NECET
International Network for Environmental Compliance and Enforcement
8th International Conference
on Environmental
Compliance and Enforcement
5-11 April 2008
Cape Town, South Africa
Proceedings
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8th International Conference on
Environmental
Compliance and Enforcement
5-11 April 2008
Cape Town, South Africa
Conference Sponsors:
United States Environmental Protection Agency
Netherlands Ministry of Housing, Spatial Planning and the Environment
South Africa Department of Environmental Affairs and Tourism
United Nations Environment Programme
European Commission
The British High Commission
Environment Agency of England and Wales
Environment Canada
International Fund for Animal Welfare
Finland's Ministry of the Environment
Environmental Compliance and Enforcement Network for Accession
Asian Environmental Compliance and Enforcement Network
Danish Agency for International Development
Organisation for Economic Co-operation and Development
United States Embassy, South Africa
Royal Netherlands Embassy, South Africa
City of Cape Town
South Africa National Parks
Table Mountain National Park
Kirstenbosch National Botanical Garden
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Project Management and Conference Support
567
PROJECT MANAGEMENT AND CONFERENCE SUPPORT
Durwood Zaelke
Director
INECE Secretariat
2300 Wisconsin Avenue N.W., Suite 300B
Washington, DC
phone: +1.202.338,1300
fax:+1.202.338.1810
email: zaelke@inece.org
Davis Jones
U.S. Environmental Protection
Agency
jones.da vis
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8™ INTERNATIONAL CONFERENCE ON ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT
CONFERENCE PROCEEDINGS
5-11 April 2008
Cape Town, South Africa
Editors:
Mr. Jo Gerardu, INECE Secretariat
Mr. Davis Jones, U.S. Environmental Protection Agency
Ms. Meredith Reeves, Earthpace LLC
Mr. Tim Whitehouse, INECE Secretariat
Mr. Durwood Zaelke, INECE Secretariat
Executive Planning Committee:
Justice Antonio Herman Benjamin (Co-
chair), High Court of Brazil
Ms. Angela Bularga, Regulatory
Environment Programme
Implementation Network
Dr. Bill Clark, Nature and Natural Parks
Protection Authority, Israel
Mr. Paul Cuillerier, Environment Canada
Mr. Mihail Dimovski, Environmental
Compliance and Enforcement Network
for Accession
Dr. Hilda Parkas, European Union Network
for the Implementation and Enforcement
of Environmental Law
Dr. Brendan Gillespie, Organisation
for Economic Co-operation and
Development
Dr. Marco Gonzalez Pastora, Central
American Commission for Environment
and Development
Mr. Markku Hietamaki, Ministry of
Environment, Finland
Mr. Donald Kaniaru, Kenya
Dr. Bakary Kante, United Nations
Environment Programme
Dr. Paul Leinster, Environment Agency of
England and Wales
Mrs. Catherine McCabe (Co-chair), United
States Environmental Protection Agency
Dr. Ladislav Miko, European Commission
Mr. Akio Morishima, Institute for Global
Environmental Strategies (IGES), Japan
Mr. Antonio Oposa, Jr., The Phillippines
Secretary Romina Picolotti, Ministry of
Environment, Argentina
Justice Adel Omar Sherif, Supreme
Constitutional Court of Egypt
Mr. Kunihiko Shimada, Ministry of
Environment, Japan
Dr. Supat Wangwongwatana, Asian
Environmental Compliance and
Enforcement Network
Mr. Gerard Wolters (Co-chair), Netherlands
Ministry of Housing, Spatial Planning
and the Environment
Mr. Durwood Zaelke (Director), INECE
Secretariat
CAMERON
PT~I MAY
INTER JVA TI O NAL I, A W <
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Copyright © Cameron May and INECE Secretariat
Published 2008 by Cameron May Ltd
7 Cornwall Crescent, Netting Hill, London Wll 1PH
Tel: +44 (0)20 7792 0075 Fax: +44 (0)20 7792 1055
email: info@cameronmay.com
Website: http://www.cameronmay.com
These proceedings include papers prepared by speakers, topic experts, conference participants,
and other interested parties for the Eighth International Conference on Environmental
Compliance and Enforcement, held 5-11 April 2008, in Cape Town, South Africa.
Use of these materials is strongly encouraged for training and further dissemination.
Reproduction of this document in whole or in part and in any form for educational or
non-profit purposes may be made without special permission from the INECE Secretariat,
provided acknowledgement of the source is included. The INECE Secretariat would
appreciate receiving copies of any materials that use this publication as a source.
Opinions expressed are those of the authors and do not represent the views of their governments
or organizations, the INECE Secretariat or Cameron May.
ISBN 10:1 905017 86 3
ISBN 13: 978 1 905017 86 7
Cover design and graphics: Earthpace LLC
Layout and design: Cameron May
Conference Sponsors:
United States Environmental Protection Agency
Netherlands Ministry of Housing, Spatial Planning and the Environment
United Nations Environment Programme
European Commission
The British High Commission
Environment Agency of England and Wales
Environment Canada
International Fund for Animal Welfare
South Africa Department of Environmental Affairs and Tourism
Finland's Ministry of the Environment
Environmental Compliance and Enforcement Network for Accession
Asian Environmental Compliance and Enforcement Network
Danish Agency for International Development
Organisation for Economic Co-operation and Development
United States Embassy, South Africa
Royal Netherlands Embassy, South Africa
City of Cape Town
South Africa National Parks
Table Mountain National Park
Kirstenbosch National Botanical Garden
Peninsula Beverage
Fleur du Cap Wines
Glen Carlou Wine Estate
Muratie Wine Estate
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Preface
PREFACE
These proceedings give an overview of the breadth of issues discussed at the
International Network for Environmental Compliance and Enforcement's Eighth
Conference held in Cape Town, South Africa, from 5-11 April 2008. The theme of
this conference was From Concepts to Action: Successful Strategies for Environmental
Compliance and Enforcement.
This volume contains the Conference Statement, the main speeches and reports from
the panels and workshops, a summary of the main outcomes of the conference,
the papers submitted, and a summary of the participant evaluations of the
conference. This body of work helps to underscore the importance of the rule of
law, good governance and sustainable development, as well as the urgent need for
humankind to give the highest priority to protecting environmental resources and
pursuing sustainable development.
The Eighth International Conference brought together people from national, state,
and local government agencies, international and non-governmental organizations,
and the private sector. Participants came from all parts of the world, from both
developing and developed countries. The conference served to affirm the benefits
of environmental compliance and enforcement, to highlight the progress made by
the network, and to press for further actions to improve environmental compliance
and enforcement everywhere.
On behalf of the Executive Planning Committee and the Secretariat staff, we look
forward to your continued and productive use of INECE's conference materials.
For additional information about the conference, including the agenda, the
video of Professor Wangari Maathai's remarks, conference presentations, and
background papers, please visit the conference home page at http://www.INECE.
org/conference/8/.
Comments and suggestions may be sent to the INECE Secretariat by email at
inece@inece.org, by fax at 1-202-338-1810, or by mail to 2300 Wisconsin Avenue
N.W., Suite 300B, Washington, DC 20007.
The Editors
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Table of Contents
CONTENTS
Preface iii
1. REPORTS FROM THE CONFERENCE 1
CONFERENCE OUTCOMES 3
Cape Town Statement 3
Recommendations for INECE 7
Summary of the INECE Regional Conference for Sub-Saharan Africa 9
SPEECHES AND REMARKS 11
Welcoming Remarks: Hon. Marthinus van Schalkwyk, Minister of 11
Environmental Affairs and Tourism, South Africa
Opening Remarks: Gerard Wolters, Inspector General for International 15
Enforcement Cooperation, Netherlands Ministry of Housing, Spatial
Planning and the Environment (VROM)
Concluding Remarks: Wangari Maathai, Nobel Peace Prize Laureate, 21
on Good Governance and Sustainable Development
SUMMARY OF PANELS 23
Panel 1: Creating Value through Compliance and Enforcement 23
Panel 2: Compliance Mechanisms for Climate Protection after 2012 25
Panel 3: Regional Enforcement Cooperation for the Protection of 27
Biodiversity
Panel 4: Capacity Building within a Development Framework 29
Panel 5: Global Enforcement Cooperation on Chemicals and other 31
Hazardous Substances
Panel 6: Good Governance and the Rule of Law 33
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vi Eighth International Conference on Environmental Compliance and Enforcement 2008
SUMMARY OF WORKSHOPS 35
Track A: Strategic Management of Environmental Compliance and 35
Enforcement Programs
Track B: Detecting Noncompliance 47
Track C: Transboundary Compliance and Enforcement 55
Track D: Biodiversity, Ecosystems and Enforcement 63
Track E: Climate Change and Compliance 71
Track F: Creating a Culture of Compliance 81
BUFFET OF IDEAS AND FIELD VISITS 91
CONFERENCE EVALUATIONS 97
2. PAPERS SUBMITTED FOR CONFERENCE PROCEEDINGS 107
Track A: Strategic Management of Environmental Compliance and 109
Enforcement Programs
Adelegan, Dr. Joseph, Environmental Compliance, Policy Reform & 109
Industrial Pollution in Sub-Saharan Africa: Lessons from Nigeria
Biezeveld, Dr. Gustaaf, Feedback to Law Making & Permitting 119
Couturier, Daniel, Prioritized Staff Skills for an Environmental 147
Enforcement Training Program
Craigie, Frances & Fourie, Melissa, Operation Ferro: Taking on the 155
Giants
Farmer, Andrew M., Better Regulation in the Context of Environmental 169
Enforcement
Jones, Davis, The Relationship between Trade & Effective Enforcement 177
Kok, Fred, Chain Enforcement Complementing the Existing Systems 185
Lugwisha, Ruth H.J., Leentvaar, Jan, Baya, Boneventura T. & Douven, 197
Wim J.A.M., Challenges on Compliance & Enforcement of the
Wastewater Management Legislation in Tanzania
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Table of Contents
Marshall, Melissa P. & Smith, Walker B., Managing Parallel Civil & 207
Criminal Environmental Cases
Nwachukwu, Michael A., Environmental Sanitation Enforcement and 213
Compliance Best Management Strategies for Nigeria
Nijssen, Charles, Mumladze, Katevan, Ruessink, Henk & Huizinga, 219
Kees, Training Programme between Georgia & The Netherlands on
Waste Management & Enforcement
Pink, Grant, Building Regulatory Capacity in Environmental Agencies: 225
Through Tailored Training
Telesetsky, Anastasia, Payments for Environmental Services: A Wise 235
Use of the Market Economy or Misdirected Commodification?
Van der Schraaf, Angelique A.A., Capacity Building in the Dutch 243
Inspectorate: Bridging the Gap
Woodward, Joe, More Cost Effective Environmental Regulation with 253
Less Red Tape
Track B: Detecting Noncompliance 263
Duncan, Linda & Nowlan, Linda, Off the Rails: The Environmental 263
Enforcement Challenge of Canada's Railway Industry
Hayes, Ladson, Porteous, Graham & Zhou, Tao, Technological 273
Developments for Environmental Monitoring
Klein Lankhorst, Hester, Intervention Strategy 279
Liebregts, Tony M. & Kramers, Rob, Doing the Right Things: A Step- 283
by-Step Guidance for Planning of Environmental Inspections
Lubieniecki Jr., Gene, Sample Chain of Custody 289
Lubieniecki Jr., Gene, Electronic Evidence Management 297
Lubieniecki Jr., Gene, Case Studies: Use of Remote Sensing & Other 301
Investigatory Techniques
Rosenberg, Peter, Coyne, Patrick & Shepherd, Matthew, The U.S. 309
Environmental Protection Agency's 'Report a Violation' Website
Smith, R. Justin & Armstrong, Andrea, Environmental Citizen Suits & 317
Government Enforcement
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viii Eighth International Conference on Environmental Compliance and Enforcement 2008
Wijbenga, Bert, Ruessink, Henk, de Wit, Arie & Kapitein, Pirn, 323
Environmental Policing in the 21st Century — Background,
Organisation & Experience in The Netherlands
Track C: Transboundary Compliance and Enforcement 335
Bearden, Janet, Combating Transboundary Environmental Crime 335
with the Help of Customs' Single Window: Experience of the U.S.
Environmental Protection Agency as the USG Develops a Single
Window for Trade
Dols, Niekol, Huijbregts, Carl & Loonstra, Anno, Verification of Waste 343
Destination: A Question of Priority?
Eze, Chukwuka N., The Probo Koala Incident in Abijan, Cote d'lvoire: 351
A Critique of the Basel Convention Compliance Mechanism
Florano, Ebinezer R., Prieto, Prejean A. & Dig, Eugenic Antonio E. 363
Rapid Appraisal of the Philippine Compliance with & Implementation
of Its Various Multilateral Environmental Agreements' Obligations
Goran, Belamaric, Gorana, Jelic-Mrcelic, Merica, Sliskovic & Ranka, 375
Petrinovic, Ballast Water Management in Croatia
Isin, Amelie, Wick, Anne, & Kushner, Adam M., Environmental 383
Protection through Border Protection
Isarin, Nancy, Inspection & Enforcement of Hazardous Waste & 391
Goods: Fostering International Cross-Border Collaboration by the
Inauguration of a Seaport Network
Kreisler, Eva & Heiss, Robert, Managing Expired Pesticides as 397
Hazardous Waste across Borders
Kopsick, Deborah & Bearden, Janet, Radio Frequency Identification 407
Tracking of International Shipments of Hazardous & Radioactive
Materials
Kowalski, Esward, Pakootas, et al., v. Teck Cominco: A Case Study in 415
Transboundary Pollution Enforcement
Whitehouse, Tim & Rain, Kelly, A New Dynamic for the Hazardous 425
Waste Trade in North America
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Table of Contents
Track D: Biodiversity, Ecosystems and Enforcement 435
Bartel, Dr. Robyn, The Formal & Informal Orders in Land Clearance 435
Regulation in Australia
Du Toit, Jacques & Craigie, Frances, Enforcement of CITES at O.R. 445
Tambo International Airport, South Africa
Moshibudi, Rampedi, Sustainable Forests Management; Are 455
Delegations Appropriate?
Rochow, K. W. James, Stuck in Stages: the Evolving Role of 463
Enforcement in Liberia Forest Sector Reform
Yousuf, Abdullah & Uddin, Nasir, State of Bio-Diversity & 471
Conservation Compliance in Bangladesh
Track F: Creating a Culture of Compliance 475
Brown, David, Drinking in the Last Chance Saloon? NGO Roles in 475
Verifying Legality in the Tropical Timber Trade
Bosnian, C. & Boyd, L., Compliance & Enforcement in a Co-operative 485
Governance Structure — Challenges & Some Solutions for the South
African Situation
Postiglione, Amedeo, Reflections on the Role of Judges in Enforcing 501
Environmental Law
Mtisis, Shamiso, Promoting Water Quality Laws Enforcement & 505
Implementation in Zimbabwe's Urban Areas
Sperling, Lawrence, Rule of Law and the Environment in a Globalized 515
World
Thomas, Deborah, Limanon, Watcharee, Simachaya, Wijarn & 527
Nepomuceno, Dolora, Environmental Compliance Assistance Centers
Deliver Targeted Help to the Regulated Community
3. APPENDIX 537
List of Participants 539
List of Participants by Region 551
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x Eighth International Conference on Environmental Compliance and Enforcement 2008
CLOSING MATERIALS 565
Acknowledgments 565
Project Management and Conference Support 567
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1. REPORTS FROM THE CONFERENCE
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Cape Town Statement
CONFERENCE OUTCOMES
CAPE TOWN STATEMENT
Co-Chair and Executive Planning Committee Final Conference Statement
8 International Conference for Environmental Compliance and Enforcement
Cape Town, South Africa
5-11 April 2008
INTRODUCTION
1. At this 8th International Conference of the International Network for
Environmental Compliance and Enforcement (INECE), 177 participants
from more than 60 developing and developed countries gathered in Cape
Town, South Africa, to affirm the benefits of environmental compliance and
enforcement, to highlight progress made by the network, and to press for
further actions to improve compliance and enforcement around the world.
2. INECE is the only global network that develops, promotes, and implements
practical activities to strengthen environmental compliance and enforcement
at all levels of governance - local, national, regional, and international. The
network links environmental compliance and enforcement efforts of more
than 4,000 practitioners - inspectors, prosecutors, regulators, parliamentarians,
judges, and representatives from international and non-governmental
organizations and the private sector - through capacity building, awareness
raising, and enforcement cooperation.
FROM CONCEPTS TO ACTION: SUCCESSFUL STRATEGIES FOR
ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3. The INECE Co-Chairs and Executive Planning Committee affirm their
commitment and call on inspectors, regulators, legislators, judges, networks,
negotiators, the media, businesses, prosecutors, scientists, engineers, financial
experts, international organizations, and non-governmental organizations
to realize the following actions that will be integrated into a post-conference
program of action:
a. Communicate that environmental compliance and enforcement programs
create value across all areas of society: public value through strengthened
rule of law, protected ecosystem goods and services, and improved human
health; and private value through increased investor confidence, reduced
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Eighth International Conference on Environmental Compliance and Enforcement 2008
business risks, stimulated innovation, increased competitiveness, and new
jobs and markets.
b. Encourage the development and growth of environmental compliance and
enforcement networks in the Sub-Saharan region of Africa.
c. Promote transnational and intergovernmental cooperation for the
management and protection of newly established transboundary
conservation parks in Sub-Saharan Africa.
d. Enhance judicial sector competency and build civil society and public
capacity to adjudicate environmental disputes and enforce local and
national environmental laws in tribunals, courts, and arbitration panels,
particularly those in Sub-Saharan Africa.
e.
Build an informal community of practitioners that strategically manages
environmental compliance and enforcement programs.
/. Encourage the use of performance measurement, including indicators of
effective environmental compliance and enforcement.
g. Enhance national capacity for detecting violations, emphasizing practical
tools, including technological developments,to strengthen compliance and
enforcement programs.
h. Improve national compliance with, and enforcement of, laws protecting
biodiversity and habitat, and develop further tools to enhance international
compliance with multilateral environmental agreements.
i. Support the further development of networks, such as the Network for
Environmental Compliance Training Professionals and the Seaport Network
to build capacity and curtail the illegal movement of goods, including
hazardous waste, chemicals, ozone depleting substances, and flora and
fauna.
;'. Develop recommendations for compliance and enforcement strategies and
mechanisms for addressing climate change within existing and future
climate regimes.
k. Promote compliance with measures that restrict emissions that contribute to
climate change, including greenhouse gases, ozone depleting substances,
and black carbon (or soot), and that protect carbon sinks and reservoirs,
including forests and soils, with emphasis on measures that maximize co-
benefits, such as improvements in public health and ecosystem services.
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Cape Town Statement
I. Apply environmental compliance and enforcement tools to protect
ecosystems and their services as a basis for climate change adaptation.
CONCLUSION
4. Environmental protection is nothing less than protecting the very sources of
life - land, air, water, and ecosystems. These also form the basis of all economic
activities. As such, these environmental resources must be given the highest
priority in the global agenda of humankind. The laws that conserve, protect,
and restore these elements of life must be implemented and their compliance
assured. The rule of law is the basis for good governance and sustainable
development.
ACKNOWLEDGMENTS
5. The INECE Co-Chairs and the Executive Planning Committee gratefully
acknowledge the assistance and support of the South African Department of
Environmental Affairs and Tourism, South African National Parks, and the
City of Cape Town. We deeply appreciate the generous hospitality provided by
our South African hosts and the message of inspiration and resolve provided
by Nobel Peace Prize Laureate Wangari Maathai.
6. We also thank our sponsors and partner organizations, including the U.S.
Environmental Protection Agency; the Netherlands Ministry of Housing, Spatial
Planning and the Environment; the United Nations Environment Programme;
the Environment Agency of England and Wales; Environment Canada;
Finland's Ministry of Foreign Affairs; the International Fund for Animal
Welfare; the British High Commission; the Danish International Development
Agency; the U.S. Department of State; the European Commission; the World
Bank; the Organisation for Economic Co-operation and Development; the
Natural Resources Defense Council - China; and the Asian Environmental
Compliance and Enforcement Network, as well as the embassies of the United
States and The Netherlands.
SUPPLEMENTAL ANNEXES
7. Leaders of the various substantive tracks at the Cape Town conference are
invited to work with the INECE Secretariat to prepare supplemental annexes
corresponding to the strategies described above.
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Recommendations for INECE
RECOMMENDATIONS FOR INECE
FROM THE 8™ INTERNATIONAL CONFERENCE ON ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT, CAPE TOWN, SOUTH AFRICA
During the Conference's panels, interactive workshops, and discussions,
participants urged INECE to support projects that demonstrate how strengthening
compliance programs can create value; both public value, in the form of better
protection of public health and ecosystem services, and private value, in the form
of improved competitiveness of firms and accelerated technological innovation.
Underlying Conference discussions was a renewed urgency about the need to
raise awareness of the importance of environmental compliance and enforcement;
strengthen capacity to implement and enforce environmental requirements across
the regulatory cycle; and to develop and support networks for enforcement
cooperation.
Conference participants underscored the need for INECE to continue to support
the development and growth of regional compliance and enforcement networks.
Such networks are critical for leveraging best practices and expertise, building
capacity, and responding to transboundary challenges. The 8th Conference helped
advance these efforts with the formation of the Sub-Saharan African Network for
Environmental Compliance and Enforcement. This informal regional network was
founded at the Conference by environmental compliance and enforcement officials
and experts from Botswana, Cameroon, Ghana, Kenya, Nigeria, South Africa,
Tanzania, and Uganda. The objective of the network is to enhance environmental
compliance and enforcement in the countries of Sub-Saharan Africa by sharing
information and experience.
Conference participants recommended that INECE promote successful
environmental compliance and enforcement practices relevant to climate
mitigation and adaptation and to build capacity for assuring compliance with
national environmental requirements that have climate co-benefits - such as
protecting the world's forests, limiting illegal trade in ozone depleting substances,
and controlling emissions of carbon dioxide and black carbon particulates.
Participants encouraged INECE to facilitate expert groups to help ensure the
integrity of existing and emerging greenhouse gas market platforms and to
evaluate specific language on compliance mechanisms that could be considered in
the international climate treaty negotiation process.
Participants provided valuable input into ongoing thematic projects.
Recommendations addressed issues associated with the development of a Seaport
Environmental Security Network; INECE's training program for Customs and
Environmental Officials; its work on supporting country pilot projects to design
and implement environmental compliance and enforcement indicators; and on the
content of the Principals of Environmental Compliance and Enforcement Handbook
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8 Eighth International Conference on Environmental Compliance and Enforcement 2008
and Statement. Participants also recommended that INECE continue to develop its
new International Network for Environmental Compliance Training Professionals,
which will enable information sharing and exchange of training best practices and
materials.
Participants contributed important comments regarding the need for INECE
to help build support for the enforcement of laws to protect biodiversity and
ecosystems. Because a number of organizations are already working in the areas
of forest protection, illegal logging, and combating the smuggling of flora and
fauna, participants suggested that INECE could work in partnership with these
organizations to highlight the need for countries around the world to redouble
their efforts to combat organized crime's growing influence in habitat and species
destruction.
To support the implementation of these and other recommendations that can be
found throughout these Proceedings, participants recommended that INECE
refine and expand the capabilities of its web site to better support communication
and collaboration among participants, facilitate regional and topical networking,
provide more direct access to training materials and other resources, and introduce
films and other new media content to users.
The Conference concluded with an open session for participants to express any
ideas related to the Conference or to the activities of INECE. Participants raised
a number of important issues and ideas, including suggestions on improving
communications with other environmental organizations, expanding efforts
to include students and youth groups in INECE activities, promoting greater
involvement of the private sector, and increasing the visibility of INECE activities.
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Summary of the INECE Regional Conference for Sub-Saharan Africa
SUMMARY OF THE INECE REGIONAL CONFERENCE FOR
SUB-SAHARAN AFRICA
On 5 April 2008, INECE hosted a Regional Conference for compliance professionals
from the sub-Saharan Africa region, in cooperation with South Africa's Department
of Environmental Affairs and Tourism. Over 85 environmental compliance and
enforcement officials and experts from Botswana, Cameroon, Ghana, Kenya,
Nigeria, South Africa, Tanzania, and Uganda, along with invited international
experts, engaged in strategic discussions on advancing the implementation of
environmental compliance and enforcement in the region.
The Regional Conference focused on the issue of pollution control and waste
management. During session one, Melissa Fourie and Sabelo Malaza of South
Africa's Department of Environmental Affairs and Tourism (DEAT) discussed
proactive compliance monitoring and enforcement of pollution and waste
legislation and permits. In session two, Stephen Kisamo, Lusaka Agreement
Task Force; Jacques du Toit, Gauteng Department of Agriculture Conservation
and Environment; and Elizabeth Mrema of the United Nations Environment
Programme shared their experiences with designing and implementing strategies
to facilitate cross-border wildlife cooperation. Session three panelists — Robert
Heiss, U.S. Environmental Protection Agency; Nancy Isarin, Ambiendura; and
Jenny Van Houten, the Netherlands Ministry of Housing, Spatial Planning and the
Environment - explored ways that enforcement cooperation can help limit illegal
transnational movements of hazardous waste through ports.
Participants at the Regional Conference considered the types of tools necessary
for strengthening environmental enforcement capacity in the region, including
the benefits of a regional enforcement network. Guest speakers, including Angela
Bularga, Organisation for Economic Co-operation and Development; Elisea
Gozun, Asian Environmental Compliance and Enforcement Network; Nawzat
Ali, Legal Adviser to the Minister of Environment, Jordan; and Mihail Dimovski,
Environmental Compliance and Enforcement Network for Accession, shared their
experience in identifying regional priorities across environmental compliance and
enforcement programs.
In the final session of the Regional Conference, participants broke into three groups
to discuss accomplishments and common priorities among enforcement programs
in Sub-Saharan Africa and to explore opportunities for collaboration. Areas of
commonality identified by participants included illegal trade in animals and animal
products (e.g., abalone, elephant tusks, etc.); waste management; industrial pollution
(air, water, and land); inadequate capacity to manage porous borders; inadequate
inter-agency collaboration among police, customs, natural resources departments,
judiciary, and other enforcement officials; protecting water bodies; and managing
the impacts of the petroleum and mining sectors on the environment.
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Eighth International Conference on Environmental Compliance and Enforcement 2008
Participants strongly supported forming an informal regional network to share
information and ideas. They identified the positive impacts of such a network to
include: facilitating enforcement cooperation; supporting legislative and policy
development; enabling information exchanges, including capacity building
materials and progress reports on compliance and enforcement; motivating
the adoption of good practices; and harmonizing environmental standards in
the region. Participants emphasized the need to contact organizations already
doing important environmental work in the region in order to explore potential
partnering opportunities and the possibility of leveraging resources. Examples of
such organizations include the Southern African Development Community, whose
work on environment has included coordination of environmental norms; the
Basel Secretariat Regional Centres; the Lusaka Agreement Task Force; the UNEP
Regional Seas Program; and the Southern African Customs Union.
Following the Regional Conference, the participants reconvened on 10 April 2008
and agreed to establish the Sub-Saharan African Network for Environmental
Compliance and Enforcement.
Participants agreed that the objective of this network would be to enhance
environmental compliance and enforcement in Sub-Saharan Africa by sharing
information and experience. Participants agreed that the network should be
divided into four subregions, each of which should have a subregional focal point:
Subregion
Eastern Africa
Southern Africa
Central Africa
West Africa
Subregional Focal Point
Kenya
South Africa
Cameroon
Ghana
The countries that have designated national focal points include: Kenya (Mr.
Benjamin Langwen, NEMA), Uganda (Dr. Henry Aryamanya Mugisha, NEMA),
Tanzania (Eng. Bonaventure Baya, NEMC), South Africa (Sabelo Malaza, Director:
Compliance Monitoring, DEAT), Botswana (Desire Rubadiri), Ghana (Mr. Jonathan
Allotey, EPA), Nigeria (Dr. Ngeri Benebo), and Cameroon (Horline Njike, Last
Great Ape).
