law action is that of
private nuisance. A person suffering a "substantial and unreasonable interference with the use
and enjoyment of an interest in land" can bring a private nuisance suit. For example, a property
owner could sue a neighboring factory for emitting dangerous or even annoying fumes that
permeated his or her property. Another common law claim for injury to property is trespass,
which requires an actual physical invasion of the property's limits. A fuel storage facility whose
tanks leaked oil that flowed into a neighbor's fish pond might be liable to the pond-owner in a
trespass suit.
Common law actions can compensate for injury to one's person as well. For example,
someone who lives near a toxic waste dumping site, and who becomes sick from fumes
emanating from the site, may be able to sue the owner of the site on the basis of that injury. If
the plaintiff joins together in one lawsuit with other citizens living near the site who have suffered
the same damage, the resulting "class action" lawsuit can have a significant effect on the
polluter's behavior.
The potential strength of such common law suits as a weapon in the environmental
enforcement arsenal stems from the financial costs they can impose on a violator. Common law
claims are the only avenues through which individuals can recover for damage to themselves or
their personal property. And damages awarded in such suits in the U.S. can be substantial. For
example, a potential court judgment for personal injury resulting from toxic pollution could include
compensation for medical expenses, lost wages, and diminished earning capacity. Damages in a
common law suit involving a newborn baby who will be permanently disabled by injuries caused
by the defendant's polluting activities could easily amount to millions of dollars. (46) The
threat of a sizeable award of damages can substantially strengthen a citizen's power to trigger
compliance -- it can deter potentially polluting activities and force industry to pay attention to
citizens' claims.
The common law actions described are aimed primarily at correcting violations of
individual rights. By fining a defendant for such violations, or by ordering a halt to the offending
activity, they can lead to broader environmental benefits as well. The common law also provides
mechanisms through which citizens can vindicate public, rather than private, rights. These
doctrines generally require that the plaintiff share some personal stake in the "public" goal
pursued in the suit; moreover, they do not allow the plaintiff to recover money damages from the
defendant unless the plaintiff has suffered injury to his or her person or property. Nonetheless,
the doctrines of public nuisance, public trust, and certain broad statutory mandates reveal some
of the possibilities inherent in the flexibility of judge-made law.
Public nuisance involves interference with public rights such as the right to health, safety,
or comfort. Traditionally, only the government could sue to protect these rights. Recent
developments, however, allow suits by individuals who suffer "special injury" different in kind from
that suffered by the rest of the public. (47) A second common law action that recognizes
communal rights is known as the "public trust" doctrine. This doctrine posits that the government
must hold public lands and natural resources in trust for the use and enjoyment of the citizens. If
the government fails to consider this trust in its management and maintenance of resources like
navigable waters, fisheries, or parklands, individual citizens may sue those in control of the
lands. (48) While the doctrine is, at first glance, not applicable to privately-owned land, some
state and federal courts have hinted that a regulatory or contractual link between the landowner
and the government may be enough to bring the doctrine into play and to render the landowner
liable for environmental harms. (49)
Finally, some U.S. states have explicitly recognized public rights to environmental quality
in their statutes and constitutions. Most constitutional provisions have been ineffective, because
they do not permit citizens to sue for the violation of their constitutional environmental rights.
Michigan's unique Environmental Protection Act, adopted in 1970, has been more successful.
The Act permits any person to sue any other person "for the protection of the air, water and other
natural resources and the public trust therein from pollution, impairment or destruction." (50)
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It grants courts broad powers of review of both individual and agency actions, and permits orders
altering or halting the harmful activities unless there is no "feasible and prudent alternative
consistent with the reasonable requirements of the public health, safety, and welfare." Michigan
courts have interpreted the Act as conferring upon them the responsibility of creating "the
equivalent of an environmental common law." (51)
2.3.2.2.2 Civil Law Suits
Civil code countries also offer judicially developed remedies for environmental harms. In
civil code countries, standards governing environmental quality are codified, and judicial
precedent is not as important as it is in common law systems. At the same time, however, code
provisions relevant to environmental quality are usually general in nature, and thus are open to
interpretation by judges applying the provisions in particular cases.
Most civil code standards that can protect environmental quality are similar to those
available under common law, especially those actions preventing or recovering for harm to
property or person. (52) Many civil codes also contain provisions that appear to go further
than the common law in granting individuals the right to enforce public environmental interests.
For example, Hungary's code allows individuals to sue others for violating an obligation not to
behave so as to disturb others needlessly, "especially neighbors." The "neighborhood"
encompassed by this provision is not restricted to property immediately adjoining the site of the
polluting activity, but includes anyone affected by the pollution. (53)
!n Colombia, the civil code provides for "popular actions," which permit citizens to sue for
damages to communal environmental rights. (54) And in Argentina, courts have made use
of a constitutional guarantee called amparo, which can be loosely translated as "protection," to
defend individual or collective environmental rights derived from statutes, international treaties, or
the constitution itself. (55)
3 THE STRUCTURE AND FUNCTION OF COURT ACCESS MECHANISMS
The court actions described above can be potent methods of achieving environmental
compliance. They may not be appropriate in every case, however. For one thing, going to court
will not always be a feasible option. Mounting a private lawsuit is a costly undertaking. It will
probably require hiring an attorney, paying court filing and transcription fees, generating and
duplicating legal briefs and other documents, and conducting extensive discovery to assemble the
facts necessary to prove one's case. These efforts may exceed the capability of a private citizen.
Frequent recourse to litigation as a method of achieving environmental compliance can
pose societal disadvantages as well. Some commentators in the United States have complained
that public interest lawsuits create a logjam in the courts and strain overtaxed judicial resources
with frivolous or peripheral claims. Others daim that promoting litigation as a preferred alternative
for citizen involvement in environmental enforcement creates an atmosphere of adversarial
hostility that may discourage future cooperation.
Despite these potential limitations, the ability of citizens to obtain judicial relief from
environmental harms can be a valuable enforcement tool. First, citizen access to court remedies
improves the quality and fairness of the enforcement process. Allowing citizens into court helps
to guarantee that other important players in the political system -- such as industry and
government -- will give citizen viewpoints their due. Without such a guarantee, the voices of
citizens advocating environmental protection may be drowned out. For example, a large business
engaging in polluting activities may be inclined to disregard the views of local citizens who want
to impose pollution curbs. The government, in turn, might give citizen comments during
regulatory proceedings less weight than those of industry, whose lobbyists may be more vocal
and well-financed and who may have developed ties to the regulators.
Citizen suits can serve as the microphone that helps citizen views to be heard. Before the
court, all litigants are equally deserving of a fair hearing in each case. A citizen with access to a
court action can invoke the power of the judiciary in the service of her cause. The availability of
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an enforcement suit enables individuals and organized citizen groups to secure treatment as
equals by government and industry. Opening the courthouse door to citizens thus promotes the
rule of law over the rule of politics and advances the common goal of environmental protection.
Enabling citizens to implement environmental protection objectives in the courts also
reinforces other forms of citizen participation in environmental enforcement. For example, citizens
may prefer to focus primarily on participation in government regulatory or permitting processes in
the ways discussed in Section 2.2.1 above. The knowledge that citizens can challenge the
government's outcome in court may increase the agency's attentiveness to such comments and
enhance the usefulness of the public's efforts. Ensuring that citizens will be heeded increases
the value of their message, whatever mechanism they may choose to convey it.
Finally, allowing citizens to sue can have concrete effects on a society's progress towards
implementing environmental controls. Actual litigation need not even occur in order to achieve
this result. The very possibility of an enforcement suit against a violator may be sufficient to
trigger compliance, influence industry to enter into a negotiated agreement with the citizens, or
otherwise induce a polluter to alter his behavior, thus obviating the need to sue at all. Experience
in the U.S. with citizen suit provisions has revealed that the mere notification to a violator that a
citizen intends to sue often prompts the potential defendant to cease the violations.
3.1 Why Sue?
Whether a citizen will need to have recourse to the courts, and if so, through what
mechanism, will depend on what that citizen hopes to achieve. For example, a citizen may be
motivated to respond to environmental harms by seeking money for herself or for the government.
The citizen may want the government to take some sort of regulatory action. Or she may simply
want to put a halt to the polluting activity.
Given the cost and effort involved in bringing suit, citizens may prefer to explore other
methods of attaining their objectives. For example, a civic group targeting permit violations by a
local industrial water polluter might first try to induce voluntary compliance by confronting the
polluter directly. If that effort did not succeed, the group could approach the local media with
information it had collected about the violations, hoping to embarrass the polluter into compliance.
An alternative step might involve forwarding evidence to the government for enforcement action.
If these various approaches were not successful, the civic group could file a court
complaint against the polluter under an environmental statute containing a citizen suit provision.
Even that course of action might well stop short of a trial or other judicially determined outcome.
Merely notifying a polluter or a government regulator that a lawsuit is impending, as most citizen
suit provisions require, often triggers "voluntary" compliance by the polluter or regulatory or
enforcement action by the government. The prospect of court action may also prompt the parties
to settle the case between themselves rather than engaging in expensive and time-consuming
litigation. Settlement substitutes a definite, certain result for the unpredictable risks of a trial. (56)
In the United States, litigants have found this trade-off appealing: over 90 percent of the lawsuits
filed in the United States are resolved without a trial. (57)
3.2 What Kind of Lawsuit to File?
The objective of a potential citizen plaintiff -- the legal "remedy" the plaintiff desires to
obtain -- will determine both the range of available litigation strategies and the way in which the
case will proceed. A political system is likely to impose controls on a citizen's access to
remedies that will vary with the nature of the remedy itself. The structure imposed by the
government, in turn, will influence the citizens' enforcement strategies. This section surveys the
various methods in which a citizen may be able to achieve a particular enforcement goal.
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3.2.1 Lawsuits to Obtain Money Damages
3.2.1.1 The Nature of the Remedy
One goal of a citizen lawsuit might be financial compensation to the citizen for
environmental harm caused by a polluter. It may be appropriate to set relatively strict limits on
the ability of a plaintiff to obtain such compensation. Those responsible for designing and
implementing a system of judicial enforcement may decide that financial benefits should only
accrue to someone who has actually suffered from the complained-of harm.
In the United States, for example, a litigant seeking money damages for environmental
harms is limited to the common law causes of action described above in Section 2.3.2.2.1, which
generally require an actual injury to the plaintiff's person or property. The U.S. government has
chosen not to supplement that avenue with a statutory damages remedy. Because citizen suits
under environmental statutes are designed to vindicate public rather than private rights, they do
not allow plaintiffs to recover any personal damages for violations of environmental laws and
regulations. (58)
3.2.1.2 The Elements of the Case and the Method of Proof
In order to win damages in a suit at common law, a plaintiff is required to establish several
elements. The plaintiff must prove that the defendant has violated an expected standard of
conduct - by intentionally or negligently acting in a manner likely to result in harm, for example.
The plaintiff must also establish that the defendant's behavior has caused actual damage to the
plaintiff. This element of causation can be especially difficult to prove. In the case of injury to
health resulting from toxic pollution, a plaintiff may have to supply scientific evidence and analysis
establishing a physical link between the particular polluting activity and the harm. The long
latency period that may intervene between a release of toxic substances and the manifestation of
a resulting injury contributes to the difficulty of proving this element. (59)
In a private nuisance lawsuit, a plaintiff would also be required to establish that the harm
resulting from the defendant's conduct outweighs the social utility of the polluting activity. This
too can be a heavy burden, because it may force the court to weigh the plaintiff's right to grow
crops that are free from pollution damage against the community's desire to retain the jobs
created by the defendant's polluting factory.
In some instances, a system of government might conclude, the public interest warrants
reducing the burden of proof on a plaintiff seeking financial compensation for harms caused by
polluting activities. In the United States, courts responsible for developing and interpreting the
common law have made several such adjustments. One example is the creation of different rules
of liability for what courts have determined are "abnormally dangerous activities," such as the
transportation of hazardous waste. Courts have concluded that the defendant conducting
abnormally dangerous activities has voluntarily taken on the risk of causing harm to others. The
defendant thus should be "strictly liable" for the resulting damage, even when the defendant's
actions were not negligent or intentional.
Judicial rules can also lessen a plaintiff's burden of proving the causation element of a
common law damages case. For example, a judicially established presumption that certain kinds
of polluting activity cause certain kinds of physical damage might allow a plaintiff to recover
without proving conclusively that the defendant's practice was the actual cause of her injury. (60)
The existence of statutory or regulatory environmental standards can assist a plaintiff as
well. Federal or state statutes regulating toxic chemicals may serve as evidence of the
chemicals' toxicity. In addition, violation of the regulatory requirements can demonstrate
negligence on the part of the defendant Similarly, "right-to-know" laws often require companies
to revea! to workers and communities the dangers associated with any toxic chemicals that the
companies store, use, or release. A judge may conclude that this statutory reporting requirement
assigns to the defendant a duty to warn the plaintiff of known hazards, and that violation of the
requirement breaches that duty. (61) Environmental standards enacted by the legislature
and refined by administrative agencies can thus influence the development of judge-made law.
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3.2.2 Lawsuits to Halt Violations
3.2.2.1 The Nature of the Remedy
A plaintiff whose desired remedy is a court order requiring a polluter to stop the polluting
activities may be offered more avenues for judicial relief and may face fewer hurdles to recovery.
in the United States, this form of remedy is termed an injunction. It is the most likely outcome of
a successful suit to enforce public rights, either under the common law or under an environmental
statute. An order barring or otherwise limiting future environmentally harmful activity may also be
the outcome of an environmentally-based suit in a civil code system.
3.2.2.2 The Elements of the Case and the Method of Proof
Injunctive relief may be sought in an action at common law to enforce either private or
public rights. In such a case, liability will be established in the manner discussed in Section 3.2.1
above. A citizen can also seek an injunction by suing under an environmental statute that
contains a citizen suit provision.
In cases in which the citizen is acting as the enforcer of a federal statute by asking a court
to prohibit behavior that violates the statute's terms, the citizen's burden of proof in court may be
lighter than that required in a common law action for damages. In most cases, the citizen may
need to prove only that certain statutory or regulatory controls or limitations are in force and that
the defendant has failed to adhere to them. (62) In actions brought to enforce statutes that
require regulated entities to report regularly to the government on their regulated activities, such
as the U.S. Clean Water Act, proof might consist simply of the defendant's own reports. These
reports may reveal violations of applicable emission limits or permit conditions.
In establishing the requirements governing the conduct of a statutory citizen suit, a
government may want to ensure that citizen suits encourage, rather than impede, both voluntary
compliance and government enforcement efforts. Therefore, most citizen suit provisions in U.S.
environmental statutes contain notice requirements and "diligent prosecution" limitations.
Before a citizen suit may be filed under a U.S. environmental statute, advance notice of up
to 120 days must be given both to the alleged violator and to state and federal environmental
officials. (63) The notice to the alleged violator allows it to examine its own record, to enter
negotiations for settlement, or to come into compliance before being faced with the legal
requirements that come with the filing of a lawsuit. If the defendant halts the offending actions
upon receipt of notice, then the plaintiff may no longer file the lawsuit.
The notice provision also places some check on the ability of citizens to bring suit. If state
or federal agencies would rather prosecute the violation themselves, the notice allows them an
opportunity to do so, thereby preventing the citizen from filing suit. The statutes prohibit citizens
from filing enforcement suits if the government is "diligently prosecuting" a case against the
alleged violator. (64)
Once the citizen plaintiff has proved a violation of law, she must still establish her
entitlement to injunctive relief. Traditionally in the United States, a court asked to issue an
injunction must first balance the plaintiff's need for the injunction, the harm the injunction might
cause the defendant, and the effect of the injunction on the public interest. The outcome of this
balancing process is likely to depend on the nature of the right the plaintiff is seeking to enforce.
In a lawsuit brought to enforce an environmental protection statute, the very enactment of
the statute supplies a presumed public interest in environmental protection. In addition, the
remedy requested confers a public, not a private, benefit. Indeed, some U.S. plaintiffs have
argued that if an environmental statute is violated, a court must issue an injunction. (65) The
present consensus, however, is that most U.S. statutes merely require that a court bring about
compliance, and endow the court with the discretion to select the appropriate method of achieving
that goal. (66) This process often involves a judicial balancing of the private interests
involved, but with an overall eye to the public interest in preventing environmental damage. For
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example, a judge might not close down a polluter on the basis of a minor permit violation, but
might rather impose on the violator a deadline for attaining compliance.
A similar application of the balancing approach is likely in a common law suit to enforce a
public right, such as a suit based on public nuisance or the public trust doctrine. Injunctive relief
is also available in a common law cause of action brought to redress a private environmental
injury, such as a private nuisance suit. However, because there is no presumed public interest in
the outcome of such an action, and because a private common law action is brought for the
personal benefit of the plaintiff rather than in the public interest, it may be difficult for a private
common law plaintiff to obtain injunctive relief. Instead, a court may decide that an award of
damages adequately compensates the plaintiff for any injury sustained. (67)
3.2.3 Citizen Enforcement Suits Seeking Civil Penalties
3.2.3.1 The Nature of the Remedy
Another potential remedy that can shape the course of litigation is the imposition of
monetary penalties on a violator. These penalties, payable to the government, are designed to
punish the violator, to eliminate any profit earned by the violator due to the polluting activities, and
to compensate for the environmental harms caused by the violator's actions. (68) The
imposition of monetary penalties has traditionally been reserved for government enforcement
agencies. In the United States, however, a limited number of environmental statutes contain
provisions allowing citizens to seek civil penalties in suits brought to enforce the statutes.
Because this remedy provides a public benefit, it is not an available remedy in U.S. common law
actions. In statutory enforcement lawsuits, the requisite cause of action and burden of proof for
recovery of civil penalties are the same as for other statutory citizen suit remedies.
The U.S. Clean Water Act and Resource Conservation and Recovery Act have included
civil penalty provisions in their citizen suit clauses for several years, and a similar provision was
added to the Clean Air Act in 1990. (69) While the United States government can request
civil penalties under many other statutes, (70) only these three acts also permit citizens to
request that the penalties be assigned. In some environmental laws these statutory penalties can
amount to $25,000 per day, per violation. (71)
By permitting individual plaintiffs to request civil penalties ranging into the millions of
dollars, the citizen suit provisions have granted the public significant power over alleged violators.
This power has caused heated debate in the United States. Supporters argue that plaintiffs will
initiate suits only if they have enforcement powers equivalent to those of the government. The
ability of citizens to seek civil penalties can improve their bargaining position in settlement
negotiations, and may increase the overall success of citizen enforcement programs. Permitting
civil penalties in citizen suits also equalizes the enforcement powers of government and the
citizen. This equality ensures some consistency in enforcement practices, treats violators equally,
and prevents violators from evading full enforcement by "shopping" for citizen rather than
government enforcement actions.
Those who oppose allowing citizens to request civil penalties claim that conferring this
power on citizens invites abuse and threatens to undermine the traditional structure of
government. In the view of these critics, suits for civil penalties serve the national interest in law
enforcement, an interest traditionally confided to the jurisdiction of the executive branch of
government. Assignment of the power to exact civil penalties to anyone other than an executive
branch official thus arguably violates the constitutionally-established balance of powers among the
branches of the federal government. (72)
In several citizen suit settlement agreements under the Clean Water Act. the alleged
violators have avoided the infliction of civil penalties by instead paying a sum of money to a third
party environmental organization or to an otherwise environmentally beneficial project. For the
parties, these are win-win arrangements. The defendant pays less than it might have had to in
civil penalties, and the citizen plaintiff (or environmental organization) benefits indirectly through
the payment of funds to a "public interest" organization.
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To critics, these "environmentally beneficial expenditures" suggest extortion, draw funds
away from the U.S. Treasury, and diminish the overall level of environmental
enforcement. (73) The federal government has looked upon settlements involving third-party
payments with some suspicion, and carefully examines consent decrees containing payments to
environmental organizations. However, courts have upheld consent decrees containing such
payments. (74)
"Environmentally beneficial expenditures" have the potential to aid in achieving
environmental compliance. The availability of such third party payments may encourage
defendants to enter into settlement agreements. Because these payments can be characterized
as "voluntary," in contrast to the coercive and punitive aspect of civil penalties, they may be
relatively palatable to defendants. On a symbolic level, an agreement to pay environmentally
beneficial expenditures does not brand the contributor as a guilty party as civil penalty payments
might. Such expenditures offer financial advantages as well: Unlike civil penalties, they may be
tax-deductible as business expenses. (75)
Civil penalty assessments have had an important effect on the number and effectiveness
of citizen suits in the United States. The ability to request civil penalties improves the citizen's
bargaining position. It offers citizen plaintiffs a simple means of punishing and deterring future
violators. As suggested by the large number of citizen enforcement cases under the Clean Water
Act, these effects, in combination with clear standards and self-reporting requirements, make the
civil penalty provisions a significant incentive to bring citizen suits. (76)
3.2.4 Suits to Influence Government Action
3.2.4.1 The Nature of the Remedy
Finally, the remedy a citizen litigant may desire is the accomplishment of a particular
regulatory action by the government. The plaintiff may hope to force the agency to perform a
task the legislature has assigned to it. In such cases, barriers to suit will likely be minimal,
because the private party is simply forcing the agency to initiate an action the legislature has
already endorsed, not attempting to dictate the way in which the action should be carried out or
the action's end result.
3.2.4.2 The Elements of the Case and the Method of Proof
In the United States, a litigant seeking to trigger a non-discretionary agency action will
need to establish only the existence of a statutory duty and the agency's failure to perform that
duty. (77) In cases in which the litigant is attempting to influence the content of agency
action, however, more deference to the agency's presumed regulatory expertise may be
warranted. In practical terms, this deference will be carried out through the standard of review a
court employs in assessing the challenged agency action. As discussed in Section 2.3.1.2 above,
it is likely that a U.S. plaintiff taking issue with discretionary agency action will have to convince a
court that the action was "arbitrary and capricious" -- a standard difficult to meet. Even though
judicial review of substantive agency action does not often succeed in overturning an agency's
result, it may force the agency to be more careful about the procedures it employs in reaching
that result.
3.3 Who Should Be the Parties to the Suit?
An important consideration for a political system setting up and administering methods for
citizens to enforce environmental standards in the courts is the identities of the appropriate
plaintiffs and defendants. A society may want to ensure that a plaintiff who is asserting a public
environmental right will represent that public interest fairly and thoroughly, or that the judicial
branch does not engage in legislative policymaking by deciding cases in which no real injury has
been suffered. In addition, a society may want to make a policy decision about the range of
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freedom granted to the government in its non-regulatory activities. And as a potential defendant,
the government may want to control the instances in which it can be sued.
3.3.1 Plaintiffs and the Issue of "Standing"
In the United States, courts have limited the category of plaintiffs eligible to enforce
environmental controls by requiring that the plaintiff possess "standing" to bring the suit. The
standing requirement stems both from the U.S. Constitution and from judicial interpretation of
environmental statutes containing citizen suit provisions. Under the constitution, as interpreted by
the Supreme Court, plaintiffs bringing a lawsuit must allege that: (1) they have been or will be
injured by the actions or threatened actions of the defendant; (2) the injury is traceable to the
challenged action; and (3) the harm alleged is likely to be redressed by a favorable
decision. (78) These requirements are supposed to ensure that the judiciary engages only in
redressing actual wrongs, not in the policymaking activities that the constitution entrusts to the
legislative branch. (79) Traditionally, this standard required an economic injury. For
example, if the stream running past an outdoor cafe becomes polluted by an upstream paper mill,
driving away patrons, the cafe-owner would have standing to sue the mill-owner. (80)
Over the years in the U.S., changing attitudes, the scope of environmental regulation, and
broad citizen suit provisions have altered the contours of this standing test. During the inception
of the environmental citizen suit movement in the 1970s, courts found even a plaintiff's allegation
of occasional or anticipated aesthetic injury sufficient to confer standing. (81) For example, a
plaintiff might have alleged successfully that her view of a national park she had visited and
planned to visit again was being impaired by emissions from a regional power plant.
However, more recently, the constitutional standing test has been rendered more stringent
by courts concerned with reducing the amount of public interest environmental litigation. In its
latest treatment of the issue, the Supreme Court found that citizen plaintiffs lacked standing to
challenge a regulatory action even when they alleged an injury very similar to the kinds of injuries
the Court had found sufficient just twenty years earlier. Even the fact that Congress had
expressly authorized citizen suits under the statute in question did not alter the outcome. (82)
The essential ambiguity of the constitutional standing principle renders it susceptible to such
restrictive judicial interpretations, and has allowed this requirement to become a major
impediment to citizen enforcement suits in the United States.
The second element of standing in the United States applies only to citizen lawsuits based
on statutory, rather than common law, causes of action. Traditionally, only the U.S. government
could bring a lawsuit to vindicate public rights vested in the population as a whole. Through
citizen suit provisions, the U.S. Congress has chosen to extend this right to individuals. Courts
have attempted to ensure that citizens empowered to sue in this manner are effective advocates
for these public rights by requiring that any injury claimed by the plaintiff be within the "zone of
interests" of the statute in question. (83) This limits potential environmental enforcement
plaintiffs to those who base their standing on environmental injury. Thus, one cement factory
might not be allowed to sue another that was violating emission standards by claiming that the
violations allowed unfair competition - the Clean Air Act's zone of interest is air quality, not levels
of competition. (84)
Other countries, however, have not deemed it necessary to restrict public access to the
courts for plaintiffs seeking to redress public environmental harms. For example, in Argentina, an
environmental lawyer was allowed to challenge certain licenses granted by the federal
government to two Japanese corporations. The licenses allowed the corporations to capture and
export fourteen dolphins from the South Atlantic Ocean, off the coast of the Argentine province of
Chubut. The court concluded that the plaintiff's individual right to the protection of the ecology, as
expressed or implied by several constitutional and statutory provisions, entitled the plaintiff to
challenge the licenses in court. (85) The court invalidated the licenses, on the grounds that
the government had not examined the environmental impact of the captures, that past licenses
had resulted in the death of the captured animals, and that the licenses had been granted over
the opposition of the provincial government.
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3.3.2 Defendants and "Sovereign Immunity"
Implementation of an environmental enforcement regime will often necessitate bringing
lawsuits against the government, either in its regulatory or in its proprietary capacity. As a
regulator, the government may be the target of a suit designed to prompt or to challenge its
implementation of statutory objectives. As an owner of property, the government also engages in
activities that may pollute the environment. For example, the government may operate research
laboratories or maintenance facilities at which hazardous wastes have been stored. (86) In
post-communist regimes in Central and Eastern Europe, where up to 90% of ali property is in
government hands, the vast majority of all pollution will be traceable to government
action. (87) Unless enforcement actions can be brought against the government,
environmental protection goals can never be fully achieved.
Yet the government often restricts its own liability in court. In the United States, for
example, the doctrine of "sovereign immunity" generally prevents citizens from suing the
government unless the government has explicitly waived that exemption. Such a waiver is found
in several environmental statutes authorizing citizen enforcement suits. A citizen suit under such
a statute offers a private plaintiff a unique opportunity to ensure government compliance with its
own rules and regulations. (88) For citizens to participate fully in the environmental
protection process, the government will need to render itself accountable in court for the
environmental effects of its operations.