Initial activities of the network will include identifying key documents to share
with other members (training materials, policies, legislation, information on
technology, inspection report formats and other templates, case studies); contacting
focal points in countries not represented at Conference and inviting them to join
the network; and, facilitating information exchange via the INECE web site. To
register to participate in the network, please send your name, organization, contact
information, and email address to inece@inece.org.
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Hon. Marthinus van Schalkwyk 11
SPEECHES AND REMARKS
WELCOMING REMARKS
HON. MARTHINUS VAN SCHALKWYK1
1 Minister of Environmental Affairs and Tourism, South Africa
INTRODUCTION
I am honoured to welcome you to this 8th International Conference of the
International Network for Environmental Compliance and Enforcement, and
to open this conference. On behalf of the South African government and our
department, the Department of Environmental Affairs and Tourism, it is also my
pleasure to welcome you to our beautiful country.
Ladies and gentlemen, in 2008 the regulation of our environment has to be a matter
of international importance and international cooperation. For some time we have
lived in a world where our impacts on the environment are so significant that they
are felt across international borders. Climate change is an obvious example of the
influence that we can have on the health and well-being of people on the other
side of the world, without their consent or acceptance of the risks imposed.
GLOBAL PERSPECTIVE
Today we live and operate in a global market where every imaginable product is
traded internationally. In addition, major new and rapidly growing markets have
dramatically increased the demand for natural resource-based commodities.
Inevitably, some of these products traded across the globe include environmental
contraband - both threatened and endangered species and products as well as
hazardous materials and waste. And the illegal trade in environmental contraband,
which is more often than not committed by highly organised crime networks,
is extremely profitable. We know that crime syndicates make as much as US$30
billion from the illegal dumping of hazardous waste, the smuggling of hazardous
materials, and the abuse of scarce natural resources.
With the explosion of the internet, international trade in environmental
contraband has rapidly become very easy for traders, and has created a daunting
new challenge for compliance and enforcement. A recent study of the International
Fund for Animal Welfare (IFAW), in a one-week survey of the online trading
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12 Eighth International Conference on Environmental Compliance and Enforcement 2008
website eBay, found over 9,000 wild animal products and specimens and live wild
animals for sale, predominantly from species protected by law.
Strong international environmental agreements like the Convention on
International Trade in Endangered Species of Wild Fauna and Flora (CITES),
coupled with adequate domestic legislation to implement CITES, constitute only
the first step. Just like the illegal trade in drugs and weapons, this kind of criminal
activity cannot be countered without comprehensive and committed international
cooperation and information-sharing. Our colleagues from Interpol play a key role
in facilitating this exchange.
Ladies and gentlemen, as regulation of the transport and disposal of hazardous
waste and materials are tightened all over the world; the illegal trade in such
materials has also taken off, often with tragic consequences. The fatal September
2006 incident in Abidjan in Ivory Coast where toxic waste was dumped by a local
contractor working for an international commodities company is just one example
of what can go wrong when local compliance and enforcement is not strong
enough to stand up to the pressure of international criminal activity.
However, the problem does not only lie with countries where the waste ends
up. Indications are that far stricter control is required of the potential exporters
of waste. A 2005 report by the European Network for the Implementation and
Enforcement of Environmental Law (IMPEL) based on a joint enforcement
operation in 17 European seaports found that 48% of waste shipments were illegal
under EU regulations.
I am therefore of the view that far more attention needs to be given to compliance
and enforcement of the Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal. This is particularly crucial
in the context of the 20 to 50 million metric tonnes of electronic waste generated
worldwide every year.
International cooperation on environmental compliance and enforcement can also
assist in raising the bar in countries where environmental crime does not receive
the attention it deserves.
It is for these reasons that I am inspired to see that the International Network for
Environmental Compliance and Enforcement is a strong and vibrant network of
compliance and enforcement specialists from every corner of the world. If this
means that all national governments represented here today are prioritising the
implementation of environmental compliance and enforcement programmes,
both domestically and in terms of their international obligations, we have surely
come a long way towards effective international cooperation on environmental
compliance and enforcement.
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Hon. Marthinus van Schalkwyk 13
THE SOUTH AFRICAN PATH
Ladies and gentlemen, in 1998 South Africa passed its framework environmental
legislation, the National Environmental Management Act. Although this Act
entrenched important principles for sustainable development, environmental
management, and protection, it did not provide for comprehensive powers to
enforce this legislation. Whilst enforcement of environmental legislation was
carried out, particularly in the context of our wildlife and marine resources, there
was no coordinated, central network of Inspectors with similar training and
powers. Therefore in May 2005, we brought into effect legislation that established
the Environmental Management Inspectorate, commonly known here in South
Africa as the "Green Scorpions."
Our Inspectors have worked hard to change the common perception in South
Africa that government lacks the will to enforce our environmental legislation.
Today, there are 866 Inspectors in 15 institutions across our country.
GREEN SCORPIONS' ACHIEVEMENTS
I have just been given results from our second annual National Environmental
Enforcement Report. The report indicates how dramatically the reporting of illegal
activity, the enforcement of environmental legislation, and actual enforcement
results have increased over the past 2 years. Let me share with you a couple of
highlights from this report.
• Inspectors were investigating more than 1,756 criminal dockets or case files in
2007-8;
• Reported arrests by the Green Scorpions have increased from 898 in 2006-7 to
more than 2,612 in 2007-8;
• Reported convictions of environmental criminals have increased from 134 in
2006-7 to 746 in 2007-8.
Unquestionably we still need more Inspectors, and better trained and better
equipped Inspectors. In addition to this, Inspectors will be the first to acknowledge
that formal partnerships with other enforcement agencies are key to successful
enforcement.
I remain concerned to see the discrepancy between the number of criminal
dockets and arrests, and the actual number of convictions on environmental
criminals. This indicates an urgent need for more effective investigations and for
increased support from our National Prosecuting Authority for the prosecution of
environmental crime.
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14 Eighth International Conference on Environmental Compliance and Enforcement 2008
Pursuant to some months of negotiation, our Department is on the verge of signing
a formal Standard Operating Procedure with the South African Police Services.
This Procedure will allow Environmental Management Inspectors to carry
their own criminal dockets or case files, and to hand those over for prosecution
to the National Prosecuting Authority. Although this will add to our Inspectors'
responsibilities, it will also allow for the more effective and efficient prosecution of
environmental crime.
CONCLUSION
Co-Chairs of the INECE Secretariat, Honourable Ministers, delegates, in 2008 the
environment - both here in South Africa and internationally - faces unprecedented
threats and challenges. These include increased urbanization, increased demand
for rapid development and economic growth, all of which continue to contribute
to the largest environmental threat of all - climate change. A global commitment to
compliance and enforcement will be crucial for the successful implementation of
international agreements on combating climate change.
There can be no question that, without enforcement of compliance, environmental
legislation is worth no more than the paper on which it's written. I wish you a
productive conference that will improve our understanding of effective compliance
and enforcement. I also wish you a rewarding stay here in our beautiful Mother
City.
I now declare this 8th International Conference of the International Network of
Environmental Compliance and Enforcement formally open. Thank you.
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Welters 15
OPENING REMARKS
GERARD WOLTERS1
1 Inspector General for International Enforcement Cooperation, Netherlands
Ministry of Housing, Spatial Planning and the Environment (VROM)
DAY-CHAIR'S CONFERENCE OPENING STATEMENT
WELCOME
Dear Minister, distinguished guests, honored speakers and panelists, ladies and
gentlemen, dear friends!
On behalf of my co-chairs, Deputy Assistant Administrator of the United States
Environmental Protection Agency - Ms. Catherine McCabe - and Justice of
the High Court of Brazil - Antonio Benjamin - and all the members of the
Executive Planning Committee of the International Network for Environmental
Compliance and Enforcement - it is my privilege to welcome you to the 8th INECE
International Conference for Environmental Compliance and Enforcement.
It is important that we have this conference.
It is important that so many enforcement professionals from different countries
participate.
It is important that we have eminent speakers in panels and workshops, and that
we have inspiring discussions and conversations.
The most important, however, is that this conference leads to concrete new
activities and actions. Concrete new activities that help us all to improve our day-
to-day compliance and enforcement work - in our countries, in our region and on
a global scale.
Therefore the overarching theme of this conference is: Linking Concepts to Action:
Successful Strategies for Environmental Compliance and Enforcement
THANKS TO OUR HOSTS
As we open this wonderful conference, I would like to express our deep gratitude
to the government of South Africa for hosting this conference. South Africa is
widely recognized not only as a wonderful tourist and conference destination, but
also as a warm and inviting country with a commitment to the protection of the
environment.
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16 Eighth International Conference on Environmental Compliance and Enforcement 2008
We are especially grateful for the support of the Department of Environmental
Affairs and Tourism and to the municipality of Cape Town in many organizational
and logistical issues.
A RENEWED SENSE OF URGENCY
We come to this conference with a renewed sense of urgency in our work. It is now
evident that how humans interact with the environment will be one of the critical
issues of the 21st century.
Most indicators of global environmental quality continue to decline, and new
threats have emerged. Today's world faces increased vulnerability to climate
change, increased pollution, and the loss of natural resources. These hazards
threaten to undermine the many advances by human society in recent decades and
the rich values that have been present for many centuries.
Poor environmental management and criminal actors continue to cause a loss
of biodiversity, reduction in natural capital, and the worldwide proliferation of
waste. Air and water pollution persist to cause significant health risks, particularly
to many people in the developing world today.
Corruption, poverty, and mass migration to the cities make these problems even
more complex ones. Global warming, unless we take effective action, could cause
irreversible and possibly catastrophic environmental consequences as well as
international instabilities and conflicts.
Helping to drive many of these trends is the big demand of materials and energy in
many developed countries and growing economies. This adds to the depletion of
natural resources and the international spreading of pollution. The environmental
impact of these phenomena is sometimes not well understood by consumers
because they occur far from their community. On the other hand, people elsewhere
do experience the negative consequences of a deteriorating environmental quality
and personal health.
ABOUT INECE
Given these disturbing trends, what can this conference achieve? How can we
work to address these problems, which in many ways seem so hard to solve? Part
of the answer is found in the core mission of INECE.
Eighteen years ago, approximately 20 countries attended the first International
Conference for Environmental Compliance and Enforcement in Utrecht, The
Netherlands. Since that beginning, INECE's efforts have grown in size, stature, and
importance.
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Welters 17
INECE is now a global network of more than 4,000 compliance and enforcement
professionals from more than 140 countries who are working in governmental
organizations, the judiciary, international institutions, NGOs, and academia.
What unites the INECE community is our shared commitment to the rule of law
and sustainable development. Our goals are to:
(1) raise awareness of the importance of compliance and enforcement;
(2) develop networks for enforcement cooperation; and
(3) strengthen capacity to implement and enforce environmental
requirements.
Weak compliance with and enforcement of environmental laws undermines the
rule of law and sustainable development. These failures highlight the need for
societies to continually improve the management of their environment, including
strong efforts to assure compliance with environmental laws.
INECE is about global networking. But global networking is only possible in
the presence of regional and domestic networks. Therefore INECE advocates
and stimulates the development of environmental compliance and enforcement
networks at different levels. Networks are instruments to join and multiply forces.
THE RULE OF LAW AND SUSTAINABLE DEVELOPMENT
Compliance and enforcement are essential elements of the rule of law and good
governance.
As the number of environmental institutions, laws, and regulations has increased,
continuing environmental problems are often symptomatic of problems involving
governance and compliance with existing regulation.
This is not only true with domestic laws, but also with our multilateral
environmental agreements, which are growing in number and importance.
Compliance and enforcement are both individual and collective responsibilities.
This refers to the domestic levels, but (more and more) to the international level.
The only effective way forward is multiplying our forces through cooperation and
joined action, together, together with our professional colleague-enforcers, with
the judiciary, with the responsible players of industry and with citizens. Building
on international expertise and experience, exchanging good practices and sharing
intelligence, and disseminating know-how through training and education are
all instruments to make progress and improve together. Ultimately, this all has to
result in concrete and visible compliance and enforcement projects.
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18 Eighth International Conference on Environmental Compliance and Enforcement 2008
Compliance and enforcement are, regretfully, too often the weakest elements in the
regulatory chain. We need dedication and leadership to improve on this and make
law work. This conference serves to motivate and inspire us all to raise the profile
of compliance and enforcement for the sake of a healthy and safe environment and
a future for coming generations.
THE IMPORTANCE OF THIS CONFERENCE
We have here a rich base of information and a talented group of attendees on
which to draw for our discussions and actions. Nearly 200 experts, coming
from more than 60 countries and 100 organizations, with a broad and diverse
professional and cultural background, have come to this conference. This offers us
all a unique international opportunity to benefit from.
During this week, we will be fortunate to hear from some of the leading thinkers,
policy makers and practitioners on important environmental enforcement and
compliance issues and experiences, and to see for ourselves some of the important
work that is occurring in and around Cape Town.
The success of this conference will be judged by our ability to crystallize our work
around meaningful, timely and practical action-oriented outcomes and initiatives.
It is through the conference workshops that we will act together to develop such
outcomes and initiatives in the areas of:
• strategic management of environmental compliance and enforcement
programs;
• detecting noncompliance;
• transboundary compliance and enforcement;
• biodiversity, ecosystems, and enforcement;
• climate change and compliance; and
• creating a culture of compliance.
The concrete outcomes and recommendations will be part of the conference
proceedings and serve as an important collective roadmap for action to address
and solve environmental compliance and enforcement issues, now and in the
future.
CLOSING
I would like to thank the Secretariat for their tremendous work in organizing and
preparing this conference. Also I want to express thanks all our colleagues - here in
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Welters 19
South Africa and elsewhere - who took time out of their busy schedules to put to
paper their experiences and lessons for our conference proceedings and those who
have otherwise volunteered to help make this conference possible though panel
and workshop sessions. Of course, we are grateful to the sponsors and partner
organizations that made this event possible.
Environmental degradation is a global problem. We have all come to this
conference with a firm belief that compliance and enforcement, good governance,
and the rule of law are the foundation for sustainable development. For this sake,
let all of us be committed to learn from each other and to come to action.
In this light, I want to again express our deep appreciation on behalf of all of us to
our host country and the city of Cape Town for their gracious hospitality, and for
providing such an exciting location for this conference.
South Africa is a country that is well known for its environmental richness and
the protection of these values. As the Minister van Schalkwyk has just indicated
in his speech, the ambitions and concrete activities with respect to compliance
and enforcement are having results. This has been an important consideration for
INECE to chose South Africa, and in particular the beautiful city of Cape Town, as
the venue our 8th international conference. We anticipate that this occasion could
be instrumental to serve as a starting point for leadership and activities that result
in the further development of regional environmental compliance and enforcement
network initiatives. May the successful launching of the NECEMA network in the
North African Maghreb region in the afterglow of the previous INECE conference
serve as an inspiring example for similar developments in this region. The very
successful regional INECE conference that took place last Saturday, and its follow-
up, will hopefully serve as an important first move for progress in that direction.
I trust we will have an inspiring conference that stimulates us all to a lot of action
- not only these days, but sustained action for the future.
Thank you all!
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Maathai 21
CONCLUDING REMARKS
WANGARI MAATHAI1
1 Nobel Peace Prize Laureate, on Good Governance and Sustainable Development.
Honorable delegates: It gives me great pleasure to send you this message at this
eight international conference. I'm so sorry that I could not join you due to other
situations but so happy to be part of this conference. I want to welcome you most
warmly to Cape Town, a beautiful city.
I know how important it is for us to have laws that protect the environment. But
I want to agree with my friend Durwood Zaelke that even more important is to
comply. Here in Kenya we have been fighting so hard for many years to force not
only the private companies, individual entrepreneurs, but even the government to
comply with the laws that are in our books. For without compliance, we cannot
have sustainable development. Compliance is part of good governance. It's part
of having a rule of law, having an effective rule of law. Without that, you cannot
have sustainable development. The two of them are important; one is not going to
be effective on its own. We need both of them at the same time.
You should be very proud of the organization because you are here focusing
on an extremely important area. I know that many of you are lawyers and you
understand the value not only of the letter, but also of the action. I understand
that one of the areas you are focusing on is climate change as part of your theme
for this year. Now, climate change remains one of the greatest challenges on the
planet, not only for environmentalists, not only for climatologists, but for all of
us. As we all know, it's one thing to sign the treaty, it's one thing to be part of
the Kyoto Protocol, but it's a completely different thing to go home, domesticate
the treaty or the agreements and make efforts to have the treaty complied with,
especially in the area of protecting forests.
As you know, we are very concerned about the forests because we are informed
that 20 percent of our climate emissions are from cutting forests. And this is
particularly of concern in Africa, where the majority of our people still use
firewood and still need to clear forests and clear vegetation in order to make room
for agriculture. Forests are extremely important for Africa. They really must be
protected and they must be in the next treaty.
We're saying that if we cannot protect the standing forests, why should we plant?
Why should we be planting when others are cutting? It doesn't make any sense.
And why don't we want to appreciate the role that the standing forests and
vegetation are playing in mitigating climate change? I think we want to push for
this, and I'm hoping that more and more people are recognizing the value of our
standing forests.
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22 Eighth International Conference on Environmental Compliance and Enforcement 2008
It's for that reason, I'm very proud to be the Goodwill Ambassador of the Congo
forest ecosystem, and I hope that we shall continue to fight especially for this
forest, for the Amazon forests, and for the great forests in Southeast Asia. These
are indeed, as we all know, our biggest and most precious carbon sinks. And we
really ought to protect them and appreciate them. It can't be more important to
plant an extra tree than to protect the one that is already standing.
Now it's one thing to have laws and contracts that protect these forests, but
as I have already said, much more important is to raise awareness on the need
to comply. If we do not comply, it does not matter how many laws we make, it
doesn't matter how many volumes we write. We're just talking and we're just
filling our libraries and our archives. For many years I've been advocating for
people to not only say what they believe in international conferences, in United
Nations conferences, in NGO conferences, and even in government board rooms.
There is a lot of talking, but very little action and very little complying with the
laws that we have already in our books.
I want to thank your organization for trying to raise this awareness, for it is
extremely important. And I want to know that although I am not in Cape Town
with my body, my spirit is with you. And I want to ask you to continue this work
and to count me and the organizations that we are devoted to, such as the Green
Belt Movement, and the work for the Congo forests and so many other work that
we are trying to do with the rest of the world, count us as one of you as we try to
push not only the letter but also the compliance.
I send you my very best wishes and hope that you will have an extremely
successful conference, such as you have not had before, for you are in one of the
best countries in Africa, in what I think is one of the most beautiful towns and
cities in Africa. And so I hope that you will be inspired and motivated to come up
with the best document but also to go home extremely motivated to not only carry
out what you believe, but also make sure that the rest of us, the rest of the world,
complies. Best wishes and bon voyage.
Video speech presented on 11 April 2008 at the 8th INECE Conference
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Panel 1: Creating Value Through Compliance and Enforcement 23
SUMMARY OF PANELS
PANEL 1:
CREATING VALUE THROUGH COMPLIANCE AND ENFORCEMENT
Moderator: Greg Sullivan, Brisbane City Council, Australia
Panelists: John Cruden, Deputy Assistant Attorney General, Environment
and Natural Resources Division, Department of Justice, United
States
Joanne Yawitch, Deputy Director General, Department of Environ-
mental Affairs and Tourism, South Africa
Brendan Gillespie, Head, Environment and Globalisation Division,
Organisation for Economic Co-operation and Development,
Environment Directorate
Rapporteurs: Jo Gerardu, INECE Secretariat
Peter Murtha, Environmental Protection Agency, United States
Summary Report:
This panel explored how strengthening compliance with environmental
requirements creates both public and private value — public value by protecting
public health and sustaining ecosystem services and private value by improving
competitiveness of firms, accelerating technological innovation, and leveling the
playing field.
John Cruden provided five main themes: (1) the necessity for a "level playing
field" to ensure fair competition; (2) the emphasis on the rule of law; (3) making
sure an enforcement program includes public health benefits in addition to
environmental benefits (with an eye on disadvantaged communities who may
receive unequal environment impacts); (4) the need for a strong and independent
judiciary; and (5) the need for international cooperation.
Joanne Yawitch provided the perspective of a developing country with a rapidly
growing economy, and emphasized the need to find the appropriate balance point
between expanding the economy in a country with a high (greater than 20%)
unemployment rate while still protecting environment, a particularly difficult
task given South Africa's heavy concentration of inherently dirty extraction
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24 Eighth International Conference on Environmental Compliance and Enforcement 2008
industries. Ms. Yawitch recognized that in the process of rewriting South Africa's
constitution after the end of apartheid, environmental values — including
freedom from environmental harm and the right to a sustainable environment —
were incorporated in the Bill of Rights. Ms. Yawitch explained that the threat of
enforcement has been essential in South Africa in getting businesses to obtain their
necessary permits.
Brendan Gillespie previewed the results of a paper he will be delivering in
November 2008 titled "Environmental Compliance Assurance: Some Trends in
OECD Countries and Major Emerging Economies." Mr. Gillespie pointed out that
generally OECD countries are not on track to meet their environmental objectives
and that enforcement is the key to addressing the gap. He further pointed to
trends that are helping enforcement become more effective, including cross-media
integration and regulatory simplification, the growing importance of compliance
promotion as a complement to enforcement, risk-based targeting of inspections,
and better indications to measure performance. Finally, he indicated a shift away
from criminal enforcement in favor of more quickly concluded administrative
enforcement methods, which are better able to recoup any economic gain by the
violator.
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Panel 2: Compliance Mechanisms for Climate Protection after 2012 25
PANEL 2:
COMPLIANCE MECHANISMS FOR CLIMATE PROTECTION AFTER 2012
Panelists: Hon. Romina Picolotti, Secretary of Environment and Sustainable
Development, Argentina
Kunihiko Shimada, Principal International Policy Coordinator/
Principal International Negotiator, Ministry of Environment,
Japan
Jan van den Heuvel, Director, DCMR Environmental Protection
Agency, The Netherlands
Moderator: Kenneth Markowitz, Consultant to INECE Secretariat; Senior
Counsel, Akin Gump Strauss Hauer & Feld LLP
Rapporteur: Meredith Reeves, Earthpace, LLC
Summary Report
The world's best hope for combating climate change lies in securing broad
commitment to a successor agreement to the Kyoto Protocol before the current
compliance period expires in 2012. In December 2007, the international community
embarked on a two-year negotiation process under the Bali Roadmap with the
goal of realizing a "shared vision for long-term cooperative action, including a
long-term global goal for emission reductions." Within such an agreement, well-
designed compliance mechanisms are critical to ensuring environmental benefits
and economic efficiency. This panel session explored compliance mechanisms
for the successor global framework and the role of national, state, and local
actors in enforcing monitoring, reporting and verification programs to promote
accountability and efficiency under any regulatory approach to greenhouse gas
management.
During the plenary presentations, the three speakers identified the global, national,
and local challenges associated with ensuring compliance of climate laws and
policies and sought to guide the INECE community towards identifying the best
theory and practice of environmental compliance and the innovative strategies that
could help shape the new global climate mitigation and adaptation framework.
Secretary Romina Picolotti emphasized the need for any climate agreement to
maximize co-benefits, such as the protection of ecosystem services. Secretary
Picolotti discussed the importance of identifying areas of cooperation between
developed and developing countries, similar to the recent successful consensus
to accelerate the phase-out of ozone-depleting hydrochlorofluorocarbons in a
way that promotes climate mitigation under the Montreal Protocol. The Secretary
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26 Eighth International Conference on Environmental Compliance and Enforcement 2008
illuminated the role for INECE in advancing compliance mechanisms to support
national emissions mitigation regulations and discussed the importance of
building capacity to help vulnerable populations adapt to the effects of climate
change.
Kunihiko Shimada advocated for a balanced approach between mitigation and
adaptation under a post-2012 agreement. Mr. Shimada described the commitment
of parties under the United Nations Framework Convention on Climate Change to
"promote and cooperate in the development, application and diffusion, including
transfer, of technologies, practices and processes that control, reduce or prevent
anthropogenic emissions of greenhouse gases" and discussed the need for public
and private sector actors to fulfill this commitment through increased support
for climate technology research and development and increased diffusion and
dissemination of such technologies.
Jan van den Heuvel described national and sub-national measures to support
climate protection, emphasizing the role of local authorities in promoting
compliance with and enforcing existing laws that have climate co-benefits,
such as air quality regulations, renewable electricity standards, greenhouse
gas emissions permitting, and laws protecting forests and other carbon sinks.
As part of the European Union reduction commitments under the Kyoto
Protocol, countries may set local targets in line with the national targets. For The
Netherlands, a formal agreement between the municipalities and the Ministry
of Housing, Spatial Planning, and the Environment commits local governments
to working cooperatively to meet The Netherlands' reduction target. Achieving
progress towards climate change mitigation will only be achieved through
cooperation among all levels of government - from negotiators participating in the
international treaty dialogue to national governments adopting comprehensive
targets to state and municipal authorities leveraging their extensive knowledge
about locally-appropriate transportation and land use regulatory options.
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Panel 3: Regional Enforcement Cooperation for the Protection of Biodiversity 27
PANEL 3:
REGIONAL ENFORCEMENT COOPERATION FOR
THE PROTECTION OF BIODIVERSITY
Moderator: Ladislav Miko, Director, Directorate B: Protection of the Natural
Environment, Environment DG, European Commission
Panelists: Rosalind Reeve, Associate Fellow, Chatham House, Kenya
Samuel Wasser, Professor, University of Washington, United States
Julius Kipng'etich, Director, Kenya Wildlife Service
Rapporteurs: Louis Kotze, North-West University, South Africa
Ariel du Plessis, North-West University, South Africa
Summary Report:
This panel discussed how the illegal trade in flora and fauna is a grave threat to
biodiversity, especially in Africa. Panelists emphasized how general enforcement
cooperation is necessary at a regional level to enhance the efficiency of enforcement
efforts. Especially critical is ensuring that the staff is properly trained and have the
correct tools and the appropriate information not only to do their jobs locally, but
also to work with neighboring countries and with trading partners.
Rosalind Reeve highlighted statistics on the illegal trade in wildlife, timber trade,
and fisheries. She noted that the illegal trade in wildlife and environmental
commodities is growing and that the major drivers include China's economic
boom and the increased involvement of organized crime. Regional cooperation in
combating this trade varies from region to region and there are gaps in the sectors
covered. For example, no network exists for forest enforcement cooperation. For
fisheries, several regional mechanisms exist under Regional Fisheries Management
Organizations (other examples include North Pacific Anadromous Fish
Commission and Commission for the Conservation of Antarctic Marine Living
Resources). West Africa has a surveillance operation-coordinating unit. East Africa
has no significant cooperation and Kenya has no marine enforcement, highlighting
that the situation in Eastern Africa is generally not good. Regions with networks
include North America, South East Asia, Europe, and parts of Africa. Ms. Reeve
felt that Africa's Lusaka Agreement Task Force countries should be expanded
to include more African countries and existing efforts such as the Forest Law
Enforcement and Governance process should be strengthened.
Samuel Wasser noted that illegal trade in wildlife is booming and involves a high
profit and low risk. He observed that species at risk are often in high demand
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and that free trade fuels this demand. There is heavy involvement of organized
crime. The supply side is the most effective place to contain illegal trade and he
proposed that enforcement be directed to these areas. DNA-based methods have
been developed to track elephant gene categories in order to trace ivory crime
back to its source. He spoke of two separate strings of seizures in Singapore/
Malawi and Hong Kong/Cameroon. In looking at these seizures, the primary
issues the research team assessed were (1) whether the poaching targeted specific
populations for intense exploitation and (2) whether the ivory was shipped
from the country where it was poached? His team used DNA methods to track
ivory via Singapore and Malawi back to its source in Zambia and found similar
poaching methods: tusks are gathered quickly from a localized area. This implies
that outside targeting takes place with a goal of rapidly smuggling the tusks to
another country. The DNA tracking highlighted the need for strong regional
strategies to combat illegal ivory trade. A particular focus is required to coordinate
activities and share data. Mr. Wasser suggested that the Lusaka Agreement Task
Force could provide a vital path forward.
Julius Kipng'etich gave an overview of the two thousand staff member
organization. KWS facees various challenges especially where Kenya borders
other countries, such as Somalia, where smuggling is common. He noted that
approximately 1.2 million arms are in the wrong hands. The numbers of elephants
and rhinos have declined significantly from the 1960's as the result of poaching.