3.4 How Will the Suit Be Financed?
The previous discussions outline the ways in which court actions can be used to
accomplish particular enforcement goals. Even the most impressive array of such litigation
options is useless, however, if citizens cannot afford to go to court. The single most important
factor in encouraging citizen suits may thus be the ability of citizens to recover court costs and
attorney fees following the successful prosecution of a citizen suit. On budgets even more limited
than those of state and federal governments, few citizens could take on the role of private
attorney general if environmental statutes did not contain "fee-switching" provisions.
In the United States, the traditional "American rule" requires that each party pay its own
court costs and attorney fees regardless of who wins the lawsuit. In contrast, many other nations
require that the losing side pay both sides' costs and fees (the "British system"). Both systems
act as a significant deterrent to citizen enforcement suits that are brought for the public, rather
than private interest. Why should an individual bring a suit which, if won, will offer only a diffuse
sense of goodwill from the vindication of the public interest, and if lost, require the litigant to
shoulder the cost of his own and perhaps (under the British system) the defendant's legal fees?
Because of this disparity between private costs and public benefits, there is a strong argument for
altering the traditional rule in citizen suits brought under environmental protection
statutes. (89)
Under the U.S. environmental citizen suit provisions, for example, a successful plaintiff
may request that the losing defendant pay both parties' court costs and attorney fees. To
discourage frivolous suits, the environmental statutes permit judges to assess the costs and fees
of the defendant against a plaintiff who has engaged in litigation that is clearly unfounded in law
or fact Some risk to the plaintiff still exists. The plaintiff might lose the case and be forced to
shoulder his or her own expenses, or the suit could be deemed frivolous and the citizen could be
forced to pay the costs of both sides. However, by selecting the most meritorious and winnable
cases, environmental plaintiffs can minimize these risks and maximize the chance of recovering
their own financial outlays.
In some cases, these "fee shifting" provisions allow plaintiffs to recover more than the
lawsuit actually cost. Because courts calculate attorney fees using the "market price" for
environmental attorneys, but most environmental plaintiffs' attorneys work for well below that
price, the final fee award can be more than the plaintiff actually spent to bring the suit. What
results is a windfall - or at least an amount better than break-even ~ for a winning plaintiff.
Successful citizen suit plaintiffs ~ particularly environmental organizations - can channel any
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excess attorney fee funds into bringing other lawsuits. The profits from past wins finance future
litigation risks and enable environmental organizations to maintain a series of citizen suits with
less outside financial assistance than they would otherwise need. (90)
4 CITIZEN INVOLVEMENT IN PRACTICE
Various practical considerations will influence both citizens' choice among the enforcement
mechanisms discussed in this paper and their ability to employ those mechanisms effectively.
Both a government considering how citizen participation might fit into an overall environmental
enforcement system and the public employing that system once it is set up will need to be
informed of and sensitive to those considerations.
4.1 A Citizen's Choice of Mechanisms for Participation
A citizen's choice of how to participate will vary with several factors. The most basic is the
citizen's own motivation. Is the problem to be addressed a lack of applicable standards --
possibly calling for an agency-forcing suit - or a perceived failure on the part of the government
to act against violators - which may be a candidate for a citizen enforcing suit? A second factor
is the role of the government in the enforcement system. Obviously, if the government is actively
proceeding against violators, there will be little room for citizen enforcement lawsuits, especially in
a system, such as that in the U.S., in which diligent government prosecution prevents private
actions. In such a situation, a citizen might choose to focus on assisting the government in its
enforcement efforts by engaging in private monitoring or other information-gathering activities.
The identity of the citizen - or the environmental organization - who wants to participate
in environmental enforcement is also relevant. For example, industry entities who want to alert
authorities to permit violations by particular competitors may choose a different enforcement
mechanism than would a citizen group targeting industry-wide violations. Another important
variable is the resources available to the individual or entity. A single citizen with no financial
backing may be limited to volunteering his time to monitor compliance, while a large public
interest organization might be able to finance a large-scale lawsuit. Even a public interest
organization may choose to minimize litigation costs by filing suit only in cases involving clear-cut
violations of demonstrable standards, while leaving more complicated situations to the
government.
The possibility of combining two or more of these avenues may also influence citizen
involvement in practice. For example, a private action for damages can be brought concurrently
with a citizen enforcement suit; the damages action may serve as leverage to effectuate a
settlement on the defendant's part. Agency-forcing judicial review suits brought by citizens can
help spur the development of clear and enforceable regulations, indirectly aiding direct
enforcement efforts. (91)
One of the best examples of the potential for citizen action in environmental enforcement
has been the U.S. experience with the Surface Mining Control and Reclamation Act of 1977
(SMCRA). (92) Although states, federal agencies, and industry all resisted implementation of
SMCRA, citizens were able, through the use of a variety of methods, to make the Act a useful
and effective tool for environmental protection. For example, when SMCRA's regulatory agency
rewrote and weakened the statute's implementing regulations in the early 1980s, citizens
challenged the agency's actions in court. The resulting victories included limiting the number and
scope of exceptions to the Act's standards and strengthening regulations governing mining in
national forests.
In addition to challenging agency regulations, citizen plaintiffs also sued state and federal
agencies for failing to conduct required investigations, neglecting to collect fines under the statute,
and declining to carry out state implementation programs. Several of these lawsuits resulted in
settlement agreements or court-ordered remedies that not only directed the agencies to fulfill their
statutory responsibilities, but made structural changes in the way the agencies enforced the
statutes. Finally, citizens worked closely with state and federal agencies as the agencies
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developed the new enforcement and implementation techniques required as a result of the citizen
litigation. This broad range of public involvement improved the enforcement of SMCRA by
increasing both the capability and the desire of the agencies to implement the statute effectively.
4.2 Requirements for Effective Citizen Enforcement
Citizen participation in environmental enforcement cannot fully succeed without support
from other institutions within the environmental protection system.
4.2.1 A Sound Legal Framework
For citizen participation to be truly effective, the system of environmental regulation must
provide the mechanisms to accommodate and encourage it. The most obvious such
accommodation -- on which this paper has focused -- is the provision of avenues allowing citizens
to go to court to force agency action, challenge the results of agency government decisions, or
prosecute violators. Even if these avenues are made available, citizens may be able to use them
only if the law includes cost-and fee-shifting provisions like those mentioned in Section 3.4 above.
Another, less obvious, contributor to effective citizen enforcement is the establishment of
clear standards of conduct against which the behavior of potential violators can be compared.
When a citizen is provided with specific emission levels, deadlines for compliance, or other
definite substantive requirements contained in statutes, regulations, or permits, it will be easier
not only to identify but to prove the violation. Such substantive requirements are particularly
effective when used in conjunction with industry self-monitoring obligations, reporting schedules,
or other information access mechanisms. Clear standards can stem from statutory language,
regulations developed by agencies in accordance with statutory duties, or industry-specific
permits issued pursuant to the regulations.
Perhaps the most essential element in the legal framework is the existence of a judicial
system that is receptive to citizen participation. On an overall level, a supportive judiciary can
instill in the public a sense that their involvement is accepted and rewarded, thus increasing
public confidence in the enforcement system. As a practical matter, judicial attitudes can have a
concrete effect on the success or failure of environmental law suits brought by citizens. Through
threshhold rulings restrictive of citizen standing, for example, judges can effectively bar the
courthouse door to citizen litigants. The extent of judicial damage awards and the content of
injunctive relief also influence the likelihood that citizens will choose to sue in the future and the
kind of cases citizens may bring.
Legal controls provide both the overall framework within which environmental protection
goals can be articulated and a powerful incentive encouraging the achievement of those goals. A
strong legal system thus helps citizens to participate effectively in environmental enforcement
through non-court mechanisms as well as in the courts.
4.2.2 Adequate Citizen Resources
A second important requirement for effective citizen enforcement is a citizenry with the
knowledge and confidence to avail itself of its various options for participating in environmental
enforcement. As an initial matter, particularly in societies unused to citizen participation, some
effort may be necessary to educate the public about those options and how to use them. Both
government and environmental organizations could sponsor such a public education program.
Environmental organizations can play a crucial role in other ways as well. Because the
costs of prosecuting citizen suits or monitoring industries on a regular basis are so high,
individuals act on their own only rarely, particularly in court cases. (93) More often than not,
environmental organizations or "public interest law firms" are the only actors with the resources
and expertise to pursue citizen suits and many other associated enforcement actions. (94)
Providing some form of incentives -- whether financial or otherwise -- for citizens to
participate in environmental enforcement could encourage and enable individuals and small local
groups, as well as large-scale organizations, to increase their involvement. One possibility would
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be for the government to support citizen monitoring and inspection efforts either through direct
funding or by cloaking private citizens with some of its own power to impose limited fines for
clear-cut violations. For example, if the government wanted to avail itself of citizen manpower to
patrol national parks to prevent littering, careless setting of fires, or other infractions, it could
deputize citizens to act as private forest rangers, who could issue citations to violators. The
Polish government has recently established such a program. (95) Another option might be
for the government to subsidize citizen environmental enforcement litigation directly. One
Australian territory has encouraged citizen suits by directly subsidizing them through legal
assistance. (96)
Industry cooperation with private monitoring efforts could be encouraged by either
publicizing the value of such efforts or subsidizing them by allowing a tax deduction for the costs
of the program. Finally, statutory fee and cost-shifting provisions can give citizens the financial
capability to initiate their own enforcement actions.
4.2.3 Accessible Information
Almost all of the citizen involvement in environmental enforcement discussed above would
be impossible if citizens did not have ready access to information about potential violations. One
invaluable source for such information is data on pollution levels supplied by polluters
themselves, as part of a regulatory self-monitoring and reporting regime. It is difficult to overstate
the importance of such reports in not only initiating suits, but also giving citizens the capability to
win them. (97)
In the U.S., the Clean Water Act's requirement that the holders of permits to discharge
effluents from point sources submit regular Discharge Monitoring Reports (DMRs) to the
government is perhaps the best example of a regulatory mechanism for creating and
disseminating information that citizens can use in enforcement. (98) DMRs are often
accepted by courts as definitive proof of a violation, since they are written and filed by the alleged
violator itself.
Another useful information access mechanism in the U.S. is the so-called "right-to-know"
statute, which requires industries storing and using certain hazardous substances to report to
workers and communities on the amounts of the substances stored, used, and discharged on-
site. (99) This "right-to-know" provision has helped citizens to identify and prove
environmental violations.
Of course, it is essential to ensure that self-monitoring and reporting data are easily
available to the public. A government-wide access-to-information provision, such as the U.S.
Freedom of Information Act, can ensure that citizens are able to obtain those data, as well as
other information held by the government that may be relevant to environmental enforcement
efforts. The government could attempt to meet citizens halfway by not only responding to citizen
requests, but affirmatively disseminating environmental data collected in the course of its
regulatory duties. (100)
5 CONCLUSION
Citizen involvement is crucial to the establishment and implementation of a fair and
effective environmental protection regime. As this paper has attempted to illustrate, the
opportunities for - and the benefits from - citizen involvement are many and wide-ranging.
Citizens can both supplement government enforcement efforts and encourage the government to
maintain and sharpen its focus on environmental protection. Indeed, involvement by the public
may be the vital ingredient necessary to transform environmental protection statutes and
regulations from aspirations into reality. Policymakers setting up and implementing environmental
controls can draw upon the resources of citizens to further the common goal of environmental
protection by making enforcement work.
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ENDNOTES
1. This triad of environmental concerns was described in S. HAYS, BEAUTY, HEALTH, &
PERMANENCE: ENVIRONMENTAL POLITICS IN THE UNITED STATES 1955-1985 (1987).
2. See Cross, Rethinking Environmental Citizen Suits, 8 TEMP. ENVTL. L. & TECH. J. 55, 64-
70 (1989) (discussing U.S. court cases upholding environmental regulations on the ground that
the U.S. Environmental Protection Agency could prevent unduly harsh effects by making
administrative exceptions in particular cases).
3. See the exchange between an environmental plaintiff's attorney and an agency
representative in Private Watchdogs: Internal Auditing and External Enforcement - Three
Perspectives, 17 ENVTL. L. REP. (Envtl. L. Inst.) 10,255, 10,263 (1987).
4. This may be especially true in state agencies and enforcement programs, whose
employees tend to be closer financially, politically, and personally to the potential violators than
are federal officials. See Smith, The Viability of Citizen Suits under the Clean Water Act after
Gwaltney, 40 CASE W. RES. L. REV. 1. 55-56 (1989-90).
5. See ENVIRONMENTAL L. INST., AN ANALYSIS OF CITIZEN ENFORCEMENT ACTIONS UNDER EPA-
ADMINISTERED STATUTES V-11 to V-12 (Sept. 1984) [hereinafter ELi STUDY].
6. See Webb, Taking Matters into Their Own Hands: The Role of Citizens in Canadian
Pollution Control Enforcement, 36 McGiu. L.J. 770, 819 (1991) (discussing how private
prosecutions in Canada clearly illuminate the unfairness and incoherence of current enforcement
activities).
7. In the United States, government agencies have expressed appreciation for citizen
enforcement efforts. See Chesapeake Bay Foundation v. Bethlehem Steel Co., 652 F. Supp.
620, 625 (D. Md. 1987) (citing Brief of the U.S. as amicus curiae in support of the Clean Water
Act at 1-2, Student Public Interest Research Group v. Monsanto, 600 F. Supp. 1474 (D.N.J.
1985) (indicating that the EPA Administrator enthusiastically supported the role of citizens in
enforcement proceedings)); ELI STUDY, supra note 5, at V-7; L. JORGENSON & J. KIMMEL,
ENVIRONMENTAL CITIZEN SUITS: CONFRONTING THE CORPORATION - A BNA SPECIAL REPORT 17
(1988) [hereinafter BNA REPORT]; Price, Private Enforcement of the Clean Water Act, 1 NAT.
RESOURCES & ENV'T 31, 60 (1986).
8. Many nations permit and encourage active public participation in the enforcement of
environmental laws. For examples of the citizen's role in various nations, see Preston, Public
Enforcement of Environmental Laws in Australia, 6 J. ENVTL. L. & LITIG. 39 (1991); Webb, supra
note 6, at 770; PARTICIPATION AND LITIGATION RIGHTS OF ENVIRONMENTAL ASSOCIATIONS IN EUROPE
(M. Fiihr & G. Roller eds. 1991) [hereinafter EUROPE].
9. See Bowman & Hunter, Environmental Reforms in Post-Communist Central Europe: From
High Hopes to Hard Reality, 13 MICH. J. INT'L L. 301, 351 (1992).
10. Many nations rely on citizens and environmental organizations to identify and report
violations -- and in some cases to pressure agencies into enforcement actions. This ability is a
particularly important part of the European Community enforcement program. See EUROPE, supra
note 8, at 146; Smith & Hunter, The European Community Environmental Legal System, 22
ENVTL. L. REP. (Envtl. L. Inst.) 10,106, 10,113 (1992). Some Central and Eastern European
nations are also beginning to recognize the utility of citizen monitoring. See Allen, The Polish
Ecological Clubs: "Before, we could blame the communists. Now we have to have the best
arguments.", TRANSATLANTIC PERSPECTIVES (German Marshall Fund, Washington, D.C.), Spring
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1992, at 10 (describing the Polish Ecological Club's environmental inventory of a polluted creek,
its report to the city government, and the follow-up by the state enforcement agency).
11. See OFFICE OF WATER, U.S. ENVTL. PROTECTION AGENCY, NATIONAL WATER QUALITY
INVENTORY: 1986 REPORT TO CONGRESS 109,115 (1987); Smith, supra note 4, at 54-56.
12. See Steinhart, Waterway Watchdogs, AUDUBON, Nov. 1990, at 26.
13. Because waterways in the U.S. are state property, citizens may directly approach point
sources of pollutants, or identify areas where nonpoint pollution (from fertilizers or feed lots, for
example) is causing a water quality problem. As an example of the role of organized citizen
groups, the Izaak Walton League of America trains citizens to monitor the health of local and
regional streams. Those citizens then report information to a national clearinghouse, which
notifies state or federal agencies. Although citizens volunteer for the monitoring program,
persona! interest is not the only motivating force: State agencies help fund the League's training
and reporting programs. Telephone Interview with Loren Kellogg, National Monitoring Coordinator
for the Save Our Streams Program, Izaak Walton League of America (June 8, 1992).
14. See J. MILLER & ENVTL. L. INST., CITIZEN SUITS: PRIVATE ENFORCEMENT OF FEDERAL
POLLUTION CONTROL LAWS 133 (1987) [hereinafter CITIZEN SUITS]; K. NOLL & J. DUNCAN,
INDUSTRIAL AIR POLLUTION CONTROL 36 (1975).
15. See supra note 13.
16. Consider the activities of the environmental organization Lighthawk, which uses private
planes and pilots to monitor environmental harm from the air in the U.S. and other countries. See
Wood, Aerial Crusaders. THE CHRISTIAN SCIENCE MONITOR, July 14, 1988, at 10.
17. See Ley 13.577 Creadon de Obras Sanitarias de la Nacion, art. 31 & 32 [Creation of
Sanitary Work Agency]; Decreto 674/89 Regimen contra ta Contaminacion de Rios Bs. As.
24/V/89 [River Pollution Regime]. The U.S. Surface Mining Control and Reclamation Act of 1977
contains a similar provision. See 30 U.S.C. § 1271(a)(1) (1988).
18. See CITIZEN SUITS, supra note 14, at 134.
19. The U.S. Federal Water Pollution Control (Clean Water) Act requires holders of permits
allowing discharge of pollutants into the water to submit regular "Discharge Monitoring Reports."
See 33 U.S.C. § 1318 (1988). The U.S. Emergency Planning and Community Right-to-Know Act
(EPCRA). 42 U.S.C.A. §§ 11001-11050 (West 1983 & Supp. 1992), imposes extensive self-
monitoring and reporting requirements on certain industries that use and release extremely
hazardous chemicals. A summary of monitoring reports required under U.S. environmental
protection statutes in the mid-1980s can be found in CITIZEN SUITS, supra note 14, at 132-33. In
addition, a forthcoming Environmental Law Institute Working Paper, PUBLIC ACCESS TO
ENVIRONMENTAL INFORMATION, will analyze in greater detail such reporting requirements and their
possible applications to public participation in the environmental protection system.
20. Freedom of Information Act of 1966. 5 U.S.C. § 552 (1988).
21. For a discussion of the importance of information and clear standards, see ELI STUDY,
supra note 5, at V-13 to V-15.
22. Many environmental organizations publish lists of reporting numbers for citizens to call with
information. See, e.g., IZAAK WALTON LEAGUE OF AMERICA, A CITIZEN'S DIRECTORY FOR WATER
QUALITY ABUSES: A STATE-BY-STATE RESOURCE LIST OF ENVIRONMENTAL AGENCY TELEPHONE
NUMBERS (undated).
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23. Clean Air Act § 113(f), 42 U.S.C.A. § 7413 (West 1983 & Supp. 1992).
24. If the citizen is bringing a lawsuit under an U.S. environmental statute with a citizen suit
provision, he or she will be required to give advance notice to the alleged violator and to the
government. This notice provision allows the violator an opportunity to come into compliance and
enables the government to eliminate the need for the citizen suit by taking its own enforcement
action. See infra Section 2.3.2.1.
25. See CITIZEN SUITS, supra note 14, at 11-12; Greve, The Private Enforcement of
Environmental Law, 65 TUL. L. REV. 339, 352-53 (1990).
26. For a more detailed discussion of the various ways in which the public can participate in
the environmental protection process, see ENVIRONMENTAL L. INST., PUBLIC PARTICIPATION IN
ENVIRONMENTAL REGULATION (ELI Working Paper, Jan. 1991).
27. In the U.S., for example, courts generally presume that the individual is adequately
represented by the government. See CITIZEN SUITS, supra note 14, at 66-67. Intervention is
governed by statutes regulating all federal court cases which require that the intervenor have an
interest in the "property or transaction" at issue. FED. R. Civ. P. 24(b).
28. See M. AXLINE, ENVIRONMENTAL CITIZEN SUITS § 5.03, at 5-3 & n.5 (1991).
29. Similar consent decrees can result from lawsuits filed by the citizen. See infra note 56.
30. See, e.g.. Clean Air Act § 113(g).
31. See, e.g., Clean Air Act § 304(a)(2); Endangered Species Act § 11(g)(1)(C), 16 U.S.C. §
1540(g)(1988).
32. For example, if a statute provides that an agency "shall complete a thorough review" of air
quality criteria, the agency must undertake such a review, regardless of whether the review is
likely to prompt revision of the criteria. See Environmental Defense Fund v. Thomas, 870 F.2d
892(2dCir. 1989).
33. Such a court order will subject the agency to judicial penalties if the agency violates the
order by continuing its failure to act.
34. Administrative Procedure Act (APA) § 702, 5 U.S.C. § 702 (1988). For an example of a
statutory "discretionary" suit provision, see Clean Air Act § 307(b)(1). The standards of judicial
review under the APA are set forth in § 706(2)(A).
35. See Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-45 (1984).
36. Suits seeking judicial review of agency decisions have been particularly important as a
way of forcing agencies to consider the environmental impacts of their actions under the U.S.
National Environmental Policy Act of 1970 (NEPA), 42 U.S.C. § 4321 (1982). The first suit
brought under NEPA was brought by citizens and established the right of citizens to bring suits to
enforce the environmental assessment requirements of the statute. See Calvert Cliffs
Coordinating Comm. v. Atomic Energy Comm'n, 449 F.2d 1109 (D.C. Cir. 1971). Since that time,
numerous suits have been brought against agencies for failure to file an environmental impact
statement, or for filing an inadequate one. In the 1980s, over 800 suits led to 116 injunctions
preventing agency action without further environmental assessment. U.S. COUNCIL ON
ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY 1991, at 142-43 (1992).
As with many other environmental regulations, judicial review under NEPA has been limited to
an examination of the procedural rather than the substantive requirements of the statute.
Nonetheless, those procedural requirements, enforced by citizen suits, have forced agencies at
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least to examine the environmental consequences of their actions - a significant step beyond the
pre-NEPA requirements. For additional information about the relationship between the
substantive and procedural requirements of NEPA and the role both have played in altering
agency action, see ENVIRONMENTAL L. INST., ENVIRONMENTAL IMPACT ASSESSMENT: INTEGRATING
ENVIRONMENTAL PROTECTION AND DEVELOPMENT PLANNING (ELI Working Paper, June 1991).
37. Courts in the United States have willingly carried the doctrine of prosecutorial discretion
through to the environmental statutes. Even where statutory language would appear to make
enforcement a non-discretionary duty, courts have held that unless the language is explicit,
discretion remains in the agency. See, e.g., DuBois v. Thomas, 820 F.2d 943 (8th Cir. 1987)
(under the Clean Water Act, citizen suits cannot require enforcement).
38. In a system, such as that in the U.S., that embraces the doctrine of prosecutorial
discretion, allowing citizens to take enforcement actions will be crucial to achieving environmental
protection goals.
39. See generally M. AXLINE, supra note 28; CITIZEN SUITS, supra note 14.
40. Krent, Fragmenting the Unitary Executive: Congressional Delegations of Administrative
Authority Outside the Federal Government, 85 Nw. U. L. REV. 62, 82 n.95 (1990).
41. See Clayton Antitrust Act of 1914,15 U.S.C. § 15 (1988); Consumer Product Safety Act of
1972, 15 U.S.C. § 2060(a) (1988).
42. Although European. Community (EC) law permits organizations to sue governments for
violations of EC regulations, this is only true when individual nations grant standing to that group,
and most European nations do not. See, e.g., EUROPE, supra note 8, at 85 (discussing standing
provisions in West Germany). Only Ireland's laws appear comparable to U.S. provisions: Irish
citizens may bring a suit for injunctive relief against any person for violations of water, air, or land
use regulations. Because of the risk that the plaintiff will have to pay defendant's costs and fees,
however, the suits have not been commonly used. Id. at 11-12. In addition, Spain and Ireland
appear to grant citizens some rights to enforce summarily those countries' limited criminal
environmental statutes. Id. at 13, 37. Under Brazilian law, citizen organizations that have been
in existence for at least two years can file "public actions" requesting the state or federal attorney
general to investigate threats to the environment. Interview with Alberto Ninio, Staff Attorney at
the Environmental Law Institute, in Washington, D.C. (July 1.1992).
43. All but one of the major federal environmental acts permit direct enforcement by citizens in
the courts against violators. See, e.g., Toxic Substances Control Act §20, 15 U.S.C. § 2619
(1988); Endangered Species Act § 11(g), 16 U.S.C. § 1540(g) (1988); Surface Mining Control and
Reclamation Act of 1977 §520, 30 U.S.C. § 1270 (1988); Marine Protection, Research, and
Sanctuaries Act § 105(g), 33 U.S.C. § 1415(g) (1988); Federal Water Pollution Control (Clean
Water) Act § 505. 33 U.S.C. § 1365 (1988); Safe Drinking Water Act § 1449; 42 U.S.C. § 300J-8
(1982 & Supp. V 1987); Noise Control Act § 12, 42 U.S.C. § 4911 (1982 & Supp. V 1987);
Resource Conservation and Recovery Act (RCRA) § 7002, 42 U.S.C. § 6972 (1982 & Supp. V
1987); Clean Air Act §304, 42 U.S.C.A. §7604 (West 1983 & Supp. 1992); Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) §310, 42 U.S.C.
§ 9659 (1982 & Supp. V 1987); Outer Continental Shelf Lands Act § 23, 43 U.S.C. § 1349
(1982). The only major environmental statute without a citizen suit provision is the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 (1988). Numerous state statutes also
allow citizens to sue to enforce statutory provisions.
As an example of the growth in this category of suits, only twelve actions were filed under
citizen suit provisions in 1978-79. See HAYS, supra note 1, at 481. Just ten years later, citizens
were filing hundreds of suits a year against private individuals and government agencies, and the
numbers were, if anything, increasing. See BNA REPORT, supra note 7, at 21-111 (1988) (78
suits filed for enforcement purposes under RCRA, CERCLA, and the Clean Water Act in 1987);
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U.S. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY 1987-88 (88 suits filed
against government agencies for NEPA violations in 1987).
44. Compare, e.g., Clean Air Act § 304(a) (citizen suit judicial enforcement) with id. § 113(b)
(federal suit judicial enforcement).
45. See Clean Air Act § 304(a), § 113(d)(1); infra Section 3.2.3.
46. In addition, if the defendant's conduct is found to be malicious or wanton, a jury can award
additional damages, beyond those necessary to compensate the plaintiff, solely for the purpose of
punishing the defendant. There is no requirement that these "punitive damages" be proportional
to compensatory damages. See Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 492 U.S.