The Service has very few vehicles and airplanes to assist in control. Its mandate
covers water, fisheries, and power production, among other issues. However,
ollaboration has resulted in successes such as better control at airports in Nairobi,
increased seizures, and a closer working relationship with the Kenyan judiciary
in the enforcement of environmental laws. Wildlife plays a vital role in the
GDP growth of the country and Kenya needs to be part of broader enforcement
networks, such as INECE.
The panelist concluded that forestry, wildlife, and fisheries sectors are under heavy
stress; and that science should feed into efforts to protect these resources. INECE
should concern itself with summarizing ongoing trends and bringing to light the
challenges faced in enforcing laws designed to protect these important sectors.
Public education should be a critical component of this effort.
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Panel 4: Capacity Building within a Development Framework 29
PANEL 4:
CAPACITY BUILDING WITHIN A DEVELOPMENT FRAMEWORK
Moderator: Paul Leinster, Director of Operations, Environment Agency of
England and Wales
Panelists: Mark Jardine, South African Department for Environmental
Affairs and Tourism
Bonaventure Baya, Director General, National Environment
Management Council, Tanzania
Dr. John Seager, Head of Science Strategy, Environment Agency
of England and Wales
Benjamin Langwen, Director of Compliance and Enforcement,
National Environment Management Authority, Kenya
Elizabeth Maruma Mrema, Senior Legal Officer and Chief,
Division of Environmental Law and Conventions, UNEP
Alberto Ninio, Senior Counsel, World Bank
Rapporteurs: Jo Gerardu, INECE Secretariat
Catherine Lorenzen, Environment Agency of England and Wales
Summary report:
This panel provided a forum for panelists and participants to share experience
from recent projects on which approaches to capacity building have been
successful and can serve as best practices and which approaches have been less
successful. Panelists also discussed the possibility of stronger international
coordination to improve delivery of sustained, joint support in building capacity
for environmental protection at the country and regional levels.
The first three presentations were by representatives from the environmental
protection agencies of South Africa, Tanzania, and England and Wales. Their
presentations served to share practical experience on approaches to capacity
building. These were followed by presentations by UNEP and the World Bank,
giving perspective as multilateral organizations.
During the presentations and discussions, many recommendations and best
practices emerged. For example, to help ensure the long-term sustainability of
projects, capacity strengthening initiatives need to be demand-led: The beneficiary
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30 Eighth International Conference on Environmental Compliance and Enforcement 2008
organisation has to be in the lead in defining what a capacity strengthening project
or programme should look like.
There is a strong need to develop indicators for measuring the impact of
capacity building; often capacity building initiatives are short-term in character.
Reporting to donors ends up focusing on inputs and immediate outputs such
as the number of workshops held or the number of delegates trained. The long-
term impacts, which are more difficult to measure, receive less attention, yet these
are most important. Capacity building requires more than one training session.
It is necessary to return after a few months and ask the former participants
how the workshop influenced their personal abilities and how it influenced the
organisation. This is also a method of measuring the effects of training.
Panelists suggested the need to ensure that donors make the link between
supporting local environmental protection and climate change. There is a lot
of funding available for initiatives supporting climate change mitigation and
adaptation. 'Old' environmental issues, such as protecting biodiversity, risk losing
the attention of donors.
The panel also found that environmental protection agencies are often weak in
resources, making it difficult to articulate environment as a national priority. In the
face of increasing direct budget support by donors, it becomes crucial for agencies
to be able to play a strong role in determining national priorities, particularly in
national budget negotiations.
A final point made by the panel was that environmental professionals need to be
motivated to work for government agencies. In many countries working for the
environmental protection agency is not seen as prestigious and is not well paid,
which affects staff recruitment and retention.
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Panel 5: Global Enforcement Cooperation on Chemicals and other Hazardous Substances
31
PANEL 5:
GLOBAL ENFORCEMENT COOPERATION ON CHEMICALS
AND OTHER HAZARDOUS SUBSTANCES
Moderator: Catherine McCabe, Deputy Assistant Administrator, Environmen-
tal Protection Agency, United States
Panelists: Jonathan Allotey, Director, Environmental Protection Agency,
Ghana
Dr. Iwona Rummel-Bulska, Principal Legal Officer and Chief of
the Environmental Law Branch, UNEP
Walker Smith, Director, Office of Regulatory Enforcement,
Environmental Protection Agency, United States
Bert Wijbenga, Chief of Police, Flevoland Police, The Netherlands
Arwyn Jones, National Enforcement Manager, National Enforce-
ment Service Environment Agency of England and Wales
Rapporteurs: Jo Gerardu, INECE Secretariat
Tim Whitehouse, INECE Secretariat
Summary Report:
This panel explored why global cooperation is necessary to combat illegal trade in
chemicals, hazardous wastes, and environmentally-regulated products. Panelists
discussed compliance issues associated with the import and export of ozone
depleting substances; non-conforming pesticides; PCBs in transformers or ships;
hazardous waste; electronic waste; scrap metal contaminated with radiation; and
non-road engines and motor vehicles.
Jonathan Allotey, Director of Ghana's Environmental Protection Agency, talked
about import problems in Ghana. These include the importation of mislabeled
products containing ozone depleting substances, illegal pesticides, and
poly chlorinated biphenyls (PCBs). Electronic wastes coming in from Europe as
used products are also problematic.
Dr. Iwona Rummel-Bulska, Principal Legal Officer and Chief of the Environmental
Law Branch of UNEP, talked about the Probo Koala incident in Abidjan, Cote
dTvoire, in August 2006. This incident highlighted significant gaps in the Basel
Convention and in the ability or willingness of countries to cooperate on tracking
suspect shipments of hazardous waste. The incident resulted in deaths, massive
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32 Eighth International Conference on Environmental Compliance and Enforcement 2008
displacement of people, and the formation of a new government in Cote d'lvoire.
The facts of this case are detailed in a paper submitted as part of the Conference
Proceedings.
Dr. Rummel-Bulska highlighted the problem of dumping used electronic
equipment in Africa. She said that 50 million metric tons of electronic wastes are
generated globally, and much of it finds it way to Africa as charitable donations.
Between 25% and 75% are useless. In Nigeria alone, about 500 containers full of
electronic waste pass through the port of Lagos.
Walker Smith, Director of the Office of Civil Enforcement at the United States
Environmental Protection Agency talked about the United States' focus on
non-compliant imports. She talked about efforts in four areas: pesticides,
chlorofluorocarbons, scrap metal, and non-compliant engines. Specific products
discussed were pesticide chalks, silly string, radioactive steel, and engines. She
pointed out that 48,000 engines have been seized recently for not being compliant
with the Clean Air Act.
Bert Wijbenga, Chief of Police of the Flevoland Police Force in The Netherlands,
pointed out that environmental crimes provide some of the easiest ways to make
money. He noted that environmental crimes are not victimless. He underscored
the need for:
1. Specialized full-time detectives for environmental crimes.
2. Improving the intelligence by which operations are led.
3. Introducing the possibility of anonymous reporting.
4. Mandatory training for all officers working in environmental crimes.
Arwyn Jones, Programme Manager for the Environment Agency for England and
Wales, noted that this is a hugely complex problem that will grow as trade grows.
He pointed out the need for clarity as to where the problems lie and to include
stakeholders in the solutions.
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Panel 6: Good Governance and the Rule of Law 33
PANEL 6:
GOOD GOVERNANCE AND THE RULE OF LAW
Moderator: Alex Wang, Project Director, Natural Resources Defense Council,
China
Panelists: Justice Suryakant Sharma, Punjab & Haryana High Court, India
Lawrence Sperling, Senior Adviser, Bureau of Oceans, Environ-
ment and Science, State Department, United States
Antonio Oposa, President, The Law of Nature Foundation, The
Philippines
Rapporteur: Gustaaf Biezeveld, National Prosecutors Office, The Netherlands
Summary Report:
Justice Suryakant presented good governance and the rule of law in the context of
sustainable development. In his view, good governance can be defined as decision-
making in a manner essentially free of abuse and corruption and with due regard
to the rule of law. Rule of law is the sine qua non for good governance. Essential to
this is a fair legal framework, enforced impartially as well as with full protection
of human rights, particularly those of minorities. These require an independent
judiciary and an impartial and incorruptible police force.
Perhaps the most important application of the rule of law is the principle that
governmental authority is legitimately exercised only in accordance with written,
publicly disclosed laws, adopted and enforced in accordance with established
procedural steps that are referred to as due process. The principle is intended to
be a safeguard against arbitrary governance, whether by a totalitarian leader or by
mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy.
Justice Suryakant felt sustainable development is the method that governments
must adopt to set a balance between the pressures that are forced upon both
developed and developing countries. Changes in the world's economic, political,
and social systems have brought unprecedented improvements in human living
conditions in both developed and developing countries, but these changes
have also brought new uncertainties and challenges. Signs of breakdown are
everywhere in the form of disintegration of families; destruction of indigenous
societies; degradation and annihilation of plant and animal life; pollution of
rivers, oceans, and the atmosphere; crime, alienation, and substance abuse; higher
unemployment; and a widening gap in incomes and capabilities.
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34 Eighth International Conference on Environmental Compliance and Enforcement 2008
Justice Suryakant concluded his presentation by saying that the art of sustainable
development is to preserve order amid change and to preserve change amid order.
This can be achieved only by making people 'sit up' and not 'sit down.' Our only
hope for a better and sustainable world is human ingenuity, but it can not flower
in a vacuum and has to be managed with a cohesive approach.
Mr. Lawrence Sperling focused his presentation on the relation between rule of
law and the environment in a globalized world. Mr. Sperling noted that before the
World Summit on Sustainable Development in Johannesburg in 2002, the focus of
most nations and politicians had already shifted to security and the global war on
terror due to 9/11. Globalization has led to more decentralization and demands for
greater accountability in governments. It has also lead to a greater quest by some
countries for resources and an increase in illegal smuggling, as well as daunting
new global problems such as climate change.
Mr. Sperling cited the book, Illicit: How Smugglers, Traffickers and Copycats are Hijacking
the Global Economy (2005) by M. Nairn, to illustrate how smuggling operations have
moved away from fixed hierarchies and toward decentralized networks: "away
from controlling leaders and toward multiple, loosely linked, dispersed agents and
cells, away from rigid lines of control and exchange and toward constantly shifting
transactions as opportunities dictate. It is a mutation that governments in the 1990's
barely recognized and could not, in any case, hope to emulate."
He also cited the International Crime Threat Assessment 2000 by the U.S. Government,
which characterized environmental crime as one of the fastest growing and most
profitable areas of international organized crime with an estimated economic value
of $22-31 billion annually, including $10 billion in wildlife trafficking.
He concluded his presentation with some suggestions to INECE. On the
operational level, the network should address the full enforcement continuum in
a comprehensive way, because the chain is only as strong as the weakest link. It
should also build ground-level cooperation with the full range of agencies, because
all are in the same boat. In his view, INECE should confront corruption and build
in outcome measurements, or indicators, that feed back into marketing efforts.
Above all, INECE should keep up the great work it has been doing.
Antonio Oposa showed an impressive documentary about the natural beauty of
The Philippines and how it is endangered by the short-sighted behaviour of man.
He followed the film with a parable about a man who had saved an enormous
amount of money over 82 years. After his death, the inheritance he left was wasted
in less than ten days. Oposa's main message was that man would ultimately realize
that he can not eat money. Man is dependent on the vital organs of the Earth and
its natural resources. It is in his own interest to protect the environment and to
change his mindset, attitudes, and practices. If man is the problem, man also is
the solution. He concluded his presentation by mentioning his initiative on global
legal action on climate change.
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Track A: Strategic Management of Environmental Compliance and Enforcement Programs 35
SUMMARY OF WORKSHOPS
TRACK A:
STRATEGIC MANAGEMENT OF ENVIRONMENTAL COMPLIANCE
AND ENFORCEMENT PROGRAMS
During the workshops in Track A, facilitators and participants explored approaches
to strategic management of environmental enforcement and compliance programs
in different countries and discussed challenges of ensuring the accountability of
governmental institutions for the results of these programs.
1A DOING WHAT'S IMPORTANT: FOCUSING ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT PROGRAMS ON THE RIGHT
PROBLEMS AND PRIORITIES
Facilitators: Michael Stahl, Environmental Protection Agency, United States
Eugene Mazur, Organisation for Economic Co-operation and
Development
Wijarn Simachaya, Pollution Control Department, Thailand
Rapporteur: Susan Bromm, Environmental Protection Agency, United States
BACKGROUND
Three questions framed the workshop discussion:
• How can an enforcement and compliance agency establish priorities?
• What are the barriers to doing so?
• How does an agency maintain a cadre of well-trained inspectors who are
experts on the types of facilities they inspect?
THE WORKSHOP DISCUSSION
The following key points emerged from the discussion. First, resource
constraints require countries to establish priorities. Second, many bases exist
for the establishment of priorities, including sector specific, compliance history,
geographic area, environmental impact and risk assessment. Third, some
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36 Eighth International Conference on Environmental Compliance and Enforcement 2008
countries have highly sophisticated scoring systems for establishing priorities (e.g.,
the United Kingdom), while others use less formal criteria (e.g., Japan).
Pertinent sub-issues were also discussed. Participants observed that although there
are various means to establishing priorities, it is unclear whether one method leads
to better results than others. Moreover, barriers to establishing priorities include:
institutional resistance (people are often tied to old ways) and lack of information
(e.g., in order to do comparative risk assessments).
Participants acknowledged the challenges to maintaining a well-trained cadre of
inspectors. For example, in some countries, there is high turnover (due to industry
drawing experienced staff away from government jobs) and, in others, retirements
result in a loss of institutional knowledge. Countries are taking various steps to
deal with this challenge. The Netherlands, for example, encourages retiring staff
to transfer their knowledge and experience, while other countries and to provide
training to inspectors to develop and maintain expertise.
THE OUTCOMES
1. The benefits of establishing priorities include the better, more focused use of
resources and better environmental gain from actions taken.
2. Countries currently employ a variety of approaches to establishing priorities
although there is no agreement as to a clearly preferable approach. Approaches
range from sophisticated scoring systems to considerations such as history
of noncompliance, environmental impacts of the violations (or benefits to
be gained by achieving compliance), environmental effects on the facility,
geographic area, affected population, etc.
3. Different problems have different solutions. Strategies should be written to
define types of tools to be used in setting priorities. OECD may come out with
a recommendation on how best to set priorities by this November.
4. The greatest benefit occurs when using the priority focus as a basis for
describing accomplishments in terms of environmental benefits and
improvements to human health.
2A MORE EFFECTIVE REGULATION - IMPROVING EFFICIENCY AND
CUTTING RED TAPE
Facilitators: Elisea Gozun, Asian Environmental Compliance and Enforcement
Network
Catherine Wright, Environment Agency of England and Wales
Joe Woodward, Department of Environment and Climate Change,
New South Wales, Australia
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Track A: Strategic Management of Environmental Compliance and Enforcement Programs 37
Rapporteur: Ross Galbraith, Environment Canada
BACKGROUND
The facilitators of this workshop sought to create an understanding of the
terminology and principles of effective and efficient regulation through discussion
and case studies. Specifically, the workshop goals included:
• Identifying how more efficient regulation could help deliver improvements for
people and the environment.
• Reaching consensus on how INECE could further advance and disseminate
concepts of better regulation.
THE WORKSHOP DISCUSSION
At the outset, participants made several general observations, including that
environmental regulation is an evolving process. Further, compliance with
environmental requirements can be achieved through a whole range of tools and
techniques. In order to best tailor the most appropriate approach, decisions on
the extent to which alternative approaches to inspection and/or enforcement are
appropriate should be taken locally to take account of the environmental priorities,
the maturity of the regulatory systems, and available resources.
The discussion honed in on better regulation principles, including:
• Holding business accountable for meeting their environmental responsibilities.
• Using a range of tools to bring about environmental compliance from command
and control to alternative approaches to compliance and enforcement.
• Targeting the level of effort based on what works best for the particular issue.
• Employing approaches that are able to bring about the desired change quickly
and to effectively respond to mounting environmental pressures, especially
climate change.
• Promoting transparency in dealings with business and communities.
• Encouraging community involvement through consultation, education, media,
public disclosure, and inclusion in monitoring and/or reporting.
• Using of performance indicators to assess the effectiveness of regulatory
measures;
• Tackling poor environmental performance through the supply chain.
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38 Eighth International Conference on Environmental Compliance and Enforcement 2008
• Exempting businesses from regulation as appropriate, e.g., where there is no
environmental benefit.
• Re-enforcing and rewarding good performance.
Facilitators discussed specific cases demonstrating alternative approaches to
regulation. For example, public disclosure of environmental performance and
compliance assistance was provided to hog farmers in the Philippines, and in
Botswana, the community was engaged in enforcement. The United Kingdom
promotes simplified environmental permitting regulations and reporting on
business performance, while in Australia, CEOs are made accountable for their
self-monitoring and audit returns. In South Africa, self-reporting by industry is
under consideration.
Other participants stated the need for laws and regulations to be drafted in
a manner such that they are capable of being adapted according to changing
conditions. It was also observed that consultation with CEOs of regulated sectors
during the drafting stage of regulation may have the effect of producing more
effective regulatory processes that balance market-based incentives with command
and control instruments.
Similarly, consultation with the public can assist regulators in determining
their priorities in relation to optimizing risk-based responses to environmental
problems. This approach may be effective in creating optimal synergies between
national priorities and local issues by promoting public support for the given
regulatory approach.
Regulations must support best industry practices and regulatory processes must
be open and transparent. This approach will strengthen the extent to which the
regulations help support continuous environmental improvement
In order for continuous improvements to occur, regulators may need to develop
performance indicators in order to ensure that regulations are, in fact, producing
the desired outcomes. Some countries have moved to a system to rate the regulated
community. A rating system may provide efficiency in terms of incentivizing
industry to improve their performance (e.g. fewer inspections, more opportunities
for self-monitoring). Self-monitoring may be an approach that is appropriate
in certain circumstances, but the framework for such activities must be correctly
designed and should incorporate sufficient checks and balances. Similarly, positive
reinforcement mechanisms should recognize those regulated parties that perform
at superior levels.
Finally, where possible, regulators should attempt to use multi-media/agency
approaches that minimize the perceived or real degree of interference to industry
and should ensure that regulations are flexible enough to adapt to advances in
technologies, processes, and procedures.
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Track A: Strategic Management of Environmental Compliance and Enforcement Programs 39
THE OUTCOMES
The workshop participants recommended areas for further work and collaboration
within INECE. The top priority was to develop a program focused on alternative
tools to inspection and enforcement, including identifying the alternative tools,
assessing how and when to use these alternative approaches, and sharing global
best practices. Two specific approaches identified for further consideration were:
(1) self-monitoring and (2) promoting environmental compliance across the supply
chain. It was further suggested that the first steps should be sharing information
between network members and highlighting relevant documentation.
3A USING PERFORMANCE INDICATORS TO LEAD ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT PROGRAMS
Facilitators: Jose Pablo Gonzalez, Environmental Prosecutor's Office, Costa
Rica
Elisea Gozun, Asian Environmental Compliance and Enforcement
Network
Michael Stahl, Environmental Protection Agency, United States
Rapporteur: Davis Jones, Environmental Protection Agency, United States
BACKGROUND
Mr. Stahl distributed copies of the INECE document, Performance Measurement
Guidance for Compliance and Enforcement Practitioners, Second Edition as background
for the workshop. The Guidance presents common definitions and best practices
for identifying, designing, and using environmental compliance and enforcement
indicators (see http://inece.org/indicators/). Mr. Gonzalez discussed work in
Central America to develop model indicators for the region using the Guidance
methodology to achieve common measures. Mrs. Gozun shared her experience in
the Philippines and with AECEN in developing and promoting indicators in Asia.
THE WORKSHOP DISCUSSION
The INECE indicators methodology, developed by practitioners, presents a menu
of different indicators that may work or could be adapted to work in a variety of
situations. However, there is a need to balance the importance of the indicator
and the feasibility of measuring it. As Albert Einstein famously observed,
"Not everything that is important can be measured... Not everything that can
be measured is important." For example, development of a statistically valid
compliance rate would require inspections of 80% of the facilities, or to randomly
select a target number of facilities. However, inspectors resisted the indicator
because they did not see value of inspecting facilities where they did not suspect
problems.
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40 Eighth International Conference on Environmental Compliance and Enforcement 2008
In the Philippines, most indicators were purely input and output indicators with
very few that showed outcomes. However, one advanced program, managed by
the Laguna Lake Development Authority, implemented a system of user fees for
water services and assessed how compliance with the fees resulted in changes
to the water quality of the lake. Input indicators included staff assigned, the
funds allocated to the program, as well as equipment and vehicles assigned. The
output indicators included the number of permits issued, the fees collected, and
the number of inspections conducted. The intermediate outcomes expected are
reductions in: (1) the pollutant load, (2) the percentage of wastewater discharged
instead of recycled, (3) water use and (4) amount of company investments in
wastewater treatment plants or pollution prevention. The final environmental
outcome will be measured by changes in the level of biological oxygen demand
and other common water quality indicators.
Indicators can help manage program resources and the efficiency of operations.
In Finland, inspectors have to review complaints within a certain time period and
determine the validity of the report and what else should happen as a result. They
are expected to meet the response time limits in 97% of the cases. Managers can
review the individual inspector's compliance with the timeliness as part of their
periodic job evaluation, and managers can report on performance of the unit. This
provides accountability within the agency and ability for headquarters to evaluate
regional offices.
Some measures can drive odd behavior. For example, a measure that sets a
target for the minimum number of enforcement cases in a given year may lead to
prosecution of marginal cases solely to meet the target. The US Environmental
Protection Agency (USEPA) no longer sets targets on number of cases, but
does require targets for inspections in a year. In some cases, USEPA is relating
pollution reductions that stem from enforcement actions directly to health effects.
For example, USEPA took the total pounds of pollution reduced by enforcement
actions against coal fired power plants and used a risk model to equate pollutant
levels with health impacts. This brought significantly increased publicity of the
enforcement cases, but is only possible for certain types of cases.
THE OUTCOMES
Several individuals in the group requested specific support from INECE:
1. Uganda, Kenya, South Africa, and Tanzania all asked for specific assistance
with the development and review of their measures.
2. China would like expert INECE participation in a pending upcoming meeting
on enforcement measures.
3. INECE could develop and share a very short list of intermediate outcomes that
could be implemented and tracked at the country and/or regional level.
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Track A: Strategic Management of Environmental Compliance and Enforcement Programs 41
4A IDENTIFYING TRAINING NEEDS AT A STRATEGIC LEVEL
Facilitators: Machteld Brokerhof, Ministry of Housing, Spatial Planning and
the Environment, The Netherlands
Angela Bularga, Organisation for Economic Co-operation and
Development
Marcia Mulkey, Environmental Protection Agency, United States
Grant Pink, Department of the Environment, Water, Heritage and
the Arts, Australia
Angelique van der Schraaf, Ministry of Housing, Spatial Planning
and the Environment, The Netherlands
Rapporteurs: Machteld Brokerhof, Ministry of Housing, Spatial Planning and
the Environment, The Netherlands
Grant Pink, Department of the Environment, Water, Heritage and
the Arts, Australia
BACKGROUND
The workshop was designed to highlight the importance of designing and
operating sound training programs with an emphasis on conducting training
needs analysis. The workshop goals were:
• Review training vocabulary.
• Significantly improve understanding of the conceptual framework for good
training programs and gain new ideas and tools for developing their own
training strategy.
• Present detailed approach for conducting a Training Needs Analysis and apply
the Training Needs Analysis process as a workshop exercise.
• Present strategic overview of the factors that influence training needs,
including economic, demographic, cultural and technological factors, as well as
environmental and governmental legislation.
• Develop a lasting product from the workshop, which could be used as part of
further training.
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42 Eighth International Conference on Environmental Compliance and Enforcement 2008
THE WORKSHOP DISCUSSION
Ms. Mulkey's presentation started with the screening of an 11-minute DVD
titled "The Cycle of Environmental Enforcement Training," (see http://inece.org/
trainersnetwork/) containing the training lifecycle methodology as used by US
EPA's National Enforcement Training Institute. The training lifecycle is comprised
of six parts: Analyze, Design and Develop, Deliver, Evaluate, Revise, and Review.
The Analyze phase includes several types of analysis, namely: Needs, Task, Gap,
and Resource.
The importance of Knowledge, Skills, and Abilities in training programs was
highlighted and its relevance at a micro level was demonstrated by a provision of
training designed and developed for field officers who were required to inspect
refineries. Ms. Mulkey also made reference to the principle of thirds when
designing training programs: a third of the time should be spent on delivery, a
third on discussion, and a third on evaluation and feedback by participants. Often
evaluation and feedback are overlooked in a rush to get to the next topic. This
is problematic as it does not enable participants to consolidate their learning nor
does it allow trainers to pick up on nuances of the participant group and make
necessary modifications to the course. In closing, Ms. Mulkey mentioned that the
new International Network for Environmental Compliance Training Professionals
should be seen as a resource to participants as this Network may assist with
information and advice in respect of generic and specific training packages,
together with coordinating such assistance.
Ms. van der Schraaf then presented an interactive PowerPoint presentation entitled
"Needs Analysis." The presentation incorporated theoretical underpinnings of
training programs while continually reinforcing the practicality and ultimate
usability of customized training programs. The presentation detailed the process
of using a Strategic Knowledge Map. This Map assisted participants to more
strategically identify important themes that tend to influence environmental
compliance and enforcement in their countries. The Map was also used for an
exercise involving participants who were placed into three groups and required
to individually identify five to seven themes that they felt should be considered as
part of a departmental training program. Participants then placed their themes/
issues into one of the four quadrants in the Map based on matters of current
and future importance. This exercise demonstrated that irrespective of the size,
structure, or commodity regulated by individual agencies, there were common
themes in the types of courses needed, including legislation, generalist courses,
specialist courses, capacity building, and raising awareness.
Ms. van der Schraaf also outlined a second practical tool: the "Individual
Knowledge Chart." The Chart was presented to the participants to use to assess
the existing level of knowledge in their organization. By then combining the Map
and the Chart, participants were able to identify their organization's knowledge
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Track A: Strategic Management of Environmental Compliance and Enforcement Programs 43
gap, enabling progress towards development of a tailor-made curriculum for the
practitioners in the three years to follow.
THE OUTCOMES
There was much discussion around the clear benefits associated with taking
a more strategic and planned approach to designing training programs. It is
recommended that these concrete action items generated by the workshop be used
as the catalyst to put learning into practice:
1. There was substantial interest, stemming from the exercise, in receiving further
assistance with respect to analysis, evaluation and prioritization, with a number
of participants seeking templates/forms or documents that could assist them in
this regard.
2. With reference to the Strategic Knowledge Map, there is recognition that
training may not be able to solve all of our problems, but is able to assist us in
identifying many of them and on a more strategic level.
3. With respect to the Individual Knowledge Chart, it is critical that training
programs address the needs of the individual, and therefore content and
delivery should be primarily driven by the needs of the participant, not to suit
the convenience of training providers.
5A PERFORMANCE-BASED MANAGEMENT FOR ENVIRONMENTAL AND
ENFORCEMENT PROGRAMS
Facilitators: Mihail Dimovski, Regional Environmental Center for Central and
Eastern Europe
Rejean de Ladurantaye, Environment Canada
Michael Stahl, Environmental Protection Agency, United States
Rapporteur: Marcia Mulkey, Environmental Protection Agency, United States
BACKGROUND
The workshop presented a framework for identifying important environmental
problems and priorities, developing strategies to address those priorities, and
measuring and evaluating effectiveness. In discussing these broad concepts, the
workshop participants e assessed the possibility of establishing an INECE internet
forum for discussion of strategic management (using the INECE Indicators internet
forum as a model) as well as a potential guidance document.
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44 Eighth International Conference on Environmental Compliance and Enforcement 2008
THE WORKSHOP DISCUSSION
The facilitators presented a series of materials:
Mr. Stahl discussed USEPA's Concepts and Principles of Strategic Management.
His presentation covered definitions, rationales, best practices, and the importance
of the evolution of performance indicators. The main pillars of strategic
management are 1) focusing on important problems; 2) focusing on use of effective
tools; and 3) providing for assessment of effectiveness.
Mr. de Ladurantaye described Canada's project on Inspections, which focuses on
improving understanding of the organization's effectiveness and productivity
using the "three stage" INECE indicators methodology. This project involved a
large geographic area, many inspections, and hundreds of laws; inconsistency
and non-uniformity were major concerns. A significant initial challenge was data
quality, with considerable data incompleteness and variability among regions.
Performance comparisons among regions were considered separately for each
regulatory area and significant differences were identified among the regions.
Examples of data collected by the program include a comparison of the nature of
inspections (field vs. other) and the percentage of inspections detecting violations.
The program also observed differences in violator performance after initial,
second, and third inspections. The lessons from this project, particularly with
regards to data collection, were useful for participants to understand the high
quality of information necessary to support the types of indicators that can help
improve program performance.
Mr. Dimovski described the Regional Environmental Center for Central and
Eastern Europe Indicator Project. This project developed indicators to evaluate the
performance of these ten countries and to benchmark based on best performances.
The project started with budget/investment parameters and moved on to other
indicators including: the time invested in certain types of inspections, efforts in
identified prevention systems, inspection prioritizations, incidents, appealed cases
and several others. After considering a very long list of potential indicators, some
were selected to assess inspectorate performance and some to assess legislative
implementation. Challenges included a lack of common understanding about the
interpretation of results (e.g., do a large number of inspections indicate success or
failure?). Efforts are being made to move beyond activity measures. The results
so far have been very helpful to individual countries in budget deliberations,
especially by comparing to similar countries.
The group discussions probed the idea of an INECE Web-based forum on Strategic
Management and Priority Setting, as well as Guidelines on the subject. The group
was supportive of the project. Mr. Dimovski felt that such guidelines would be
very useful in Central and Eastern Europe and encouraged the development of
guidelines on prioritization and problem identification that are simple and usable.
Mr. Stahl believes that the guidelines could rely heavily on examples, particularly
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Track A: Strategic Management of Environmental Compliance and Enforcement Programs 45
examples in actual implementation around the world. Ms. Mulkey and Mr. Stahl
described the ways in which the strategic management forum could be integrated
with the existing INECE forum on indicators.
The group asked questions about the reasons behind USEPA's choice to develop
and use a number of outcome indicators for enforcement work. Mr. Stahl and
Ms. Walker Smith identified a range of reasons, including the Agency's desire to
better understand and communicate its impact, national legislation requiring
Government Results and Performance, and management's need for appropriate
incentives for smart, effective work.
Mr. Hietamaki of Finland discussed efforts in Europe to develop comparisons
across Europe of the differences and inconsistencies in definitions of and
implementation of best available technology, applying the approaches described
for enforcement to permitting and standard setting.
THE OUTCOMES
Through presentations and discussions, this workshop demonstrated a rapidly
developing consensus that strategic management of enforcement and compliance
programs is both desirable and necessary in an era of multitudes of statutes,
regulated activities, competing expectations, and real and frequently severe limits
on governmental resources. Focusing on problem solving, analysis of relevant
data, and setting of priorities based on urgency of problems, strategic management
allows governments to maximize their efforts and demonstrate their effectiveness.
This kind of approach can be applied broadly, as USEPA has done for much of
its overall enforcement program, or in a more focused way, as Canada has done
for comparing and managing its regional inspection activities. This use for
comparison and benchmarking, evident among the Central and Eastern European
countries, can be relevant within and among national systems.
This workshop is expected to lead to development of:
1. An INECE internet-based forum on strategic management with a related
interest in some kind of standing internet-based opportunity for practitioners
to pose open questions in a forum.
2. Guidelines on strategic management of environmental compliance and
enforcement programs.
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Track B: Detecting Noncompliance 47
TRACK B:
DETECTING NONCOMPLIANCE
The workshops in Track B explored issues associated with detecting
noncompliance. It examined the importance of citizen monitoring and reporting,
strategic prioritization models for compliance inspections in different regulatory
environments, protocols to address conflicts between organizations during events
requiring collection and maintenance of forensics evidence, and techniques used
to improve environmental inspections and investigations.
IB CITIZEN MONITORING AND REPORTING
Facilitators: Antonio Oposa, The Law of Nature Foundation, The Philippines
Daniel Taillant, Center for Human Rights and the Environment,
Argentina
Alex Wang, Natural Resources Defense Council, China
Rapporteur: Davis Jones, Environmental Protection Agency, United States
BACKGROUND
Because governmental resources for inspections and monitoring are limited,
citizens can play an important role in detecting and reporting noncompliance.
Citizens may be better placed to observe violations in their community and have
greater motivation to protect their own community. In some circumstances, the
direct involvement of citizens may lead to quicker changes in behavior by the
regulated community who may be more responsive to neighbors' complaints and
the resulting publicity than to a distant government ministry. Many regulatory
enforcement agencies are facilitating citizen monitoring and creating tools for
citizens to effectively report potential violations. However, mechanisms for public
access to information and access to justice, either through responsive government
enforcement or direct access to courts, are vital for citizen enforcement efforts to
be effective.
THE WORKSHOP DISCUSSION
The facilitators began by introducing three examples of effective citizen
monitoring and reporting. The first example was a simple, personal account of
a father reporting a speeding driver to the driver's boss, who then reprimanded
the chauffeur and changed his behavior, with no police intervention whatsoever.
The second example was the citizen's environmental violation hotline in China,
which provides citizens with a way to directly report possible violations to the
government. The third example, from the Philippines, served to demonstrate how
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48 Eighth International Conference on Environmental Compliance and Enforcement 2008
local mayors can be motivated to improve compliance if informed of the problems
in their community in a proactive manner.
For citizens to effectively monitor compliance, they must have a right to
information. Effective use of information on pollutant releases and/or
noncompliance can help with citizen enforcement actions, but can also motivate
companies to change their behavior to reduce the public stigma associated with
public disclosure of polluting activities. Sometimes, information collected for one
reason can effectively be used for other objectives through public disclosure of the
information. However, public disclosure is not effective in countries where people
value the "outlaw" or "renegade," and shaming through the press has little effect.
Governments should design strategies to educate the citizens about the available
information, publish relevant information in an accessible and readable manner,
and engage citizens in the use of such information.
Tools such as telephone hotlines or internet-based complaint systems are useful to
get information to the government. However, feedback mechanisms should exist
so the complainant can see the response, and compel action by the government if
necessary. Public reporting can be problematic when an uneducated population
doesn't know how to report or doesn't understand compliance issues. For example,
public complaints may be in response to illegal activities, or they may be the result
of a desire to stop a legal activity they do not like or want, e.g. complaining about
a necessary but unwelcome landfill. Citizens have filed nuisance reports and
companies have reported on competitors in order to hamper production. In some
cases, complainants may be seen as an enemy by governments because they are
showing shortcomings of government activities. In some countries, such as South
Africa, the Philippines, and the United States, the law, in certain circumstances,
allows informants to be rewarded with a share of the resulting penalty.
Effective citizen monitoring programs require people to be educated about
environmental issues and the law. This begins with integrating environmental
education into schools and professional sectors. Both domestic and international
nongovernmental organizations (NGOs) can play an effective role, and sometimes
may need to pool forces so legal NGOs can help guide environmental NGOs in
their legal rights and limits. The Center for Legal Assistance to Pollution Victims
in China does so by training NGOs on environmental law and taking suits where
the government fails to act.
Citizen suit provisions can help ensure that laws are enforced when government
agencies fail to enforce the law. Individual domestic laws as well as international
agreements may provide these authorities in many countries. These laws should
be coupled with "anti-slap" rules that protect the plaintiff from countersuits,
claims for libel, or intimidation.
The Secretariat of the Asian Environmental Compliance and Enforcement Network
completed a toolkit on public disclosure based on experiences in Asia. They also
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Track B: Detecting Noncompliance 49
evaluated the effectiveness of the Chinese Complaint Hotline and created a manual
for nationwide implementation. Those can be shared widely through the network
and expanded along with other best practice guidelines.
THE OUTCOMES
INECE should promote basic steps needed for effective citizen monitoring and
reporting. INECE can share case studies and document examples from different
countries where citizen monitoring and reporting have been effective. They could
share citizen suit provisions from different statutes in different countries, and
could work with partners to distribute national and international standards for
access to information. A network should exist to promote the issues, share contact
information with different country experts, and help raise funds for additional
training.
2B STRATEGIC TARGETING OF INSPECTIONS
Facilitators: Manon Bombardier, Environmental Enforcement Division,
Environment Canada
Frances Craigie, Gauteng Department of Agriculture, Conservation
and Environment, South Africa
Luc Lebel, Environmental Enforcement Division, Environment
Canada
Rapporteur: Tony Liebregts, Ministry of Housing, Spatial Planning and the
Environment, The Netherlands
BACKGROUND
Many countries have strategic prioritization models for compliance inspections.
Prioritizing inspections is important in order to efficiently allocate resources in a
way that reflects societal goals and objectives. These programs vary widely and
are based on a number of different factors, which may be regional and context
specific. What can one learn by examining the different methods and criteria used
by governments to develop inspection priorities?
THE WORKSHOP DISCUSSION
This workshop explored strategic prioritizing models for compliance inspections
in Canada (Environment Canada) and South Africa (Gauteng Department of
Agriculture, Conservation and Environment). The facilitators outlined the
workshop objectives as:
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50 Eighth International Conference on Environmental Compliance and Enforcement 2008
• Providing a forum for dialogue among INECE participants to exchange
information, knowledge, and experience on approaches currently being used
or developed for targeting inspections.
• Developing a "toolbox" and identifying the key lessons learned and barriers
in implementing each tool. The toolbox would allow compliance and
enforcement practitioners working in newly established programs to make use
of approaches/methodologies developed by others and transfer them to their
own country.
The discussions led to an overview of available tools and recommendations to
INECE for facilitating further development of prioritizing tools. Participants
identified approaches to developing tools both across sectors or regulations and
within given sectors.
Examples of tools across sectors or regulations included:
• Matrix based on a number of criteria including risk, compliance rate, expert
support:
o Prioritizing across a variety of sectors/regulations;
o Tiered approach (national priorities, collateral, regional focus).
• Intelligence led (watch list approach).
• Financial benefits for noncompliance.
• IMPEL guidance book for planning of environmental inspections.
Examples of tools within a given sector included:
• Risk-based scoring system against list of criteria.
• Intelligence-led targeting.
• Partnerships with other agencies and other authorities such as customs and
police.
THE OUTCOMES
A specific recommendation for INECE is to create an area on the INECE website
to share information, good practices, and experiences on the issue of strategic
targeting of inspections.
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Track B: Detecting Noncompliance 51
3B EVIDENCE GATHERING AND PRESERVATION
Facilitators: Andy Lauterback, Environmental Protection Agency, United
States
Mark Measer, Environmental Protection Agency, United States
Phil Snijman, Consultant, South Africa
Rapporteur: Gene Lubieniecki, Environmental Protection Agency, United
States
BACKGROUND
Conflicts often exist between organizations involved in incidents that require
collection and maintenance of forensics samples. For instance, during emergencies,
the actions of first responders may compromise and/or destroy evidence. Likewise,
during crimes involving living organisms, transfer or shipment of the organisms
can often create conflict and expense.
THE WORKSHOP DISCUSSION
The workshop discussed protocols to address conflicts between organizations
during events requiring collection and maintenance of forensics evidence.
Participants discussed the balance and competing interests between the various
responsible organizations involved in emergency response, and crimes involving
living (and dead) wildlife. Many examples of actual conflicts were discussed.
Success stories, where there was excellent cooperation resulting in conviction,
were also shared.
THE OUTCOMES
The following protocols/concepts were suggested as ways to address these
conflicts: safety comes first; the "police" control crime scenes; train emergency
responders regarding forensics needs; have prosecutors present on-scene; have
enforcement officers also be the emergency response personnel (cross designation);
develop effective communications between potentially responsible parties; have
memorandums of understandings outlining responsibilities; and conduct exercises
to test protocol. Participants recommended that INECE promote these and other
best practices in its training materials and in relevant publications.
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52 Eighth International Conference on Environmental Compliance and Enforcement 2008
4B REMOTE SENSING AND OTHER TECHNOLOGICAL DEVELOPMENTS
TO AID ENVIRONMENTAL COMPLIANCE
Facilitators: Richard Charette, Environment Canada
Troy Ceilings, Department of Natural Resources & Water,
Australia
Gene Lubieniecki, Environmental Protection Agency, United
States
Rapporteur: Tim Whitehouse, INECE Secretariat
BACKGROUND
Many techniques can improve environmental inspections and investigations. A
number of tools are necessary to ensure that evidence is gathered and analyzed
properly. These tools can be simple, low cost, and easy to use; or they can be
expensive, involve complicated technologies and require trained personnel to
operate.
THE WORKSHOP DISCUSSION
Workshop discussions focused on a number of techniques for detecting violations
and analyzing information. The workshop facilitators provided examples of
techniques and tools they use in inspections and investigations for both pollution
control and remediation issues as well as wildlife and habitat protection.
Remote sensing is a powerful tool for monitoring the compliance status of
regulated entities and gathering evidence for enforcement case development.
Remote sensing can involve relatively simple activities such as visual observations,
as well as the use of sophisticated technologies such as satellite imagery. The use
of remote sensing in any particular situation is dictated by numerous factors
including available technologies, resources, and time.
In addition to visual observations and satellite imagery, the use of magnetometers,
infrared cameras, and remote sensing techniques were also presented and
discussed. In addition, methods such as the use of bullhorns, dyes, and smoke to
identify the discharge points of illegal wastewater discharges were discussed.
THE OUTCOMES
Some of the outcomes of the discussions were that INECE should:
1. Explore ways to facilitate the sharing of information on technology used to
collect enforcement evidence.
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Track B: Detecting Noncompliance 53
2. Continue to build networks between individuals and organizations,
particularly in terms of identifying needs and assisting in the development of
needs assessments.
3. Develop a reference library targeted to appropriate programmatic areas.
4. Look for ways to facilitate the equipment exchange.
5. Provide a forum to pose questions/get answers on technology issues.
6. Share strategies to show how technologies will allow inspectors to do more
with less. This can act to justify spending the money upfront on technology.
5B COORDINATION AMONG INSPECTORS, POLICE AND PROSECUTORS
Facilitators: John Cruden, Department of Justice, United States
Rene Craemer, The Netherlands
Prof. Jacobus de Ridder, University of Groningen, The
Netherlands
Rapporteur: Peter Murtha, Environmental Protection Agency, United States
BACKGROUND
Effective coordination among inspectors, police, and prosecutors is a critical
component of any enforcement and compliance program. All countries face a
number of challenges in developing and maintaining this effective coordination.
A wide body of experiences and practices now exist which can help minimize
potential pitfalls and improve communication and coordination among officers
and prosecutors in the preparation and management of court cases.
THE WORKSHOP DISCUSSION
This workshop discussion focused on minimizing potential pitfalls and offering
suggestions for improving the communication and team effort between officers
and prosecutors in the preparation of environmental cases.
John Cruden set the stage by offering a chart designed to provide common
enforcement terminology to help provide clarity to the workshop.
Rene Craemer provided an in-depth description of recent (i.e., 2005) changes in
the Dutch environmental crimes enforcement structure under which 19 Public
Prosecutor's Offices were consolidated into a single national office in which the
Public Prosecutor had authority over the inspectors in all agencies relevant to the
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54 Eighth International Conference on Environmental Compliance and Enforcement 2008
environment (broadly defined to include pollution, wildlife, livestock, marine,
water use, etc.). Rene pointed out that there are now 420 specialized environmental
detectives at the national level dedicated to the investigation of all environmental
crimes. Rene's experience has been that, although the system is imperfect, it
nonetheless offers a high degree of coordination and communication and clear
lines of authority. In particular, the Public Prosecutor is empowered to determine
which cases are pursued criminally and those to be subject to administrative action,
and is also authorized to select which priorities to investigate and prosecute. One
particular emerging trend from the new system is a focus on criminal networks
and associated individuals.
Professor Jacobus de Ridder provided a framework for assessing the areas
of potential conflict among prosecutors, police, and inspectors at the nexus
between: (1) agency vs. agency; (2) administrative vs. criminal; (3) enforcement vs.
prosecution; and (4) all enforcement mechanisms vs. the judiciary. The possibility
of friction was discussed from both structural and cultural perspectives.
THE OUTCOMES
Although no specific outcomes were suggested for INECE, the lively discussion
that ensued demonstrated that although many potential areas of potential friction,
miscommunication, and dysfunction exist, there are many mechanisms that help
to overcome these obstacles and lead to successful and mutually satisfactory
enforcement outcomes.
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Track C: Transboundary Compliance and Enforcement 55
TRACK C:
TRANSBOUNDARY COMPLIANCE AND ENFORCEMENT
This Track examined a number of environmental issues that require countries to
increase their transboundary compliance and enforcement cooperation efforts.
The facilitated workshops examined a project to improve cooperation between
seaports on monitoring hazardous waste shipments; ways governments and
organizations can improve compliance monitoring and enforcement responses
against the transboundary movement of environmentally detrimental goods;
methods of detecting and responding to vessel pollution; and the importance of
developing meaningful ways for countries to cooperate on transboundary water
issues.
1C SEAPORT SECURITY NETWORK
Facilitators: Robert Heiss, Environmental Protection Agency, United States
Nancy Isarin, Ambiendura, Portugal
Henk Ruessink, Ministry of Housing, Spatial Planning and the
Environment, The Netherlands
Rapporteur: Mark Measer, Environmental Protection Agency, United States
BACKGROUND
The Seaport Security Network was established as an outcome to the 7th
International Conference for Environmental Compliance and Enforcement.
This network is currently in its planning stages. It will seek to facilitate capacity
building and compliance cooperation on issues associated with the trade in
environmentally sensitive commodities at seaports. It will focus initially on the
transboundary movement of wastes, but could eventually be expanded to other
topics such as chemicals and smuggled wildlife.
THE WORKSHOP DISCUSSION
The facilitators outlined the goals of the project as preventing illegal movements of
waste by promoting compliance, fostering national and international collaboration,
and offering support to field inspectors.
The facilitators noted that three years ago, a project led by the European Union
Network for the Implementation and Enforcement of Environmental Law (IMPEL)
identified a 48% non-compliant rate for exports as part of a targeted inspection
effort at specific ports. The facilitators and some participants expressed a concern
that similar compliance problems may exist worldwide. Some participants were
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56 Eighth International Conference on Environmental Compliance and Enforcement 2008
concerned that only anecdotal evidence existed on the severity of the global
compliance problems, while others expressed concerns that developing countries
lack the resources and capacity to identify and deal with non-compliant imports,
and that developed countries do not properly track and monitor exports. A lively
discussion ensued, during which participants agreed that the issue of exporting
and importing non-compliant goods has multiple causes and will require multiple
solutions. Further, many participants noted that many of the solutions to these
problems lay outside the realm of law enforcement.
THE OUTCOMES
The group proposed a "kick-off" meeting of the INECE Seaport Project to
identify strategies and deliverables (e.g. manuals, toolkits) which could improve
compliance monitoring and enforcement responses. Participants recommended
that the meeting include representatives from exporting and importing countries,
that INECE invite the participation of customs agents, and that members of the
Seaport Project seek to identify the minimal capacity necessary that developing
countries would require to become effective partners.
The group proposed that the facilitators work with interested conference attendees
to develop a rough draft of next steps by the conclusion of the 8th International
Conference. These next steps may include developing a strategic plan that defines
the magnitude of the problem, summarizes existing efforts, and proposes a
strategic approach involving not only port inspections, but other techniques and
initiatives that could address problems associated with illegal hazardous waste
shipments. The next steps document will be posted online at http://inece.org/
seaport.
2C TRANSBOUNDARY WATER COOPERATION
Facilitators: Maria Comino, Department of Water and Energy, Australia
Alejandro Iza, IUCN Commission of Environmental Law
Laura Yoshii, Environmental Protection Agency, United States
Rapporteur: Meredith Reeves, Earthpace, LLC
BACKGROUND
Water governance can occur at global, basin, national, and local levels. The
1997 Convention on the Protection and Use of Transboundary Watercourses
and International Lakes is an example of an international agreement that is
intended to strengthen national measures for the protection and management
of transboundary surface and ground waters. The World Water Council is an
example of an international institution whose purpose is to promote awareness,
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Track C: Transboundary Compliance and Enforcement 57
build political commitment, trigger action on critical water issues at all levels,
and to facilitate sustainable, efficient management and use of water. Examples
of regional political efforts to support transboundary water cooperation include:
the European Union's 2000 Water Framework Directive, Southern African
Development Community (Shared Waters Protocol), United Nations Economic
Commission for Europe's 1992 Helsinki Convention. Examples of basin-wide
approaches are found in the Mekong, Indus, Senegal, Plata, Amazon, Danube, and
Rhine. By far the most common governance approaches are found at the national
and local levels.
THE WORKSHOP DISCUSSION
The workshop discussion focused on a number of on-going global activities.
The discussions were focused on the level of formalization in the international
mechanisms for transboundary water cooperation.
Some critical questions when evaluating international efforts are:
• Is there a formalized legal arrangement in place (convention, treaty, protocol)?
• How is this legal arrangement being implemented?
• What are the constraints for the deficient implementation of these
arrangements?
• What can be done to enhance the implementation in terms of public
participation, access to decision-making, information, and other mechanisms?
• What is the role of States in facilitating the implementation of the legal
arrangements at the basin level? Individually, as well as collectively vis-a-vis
other basin States?
What indicators can be used to evaluate the effectiveness of national and sub-
national requirements to implement transboundary water agreements?
During the discussion, Meredith Reeves shared the initial outcomes of a
pilot water quality legislation survey, developed jointly by INECE, Columbia
University's Center for Earth Science Information Network, and the Yale Center for
Environmental Law and Policy. Using indicators, the survey asked environmental
law professionals in 53 countries to describe the laws, resources, and activities used
to assure compliance with water quality and water management requirements.
THE OUTCOMES
One of the outcomes suggested by the workshop participants was the
establishment of a collaborative process with the International Union for
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58 Eighth International Conference on Environmental Compliance and Enforcement 2008
Conservation of Nature Environmental Law Programme (IUCN Commission on
Environmental Law and IUCN Environmental Law Centre). This partnership
could be formalized in a Memorandum of Understanding between INECE and the
IUCN Environmental Law Programme.
This initial phase of this collaboration could lead to the establishment of a
discussion platform tentatively entitled "Making Water Law Work," which will
look at water law and governance implementation at the transboundary level.
3C TRANSBOUNDARY MOVEMENTS OF ENVIRONMENTALLY DETRI-
MENTAL GOODS
Facilitators: Arwyn Jones, Environment Agency of England and Wales
Walker Smith, Environmental Protection Agency, United States
Cora Steffens, Province North-Brabant, The Netherlands
Rapporteur: Terry Shears, Environment Agency of England and Wales
BACKGROUND
Most countries have government agencies responsible for ensuring that
imported products comply with domestic environmental laws. These laws
can regulate products from pesticides to motor engines to refrigerants. Critical
to any successful monitoring program is understanding and targeting actions
based on risk, and developing cooperative mechanisms between public health,
environmental, and customs agencies.
THE WORKSHOP DISCUSSION
The group looked at the challenges faced in regulating the international imports
and exports of goods. These challenges include:
• The number of stakeholders.
• The volume of exports/imports.
• Difficulty in defining waste versus products.
• Soliciting cooperation between all regulatory authorities.
• Defining the supply chain so that you know where best to intervene.
The group discussed the types of actions currently undertaken to ensure that
goods in commerce meet the appropriate environmental standards. These actions
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Track C: Transboundary Compliance and Enforcement 59
range from traditional enforcement activities to market-based interventions such
as processes, standards, and working with suppliers and retailers.
Finally, the group discussed what is needed to undertake other actions, such as
how to properly identify risks and underlying problems in order to define the full
range of possible activities and interventions.
THE OUTCOMES
Potential future action was discussed. This could include the use of new
technology, such as the use of electronic tagging and forensics, to track waste
and improving the flow of information by involving other organizations such as
IMPEL. There was a question over whether we needed 'real-time' monitoring of
movements and a discussion over the possible use of task forces. There should
be better alerts between countries and also use of single window technology.
There was a need for capacity building, including the level and type. Cultural
differences between customs officers and regulators also should be recognized and
tackled.
4C ACTIONS AGAINST TRANSBOUNDARY MOVEMENTS OF
HAZARDOUS MATERIALS
Facilitators: Gustavo Alanis, Centre Mexicano de Derecho Ambiental, Mexico
Marta Szigeti Bonifert, Regional Environmental Center, Hungary
Mihail Dimovski, Regional Environmental Center for Central and
Eastern Europe
Jenny van Houten, Ministry of Housing, Spatial Planning and the
Environment, The Netherlands
Peter Murtha, Environmental Protection Agency, United States
Rapporteur: Robert Heiss, Environmental Protection Agency, United States
BACKGROUND
The proper management of hazardous waste is an important human health and
environmental issue. Companies that trade waste across borders for disposal
and recycling must generally follow reporting, shipping, and record-keeping
procedures. Domestic laws and international agreements dictate these procedures.
Close compliance and enforcement cooperation between countries is necessary
because the incentives to illegally dispose of hazardous waste are often high and
because improperly managed hazardous wastes can harm human health and the
environment.
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60 Eighth International Conference on Environmental Compliance and Enforcement 2008
THE WORKSHOP DISCUSSION
The facilitators presented the following workshop goals and questions:
• What lessons were learned from the actions taken, including common elements
of success, obstacles overcome, and structural limitations that needed to be
dealt with?
• What positive steps can be taken to improve the effectiveness of actions in the
future?
Key points guiding the discussion were:
• The definition of hazardous material for varies by country.
• There is a need to determine the scope and extent of transboundary movement
of hazardous waste to assess the severity of the problem, but this requires
adequate data.
• Customs and environmental officials need to agree on the types of information
is needed to be shared among international partners for successful prosecution
of a case.
• Officials also should assess, to the extent possible, the incentives for exporters
to ship illegally rather than to handle the waste domestically.
A number of cases and situations were discussed during this workshop. These
included the towing of a vessel contaminated with PCBs and other wastes from
France to Turkey for ship scrapping; the illegal dumping of municipal waste
from Germany on farms in the Czech Republic and Hungary; the shipment of
powdered milk contaminated with radionuclides that moved from the Ukraine to
Greece and was denied entry to Macedonia for six months; and the illegal export
of hazardous waste from the United States that was claimed to be product to a
fictitious purchaser in Nigeria.
THE OUTCOMES
Participants of this workshop recommended that INECE and its partners consider
developing one or more of the following products:
1. Universal targeting standards to guide the inspection of containers that may be
involved in illegal transboundary shipments.
2. A compendium of relevant penalty policies and examples of fines and penalties
collected in various cases, which could be presented in courts to promote the
assessment of adequate penalties.
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Track C: Transboundary Compliance and Enforcement 61
3. A flyer or other promotional material that advocates for naming responsible
persons following the successful prosecution of criminal cases involving illegal
shipments, and presents other communication strategies that can help limit
transboundary movement of hazardous materials.
5C VESSEL POLLUTION
Facilitators: Ross Galbraith, Environment Canada
Stacey Mitchell, United States Department of Justice
Rapporteur: Susan Bromm, Environmental Protection Agency, United States
BACKGROUND
The International Convention for the Prevention of Pollution from Ships
(MARPOL) Annex I deals with oil pollution from vessels. Specifically, it mandates
that ocean vehicles may not discharge oily water at sea without running it through
their pollution prevention equipment and attaining a level of less than 15 parts
per million oil. Noncompliance with this requirement appears to be widespread
and has resulted in significant, demonstrably adverse environmental impacts.
This workshop explored how international cooperation might lead to better
detection and enforcement of MARPOL Annex 1 and examined domestic tools and
techniques that have been effective in addressing noncompliance.