257 (1989) (upholding a jury's award of $6 million in punitive damages in a case involving
compensatory damages of only $51,146).
47. Consider a factory that emits particulates that cause fog to form on a nearby highway,
slowing traffic and causing occasional accidents. Any single traveler on the highway might not be
able to bring a suit to abate this public nuisance, but the roadside homeowner into whose house
fog-blinded vehicles regularly crashed would have a "special injury" and would be able to bring
suit.
48. See Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention, 68 Mich. L. Rev. 471 (1970); Z. PLATER, R. ABRAMS & W. GOLDFARB,
ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY 365-412 (1992) [hereinafter
ENVIRONMENTAL LAW],
49. See Marks v. Whitney, 6 Cal. 3d 251, 98 Cal. Rptr. 790, 491 P.2d 374 (1971) (public right
in submerged land under streams and lakes on privately-owned property subjects private property
owners to public trust doctrine); ENVIRONMENTAL LAW, supra note 48, at 400-01.
50. The standing requirements are very minimal, and nearly any individual can sue for
violation of the statute. MICH. COMP. LAWS ANN. § 691.1201 (West Supp. 1984). Six other states
adopted statutes based on Michigan's soon after 1970, but only Michigan's has been regularly
used.
51. Ray v. Mason Country Drain Commissioner, 224 N.W.2d 883 (Mich. 1975). Despite the
breadth and potential power of the Michigan statute, it has been used only rarely. By 1983, the
statute had been the basis for only 185 actions, most of which were filed in its early years. See
generally Slone, The Michigan Environmental Protection Act: Bringing Citizen-initiated
Environmental Suits Into the 1980s, 14 ECOLOGY L.Q. 271 (1985).
52. Consider, for example, Japan's Civil Code Article 199, which provides that "[i]f a possessor
is disturbed in his possession, he may by an action for maintenance of possession demand
discontinuance of the disturbance as well as compensation for damages." J. GRESSER, K.
FUJIKURA & A. MORISHIMA, ENVIRONMENTAL LAW IN JAPAN 135 n.16 (1981).
53. See Bandi, Environmental Enforcement in Hungary - Today and Tomorrow 10 (Paper
Presented at the Second International Conference on Environmental Enforcement, Sept. 1992).
54. Interview with Beatriz Gonzales, Colombian public interest attorney, in Washington, D.C.
(June 18, 1992). See G, SARMIENTO, LAS ACCIONES POPULARES EN EL DERECHO PRIVADO
COLOMBIANO [POPULAR ACTIONS IN COLOMBIAN PRIVATE LAW] 34 (1988).
55. See infra note 85 and accompanying text.
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56. In addition, if the settlement results in a consent decree approved and enforced by the
court, it can include legally enforceable provisions governing the future conduct of the parties,
rather than simply allowing the defendant to pay an initial fee and then continue the challenged
conduct. See M. AXLINE, supra note 28, at 7-29.
57. See G. BINGHAM, RESOLVING ENVIRONMENTAL DISPUTES: A DECADE OF EXPERIENCE 130-32,
134-37 (1986).
58. This policy decision often has strategic consequences for the citizen litigant. A plaintiff
who happens to qualify for both a common law damages action and a statutory enforcement
action might bring the two concurrently, thereby hoping to increase her bargaining power over the
violator.
59. See M. DORE, LAW OF Toxic TORTS § 24.01 (1992).
60. See id. §§ 24.03-24.04 (1992). See generally Brennan, Causal Claims and Statistical
Links: The Role of Scientific Uncertainty in Hazardous Substance Litigation, 73 CORNELL L. REV.
469 (1988).
61. See DORE, supra note 59, at § 5.10.
62. In the United States, citizens may only file enforcement suits if the violations are ongoing
or if there is a substantial likelihood that they will be repeated. See Gwaltney of Smithfield, Ltd.
v. Chesapeake Bay Foundation, 484 U.S. 49 (1987).
63.. U.S. courts take this requirement very seriously. See Hallstrom v. Tillamook Cty., 493
U.S. 20 (1989). However, lawsuits may be brought immediately after filing notice in the event of
violations of certain standards, particularly when the violation may threaten human health. See
Clean Air Act § 304(b).
64. See generally CITIZEN SUITS, supra note 14, at 53-62.
65. See id. at 77. In some cases, as when an endangered species is threatened, a statute
may explicitly require the court to issue an injunction. U.S. Endangered Species Act § 11(g)(1).
66. See CITIZEN SUITS, supra note 14, at 77-78.
67. See, e.g.. Boomer v. Atlantic Cement Co., 26 N.Y.2d 219. 319 N.Y.S.2d 312, 257 N.E.2d
870 (1970) (cement plant allowed to continue polluting upon payment of continuing damages to
adjoining landowner).
68. Under one United States statute, the Clean Air Act, judges may assign up to $100,000 of
these penalties to a fund which will be used for "beneficial mitigation projects which are
consistent with" the Act. Clean Air Act § 304(g)(2).
69. See Clean Water Act § 505(a); RCRA § 7002(a); Clean Air Act § 304(a). The 1990
inclusion of civil penalties in the Clean Air Act Amendments is significant, because it represents a
recent Congressional endorsement of the usefulness of such provisions.
70. See, e.g., Toxic Substances Control Act § 16(a).
71. In one successful citizen suit brought to rectify permit violations by a wastewater treatment
plant, the appellate court found that the trial court's civi! penalty award of $3.2 million was too
low. The court of appeals instructed the trial court to recompute the penalty, suggesting that the
appropriate total might be the statutory maximum of $4.2 million. See Public Interest Research
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Group of New Jersey v. Powell Duffyn Terminals, Inc., 720 F. Supp. 1158 (D.N.J. 1989), aff'd in
part and rev'd in part, 913 F.2d 64 (3d Cir, 1990).
72. For academic criticism of civil penalties in citizen suits, see Blomquist, Rethinking the
Citizen as Prosecutor Model of Environmental Enforcement Under the Clean Water Act: Some
Overlooked Problems of Outcome-Independent Values, 22 GA. L REV. 337 (1988) {philosophical
critique of permitting citizens to prosecute); Lewis, Environmentalists' Authority to Sue Industry
For Civil Penalties is Unconstitutional Under the Separation of Powers Doctrine, 16 ENVTL. L.
REP. (Envtl. L. Inst.) 10,101 (1986). But see Chesapeake Bay Foundation, 652 F. Supp. at 623-
26 (citizen civil penalty requests not unconstitutional).
73. See Cross, supra note 2, at 70-71 (1989). For a more appreciative perspective on this
type of settlement, see Mann, Polluter-Financed Environmentally Beneficial Expenditures:
Efficient Use or Improper Abuse of Citizen Suits Under the Clean Water Act? 21 ENVTL. L. 175
(1991).
74. See Sierra Club v. Electronic Controls Design, 909 F.2d 1350,1354-56 (9th Cir. 1990).
75. See M. AXLINE, supra note 28, at § 7.06.
76. See Price, supra note 7, at 33.
77. As noted above in Section 2.3.1.3, the doctrine of "prosecutorial discretion" precludes
citizen challenges to government decisions not to take particular enforcement actions in the
United States. This limitation renders the availability of citizen enforcement actions particularly
important. Even in the U.S., however, a blanket failure to enforce any portion of a statutory or
regulatory regime might still be subject to court challenge. See Heckler v. Chaney, 470 U.S. 821,
833 n.4 (1985).
78. Valley Forge Christian College v. Americans United for Church and State, 454 U.S. 464
(1982).
79. This constitutional standing requirement applies to all lawsuits, not just to enforcement
suits brought under citizen suit provisions, in practice, most controversy over standing centers on
statutory suits, not common law actions. Courts may perceive a greater threat of inappropriate
citizen involvement in a statutory, as distinct from a common law, action. In the latter case, a
plaintiff cannot prevail without proving that he was injured by the challenged actions; no such
requirement applies to a citizen plaintiff in an environmental enforcement suit.
80. This view of standing remains common in many other nations. See EUROPE, supra note 8,
at 81 -82 (discussing West German standing provisions).
81. See Sierra Club v. Morton, 405 U.S. 727 (1972).
82. See Lujan v. Defenders of Wildlife, 60 U.S.L.W. 4495 (1992).
83. See Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970).
84. Contrast this with an Irish case in which "an association of traders who objected to the
competition caused by [a] ... development [that violated zoning laws] successfully sought an
injunction to close it down, even though their motivation was largely commercial." EUROPE, supra
note 8, at 13-14 (citations omiited).
85. See Kattan, A.E. y otro v. Gobierno Nacional (Poder Ejecutivo), 1983-D L.L. 568, 576
(1983). First, the judge construed the preamble of the 1853 Argentine Constitution, declaring the
framers1 intent to ensure and guarantee general welfare and property to future generations, as a
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mandate to all branches of government, including the judiciary, to protect the environment.
Second, the judge found that a right to ecological protection was implied by another constitutional
provision. Finally, the judge relied on a provision in a wildlife protection statute imposing on
Argentine citizens a duty to protect wildlife, as well as a law ratifying an international convention
on the trade of endangered species.
86. "An estimated 1,000 to 1,400 federal facilities in the United States are either on the
Superfund list [i.e., they have been determined to contain significant hazardous waste deposits] or
eligible for that list." M. AXLINE, supra note 28, § 2.08.
87. See Bowman & Hunter, supra note 9, at 345 (noting that at the time of the revolutions in
the region, over 90% of property and industries in Central and Eastern Europe were owned by
the state, and that privatization is proceeding slowly); Bandi, supra note 53, at 4 (stating that over
80% of the Hungarian economy is still in state ownership).
88. In fact, because the federal government cannot sue itself, statutory citizen suits and suits
brought by the states are effectively the only way in which environmental standards can be
enforced in the United States against federal government entities.
89. Because common law actions for damages present an opportunity for a personal benefit to
the plaintiff, the traditional rules of cost-bearing may be more appropriate in such cases.
90. While some groups are able to reach self sufficiency, some plaintiff's attorneys have noted
that even these attorney fee provisions "are not nearly adequate enough to encourage people to
bring suits - not if they want to eat, anyway." Tern's, Private Watchdogs: Internal Auditing and
External Enforcement-Three Perspectives, 17 ENVTL. L REP. (Envtl. L. Inst.) 10,254, 10,255
(1987). This difficulty is especially apparent for initial, "up front" litigation costs. ELI STUDY, supra
note 5, at V-25.
91. See ELI STUDY, supra note 5, at V-13; CITIZEN SUITS, supra note 14, at 132; Preston,
supra note 8, at 47-48.
92. See McElfish, SMCRA and Environmental Groups, in MOVING THE EARTH (U. Desai ed.,
forthcoming 1992).
93. See, e.g., Greve, supra note 25, at 353 (only one quarter of citizen suits filed in the United
States between 1984 and 1988 were brought by individual or local coalitions, with the remainder
filed by national or regional environmental organizations).
94. "Public interest law firms" encompass the litigation departments of large environmental
organizations. These organizations, which rely for survival on attorney fee provisions in
environmental, civil rights, and other statutes, are an additional driving force for the liberalization
of the U.S. statutory regime and legal system. An introduction to the role of public interest law
firms can be found in Bonine, The New Private Public Interest Bar, 1 J. ENVTL. L. & LITIG. xi
(1986).
95. The Polish Nature Protection Act provides for the deputization of private citizens as
"Environmental Protection Guards," who enforce environmental regulations within national parks
and forest reserves, or as "Communal Protectors of Nature," who maintain the parks and forests
and instruct people about environmental regulations. See Bowman & Hunter, supra note 9, at
314.
96. See Preston, supra note 8, at 61-65.
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97. A 1984 report on citizen suits in the United States identified the lack of readily accessible
information as "the single most important factor inhibiting citizen enforcement." "The crucial
variable" in a successful citizen suit regime was information provided to citizens in a form that
identified key compliance indicators. ELI STUDY, supra note 5, at V-12 to V-13.
98. See supra note 19.
99. See id.
100. For a more detailed discussion of information access mechanisms and their uses, see
ENVIRONMENTAL L INST., PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION (ELI Working Paper,
forthcoming 1992).
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CITIZENS ROLE IN ENFORCEMENT: A SPUR, A SUPPLEMENT, AND A SUBSTITUTE
RALPH HALLO
Coordinator, International Affairs Stichting Natuur en Milieu, Utrecht, the Netherlands
SUMMARY
Enforcement tends to look to the end of the process. After the standards have been set,
the permits issued, the inspections and reviews carried out, enforcement plays its role. This paper
argues that, for enforcement to be effective, the proper basis must have been laid at the
beginning of the process in the design of the system of environmental control. Specifically,
provision must be made for the generation of the information required to determine whether
environmental rules are being complied with.
1 INTRODUCTION: THE NEED FOR THE RIGHT KIND OF INFORMATION
Effective citizen enforcement depends on access to the right kind of information. The right
kind of information is:
(a) information that allows a violation to be easily identified; and
(b) information that is in usable form, that is, that readily serves as proof in enforcement
proceedings.
In practice, effective government enforcement requires this kind of information, too. In this
sense, the distinction between citizen and government enforcement is an artificial one.
Generation of this information depends on establishing in the law the requirements for
appropriate sampling, monitoring and reporting ("SMR") of environmental data. The lesson for
enforcers, and for others concerned with the environment, is that effective enforcement depends,
in the first instance, on the quality of the SMR requirements established in the law and related
regulations. If the system is not properly constructed, no amount of inspection or control by
citizens or by government, will make it effective.
This paper considers the citizen's role in enforcement of environmental law on the basis of
experience with the enforcement of water pollution control legislation in the U.S. and in the
Netherlands1. More so than other examples, the U.S. Clean Water Act provides this kind of infor-
mation and therefore has been used effectively by citizens. The Clean Water Act also supports
citizen enforcement by explicit provisions authorizing citizen judicial enforcement actions (citizen
suits). In the Netherlands, the Wet Verontreiniqing Oppervlaktewateren (WVO) (Surface Water
Pollution Act) has not succeeded in generating this information routinely and citizens have been
correspondingly less successful in their enforcement efforts.
2 THE STATUTORY REGIMES
For the discussion that follows, it is useful to begin with a short description of the two laws
in question, the U.S. Clean Water Act and the Dutch Wet Verontreiniqinq Oppervlaktewateren
(Surface Waters Pollution Act).
2.1 The U.S. Clean Water Act
The Clean Water Act takes as its starting point the prohibition of any discharge of a
pollutant from a point source (a pipe) into the (surface) waters of the United States except in
accordance with a permit2. The permits set limits on the kind and quantity of pollutants which may
be discharged into the water and in addition require sampling, monitoring and reporting on a
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regular basis. Reporting takes place primarily via Discharge Monitoring Reports (DMRs) which are
usually filed each month by the permit holder.
Failure to comply with the terms of the permit in any respect gives rise to strict liability for
a violation. Violations may be enforced by the government or by citizens. The government may
enforce administratively for lesser violations or judicially for serious violations. Citizens may
enforce judicially in the absence of governmental action. Since there are many possible cases
which may be brought, citizen enforcement acts as a useful supplement to governmental
prosecutorial resources. The results achieved by citizen suits also encourage more energetic
prosecution by the government.
Proof of harm to the waters, the aquatic life, or damages to individual interests need not
be shown. It needs merely be shown that the permit limit has been violated. Since the law
requires the discharger to report what it has discharged and since these reports may be obtained
by the citizen, violations can be easily identified, documented, and proven in court.
Sanctions are twofold in nature. The law authorizes the court (or administrative agency) to
impose penalties of up to $25,000 per day of violation and, secondly, to impose injunctive relief,
Injunctive relieve is a broad power of the court to command the defendant to perform a specified
act or to meet the specific requirements of the law. Thus, a court may order changes in the
operation or staffing of a plant, set schedules for construction of pollution control devices, or order
other changes or actions. The court retains the power to impose fines for the defendant's failure
to obey such court orders.
2.2 Wet Verontreiniging Oppervlaktewateren (WVO)
The WVO or Surface Water Pollution Act similarly takes as its starting point the prohibition
of the discharge of wastes into the surface water without a permit3. Among the differences with
the Clean Water Act, however, are that permits tend to be less comprehensive, covering fewer
pollutants and contain few, if any, sampling and monitoring requirements and minimal reporting
obligations. Of particular importance for enforcement have been the absence of strict liability for
violations and strong sanction provisions. There is of course no citizen suit provision as this is
unknown in Dutch environmental law. This is not to say citizen action is unknown in Dutch law.
The administrative law system offers considerable opportunities for action against governmental
authorities. Civil law actions against polluters are also possible, though rare4.
3 IDENTIFICATION OF VIOLATIONS BY CITIZENS
The starting point of citizen enforcement activity is determining whether there is polluting
activity which warrants enforcement. The question of whether citizens can identify violations can
also be asked another way, however. Is it possible to know whether a discharger is complying
with his permit?
3.1 Identification of Violations under the Clean Water Act
The Clean Water Act makes identification of violations by citizens (and equally by
government authorities) a simple matter, because each discharger's permit and discharge
monitoring reports (DMRs) are on file with the designated government authorities. Because
permits and DMRs are public documents, the interested citizen can readily obtain them. Citizen
groups have thus been able to investigate, for example, the dischargers in a particular industry,
all major dischargers in a state, or all dischargers to a particular water body.
The review of a DMR is also simple. Most DMRs consist of a few pages of orderly
columns of figures reporting the measured amount or concentration of the pollutants covered by
the permit in accordance with the sampling requirements of the permit (e.g. continuous sampling,
daily, twice weekly). The values reported on the DMR need only be compared with the standards
set by the permit to determine if there has been a violation. It is a matter of a few minutes work to
review a DMR and identify a violation.
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3.2 Identification of Violations under the WVO
In the Netherlands, in contrast, this paper record is not available. WVO permits are public
documents, so if they do exist, citizens can obtain them5. The initial problem is that they often do
not exist. Although the law requires all dischargers to have a permit, the issuing authorities
continue to have a backlog6. Certain industry sectors and many smaller enterprises still lack WVO
permits. Environmental organizations recently successfully brought an action to force the issuance
of WVO permits for the heavily-polluting glastuinbouw industry (greenhouse growers of flowers
and vegetables)7.
Even where permits exist, identifying violations may not be easy. One reason is that the
permits often contain outdated limits which the permit holder can meet without difficulty8. WVO
permits are not generally issued for a definite term as Clean Water Act permits are (5 years).
Moreover, numerous businesses hold so-called historical permits which reflect lenient
grandfathered standards pre-dating the WVO9. Identification of violations of these permits is thus
not really the issue. Permit conditions are being met but the permits are not protecting water
quality.
The WVO permits also seldom require reporting as detailed and informative as DMRs.
Even the information that is available is often not in easily digestible form10. The government
recently conceded to environmental organizations investigating the discharges of major industrial
installations in Rotterdam harbor that it lacked the personnel and technical capacity to review the
information it receives from these polluters11. In any event, the data the government assembles is
often not in a form that allows for rapid review and easy understanding.
One possible explanation for the lesser reliance on reporting by the discharger itself
relates to the legal status of the information. Where the responsible government authority has
evidence of a violation, it can refer the matter to the public prosecutor12. The prosecutor then
investigates further and may elect to commence proceedings against the violator. These proceed-
ings are criminal in nature and information provided by the discharger itself can not, as a rule, be
used against it. This is a protection analogous to the protection against self-incrimination in
American law. Whether as a result of this rule or not, in practice it is the government that does
most of the sampling itself. A recent development of note is the acceptance of samples collected
by environmental organizations as evidence in prosecutions for WVO violations13.
WVO permits however show a recent trend increasing the SMR requirements14. It is
obviously not optimal if the system does not allow even government oversight to function
properly. Obviously, citizen enforcement in such circumstances is not likely to be possible, let
stand effective. The consequences for citizen enforcement are considerable. Instead of going to
an office of a public authority in order to examine a particular file, citizen's groups are forced to
extreme lengths to gather information, including literally taking to the water itself.
Citizen's groups have investigated dischargers they suspect to be violating the law by
undertaking their own data collection efforts. Using their own boats and equipment, environmental
organizations have collected samples directly from dischargers' pipes15. Finding and gaining
access to these pipes is not always possible, however. Even if it can be done, the process is an
expensive, time-consuming, and uncertain one.
There is thus a major contrast in the ability of citizens to identify violations under the two
legal regimes. Under the Clean Water Act, a simple administrative check is sufficient. In the
Netherlands, citizens have to begin by raising the money to finance their own investigation,
including obtaining the necessary equipment to sample with scientific accuracy in order to begin
the process of identifying a violater.
4 INFORMATION IN USABLE FORM
A second precondition for effective enforcement, either by citizens or by government
authorities, is ready access to the relevant sort of information. In the case of a water polluter, that
information is the data which will allow the enforcer to show that a violation of the law has taken
place.
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4.1 Information Generated under the Clean Water Act
Under the Clean Water Act, the discharge permit specifies extensive reporting of exactly
the kind of information necessary to determine whether a violation has taken place. The permit
lists a number of pollutants and the concentration values or other limitations which apply. In
addition, and no less important, the permit specifies the frequency of monitoring required, and the
nature of sampling which must take place. Thus, for example, pH must be measured continuously
and not fall below a stated minimum nor exceed a stated maximum value. Solids must be
measured on 20 separate days per month to allow calculation of a monthly average but there is
also a daily maximum value. The law treats a failure to comply with any of the sampling,
monitoring and reporting requirements on an equal footing with failure to comply with a discharge
limit for a pollutant. Both are violations of the permit, and subject to the same sanctions16.
4.2 Information Shortcomings under the WVO
Water quality permits in the Netherlands are much less specific. The WVO authorizes
SMR requirements but the permits generally do not impose sufficient requirements to allow a
clear picture of a discharger's activities to emerge17. Thus, for example, aggregate information on
total discharges over a year can be quite useless for pinpointing violations of a standard at any
particular time. Such information is generally not suitable to show harm to water quality, since
water quality damage is usually directly related to the concentration of a given pollutant at a
particular time. If a yearly average is reported, no one can be sure whether the excessive
discharge of pollutants took place at a time of high or low stream flow, during the breeding
season of a vulnerable species and so forth.
In short, properly formulated SMR requirements are just as essential as standards for the
pollutants themselves.
There is a further complication with the ultimate enforcement of a violation using
information generated under the law. Under the Clean Water Act, the DMR is a defendant's own
document, signed by the discharger itself. In a legal proceeding, proving a violation of a permit
condition is simple. The defendant's DMR, previously filed with the responsible public body, is its
admission that a discharge with the stated value took place. Moreover the Clean Water Act does
not require proof of harm to water quality in order to establish a violation of the taw. A violation is
established by proof that the permit limit was exceeded. This is exactly the information that the
DMR can incontrovertibly provide.
In the Netherlands, in order to make a showing of a violation stick, a citizen enforcer would
have to show that its sampling was accurate and representative, as well as demonstrating the
water quality impact resulting from the violation. Defendants are thereby put in a position of being
able to raise all sorts of arguments to discredit the citizen's work, such as the inaccuracy of the
sampling, that it was not representative, that a laboratory error was involved, or that the
exceedance can be explained by any one of a number of other factors. Furthermore, the
defendant can argue that the discharge did not come from its plant or that it did not cause harm
to the water. Obviously, with this long list of factors upon which to base arguments, the likelihood
that the citizen will succeed in proving a violation is considerably reduced.
5 ACCESS TO INFORMATION
An additional crucial precondition for the success of citizen enforcement is the citizen's
access to information.
5.1 Access to Information Generated under the Clean Water Act
Under the Clean Water Act the DMR is a public record. Citizen's access to public records
and documents are guaranteed by freedom of information law. Dischargers routinely file DMRs
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and access to these documents is so routine that most public authorities do not even require a
formal freedom of information act request from citizens wishing to review these records.
5.2 Access to Information Generated under the WVO
In the Netherlands, access to these public records is not routine. The Netherlands does
have a form of freedom of information law, the Wet Openbaarheid van Bestuur (Wob) or Open
Administration Act18. Access to information under the WVO is, however, regulated by the Wet
algemene bepalinqen milieuhygiene (Environmental Protection (General Provisions) Act) (WABM).
The WABM provides that publicly-held records related to environmental permits are, as a general
rule, accessible to the public19. There are however broad loopholes in the law. Particularly
significant in this context is the confidentiality exception. A business entity can, if it so chooses,
designate information it provides to the government as confidential business information20.
Information so designated may not be released to the public. It is well-nigh impossible to
challenge the designation of information as confidential. The exception in the law leaves the
regulated in the position of deciding what information the public will see, a decision which is not
open to public scrutiny or challenge.
In addition, dossiers referred to the public prosecutor are also not public. Pending a
decision whether to proceed with prosecution - a decision that can take months or longer - citizen
access to the information is stymied.
Citizen experience with requests for information also reveal certain practical problems.
Their requests are not treated as routine and frequently encounter administrative reluctance to
process them. Officials are also cautious about opening files and releasing information in part out
of fear of releasing confidential information and anxiety about disturbing good relations with the
business that supplied the information21. It is clear that the system still emphasizes closeness
more than openness.
In neighbouring Belgium, where the situation is, if anything, even worse, citizen
enforcement efforts strand at an even earlier point, since in Belgium until recently one was not
even entitled to know if a discharger held a permit, much less what it contained in the way of
standards.
This difficulty with access to the relevant information raises a further unnecessary barrier
to citizen enforcement.
6 CONDITIONS FOR CITIZEN ENFORCEMENT
There are of course a number of other preconditions for citizen enforcement to take place.
These are beyond the scope of extensive discussion here. A comment about access to the courts
is however in order.
The standing of the citizen to bring an action must not be in serious question. Legal action
must not be prohibitively expensive. Citizens must not face having to pay the costs of the other
side's defense if the citizen's action is unsuccessful.
Under the Clean Water Act, citizen action is specifically encouraged by express provision
of the law. Moreover, because a strict liability standard applies, the chance of success is
extremely high. As described above, violations are readily identified and proven. The risk of losing
a citizen suit and therefore the risk of having to pay the costs of the winning party is small. The
Clean Water Act also provides that citizens can recover their attorney's fees in the event they are
successful.
In the Netherlands, the notorious American readiness to settle differences before a judge
is absent. There is no citizen suit provision in the WVO. Moreover, there remains a residual
antipathy in the judiciary to citizen action. This is reflected in the close scrutiny given the question
of standing despite established jurisprudence acknowledging citizen interest in environmental
matters as legally sufficient to support judicial action.
Equally significant is the substantially smaller chance of success in proving one's claims.
Going to court on the basis of your own water samples is a far less secure way of proceeding
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than to rely on a defendant's own documents containing signed statements of violations of permit
standards. Moreover, should the citizen action prove unsuccessful, the costs in civil actions (an
item which is less than actual attorney's fees) can mount to thousands or ten of thousands of
guilders - amounts which environmental organizations can rarely if ever, afford to lose.
Administrative proceedings by contrast can be prosecuted for only nominal costs.