THE WORKSHOP DISCUSSION
It is estimated that illegal bypass discharges from ocean going vessels result in 90
percent of oil discharges to oceans. A 2002 OECD study estimated that the annual
quantity discharged amounts up to eight times the discharge from the Exxon
Valdez. Efforts by the US to enforce the requirements reveal that most cases share
the common elements of deliberate discharge of tons of oil, intentional bypassing
of pollution equipment, and falsification of records/log books.
Stacey Mitchell presented a case study to highlight the importance of international
cooperation in the detection and prosecution of violations of MARPOL Annex
I. In addition, it was noted that Interpol's Pollution Crimes Working Group has
developed an Investigation Manual on Oil Discharges from Vessels. The Manual
provides both a basic tool to aid inexperienced inspectors in the inspection and
detection process and also offers more sophisticated tools for more experienced
inspectors. The manual can be obtained online through a country's Interpol
National Central Bureau. Interpol is currently seeking funding for international
training to enhance enforcement of MARPOL.
Ross Galbraith discussed Canada's development of a sophisticated satellite radar
detection system. Canada built this program on the foundation established by
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62 Eighth International Conference on Environmental Compliance and Enforcement 2008
its ice program. Canada's program, called the Integrated Satellite Tracking of Oil
Pollution (ISTOP) is now using a second-generation system - RADARSAT-2 - that
is higher tech and provides better resolution imagery. Canadian courts currently
require a visual confirmation of the satellite image, but perhaps this won't be
necessary as the satellite imagery and chain of custody methodology improve.
Canada is now optimistic that with the passage of new domestic legislation,
enhanced detection capability using ISTOP and other tools, and an enforcement
memorandum of understanding with the Canadian Department of Transportation,
combined with Oil Record Book forensics and the Interpol investigation manual,
compliance can be greatly improved.
Interpol's analysis showed that worldwide noncompliance was high and that oil
pollution was coming from all kinds of vessels. Interpol's strategy is to target
fleets with large numbers of vessels. The US is also giving priority to cases that
involve multiple violations within a single fleet.
THE OUTCOMES
The workshop resulted in a number of recommendations for INECE:
1. INECE should strengthen its ties with Interpol, who in turn coordinates with
the International Maritime Organization.
2. Interpol's Ecomessage - a system for governments to report major
environmental crimes — has been used successfully in many cases, and INECE
should continue to promote its use (see http://inece.org/topics/crimes/).
3. INECE should look into training inspectors on vessel pollution as part of its
train-the-trainers network and should evaluate how best to support Interpol's
training efforts.
4. INECE should survey domestic legislation for the implementation of MARPOL
Annex I and survey capacity trends for oil pumpout facilities at ports. There
is anecdotal information that pumping facilities have closed at some ports.
If accurate, this is a troubling trend as it may be indicative of the effects of
widespread noncompliance (i.e., pumping stations are not being fully utilized
because of illegal at-sea discharges, causing the pumping stations to no longer
be financially viable and resulting in their closure.
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Track D: Biodiversity, Ecosystems, and Enforcement 63
TRACK D:
BIODIVERSITY, ECOSYSTEMS, AND ENFORCEMENT
During the workshops in Track D, facilitators and participants sought to identify
practical actions to improve the implementation and enforcement of regulations
related to the protection of biodiversity. The Track paid particular attention to how
improper implementation of biodiversity regulations also can affect related areas
of environmental policy, including those of ecosystem goods and services and
adaptation to and mitigation of climate change.
As part of the activities of this Track, Conference participants were invited to a
screening of "Ivory Poaching Wars," a BBC documentary on illegally taken
elephant ivory. The film underscored a further theme of this Track; the increased
involvement of sophisticated organized crime in ecosystem destruction and
the critical role that enforcement cooperation plays in protecting the wildlife
populations being destroyed by poaching and illegal trade.
ID PROTECTED AREAS
Facilitators: Prof. Rudi van Aarde, University of Pretoria, South Africa
Jason Bell, International Fund for Animal Welfare
Rapporteur: Pirn Kapitein, Ministry of Agriculture, Nature and Food Quality,
The Netherlands
BACKGROUND
Biologists and ecologists have long acknowledged the benefits of large protected
areas that provide necessary rangeland for species based on biological needs,
rather than on national boundaries. However, challenges, including the availability
of usable land and the need for inter-jurisdictional cooperation, have created
barriers to their development. This workshop critically evaluated the expanding
range of wildlife conservation areas across international boundaries, such as
'mega parks' in Africa, and focused particularly on the enforcement challenges of
transboundary protected area management.
THE WORKSHOP DISCUSSION
Participants agreed that current conservation models need more dimensions,
encompassing social, economic, and legal considerations. These models also need
to account for the political realities of the areas and recognize the role for methods
to engage local communities.
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64 Eighth International Conference on Environmental Compliance and Enforcement 2008
THE OUTCOMES
The conclusions were that enforcement needed to be constantly brought on
the conservation agenda and that this needed to be accomplished through
working in partnerships. It was suggested that INECE could promote regional
treaties to facilitate enforcement of violations of laws that occurred across
borders. In bringing this on the agenda, INECE should approach the Convention
on International Trade in Endangered Species of Wild Flora and Fauna and
Convention on Migratory Species secretariats to develop common areas of
cooperation.
2D SYNERGIES AMONG BIODIVERSITY-RELATED MULTILATERAL
ENVIRONMENTAL AGREEMENTS
Facilitators: Elizabeth Mrema, United Nations Environment Programme
Christine Akello, National Environment Management Authority,
Uganda
Rapporteur: Gustavo Alanis, President, Centre Mexicano de Derecho
Ambiental, Mexico
BACKGROUND
Synergies among multilateral environmental agreements (MEAs) are possible at
the international, regional, national, and local levels. This workshop examined
approaches to identifying and leveraging synergies among biodiversity-related
MEAs and, on the basis of lessons learned, suggest practical ways for further
encouraging synergies, with a focus on national level compliance.
THE WORKSHOP DISCUSSION
Much of the discussion revolved around the need to have partnerships for
biodiversity conservation, taking into account water resources management,
climate change, and the Millennium Development Goals. The United Nations
Environment Program (UNEP) was identified as a key partner in that regard.
Some of the specific strategies discussed included working together in the Green
Customs initiative, coordination among the national focal points of the biodiversity
MEAs, sharing performance indicators, and harmonizing and simplifying reports.
Another important topic during the dialogue included the financial challenges
associated with protecting biodiversity, including the need to balance the
environment and conservation practices with social needs and property rights.
Additionally, the relationship between biodiversity and climate change and,
especially desertification, was discussed as an important area to address in MEAs.
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Track D: Biodiversity, Ecosystems, and Enforcement 65
THE OUTCOMES
There was agreement with respect to the following propositions:
1. There is a need to strengthen laws and policies related to biodiversity protection
and preservation. Additional effort is necessary in order for international
agreements to be properly implemented at the national level, particularly with
regards to institutional arrangements for compliance assurance and cooperation
among national focal points.
2. Enforcing national requirements designed to implement biodiversity-related
MEAs is a complex process, requiring enforcement officials with expertise
in compliance methods and in information management. INECE and its
partners should help promote and strengthen capacity building resources
for implementing MEAs, particularly in matters related to environmental
management and enforcement. A compilation of best practices and further
guidance on compliance with MEAs may assist this effort (see http://www.
unep.org/dec/onlinemanual/).
3. Similarly, inspectors must be well-trained and well-paid and operating
under a strong institution. INECE and its partners should help promote and
strengthen capacity building resources for compliance inspections related to
the implementation of biodiversity MEAs.
4. In implementing biodiversity-related MEAs, it is essential that matters related
to poverty and its relationship to the environment (including environmental
degradation) and development be appropriately taken into account. Similarly,
human rights treaties must be taken into account.
5. The relationship between biodiversity, climate change, and desertification has
to be taken into account.
6. The United Nations Development Programme may be a potential partner in
promoting biodiversity, particularly the area of Small Grant Projects/micro
projects related to water pollution, ecotourism, waste management, and
ecotoilets.
3D WILDLIFE LAW ENFORCEMENT
Facilitators: Bill Clark, Nature and Parks Authority, Israel
Stephen Kisamo, Lusaka Agreement Task Force, Kenya
Jacques du Toit, Gauteng Dept. of Agriculture, Conservation, and
Environment, South Africa
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66 Eighth International Conference on Environmental Compliance and Enforcement 2008
Rapporteur: Frances Craigie, Gauteng Dept. of Agriculture, Conservation, and
Environment
BACKGROUND
Growing demand for wildlife - live specimens and their products or derivatives
- feeds illegal trade. This workshop explored how the globalization of illegal
wildlife crime has attracted the attention of organized crime. Incorporating both
a global and African perspective, the workshop discussed suggestions for effective
cooperative efforts to suppress this expanding criminal activity.
THE WORKSHOP DISCUSSION
The workshop began with a talk by a ranger from Kenya who gave a personal
account of a situation in which several of his fellow Kenyan rangers were
attacked and killed by poachers during an operation. He provided insight into
the difficulties faced on a daily basis by these officials. This was followed by a
presentation by the facilitators of their work and recommendations for improving
wildlife law enforcement.
THE OUTCOMES
The recommendations that resulted from both the facilitators' presentations and
the contributions of the participants were the following:
1. Training.
o Training for wildlife enforcement officers needs to be focused on the correct
individuals.
o Authorities need to look at programs that include a train-the-trainer
component.
o Authorities should assess training programs of other enforcement agencies
that are involved in investigation of wildlife crimes.
2. Raising awareness.
o Examples of products of the various CITES species should be made available
for awareness training and use by investigators so that officials involved in
these matters are able to recognize these products.
o Existing manuals and guidelines should be loaded onto the INECE website
to ensure that these resources are shared.
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Track D: Biodiversity, Ecosystems, and Enforcement 67
3. Online information tools.
o Verdicts and prosecutor arguments.
o Smuggling techniques.
o Species product layout.
4. Media.
o There is a need to make use of the media raise awareness of the significant
impact that wildlife crime (although we need to be careful about focusing
on the value of the products as this could fuel the illegal trade).
5. Research.
o Encourage nongovernmental organizations to include a diversity of species
that are being targeted for illegal trade (such as reptiles) in their campaigns,
so that more research can be done internationally and attention and
resources can also be diverted to these species.
6. Use of existing enforcement structures.
o More countries in Africa should get involved in the structures created for co-
operation by the Lusaka Agreement and the work of the Lusaka Agreement
Task Force.
o More parties need to be involved in the Interpol Wildlife Working Group
and make use of the Interpol Ecomessage system.
4D MARINE ENFORCEMENT: CASE STUDY ON INCONSISTENCIES AND
CONSEQUENCES AMONG MULTILATERAL AGREEMENTS ON WHALING
Facilitators: Ambassador Alberto Szekely, Mexico
Stacey Mitchell, Department of Justice, United States
Rapporteur: Ross Galbraith, Environment Canada
BACKGROUND
Despite efforts to advance the international environmental conservation agenda,
as articulated formatively in the 1987 Brundtland Report entitled 'Our Common
Future,' and latterly through other international conservation mechanisms such
as the 1992 Earth Summit in Rio de Janeiro, it is apparent that a 'gradualism'
approach to environmental conservation at global scale has not been as effective in
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68 Eighth International Conference on Environmental Compliance and Enforcement 2008
producing the type of anticipated concrete results which many proponents of such
an approach had originally foreseen.
THE WORKSHOP DISCUSSION
In 2008, we still face extremely significant challenges vis-a-vis achieving
substantive progress on a number of critically important environmental issues;
notwithstanding the notable success of certain international efforts, such as the
reduction of ozone depleting substances pursuant to the 1987 Montreal Protocol.
For example, the UN Framework Convention on Climate Change and the Kyoto
Protocol have not succeeded in marshalling the necessary international support
required to adequately address the key issue of mitigating highly elevated levels
of greenhouse gas emissions which increasingly threaten natural, social and
economic capital vectors at global scale.
This has led to the suggestion that international environmental law is failing to
fulfill its anticipated and intended role as an effective vehicle of ensuring that
the environmental security of future generations is adequately protected. One
such example of the failure of our international environmental law to adequately
mitigate such risks is inherent in the performance of the International Convention
on the Regulation of Whaling; a convention which operates under the auspices
of the International Whaling Commission. Since the 1986 International Whaling
Commission declaration of a moratorium on commercial whaling, Japan is
perceived to have defied and/or marginalized the overarching conservation
principle of the International Convention on the Regulation of Whaling by
continuing to commercially harvest whales under the scientific research provision
in International Convention on the Regulation of Whaling Article 8.
Some consider that Japan's activities in this regard constitute a subversion of
international diplomacy. Unlike the Convention on the International Trade in
Endangered Species, within which environmental non-governmental organizations
play an active and robust role, the International Whaling Commission is not such
a forum within which environmental non-governmental organizations have the
opportunity to participate other than in the capacity of (non-voting) observers.
Many would argue that this inability of environmental non-governmental
organizations to substantively engage the International Whaling Commission
decision-making process represents a serious impediment to the achievement of its
stated goals. This view was reinforced in a report sponsored by the International
Fund for Animal Welfare and published in 2006 by a panel of independent
international law experts.
THE OUTCOMES
There is a current need to strengthen the integrity of international environmental
conventions that operate in an overly political fashion. Empowering environmental
non-governmental organization may be the only viable remedy to counter-balance
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Track D: Biodiversity, Ecosystems, and Enforcement 69
the lack of resolve of certain governments in this regard. Inherent in the process of
environmental non-governmental organization empowerment is the requirement
for more effective access to the global media. INECE could foster this process
by supporting the preparation of a report on the overall effectiveness of our
international environmental conventions. Given that it is not mandated to act as
an advocacy organization, one of the highest value contributions that INECE could
make would be to provide impartial feedback with respect to which international
environmental conventions are deemed to be working well in achieving their
stated goals; and, conversely, which are not.
5D HABITAT DESTRUCTION AND REHABILITATION
Facilitators: James Isiche, International Fund for Animal Welfare, Kenya
Julius Kipng'etich, Kenya Wildlife Service
Rapporteur: Tim Whitehouse, INECE Secretariat
BACKGROUND
Meru National Park is located 370 kilometers from Nairobi. It is the third largest
wildlife conservation area and elephant habitat in Kenya. It became part of the
National Park System in 1967. In the mid-1970s and 1980s, heavily armed gangs
of poachers invaded the park. They nearly wiped out all the wildlife and attacked
tourist vehicles. The park's elephant population, for example, plummeted from
over 3,000 to a mere 251. Rangers were poorly equipped and some were killed.
Tourists stopped coming to the park. The infrastructure began to fall apart and
Meru continued to be a volatile area until the late 1990s.
THE WORKSHOP DISCUSSION
This workshop examined how successful conservation and management of
a national park is reliant on how well authorities are able to secure its land and
with it, the integrity and long-term viability of the biological resources of the park.
It examined this effort in the context of habitat destruction and rehabilitation in
Meru National Park in Kenya.
In the 1990s, when the Kenyan Wildlife Service decided to try and restore Meru,
only about 2,000 tourists were coming to the Park. The International Fund for
Animal Welfare worked with the service to develop an action plan to restore
Meru. Eventually, IFAW and the service signed a Memorandum of Agreement on
funding and management of the park. The project worked to restore security in
the park, relocate the park headquarters, repair and rehabilitate basic equipment,
purchase field equipment, create tourist facilities, construct fences, develop a 20
year master plan, integrate community activities with wildlife conservation, and
translocate animals into the park.
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A few of the key lessons of this effort are the absolute need for security in order for
other program elements to fall into place, the need for donor support and public/
private/NGO partnerships, and a formal agreement to show the obligation of all
parties.
THE OUTCOMES
A group discussion followed in which participants suggested a number of possible
roles for INECE to play in efforts to support the rule of law in parks around the
world. The suggestions were to:
1. Collaborate with IF AW on creating a list of "paper parks" (parks that exist in
name only) around the world.
2. Look for avenues of cooperation between existing organizations, such as the
international federation of park rangers, in which INECE could help fill a niche
on promoting exchanges and cooperation on law enforcement matters.
3. Invite international community organizations to create partnerships on the
ground and in the field.
4. Examine the concept of buffer areas around parks where development is
restricted but on-going traditional activities are allowed to continue and
evaluate the types of laws and tools exist to support these efforts.
5. INECE can play a role in developing and promoting enforcement models,
particularly those where humans and protected animals are able co-exist in a
protected area, such as in South Africa or Zambia. Examine not only successes
but failures, also.
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Track E: Climate Change and Compliance 71
TRACK E:
CLIMATE CHANGE AND COMPLIANCE
IE NATIONAL MEASURES FOR CLIMATE PROTECTION
Facilitators: Jan van den Heuvel, DCMR Environmental Protection, The
Netherlands
Ken Macken, Environmental Protection Agency, Ireland
Rapporteur: Meredith Reeves, Earthpace, LLC
BACKGROUND
This workshop examined the concepts of mitigation and adaptation, considered
how national targets could be translated into sectoral and local level targets, and
discussed the need to develop measurement tools that deliver reportable and
verifiable results.
THE WORKSHOP DISCUSSION
As national, state, and local governments increasingly adopt laws to control
climate change and promote energy efficiency, particular attention needs to be
given to crafting a sound foundation for the implementation of environmental
compliance with these requirements. To ensure that new climate change policies
will be effective in achieving their intended results, program designers should
assess any new requirement across all stages of the regulatory cycle, including
policy development, drafting legislation and regualations, permitting, compliance
promotion, compliance monitoring, non-compliance response, and program
evaluation.
National emissions reductions targets set at a regional or international level (e.g.,
through the EU Emissions Trading Scheme) could be broken down on a sector-
by-sector basis (e.g., cement, steel) to facilitate implementation, establish a
level playing field among regulated entities, and reduce "leakage" of emissions
to countries with weaker regulations. One of the most critical design aspects
for success in reducing emissions is to develop targets or requirements that are
measurable, reportable, and verifiable.
Participants recognized that, in many countries, there is likely to be significant
overlap between climate change mitigation and adaptation efforts and existing
environmental and energy regulations. Conducting a review of a country's
existing national obligations with respect to climate change may be an
effective way to understand the country's needs and opportunities and may
be a way to demonstrate the types of activities already being undertaken that
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reduce greenhouse gas emissions. However, participants also recognized that
comprehensively assessing existing national obligations could be complex because
there are many variables and differing levels of capability and capacity.
THE OUTCOMES
To support the development of national measures for climate mitigation and
adaptation, INECE could:
1. Develop a pilot project to design an indicator set for an industry sector.
2. Conduct a review of existing national obligations with respect to climate
change, including both binding and non-binding targets.
3. Develop a set of principles regarding the compliance aspects of developing and
implementing systems for national climate change measurement.
4. Ensure that environmental compliance and enforcement theory and practice
are well represented in climate mitigation and adaptation efforts, particularly
those relating to the protection of ecosystems and water resources.
2E TECHNOLOGY TRANSFER AND FINANCIAL ASSISTANCE
Facilitators: Kunihiko Shimada, Ministry of Environment, Japan
Peter Storey, PPL International
Kenneth J. Markowitz, Consultant to the INECE Secretariat;
Senior Counsel, Akin Gump Strauss Hauer & Feld LLP
Rapporteur: Ken Macken, Environmental Protection Agency, Ireland
BACKGROUND
Technology transfer is defined under the UN Framework Convention on Climate
Change as practicable steps by developed country Parties and other developed
Parties included in Annex II "to promote, facilitate and finance, as appropriate,
the transfer of, or access to, environmentally sound technologies and know-how
to other Parties, particularly to developing countries to enable them to implement
the provisions of the Convention." This workshop sought to explore ways that
technology transfer and financial assistance for mitigation of and adaptation to the
impacts of climate change can have a secondary impact of building capacity for
compliance with emissions limits and other climate-related policies.
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Track E: Climate Change and Compliance 73
THE WORKSHOP DISCUSSION
Peter Storey provided a private sector view of what technology transfer means,
emphasizing that it lies at the center of current climate change negotiations. His
view is that doubts concerning the current extent of technology transfer result
mainly from restrictive definitions (and are also possibly partially negotiating
position). He informed the group that last year $3-7 billion worth of investment
had occurred, and emphasized the continued need for private sector funding as
the public sector cannot provide the amounts required.
Ken Markowitz discussed the necessity of ensuring a meaningful level of
technology transfer in order to reach emission reduction goals and environmental
improvement targets. He also raised the issue of inadequate enforcement of
intellectual property rights in recipient countries potentially limiting the transfer
of valuable emissions reduction and clean energy technologies. Building consensus
on how to get new and existing technologies to countries that need them most,
while protecting the financial interests of those exporting the technologies, will
require significant creativity and compromise.
Kunihiko Shimada suggested that a critical need is to be able to measure
compliance against the requirements of the three key articles in United Nations
Framework Convention on Climate Change and the Kyoto Protocol dealing with
this issue. He informed the group that the Expert Group on Technology Transfer
is working to develop a suitable performance indicator to measure the impact of
technology transfer.
The general discussion then concentrated on a number of issues, including
the identification of opportunities to enhance uptake of technologies; methods
to ensure appropriate finance is available (particularly at the early stages of
trying to introduce a new technology to market); the need to create an enabling
environment (removal of barriers and possible scope for incentives); and the need
to ensure the resources and skills are available to maintain and operate any new
technology.
THE OUTCOMES
To support efforts to facilitate the transfer of technologies and knowledge,
participants recommended that INECE could:
1. Develop an environmental compliance and enforcement training program to
transfer the network's knowledge to interested countries to help implement
the provisions of the UN Framework Convention on Climate Change and
the Kyoto Protocol, and case studies highlighting environmental compliance
and enforcement best practices relevant to climate mitigation and adaptation
through the INECE web site and/or through the United Nations Framework
Convention on Climate Change technology transfer clearinghouse TT:CLEAR.
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2. Evaluate whether and how to work with the United Nations Framework
Convention on Climate Change Expert Group on Technology Transfer as it
seeks to develop a suitable performance indicator to measure compliance
against the requirements of the three key articles in Framework Convention
and the Kyoto Protocol on technology transfer.
3E INTEGRITY IN MARKET MECHANISMS
Facilitators: Howard Leberman, Environment Agency for England and Wales
Edwin Aalders, International Emissions Trading Association
Rapporteurs: Louis Kotze, North-West University, South Africa
Ariel du Plessis, North-West University, South Africa
BACKGROUND
Among the most significant challenges to international harmonization of
emissions trading systems is the need to guarantee a high level of compliance
with each system's regulations supporting transparency and accountability in the
monitoring, reporting, and verification of assets. The facilitators and participants
of this workshop sought to identify actions that INECE and its partners could take
to build an expert knowledge base on compliance and enforcement best practices
necessary for linking emissions trading systems.
THE WORKSHOP DISCUSSION
Building from the findings of INECE's 2007 workshop, "Improving Efficiency,
Effectiveness, & International Harmonization of Compliance Activities in
Emissions Trading," which explored the role of compliance in assuring trust
and integrity within and among emissions reductions platforms, participants
discussed the value of market mechanisms to control greenhouse gas emissions
and described experiences from their countries and regions (see http://inece.org/
emissions/).
Discussion centered on the European Union Emissions Trading Scheme (EU ETS),
which is designed to help Europe meet its commitment to reduce emissions under
the Kyoto Protocol. Phase 1 of the EU ETS, which served as a pilot period, ran from
2005 to December 2007. Running from 2008-2012, Phase 2 of the EU ETS aims to
decrease average European emissions by 6% of 2005 levels. The beginning of Phase
2 saw changes of the EU scheme with the inclusion of four non-EU states, the
proposed inclusion of aviation, and new rules governing the inclusion of offsets.
As the "first off the block," the EU ETS has been the driver for the development
of much of the international carbon market; the cumulative value of allowances
traded in 2007 was US$50 billion.
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Track E: Climate Change and Compliance 75
Participants discussed how the scope and complexity of the European market
raised significant challenges to international linkages, particularly with US regional
initiatives or a possible future national US cap-and-trade program. Participants
expressed concerns that little progress has been made on developing a common,
global emissions reporting "language" and procedural guidance, possibly due to
the shift in program design from scientists and technical experts to governments
and policy experts.
Participants further discussed the applicability of the same principles of integrity and
accountability in monitoring, reporting, and verification to the voluntary markets.
Voluntary mechanisms have few direct penalties for wrongdoings, but an
incentivizing 'carrot' exists in the form of stakeholder satisfaction.
OUTCOMES
Participants recommended that INECE continue to advance the recommendations
of its 2007 workshop on "Improving Efficiency, Effectiveness, & International
Harmonization of Compliance Activities in Emissions Trading" and could further:
1. Develop and facilitate technical working groups on (1) Registries, (2)
Verification & Accreditation, and (3) Monitoring & Reporting that will conduct
independent assessments of best practices, metrics, and terminology; extract
lessons from the global trade systems, securities trading, accounting, and the
US systems designed to reduce SOx and NOx; and provide recommendations
applicable to existing and emerging emissions trading schemes.
2. Develop appropriate capacity building tools, such as a web-based inventory of
articles and resources.
3. Develop recommendations on administrative rule-making procedures.
4. Coordinate with the International Carbon Action Partnership and other
processes.
4E SUSTAINABLE MANAGEMENT OF CARBON SINKS
Facilitators: Kenneth J. Markowitz, Consultant to the INECE Secretariat; Senior
Counsel, Akin Gump Strauss Hauer & Feld LLP
Ana Maria Kleymeyer, Ministry of Environment, Argentina
Rapporteur: Dimitar Koparov, Earthpace, LLC
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76 Eighth International Conference on Environmental Compliance and Enforcement 2008
BACKGROUND
As the global community seeks to identify strategies for reducing greenhouse gas
emissions, the sustainable management of forests, soil, and other carbon sinks
has received significant attention. During the UN Climate Change Conference
in Bali, developing country delegates pushed for recognition of the contribution
of "reduced emissions from deforestation and forest degradation" (or REDD)
through formalizing these reductions as tradable credits under the Kyoto flexibility
mechanisms. However, countries purchasing credits under the Clean Development
Mechanism have expressed concerns that emission reductions from "avoided
deforestation" and from other land use activities are too difficult to objectively
quantify. Participants in this workshop evaluated the verification challenges to
reducing emissions from deforestation and to protecting other carbon sinks, and
identified actions for INECE to build capacity for assuring compliance in this
context.
THE WORKSHOP DISCUSSION
Facilitators and participants in this workshop explored the challenges of
quantification, evaluation, verification, and monitoring of biological carbon sinks
and of generating certified emissions reduction credits from land use, land use
change, and forestry (or LULUCF) activities.
Experts suggest that as much as 20% of global CO2 emissions result from
deforestation and, during the December 2007 UN Climate Change talks, there
was significant pressure from developing countries to include credits generated
through "avoided deforestation" under the Kyoto Clean Development framework.
The Climate Conference generated a Decision "recognizing that reducing
emissions from deforestation and forest degradation in developing countries can
promote co-benefits," but did not commit to a formal course of action.
Much of the challenge with using credits generated from land use, land use
change, and forestry projects lies in the difficulty of assuring compliance with
monitoring and reporting requirements to the level of integrity necessary to
monetize the credit. Participants discussed the challenges with generating "carbon
credit currency" from the protection of carbon sinks, including the immaturity of
the measurement framework for assessing carbon sinks. Participants identified
particular concerns with measuring short term carbon emissions from forestation,
the definitional issue of when a forest becomes a sink, whether a "stable" (mature)
forest can still be considered a carbon sink, the permanence of biological carbon
sinks, and the relative effectiveness of the major sinks (forests, soils, and oceans).
Participants noted that the use of carbon credits from land use, land use change,
and forestry projects has faced opposition from the European Commission,
which concluded that these types of projects could undermine the integrity of the
EU Emissions Trading Scheme, due to challenges associated with transparency,
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Track E: Climate Change and Compliance 77
measurement, monitoring, and verification of the carbon reductions. Participants
also considered the development benefits of forestry and land use credits, while
recognizing the need for any future market mechanism to respect the rights of
indigenous peoples and to direct proceeds towards communities whose livelihood
may become displaced.
THE OUTCOMES
The discussion illuminated a significant role for INECE to build capacity for
improving governance and management of carbon sinks, with a particular
opportunity in contributing to improving compliance with laws to limit illegal
logging and illegal trade in timber products. Workshop participant identified the
following action items for INECE:
1. Develop a compendium of compliance and enforcement mechanisms that are
used in the context of carbon sinks (forestry, land change...), including case
studies and best practices, particularly on enforcement responses to illegal
logging.