Proceedings under the WVO are also made more extended, complicated, and therefore
expensive by the need to show harm to water quality. Under the Clean Water Act, the permit
limits are deemed to have been established at a level appropriate to protect water quality. Harm
to water quality is relevant only to the penalty stage and not the liability stage of the action.
Another important aspect encouraging citizen enforcement is the chance of a satisfactory
result. The court must be in a position to correct the problem through financial or other means.
Under the Clean Water Act, significant penalties of up to $25,000 per day of violation can be
imposed. In addition the court has injunctive power, that is: the court can order a polluter to take
specific steps to come into compliance by a specific day.
In the Netherlands this is less likely. The courts lack authority to impose significant
penalties and their injunctive powers are also less extensive and less extensively used.
7 RELATION TO GOVERNMENT ENFORCEMENT
Citizen enforcement works best where it is simple and inexpensive. The preceding
discussion has focused on factors that make citizen enforcement possible and effective. If a
citizen is in a position to identify violations, he is in a position to act.
The Clean Water Act has demonstrated that a system of this type is possible and
workable. Over the past decade, citizens have initiated hundreds of legal actions against permit
holders for violations of the Clean Water Act. These actions have been brought against a broad
spectrum of polluters including large industrial installations such as steel mills, municipal
authorities operating waste water treatment plants, and smaller enterprises whose discharges
have serious water quality impacts. These actions have resulted in substantial penalties for non-
compliance and court orders to take the necessary steps to come into compliance. In addition, as
the next section will discuss, citizen enforcement has had an impact on government enforcement
activities.
In the Netherlands, citizen enforcement efforts have been hampered by difficulties in
obtaining and making use of information about violations. Citizen enforcement action has been
correspondingly limited as the following sections will discuss.
7.1 Spur
One of the functions of citizen enforcement is to spur, to provoke, to encourage
government enforcement to take place.
The Clean Water Act to this end contains a notice provision requiring citizens intending to
file suit against a polluter, to give the government sixty days notice of their intent to file suit and to
bring to the attention of the government the violations at issue22. This notice provision gives the
government an opportunity to act. If the government files suit within the sixty day period, the
citizen action is foreclosed. If the citizen suit period passes without the government filing, and
citizens files a law suit, the government may always intervene as a party. Government right of
intervention is unlimited. Even at the conclusion of the case the government may step in to review
the settlement terms agreed to by the citizen enforcer and the defendant.
Experience in the US with the Clean Water Act's notice provision has shown that it is
effective in bringing to the government's attention the violations concerned and government
enforcement has on many occasions resulted.
Government enforcement has also on many occasions not followed the notice given by
citizens in which case citizens have been free to pursue the action themselves.
In the Netherlands there is no such formal procedure. Citizens may bring to the
governments attention suspected violations by any means available. In general, environmental
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groups, aware that the possibility for direct enforcement action is limited, have followed the route
of urging government action23. The water quality sampling by environmental organizations has
also served this purpose by calling attention to a water quality problem and calling for further
government action. Given the dominant overlegcultuur (discussion culture), the government
generally responds by entering into discussions with the dischargers involved24. There is a
general reluctance to pursue judicial remedies. If the competent authority fails to act, or act
satisfactorily, citizens can bring an administrative action to compel a more forceful response.
The Netherlands is situated at the mouth of the Rhine and other major rivers including the
Maas and the Schelde which flow through Belgium. Efforts to improve water quality here are
therefore to a considerable extent dependant on actions taken upstream. The Belgian authorities
have however been notoriously lax in controlling water pollution from industrial sources and have
not constructed adequate facilities for treatment of domestic waste. Brussels, to cite the most
egregious example, discharges untreated sewage into the waters.
Environmental organizations in the Netherlands have for years without success urged the
Dutch government to tackle this transboundary problem in conjunction with the Belgian
authorities. Improvements have been slow or non-existent. With Belgian polluters of international
water courses, the spur has not worked. Despite repeated pleas by citizens and environmental
organisations and the evidence they have gathered, action against Belgium water polluters via the
Dutch government has not taken place. Environmental organizations have accordingly begun to
challenge Belgian polluters in the Dutch courts, thus far without direct success25.
Citizen enforcement can be an effective spur if the government knows that there is a real
possibility of citizen action. The US experience in this respect is instructive. In the first half .of the
1980's citizen enforcement activity was considerable. In the latter half of the 1980's, partly as a
result of this increased citizen's enforcement, the US government also began enforcing much
more than it had previously. The government knew that the law provided and the practice had
borne out that following failure of the government to initiate a judicial action a citizen suit would
follow.
In the Netherlands, in contrast, the possibility of a citizen's legal action following a
complaint, is much less likely and may partly explain why Dutch governmental authorities tend to
respond to citizen complaints of water pollution violations by entering into further discussions with
the polluter as opposed to taking legal action.
In the case of the Belgian water polluters, the Dutch government has been negotiating the
so-called 'water treaties1 with the Belgian government for twenty years or so without notable
progress.
7.2 Supplement to government enforcement
As anyone concerned with environmental law and enforcement knows, attempting to
regulate and to keep track of the compliance with environmental laws on the part of industries is
an enormous task. In the US the number of Clean Water Act permit holders is in the tens of
thousands. It is simply impossible, even under the best of circumstances, for government to do
everything. Citizen enforcement is therefore a useful supplement to government resources.
Citizen enforcement strengthens the government's reach and can also reinforce the government's
power to the extent that a polluter or a potential polluter will undertake efforts to comply with the
law because it knows that it faces two possible enforcers: the government and citizens.
In the Netherlands, in contrast, citizen enforcement is difficult and therefore rare: the
government must do it virtually all.
The violater knows that if it can avoid government enforcement, e.g. by prolonging discussions, or
promising improvements, or threatening to close its plant, it faces very little risk of enforcement by
citizens' groups.
7.3 Substitute for government enforcement
Citizen enforcement is also useful as a substitute for government enforcement when the
government, for political or policy reasons, chooses not to enforce. Under the Clean Water Act in
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the early eighties, government's failure to act was recognised by citizens and environmental
organisations and they stepped into the gap left in enforcement. Citizen enforcement in such an
instance serves the interest of environmental policy and fairness.
The vast majority of businesses have invested in the equipment and manpower and their
training needed to meet the law's requirements. Their competitors who have not, have an unfair
advantage if they do not incur these costs and are not penalised for their failure to do so.
8 GEDOOGBELEID: THE POLICY OF CONDONING VIOLATIONS
No discussion of citizen enforcement in the Netherlands would be complete without
mentioning the official government policy which sanctions non-compliance with the law. This
policy, known as 'gedooqbeleid'. allows violators of the law to escape prosecution. 'Gedooqbeleid'
or the policy of condoning violations, goes beyond prosecutorial discretion. It results in an official
exception being made to the law's requirements.
In the past, this exception was generally passive, that is the government simply did
nothing to enforce against violations it knew of. Two years ago, the Ministers of Environment and
Water Management pledged before Parliament to restrict the practice26. The condoning of
violations still occurs but, in theory, subject to the conditions spelled out in the Ministers' pledge.
The condoning policy is now active in the sense that it is reflected in an official written document
from the relevant competent authority to the violater in question. This document promises to
forego enforcement for a transitional period after which the violator is expected to come into
compliance.
The practice continues, however. The condoning of violations can vitiate citizen
enforcement entirely. A recent example of this is an action brought by the Stichting Natuur en
Milieu, against one of the Netherlands' two nuclear power installations for failure to have a permit
based on appropriate consideration of safety factors. Immediately following a high court decision
in favor of the environmental organisations ruling that the reactor was operating without the
appropriate permit, the Dutch Minister of Economic Affairs, with responsibility for energy,
announced that he was prepared to promptly issue a permit allowing the installation to continue
operation.
9 ENFORCEMENT IN OTHER CONTEXTS
Thus far we have considered enforcement under the traditional end-of-pipe type
command-and-control regimes. Before concluding, it is worthwhile to take a look at two other
aspects where citizen enforcement can play a role in the prevention of environmental damage.
9.1 Environmental impact analysis
The citizen role in forcing environmental impact analysis to be performed and performed
properly, has been significant. Again, information is crucial. Perhaps the most important
information is the timely announcement of consideration of a project. Publication is therefore of
essential importance.
By publication is meant an announcement in, at a minimum, a journal of wide circulation in
the affected locality. The announcement should describe the project sufficiently to allow the
reader to get an idea of its scope. Publication should be followed by the right of the public to
examine and comment on the project plans as well as on the environmental analysis performed
for the project.
The citizen right to challenge environmental impact statements for inadequacy, or the
failure to perform them altogether, is a powerful incentive to government and project sponsors to
get it right to begin with (and to consider public comments), lest they be sent back to the drawing
board with the attendant loss of time and the costs that that entails.
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This has been effective. The US National Environmental Policy Act, the first statutory
authority for environmental impact analysis, is of broad application, concentrating on possibly
significant effects on the environment. In the US, an entire industry has grown up around the
preparation of environmental impact analysis. The growth of environmental awareness in public
authorities and among project developers has also been significant and is consistent with the
purposes of the legislation.
In the Netherlands, the application of environmental impact analysis requirements has
been more limited. Only certain categories of projects are subject to the law. This results in a less
extensive look and also a less extensive role for citizens in ensuring that potentially
environmentally harmful projects are screened for these effects at an early and meaningful
moment. Still, the number of environmental analyses is steadily on the increase with the
corresponding development of increasing public attention to potential impacts.
9.2 Covenants
There is a trend in environmental policy-making to move away from the traditional
command-and-control regulatory regimes toward greater reliance on voluntary agreements
between government and industry to achieve environmental compliance.
The use of such covenants as an instrument of environmental policy is for a number of
reasons, a disturbing development.
With respect to citizen enforcement, it is particularly serious in that the use of covenants to
replace statutory requirements eliminates the possibility of citizen enforcement.
A covenant is an agreement in the nature of a contract between the government and
private parties. As a general rule, third party rights are not protected, or put in another way,
persons not party to the contract have no right to enforce its terms. If the contract is breached by
industry, and the government chooses not to enforce against this breach, there is no remedy for
the citizens for the government's failure to act.
Add to this the non-binding nature of many such agreements, and it is easy to see why
environmental groups have objected to the practice of carrying out environmental policy by means
of voluntary agreements with industry.
10 DIRECTIONS FOR THE FUTURE: THE EUROPEAN DIMENSION
10.1 Enforcement across the Disappearing Border
In Europe, of course, transboundary pollution effects are a major problem. This is
especially true in the Netherlands, which sits at the mouth the Rhine and other major rivers, and
between the industrial centers of England and Germany. Transboundary pollution requires
transnational solutions and these have been sought primarily in the framework of the European
Community (EC). Arguably, the difficulties citizens have encountered in transnational enforcement
should vanish with the disappearance of the borders between EC countries with the completion of
the Internal Market.
EC environmental legislation can have major implications for enforcement across national
boundaries. Following a decision by the European Court of Justice, citizens may now bring
actions in the place where the environmental harm occurs (i.e. their home country) against
polluters operating in another state. This decision has paved the way for actions such as those
noted above against the Belgian water polluters.27
Further implications for the standing rules under the internal market could also profitably
be investigated. At least where EC-derived environmental rules are at issue, standing should be
granted to all citizens of any member state who can show the requisite interest in the subject
matter.
A further problem is with access to information. Whatever rights a citizen of a particular
state has to obtain public records in his own country, he is generally not able to extend these
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rights to obtain information in another country. This may change with the coming into force of the
EC's directive on freedom of access to environmental information at the end of this year28.
Disregard of the citizen in transnational matters is reflected also in the EC's environmental
impact assessment directive which requires notification of governmental authorities in another
member state of the possible construction of a project with environmental implications29. No
equivalent notice is given to citizens across the border.
10.2 Environmental Inspectorates
Much discussion in the European context on future directions in environmental
enforcement has centered recently on the establishment and strengthening of inspectorate
services at EC and national levels.
It is the view here that such efforts are misguided. On-site inspection can usefully
supplement but not substitute for administrative oversight. It is prohibitively expensive by
comparison with the alternatives available. The better method is to see to it that the appropriate
paper record is created as described above. Such a paper record can be administratively
controlled, and is in a final analysis, a more effective compliance mechanism in that enforcement
on the basis of the administrative record is simple and sure.
11 CONCLUSION
From the point of view of government and industry as well as that of the citizen enforcer,
what is needed is a regulatory system that, wherever possible, licenses the polluting activities of
individual enterprises (public and private) and specifies what they can release into the
environment. Equally important, these permits must specify sampling, monitoring and reporting
requirements which result in data that provides a complete and ongoing picture of the polluting
activities to the polluter, to the regulating governmental authority, and to the interested citizen.
Only then will government be in a position to perform its oversight and control functions
efficiently and effectively. And if this information is available to the citizen, he will be in a position
to aid in these efforts as a watchdog and helping hand for government enforcement efforts.
ENDNOTES/REFERENCES
1 This paper draws on the author's first-hs.nd experience with these matters. In the United
States from 1985-89, he represented environmental organizations in citizen suits under the
Clean Water Act against industrial and municipal polluters. In the Netherlands, the
Stichting Natuur en Milieu has been actively involved in enforcement against water
polluters as well as efforts to change the law to strengthen its enforcement provisions.
2 33 U.S.C. sections 1251 et seq.; section ^11.
3 Wet van 13 december 1969, Stb. 536; Art. 1(1).
4 On the enforcement rights of citizens, oee generally Jurgens, V., Langenhoff, V. and
Robesin, R., Actieboek Natuur en Milieu, W.E.J. Tjeenk Willink, Zwolle (2nd ed. 1989).
5 Wet algemene bepallngen milieuhygiene (Environmental Protection (General Provisions)
Act) (WABM), Wet van 13 juni 1979, Stb. 442, Art. 57.
6 Teunissen, R. and Groen, M. (ed.), WVO afdoende of afgedaan?: Een onderzoek naar
het functioneren van de Wet Verontrelniglng Oppervlaktewateren" (A Study of the
Operation of the Surface Waters Pollution Act), Stichting Reinwater, Amsterdam, 1990,
p.28.
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7 See Uitspraak van de Voorzitter van de Afdeling Geschillen van Bestuur Raad van State,
8 April 1992, no. B 05.91.0126 (mr. Van Dijk).
8 See Teunissen, supra note 6, at 4,
9 See WVO, Art. 31(3); Teunissen, supra note 6, at 7.
10 Hoitink, J., de Kruyf, G. and Vis, M., Naar een verpHcht milieuverslag. Biedt
milieurapportage meer inzicht In tnilieuzorg door bedrijven? Onderzoek in Nederland
en de Verenigde Staten. (Toward an environmental report requirement. Do environmental
reports offer more insight into environmental care systems for industry? A study in the
Netherlands and the United States.) Wetenschapswinkel rechten, Rijksuniversiteit Utrecht,
1991, p. 21.
11 Schmit, H., "Rijkswaterstaat heeft geen zicht op lozingen", in Trouw, June 19, 1991,
reprinted in Hoitink, supra note 10, at 74.
12 See. e.g., Fangmann, H., Criminal Enforcement of Environmental Legislation, in
International Enforcement Workshop, Proceedings, Vol. I, pp. 129-140 for a description
of the role of the public prosecutor and Teunissen, supra note 6, at 29.
13 Personal communication. J. Rutteman, Stichting Reinwater, June 29, 1992.
14 Hoitink, supra •-,'- ""O, ai 44.
15 See, e.g., Teunissen, supra note 6, at 12-25.
16 33U.S.C. section 1319.
17 Art. 1a; Hoitink, supra note 10, at 21; Teunissen, supra note 6, at 27-29.
18 Wet van 31 oktober 1991, Stb. 703.
19 Wabm, Art. 57.
20 Wabm, Art. 58.
21 Hoitink, supra note 10, at 21.
22 33 U.S.C. section 1365(b).
23 See Teunissen, supra note 6, at 30-33.
24 See ^anqman, supra note 12, at 135; Teunissen, supra note 6, at 27.
25 See Stichting Reinwater v. N.V. Sopar, President rechtbank Middelburg, Nr. 24/1991, in
1991 Milieu en Recht at 357; and Stichting Reinwater v. Carcoke S.A., President
rechtbank Middelburg, Nr. 82/1992.
26 See Tweede Kamer der Staten-Generaal, 21 137 nr. 26 (28 May 1990); 22 343 nr. 2 (10
October 1991).
27 See Rijnproces, Hoge Raad, 23 September 1988, in 1989 Milieu en Recht at 24.
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28 Directive on Freedom of Access to Information on the Environment, 90/313/EEC, OJ L
158, June 23, 1990.
29 Directive on the Assessment of the effects of certain public and private projects on the
environment, 85/337/EEC, OJ L 175, July 5, 1985.
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CITIZEN PARTICIPATION IN U.S. ENVIRONMENTAL ENFORCEMENT
VAN HEUVELEN, R.I.1 and BREGGIN, LINDA K.2
1 Director of Civil Enforcement, United States Environmental Protection Agency 401 M Street,
S.W., Washington, D.C. 20436.
2Specia! Assistant, Office of Enforcement, United States Environmental Protection Agency, 401 M
Street, S.W., Washington, D.C. 20436.
SUMMARY
This paper examines and assesses the advantages and disadvantages of the roles that
private citizens play in the enforcement of federal environmental laws in the United States. One
of the fundamental goals of environmental enforcement in the United States is to achieve wide-
spread compliance with environmental laws and regulations among the members of the regulated
community. The government has only limited resources with which to achieve its compliance
goals. Therefore, the government consistently must took for methods by which to leverage its
existing resources, in order to foster compliance without expending large amounts of its limited
resources. In general, citizen participation in environmental enforcement has assisted the
government in reaching its goals with respect to compliance while at the same time allowing the
government to conserve its resources.
Citizen suits, however, do present certain challenges for the government. This paper
places particular emphasis on citizen suits filed in federal court against alleged violators of the
environmental laws. Citizen suits are the form of citizen involvement in environmental
enforcement that can potentially create the greatest difficulties for the government, as these suits
provide citizens with the opportunity to act in a prosecutorial role, one that is traditionally reserved
for government enforcement personnel. Although there are inherent tensions in a system that
requires the government to share enforcement authority with private citizens, citizen suits in the
United States have augmented government enforcement efforts in the past and are likely to do so
in the future. In general, citizen participation in the environmental enforcement process promotes
compliance with the law and effectively supports the United States' environmental enforcement
efforts.
1 BACKGROUND
Government enforcement of the United States' environmental laws is achieved through a
cooperative effort between federal, state, and local governments. The United States
Environmental Protection Agency (EPA) is the federal agency with primary responsibility for
enforcing U.S. environmental laws, although other federal agencies also enforce environmental
statutes.1
EPA is based in Washington, D.C. and includes an Office of Enforcement which directs
and advises the other offices within EPA on enforcement matters. The Office of Enforcement
also oversees the handling of enforcement cases, and develops and implements national
enforcement policy. Ten EPA Regional offices are responsible for carrying out enforcement
activities on a day-to-day basis. These regional offices oversee and financially support state
enforcement programs, as well as implement federal enforcement programs. In addition to EPA
Headquarters and the Regional offices, EPA also has a National Enforcement Investigations
Center (NEIC) located in Denver, Colorado. NEIC provides technical expertise to the Agency and
manages an investigative unit that assigns investigators to work in the regional offices.
In addition to EPA, the Department of Justice plays an integral role in federal enforcement.
The Department of Justice is responsible for handling enforcement cases in the federal courts.
The cases are developed by EPA legal and program offices and are then referred to the
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Department of Justice. After receiving a case referral from EPA, the Department of Justice
determines whether the case should be filed in federal court. If a complaint is filed in federal
court, the Department of Justice represents the government in the action against the alleged
violator. EPA continues to work closely with the Department during all stages of the litigation.
A large portion of environmental enforcement in the United States is handled by state
governments rather than by EPA and other federal entities. The federal environmental laws
authorize state governments to implement federal environmental programs in their states, but
generally state programs first must be approved by the federal government for consistency with
federal requirements. The states implement the national laws and regulations by issuing their
own rules and permits. In turn, states may delegate authority for enforcing environmental laws to
their county and city governments. In addition, many states have independently authorized
environmental programs to regulate the disposal of pollutants into the air, water and land.
Even if a state has been delegated authority to implement a federal enforcement program,
the federal government retains the ability to take enforcement measures. As a matter of policy, if
a state fails to respond to a significant enforcement concern in a "timely and appropriate" manner,
EPA will take enforcement action. EPA also will step in when there is a violation of an EPA order
or consent decree, or in the event that a particular case involves issues of national concern or
precedent. In addition, EPA assists states that have been delegated authority to implement
federal programs by providing training to state personnel, reviewing state enforcement strategies,
and overseeing state inspection programs.2
In addition to the government entities that handle environmental enforcement, private
citizens play an important role in enforcing the United States environmental laws. Citizens
participate in several ways. First, citizens assist the government in identifying violations of the
laws. Second, citizens can provide comments on settlements between the government and
violators of the environmental laws that are reached in enforcement cases. Third, citizens can
bring enforcement actions on their own against alleged violators of the environmental laws.
Citizens also may bring actions against the government for its failure to perform mandatory duties
that are required under federal environmental statutes.3
This paper will focus primarily on the role of citizens in bringing enforcement actions
against alleged violators, because this powerful form of citizen participation in enforcement has
been formally established by Congress in the federal environmental laws. In addition, citizen
suits can present unique challenges for government enforcement personnel who, absent specific
statutory authority, traditionally have exclusive authority to bring enforcement actions. However,
before examining citizen suits in detail, a few words should be said about the valuable role that
citizens can play in detecting violations, and the role that citizens play in approving settlements in
enforcement cases.
2 CITIZENS' ROLE IN IDENTIFYING VIOLATIONS
Citizen involvement in identifying violations of the environmental laws is an integral part of
environmental enforcement in the U.S., and serves to assist the government in achieving
compliance with the environmental laws and regulations. Citizens are often the most able
witnesses to observe and identify violations of the law or conditions which may present a threat to
the human or natural environment in the vicinity of their homes or work places. Because citizens
are in close and constant proximity to sources of pollution they are often the best sources of
information. Citizens are particularly likely to detect quickly any new sources of pollution or
changes in emissions and discharges in the areas in which they live and work.
Furthermore, given the limited resources available to the government for use in inspecting
facilities owned by the regulated community, reports from the public can be of considerable
assistance in identifying violations. Although many EPA enforcement actions are based on data
that the regulated community is required by statute to submit to the government, detection of
violations through inspections and other means that do not involve self-disclosure is a crucial
element of a successful enforcement program. EPA is responsible for ensuring compliance in an
extremely large regulated community. However, due to budgetary constraints, EPA is able to
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employ only a limited number of federal enforcement inspection personnel. For example, EPA
has a total of approximately 1850 technical personnel that are trained to inspect facilities. In
addition, by the end of this year EPA expects to have a total of 76 criminal investigators and
nearly 50 civil investigators.4 Individual states also employ their own inspectors.
To maintain the confidence of the public, the government is committed to following up on
reports received from citizens, and many citizen reports are difficult to verify and, therefore, do
not lead to enforcement actions. Nevertheless, citizen reports of violations and environmental
threats are valuable and outweigh the cost of processing the information that is provided to EPA
and the states. At this time, statistics are not available on the total number of citizen reports that
are received each year by Headquarters, the Regional offices, and the state environmental
agencies, or the number of reports that lead to prosecutions, civii or criminal convictions or the
imposition of civil penalties. However, anecdotal information is available. Recently, in the case of
United States v. Goodner Brothers Aircraft. Inc.. No. 90-20031-01 (W.D. Ark. 1991) a citizen's tip
led to the conviction of the owner of an aircraft refurbishing company under two federal statutes.
A citizen observed that two men were dumping creamy beige toxic-smelling waste into a ravine
located on a nearby farm. The owner of the farm assured the citizen that he was aware of the
activity and that there was no cause for concern. Nevertheless, the citizen reported the violation
to EPA. EPA investigators were able to establish that the owner of the farm was dumping waste
containing paint removers and old paint from his aircraft refurbishing business into three pits on
the farm. A total of approximately 25 tons of waste had been dumped in violation of the
Comprehensive Environmental Response, Compensation and Liability Act and the Resource
Conservation and Recovery Act.5
In addition to producing concrete enforcement benefits such as producing leads for
enforcement cases, citizen participation in identifying violations has certain other less tangible but
equally valuable results. Citizen participation helps to make environmentally responsible behavior
part of the fabric of United States' society, and inspires citizens to believe that they can play a
significant role in maintaining a clean and safe environment through their own actions and
through reporting those individuals and corporations that do not respect and adhere to the
environmental laws. This yields enormous benefits in the context of citizens finding responsive
action from democratic government.
Furthermore, citizen participation in reporting violations can have a significant deterrent
effect on polluters. If potential violators know that they not only have to be concerned about the
government detecting their violations but that citizens, including the average citizen who lives or
works next door, are also on the look out for illegal emissions and discharges, potential violators
are further encouraged to comply with the environmental Saws. Therefore, increased deterrence
also results from citizen participation in detecting violations.
Accordingly, EPA encourages active citizen participation in identifying and reporting
potential violations of the environmental laws through several means. As a general matter,
decisions can be made to make information available to the public that citizens could not normally
obtain or that would require substantial time and effort to obtain. For example, EPA makes
available to the public its list of significant violators of the Clean Air Act. More formal ways of
encouraging citizen participation also exist. For example, EPA publications are made readily
available to the public which outline the steps that private citizens should take when they believe
that they have detected a violation of the environmental laws. The EPA publications emphasize
the importance of documenting all observations in writing and, if appropriate, documenting the
potential violations on film. These EPA publications also provide guidance as to what may
constitute a violation under each of the major environmental laws.6
EPA publications instruct citizens to pay particular attention to unusual odors; unusually
flavored or colored drinking water; new and unusual air emissions (particularly dark air
emissions); emissions that burn or sting the eyes, mouth, nose or skin; colored discharges into
streams; dead animals or fish in the area of suspected pollution; and dumping of garbage in
unusual places or at unusual times. EPA publications also provide contact persons and phone
numbers within the government to whom potential violations should be reported.7
In addition, citizen participation in identifying violations is encouraged through certain
statutory provisions in the federal environmental laws. Section 109(d) of the Comprehensive
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Environmental Response, Compensation and Liability Act provides that citizens who furnish
information to EPA that leads to the arrest and conviction of any person for a criminal violation of
the statute may be given a monetary reward of up to $10.OOO.8 EPA anticipates giving the first
two awards under the program within the next month. Congress recently added a similar
provision to the Clean Air Act which provides that awards may be given for furnishing information
that leads to either a criminal conviction or a civil judicial or administrative penalty.9
Finally, EPA currently is in the process of establishing a Paid Informant Program. The
program would allow EPA to pay individuals for providing information and evidence regarding
criminal violations of the environmental laws. EPA is often in the position during the course of an
investigation where obtaining critical information or evidence from an individual is essential for
establishing a strong enforcement case. In some cases, obtaining this information or evidence,
which is not otherwise readily available, may depend upon making a payment to an individual in
exchange for the information or evidence. The EPA program will be modeled on the programs
developed by other federal law enforcement agencies.
3 CITIZEN PARTICIPATION IN SETTLEMENTS
Citizens also play a role in enforcement by commenting on settlements reached between
the government and alleged violators in environmental enforcement actions. This form of citizen
involvement augments the government's limited resources and helps to ensure that appropriate
levels of compliance are achieved through enforcement settlements, and that proper steps are
taken by violators to correct any damage caused by their violations.
Regulations issued by the Department of Justice mandate that 30 days must be provided
for citizens to comment on the terms of any proposed settlement in a federal civil judicial action to
enjoin discharges of pollutants into the environment, before the government formally will agree to
final entry of the decree in federal court.10 The comments received by the Department of
Justice are filed in federal court. The Department of Justice reserves the right to withdraw or
withhold its consent to the proposed settlement if the comments received disclose facts or
considerations which indicate that the proposed settlement is "inappropriate, improper, or
inadequate." In addition, individual statutes also contain provisions that provide the public with an
opportunity to participate in settlements.11
Citizen comments on settlements have yielded, on occasion, changed terms, such as an
increase in the amount of the penalties paid by a defendant. For example, in the case of United
States v. Exxon Corp.. in which the Exxon tanker "Valdez" spilled over 11 million gallons of crude
oil into Prince William Sound after striking a reef, Alaskan citizens played a key role in the
settlement process. Citizens were invited to comment on both the civil and criminal settlements
in the case and testified before the Alaskan legislature which had the authority to reject the civil
settlement. The first proposed settlement on the criminal charges was rejected by the Federal
District Judge. The legislature also rejected the first proposed civil settlement. The settlement
that was ultimately reached required Exxon to pay at feast $900 million.12
Alaskan citizens influenced the terms of the settlement directly and indirectly through their
active participation in the settlement process. For example, in response to comments from one
group, the National Trust for Historic Preservation, a provision was added to the settlement which
provided that funds could be used to restore archeological sites. In addition, the high-level of
interest from the citizens undoubtedly helped shape the government's settlement position, and
encouraged the government to seek high penalties from Exxon.
In order to encourage citizen participation in settlements. Congress created the Technical
Assistance Grant Program (TAG Program) as part of the 1986 amendments to the
Comprehensive Environmental Response, Compensation and Liability Act The purpose of the
TAG Program is to foster community involvement by assisting citizens who live near hazardous
waste sites to understand cleanup activities, better articulate local concerns, and participate more
effectively in the cleanup process.
The TAG Program provides funds for citizen groups to hire independent technical advisors
to help them understand and comment on the technical aspects of cleanup decisions that directly
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affect their members' health, economic well-being, or enjoyment of the environment. Such
technical factors may include analytical profiles of conditions at a site, the nature of the wastes
involved, and the types of technology available for performing the necessary cleanup actions.
Grants of up to $50,000 are available to community groups for the purpose of hiring
technical advisors, such as epidemiologists and geo-hydrologists, to help citizens understand and
interpret site-related technical information. The group, however, must cover 20 percent of the
total costs of the project. The use of grant funds must be budgeted by the community group to
cover the entire cleanup period. On average, cleanups last six years. Only one TAG Grant may
be given for each site on the National Priorities List, which is the list published by EPA of the
most serious abandoned hazardous waste sites nationwide that have been identified for possible
remedial cleanup. TAG Grants may not be used to develop new information about a site, such
as additional sampling of wastes.
The TAG Program has awarded 90 grants, totalling $4.5 million, to grassroots community
groups. The TAG Grant Program has become increasingly successful with over half of the grants
awarded in the last eighteen months.
It should be noted that in addition to the advantages of citizen participation, certain
disadvantages also exist. The primary disadvantage that can result from public participation in
settlements is unnecessary delays in entering final enforceable settlements in court. For
example, in U.S. v. Amoco Chemical Company et al. (known as the BRIO Refinery Site),
comments from the public resulted in substantial delay in entering a final and enforceable
settlement in court.
The case involved a 56 acre abandoned chemical refinery outside of Houston, Texas.
Based on concerns about the impact of the government's selected hazardous waste incineration
remedy, which was to be implemented in the settlement, the citizens who lived next to the Site
actively fought the settlement that was agreed upon by the government and the parties allegedly
responsible for the contamination. The consent decree memorializing the settlement was lodged
in federal court in August of 1989, and citizens were given 30 days to comment on the
settlement. The citizens who lived near the site believed that there was evidence of adverse
health effects among the neighborhood residents as a result of the contamination at the site, and
submitted over 100 comments, incorporating several thousand pages of records and documents,
many of which stated that the remedy agreed upon by the government and the alleged violators
was inadequate. The comment period was extended twice due to the number of comments
submitted. The sheer volume of comments and the technical complexity of the site remedy
required over a year's effort to read, summarize, analyze and respond.
Although some minor changes were made in the consent decree, the remedy was not
changed. In December of 1990. the government ultimately asked that the court enter the consent
decree in its original form. The citizens then attempted to intervene and become formal parties to
the proceeding and litigate the question of whether the remedy was adequate. The court finally
approved the entry of the consent decree in April of 1991. The citizens then unsuccessfully
appealed the court's decision to the court of appeals. In short, admittedly in unusual
circumstances, the public participation process delayed remedy implementation by nearly two
years.
Despite the delays that can be caused by public comment, citizen participation provides
the public with the opportunity to carefully evaluate the remedies that are chosen to address
pollution in their communities. Although public comments may not always produce information
that results in a modification of a settlement, citizen participation and the threat of serious
challenge increases the pressure on violators to obey the environmental laws, and increases their
level of public accountability. Citizen participation also helps to hold the government accountable
to the public and provides the government with negotiating leverage, because a settlement must
be reached that will be acceptable not only to the governmental regulators, but also to the public.
Further, the openness of the process which comes with public accountability yields an aura of
integrity and respectability which is critical to maintaining the efficacy of the enforcement program.
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4 CITIZEN SUITS
Citizen suits against alleged violators of the environmental laws present far more
complicated issues with respect to citizen involvement in enforcement. Despite the problems that
can arise, however, citizen suits have proven overall to be a successful compliment to
government environmental enforcement activity and have served to assist the government in
increasing compliance levels in the regulated community.
4.1 Overview and Purpose of Citizen Suits
Most of the current United States environmental statutes include citizen suits provisions.
These are statutory provisions that allow private citizens, as opposed to a state or the federal
government, to sue polluters for violations of environmental laws in the federal district courts.
These provisions also allow citizens to sue the government in the federal courts of appeals for
failing to take nondiscretionary acts that are mandated by statute.
Citizen suits provisions originated in the Clean Air Act of 1970 and subsequently were
adopted in most other environmental statutes, including the Clean Water Act, the Resource
Conservation and Recovery Act, the Toxic Substances Control Act and the Comprehensive
Environmental Response Compensation and Liability Act.13 Only the Federal Insecticide
Fungicide and Rodenticide Act does not include citizen suits provisions.
The scope of authority granted under citizen suits provisions is worded differently under
each federal statute. The statutes generally provide that citizens may sue for violations of any
statutory standard, limitation, or condition and for violation of orders issued by EPA.14 In
addition, some statutes grant additional authority. For example, the Resource Conservation and
Recovery Act also authorizes citizens to bring suits to correct imminent and substantial
endangerment to health or the environment.
The relief that can be obtained also varies under each statute. Citizen suits provisions
generally provide citizens with an action for prospective injunctive relief. Originally, only the
Clean Water Act provided that penalties could be imposed in citizen suits.15 Legislative
amendments to the Resource Conservation and Recovery Act and the Clean Air Act now provide
that penalties may be imposed in citizen suits under those statutes.16 Penalties also may be
imposed under the citizen suits provisions of the Comprehensive Environmental Response
Compensation and Liability Act and the Emergency Planning and Community Right to Know
Act17
Nevertheless, the statutes are relatively similar in nature and the authorizing provisions of
one statute are representative of the citizen suits provisions in the other environmental statutes.
For example, Section 304 of the Clean Air Act provides:
any person may commence a civil action on his own behalf -
(1) against any person (including (i) the United States, and (ii) any other governmental
instrumentality or agency to the extent permitted by the Eleventh Amendment to the
Constitution) who is alleged to be in violation of (A) an emission standard or limitation
under this chapter or (B) an order issued by the Administrator or a State with respect to
such a standard or limitation,
(2) against the Administrator where there is alleged a failure of the Administrator to
perform any act or duty under this chapter which is not discretionary with the
Administrator, or
(3) against any person who proposes to construct or constructs any new or modified major
emitting facility without a permit required under part C of subchapter I of this chapter
(relating to significant deterioration or air quality) or part D of subchapter I of this chapter
(relating to nonattainment) or who is alleged to be in violation of any condition of such
permit.
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The district courts shall have jurisdiction, without regard to the amount in controversy or
the citizenship of the parties, to enforce such an emission standard or limitation, or such
an order, or to order the Administrator to perform such act or duty, as the case may be,
and to apply any appropriate civil penalties (except for actions under paragraph (2)). The
district courts of the United States shall have jurisdiction to compel (consistent with
paragraph (2) of this subsection) agency action unreasonably delayed, except that an
action to compel agency action referred to in section 7607(b) of this title which is
unreasonably delayed may only be filed in a United States District Court within the circuit
in which such action would be reviewable under section 7607(b) of this title. In any such
action for unreasonable delay, notice to the entities referred to in subsection (b)(1)(A) of
this section shall be provided 180 days before commencing such action.18
The intent of Congress in enacting citizen suits provisions in most of the federal
environmental laws was two-fold. First, Congress intended that citizen suits would impel
government action. The Senate Report on the Clean Air Act of 1970 states: "Government
initiative in seeking enforcement under the Clean Air Act has been restrained. Authorizing
citizens to bring suits for violations of standards should motivate governmental agencies charged
with the responsibility to bring enforcement and abatement proceedings."19
Second, citizen suits also were intended to augment federal and state enforcement
activity. This objective was based in part on the understanding that there always will be a finite
amount of resources available for government enforcement. For example, with respect to the
Clean Air Act citizen suits provisions, Senator Edmund Muskie, a principal author of the original
Clean Air Act, stated that "it is too much to presume that, however well staffed or well intentioned
these enforcement agencies, they will be able to monitor the potential violations" under the Clean
Air Act.20 Similarly, Senator Gary Hart stated: "In legislation of this type, we will find very likely
noncompliance which in number or degree are far beyond the capacity of the Government to
respond to."21
More recently, the author of amendments to the Resource Conservation and Recovery Act
citizen suits provision, Senator George Mitchell, explained that his amendment allowing citizens to
sue to abate imminent and substantial endangerments to health or the environment was needed
on the following grounds:
Only EPA can sue to abate an imminent hazard under current law. if EPA does not act, the
endangerment continues. In light of the thousands of known hazardous waste sites across
this country, this simply does not make sense. The Environmental Protection Agency clearly
does not have the resources to deal with all of these sites, nor do the States. Citizen suits to
abate imminent hazards can expect the national effort to minimize these very real threats to
our well-being.22
The federal courts also have recognized that citizen suits provisions were intended, in part,
to supplement government enforcement efforts, in NRDC v. Train, the court held that "the citizen
suits provision reflected a deliberate choice by Congress to widen citizen access to the courts as
a supplemental and effective assurance that the Act would be implemented and enforced."23
4.2 Citizen Suits in Practice
While United States' laws authorize citizen suits to be brought by an individual or his or
her attorney, in practice these are typically filed by one of several nonprofit organizations that
have taken the lead in developing and litigating citizen suits. For example, the Natural Resources
Defense Council has played a key role in bringing citizen suits under the Clean Water Act. In
addition, nonprofit groups such as the Sierra Club Legal Defense Fund, the Environmental
Defense Fund, the Chesapeake Bay Foundation, Trial Lawyers for Public Justice, and the Atlantic
States Legal Foundation also bring numerous actions under the citizen suits provisions of the
environmental laws. Some private law firms also dedicate substantial portions of their practices
to litigating citizen suits.
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Most of the early citizen suits filed during the 1970s were brought to compel government
agencies to take actions that they had failed to take but that were required by statute.24 Few
suits were brought to enforce environmental laws against alleged violators in the years
immediately following the enactment of the citizen suits provisions. For example, one study found
that from 1978 to 1982 less than ten citizen suits were brought annually under the Clean Water
Act.25
During the 1980s, the focus of citizen suits shifted and an increasing number of actions
were brought under the citizen suits provisions against alleged violators of the environmental
laws. Some commentators have argued that the increase in citizen suits filed against alleged
violators can be attributed to a decline in the number of enforcement actions filed by the
government. Although a decline in federal enforcement may explain the increase in the number
of citizen suits filed in the early 1980s, citizen suits continue to be filed against alleged violators
despite the fact that enforcement levels have consistently increased over the last few years. For
example, in fiscal year 1991 EPA imposed a record number of fines and referred a record
number of cases to the Department of Justice for filing.
Suits under the Clean Water Act for violations of national pollutant discharge elimination
system (NPDES) permits are the most common. Clean Water Act suits are particularly popular
because information on violations is readily available to the public in the form of discharge
monitoring reports that the regulated community is statutorily required to submit to EPA. One
report estimated that by 1987, there were more than 100 filings per year under the Clean Water
Act citizen suits provisions, and more than 800 cases were pending in the federal courts. In
addition, hundreds of other cases were pending under the citizen suits provisions of other
statutes.26 The United States Department of Justice estimates that in fiscal year 1991 a record
number of fines were imposed in citizen suits brought under the Clean Water Act. Specifically,
$4,998,132.62 in fines were imposed in fiscal year 1991, as compared to $2,930,196.56 in fiscal
year 1990 and $325,241.65 in 1989. By way of comparison, only $164,000 in fines were
imposed in Clean Water Act citizen suits in fiscal year 1986.
4.3 Potential Disadvantages of Citizen Suits
The principal disadvantage of citizen suits is the potential for interference with government
enforcement activities. Citizen suits potentially could interfere with ongoing or planned
enforcement actions. In addition, citizens potentially could file ill-founded actions that the
government normally would not choose to pursue, and which could establish unfavorable judicial
precedent that could hinder the government's subsequent enforcement activities.
Although these concerns are not wholly without merit, in general, the problems that have
arisen with respect to citizen suits have not proven to be a significant impediment to the
government's enforcement efforts. In enacting the citizen suits provisions, Congress attempted to
alleviate the potential problems for the government through several mechanisms, including notice
requirements and attorney fees awards. These mechanisms have been successful for the most
part, and the disadvantages that remain for the government are outweighed by the advantages
that private enforcement activity brings to environmental enforcement in the United States.
4.3.1 Interference with Government Enforcement Activities
4.3.1.1 Pending Government Enforcement Actions
The citizen suits provisions in the federal laws typically constrain citizen participation in
government enforcement efforts. Typical of these provisions is Section 304(b)(1)(B) of the Clean
Air Act which states:
No action may be commenced -
if the Administrator or State has commenced and is diligently prosecuting a civil action in a
court of the United States or a State to require compliance with the standard, limitation, or
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order, but in any such action in a court of the United States any person may intervene as a
matter of right.27
The requirement that a citizen suit cannot be filed if the government already has instituted
an enforcement action was intended to allow the government to perform its enforcement work
without interruption from private citizens. Senator Mitchell explained during the process of
amending the Resource Conservation and Recovery Act that "[t]he provision is structured
carefully ... to insure that citizen suits do not interfere with ongoing Federal or State enforcement
efforts."28
In order to ensure that citizens are not unduly restricted from participating in environmental
enforcement because of an existing government enforcement action, Congress provided under
most of the citizen suit provisions that citizens can intervene in government enforcement actions
as a matter of right. Citizen intervention in government enforcement actions is governed by Rule
24(a) of the Federal Rules of Civil Procedure which requires that an intervenor must have
standing to sue and that intervention must be timely.
A citizen also may intervene as a matter of right in some cases, even when a citizen suit
provision does not authorize such intervention. In order to intervene as a matter of right, a citizen
is required to have an interest relating to the property or transaction at issue in the litigation. The
disposition of the litigation also must be able potentially to impair or impede the citizen's ability to
protect his or her interest.29 Intervention as a matter of right is not permitted if the citizen's
interest is adequately represented by existing parties. If intervention is not permitted as a matter
of right, a citizen still may intervene pursuant to Rule 24(b) of the Federal Rules of Civil
Procedure which provides for permissive intervention. Pursuant to this Rule, under certain
circumstances, a citizen may be permitted to intervene if he or she has a claim or defense that
has a question of law or fact in common with the government's action.
Some courts have interpreted the citizen suits provisions to bar citizen suits when a
government administrative enforcement action is pending, if the administrative action closely
resembles a judicial action. First, courts examine whether the remedies available to the
government in the administrative action are similar to those that would be available in a court
action, particularly with respect to the imposition of penalties. Second, courts examine whether
the same procedures exist in the administrative proceeding as in a judicial proceeding, particularly
with respect to whether citizens may intervene as a matter of right in the administrative
proceeding.30 Furthermore, some statutes provide that citizen suits are barred when the
government has undertaken certain administrative enforcement activities.31
The question of what constitutes "diligent prosecution" of an enforcement action by the
government has been litigated in federal court on numerous occasions. Courts generally have
looked carefully at whether the government's activities actually constitute "diligent" enforcement.
For example, in Gardeski v. Colonial Sand and Stone Co..32 a settlement was reached between
the government and the violator in a Clean Air Act case brought for illegal emissions of dust and
particles. However, the consent order subsequently was violated by the defendant, and was not
enforced by the state for two years while the state tried to seek voluntary compliance. The court
held that the government's actions in the case did not constitute diligent prosecution.33
Similarly, in New York Coastal Fisherman's Association v. New York Sanitation Department.34
the court ruled that the State was not diligently prosecuting the City of New York to force the
cleanup of a city landfill, despite the existence of two consent orders, because a permanent plan
to eliminate illegal leachate discharges from the Site had not materialized.
The courts undoubtedly will continue to wrestle with what type of government actions bar
citizen suits. Although it is particularly difficult to define "diligent prosecution," the courts have
been on the right track in taking a close look at the government's activities before barring a
citizen suit. Although it is crucial not to interfere unduly with the government's enforcement
efforts, often lack of diligent prosecution is a result of inadequate resources with which to follow
through on enforcement cases. Furthermore, it is preferable to err on the side of over-
enforcement rather than under-enforcement.
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4.3.1.2 Notice Requirements
A citizen suit may not be filed in court until notice has been provided to the responsible
federal and state agencies, and to the alleged violator. Citizen suits provisions typically provide
for a 60 day waiting period after notice is provided before the action can be filed. This period is
provided to allow the government to step in, as the primary enforcer, and file suit, in some
instances, the notice period is longer than 60 days, and in other instances, such as emergency
situations, the notice period is waived.35 EPA has issued regulations which set out in detail, the
manner in which notice must be served and the required content of the notice. These regulations
generally require that the notice include information that allows the alleged violator to know the
standard that it allegedly has violated and the date, place, and nature of the violation.36
Judicial interpretation of the notice provisions has varied over time. Some courts initially
interpreted the provisions liberally, ruling that the notice requirements did not need to be strictly
adhered to prior to filing a suit37 However, the United States Supreme Court recently ruled that
the notice provisions in the citizen suits provisions are mandatory and that a case should be
dismissed if the notice requirements have not been met.38 In most cases, however, the citizen
usually can provide proper notice and refile the suit.39
The notice requirements of the citizen suits provisions have served the important function
of preventing citizen suits from interfering with planned government enforcement activities. Notice
also provides the government with the opportunity to determine whether it, rather than a private
citizen, should file a case. The legislative history of the first citizen suits provisions states that the
purpose of the notice requirement is "to further encourage and provide for agency enforcement. .
. . The time between notice and filing of the action should give the administrative enforcement
office an opportunity to act on the alleged violation."40 In Friends of the Earth y. Potomac
Electric Power Co.. the court explained that "[t]he purpose of the notice provision is to allow the
Administrator and other officials to rectify inaction, and thus obviate the need for judicial
recourse."41
The notice provisions also have provided the government with the opportunity to stay
apprised of citizen suits activity and use the information to gauge its own enforcement priorities
and agenda. For example, in May of 1984 after more than 200 citizen suits had been filed under
the Clean Water Act in the previous year, the Administrator of EPA directed that the Agency
examine the implications of the large number of filings. In a press conference the Administrator
reportedly stated that "he was particularly troubled that the suits are being brought in areas where
EPA's own enforcement 'should be more vigorous' or where violations have been overlooked
because companies are on compliance schedules."42
The one disadvantage of the notice requirements is the length of the waiting period. In an
emergency situation, 60 days may be too long a period of time to wait for formal initiation of
proceedings. In practice, however, 60 days generally is not enough time for the government to
develop and file a new enforcement action. It often takes months for EPA to investigate carefully
and develop an enforcement case. A formal litigation report also must be prepared to accompany
each case that is sent to the Department of Justice for filing in federal court. Furthermore, a
formal agreement between EPA and the Department of Justice provides that the Department has
up to 60 days after it receives a referral from EPA within which to file a case.43 vertheless, it
should be noted that citizens often do not file their suits immediately after the 60 day waiting
period has expired, but instead continue negotiations with the alleged violator. The government
may be involved in these negotiations and is not foreclosed even after the 60 days has expired
from taking its own enforcement measures. Furthermore, the government always is permitted to
intervene as a matter of right in any
citizen suit Thus, if the government is unable to bring its own action prior to the filing of a citizen
suit, it may intervene in the citizen suit.44
4.3.2 Mechanisms for Deterring Nonmeritorious Suits
The concern that citizens may bring ill-founded cases that establish bad precedent for
future enforcement actions by the government has been largely unfounded. For the most part,
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the citizen suits provisions successfully were crafted to deter unwarranted citizen suits, and suits
generally have not been brought for minor violations of the laws.45 Citizen suits often have set
valuable precedent, and some commentators have concluded that citizens have sought and
obtained higher civil penalties than the government for the same violations.46
Although it is difficult to determine with any certainty the reasons that nonmeritorious suits
have not been a significant problem, factors that may have deterred the filing of unnecessary
citizen suits include the following: 1) attorney fee awards may be granted by the courts against
citizens who bring ill-founded suits; 2) several citizen suits provisions provide that the courts can
require the citizens to post bond; 3) citizens cannot recover damages under the citizen suits
provisions.
In drafting the citizen suits provisions, Congress took steps to deter citizens from bringing
nonmeritorious suits by providing that costs, including expert witness and attorney fees, can be
awarded both for and against citizens in appropriate circumstances. The award of attorney fees
is an exception to the general American rule that each party must pay its own litigation costs,
regardless of which party prevails in the litigation. See Alyeska Pipeline Service Co. v.
Wilderness Society. 421 U.S. 240 (1975).
The provisions for the award of attorney fees serve, therefore, to deter citizens from
bringing nonmeritorious suits, but also to encourage citizens to bring strong cases that they may
not otherwise be able to afford to litigate. As explained by one court. Congress' goal was to
authorize fee awards "which are adequate to attract competent counsel, but which do not produce
windfalls to attorneys."47
Typical of the attorney fees provisions is the following language found in the Clean Air Act:
The court, in issuing any final order in any action brought pursuant to subsection (a) of this
section, may award costs of litigation (including reasonable attorney and expert witness fees)
to any party, whenever the court determines such award is appropriate.48
Another statutory mechanism that may have assisted in deterring citizens from bringing
frivolous suits is the language found in several of the citizen suits provisions that enables courts
to require citizens to post bond in suits brought for injunctive relief. These provisions typically
provide:
The court may, if a temporary restraining order or preliminary injunction is sought, require the
filing of a bond or equivalent security in accordance with the Federal Rules of Civil
Procedure.49
Although there is no legislative history on these provisions, at least one commentator has
concluded that the provisions were included "as part of a package to mollify critics of citizen suits
who feared they would flood the courts with ill-founded cases."50
Frivolous suits also may have been deterred because there is no right of private recovery
in the citizen suits provisions. Civil penalties recovered against violators must be deposited in the
United States Treasury.51 Citizens however, still are able to recover damages caused by a
violator through other statutory and common law remedies, but citizen suits do not provide a
vehicle by which citizens can obtain damages. However, it should be noted that citizen suit
settlements may require that, in lieu of paying civil penalties, a violator sponsor an environmental
project, the benefits of which may inure directly to the citizens who brought the action.
In sum, citizen suits have not unduly interfered with the United States government's
enforcement activities. For the most part, citizen suits have created favorable precedent and
have been brought for significant violations of the law. This lack of interference may be
attributable, in part, to the structure and mechanisms set out in the citizen suits provisions.
Although a certain amount of government resources must be allocated to tracking citizen suits
activity, this has not been unduly burdensome and has allowed the government to assess its own
enforcement priorities.
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5 CONCLUSION
Citizen participation in the enforcement of environmental laws in the United States has
proven to be quite successful Although undoubtedly cases exist in which citizen participation has
hindered or interfered with government enforcement efforts, the disadvantages of citizen
participation are outweighed by the numerous advantages. The resources available for
environmental enforcement are perennially limited, and it is unlikely that the government will ever
be able to enforce the laws against every violator. Thus, citizen participation has been a
welcome supplement to the government's enforcement efforts. Citizen enforcement efforts, like
the government's own enforcement activities, also have served to deter potential violators and
increase levels of compliance.
Citizen participation also serves to increase the public's awareness of environmental
issues, and increases citizens' sense of responsibility for ensuring compliance with the
environmental laws. Citizens' access to the court system also serves as a safety valve,
guaranteeing the opportunity to seek redress in a judicial forum for environmental offenses. Wide
spread environmental compliance in the regulated community and responsible environmental
practices by the general public only can be achieved if citizens believe that they are expected to
play a role in protecting the environment. Citizen participation in environmental enforcement
helps to achieve these goals.
NOTES
1. For example, the National Oceanic and Atmospheric Administration (NOAA) administers
parts of the Ocean Dumping Act and the Coastal Zone Management Act. NOAA also is
responsible for enforcing the natural resource damage provisions of the Comprehensive
Environmental Response Compensation and Liability Act and the Oil Pollution Act. The
Department of Interior (DOI) administers wildlife statutes such as the Endangered Species Act
and the Migratory Bird Treaty Act. DO! also enforces natural resource damages provisions under
the Comprehensive Environmental Response Compensation and Liability Act. In addition, the
United States Coast Guard enforces portions of the Oil Pollution Act.
2. The role of the states in enforcement can not be understated, and is highlighted by the
fact that approximately 70 percent of all enforcement actions are taken by states rather than by
the federal government. Furthermore, as of 1988, between 80 and 90 percent of all inspections
were conducted by state government personnel. See Environmental Enforcement A Citizen's
Guide. U.S. EPA March 1990 at 2.