2. Initiate an online forum for discussions on compliance and enforcement
mechanisms to protect carbon sinks.
3. Host an international workshop on systems of evaluation, quantification,
verification and monitoring of biological carbon sinks, where experts and
practitioners could exchange information and experience. A possible workshop
focus could be the design of a universal conversion of carbon sink value to
carbon credits.
5E MEA COMPLIANCE MECHANISMS AND THE POST-2012 CLIMATE
REGIME
Facilitator: Kenneth J. Markowitz, Consultant to the INECE Secretariat; Senior
Counsel, Akin Gump Strauss Hauer & Feld LLP
Ana Maria Kleymeyer, Ministry of the Environment, Argentina
Rapporteur: Lawrence I. Sperling, United States Department of State
BACKGROUND
During the 2007 United Nations Climate Change Conference in Bali, Indonesia,
governments agreed to the "Bali Roadmap" - a series of negotiations on
mitigation, adaptation, technology, and financing to move the international
community towards agreement on a new global climate treaty by December
2009. The new treaty would be implemented subsequent to the expiration of the
commitment period of the Kyoto Protocol in 2012.
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78 Eighth International Conference on Environmental Compliance and Enforcement 2008
During this workshop, participants discussed with two main themes: (1) the
potential direct interaction between a post-2012 climate agreement and other
multilateral environmental agreements and (2) lessons that might be learned from
compliance mechanisms in other Multilateral Environmental Agreements that
can inform the development of a compliance mechanism for a post-2012 climate
agreement.
THE WORKSHOP DISCUSSION
Facilitators gave an overview of the current climate negotiations, focusing on: 1)
what is meant by "a post-2012 climate agreement" and (2) how other Multilateral
Environmental Agreements come into play.
The Kyoto Protocol's first commitment period is 2008 - 2012. While Kyoto itself
envisioned a subsequent commitment period, an issue discussed was whether the
post-2012 regime will be a completely new agreement, rather than an extension/
modification of Kyoto. The advantage of new negotiations would be if they
could bring in countries that are not parties to Kyoto or not subject to mitigation
commitments under Kyoto, or to otherwise clarify Kyoto's distinction for
"economies in transition."
Other MEAs generally thought to interface with the United Nations Framework
Convention on Climate Change (UNFCCC) and its Kyoto Protocol are the
Montreal Protocol on Substances that Deplete the Ozone Layer, the Convention
on Biodiversity and the United Nations Convention to Combat Desertification
The facilitators described the Convention on Biodiversity (CBD) as having no
compliance mechanism per se, except for trade in living modified organisms under
the Cartagena Protocol; hence there has been very little interaction between CBD
and UNFCCC, except for expert advice on biodiversity issues when needed.
Furthermore, limited discussion has taken place between the Kyoto and United
Nations Convention to Combat Desertification compliance committees. The most
explicit area of interface is with the Montreal Protocol, since many ozone depleting
substances are also greenhouse gases.
Kyoto's requirements, and hence its compliance mechanisms, touch on emissions
reductions, national reporting, and inventories. Countries that are found not to
meet the core eligibility criteria for the Kyoto mechanisms (Emissions Trading,
Clean Development Mechanism, and Joint Implementation) can be suspended
from trading in the official Kyoto carbon markets. For Annex I countries'
emission reduction obligations, if a country is out of compliance with its Kyoto
commitments in 2012, a penalty that increases emissions reductions obligations for
the next commitment period by 30% of the shortfall will be imposed.
Participants discussed the effectiveness of these types of compliance mechanisms.
There was consensus that, by delaying the "bite" of the sanction until after 2012,
this mechanism was most likely ineffective. Countries could simply try their
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chance at negotiating a better deal at the end of the next commitment period,
or roll their sanctions into the future interminably. One participant suggested
establishing an international environmental court to adjudicate cases of non-
compliance with a post-2012 climate treaty.
Participants then discussed looking at other MEAs for alternative models of
compliance mechanisms that may be more effective (whether or not there is a
direct interface between that MEA and Kyoto requirements). The Convention
on Interanational Trade in Engangered Species, which imposes trade sanctions
for certain types of non-compliance, provides a potential model. Another party
suggested the Montreal Protocol may be the best model to look at, given the
Montreal Protocol's historical record of effectiveness. It was mentioned that the
proposed United States Lieberman-Warner Bill uses trade sanctions, in the form of
a tariff-like requirement to buy carbon credits in cases of failure of compliance.
THE OUTCOMES
Participants agreed that INECE could play a constructive role in supporting the
post-2012 climate negotiations, by:
1. Evaluating alternative compliance mechanism models, informed by those
in other MEAs, and analyse the pros and cons of different approaches. The
Secretariat should evaluate whether and how to propose specific language as a
result of the analysis, with consideration to ensuring that the language did not
represent the position of and did not advocate on behalf of any governmental
official who participates in INECE. Participants recommended that INECE
provide any recommendations by late 2008 or early 2009, to allow time for
uptake into the negotiation process.
2. Conducting further research on designing compliance mechanisms to restrict
emissions that contribute to climate change, including greenhouse gases, ozone
depleting substances, and black carbon (a component of soot).
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Track F: Creating a Culture of Compliance 81
TRACK F:
CREATING A CULTURE OF COMPLIANCE
Good governance relies on culture, laws and norms. Facilitators and participants
of workshops in Track F discussed issues associated with creating a culture of
compliance. Making environmental compliance everyone's business is an essential
component to rule of law and sustainable development.
IF NATIONAL COMPLIANCE PLANS FOR THE IMPLEMENTATION OF
MEAs
Facilitators: Iwona Rummel Bulska, United Nations Environment Programme
Rosalind Reeve, Chatham House
Rapporteur: Tom Higdon, INECE Secretariat
BACKGROUND
The successful implementation of multilateral environmental agreements
(MEAs) requires individual countries to implement domestic laws, policies, and
compliance programs as part of coordinated national implementation plans.
Certain features of these national implementation plans have helped ensure the
successful implementation of MEAs.
THE WORKSHOP DISCUSSION
Iwona Rummel-Bulska presented a brief history of national implementation
of MEAs, noting how MEAs played a leading role in stimulating enactment of
national environmental legislation in much of the developing world. She noted the
important role convention secretariats have played in helping parties develop and
implement national laws and highlighted the role of United Nations Environment
Programme (UNEP) in this regard, noting particularly the 2002 UNEP Guidelines
on Compliance with and Enforcement of MEAs. Ms. Rummel-Bulska outlined
three important issues for workshop discussion:
• The advantages and drawbacks associated with verifying MEA compliance
through reporting and other "self policing" by the parties.
• The adequacy of national legal provisions for liability and damages under
MEAs, particularly in developing countries.
• The adequacy of MEA national focal points for communication and
coordination, particularly in developing countries.
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82 Eighth International Conference on Environmental Compliance and Enforcement 2008
Rosalind Reeve presented a brief history of MEA national implementation plans
(also referred to as national compliance plans). She also discussed the Convention
on International Trade in Endangered Species (CITES) National Legislation
Project that, since 1992, has helped evaluate national laws and assist parties with
developing effective legislation that adequately implements CITES. Ms. Reeve
outlined three important points:
• There is a gap between MEA requirements and national laws.
• Many MEAs do not have adequate resources to promote implementation (the
obvious exceptions being the Ozone and Climate regimes). This is especially
true for pre-Rio (1992) MEAs, which have little, if any, dedicated funding
mechanisms.
• The UNEP Guidelines, while valuable, are just a starting point.
A lively discussion ensued that drew input from each workshop participant. While
touching on a number of specific points, the following were the recurring themes:
• There is an urgent need to provide assistance to countries, particularly in the
developing world, to build national capacity to implement MEA commitments.
• Many countries join MEAs without first evaluating their ability (or even the
domestic political will) to comply.
• There is little coordination or prioritization of environmental policy at the level
of MEA negotiation or at the level of national implementation.
• In instances where adequate substantive requirements have been enacted in
national law, there is often still a deficit in enforcement provisions (such as
civil, administrative, and criminal remedies).
THE OUTCOMES
Participants in this workshop suggested that INECE and its partners could
undertake the following activities:
1. Build national capacity to improve coordination and prioritization with regard
to MEA commitments, stressing the need to evaluate the ability (and wiliness)
to accept new international commitments.
2. Study gaps in national implementation of MEAs with the goal of identifying
common problems that can be met with common solutions.
3. Review and identify strategies to improve the role of civil, administrative, and
criminal enforcement in compliance with MEAs.
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Track F: Creating a Culture of Compliance 83
2F USING SOCIETAL VALUES TO MARKET ENVIRONMENTAL
COMPLIANCE
Facilitators: Antonio Oposa, The Law of Nature Foundation, The Philippines
Brahim Zyani, Secretariat Charge de 1'Eau et de I'Environnement;
Head of NECEMA, Morocco
Rapporteur: Davis Jones, Environmental Protection Agency, United States
BACKGROUND
Law is designed to change behavior, but the actual legal code is only 20% of
equation. To truly change behavior, we must recognize other forces such as
altruism, thinking about the future of our children, fear of being shamed, and
religious beliefs including traditional spiritualism, and other values that exist
in both developed and developing countries. These societal norms and cultural
values establish and clarify the relationship between individuals and their
neighbors as well as between individuals and nature. The workshop focused
on how we can use those values, particularly at the local level, to solve complex,
international environmental problems such as climate change.
THE WORKSHOP DISCUSSION
Societal values should be given greater priority and recognition, and must be
integrated into national law to make them enforceable. By codifying those values,
we take them from their origins but they cease to be spontaneous social values.
For example, in Islam, waste is forbidden and water must be used efficiently, as
reflected in the methods for religious washing and purification before prayer.
Even if water is abundant, the Koran calls for its efficient use. Therefore, in Islamic
nations such as Morocco, these religious values should be considered even though
the rules about water conservation may be embodied in secular laws.
Appropriate cultural and religious traditions must be used to reach communities
in a way they understand. For example, immigrant business owners who come
from other cultures may not understand the local societal norms. Working with
traditional leadership to incorporate traditions and transfer the control and
protection of an area to the local people instead of putting it under outside control
makes communities feel that they are preserving their own home rather than
living in someone else's preserve. Environmental education in schools to sensitize
school children early has advanced in response to societal pressure. Organized
faith communities and leadership should be involved, like imams addressing
God's relationship with humans and the earth, Pope Benedict XVI declaring that
environmental degradation is a sin, and the US Episcopal Church's writing of the
Catechism of Creation (http://www.episcopalchurch.org/19021_58393_ENG_HTM.
htm).
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84 Eighth International Conference on Environmental Compliance and Enforcement 2008
These societal pushes are also reaching into corporate policies. Wai-mart's
"Sustainability 360" plan (http://walmartstores.com/Sustainability/) brings the
company's two million associates, numerous stores, and various suppliers toward
sustainable practices. These efforts are saving the company significant resources
while responding to society's call for sustainable development and pulling global
suppliers toward more compliant practices.
THE OUTCOMES
What can INECE do to promote these ideas? The group suggested that INECE
capture and publicize examples of how people have used traditional values to
help communities pull from within to achieve increases in desire to comply rather
than pushing to compel compliance. This should include corporate examples,
environmental education efforts, and religious activities. In addition, INECE could
set up a virtual dialogue focused on societal pressures toward compliance and
invite educators and religious leaders to participate and share their contributions.
The workshop participants can help identify whom to engage in the dialogue,
including major religions and local communities.
3F RESPONSES TO CORRUPTION
Facilitators: Olya Melen, Environment-People-Law, Ukraine
Kate Mumladze, Inspection for Environmental Protection, Georgia
Lawrence I. Sperling, Department of State, United States
Rapporteur: Tom Higdon, INECE Secretariat
BACKGROUND
Corruption can cause severe environmental harm even where the established law
and enforcement scheme is otherwise sound. Examples abound where corrupt
environmental officials issue weak permits undermining enforcement options
or approve inappropriate impact assessments thus allowing illegal activities.
Compliance can also be undermined by the unreliability of police, inspectors,
prosecutors, or judges who have been unduly influenced by violators.
THE WORKSHOP DISCUSSION
Workshop participants discussed efforts used to prevent, deter, detect, and
prosecute corrupt practices in their respective countries. The workshop
also addressed environmental impacts resulting from corruption, as well as
obstacles corruption presents to environmental compliance promotion, effective
environmental enforcement, and to enterprises that may otherwise wish to
comply.
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Track F: Creating a Culture of Compliance 85
Many participants pointed out that corruption is the single greatest obstacle to
economic and social development. It undermines development by distorting the
rule of law and weakens the institutions on which economic growth depends. The
harmful effects of corruption especially hurt the poor.
The facilitators noted that no universally agreed upon definition of corruption
exists, although several regional and global treaties and other instruments promote
programs to assure integrity and reduce corruption. There are a lot of widely
accepted ideas about the factors that increase the risk of corruption, such as culture,
mentality, low salary (although not all the participants agreed), and poverty. It was
noted that in the chain from policymaking to enforcement there are a number of
different occasions in which corruption could occur. One of the greatest impacts
of corruption is the credibility of the system as a whole. Other negative political,
economic, environmental, human development and security impacts result from
corruption as well. Governments' efforts to weed out corruption within their own
ranks are important, since continued government corruption will undermine
the rule of law and spread corruption into all levels of society. Governments can
pass legislation, adopt codes of conduct, and institute training and incentive
programs. Adequate legal authority and prosecutorial capacity for identifying and
responding to corrupt practices are also critical. Participants noted that corruption
often involves collusion between government and private actors. As a result, it
is helpful to complement laws, policies, and procedures affecting government
employees with laws and programs to discourage private actors from participating
in corruption.
OUTCOMES
INECE should consider including discussions about corruption in its capacity
building course. INECE should also consider making an integrity platform on its
website to disseminate best practices and provide links to conventions and other
materials. In addition, INECE might consider developing a brochure on the
subject.
4F THE ROLE OF THE JUDICIARY IN IMPROVING ENFORCEMENT
PROGRAMS
Facilitators: Pradeep Bakshi, Asia-Pacific Jurist Association, India
Judge Susan Biro, Environmental Protection Agency, United States
Sedfrey Candelaria, Judicial Academy, The Philippines
Rapporteur: James McDonald, Environmental Protection Agency, United States
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86 Eighth International Conference on Environmental Compliance and Enforcement 2008
BACKGROUND
The judiciary upholds the rule of law and ensures that national and international
laws are interpreted and applied fairly, efficiently, and effectively. This workshop
emphasized the vital importance of the judiciary in addressing enforcement and
compliance of environmental laws. During this session, justices and practitioners
from India, the Philippines, the US, and other countries discussed the role of
the judiciary in strengthening environmental compliance and enforcement and
explored how enforcement programs can better represent themselves before
courts.
THE WORKSHOP DISCUSSION
Judge Susan Biro discussed how cases are brought through the administrative law
process. As an Administrative Law Judge, Judge Biro presides over enforcement
actions initiated by USEPA for the assessment of civil penalties. These enforcement
actions and permit proceedings are in accordance with the US Administrative
Procedures Act. Administrative proceedings are brought before Administrative
Law Judges under a number of environmental statutes.
Judge Biro indicated that Administrative Law Judges are viewed like federal
judges and are able to hear cases involving many different areas of the law. She
indicated that environmental law is seen as a divisive issue: either you are part of
the Agency or part of the regulated community. Therefore, Judge Biro expressed
that as Administrative Law Judges, judges attempt to indirectly encourage
compliance through the following methods:
• Training: Here she views her role as telling the regulated community and
United States Environmental Protection Agency (USEPA) about the process/
procedures to help them become better litigators (enforcement attorneys) and
helping the regulated community come into compliance with the law.
• Improving the law: Judge Biro indicated that environmental law has become
very important and the regulations are complicated. She views her role as
helping to clarify the issues and the rule of law, so that all parties have an
understanding of what is required.
• Encouraging compliance: Compliance with environmental laws is the main
goal. The regulated community needs to understand what is required.
Environmental laws should be in simple terms. Legal decisions should be
published and distributed broadly among the regulated community using
trade publications and other periodicals.
Judge Biro indicated that many of the cases filed by USEPA are generally settled
using alternative dispute resolution.
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Track F: Creating a Culture of Compliance 87
Pradeep Bakshi noted that in India, Article 21 of the Constitution guarantees a
fundamental right to life for all citizens. This provision of the Constitution has
been expanded to include the fundamental right to live with dignity and with a
clean environment. Under the principle of public interest litigation, citizens play a
vital role in protecting the environment. The citizens are coming forward to assist
in resolving environmental law cases and are bringing matters before the court to
investigate entities that violate environmental laws. He expressed the importance
of involving nongovernmental organizations (NGOs) in the process early so that
they can help address environmental compliance and enforcement. He noted that
NGOs play a vital role in India through their networks and training programs. Mr.
Bakshi concluded by stating: 1) the Courts appear ready to deliver judgments that
should result in greater environmental protection or reduced environmental harm;
2) judges advance the development of environmental law by their traditional task
of interpreting and filling the gaps in the legal texts; 3) judges, as guardians of the
rule of law, are uniquely positioned to give environmental law force and effect;
and 4) judges can bring integrity and certainty to the process of environmental
protection and help to ensure environmental responsibility and accountability
within the government and the private sector.
Professor Sedfrey Candelaria indicated that, "courts have characteristically been
viewed as conservative and cautious in approaching new development in law."
Further, he stated that the complexity of environmental law cases has challenged
sitting judges as they grapple with finding innovative solutions to these cases.
Empowering the judges through judicial education, coupled with institutional
reform, could lead towards effective adjudication of environmental cases.
Professor Candelaria provided a brief overview of what the Philippine Judicial
Academy (PHILJA) is doing to assist judges in understanding environmental laws.
He also indicated that PHILJA is focusing on the establishment of "green benches."
The Supreme Court, through some "champions" on environmental law issues
within the judiciary, wants a system of specialized treatment of environmental
cases on account of the need to understand: 1) the nature of environmental law
cases; 2) the urgency and timely resolution of cases; 3) the complex process of
handling evidence; and 4) the application of creative penology.
Professor Candelaria concluded his presentation by outlining three factors that
have contributed to successful advocacy for the green courts in the Philippines.
They are: 1) judicial leadership; 2) judicial education and training; and 3)
strengthening networks. He noted that PHILJA anticipates many environmental
cases will be handled through the green benches, and that judicial education
and training on environmental issues is paramount if we are to address the
environmental concerns of today and tomorrow.
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88 Eighth International Conference on Environmental Compliance and Enforcement 2008
THE OUTCOMES
INECE is in a unique position to provide significant support for the judiciary
in helping to address environmental compliance and enforcement. The
recommendation from the workshop participants is that INECE create a judicial
network of judges, court administrators, lawyers, and other practitioners to assist
with training and other educational opportunities to advance environmental
law issues. Further, INECE should work with IUCN to develop a forum on
environmental law, which would allow for the sharing of learning tools among
different countries that can be used as models of success. Other recommendations
include: 1) using different approaches for addressing environmental issues;
2) strengthening legislation that the judiciary can use; 3) better training of the
judiciary on environmental law; and 4) using alternative dispute resolution to
encourage settlement of environmental law cases.
5F SUPPLY CHAIN COMPLIANCE
Facilitators: Phyllis Harris, Wal-Mart Stores
Melissa Fourie, Department of Environmental Affairs and
Tourism, South Africa
Rapporteur: Fred Kok, LOM Secretariat, The Netherlands
BACKGROUND
Responsible corporations seek not only to comply with their own responsibilities,
but also to work to ensure that their vendors and suppliers produce their products
in using environmentally-sound methods. This workshop presented examples of
Wal-Mart's efforts to improve its environmental performance and the performance
of its suppliers and South Africa's experience with this emerging focus area.
THE WORKSHOP DISCUSSION
Phyllis Harris made the first presentation about supply chain compliance at
the Wal-Mart. Ms. Harris presented the environmental strategy of Wal-Mart
as exploring new technologies; working on environmental issues suppliers;
improving the environmental performance of Wal-Mart; and encouraging
improved the performance of all partners.
To reach these goals, Wal-Mart seeks a more energy efficient future; a supply chain
for the future; and product innovation. In general, Wal-Mart wants their products
to be 25% more energy efficient. They are also working on fleet efficiency, supply
chain organization, and a packaging scorecard. Competition was noted as the
greatest driver for this attitude.
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Track F: Creating a Culture of Compliance
Melissa Fourie from South Africa's Department of Environmental Affairs and
Tourism gave insight to the general enforcement and compliance situation in South
Africa and how Department of Environmental Affairs and Tourism is attempting
to change the status quo. Ms. Fourie noted that as companies become larger and
more integrated internationally, there is a growing influence from standards and
benchmarks developed abroad. She felt that 95% of South African industries are
not concerned with environmental issues and one should not expect voluntary
compliance. Ms. Fourie gave an example of Department of Environmental Affairs
and Tourism's experiences with the Engen Refinery at Durban. Inspections,
education, and a realization by the company that compliance could save money
helped change the company culture.
The group discussed their perspectives on the influences of shareholders,
consumers, the financial bottom-line and ISO 14001 — an international standard for
environmental management systems that helps companies operate efficiently and
meeting environmental requirements — on compliance behavior.
THE OUTCOMES
Many participants noted the value of networks such as INECE, organizations
such as OECD, and business organizations such as the Global Environmental
Management Initiative (see http://gemi.org) and suggested that these networks
and organizations be supported. They also noted that INECE should be sure to
include the private sector in its activities and suggested that regulators and
enforcers would benefit from the perspectives of businesses.
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Buffet of Ideas and Field Visits 91
BUFFET OF IDEAS AND FIELD VISITS
BUFFET OF IDEAS
On Thursday, 10 April 2008, delegates participated in informal networking sessions
called the "Buffet of Ideas." An innovative addition to the 8th Conference, the
Buffet of Ideas provided participants an opportunity create their own workshops
and break into small groups over lunch to informally meet other delegates and
discuss issues of common concern. Environmental compliance and enforcement
experts participating in the Conference led informal discussions in the following
eleven self-identified topic sessions:
1. The International Network of Environmental Compliance Training
Professionals
During this discussion, delegates formalized their commitment to participating
in a network to share information concerning training best practices and lessons
learned and to exchange training programs and materials.
2. The Seaports Initiative Kickoff
During this discussion, participants shared ideas on specific follow-up actions
that could be considered for the seaport environmental security network. The
network will seek to build capacity, raise awareness, and facilitate collaboration
among government officials on ways to detect and stop illegal and dangerous
international shipments of environmentally-regulated goods.
3. Combating Environmental Crime with Interpol's Ecomessage
This discussion provided a forum for participants to learn about Ecomessage,
which is a database system for governments to report all major environmental
crimes including: illegal transborder movements and illegal dumping of wastes;
illegal transborder activities involving radioactive substances; and illegal traffic in
species of wild flora and fauna.
4. Making Aid Effective
At the Making Aid Effective table, participants discussed coordination between
donors and implementing organizations, the need for project plans to come "from
the ground up," and the types of operations management strategies that can be
used to help ensure donor support goes to its intended purposes of building
capacity for environmental protection.
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92 Eighth International Conference on Environmental Compliance and Enforcement 2008
5. A Regional Environmental Compliance and Enforcement Network for Sub-
Saharan Africa
Participants built on conversations held during the Regional Conference for Sub-
Saharan Africa, and went further to outline the scope, vision, mission, goals, and
initial activities of a regional network for strengthening capacity for environmental
compliance and enforcement.
6. Marine Enforcement
During this session, an expert from Table Mountain National Park's Marine
Protected Area led a discussion on the challenges of protecting valuable marine
species, such as abalone, from poachers.
7. Environmental Compliance Assurance in China
Asian delegates to the Conference hosted an opportunity during this discussion for
participants to learn about the challenges to and opportunities for environmental
compliance activities in China.
8. Non-governmental Organizations
This table provided representatives from non-governmental organizations
an opportunity to share experiences regarding the unique contribution that
civil society groups can make to strengthen environmental compliance and
enforcement.
9. Sustaining Network Secretariats
During this conversation, participants from existing regional enforcement
networks shared strategies and advise on fundraising for and management
of network secretariats with participants from emerging regional networks.
10. Francophone Networks
The participation in the 8th Conference of delegates from Francophone countries
was recognized during this discussion, which reviewed the advances of the
Network for Environmental Compliance and Enforcement in the Maghreb Region
(NECEMA), since its launch at INECE's 7th International Conference in Marrakesh,
Morocco.
11. Members of the Judiciary
Judges participating in the INECE Conference convened this discussion to
share their views and experiences on the role of the judiciary in environmental
compliance and enforcement, the impact of specialized environmental tribunals,
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Buffet of Ideas and Field Visits 93
and the activities that INECE can take to raise awareness of the importance of
environment compliance among the judiciary.
FIELD VISITS
On Wednesday, 9 April 2008, delegates at the 8th International Conference selected
one of four site visits to observe innovative environmental compliance and
enforcement programs to protect its biodiversity and marine resources, manage
hazardous wastes, and limit pollution in the host city. During the site visits
which intersected thematically with the Conference program, delegates heard
background presentations and participated in a facilitated discussion lead by local
experts to better understand compliance challenges and opportunities in South
Africa and to share their insight and experiences from their home countries.
During many of the site visits, delegates planted native tree species to offset
carbon emissions, in gratitude to Cape Town as the Conference host city and in
recognition of Dr. Wangari Maathai's vision of trees as the "the seeds of peace and
the seeds of hope."
1. Cape Point Nature Reserve and Table Mountain National Park Marine
Protected Area
Delegates visited a selection of famous areas of Table Mountain National Park,
beginning with the Groote Schuur Estate and the Mount Pleasant Complex, for
a tour of the medicinal garden designed to give the indigenous communities
a legitimate source of traditional medicines to reduce illegal harvesting within
the park. Delegates then traveled south to the Cape Point Nature Reserve, over
Chapman's Peak Drive, a spectacular road, hugging the near-vertical face of the
mountain from Hout Bay to Noordhoek.
Cape Point Nature Reserve is perhaps the most scenically spectacular park in
South Africa. The narrow finger of land with its beautiful valleys, bays and
beaches is surrounded by the waters of the Atlantic Ocean and False Bay and has
within its boundaries two world-renowned landmarks, - majestic Table Mountain
and the legendary Cape of Good Hope. The Park is recognized globally for its
extraordinarily diverse and unique fauna and flora. With rugged cliffs, steep
slopes and sandy flats, the Park is a remarkable natural, scenic, historical, cultural
and recreational asset both locally and internationally. Nowhere else in the world
does an area of such spectacular beauty and such rich biodiversity exist almost
entirely within a metropolitan area.
The reserve protects many endangered animal and plant species, including four
whale species, three dolphin species, four tortoise species, 250 bird species, and a
selection of big game: eland and bontebok antelope, baboons, and ostriches can be
seen on a drive through the pristine bush. One thousand sixteen species of plants
have been recorded in the Park, but this is a mere 11% of the 9,000 plant species
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94 Eighth International Conference on Environmental Compliance and Enforcement 2008
that make up the fynbos - 'fine bush' - found in the Cape, which forms the smallest
but most diverse of the world's six floral kingdoms.
Delegates participated in a discussion led by Robin Adams of Table Mountain
National Park Marine Section on the challenges and solutions in the fight against
environmental marine crime in the Table Mountain National Park Marine
Protected Area (MPA). A major focus of their effort is on on abalone poaching.
Abalone, a marine shellfish found mainly in cold waters, is considered a delicacy
and an aphrodisiac in China, Hong Kong and Taiwan, and is valued at more
than $200/pound in Asian retail markets, according to a study by the Wall Street
Journal. In an attempt to limit abalone poaching, South Africa listed abalone as
endangered under Appendix III of the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) in 2007; established stringent
restrictions on abalone extraction and trade; and has undertaken a number of joint
enforcement and investigation operations among the country's Police Service, the
Department of Environmental Affairs and Tourism: Branch Marine and Coastal
Management, and the South African National Defense Force.
2. Blaauwberg Conservation Area
During the Blaauwberg Conversation Area trip, delegates observed the north-
western sector of Cape Town, which is one of the fastest growing urban corridors
in Cape Town, but also home to some of the most endangered plant communities
and species in the world. The north-western sector has a magnificent but sensitive
coastline highly desired for its classic view of Table Mountain and Table Bay.
Further, it is along this coast that the Koeberg Nuclear Power Station is located, the
only nuclear power station in the Western Cape, providing a significant portion of
the electricity requirements to Cape Town.
Delegates began the site visit at Milnerton Lagoon and Woodbridge Island.
Illegally constructed dwellings on primary dune systems (flouting Environmental
Impact Assessment legislation) have led to an extended litigation process to
halt development. Several other cases along the beachfront demonstrate poor
environmental practices, with buildings constructed too close to the dunes. Illegal
release of effluent from industry and waste treatment works into the lagoon led to
catastrophic eutrophication, killing most of the fauna in the estuary.
Delegates then traveled northwards towards Blaauwberg Conservation Area
(BCA), passing by the Chevron Caltex Oil Refinery onto the N7 to Frankdale Road
and Vissershok Landfill Site, classified to receive hazardous waste. BCA is an area
of globally significant biodiversity and cultural heritage, implemented with strong
civil society involvement. Delegates learned about the "good news" story of the
successful intervention to curb previous 4x4 vehicle destruction on the beach and
on Blaauwberg Hill. Current challenges include low flying tourist helicopters,
illegal dumping and development pressures.
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Buffet of Ideas and Field Visits 95
3. Edith Stephens Wetland Park
During this site visit, delegates explored the challenges of conserving critical
biodiversity in fragmented natural habitats in an urban setting where poverty is
widespread.
Delegates traveled to the Edith Stephens Wetland Park (ESWP). Established in
1955, the Park is a leading example of how the City works in partnership with
communities on the Cape Flats to take care of Cape Town's precious natural
heritage in a way that is beneficial to all.
Cape Flats Nature, a partnership project initiated by the City of Cape Town, the
Botanical Society of South Africa, South African National Biodiversity Institute,
and the Table Mountain Fund, has grown since its formation in 2002. The Park
stewards have transformed the area from a dangerous garbage dumping grounds
to a thriving natural reserve, while maintaining a focus on helping communities
reconcile conservation with the needs of the urban poor and marginalized
communities. Major problems are faced in trying to conserve tiny fragments of
biodiversity in a growing city, but extensive support from the local community
has been a boon for the protection of the unique flora and fauna found in the
Park. Innovative community outreach programs at ESWP include the "Useful
Plants Garden," conservation and health education programs, and environmental
education programs for youth.
4. Rondevlei Nature Reserve
During this set of site visits, delegates visited the False Bay Ecology Park (FBEP),
a wastewater treatment works, and a landfill site, located just 20 minutes from
the city centre. The FBEP boasts some of the most important wetlands for birds
in the Western Cape and Southern Africa. A well-regulated urban park can
significantly enhance the lives of the surrounding mixed-income communities.
Law enforcement, however, is a critical element of the on-the-ground management
of the area, and is hampered by serious resource constraints and conflicting
jurisdictional areas. Problems include illegal dumping, water pollution, poaching,
safety and security and the challenge of planning and managing natural areas
under pressure from impacts of rapid urbanization.
Delegates traveled to the Coastal Park Landfill Site, in Strandfontein/Muizenberg,
along the False Bay coastline. Operating since 1976, this is the most researched
landfill site in South Africa. Law enforcement and illegal dumping issues were
discussed. Subsequently, delegates traveled to Zeekoevlei, the largest freshwater
lake in Cape Town, situated on the Cape Flats, where they discussed the challenges
of managing the lake for the purposes of while ensuring a sustainable ecosystem.
At Zeekoevlei, experts discussed the compliance challenges associated with
managing the nature reserve and water quality, as well as catchment management
issues relating to the lake.
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96 Eighth International Conference on Environmental Compliance and Enforcement 2008
After Zeekoevlei, delegates observed the cooperative management practices at
Cape Flats Waste Water Treatment Works, which is one of the top birding sites in
South Africa and an example of co-operative management. The site visit concluded
at Rondevlei Nature Reserve, with a discussion on methods to ensure compliance
with laws to protect a biodiversity in conservation areas, and an exploration
of the co-benefit of protected areas generating income from ecotourism in the
surrounding communities.
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Conference Evaluations 97
CONFERENCE EVALUATIONS
1 INTRODUCTION
The 8th INECE Conference was attended by 177 participants from 45 countries and
101 organizations, representing all regions of the world. The Conference presented
sixth plenary sessions with 28 speakers and 30 workshops with 89 facilitators and
rapporteurs. Participants represented national governments, nongovernmental
organizations, regional governments, international organizations, and other
groups and networks.
2 SUMMARY OF THE EVALUATION OUTCOMES
Of the 177 participants, 74 completed conference evaluations. Participants
provided very high marks for the Conference. The average rating for questions
ranged between Excellent and Good.
Participants expressed their greatest approval for the importance and relevance
of the conference goals of communicating that compliance with and enforcement
of environmental law create value by enhancing competitiveness, and driving
innovations; protect public health and preserves ecosystem service; and promote
the rule of law, good governance and sustainable development. Participants
also expressed high approval of Cape Town, South Africa, as the location of the
conference.
Participants ranked an overwhelming majority of the Conference's 30 workshops
as featuring highly relevant topics and providing opportunities for valuable
discussions. Slightly lower marks were given to the number and type of countries
and organizations represented at the Conference. Furthermore, while most
participants found the site visits useful to their work and of high quality, some
participants ranked the visits' usefulness as "very good to good."
Overall, participants expressed high approval of the opportunity to form effective
partnerships among those working in compliance and enforcement, the usefulness
of topics, as well as the potential to put concepts into practice:
"This is an unrivaled opportunity to get together with enforcement practitioners of
all types to brainstorm, educate, and synergize."
"The conference was a very worthwhile event. The greatest benefit in my view is
the extremely valuable individual and agency level contacts which the conference
facilitates."
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Eighth International Conference on Environmental Compliance and Enforcement 2008
"The idea of having workshops with specific goals and outcomes was excellent."
"The topic of the conference is relevant to the situation in developing countries
(Africa) where many conferences and workshops took place without really assessing
the post conference and workshops. It was great getting people from different
countries and continents to come out with an appropriate strategy to link the
concepts of enforcement and compliance to real actions."
"I really liked including collaborative problem solving (for real life problems) in the
field visits."
"Good coverage of key and varied issues."
"Very interactive, lots of information to share and very useful in environmental
compliance and enforcement."
"Structure and organization of conference enabled coverage of wide range of topics/
issues, contributing effectively to achieving the objectives of conference."
"The conference is extremely useful in that it updates us on modern thinking on
both policy and implementation of enforcement and compliance."
"This has been an excellent conference in bringing together such a good cross section
of experts."
"This was the most enjoyable conference I have attended in 30 years."
Geographic Regions Represented
Africa
Asia and the Pacific
Central & Eastern Europe
Central America
South America
International
Middle East and North Africa
North America
Northern & Western Europe
Total
Participants
No.
50
21
12
1
7
10
7
31
38
177
%
28
12
6
1
4
5
4
18
22
100
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Conference Evaluations 99
3 RESULTS
Each Conference participant received a blank evaluation form and was asked to
complete it prior to their departure from the Conference. Most questions on the
evaluation could be answered by assigning a number between 1 and 5 as the
response, where 1 = Excellent, 2 = Very Good, 3 = Good, 4 = Fair, and 5 = Poor. This
section shows the average rating for each evaluation question:
Section 1: Conference Goals
1.1 How would you rank the importance and relevance of the conference's goals
of communicating that compliance with and enforcement of environmental law:
(1) create value by enhancing competitiveness, providing a level playing field and
driving innovation; (2) protect public health and preserves ecosystem services; and
(3) promote the rule of law, good governance, and sustainable development:
1.56
1.2 How successful did you feel the conference was in achieving these goals?
1.97
1.3 How would you rank the importance and relevance of the conference's goal of
developing and promoting practical, action-oriented results?
1.68
1.4 How successful did you feel the conference was in achieving this goal?
2.15
1.5 How would you rank the importance and relevance of the conference's goal
of facilitating professional development within the compliance and enforcement
community?
1.73
1.6 How successful did you feel the conference was in achieving this goal?
2.01
1.7 How would you rank the importance and relevance of the conference's goal of
ensuring opportunities for participants to collaborate to identify responses to local
environment compliance challenges?
1.70
1.8 How successful did you feel the conference was in achieving this goal?
2.07
Section 2: Assessment of Conference
1.1 How successful do you feel the conference was in:
• Shaping and confirming the role that INECE will play in the future?
1.92
Forming effective partnerships among those working in compliance
and enforcement?
1.76
Increasing institutional capacity to enhance existing and develop new
compliance and enforcement programs?
2.29
Serving all people involved in the design of environmental compliance
and enforcement programs?
?
2.28
Encouraging ongoing international exchange and regional
networking?
?
1.74
Fostering exchange of expertise and learning through active
participation?
1.91
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100 Eighth International Conference on Environmental Compliance and Enforcement 2008
2.2 Concerning the participants at the conference, how would you rank:
• The number of individuals in attendance?
1.64
The number and types of countries represented?
2.44
The number and types of organizations represented?
2.46
The mix of experience?
1.80
3.3 Concerning the structure of the conference, how would you rank:
• The balance between Panels and Workshops?
1.80
The site visits?
1.79
The length of the conference?
1.90
2.4 Concerning the usefulness of the conference overall, how would you rank:
• The relevance of this conference to your current work or functions?
1.80
The extent to which you have acquired information that is new or
useful to you?
1.96
The focus of this conference on what you specifically needed or wanted
to learn?
2.00
The overall usefulness of the conference?
1.71
Section 3: Day One - Specific Conference Plenary Themes and Topics - Monday Morning
3.1 Panel 1 - Creating Value Through Compliance and Enforcement
• Usefulness of material?
• Mix of topics covered on panel?
• Opportunity for discussion?
2.10
2.04
2.01
Section 4: Day One - Workshops - Monday Afternoon
Please evaluate the workshop that you attended in Session 1 :
1A Doing What's Important: Focusing Environmental
Compliance and Enforcement Programs on the Right
Problems and Priorities
IB Citizen Monitoring and Reporting
1C Seaport Security Network
ID Protected Areas
IE National Measures for Climate Protection
IF National Compliance Plans for the Implementation of
MEA's
Was the
discussion
valuable?
2.02
2.23
1.69
1.67
1.56
2.11
Were your
expectations
met?
2.17
2.36
2.00
1.75
2.13
2.23
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Conference Evaluations
101
Section 5: Day Two - Specific Conference Plenary Themes And Topics - Tuesday Morning
and Afternoon
1.1
Panel 2 - Compliance Mechanisms for Climate Protection After 2012
• Usefulness of Material?
• Mix of topics covered on panel?
• Opportunity for discussion?
1.2
Panel 3 - Regional Enforcement Cooperation for the Protection of
Biodiversity
• Usefulness of Material?
• Mix of topics covered on panel?
• Opportunity for discussion?
2.09
2.08
2.16
2.15
2.09
2.30
Section 6: Day Two - Workshops - Tuesday Morning
Please evaluate the workshop that you attended after
Panel 2:
2A More Effective Regulation - Improving Efficiency
and Cutting Red Tape
2B Strategic Targeting of Inspections
2C Transboundary Water Cooperation
2D Synergies Among Biodiversity-Related Multilateral
Environmental Agreements
2E Technology Transfer and Financial Assistance
2F Using Societal Values to Market Environmental
Compliance
Was the
discussion
valuable?
1.52
2.25
1.40
1.91
1.83
1.92
Were your
expectations
met?
1.76
2.52
1.45
2.10
1.40
2.27
Section 7: Day Two - Workshops - Tuesday Afternoon
Please evaluate the workshop that you attended after
Panel 3:
3A Using Performance Indicators to Lead Environmental
Compliance and Enforcement Programs
3B Evidence Gathering and Preservation
3C Transboundary Movements of Environmentally
Detrimental Goods
3D Wildlife Law Enforcement
Was the
discussion
valuable?
2.28
1.93
1.73
1.53
Were your
expectations
met?
2.34
1.92
1.80
1.94
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102 Eighth International Conference on Environmental Compliance and Enforcement 2008
3E Integrity in Market Mechanisms
3F Responses to Corruption
1.75
1.61
2.14
1.59
Section 8: Day Three - Field Visits - Wednesday
Table Mountain National Park
False Bay Ecology Park
Woodbridge Island, Milnerton and Chevron
Refinery
Blaauwberg Conservation Area and Visserhok
Hazardous Waste Facility
Quality
of the
presentation
and tour?
1.25
1.56
2.14
2.22
Quality
of the
discussion
session?
1.76
1.50
2.57
2.57
Usefulness
of field
visit?
1.48
1.81
2.17
2.56
Section 9: Day Four - Specific Conference Plenary Themes and Topics - Thursday Morning
and Afternoon
1.1
Panel 4 - Capacity Building Within a Development Framework
• Usefulness of material?
• Mix of topics covered on panel?
• Opportunity for discussion?
1.2
Panel 5 - Global Enforcement Cooperation on Chemicals and Other Hazardous
Substances
• Usefulness of material?
• Mix of topics covered on material?
• Opportunity for discussion?
1.93
1.90
1.95
1.89
1.95
2.19
Section 10: Day Four - Workshops - Thursday Morning
Please evaluate the workshop that you attended after Panel 4:
4A Identifying Training Needs at a Strategic Level
4B Remote Sensing and Other Technology Developments to
Aid Environmental Compliance
4C Actions Against Illegal Transboundary Movements of
Hazardous Materials
Was the
discussion
valuable?
1.59
1.36
1.79
Were your
expectations
met?
1.73
1.36
1.86
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Conference Evaluations
103
4D Marine Enforcement: Case Study on Inconsistencies and
Consequences Among Multilateral Agreements
4E Sustainable Management of Carbon Sinks
4F The Role of the Judiciary in Improving Enforcement
Programs
1.17
1.57
1.79
1.67
2.00
1.79
Section 11: Day Four - Workshops - Thursday Afternoon
Please evaluate the workshop that you attended after Panel 5:
5A Performance-based Management for Environmental
Compliance and Enforcement Programs
5B Coordination Among Inspectors, Police and Prosecutors
5C Vessel Pollution
5D Habitat Destruction and Rehabilitation
5E MEA Compliance Mechanisms and the Post-2012 Climate
Regime
5F Supply Chain Compliance
Was the
discussion
valuable?
1.89
1.73
2.00
1.58
1.73
1.16
Were your
expectations
met?
1.73
1.93
1.50
1.72
2.08
1.32
Section 12: Day Five - Plenary Sessions - Friday
12.1 Panel 6 - Good Governance and the Rule of Law
• Usefulness of material?
• Mix of topics covered on panel?
• Opportunity for Discussion?
2.2
Presentation of Conference Statement
• Appropriateness of statement?
• Do you feel this reflects the purpose and goals of INECE?
2.3
Closing Ceremony Session
• How would you rank the closing session?
1.83
1.72
1.92
1.83
1.72
1.77
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104 Eighth International Conference on Environmental Compliance and Enforcement 2008
Section 13: Exhibits
Asia Environmental Compliance
and Enforcement Network
(AECEN)
Department of Environmental
Affairs and Tourism, South
Africa
Department of Water Affairs and
Forestry, South Africa
Environment Agency for
England and Wales
Environment Canada
Environmental Compliance
and Enforcement Network for
Accession
Environmental Law Association
of South Africa
International Network for
Environmental Compliance and
Enforcement (INECE)
International Network of
Environmental Compliance
Training Professionals
Lusaka Agreement Task Force
Natural Resources Defense
Council
Organisation for Economic Co-
operation and Development
Seaport Security Network
US Department of State
US Environmental Protection
Agency
VROM
Wal-Mart
Other
Were the
topics of
interest
to you?
3
2
2
2
3
2
3
2
2
2
3
2
2
3
2
2
3
3
Productive
exchange of
information?
3
2
2
2
3
2
3
2
2
2
3
2
2
3
2
3
3
2
Quality
of the
exhibit
material?
2
2
2
2
3
2
3
2
2
2
3
2
3
3
2
3
3
3
Availability
of
materials?
3
2
2
2
3
3
3
2
2
2
3
3
3
3
2
2
3
3
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Conference Evaluations 105
Section 15 : Organization of the Conference
City of Location
1.25
Schedule
1.86
Speakers
1.77
Service Desk
1.69
Cultural event at Moyo
1.80
Kirstenbosch Botanical Gardens lunch and tour
1.63
Contact with Executive Planning Committee
1.82
Availability of Conference Staff
1.60
4 CONCLUSION
In conclusion, INECE's 8th International Conference was very well received.
Participants highly approved the importance and relevance of the Conference
goals, the location of the conference, and the topics covered, as well as the
opportunity to network with other environmental compliance and enforcement
officials. The Executive Planning Committee will carefully study the numerical
results and narrative comments from the evaluations. The recommendations from
participants will be considered when planning conferences and workshops and
recommendations presented by participants will be reviewed and incorporated
into the future INECE work program
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2. PAPERS SUBMITTED FOR CONFERENCE
PROCEEDINGS
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Adelegan 109
TRACK A: STRATEGIC MANAGEMENT OF ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT PROGRAMS
ENVIRONMENTAL COMPLIANCE, POLICY REFORM AND INDUSTRIAL
POLLUTION IN SUB-SAHARAN AFRICA: LESSONS FROM NIGERIA
ADELEGAN, DR. JOSEPH1
Founder and Executive Director, Global Network for Environment and Economic,
Development Research, Ibadan, Nigeria, dr_joseph_adelegan@yahoo.com.
SUMMARY
Water pollution has continued to generate unpleasant implications for health and
economic development in Nigeria and other developing countries. However,
despite the attention of the public and policies of international agencies' focusing
on this problem, the situation in Nigeria seems degenerating; therefore, it demands
increased attention.
Right from the inception of British Rule in the 1900s in Nigeria, the colonial
economic development policies and plans contain little or no stringent rules to
conserve the natural resources or to limit pollution. Thus, the formative years
of institutional environmental regulation in Nigeria could be said to have been
characterized by the absence of clear scientific criteria and standards on toxic
wastes and on pollution levels.
Hence, in December 1988, as part of the emerging coordinated approach to
environmental issues, the Federal Environment Protection Agency was established
due to discovery of an Italian ship in May 1988 of some imported toxic chemical
wastes.
So far, there are no clear formulated policies in Nigeria aimed at coordinating and
monitoring the relationship between environmental management and sustainable
development. Presently, the environmental protection legislation in Nigeria is poorly
enforced. Hence, policy makers need to understand the extent to which resource
and environmental conditions impinge upon macroeconomic performance.
1 INTRODUCTION
Regulations are the most common approach to environmental problems.
Standards, bans, permits, and quotas are often favored by policymakers because
they promise certainty of outcome - without costly monitoring and enforcement,
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110 Eighth International Conference on Environmental Compliance and Enforcement 2008
however, this promise may not be realized (Bell and Russell, 2002). Experience
from Nigerian environmental policies and implementation has shown that the
traditional command-and-control system to pollution abatement had not produced
the desired result both economic and environmental wise because the instrument
is grossly ineffective due to lack of enforcement and compliance. In addition,
monitoring results are almost non-existent. As a result, there is the need for a
paradigm shift from the command-and-control approach to mixed environmental
policies involving the use of market-based instruments to complement the
traditional command-and-control system in achieving economic efficiency in the
use of the resource.
2 THE HISTORY OF ENVIRONMENTAL POLICY AND POLLUTION
CONTROL MEASURES IN NIGERIA: (1900-2004)
From the onset of British Rule in the 1900s, Nigeria's environmental protection
effort had been through the colonial bye-laws. The colonial economic
development policies and plans contain little or no stringent rules to conserve the
natural resources or to limit pollution. The major laws on water pollution include
Criminal Code of 1958 with section 246 aimed at controlling burial in houses
and the Public Health Act of 1958, which aims to control the spread of diseases,
slaughtering of animals, and disposal of night soil and refuse. The fines and
penalties are liberal and the laws are quite often poorly enforced.
As early as 1964, a committee was formed from various arms of the Federal
Ministries to study the problems of water pollution and to formulate a program
leading to the enactment of a Water Pollution Act of the federation. Over the years
there has been an increased awareness of the problems of water pollution with no
positive steps taken in the right direction.
In 1970, the Expert Committee on environmental health of the National Council
of Health reviewed many proposals received on this subject with the aim to
recommend the establishment of a sanitary inspectorate in the Federal Ministry of
Health. However, the efforts yielded very little results.
Thus, the formative years of institutional environmental regulation in Nigeria
could be said to have been characterized by the absence of clear scientific criteria
and standards on toxic wastes and on pollution levels, while the enforcement of
basic environmental and household hygiene depended largely on qualitative legal
rules. Oil pollution has attracted some considerable public interest since the 1970s.
A number of communities in the Niger Delta Wetlands of Nigeria have protested
the ecological problems of the oil industry and the paucity of government action
(Chokor, 1993).
Water pollution remains a major problem in the Nigerian environment. Both
urbanization and industrialization have contributed to the scale of pollution.
Presently, there are no incentives for the adoption of pollution abatement measures
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Adelegan 111
and very few disincentives, if any, for polluting the environment. Wastes are
disposed of indiscriminately, especially for small and medium scale industries.
Major establishments, like the refinery industry, are encouraged to adopt adequate
waste disposal and good refining practices under the Petroleum Refining
Regulation Act of 1974.
The 1979 Federal Constitution was centered on environmental hygiene, with
emphasis on refuse clearance, and the management of liquid and solid wastes
in abattoirs, residential homes and streets. All of these issues came under the
supervision of local government councils (Ola, 1984). It is instructive to note
that the Federal Constitution addressed the issue of toxic and hazardous wastes
disposal and dumping in Nigeria before the Federal Government woke up
to confront the problem. This was important in dealing with the subject of
environmental abuse because Nigeria lacked both the institutional and legal
framework to tackle the issue.
Another stumbling block in the development of policies to regulate hazardous
waste occurred with the hesitation to create the Federal Environmental Protection
Act, now Federal Ministry of Environment with effect from September, 1999).
In May 1998, the shipment of toxic chemical wastes from Italy to Nigeria made
up principally of polychlorobiphenyls to be dumped at the Koko Port triggered
a hostile media reaction that further hastened the creation of the then Federal
Environment Protection Agency. This Agency was part of the emerging
coordinated approach to environmental issues to protect, restore, and preserve the
ecosystem of the Federal Republic of Nigeria (FGN, 1988). The decree 58 of 1988
requires the Federal Environment Protection Agency to establish environmental
guidelines and standards for the abatement and control of all forms of pollution.
The coming of Federal Environment Protection Agency represents a milestone in
environmental management effort in Nigeria.
The major function of the Agency is the establishment of national environmental
guidelines, standards, and criteria most especially in the area of water quality,
effluent discharge, air and atmospheric quality and including the protection of the
ozone layer which in the past was absent (Federal Government of Nigeria, 1988).
Others are noise control, hazardous substance discharge control and the removal
of wastes and ascertaining spillers' liability. The agency also has power to initiate
policy in relation to environmental research and technology and in formulating
and implementing policies related to environmental management. In addition, the
Agency is given some enforcement powers including the right to inspect facilities
and premises, search locations, seize items and arrest people contravening any
laws on environmental standards, and prosecuting them.
The agency is also empowered to initiate specific programs of environmental
protection and may establish monitoring stations or networks to locate sources
of, and dangers associated with, pollution. Furthermore, it has powers to conduct
public investigations or inquiries into aspects of pollution (Federal Government of
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112 Eighth International Conference on Environmental Compliance and Enforcement 2008
Nigeria, 1988). Thus, the Federal Environment Protection Agency is the supreme
reference authority in environmental matters in Nigeria, although state and local
government authorities and institutions are still expected to play their traditional
role of monitoring and enforcing standards as well as fixing penalties charges,
taxes, and incentives to achieve certain environmental goals.
Once the decision was taken to confront the problem of environmental abuse,
Nigeria led the fight against hazardous wastes dumping until the signing of the
Basal Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal in 1989. However, there was no transboundary water
quality monitoring or further action after the signing of the Basel Convention
except for the guidance for the management of solid and hazardous wastes, which
is far from been enforced.
With the development of the Federal Environmental Protection Agency, the States
Environmental Protection Agencies were devised. These were complemented by
the Local Governments Environmental Protection Agencies.
However, industrial pollution was regarded by the Federal Environment Protection
Agency as a priority environmental problem and hence the first ever and only
"National Guidelines and Standards for Environmental Pollution Control" was
more of an industrial pollution control guidelines and standards with few notes
as guidelines for surface impoundments, land treatments, waste piles, land fills,
incineration and hazardous/toxic wastes. Moreover, even the available industrial
pollution control guidelines and standards are not sound enough and far from
been enforced in the country as it were presently. The main legislation for the
protection of water resources is scanty.
A number of Nigerian State Environmental Protection Agencies now charges
pollution levies. Although the measure is expected to serve as some disincentive
to pollution generation and also for the alleviation of pollution problems in the
state, it is better seen as a revenue generation effort on the part of the government.
It is difficult to say whether the revenue so realized is actually reinvested into
pollution abatement. Further, the policy provides no real incentives for industries
to adopt pollution monitoring and reduction measures or clean technologies.
So far, there are no clear formulated policies in Nigeria aimed at coordinating and
monitoring the relationship between environmental management and sustainable
development. This is in spite of all the efforts of the Federal Environmental
Protection Agency. Presently, the environmental protection legislation in Nigeria
is poorly enforced. There are no incentives for the adoption of pollution abatement
measures and very few disincentives for polluting the environment. Wastes are
disposed indiscriminately especially for small and medium scale industries but
excluding major establishments like the refinery industry which is encouraged to
-------
Adelegan 113
adopt adequate waste disposal and good refining practices under the Petroleum
Refining Regulation of 1974.
Moreover, in the inventory of Nigeria environmental problems complied by the
Federal Environment Protection Agency (1999) in the context of socio-economic,
cultural and ecological imperations, environmental pollution of water (industrial
effluent, chemical fertilizers, human waste, eutrophication, deposits by run offs, oil
spillage, etc) and issues of health (water borne diseases such as cholera, typhoid,
dysentery brought about by the use of contaminated water) have been deemed
critical and therefore deserves a place in any master plan for environment and
natural resource conservation.
It must be stated that the Federal Environmental Protection Agency is
handicapped by the limited environmental information available, the range, nature
and diversity of information required as well as the scope of the work itself.
Moreover, the need for environmental control arises from the fact it brings
improved health and better living conditions. Experiences from advanced
industrialized countries have shown that in the short term, the net effect of
pollution control activities is almost certain to have some macroeconomic impacts
including improved health, reduced productive time loss and economic growth.
3 TREND IN POLLUTION AND POLLUTION LOADS BY DOMESTIC
AND INDUSTRIAL EFFLUENTS IN NIGERIA
The discharge of wastewater into surface waters and the resultant deleterious
changes in water ecology have been reported by several researchers (Law, 1980;
Okoronkwo and Odeyemi, 1985; Odokuma and Okpokwasili, 1993) who also
expressed concern over human health and the possible accumulation of human
enteric pathogenic microorganisms by aquatic organisms.
Incidences of water-borne diseases in rural areas of developing countries leading
to millions of deaths have been reported (UNU, 1983). Some of these deaths have
been traced to the use of waters grossly polluted by untreated waste (De Silva et
al, 1988; UNEP, 1991).
The discharge of wastewater from bathroom, laundry, slaughterhouses, etc have
been used to explain the deterioration of most tropical rivers as they pass through
inhabited places (Oluwande et al, 1983). The condition, pollution load and effluent
effects on water sources in Nigeria are as follows:
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114 Eighth International Conference on Environmental Compliance and Enforcement 2008
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Adelegan 115
The effect of uncontrolled disposal system renders surface waters and
underground water systems unsafe for human, agricultural and recreational
use. It also destroys biotic life, poisons the natural ecosystems, poses a threat to
human life, and is against the principles of sustainable development. However, if
the adverse effects of river pollution and spread of water borne diseases are to be
mitigated in Nigeria, current planning laws and waste disposal practices must be
reassessed (Sangodoyin, 1989).