3. Citizens also are authorized to review in federal court regulations adopted by EPA which
are not consistent with federal law. See, ex).. Section 704 of Administrative Procedure Act, 5
U.S.C. Section 704; Section 113 of the Comprehensive Environmental Response Compensation
and Liability Act, 42 U.S.C. Section 9613.
4. The Pollution Prosecution Act of 1990 directed the Agency to hire 50 additional civil
investigators by 1991 and to have a total of 200 criminal investigators on board by 1995.
5. The convictions under the Resource Conservation and Recovery Act subsequently were
overturned on appeal, because the regulations that were violated had not been issued in
accordance with proper procedures. See United States v. Goodner. No. 91-2466 (June 4,1992).
6. See The Public's Role in Environmental Enforcement. U.S. EPA, March 1990;
Environmental Enforcement A Citizen's Guide. U.S. EPA, March 1990.
7. Jd
8. 42 U.S.C. Section 9609(d); 40 C.F.R. Part 303 {1991).
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 585
9, 42 U.S.C. Section 7413(f).
10. 28 C.F.R. Section 50.7 (1991).
11. See, e.g.. Section 7003(d) of the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6973(d); Section 122(d)(2) of the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. Section 9622(d)(2).
12. No. A-91-082-CV (D.C. Alaska 1991): see also Environment Reporter. May 3, 1991 at 4;
Environment Reporter. October 11, 1991 at 1553.
13. Clean Air Act, 42 U.S.C. Section 7604; Federal Water Pollution Control Act, 33 U.S.C.
Section 1365; Marine Protection, Research and Sanctuaries Act (Ocean Dumping Act), 33 U.S.C.
Section 1415(g); Noise Control Act, 42 U.S.C. 4911; Endangered Species Act, 16 U.S.C. Section
1540(g); Safe Drinking Water Act, 42 U.S.C. Section 300J-8; Solid Waste Disposal Act (as
amended by the Resource Conservation and Recovery Act), 42 U.S.C. Section 6972; Toxic
Substances Control Act, 15 U.S.C. Section 2619; Surface Mining Control and Reclamation Act,
30 U.S.C. Section 1270; Comprehensive Environmental Response Compensation and Liability
Act, 42 U.S.C. Section 9659; Emergency Planning and Community Right to Know Act, 42 U.S.C.
Section 11046.
14. See J. Miller and Environmental Law Institute, Citizen Suits: Private Enforcement of
Federal Pollution Control Laws 7 n. 20 (1987).
15. 33 U.S.C. Section 1365(a).
16. 42 U.S.C. Section 6972{a); 42 U.S.C. Section 7604(a).
17. 42 U.S.C. Section 9659; 42 U.S.C. Section 11046.
18. 42 U.S.C. Section 7604.
19. Friends of the Earth v. Carey. 535 F.2d 165, 172 (2d Cir. 1976) (quoting S. Rep. No. 91-
1196, 91st Cong. 2d Sess. 35-36 (1970)).
20. See NRDC v. Train. 510 F.2d 692, 727 (D.C. Cir. 1975) (quoting A Legislative History of
Clean Water Act Amendments of 1970 at 280-81).
21. Jd-at730.
22. D. Riesel, Citizen Suits, and the Award of Attorneys Fees in Environmental Litigation,
American Law Institute-American Bar Association course materials at 838 n.6 (June 20-24, 1988)
(quoting 130 Cong. Rec. 59151 (daily ed. July 25,1984)).
23. NRDC v. Train. 510 F.2d at 700.
24. See, e.g.. NRDC v. Train. 519 F.2d 287 (D.C. Cir. 1975); New England Leoal Foundation
v. CostJe. 632 F.2d 936 (2d Cir. 1980), supplemental opinion. 666 F.2d 30 (2d Cir. 1981).
25. See Environmental Law Institute, Citizen Suits: An Analysis of Citizen Enforcement
Action Under EPA-Administered Statutes 111-10 (1984).
26. See L. Jorgenson & J.J. Kimmel, Environmental Citizen Suits: Confronting the
Corporation (1988); see also Environmental Law Institute, Citizen Suits: An Analysis of Citizen
Enforcement Actions Under EPA-Administered Statutes (1984).
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586 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
27. 42 U.S.C. Section 7604(b)(1)(B).
28. D. Riesel, Citizen Suits, and the Award of Attorneys Fees in Environmental Litigation.
American Law Institute-American Bar Association course materials (June 20-24, 1988)(quoting
130 Cong. Rec. 59150 (daily ed. July 25,1984)).
29. In rare cases, non U.S. citizens have intervened in U.S. enforcement cases. For
example, in United States v^Hpoker Chemicals and Plastics Corp.. 101 F.R.D. 444 (1984), the
Province of Ontario and the Minister of the Environment moved to intervene in an ongoing
enforcement action. Ontario alleged that a threat existed to the health of persons drinking water
or consuming fish caught in Lake Ontario and the Niagara River due to violations of the Clean
Water Act and the Resource Conservation and Recovery Act by Hooker Chemical and Plastics
Corporation in the United States. The Court reasoned that Ontario's interest were not adequately
represented by the United States Government in the action against the company, because the
Government might place greater emphasis on protection of U.S. drinking water than on protection
of Canadian drinking water. Ontario was not permitted to pursue claims under the citizen suits
provisions, however, but was permitted to pursue its common law nuisance claim.
30. See, e.g.. Student Public Interest Research Group of New Jersey. Inc. v^Frjtzsche.
Dodge & Olcott. 759 F.2d 1131, 1137 (3d Cir. 1985): Baughman v. Bradford Coal Co.. 592 F.2d
215, 217 (3d Cir.). cert, denied. 441 U.S. 961 (1979).
31. See, e.g.. Emergency Planning and Community Right to Know Act, 42 U.S.C. Section
11046(e)(Barring citizen suits if EPA is diligently pursuing an administrative order); Clean Water
Act, 33 U.S.C. Section 1319(g)(6)(B)(if government has issued a final order and violator has paid
penalty in administrative proceeding violator is not liable for additional civil penalties in a citizen
suit that is filed after commencement of administrative proceeding); Resource Conservation and
Recovery Act, 42 U.S.C. Section 6972 (citizen suits barred if EPA or state is diligently pursuing
abatement action or cleanup under Comprehensive Environmental Response Compensation and
Liability Act).
32. 501 F. Supp. 1159 (S.D.N.Y. 1980).
33. See also Sierra Club v. SCM Corp. 572 F. Supp. 828, 831 n. 3 (W.D.N.Y.
1983)(existence of consent order usually indicates diligent enforcement but failure to monitor
compliance and enforce consent order or to permit new violations to occur can counter this
presumption).
34. 772 F. Supp. 162 (S.D.N.Y. 1990).
35. See, e.g.. Resource Conservation and Recovery Act, 42 U.S.C. Section 6972(b)(2)(A);
Clean Air Act, 42 U.S.C. Section 7604(b).
36. See, e.g.. 40 C.F.R. Part 135 (1991); 40 C.F.R. Part 254 (1991).
37. Friends of the Earth v. Carev. 535 F.2d 165, 176 (2d Cir. 1976)("to require that precise
formalistic notice be provided to each [state and local agency] is to erect wholly unrealistic
barriers to citizen access to the courts as insured by Congress"); National Sea Clammers Assoc.
v. City of New York. 616 F.2d 1222, 1226 (3d Cir. 1980), vacated on other grounds. 453 U.S. 1
(1981)(adopting "pragmatic" approach to interpreting sixty day notice provision under which sixty
days must elapse prior to district court action on complaint, as opposed to filing of complaint).
38. Hallstrom v. THIamook County. 493 U.S. 20, 31 (1989), reh'g denied. 493 U.S. 1037
(1990)("the notice and 60-day delay requirement are mandatory conditions precedent to
commencing suit under the RCRA citizen suits provisions. ... As a general rule, if an action is
barred by the terms of a statute, it must be dismissed').
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39. Jd- at 32.
40. Natural Resources Defense Counsel. Inc. v. Train. 510 F.2d 692, 723 {D.C. Cir.
1975)(guotmg S. Rep. No. 1196, 91st Cong., 2d Sess. 36-39).
41. 546 F. Supp. 1357, 1361 (D.D.C. 1982);see ajso National Sea Clammers Association v.
City of New York. 616 F.2d at 1226 ("The purpose behind the notice provision, as the legislative
history makes clear, was to afford the Environmental Protection Agency an opportunity to remedy
the alleged violation prior to judicial action").
42. See Inside EPA. Vol. 5, No. 19, May 11,1984, at 1, 6-7.
43. See Memorandum of Understanding Between the Department of Justice and the
Environmental Protection Agency, dated June 1977.
44. See, e.g.. Section 304(c)(2) of the Clean Air Act, 42 U.S.C. Section 7604 ("the
Administrator, if not a party, may intervene as a matter of right at any time in the proceeding").
45. See J. Miller. Citizen Suits: Private Enforcement of Federal Pollution Control Laws 13-14
(1987)(citing. Environmental Law Institute. Citizen Suits: An Analysis of Citizen Enforcement
Actions Under EPA-Administered Statutes (1984)).
46. See Rethinking Citizen Suits. 8 Temple Envtl. L & Tech. J. 55, 66 (Fall 1989)(citing
Boyer & Meidinger, Privatizing Regulatory Enforcement: A Preliminary Assessment of Citizen
Suits Under Federal Environmental Laws, 34 Buffalo L. Rev. 833, 835 (1985)).
47. Save Our Cumberland Mountains v. Model. 857 F,2d 1516, 1521 (D.C. Cir. 1988)(quoting
S. Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976)).
48. 42 U.S.C. Section 7604(d).
49. 42 U.S.C. Section 7604(d).
50. J. Miller, Citizen Suits: Private Enforcement of Federal Pollution Control Laws 62 (1987).
51. Under the 1990 Amendments to the Clean Air Act, penalties are deposited into a special
fund in the U.S. Treasury for licensing and other services. The funds may be used by EPA to
finance air compliance and enforcement activities.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 589
FROM PUBLIC DISCLOSURE TO PUBLIC ACCOUNTABILITY: WHAT IMPACT WILL IT HAVE
ON COMPLIANCE?
FRANCES IRWIN1 and MARY FRANCES REPKO2
1 Director, Pollution Prevention Program, World Wildlife Fund - US, 1250 24th Street, N.W.,
Washington. D.C. 20037 (USA)
2 Research Fellow, Pollution Prevention Program, World Wildlife Fund - US, 1250 24th Street,
N.W., Washington. D.C. 20037 (USA)
SUMMARY
Governments, industry, and citizen groups are experimenting with different ways to
develop, distribute, and use public information to reduce pollution and protect the environment. It
is still early to evaluate these rapidly changing information tools. However, it is already clear that
a significant expansion is occurring in the role that making information public plays in
environmental policy. Earlier stages have incorporated self-monitoring and self-reporting by
companies into pollution control legislation in some countries'1' and also introduced "freedom of
information" provisions that give the public a route of access to government-held documents. In
these laws the emphasis is on "public disclosure" by companies to the government. The public
can then request the information. The characteristics of the new information tools are still
emerging but they share developing and getting information about sources as well as effects of
pollution or degradation to a wide range of users, particularly communities and individuals. They
also get data beyond environmental specialists to other managers in companies and government.
This paper discusses three environmental information tools which move on the spectrum
from public disclosure to public access including in some cases closer to public accountability
through a "right-to-know": 1} public inventories of uses and release of toxic chemicals based on
the "right-to-know"; 2} Eco-Audits, as proposed by the Commission of the European Communi-
ties (EC), including a public environmental statement; 3) Eco-labelling programs that identify
products with preferable environmental characteristics. Table 1 highlights provisions of these
tools. Although this paper does not discuss accident information tools in depth, this area is one
of the seed beds of accountability and "right-to-know".
The three information tools discussed are on the cutting edge of clarifying our understan-
ding of the sources of environmental problems and how to solve them in a sustainable way.
These three tools are beginning to provide a means of public accounting for the contribution to
pollution and habitat degradation by specific facilities and products. They are helping put the
emphasis on reducing at the source the environmental impacts of the "whole" facility and the
entire "life-cycle" of a product.
At the same time, environmental information tools are just one instrument of environmental
policy. Thus decisions about their use are caught up in debate about the appropriate roles of
companies, governments, and citizen groups in developing and implementing environmental
policy and the potential of these tools for misuse. Citizens point out that some companies
advertise extravagant environmental claims for their products, sometimes based on methodolo-
gies that are still being developed. They are concerned that information and voluntary
approaches might undermine enforcement. Companies fear provision of data to citizens will
endanger their market share or increase the threat of attack in the media or prosecution.
Enforcers and technical assistance staffers in government programs each fear that their program
will be undermined by the other program's approach. The debate often focuses on access to
information and becomes entangled in choosing the appropriate mix of "carrot" and "stick"
measures.
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590 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
1 FROM PUBLIC DISCLOSURE TO PUBLIC ACCOUNTABILITY?
Disclosure provisions can help to create a climate that deters violation of environmental
laws and encourages compliance. Self-monitoring, reporting, and recordkeeping requirements are
an important element in the compliance system in countries such as the United States. Drinking
water suppliers sample water and hazardous waste managers keep track of waste shipments and
monitor the groundwater. They both keep records that are used by inspectors to achieve
compliance. The U.S. Freedom of Information Act was adopted in 1966. By using it, citizens can
now obtain these and other data. Plans are also underway to make some of these data available
through the National Technical Information Service. The European Community directive on
freedom of information goes into effect at the end of 1992. Some member states already have
experience with access provisions. The United Kingdom is introducing public registers of
monitoring data from its major industrial facilities, for example.
As the statements in Table 2 illustrate, however, governments, industry, and environ-
mental groups are engaged in a debate about taking a broader approach to information policies.
Impetus for this shift comes from both the past and the future. Past practices have resulted in
severe accidents including Seveso and Bhopal as well as habitat destruction and pollution that
has diminished forests and damaged the stratospheric ozone layer. Scenarios of the earth's
future foresee a doubled population and economy five times the present size by the middle of the
next century. As the global nature of the environment and the economy become more evident,
the need for better information and wider participation in decisions at levels from the community
to international organizations is also growing.
The EC's introduction to its proposed Eco-Audit regulation notes that in providing infor-
mation on industrial accidents, the Commission found a "strong public demand for general
information ... on measures to prevent pollution ... and on emissions from industrial establish-
ments into the environment."12' Responding to similar pressures, the U.S. Congress adopted an
Emergency Planning and Community Right-to-Know Act (EPCRA) in 1986. Although "image"
frequently drives corporate action and many managers still argue that the experts should just
provide their interpretation of the hazards, some company leaders also recognize that this is not
enough. Notes a UNEP industry and Environment Office report prepared with corporate coopera-
tion, a company needs "to provide the public with information on what it is doing to limit the
impact of its activities on the environment. This is not about projecting an image but about
providing real information to staff, neighbors, environmental groups, consumers, the media, and
others to meet the different levels of interest and understanding, taking into account local
practices and cultures."
The Sofia Statement, issued at the January 1992 conference of non-governmental organi-
zations in Bulgaria, stressed the need for stringent national environmental legislation and effective
monitoring and enforcement. At the same time, participants urged western firms operating in
Central and Eastern Europe to act in advance of such legislation by accepting public
accountability through information provision and public participation in decision making. NGOs
have also emphasized the importance of the right-to-know in statements at meetings in Hungary,
Austria, and at the preparatory meetings leading up to the Earth Summit in Brazil. Among many
items adopted in Rio in Agenda 21's chapter on toxics was a call for governments, in cooperation
with international organizations, to consider adoption of community right-to-know and other public
information-dissemination programmes.
2 THREE EXAMPLES OF MOVING FROM DISCLOSING INFORMATION TO PUBLIC
ACCOUNTABILITY FOR ENVIRONMENTAL CHOICES
Three examples illustrate how information policy is broadening from disclosure to access
and accountability, sometimes in the form of the right-to-know, about sources and effects of
pollution and habitat degradation. Two examples relate mainly to industrial facilities and one to
products.
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2.1 Inventories of toxic chemicals at facilities
The U.S. adopted its Community Right-to-Know Act in the wake of the accidental release
of methyl isocyanate in Bhopal, India, that killed 2000 people and injured thousands more.
Drawing partly on the EC's directive adopted after the release of dioxin from a pharmaceutical
plant in Italy, the U.S. law requires companies to plan for emergencies, provide notification about
accidents, and inform citizens about the presence and release of chemicals in their community.
Building on experience of labor unions and states such as New Jersey, EPCRA establishes a
Toxics Release Inventory (TRI). The TRI is a distinctive information tool in at least three ways.
Information for citizens. Enhancing the "right-to-know" is the goal of the
inventory.13* In contrast, the U.S. waste law, the Resource Conservation and
Recovery Act, generates data to develop a system of cradle-to-grave regulations
and to allocate federal funds. The public may obtain the information but that is a
secondary purpose. The TRI works in reverse. Its primary purpose is to make the
data about the presence and release of chemicals available to the public and
government officials. In practice, the TRI data are beginning to provide an
accounting system and an impetus for source reduction when combined with the
U.S. Pollution Prevention Act and state pollution prevention planning laws.
Information for source reduction and cross-media pollution control. The TRI data
are chemical and facility specific. They can be aggregated for a geographic region.
The TRI requires companies to report releases to air, water, soil, or underground
wells of any of 300 chemicals and 20 chemical categories that it manufactures or
processes in quantities of over 25,000 pounds a year or uses in quantities of
10,000 pounds per year. Unlike other EPA databases, the TRI is multi-media. All
data are reported in pounds rather than in different units of measure for air and
water. In addition, it includes the maximum amounts of chemicals stored during the
year, the names and locations of off-site facilities to which toxic wastes were
shipped; the treatment or disposal methods used for wastes, along with estimates
of their efficiency.
Information distribution by computer. Companies submit the data to states and the
federal government, and the federal government makes it available to the public by
computer and actively promotes its use. But the federal Environmental Protection
Agency has no monopoly on the data. Any one with a personal computer can
analyze the data and all kinds of institutions as well as individuals are doing so. "If
we don't name the top 50 facilities, Clean Water Action or someone else will-so we
put them in. ... One of the unique features about TRI is that there's no way that
EPA can control the spin on this database," comments Warren Muir who has been
involved in the production of EPA's national report on TRI data.(4)
More than five years of experience with the national inventory has illuminated both the
opportunities and the problems. Although about 23,000 facilities reported 1990 data, non-
reporters continue to be a problem. EPA has conducted about 2,330 on-site inspections since
1989 and issued 550 civil complaints and proposed penalties over $16 million.'5' This enforce-
ment effort highlights that reporting is required; it is not voluntary. EPA, companies, and citizen
groups are still sorting out what data should be reported. The list of chemicals needs to be
expanded to include both other toxic chemicals and other sources of releases besides industrial
manufacturers. So far ozone depletors have been added. As of July of 1992, the Pollution
Prevention Act requires additional reporting on prevention and recycling activities. However, the
data do not yet include the amount of information coming into the facility (the amount purchased
or made) which would enable accounting for materials through balancing the inputs and outputs
as the New Jersey inventory allows. Nor does the TRI yet include the amount of a substance
that goes into products.
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The TRI is clearly having some effect on compliance, although this is not a one-to-one
relationship because the law is not directly related to existing laws. The chemicals it includes are
controlled in different ways under many different laws. Some releases are not regulated under
any laws. Much of the TRI's effectiveness is in getting more people in on the action.
• Environmental groups have used it to challenge industries and individual facilities
to reduce or stop using toxic chemicals on the TRI. In Silicon Valley, a group
worked with the media to highlight the large releases of the electronics industry.
The companies reduced these releases, and an industry association now reports its
own analysis of the data to the public. In Northfield, Minnesota, residents joined
workers in using the TRI data to convince a plant to phase out use of methylene
chloride by the year 2000. Workers had been unsuccessful until the data became
available and a larger coalition was built.
• Companies themselves have taken the lead in using TRI data. Best known is the
pledge of Monsanto's chairman to reduce air releases by 90 percent by 1992 when
TRI figures were first released in 1988. Now the Monsanto chemical company also
has a 70 percent multi-media waste release reduction program.
• EPA enforcement staff are using TRI data to target inspections at large emitters
and identify opportunities to do multi-media inspections or inspections of particular
industries. At the same time, exemplifying the tension that exists between
compliance and voluntary programs, the data are being used for a voluntary project
run by the EPA Office of Pollution Prevention and Toxics in which, as of March
1992, 734 companies had pledged to reduce releases (by either treatment or
source reduction) of 17 chemicals by 304 million pounds. The goal is to achieve
reductions of 700 million pounds by 1995. While participation in the reduction
program is voluntary, the reporting of releases is not and requirements under the
Clean Air Act provide an additional incentive to participate.l$)
2.2 Eco-Audits for industrial facilities
Principles of Environmental Enforcement notes that many countries and international
organizations including the International Chamber of Commerce and UNEP advocate using
environmental auditing to build the environmental management capability of companies. Auditing
has become such a useful tool since it was developed in the U.S. to encourage compliance with
new environmental laws that proposals to extend its functions have been made frequently.
Sweden proposed an environmental auditing system in 1988 that would have included an annual
environmental report on compliance to the government by 6000 facilities. The report would be
available to the public. The reports of the 600 largest establishments would be checked by an
independent auditor and provide the basis for an inspection program. This proposal was
withdrawn but the requirement for annual environmental reports was adopted. About 3500 to
4000 reports are now prepared by Swedish companies.17* The UNEP report on public communi-
cation by companies includes the summary of an annual Environment Report by a Nobel
Industries plan, for example. One section lists the maximum levels of some types of chemicals
the plant can consume. Other groups have also supported making audit results public in some
way. The Valdez Principles developed by CERES after the Exxon oil spell in Alaska call for an
annual independent audit to be made available to the public.'81 The NGO conference in Bulgaria
called for western firms to carry out comprehensive, annual, and publicly available environmental
audits.19'
While some companies are beginning to issue environmental reports, the predominant
view among industry has been that audits are performed to help industry managers to ensure
compliance with laws. The results are used internally, not made public. Companies are
concerned that if audits must be made public they will no longer be as useful in candidly
examining a company's problems and might result in prosecution.
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Just how many companies now actually perform audits is unclear. The U.S. EPA
sometimes requires companies to perform audits as part of enforcement actions as a means of
identifying and correcting management problems that led to a violation. One observer
thinks most of the Fortune 500 companies do now audit on a regular basis. Others think
that most companies are still in a fire-fighting mode and that only a handful of larger companies in
sectors with significant environmental, health, and safety vulnerability such as chemicals are
using formal auditing programs.t10> The regulation of CFCs and hazardous waste has also
brought some large chemical user companies into the picture.
The EC Commission has proposed a version of auditing that would include public
disclosure. The Commission submitted an Eco-Audit regulation to the EC Council in January
1992. Although it started as a mandatory system, the final version provides for voluntary
participation by the industrial sector. In the spring, the Commission also issued a second draft of
a proposed directive on integrated pollution prevention and control that would apply to major
industrial plants. The Commission considered including an inventory, drawing on U.S. experience
with the Toxics Release Inventory, in both these proposals. As of mid-summer, it planned instead
to issue a third proposal on an inventory. The Eco-Audit regulation and integrated pollution
prevention and control draft still include remnants of inventories. The three proposals illustrate
the struggle to improve compliance and increase public accountability by establishing
environmental management systems at facilities in EC member countries.
What will emerge is unclear at this stage. The integrated pollution prevention and control
directive may move forward first and require development of multi-media best available
technology standards for major facilities with self-monitoring. As ENDS Report has noted in
discussing the auditing proposal:'11' "Few items of EC environmental legislation have begun so
ambitiously . . . and few have been whittled back so comprehensively by the time they reached
the stage of a formal legislative proposal." Although no longer a mandatory requirement for
annual self-assessment requiring outside validation with parallels to a financial audit, the
regulation would still, if the Council adopts it, extend the audit beyond an internal check on
compliance for a company's managers by requiring a public environmental statement validated by
an outside auditor.
The Eco-Audit proposal would require an initial environmental review by the company to
make a comprehensive analysis of the site including the choice and management of energy, raw
materials and water; the selection of production processes; the life-cycle impacts of products;
waste management; accident prevention; training; and public information and participation. This
review is similar to the assessment of the potential impact of new large-scale operations which is
made public under the EC's 1985 directive on environmental assessment. Eco-Audits would be
made at intervals between one and three years. Standards for the audit and auditor accreditation
would be set by the International Standards Organisation.
Under the proposed Eco-Audit, environmental statements based on the findings of the
environmental review and on the subsequent audits would include a summary of data on pollutant
releases; waste generation; material and energy inputs and other significant environmental
issues; a presentation of the company's environmental policy and programme for the site; and an
evaluation of the performance of the environmental protection system. The statement is to be
"kept at the disposal of the public" and submitted to the competent body in the EC member state.
At the moment, it appears likely that company environmental reports will become more
common. It is less clear how they will relate to compliance auditing and the increasing use of
auditing as a means of identifying opportunities to prevent pollution. Some companies such as
Polaroid are issuing environmental reports that document specific changes in chemical use and
release. The usefulness of corporate environmental reports in increasing compliance and in
improving the environment is likely to be directly related to the extent that they provide data that
systematically account for the relationship of a facility to the environment.
2.3 Eco-Labelling for products
Product design is one of the issues to be covered under the Eco-Audit. Similarly,
numerous groups are focusing on the need to include products much more systematically in
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programs aimed at pollution prevention and control.'12' Improving Material Safety Data Sheets as
a means of communicating between manufacturers and product users is one measure. Some
countries such as Sweden, Denmark, and the Netherlands are also developing the idea of a
product impact declaration or statement. Sweden has a product register that lists the chemical
composition of about 60,000 products. France also has a product register. UNEP sponsors a
Clean Production Programme. U.S. EPA has begun a Design for Environment Program.
One product information tool already in long-term use is eco-labelling. Germany and
Canada, among others, have had extensive experience with eco-labelling programs. Germany's
blue angel program is credited with providing the incentive for companies to lower solvent levels
in their products. These programs aim to inform consumer choice and introduce a market-based
incentive to raising the environmental quality of a class of products.031 The EC's eco-labelling
directive, adopted at the end of 1991, will provide a uniform eco-labelling program for the EC.
The program will award an eco-label for environmentally less harmful products in order to
encourage manufacturers to design and produce products with reduced impact and consumers to
buy them. The directive applies to imported products so will put some pressure on manufacturers
elsewhere to compete.
In the U.S. so far eco-labelling is in the hands of private groups such as Green Seal which
certifies products designed and manufactured in an environmentally responsible manner. The
non-profit group evaluates a product's impacts and develops standards aimed at encouraging
environmentally preferable products such as compact fluorescent lamps.1141
Eco-labelling is one means of informing consumer choices. However, it will cover only
certain product groups and is based on a still developing methodology. The effectiveness of
labeling programs is frequently questioned. Environmental labeling in its broader sense is also
particularly prone to abuse which is one reason to develop labelling standards. In the U.S., a
report prepared by attorneys general from ten states highlights the problems with the national
green marketing craze of the 1990's and reports on a 1990 Public Forum held jointly with EPA
and the Federal Trade Commission. The Forum called for federal standards for environmental
marketing claims used in labelling, packaging, and promotion of consumer products. It highlights
terms such as "degradable" and "recyclable" as particular problems. The Green Report II makes
four recommendations:
• Environmental claims should be as specific as possible, not general, vague,
incomplete or overly broad;
• Environmental claims relating to the disposability or potential for recovery of a
particular product should clearly disclose the general availability of the advertised
option where the product is sold;
• Environmental claims should be substantive;
• Environmental claims should be supported by competent and reliable scientific
evidence.'15'
Despite the obstacles to product labelling, broad consumer demand for environmentally-
preferable products is an opportunity to use the market to improve the ability to assess the
relationship of products to the environment and use purchasing power for environmental
purposes.
3 FACTORS THAT INFLUENCE EFFECTIVENESS OF INFORMATION STRATEGIES
Information tools interact with existing regulatory systems and enforcement of their
provisions. If there is weak enforcement, the tools can be a place to initiate action. However,
they are much more likely to be effective if there is a strong system that, for example, clearly
designates liability for mismanagement of waste and includes stringent air and water standards.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 595
Besides the state of the regulatory system, two other factors influence the effectiveness of
information tools.
3.1 Designate responsibility for developing and reporting information
The three tools described above go beyond disclosure of information by requiring
generation of data that industry, government, and the public need. Uncertainty continues to
pervade understanding of environmental problems. Any tool that requires development and
distribution of reliable information and encourages improvement in methodology can have a
significant effect.
The Toxics Release Inventory provides new information (specific chemical releases from
specific facilities) in a useful form. The Chief Executive Officers of most companies reporting
these data and their surrounding communities previously had no base estimates about the
chemicals being stored and released. Although there was much concern about the likeiy
accuracy of the reports before the inventory was initiated, in fact that has not been a major
problem. Instead the data are providing a starting point for improving methods and undertaking
broader projects to estimate and monitor releases. When Amoco looked systematically at
releases at one of its refineries it found that some of the largest sources such as barge loading
had not previously been identified.'161
Auditing in its proposed EC guise also has the potential to increase the information
developed about sources of pollution and habitat destruction and disclose it to the public. An
important role in developing auditing standards is being played by the International Standards
Organisation. Key questions are the level of specificity of the standards and the diversity of
participants in the process of developing them.
The increased attention to labelling is driving the development of life cycle assessment.
This tool is just beginning to go beyond a rough calculation of amounts of common pollutants
released. In the past, in has not addressed toxic chemicals or looked at environmental impacts.
The demand for eco-labelling is making better life cycle assessment methods essential.'171
Ways must also be devised to involve a diverse group in developing assessments and to make
their assumptions and results public. Thus the TRI, Eco-Audit, and eco-labelling are driving the
development as well as the public availability of more usable information particularly about the
sources of pollution and ecological disruption.
3.2 Use information management capabilities and provide for active distribution
Accessibility is the other side of disclosure. How do different publics obtain the information
in a form that is usable to them? What infrastructure exists to educate the different publics on the
issues and facilitate distribution and use of the information? With product labelling, the
information comes with the product but understanding it is likely to be enhanced by education
campaigns and public access to the data on which it is based. Whether environmental statements
prepared under the proposed Eco-Audit program would actually be distributed and analyzed is
unclear. No active distribution and analysis is required by the regulation. Some university
programs are analyzing the green plans being developed by governmental units in the United
Kingdom.'18' Similar analysis of environmental reports would be important to ensure that they
improve company performance.
The TRI demonstrates how accessibility by computer can turn public disclosure into right-
to-know. Nevertheless, the TRI would not work by itself. It is effective at bringing change in the
U.S. because many companies care about their environmental image, the communications media
circulates the information widely, states are using it as the basis for pollution prevention, and
citizen and environmental groups are organizing on the basis of the information. For example, a
Working Group on the Community-Right-to-Know issues a regular newsletter and tracks
implementation of the law. Groups such as the Natural Resources Defense Council have used
the data and helped other groups use it to get provisions to regulate toxic releases to air in the
1990 Clean Air Act. These groups are engaged in a "right-to-know-more" campaign to obtain
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596 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
information on chemical use and production and broader coverage of sources and types of
chemicals.
Although it can help raise public awareness, public access to data is more likely to
increase compliance with existing laws or push companies to obtain environmental results if the
importance of the environment is high on the public's agenda. The types of organizational
structures may vary but infrastructure is necessary for any information tool to make a significant
difference. This may mean civic or environmental groups analyzing data and pointing out
surprising inconsistences among companies. It may mean professional associations donating
their scientific and information management skills. It may mean investigative reporters competing
for environmental stories in the press or on television. The strength of governmental environ-
mental programs is a crucial factor in this mix that results in requirements to improve, disclose,
and use information.
4 WILL SHIFT FROM PUBLIC DISCLOSURE TO PUBLIC ACCOUNTABILITY IMPROVE
COMPLIANCE AND ENVIRONMENTAL RESULTS?
These new information tools are strengthening compliance in three related ways: widening
participation, framing a broader interrelated approach to environmental policy, and providing
information for reduction of pollution and degradation at the source.
First, they are increasing the numbers and types of people participating in pollution
prevention and environmental protection. The TRI is not just being used by one EPA office (as
most medium-specific databases are) but across the agency and by other agencies of
government such as the Bureau of Mines and the Department of Energy. It is being used by
investors and community groups and most importantly by the companies themselves. This wide
use increases the likelihood that environmental problems will be identified and solved. A
Monsanto manager notes this as a particular advantage. Making information public means more
people to work on solutions.'191 The TRI, environmental reports, and eco-labels are still early but
also significant steps toward developing a public accounting system for environmental impacts
useful for people ranging from product designers to community advocates.
Second, these tools, particularly the TRI and the environmental report, begin to frame
environmental problems as a whole. Notes a Rohm and Haas manager: "For the first time,
engineers have had to scrutinize their processes as a whole and quantify wastes released to at)
media."'201 Eco-Auditing is similarly aimed at the need to develop integrated, multi-media
approach to environmental management in the EC. Current compliance programs in countries
such as the U.S. are caught in a fragmented regulatory legal system. These programs draw on a
model such as the TRI to help decide how to transform their own databases into more accessible,
multi-media tools.
Third, these environmental information tools are particularly important in beginning to
provide data about sources as well as about wastes and environmental contamination, the subject
of most compliance data. Source data are what is needed to develop new technologies and
reduce environmental impact. A monitoring report of parts per billion in water is not as useful to a
production engineer as screening data from a product life cycle assessment that compares
amounts and types of waste generated at different steps in the manufacturing process. In some
cases, especially at the beginning of the reduction process when relatively easy changes in
practices can be made, these data can save managers funds rather than costing more.
The relationship between pollution reduction and compliance is a thorny one but two
examples demonstrate how it is being worked out in using sector and whole facility approaches.
In the Netherlands, governments have been developing a process of Target Group Consultation
for most of a decade. Agreeing on covenants to reduce waste and conserve energy with target
groups is a major way in which the Netherlands aims to achieve its reduction of about 60 percent
of pollutants called for by the National Environmental Policy Plan. The relationship of these
covenants to the regulatory system has been a continuing question. As of the spring of 1992 the
covenants were expected to have a status in civil law and reductions to be written into
permits.'21' Similarly, a whole facility approach in the U.S. state of Massachusetts is working out
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 597
the sometimes tense relationship between inspectors and staff providing assistance in pollution
prevention. The Department of Environmental Protection trained a team to inspect electroplating
facilities along the Blackstone River which is contaminated with metals. The project included 28
inspections and resulted in 19 notices of non-compliance, many of them with recommendations to
consult with the state's Office of Technical Assistance. The project not only demonstrated the
effectiveness of using single inspectors or a team of two inspectors but re-visits showed that 23
facilities had implemented some type of reduction or prevention measure, much higher than the
expected five percent.'22'
New kinds of information, widely distributed, often using rapidly developing computer and
communications technology are one important key to the next generation of environmental policy.
Many kinds of information-about health and ecological effects and about uses of toxic chemicals
in products and processes and releases from them--are needed. Innovative measures for sharing
information among companies, government, and the public will need to be developed to handle
some types of data. The road from "disclosure" to "accountability" and the "right-to-know" is likely
to continue to evolve along a tension-filled but fruitful path as better information about sources
and effects and broader participation expand our understanding of how to achieve a sustainable
society.
REFERENCES
1. Wasserman, C. and Gerardu J., Principles of Environmental Enforcement. Office of
Enforcement, U.S. Environmental Protection Agency, February 19,1992.
2. Commission of the European Communities. Proposal for a Council Regulation Allowing
Voluntary Participation by Companies in the Industrial Sector in a Community Eco-Audit
Scheme. Brussels, January, 1992, Xl/83/91-final.
3. Sarokin, D. and Schulkin J., Ecol. Econ., 4 (1991) 175-189.
4. Muir, W. in International Conference on Reporting Releases of Toxic Chemicals, Vienna,
Austria, 13-15 November 1992, pp. 79-83.
5. Office of Pollution Prevention and Toxics. 1990 Toxics Release Inventory Public Data
Release. United States Environmental Protection Agency, May 1992.
6. The literature documenting the use of the TRI is voluminous. A good place to start is to
review the EPA reports:
Office of Pesticides and Toxic Substances. The Toxics Release Inventory: A National
Perspective. United States Environmental Protection Agency, June 1989.
Office of Pesticides and Toxics Substances. Toxics in the Community: National and Local
Perspectives. United States Environmental Protection Agency, September 1990.
Office of Pesticides and Toxics Substances. Toxirs in the Community: National and Local
Perspectives. United States Environmental Protection Agency, September 1991.
Office of Pollution Prevention and Toxics. 1990 Toxics Release Inventory Public Data
Release. United States Environmental Protection Agency, May 1992.
Also see: Lynn, F. The Toxic Release Inventory: An Evaluation of Access, Use and
Impact. Prepared for the Office of Toxic Substances, United States Environmental
Protection Agency, August 1991., Monsanto Corporation. Environmental Annual Review.
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598 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
7. Peter Sorngard. "An Approach to Environmental Audits," in Environmental Auditing in
Cleaner Production Strategies. Invitation Expert Seminar, Trolleholm Castle, Sweden.
Organized by Lund University with the UNEP/IEO Cleaner Production Programme and the
Nordic Council of Ministers, April 1991.
8. United Nations Environment Programme. Companies' Organization and Public Communi-
cation on Environmental Issues. Industry and Environment Office, Technical Report Series
No. 6, 1991. p. 54.
9. Sofia Statement. Concluding Statement of the Conference West Goes East: Opportunity
of Pollution Transfer? Sofia, Bulgaria, 16-18 January 1992.
10. Keyes, C. and Ervin, C. Environmental Review of U.S. Industrial Facilities: A Survey of
Information Tools. Paper prepared for the Institute for European Environmental Policy,
London, by World Wildlife Fund, United States, 1991. p. 5.
11. ENDS Report No. 206, March 1992.
12. Lilienthal, N., et al. Tackling Toxics in Everyday Products: A Directory of Organizations.
Inform. Inc., New York, 1992.
13. Carswell, L., et a!. Environmental Labelling in the United States: Background Research,
Issues and Recommendations. Prepared for the Office of Pollution Prevention, United
States Environmental Protection Agency, 1989. Also see: Salzman, J. The OECD
Observer., 169 (1991) 28-30.
14. Dean, N. Life Cycle Review as a Tool in Standard Setting, in A Public Policy for Materials.
World Wildlife Fund, Washington, D.C., in press.
15. Attorneys General of California, Florida, Massachusetts, Minnesota, Missouri, New York,
Tennessee, Texas, Utah, Washington, and Wisconsin, The Green Report II:
Recommendations for Responsible Environmental Advertising. 1991.
16. Amoco Co. and U.S. EPA. Pollution Prevention Project, Yorktown, Virginia. Executive
Summary. 1991.
17. Society of Environmental Toxicology and Chemistry. A Technical Framework for Lifecycle
Assessment. Washington, D.C., 1991. Also see: World Wildlife Fund. Getting at the
Source: Strategies for Reducing Municipal Solid Waste. Washington, D.C., 1991.
18. ENDS Report No. 206, March 1992.
19. Beaver, E. in International Conference on Reporting Releases of Toxic Chemicals, Vienna,
Austria, 13-15 November 1992, p. 74.
20. Fisher, E. in International Conference on Reporting Releases of Toxic Chemicals, Vienna,
Austria, 13-15 November 1992, pp. 33-41.
21. ENDS Report No. 205, February 1992.
22. Greenbaum, D. The Massachusetts Pollution Prevention Initiative. Speech Delivered in
Princeton, New Jersey, March 1992.
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TABLE 1 EXAMPLES OF ENVIRONMENTAL INFORMATION TOOLS
FACILITIES
Proposed
European Communities
Auditing Regulation
(1992)
FACILITIES\
SUBSTANCES
U.S. Toxic Release Inventory
(TRI)
Emergency Planning and
Community Right to Know Act
(Title III of the Superfund
Reauthorization Act of 1986)
WHAT KIND OF INFORMATION IS
DEVELOPED?
If opt into voluntary system, companies must
perform environmental review of facilities
followed by audits (every 1 to 3 years); review
to include comprehensive analysis of choice and
management of energy, raw materials and
water, production processes, lifecycle impacts of
products; waste management; accident
prevention; training; public information and
participation.
Facilities must report routine releases of 320 +
toxic chemicals to U.S. Environmental Protection
Agency (U.S. EPA) and state environmental
agencies if they have more than 10 employees
and use an amount of a listed chemical greater
than 10,000 Ibs or manufacture or process more
than 25,000 Ibs annually.
HOW IS THE INFORMATION MADE
ACCESSIBLE TO PUBLIC?
Environmental statements based on findings of
initial environmental review and subsequent
audits for the public to include a summary of data
on pollutant releases; waste generation; material
and energy inputs; company's environmental
progress and programme for the site and
evaluation of performance of the environmental
protection system. Environmental statements to
be kept the disposal of the public and submitted
to the competent body in the EC member state.
Companies that complete audits are awarded a
symbol.
Accessible to the public through computerized
databases, national annual reports, state
agencies, and additional analyses by press,
companies, NGOs, and others.
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PRODUCTS
European Communities
Eco-labelling Directive
(1991)
Symbol will be awarded after a firm provides
information to relevant national agencies and
the Commission on European Communities on
product lifecycle; resources used in manu-
facturing; and associated pollution and waste
data.
Symbol on label indicates that a product has an
environmental impact significantly less than that
of other products in the same product group.
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TABLE 2 ENVIRONMENTAL INFORMATION AND THE PUBLIC: SAMPLE STATEMENTS 1986-1992 BY GOVERNMENT, INDUSTRY, AND
NON-GOVERNMENTAL ORGANIZATIONS
GOVERNMENT
UNCED
Agenda 21, Chapter 19,
Environmentally Sound Management
of Toxic Chemicals,(Rio de Janeiro, Brazil 1992)
SAMPLE STATEMENTS
International Organizations are to consider developing guidance on publicly
accessible information databases on toxic chemicals for use by interested
governments. Corporations are encouraged to provide release data voluntarily
for plants in countries where requirements do not exist.
The following statements on right-to-know are made: "The broadest possible
awareness of chemical risks is a prerequisite for achieving chemical safety. The
principle of the right of the community and workers to know these risks should
be recognized." Yet, this right to know must be "balanced with industry's right to
protect confidential business information."
Organization for Economic
Cooperation and Development {OECD)
Guiding Principles for Chemical
Accident Preparedness and Response
[OECD Council Act C(88)85(Final) Annex II]
also SECTION D, Environment Monographs
NO. 51,(1992)
OECD Guidance on Integrated Pollution
Prevention and Control Appendix to Council
Recommendation C(90)164(Final),(1991)
"The following Guiding Principles are designed to facilitate the implementation by
Member countries of programmes and policies to ensure that the potentially
affected public is well informed about existing or planned hazardous installations
and to facilitate opportunities for the public to provide input, as appropriate, into
decision-making by public authorities concerning such installations."
"The public should be informed and consulted in the evaluation of the health and
environmental effects of substances." Technical methods include: "the use of
inventories of releases to all environmental media from installations, coupled with
inventories of inputs, to enable a 'mass balance1 to be drawn up."
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U.S. Emergency Planning
and Community Right-to-Know Act,
U.S. Code 42 Section 11023 h., (1986)
INDUSTRY
Business Charter for
Sustainable Development
Principles 15 & 16,(1991)
U.S. Chemical Manufacturers Association (CMA)
Responsible Care Program, Waste Release
and Reduction Code, (1990)
European Chemical
Industry Federation (CEFIC)
Guidelines for the Communication
of Environmental Information
to the Public,(1987)
"The release forms required under this section are intended to provide
information to the Federal, State and local governments and the public, including
citizens of communities surrounding covered facilities. The release form shall be
available to inform persons about releases of toxic chemicals to the environment;
to assist governmental agencies, researchers, and other persons in the conduct
of research and data gathering; to aid in the development of appropriate
regulations, guidelines, and standards; and for other similar purposes."
Principle 15 promotes "Openness to Concerns." Companies should foster
dialogue with employees and the public about the potential hazards and impacts
of operation, products, wastes, and services - including those concerns of global
significance.
Principle 16 addresses "Compliance and Reporting," companies should conduct
regular audits and periodically provide information to "the Board of Directors,
shareholders, employees, authorities, and the public."
"This Code is designed to achieve on-going reductions in the amount of all
contaminants and pollutants released to air, water and land from member
country facilities. These reductions are intended to respond to public concerns
about the existence of such releases..."
"Provide the public with the information necessary to enable them to understand
the potential environmental effects of the companies' operations and be
prepared to respond to expressions of public concern." The public includes
"public authorities, customers, and contractors."
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NGOs
Sofia Statement
from West goes East Conference:
Opportunity or Pollution Transfer?,
(Sofia, Bulgaria 1992)
113 public interest participants
from 27 countries, including
Central and Eastern European nations
NGOs should develop a database on foreign investors, hold annual regional
progress conferences, and request accident and release data.
Governments should carry out yearly environmental audits which are made
public, complete full environmental impact assessments which are developed
with public comment, release TRI data, and establish an investment database
with environmental information.
Firms should provide TRI data to all countries in which they operate, follow
responsible care practices, carry out publicly accessible audits and assessments,
and provide liability terms and information.
WWF-lnternational
Toxics Statement for UNCED,(1992)
Databases on toxics should be publicly accessible and provide information on
both uses and releases of chemicals; consistent core data elements should be
developed for comparing data across borders; companies should provide TRI
data to all countries in which they operate; and technical assistance should be
provided to aid countries in establishing right to know programs.
Vienna Principles
International Conference on Reporting
Releases of Toxic Chemicals,
(Vienna, Austria 1991)
Principles signed by public
interest representatives from European,
U.S., and International NGOs.
"The public's right to know is a fundamental attribute to democracy," therefore,
information on sources of chemicals, impacts of industrial hazards and pollution
should be revealed; industry should operate around the world to the highest
standard of environmental protection; transnational companies should release
TRI-equivalent data; The U.S. EPA and the Commission of the European
Communities should support information gathering legislation; and the TRI
should be expanded to cover the full range of industrial operations that affect the
environment.
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Vesprem Declaration
International Conference
on Prevention of, Emergency Planning for,
and Response to Accidents,
(Vesprem, Hungary 1990)
Statement of public interest
representatives from 9 European
countries and the U.S.
Coalition for Environmentally
Responsible Economies (CERES)
Valdez Principles,(1989)
Developed by environmental
groups and investors
interested in social change
"Every citizen has the right to be notified about and to gather verified information
about chemical substances (including radioactive materials); quantities
processed; stored and used; specific management of these substances; effects
to health and the environment of these substances; accidents involving these
substances; routine emissions, and waste production from government-controlled
and private industrial activities."
Signatory companies commit to publish an annual report\audit on their
environmental performance.
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604 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 605
FREE ACCESS TO INFORMATION AND THE LICENSING PROCEDURES FOR INDUSTRIAL
PLANTS: THE FLEMISH AND BELGIAN SITUATION
RIK DE BAERE
Lawyer, Bond Beter Leefmilieu - Flanders, Overwinningsstraat 26,1060 Brussels, Belgium
1 INTRODUCTION
Openness of government and the right to information and involvement of citizens are
evidence of the democratic nature of a society. When citizens are given the power to elect their
own political representatives, it is essential that these voters are given the opportunity to assess
the policies of their delegates.
This primarily implies that government and information should be public and freely
accessible.
Various recent national and Flemish legislative initiatives suggest that Belgium, too, will
finally see some movement towards meeting the long-standing demand for more openness of
government.
Unlike our West European neighbours, Belgium still lacks national legislation which
guarantees general openness of government, let alone the fact that the principle of publicity of
information is already implemented. The environmentalist movement in Belgium still comes up
against the very strictly interpreted duty of secrecy for public servants.
Recently, though, a number of political initiatives were taken towards more openness:
- The national (federal) Minister of the Interior provided for more openness within his own
department, as there was no political consensus for a general arrangement on federal
level;
- The national Minister of Employment tried to grant unions access to information on
environmental matters inside companies;
- The Flemish Minister of the Interior successfully launched a draft decree for a general
arrangement regarding publicity of government information.
It is striking, though, how the politicians and their proposed regulations focus chiefly on the
access of private individuals to personal files and documents regarding administrative decisions.
The publicity of data which concern the whole population, or at least a large section, is
traditonally given less importance.
2 PASSIVE PUBLICITY OF ENVIRONMENTAL INFORMATION
2.1 General environmental information
Yet on 7 June 1990 the European Community adopted a Directive which by the end of
1992 will guarantee free access to environmental information and thereby extends the principle of
publicity to information "of public interest".
It is no coincidence that precisely with regard to the environment the EEC is implementing
a system of passive publicity (access on request). The environment belongs to every one of us
and therefore everyone is entitled to know how his environment is being managed and how the
state of the environment is developing. Unlike in most of our neighbouring countries, people in
Belgium too often have trouble giving legal backing to their demand for access, as they mis
(temporarily, we hope) a general legal framework regarding openness of government or specific
legal guarantees.
Like in Flanders, the Walloon and Brussels region has implemented the directive whereas
nationally the publicity of environmental information is still far off, although the Belgian
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606 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
government has to implement this directive before the beginning of 1993 for their specific
competence in the field of environmental policy.
The Flemish government has adopted the European guidelines regarding publicity of
environmental data practically word for word in the VLAREM (see below).
Since the beginning of September 1991, every person can, for a nominal fee, request the
Flemish provincial councils for all information regarding the state of our environment and all the
various activities which either damage or protect it. Theoretically the provincial council will answer
within a month if the information is available and for which price this information can be obtained.
A month after the payment of the fee the information should be sent to the applicant. In the
meantime it has been proved that this laborious and time-consuming procedure (up to 2 months)
does not work and that the innumerable and broadly interpretable exceptions do not impede the
practical accessibility of information.
Stimulated by the environmentalist movement, there is a growing demand for
comprehensible and legally correct information regarding the state of the environment (active
publicity), along with simple access to precise test results and licences (passive publicity).
For this reason, the Flemish environmentalist movement was eager to learn about the first
experiences with VLAREM and the publicity of environmental information in Flanders by trying out
the legislation with some test-cases. These proved no success. In most of the cases the
responsible provincial authority answered much too late and incomplete. Even the minister did not
react in time when we did appeal against some of these responses.
This delay is caused by the fact that in most cases the province has to ask herself for the
information to other authorities. The formal possibility of direct contact between the public and
these authorities would mean an extra gain of time. This does not mean that it remains very
useful to organise a central official body for people who do not know where exactly to ask for
some information.
22. Freedom of environmental information within the company
According to a decree, called Vlarem II, which is very recently adopted by the Flemish
government, workers and their representatives have the possibilty to ask for the disclosure of all
the information which has to be tranferred by the company they work for, to the Flemish
environmental administration. This is very interesting specially because the same decree obliges
some companies to organise themselves a system of permanent measurement of emissions.
3 ACTIVE PUBLICITY OF ENVIRONMENTAL INFORMATION.
It is debatable whether tie regulations regarding passive publicity that are contained in the
VLAREM will affect the policy of active publicity of the Belgian and Flemish governments.
At least in serious emergency situations, the official measurement data should be
communicated as soon as possible to the concerned citizens. The objectionable policy with
regard to certain "traditional" environmental problems affecting Flanders during summer shows
how the practical implementation of the publicity of environmental information should be followed
with the necessary suspicion.
In periods of high ozone concentrations, which constitute a reliable criterion for the general
level of air pollution, the Belgian people are only informed as soon as the ozone level reaches
200 microgram/m3 in several places and for several days. Nevertheless, it is known that children
get breathing problems when they have been playing for a few hours in ozone levels of 160
microgram. The authoritative medical magazine The Lancet" recently reported how asthma
patients react more heavily to allergens when exposed to an ozone level of 120 microgram.
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 607
The Belgian government should warn asthma patients and their doctors whenever pollution
becomes so serious that they might surfer. Whenever there is so much pollution that children
should not play outside (for too long), the people ought to know.
There is no point at all in waiting for several days until the pollution has become general
before warning the population.
About the salmonella poisoning of the coastal water, too, the Secretary of State for the
Environment releases no up-to-date information either, not even if the legal quality standards are
exceeded. Independent tests by our organisation and the testing programme of the National
Institute for Hygiene and Epidemiology have shown that this summer the water at some of the
Belgian beaches did not satisfy the legal standards. Nevertheless, these results, such as the level
of salmonella bacteria in the water, are obscured by an overall quality assessment of which the
criteria are not at all clear and which does not take account of the standards laid down in the
European bathing water directive. Moreover, bathing water which does not satisfy the legal
regulations is even officially rated as "good" or "very good".
Since the results of the tests, which should indicate the non- compliance with the
standards, are not given wide publicity, the spirit of the Directive regarding the free access to
environmental information is not observed either.
To avoid misplaced fear of "unexpert and alarmist" interpretations, the population is often
only given a few brief quality assessments or is informed belatedly of the fact that danger levels
have been exceeded. Individuals must have the opportunity to compare the available data on the
quality of the environment with more precise personal health requirements. Democratic control of
the compliance with environmentai quality standards is only possible if the relevant up-to-date
measuring data are available.
The publication of evaluation reports long after the event does not alter the fact that the
population should be informed quickly and completely. As a matter of fact.only in Wallonia does
there exist a legal obligation to publish an annual report called "Etat de I'environnement wallon".
In their policy of openness, the authorities should regard the population as an equal
interlocutor with the right of involvement and of access to all currently available objective
information concerning the state of the environment and of nature.
The aforementioned examples show that in actual practice all legal regulations concerning the
passive publicity of environmentai information threaten to become pointless without a general
change in mentality towards more openness of government. Perhaps the European Community
might have to give the Belgian government a little push in the direction of general openness of
government. A general European framework for active publicity of environmental information
would be even better.
4 OPENNESS AND PARTICIPATION DURING LICENSING PROCEDURES
4.1 Former problems
Under the present division of competence between the national Belgian government and
the 3 regions (Flanders, Wallonia and Brussels), the regions have practically full authority with
respect to environmental matters since 1980.
On the one hand there are the national regulations which remain in force until such time
as they have been replaced by new regional legislation. On the other hand, each region has
separate laws and procedures for various environmental matters concerning industrial
establishments. So, since 1980 this regional legislation has gradually eroded the old national
legislation. That is why in Belgium a highly complex body of laws and divergent licensing
procedures has evolved, some of which are very deficient with respect to publicity and
involvement.
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The national law of 26.03.1971 regarding the protection of the surface water, for instance,
has put in place an entirely closed licensing procedure for effluent water, without public
investigation and without the opportunity of access to licence applications and issued licences.
The Flemish decree of 02.07.1981 regarding waste management does not provide for
public investigation when issuing waste disposal licences. It is possible, though, to lodge an
administrative appeal.
On the other hand, operating licences that are issued on the basis of a national set of
regulations dating from 1946, which only regulate air and noise pollution, are issued after the
public had the formal possibility to make remarks or to appeal.
The Flemish region has used its new powers to make some significant improvements to
the licensing procedures for nuisance industries.
Beginning of September 1991, a new environmental licence legislation became effective in
Flanders (Vtaams reglement inzake milieuvergunningen - VLAREM (Flemish Legislation governing
Environmental Licences).
The new global "environmental licences" incorporate all previous sectorial licences
(operation, discharge of industrial water, waste treatment, storage and disposal of toxic waste).
Even the building licence cannot be implemented as long as the environmental licence has not
been issued.
Until lately, separate licences had to be requested for all these different aspects, such
according to separate procedures with very different modalities.
This situation continues to exist in Brussels and in Wallonia where such uniformity and
improvements regarding publicity and public involvement have not yet been achieved.
4.2 Licensing procedure for a nuisance industry according to VLAREM
The licence application is deposited for public at the town hall for a period of 30 days. If
necessary, this application is supplemented with an environmental impact assessment or safety
report. The environmental impact assessments are drawn up according to the guidelines
contained in Directive 85/337/EC which were adopted in a number of provisional implementing
orders only as recently as 23 March 1989. For the safety reports, the VLAREM provides for a
procedure which is almost identical to that for the environmental impact reports.
Our experience with environmental impact assessment is therefore quite new. However,
certain problems are already manifesting themselves. Particularly the limited and belated
involvement of the public in the assessment procedure gives rise to misunderstandings and
frustration. No public involvement is provided for while the report is being drawn up; third
persons only get to see the report when it has been completed. Only during the short term of the
public investigation of the global application (30 days) can the report be perused and formally
some outdated suggestions or criticism be given.
The applications for the most polluting industrial plants (category I) are published in 2
newspapers or weeklies. Owners and users of a building within a radius of 100 metres around the
perimeters of the sites of the establishments concerned are informed in writing of these
applications.
Appeals against the planned establishments can be lodged with the council within the term
of the public investigation.
The licence is also posted up for 30 days and open for public at the town hall. During
these 30 days, a non-suspensive appeal may be lodged with the authorities. After these first thirty
days, the old licences may be consulted at the town hall for at least two days a week. The secret
nature of Belgian licences for the disposal of effluent water thus removed; the same applies for
these licences which were issued before the new legislation came into effect.
The environmental licence itself remains public, but the other elements contained in the
licence application such as opinions and reports (including environmental impact assessments
and safety reports) theoratically disappear for good into the archives after the procedure.
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The VLAREM has undoubtedly introduced some major improvements to the licensing
procedures for nuisance industries. Our first experiences with the new regulations are therefore
rather good. Nevertheless a democratic process in the environmental impact and safety
assessment are an absolute precondition in order not to create definitive distrust with the Flemish
people towards these undoubtedly very useful policy instruments. Here, too, the European
Community can play an important role by adjusting the European directive on environmental
impact assessment.
A separate European directive containing minimum guidelines for publicity of applications
and licences; opportunities for public involvement and duty of justification and information could
certainly be useful to the development of more democratic licensing procedures for industrial
plants in European countries and regions where, (like for example in Belgium: Brussels and
Wallonia) there is still much scope for improvement in this area.
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USE OF PUBLIC DISCLOSURE IN ENVIRONMENTAL PROTECTION PROGRAMS TO
ENHANCE COMPLIANCE AND CHANGE BEHAVIOR IN THE UNITED STATES
KEOUGH, PAUL G.1 and WILLARD, NORMAN L2
1 Deputy Regional Administrator. Region I, U.S. Environmental Protection Agency, John F.
Kennedy Federal Building, Boston, Massachusetts, 02203 (USA)
2 Environmental Protection Specialist, Air, Pesticides & Toxics Management Division, Region I,
U.S. Environmental Protection Agency, John F. Kennedy Federal Building, Boston,
Massachusetts 02203 (U.S.A.)
SUMMARY
Public disclosure of environmental information is a cornerstone of the regulatory process of
the United States. Virtually every piece of national legislation requires self monitoring, and the full
and open reporting of environmental data by the regulated community. It is increasingly clear that
the public disclosure of this data is playing an important role in achieving compliance and in
fostering improved environmental management.
There are several points that are highlighted in this paper: (1) the public has clear and
specific access to virtually all of the self-monitoring data submitted at the state and national level,
(2) public access to data like that filed under the Toxics Release Inventory program has led to
dramatic reductions in emissions and a growing participation in voluntary reduction programs, (3)
public notice can be an important enforcement tool in statutes like the Safe Drinking Water Act
and the Clean Water Act, (4) using press releases and publicity about violations and enforcement
actions serves as a deterrent and can lead to improved compliance rates, (5) data integrity is of
great significance, (6) public notification can help stimulate pollution prevention efforts on the part
of the business industry.
1 PUBLIC ACCESS TO COMPLIANCE MONITORING DATA
In the United States, data furnished by the regulated community is relied upon not only to
determine compliance status, i.e. is the source in or out of compliance with applicable regulations,
but also to analyze compliance patterns, target compliance inspections and focus enforcement
actions at the state and national level. Self-monitoring in some instances is required through
legislative action or in some cases, self-monitoring is required under rulemaking authority of the
state or national agency. Since there are hundreds of thousands of sources to be regulated in the
United States, self-monitoring and the reporting of that data to the responsible agency is the
underpinning of this nation's environmental control program. It simply is not possible to have
inspectors check each and every facility.
Virtually all of the self-reported information in the United States is available to the media
and the public, and the regulated community submitting data is well aware of this. The mere fact
that this data can be subjected to public scrutiny in and of itself can act as a powerful motivator. It
helps make sure that business and industry files all of the required information and in a growing
number of instances acts as an incentive for industry to go beyond mere compliance with the
applicable law or regulation.
Regulatory agencies at the Federal and State level undertake proactive programs in order
to make sure that the public has access to the data filed by the regulated community.
Under the Clean Water Act, for example, sources holding an EPA permit to discharge into
waterways must implement as a permit condition sampling and testing programs. These
discharge monitoring reports give detailed data including facts on whether or not the source is in
compliance with all of its requirements and, if not, how the source intends to correct the problem.
Quarterly non-compliance reports are routinely prepared and sent to individuals and groups on a
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mailing list. Individuals wishing to receive this data can simply write to EPA and be added to the
list.
EPA often is required to file annual reports to the U.S. Congress on certain pieces of data
that it collects under the various statutes. The agency routinely releases these reports to the
public as well.
In many Regions of EPA press releases are issued, briefings are held and reports
released on data submitted by various companies. The key objective is to make sure that the
data obtained by a public agency actually reaches the public. Often, however, the data released
as part of a proactive effort is cumulative in nature - it gives a general picture of the data from a
Regional or national viewpoint - it is not industry specific.
Many representatives of the public want more specific information that pertains to an
individual company or companies in a carefully defined geographic area. In the U.S., thousands
of requests for data of this kind are released to the public under the Freedom of Information Act
or a comparable state statute. These laws were established to ensure that the public has total
access to regulatory agencies' files.
At the national level, the Freedom of Information Act was passed in 1978 and it is clear
from its history that it was intended as a disclosure law, not a withholding law. In our Region as
well as in all of the other parts of EPA, there is a presumption in favor of releasing information.
Only a few exemptions are allowed. First, a business or industry can request that certain
pieces of data be withheld because it contains trade secrets that would hurt them and/or one or
more of their competitors. Such a request is not automatically guaranteed. EPA must rule on a
case by case basis that it contains confidential information that should not be released. If such an
exemption is granted, the confidential business information must be handled very differently than
other data filed by the regulatory community.
In a Region like ours, only a handful of people who have certain security clearances and
who have passed a required annual test have access to such information. This group also must
sign documents pledging that they will not divulge this confidential information and the penalties
for violating that pledge are very serious. This high level of security is necessary in order to make
sure that this confidential data is not inadvertently released.
Second, draft documents and working papers are also exempt from public access as are
sensitive enforcement information, individual personnel records, matters of national defense or
foreign policy, internal agency rules and information exempted under any other statute.
Handling the requests that come in under this act can be extremely resource intensive. In
our Region, for example, some 1900 requests for various pieces of data were received in 1991.
When the request comes in it must be logged in, assigned a number and input into the
computer for tracking purposes. This is critical since under the law, the agency has 10 working
days to respond to the request. The request then has to be reviewed by the person in charge of
that information as well as by an attorney. In most instances it is determined that the information
can be immediately released. In our Region, in about 15 percent of the cases, it is determined
that portions, or all of the request must be denied because the information is exempted under the
law. EPA must notify the requestor of that denial and state specifically why that data can not be
released. The requestor does have appeal rights and in some instances the information ends up
being released.
Once a positive determination is made, the information must be copied and sent back to
the requestor. Often the files are voluminous and it takes a good deal of effort to complete that
copying process. Under the law, EPA can charge a requestor a specified amount for that task.
The Agency must notify the requestor of the estimated cost before the copying gets underway. In
many instances the Agency is asked to waive those costs since release of the data would clearly
be "in the public interest". Those waivers are granted for the most part except in cases where the
requestor is gaining the information for a profit making venture (such as requests from
environmental consulting firms that are trying to get information to augment its business contacts).
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2 PUBLIC DISCLOSURE OF ENVIRONMENTAL RELEASES
One telling example of a disclosure law in the United States yielding unexpected benefits,
is the Toxics Release Inventory {TRI) program under the Emergency Planning and Community
Right to Know Act of 1986 (EPCRA). This law requires manufacturers who discharge/use more
than 10,000 pounds of any of 300 chemicals or chemical categories, to record and report to the
U.S. Environmental Protection Agency on any releases and off-site transfers. TRI is essentially a
reporting and public disclosure instrument.
Since 1987, EPA has issued an annual public report on the data contained in the Toxics
Release Inventory submitted by more than 22,000 facilities all across the United States.
When the first report was issued, U.S. regulators, reporting corporate officials and the
general public at large were stunned at the high volume of toxics being released into the
environment or being transferred off site. This was the first comprehensive report of its kind and it
showed that more than 7 billion pounds of toxics were being released or transferred off site by
U.S. facilities. The public was in an uproar and the release of this data had a profound impact on
the regulated community.
It should be noted that, under TRI, a company is not required to reduce their emissions,
but because of the negative publicity resulting from full disclosure of the TRI data, many U.S.
corporations have embarked on aggressive programs to minimize waste, to use smaller amounts
of toxic materials, and to substitute less toxic constituents in their processes.
Even where the use and release of toxic chemicals is legally permissible per agency
standards and legal requirements, public disclosure of the amounts of these releases by EPA has
prompted major action by sources to reduce such use and releases. No facility wants to be
identified as a major emitter or user of chemicals even when their actions are completely legal.
The public release of the TRI data is accomplishing its intended goal. Each year there has
been an overall decrease in total releases and transfers. For example, there has been an 11
percent decrease in TRI releases and transfers in the last two years.
This simple act of reporting and the public disclosure of self-generated data has had a
persuasive and dramatic effect at U.S. facilities that use and release chemicals.
As a direct result of the release of the TRI data, national legislation was enacted in 1990
(the Pollution Prevention Act) that expanded EPA's role in encouraging industrial source reduction
and recycling in all of its regulatory and non-regulatory programs by requiring sources to report on
what efforts they have underway to reduce, recycle, reuse or treat each chemical reported on a
TRI form.
The publication of this data has also produced an avalanche of legislation at the state level
requiring more specific information reporting from companies. Approximately 16 states, through
legislation, now variously require sources to report to regulating agencies on how they plan to
reduce their emissions, reduce their use of toxics materials, reduce waste streams and prevent
pollution.
The TRI data base is completely computerized and the public has full access to that
information. EPA, in many Regional Offices, has undertaken training problems on how to access
the data. In the New England Region, for example, training courses for environmental newspaper,
radio and television reporters were held. That Region has also trained environmental group
leaders and staff members of elected officials. This type of training is critical to ensure wide public
dissemination of the material contained in TRI.
3 PUBLIC NOTICE AS AN ENFORCEMENT TOOL
In many instances the release of self generated data can be very useful in returning a
violator to compliance or in actually generating a formal enforcement action.
As noted earlier, under the Clean Water Act, summaries of the discharge monitoring
reports filed by business and industry are routinely circulated. Citizen groups also review EPA
files to determine if any violators of the Clean Water Act have been reported by those holding
permits.
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As a result, over the years, groups have brought a number of suits against companies for
violation of these permits. Approximately 100 cases a year have been brought under the Clean
Water Act citizen suit provisions. In 1991, nearly $5 million in penalties were imposed as a result
of these citizen suits. The previous year was also a record where nearly $3 million was collected.
It is clear then that under the Clean Water Act, a company's own data is being used to generate
enforcement action. This certainly acts as an incentive for companies to stay in compliance.
It should be noted that in many instances these citizen suits have been filed because the
government at the Federal or state level has been unwilling or unable to take enforcement action.
In some instances these suits have helped the government improve its compliance roles.
Another form of public disclosure can be found in the Safe Drinking Water Act. Under this
law, water suppliers must routinely sample drinking water, typically once a month, obtain
independent laboratory certification of contaminant levels, keep records and report compliance
status on a monthly basis to the regulatory agency. Depending on the seriousness of the
violations, sources must make a full disclosure to the appropriate regulatory agency within forty-
eight hours.
In addition, if monitoring reveals serious non-compliance, water supply customers must be
notified by radio/television broadcast, newspapers and/or by direct mail within specified time
frames. Naturally, such disclosure of problems with a water supply can lead to a lot of pressure
on the supplier to immediately correct the deficiency. The consumers will demand quick response.
Once such contamination is reported, subsequent remediation or corrective action must also be
publicly noticed and reported regularly to the agency until water quality is restored.
Water suppliers take extra steps to ensure a safe water supply knowing full well that there
will be full public disclosure of any problems.
4 THE POWER OF THE PRESS
As noted earlier, the press has access to much of the self-generated environmental data
required of the regulated community. This can act as an incentive for sources to provide data
required by the government in a complete accurate and timely fashion. Non reporting in and of
itself can be damaging to a company's public image and can lead to civil or criminal liability.
In the U.S., as in many other countries, the fear of adverse publicity acts as a strong
deterrent to non-compliance with environmental requirements. Having a positive image in a
society of environmentally concerned citizens/consumers is important to regulated sources. In the
U.S., companies want to be known as "green" companies they do not want to be labelled
"polluters." Because public disclosure of non-compliance is damaging, this mechanism is used
deliberately as a tool by lawmakers, courts, agencies and environmental groups to obtain
compliance.
In the U.S., State and Federal environmental agencies commonly issue press releases
about non-compliance by individual sources. Agency records of non-compliance, even when
based on source-furnished data, are available to the public and often are publicly disclosed.
In the U.S., EPA's national and regional offices routinely issue press releases and news
stories about enforcement actions and penalties assessed against non-complying sources. The
same is true of state environmental agencies.
EPA annually issues an Enforcement Accomplishment Report which includes individual
case summaries. This is widely disseminated to citizens throughout the country. The agency also
reports on its efforts to Congress and this data is also available to the public.
Members of the press and environmental groups commonly review compliance information
in agency files that has been supplied by sources. This too can lead to press related stories and
even citizen law suits against non-complying sources.
Corporations in the U.S. fear bad publicity. It is bad for their image. It can hurt their sales
and a damaged reputation can sometimes put a company out of business. The fear of a
negative image is very real, and therefore, many companies knowing that there will be public
disclosure of data they are providing, go out of their way to ensure compliance.
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Business and industry also utilize the press. When monitoring and data show
improvements or significant reductions in pollution levels, U.S. industry routinely contacts the
media to get that message out. Industry has come to recognize that being more open and
releasing information on a timely fashion can be to their advantage.
In our Region, we have found that the press can be a major ally in helping to improve
compliance. Often after publicizing an enforcement case, we will hear from other companies who
may be having a problem and want to talk to us about how they can resolve their non-
compliance. Companies have often asked us to withhold the issuance of a press release or have
asked us if they can review such a release before it is sent out to the press. In our Region, we
issue a release on every enforcement action. Whether to issue a release or not is non-negotiable.
We do not allow a company to review a press release before it is issued, however, if a facility is
cooperating with us and moving quickly to correct the problem, we will give them credit for that
activity in our release. We also have received "tips" about similar compliance problems from
people who read or hear about an enforcement action in the press. We send inspectors out to
follow-up on these complaints. We are the only Region (among the 10 EPA Regions) that issues
a release on every action. We certainly feel that making this information available to the media -
and therefore the public - helps make business and industry want to comply with the law. The
press can be a powerful ally.
5 INTEGRITY OF DATA IS KEY
In order to have full and complete disclosure, EPA as well as state agencies undertake a
number of programs to ensure data integrity.
First and foremost, it is important to make sure that all sources that are required to file
self-monitoring data, do exactly that. The agency does take action against those who fail to file
the required information and there are stiff monetary penalties for those who refuse to cooperate.
For example, under the TRI program, more than $16 million in penalties for not filing timely
reports has been assessed. Tracking is done under the Clean Water Act to make sure that the
required discharged monitoring reports are filed. When a report is not filed on a timely basis
penalties can be assessed.
Making sure that the data is complete and accurate is also important. EPA relies heavily
on data generated by the regulated community. The Agency takes a number of steps to make
sure that what is being filed is accurate information. Surprise audits of a company's discharge are
undertaken for example.
The penalties for filing false or inaccurate data are very severe and can even result in
criminal actions. In our Region we have initiated criminal actions against several companies we
believed filed false data in order to avoid a showing of non-compliance. The Agency has shown
its willingness to use every enforcement tool at its disposal to guarantee the integrity of its data.
6 PUBLIC DISCLOSURE HAS LED TO MAJOR POLLUTION PREVENTION EFFORTS
Having a good environmental record is of primary importance to many U.S. businesses
and industry. The regulated community also has come to recognize that a heavy emphasis on
enforcement at the State and Federal level has made it very costly to go out of compliance.
Businesses are well aware that the data they submit to regulators will be open to public
scrutiny. As a result, many corporations, particularly major ones, have begun to implement
ambitious pollution prevention programs. Instead of cleaning up pollution at the end of the
pipeline, businesses have begun to implement programs to prevent pollution from occurring in the
first place. They therefore, in their report to the regulating agencies, will show progress. Many
businesses and industries in order to get full credit for their efforts, issue press releases or
progress reports on their efforts. It is the regulated community itself that utilizes public disclosure
when there is a good story to tell. Many U.S. corporations have recognized the importance of
disclosing environmental success stories and this has led to more awareness that it is necessary
to implement pollution prevention programs.
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7 CONCLUSION
Full and open public disclosure of virtually all data supplied to the government by the
regulated community is a somewhat unique feature of the U.S. regulatory process. White some in
the regulated community may not like it, the fact is that disclosure has brought many benefits to
environmental management in the U.S. The public has come to expect full and open disclosure
as part of the regulatory process.
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OUTLINE OF PROCEEDINGS VOLUME II
The second volume of the Proceedings will contain the following subjects:
PREFACE
OPENING SPEECHES
The full text of the speeches at the openening of the Conference will be made available.
ADDITIONAL PAPERS
Papers that were not available in time or were submitted during the Conference will be
included in this part of the Proceedings.
SUMMARIES OF THE THEME DISCUSSION SESSIONS
The moderators together with designated secretaries will provide a summary of the
discussions during the theme sessions. These summaries will reflect thoughts, ideas and
experiences exchanged as provided during the formal discussions.
CLOSING REMARKS
The full text of the closing remarks as presented by the Conference co-chairs will be made
available.
CONFERENCE EVALUATION
The results of the evaluation, as deducted from the received evaluation forms, will be
included.
LIST OF PARTICIPANTS
A list of participants actually attending the Conference will be included.
ACKNOWLEDGEMENTS
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 619
MEMBERS OF THE EXECUTIVE PLANNING COMMiTTEE
Mrs. Jacqueline Alois! de Larderel PHONE: (331)40588850
United Nations Environment Programme FAX: (331) 40 58 88 74
Director, Industry and Environment Programme Activity Centre
Tour Mirabeau
39-43 Quai Andre Citroen
75739 Paris CEDEX 15, France
Contact: Ms. Clare Delbridge PHONE: (331) 40 58 88 69
FAX: (331)40588874
Mr. Laurens Jan Brinkhorst
Director-General
Commission of the European Communities
Directorate-General Environment, Nuclear Safety
and Civil Protection
34 Rue Belliard
1049 Brussels, Belgium
Contact: Dr. Ludwig Kramer PHONE: (322) 299 2265
FAX: (322)2991070
Dr. Kalman Gyorgyi PHONE: (361) 118 1452
Chief Public Prosecutor of the Republic of Hungary FAX: (361) 132 3969
Chief Public Prosecutors Office
P.O. Box 438
1372 Budapest, Hungary
Contact: Dr. Istvan Szabo PHONE: (361)312173
Dr. Peter Hardi PHONE: (361) 168 6284
Executive Director FAX: (361)1687851
The Regional Environmental Center
for Central and Eastern Europe
Miklos ter 1
1035 Budapest, Hungary
Contact: Dr. Branko Bosnjakovic PHONE: (361)1686284
Mr. Steven Wassersug PHONE: (361)1686284
FAX: (361)1687851
Dr. Jan Mikolas
Chairman PHONE: (422) 252539
Federal Committee for the Environment FAX: (422) 25 7211
Slezka 9
120 29 Prague
Czech and Slovak Federated Republic
Contact: Mr. Veclev Dobes PHONE: (422) 25 2539
FAX: (422) 257211
Dr. Karoly Misley PHONE: (361) 201 1582
Permanent State Secretary FAX: (361) 201 2846
Ministry of Environment and Regional Policy
P.O. Box 351
1394 Budapest, Hungary
Contact: Dr. Nandor Zoltai PHONE: (361)2014133
FAX: (361)2012846
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620 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Dr. Maciej Nowicki
Minister
Ministry of Environmental Protection,
Natural Resources and Forestry
Wawelska 52/54
00-922 Warsaw, Poland
Contact: Prof. Jerzy Sommer PHONE: (4871)444747
FAX: (4871)444747
Mr. Marek Nowakowski PHONE: (4822) 25 11 33
FAX: (4822) 25 39 72
Mr. Herbert H. Tate Jr.
Assistant Administrator for Enforcement
Office of Enforcement
United States Environmental Protection Agency
401 M Street, SW LE-133
Washington, DC 20460, USA
Contact: Ms. Cheryl Wasserman PHONE: (1202) 260 4486
FAX: (1202) 260 7553
Ms. Ann DeLong PHONE: (1202) 260 8870
FAX: (1202) 260 7553
Mr. Pieter Verkerk PHONE: (3170) 31 74 620
Inspector General, Ministry of Housing, Physical Planning FAX: (3170) 31 74 624
and Environment
P.O. Box 450
2260 MB Leidschendam, the Netherlands
Contact: Mr. Jo Gerardu PHONE: (3170)3172621
FAX: (3170)3172645
Mr. Huub Kesselaar PHONE: (3170) 31 72 624
FAX: (3170) 31 72 645
CONFERENCE STAFF
Ms. Cheryl Wasserman PHONE: (1202) 260 4486
Office of Enforcement FAX: (1202) 260 7553
United States Environmental Protection Agency
401 M Street, SW LE-133
Washington, DC 20460, USA
Mr. Jo Gerardu PHONE: (3170)3172621
Ministry of Housing, Physical Planning and Environment FAX: (3170) 31 72 645
Inspectorate for the Environment
P.O. Box 450
2260 MB Leidschendam, the Netherlands
Logistics Contractor
Mr. Jeroen Bartels PHONE: (3179)522777
ERLNederland FAX: (3179)512127
P.O. Box 710
2700 AS Zoetermeer, the Netherlands
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INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT 621
ACKNOWLEDGEMENTS
The second International Conference on Environmental Enforcement held September 22-
25, 1992 in Budapest, Hungary was made possible by the personal and financial contributions of
many organizations and individuals. Funding of the Conference and participants was provided by
the United States Environmental Protection Agency (EPA), the Netherlands' Ministry of Housing,
Physical Planning and Environment (VROM), and the European Economic Community (EEC),
supplemented by funds from the Netherlands' International Affairs Office, the U.S. Agency
International Development (AID), and the German Marshall Fund.
An Executive Planning Committee whose membership is listed in these Proceedings, was
created to provide leadership and direction in the design of the program, selection of the
speakers and panelists, and identification of individuals from a range of nations who would be in
the best positions to share practical experience in environmental enforcement and to improve or
develop domestic programs. In keeping with its focus on Central and Eastern Europe, the
Executive Planning Committee included the representatives of the Environment Ministries of
Poland, Hungary, and the Czech and Slovak Federal Republic as well as Hungary's Public
Prosecutor and the Regional Environmental Center in Budapest. The United Nations Environment
Programme (IE-PAC) was also a key member of the Executive Planning Committee, in an effort
to further expand the exchanges that began with the first International Enforcement Workshop,
sponsored by the Netherlands Ministry of VROM and U.S. EPA, in May 1990 in Utrecht, the
Netherlands.
Members and staff of the Executive Planning Committee, listed within these Proceedings,
spent many hours discussing and reviewing staff proposals for the Conference structure and
content and in identifying experts from government at all levels, NGO's and industry that would
ultimately determine the success of the Conference.
Given the Conference location in Budapest, we wish to particularly acknowledge the
hospitality and special efforts of Dr. Karoly Misley and Dr. Nandor Zoltai to make this exchange
not only productive but enjoyable.
Primary staff and coordinators of the Conference were Mr. Jo Gerardu of VROM and Ms.
Cheryl Wasserman of USEPA who were responsible for drafting the Conference program and
materials. The Conference logistics, preparation of the Proceedings, and handling of Conference
communications was directed by Mr. Jeroen Bartels from Environmental Resources Limited
Nederiand.
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