4 THE USE OF MARKET-BASED INSTRUMENTS FOR POLLUTION
ABATEMENT IN NIGERIA - MERITS AND CHALLENGES
The market based approach to environmental management is concerned with
creating conditions in which the production of goods and services can flourish
with the support of an enabling environment for private sector activity and
an economic framework of incentives and reward for good organizational
performance.
Environmental management in Nigeria has historically been characterized by
a "command and control" approach. The limitations of this approach included
an acute shortage of government funds, managerial skills, and administrative
enforcement capacities. Hence, the use of economic and financial instruments to
complement the traditional command-and-control system could overcome some
of these difficulties because the market based approach is certain to generate
large inflow of financial resources from the polluting industries at the early stage
of environmental compliance. These finances could be used for administrative
enforcement and monitoring costs and capacity building, resulting in the
achievement of economic efficiency in the use of the resource.
The proposed market-based instruments approach draw lessons from best
practices around the world. This involves setting up an appropriate taxes and
pollution charges on generators of pollutants that is above the marginal cost
of pollution control to or above the environmental cost that their pollutants
impose on the affected population or communities (World Bank, 1994; 1998).
The environmental taxes and charges would have the simultaneous benefit of
generating financial resources while also acting as disincentives to polluters. This
includes emission charges or taxes based on the quantity and quality of pollutants
discharged (water effluent charges).
The pollution levy system would involve imposing charges only for pollutants that
exceeded emissions standards by the Nigerian Federal Environmental protection
Agency and then only for the one pollutant most in violation. A fee would also be
charged on the total quantity of wastewater discharged into river bodies.
The major challenges to the adoption of the market-based instruments approach
in Nigeria include the need for an accurate monitoring network, transparency,
a working legal system, and a realistic incentive to trade (NEST, 1995). Other
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116 Eighth International Conference on Environmental Compliance and Enforcement 2008
challenges include corruption, favoritism, and poor environmental enforcement.
In addition, other unique obstacles include the fact that there are fewer trained
people and the best people tend to be concentrated in capitals rather than in field
post. Finally, equipment for monitoring and data collection are scarce and most
basic data are unreliable.
However, despite the challenges of the market-based instruments approach
enumerated above, the system still offers high potential for efficient and cost-effective
environmental management approach in Nigeria when mixed with the traditional
"command and control" system. Hence, the argument for economic instruments
above suggests that the efficiency gains from their use are an outcome of incentives
for pollution abatement innovations and the ability of firms to reduce emissions
in the most cost-effective manner. However, the introduction of the market based
approach would need to be preceded with a significant capacity building.
5 RECOMMENDATION AND CONCLUSION
One of the major goals of environmental regulation from the inception has been
to reduce water pollution. There have been no clearly established, coordinated
policy framework and standards for diminishing water pollution, especially
through resource pricing, incentives, and taxes. In contrast, heavy reliance has
been placed on qualitative legal rules. However, the benefits of clean environment
would be available only if the generators of pollutants are encouraged to invest in
pollution prevention and abatement technologies with the help of a judicious mix
of regulatory policies, economic incentives, and fiscal instruments.
6 BIBLIOGRAPHY
Adekanbi, E.O. (1979): A study of the Industrial Effluents and Waste Disposal
Habits of some Industries discharging directly into the Lagos Lagoon, M.Sc.
Dissertation, Chemistry Department, University of Ibadan, Ibadan, Nigeria.
Bell, R.G. and Russell, C (2002): Environmental Policy for Developing Countries, Issues
in Science and Technology, Spring 2002.
Chokor, B.A (1993): Government Policy and Environmental Protection in
Developing World, Environmental Management, Volume 17, Number 1, pp. 15-30.
De Silva, N.P., Karunatileka, R and Thiemann, W. (1988): Study of some Physico-
Chemical Properties of Nilwala River Water in Southern Sri Lanka with special
reference to Effluents resulting from Anthropogenic Activities, /. Environ. Sci.
Health. Part A, A23, 381 -398.
Federal Environment Protection Agency(1991): National Environmental Protection
(Effluent Limitation) Regulations (5.1.8), Federal Environment Protection Agency,
FGPL, Lagos, Nigeria.
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Adelegan 117
Federal Environment Protection Agency(1999): National Master Plan for Public
Awareness on Environment and Natura IResources conservation in Nigeria, Federal
Environment Protection Agency, Garki, Abuja.
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Law, A.T (1980): Sewage Pollution in Kelang River and its Estuary, Pertanika, 9, pp.
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NEST (1995): The Challenge of Sustainable Development in Nigeria, Aina T.A and
Salau, A.T. eds, Nigerian Environmental Study Action Team, Nigeria.
Odokuma, L.O and Okpokwasili, G.C (1993): Seasonal Ecology of Hydrocarbon
Utilising Microbes in the Surface Waters of a River, Environmental Monitoring
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Okoronkwo, N and Odeyemi, O (1985): Effects of a Sewage Lagoon Effluent on the
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71-86.
Ola, C.S. (1984): Town and Country Planning and Environmental Laws in Nigeria,
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Oluwande, PA, Sridhar, M.K.C, Bammeke, A.O and Okubadejo, A.O (1983):
Pollution levels in some Nigerian Rivers, Water Research, 17 (9), pp. 957-963.
Oshibanjo, O., Faniran, J.A., Adeleke, B.B and Oderinde, R.A. (1988):
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119
FEEDBACK TO LAW MAKING AND PERMITTING
BIEZEVELD, DR. GUSTAAF1
1 Environmental Public Prosecutor, National Prosecution Office on Fraud and
Environmental Crime, P.O. Box 19518, 2500 CM, The Hague, The Netherlands,
g.a.biezeveld@om.nl.
SUMMARY
The model of the regulatory chain illustrates the existence of mutual relationships
between legislation, permitting, implementation, compliance, and enforcement.
Therefore, it is necessary that officials who are in charge with one of these
regulatory tasks must always be aware of the whole chain and take into account
what is required for good functioning of the chain. Due to differences in view and
position, such an integrated approach is not always common.
It is in the interest of practitioners like inspectors, investigators, public prosecutors,
and judges that the gap between their world and the world of legislators and
permitting officials is bridged. In order to increase efficiency and compliance,
these two worlds should be brought together. This paper provides examples of
bridging this gap based on Dutch experiences. Further, it provides insights of
practitioners that can be utilised by legislators and permitting officials.
1 INTRODUCTION
It is commonly accepted that the focus of policymakers, legislators, and permitting
officials must be on the reality of producers, consumers, and intermediaries, as
well as the executive branch of government. In other words: an execution-oriented
attitude is required. The need for such an attitude can be illustrated by means
of the model of the regulatory chain, introduced in 1984 by Dr. Pieter Winsemius,
former Dutch Minister of Environment:
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This chain that is driven by policies, consisting of five links: (1) legislation; (2)
permitting; (3) implementation; (4) compliance; and (5) enforcement (including
inspections). This model makes clear that the aimed results of policies, legislation,
or permits can only be achieved if the following links are in good order. It
also shows that the effectiveness and efficiency of execution, compliance, and
enforcement are highly dependent on the quality of legislation, standards, and
permits. The existence of mutual relationships between the links of the regulatory
chain implies that officials who are in charge with one of these links must always
be aware of the whole chain and must take into account what is required for good
functioning of all links of the chain. Yet, such integrated approach is not common
practice, as we all know from experience. This is mainly due to differences in view
and position.
We all know that there is a difference between the world seen by inspectors,
investigators, and public prosecutors and the world seen from the centres of
Government or the offices of permitting officials. As a result, it is my general
experience as public prosecutor that policymakers, legislators, and permitting
officials have a rather optimistic view on human behaviour and the willingness
of men and companies to comply with environmental regulations. This optimism
does not always match the experiences of enforcement officials.
They have learned in practice that a majority of men and companies have a calculating
attitude. This implies that they are always looking for opportunities to save costs
or to make more profits. When they assess the expected profits of non-compliance
of governmental rules greater than the risks of non-compliance, a majority of men
and companies will choose for non-compliance. As result, enforcement officials
are mostly more aware than legislators and permitting officials that environmental
laws and permits must be accompanied by good conditions for enforcement and
may not provide easy opportunities for non-compliance.
This brings me to another experience: policy makers, legislators and permitting
officials are generally not in an adequate position to fully assess what conditions
are needed for inspectors, investigators, public prosecutors, and judges to fulfil
their enforcement tasks adequately. This applies to all levels of government.
An example of this is the absence of European provisions on co-operation and
mutual assistance between competent authorities and inspectors in relation with
the enforcement of environmental directives and regulations. In my opinion, such
provisions are indispensable for the enforcement of the rules on transboundary
activities with chemical substances, products, waste, and protected animals or
plants. By comparison, there are European provisions on co-operation and mutual
assistance in the field of criminal law, food safety, taxes, and customs.
These different views and positions of policy makers, legislators, and permitting
officials on one side and enforcement people on the other side explain to a great
extend why both environmental laws and permits quite often are not adequate
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from enforcement viewpoint. Therefore, it is a great challenge for all of us to
develop means to bridge the gap and bring these worlds together. In other words,
how can input and feedback from the enforcement side be given to legislative and
permitting processes at various levels of government?
Based on Dutch experiences, I would like to mention some examples and provide
insights of practitioners that can be transferred to legislators and permitting
officials. When I speak of practitioners, I really mean people who have practical
knowledge based on their own recent experiences. This includes inspectors,
investigators, public prosecutors, and judges, as well as those who have to comply
with environmental laws and permits (such as a company and it's lawyers).
2 CHECKLIST FOR LEGISLATORS AND PERMITTING OFFICIALS
From 2001 to 2004, I participated in a joint project of the Dutch Ministry of
Environment and the Board of the Public Prosecutors to create better conditions
for the enforceability of environmental legislation. This project resulted in a
handbook for policy makers and legislators with recommendations on behalf of the
enforceability of environmental legislation. These recommendations are based on
experiences and insights of practitioners. A summary of these recommendations
(the so-called golden rules) that can be used as checklist is included as an annex to
this paper.
The Dutch "golden rules" have been used as input for the project "Developing
a checklist for assessing legislation on practicability and enforceability" of
the European Union Network for the Implementation and Enforcement of
Environmental Law (IMPEL). For further clarification see Annex 2 and/or visit
http://ec.europe.eu/environment/impel/pdf/pechecklist.pdf.
In my view, such checklists are an indispensable tool for legislators and permitting
officials, but to get the best results they should be used in interaction with
practitioners. Its contribution to better regulation is highly dependent on the
awareness of legislators and permitting officials that good legislation cannot be
made without the contribution of practitioners and their willingness to take the
practitioner's input seriously. Consequently, practitioners should become actively
involved in legislative and permitting processes.
3 INVOLVEMENT OF PRACTITIONERS IN THE LEGISLATIVE PROCESS
In the Netherlands, it has become practice that the Board of Public Prosecutors is
invited by the Ministry of Justice to advise on proposals for new environmental
regulations (prepared by the Ministry of Environment, the Ministry of Water
management or the Ministry of Agriculture, and Nature). The same happens when
environmental regulations are reviewed or evaluated; during which practitioners
from the Public prosecutors' offices or the police with the required expertise are
involved to assess the proposals. Quite often advice is asked in a late stage of the
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legislative process so that there is little room left for essential changes. Therefore,
a more effective way is direct involvement of public prosecutors and the police in
an earlier stage by the Ministries concerned.
One of the input activities in which I was involved concerned the making of a
new integrated regulation on acts with firework in the interest of the protection
of human health and environment. The impetus for this was a serious explosion
in a fireworks plant in the city of Enschede in 2000. Twenty-two persons were
killed by this explosion and many more wounded. In a vast area houses were
destroyed. Research proved that insufficient enforcement by the local government
in combination with inadequate legislation had provided an opportunity for the
owner to store more hazardous fireworks than was permitted. It was my task
to give advice to the legislative officials concerned based on the knowledge and
experiences that the police and environmental public prosecutors had gained
during the nineties about illegal acts of both companies and private persons
with firework. I was assisted by a working group consisting of inspectors and
investigators (police) with a broad experience in the fireworks' field - import,
trade, store, shows and transport. From the beginning members of this working
group were asked to check the adequacy of drafts of the new regulation from the
enforcement viewpoint. The Ministry of Environment took our comments very
seriously.
That working group also played an important role in preparatory activities on
behalf of the implementation and enforcement of the regulation. As a result, the
implementation of the new regulation was accompanied by the setting up of a
specific comprehensive organisation for the inspection and the collection and
exchange of enforcement data about illegal acts with firework. Members of the
working group also contributed to training programs for national and provincial
inspectors, policemen, public prosecutors and judges.
Based on my experiences I think that there are at least four essential conditions
that have to be fulfilled for successful input and feedback by practitioners.
A first condition is that the policymakers and legislators have an execution-
oriented attitude. This implies that they have an open mind and ear for input
and feedback from the enforcement side and are convinced of the benefits for the
quality of legislation. This is not ensured on forehand, I dare to say. As far as
the Netherlands are concerned I have noticed that within the various ministries an
execution-oriented attitude is not yet common practice. Probably the situation in
other countries is not quite different.
A second condition is that the planning and organisation of the legislative process
must provide the time and room needed for input and feedback from practitioners.
This must be agreed between the Council of Ministers and the Parliament and,
subsequently, the Ministers and the governmental officials involved. The sooner
and more frequent input can be given into the process, the more it will contribute
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to the quality of legislation. For input and feedback it is not necessary to
participate in meetings. Internet is a very efficient means for this purpose.
A third condition is that there are capable practitioners available who are able
and willing to give input and feedback to policymakers and legislators. It is my
experience in the Netherlands that it is not so easy to find the right practitioners.
I am sure that there are many practitioners who can contribute to the quality of
legislation, but most are unknown to policy makers and legislators. Therefore, the
Ministries should be stimulated to set up pools of practitioners in the various fields
of environmental policy. These pools can be trained to give input and feedback
and to become familiar with the legislative process at the national level.
A fourth condition is that policy makers and legislators are able to withstand
pressure from the Parliament, non governmental organisations, economic sectors
and media to speed up the legislative process. In the Netherlands it has become
common practice that ministers are pressed by various groups - directly or via
the Parliament - to speed up the legislative process, often with negative effects on
practicability and enforceability.
4 INVOLVEMENT OF PRACTITIONERS IN THE PERMITTING PROCESS
At the provincial level of government it has become practice that provincial
inspectors are invited to assess drafts of environmental permits for industrial
installations and waste management plants on enforceability. Sometimes also the
public prosecutors' office is consulted on the enforceability of specific provisions.
5 FEED BACK FROM CRIMINAL INVESTIGATIONS
In 2005, the Dutch National prosecution office on fraud and environmental
crime, that is charged with the guidance of investigations and the prosecution of
environmental crimes, and the investigation departments of both the police and
some Ministries agreed to give feedback on found shortcomings of environmental
legislation, permits or inspection practices.
The procedure is as follows. At the end of an investigation the chef of the
investigation team makes a report with relevant conclusions and recommendations
for the legislator or the competent authority, to be approved by the public
prosecutor concerned. The report is sent by the head of the investigation
department to the Minister of Home Affairs, who will address the report to
the responsible Minister or other competent authorities. For example, since
2005, reports have been presented to competent authorities on hazardous and
non hazardous waste, contaminated grounds, illegal fireworks, and protected
endangered species.
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6 CONCLUSION
This paper has only provided a few examples, but many more exist. There are
other ways of giving input or feedback as well. However, input and feedback take
place and both are indispensable for a good functioning of the regulatory chain.
They require much from inspectors, investigators and public prosecutors, as well
from law makers and permitting officials. In any case, excellent contacts, mutual
respect, and the ability to translate enforcement experiences into legislative,
judicial and organising solutions are necessary conditions for successful input and
feedback.
Therefore, I am convinced that the two worlds can only be brought together
if both sides are ready to co-operate and get the opportunity to meet each other
and exchange insights and experiences. Only then there is a chance that all
parties involved become aware that they are partners in one regulatory process in
the interest of the protection of the environment, human health and safety. The
regulatory chain is not only a model of regulatory activities. It is also a model of
co-operation between various governmental officials and offices.
ANNEX 1: GOLDEN RULES FOR ENVIRONMENTAL LEGISLATORS
1 PREPARATION
Golden rule 1
Start every new legislation project with a careful description of the policy problem
for which the legislation must offer a solution, and with choosing a suitable direction
to the mainlines of the solution. In doing so make deliberate choices concerning the
way in which the behaviour of companies, citizens or government bodies is to be
influenced.
Golden rule 2
A good starting memorandum for new legislation is the result of:
a. teamwork of the policy maker and the lawyer who will draft the legislation
b. dialogue with practitioners
Golden rule 3
For new legislation chose as much as possible for a legal framework or a legal basis,
with which:
a. both men and environment can be protected (concerns: purpose)
b. all consequences for both men and environment can be met (concerns: reach)
c. limits can be set to all activities and acting (legal) persons, that contribute (to a
relatively considerable extent) to the problem (concerns: scope)
Doing so, take into account the existing possibilities of other legal provisions, also
of other ministries and authorities.
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Golden rule 4
Always use the need for new legislation to combine new and existing rules in one
law or decree, in case these rules (partly) concern the same issue or the same target
group. It benefits the implementation, compliance and enforcement of the rules.
Golden rule 5
Constantly be aware that the extent to which and the way in which the freedom of
people is limited, is of a direct influence on the (possibilities of the) implementation,
compliance and enforcement of the rules.
Golden rule 6
Make a well-considered choice concerning the administrative authority that will be
competent to implement and enforce the rules, because of:
a. the nature, volume and complexity of both the implementation- and enforcement
tasks in relation to the activities they focus on, and the coherence with other sets
of activities;
b. the potential seriousness and scale of the consequences for men and environment
and fair competition in case of non-compliance of the norm;
c. the level of "mobility" (across administrative borders) of the target group.
Golden rule 7
Concerning enforcement make deliberate choices about the role of administrative
law, penal law and if desired civil law in the light of:
a. the collective and individual (legal) interests that an intended set of rules aims
to protect as well as the potential nature, scale and effects of infringements on
these interests as a consequence of non-compliance of these rules;
b. the possibilities to inspect and trace offences of the intended set of rules and the
efforts this probably will cost;
c. the extent to which the competent authority for implementation and enforcement
can get into a conflict of interest;
d. the extent to which the target group, citizens and intermediate organisations
may have an interest and are willing and capable to take (civil) action themselves
against non-compliance of the proposed legislation.
Golden rule 8
During the preparation of the legislation develop, together with the involved
competent administrative body, a vision on the desired organisation of the
inspection. Create political consensus on this topic and lay it down in the explanatory
memorandum to the legislation
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Golden rule 9
In all stages of the preparation of the legislation stay in touch with persons who
have practical knowledge on the possibilities to implement, comply and enforce the
intended rules.
Golden rule 10
Take goodcareof finding appropriate conversationpartners with practical knowledge
and create, where suitable, a knowledge pool of experienced practitioners, in co-
operation with the administrative bodies involved in the issue.
Golden rule 11
In preparing or implementing European legislation, follow as much as possible the
same approaches used for the preparation of national legislation.
DESIGN
Golden rule 12
Always take care that there can be no doubt about:
a. what the norm is that has to be complied with;
b. to whom the rules refer, so by whom they have to be fulfilled or complied with
and by whom the inspection on compliance is to be carried out and against
whom, if necessary, enforcement action has to be directed;
c. how inspection can be done and how it can be determined whether or not there
is compliance with the norm.
Golden rule 13
Limit the number of exceptions to the norm as much as possible.
Golden rule 14
If an exception is absolutely necessary: describe it in a separate paragraph or
article because of clear liability to punishment.
Golden rule 15
Assure that non-compliance of each direct or indirect norm is forbidden.
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Golden rule 16
Assure yourself that every punishable rule has been formulated in such a way that
it provides a sound basis for a future indictment. The norm must be formulated
in one provision, be as short and coherent as possible and preferably without
reference to another article or part(s) of article(s), annexes or other regulations.
Golden rule 17
Clearly indicate in every regulation what the 'core provisions' are, so that both the
target group and the the competent inspection and enforcement officials know
which norms have to be fulfilled and enforced under all circumstances.
Golden rule 18
Constantly keep in mind while formulating provisions that in enforcement
situations all elements of the provision have to be proven. So only use these
elements that are absolutely indispensable.
Golden rule 19
When drafting a rule that includes a duty to provide for, look for a good balance
between space for the addressee's own responsibility and the clarity on the reach
of this.
Golden rule 20
If you have to chose between a so-called 'target-provision' and a 'means-provision'
then let the aspect of 'enforceability by the authorities' have a heavier weight as
the consequences of non-compliance for men or environment can be more serious.
Golden rule 21
Assure that for each norm with a technical character it is clear how it can be
determined to what extent the norm is complied with.
Golden rule 22
Avoid that the way in which to determine the composition of the leach out
values of a substance, product or waste product varies as it is considered to be a
substance, a product or a waste product.
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Golden rule 23
Leave enough room for technical and methodological developments and for the
application of adequate inspection and enforcement methods in the description of
a certain technique or method that is used to determine the compliance of a norm;
preferably by determining that another than the prescribed technique or method is
allowed, provided it has the same level or reliability and representiveness.
Golden rule 24
Always check if persons who - for the determination of the compliance of a
(technical) norm - sample, analyse, measure or calculate or who make use of or
provide others with the data acquired from these activities, can be obliged to
practice the necessary care.
Golden rule 25
Always remember that without obligations to report and register, adequate
inspection and enforcement against non-compliance is not possible in the area of
(chain)activities with substances, products and waste products.
Golden rule 26
Indicate in the introduction to the rules or in the explanatory memorandum on
which legal requirement(s) the norms in a governmental or ministerial decree are
based.
Golden rule 27
When drafting a ministerial decree based on a number of different legal
requirements, be aware of the consequences that differences between these legal
requirements can have for the practicability and enforceability.
Golden rule 28
When changing a norm or penalisation, pay ample attention to the legal
transitional stage from the old to the new situation.
Golden rule 29
Let, as far as possible, the desired circle of target groups, strongly determine
the choice for a specific legal framework or a specific regime of activities or a
combination of legal frameworks and regimes of activities.
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Biezeveld 129
Golden rule 30
Constantly realise that the one who is not part of the target group of a set of rules,
is not bound to comply with these rules.
Golden rule 31
Take care that the circle of the target group is sufficiently broad to assure that:
a chain of activities with a substance, product or waste product is closed and
all (natural or legal) persons that can act contrary to the (aim of the) rules, are
under the rules
and can be checked for compliance and can be addressed in case of non-
compliance
Golden rule 32
Nominate categories of target groups that have to deal with more than one set of
environmental rules, as much as possible in a uniform way. Anyway this goes for:
a. the one who carries responsibility for a company
b. the manager (i.e. owner or keeper) of an activity (either or not in progress)
c. transporter.
Golden rule 33
Keep the description of the scope of a governmental or ministerial decree as simple
and short as possible.
Golden rule 34
Make sure that the territorial sphere of action of a law is broad enough to, if
necessary, also set norms and enforce these on board of your country's aircraft or
ships
Golden rule 35
Leave out demarcation provisions between laws concerning aim, reach or scope of
the norms in laws and decrees. If possible delete existing demarcation provisions.
Golden rule 36
Give explicit attention to the penalisation of norms, if enforcement support
from the side of the penal law is considered desirable; also think about norms in
European directives and regulations.
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Golden rule 37
Forward a mature proposal to the Ministry of Justice concerning the way in which
non-compliance with a norm can be included in the penal code.
Golden rule 38
Constantly be aware of the effects that a change of numbers of paragraphs or
articles can have for the use of other legal provisions.
Golden rule 39
Always take care that there can be no doubt about the question which
administrative authority is competent in a concrete situation for the
implementation and administrative enforcement, including inspecting compliance
with the norms.
Golden rule 40
As much as possible put the competence of implementation and administrative
enforcement in one hand concerning all the norms that are valid for a recognisable
category of target groups.
Golden rule 41
Make a coherent administrative enforcement possible of all the regulated activities
of all target group, in case of activities with a substance, product or waste product
being part of a chain.
Golden rule 42
Take care that the inspection on compliance of all norms in relation to all target
groups has been properly organised. Make clear who is the competent authority
and promote that officials of different authorities have simultaneous competence's
to inspect the compliance of the norms.
Golden rule 43
Make it possible that, in the case of activities with a substance, product or waste
product, that is part of a chain, coherent chain inspections on all regulated
activities and target groups can be carried out.
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IMPLEMENTATION
Golden rule 44
Properly and timely prepare the introduction of new legislation, in co-operation
with those that have to implement it, comply with it and enforce it. Don't forget
the police and the public prosecutor's office.
Golden rule 45
Make an implementation plan focused on the timely realisation of a situation
in which all categories of actors have the knowledge and the ability to do what is
necessary for a proper implementation, compliance and enforcement, and that
these actors in vast majority are willing to act and do act.
Golden rule 46
Take at least two years for aftercare of new legislation.
FEEDBACK AND EVALUATION
Golden rule 47
Always offer the ones that have to implement, comply or enforce the new
legislation the opportunity to provide feedback in a practical way. Inform people
what has been done with their feedback.
Golden rule 48
Always evaluate the functioning of legislation against the background of the
policy problem for which it was intended to provide a solution.
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132 Eighth International Conference on Environmental Compliance and Enforcement 2008
ANNEX 2
European Union Network for
the Implementation and Enforcement
of Environmental Law
IMPEL Project
"Developing a checklist for assessing legislation on practicability and
enforceability"
project report - abridged version
( full version can be found at: http://ec.europa.eu/environment/impel/pdf/pe_
checklist.pdf)
VROM
Inspectie
Inspectie Verkeer en Waterstaat
Institute*,,
tig/ European
Environmental
Policy
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Biezeveld 133
Introduction to IMPEL
• The European Union Network for the Implementation and Enforcement of
Environmental Law is an informal network of the environmental authorities of
EU Member States, acceding and candidate countries, and Norway. The European
Commission is also a member of IMPEL and shares the chairmanship of its Plenary
Meetings.
• The network is commonly known as the IMPEL Network.
• The expertise and experience of the participants within IMPEL make the network
uniquely qualified to work on certain of the technical and regulatory aspects of
EU environmental legislation. The Network's objective is to create the necessary
impetus in the European Community to make progress on ensuring a more effective
application of environmental legislation. It promotes the exchange of information and
experience and the development of environmental legislation, with special emphasis
on Community environmental legislation. It provides a framework for policy makers,
environmental inspectors and enforcement officers to exchange ideas, and encourages
the development of enforcement structures and best practices.
• Information on the IMPEL Network is also available through its website at:
http://europa.eu.int/comm/environment/impel
Summary and overview of the checklist
• In the policy debate on better legislation at the European and national level, there is a
growing consensus on the need to address the implementation deficit. EU legislation,
including environmental legislation, is too often not properly or fully implemented
across Europe. There is real evidence of practicability and enforceability problems
caused by the way legislation is designed and written and by poor implementation
conditions.
• Problems of practicability arise when competent authorities in the Member States
encounter difficulties in the practical application of legislation, because insufficient
attention has been paid to the need for proper transposition into national law
and application through individual administrative decisions, or to the need for
adequate infrastructure and resources. Problems of practicability may also be faced
by the regulated target group when their obligations as defined by the legislator are
unclear or unrealistic. At the end of the regulatory chain, legislation, to be credible
and effective, also needs to be enforceable by competent authorities if the regulated
target group fails to comply. Enforceability requires thoughtful consideration, at an
early stage, of such issues as the technical and practical feasibility of monitoring and
inspection, the resources required to detect and prove violations, and the availability
and deterrent effect of administrative or penal measures to sanction offenders.
• In order to encourage policymakers, legislators and stakeholders to devote more
attention to likely problems of practicability in implementation and enforceability
throughout the legislative process, with a view to anticipating and remedying
practicability and enforceability problems through a pro-active approach, IMPEL,
the European Union Network for the Implementation and Enforcement of
Environmental Law, initiated a project aimed at producing a practical checklist to
assess the practicability and enforceability of existing and new legislation with the
aim of improving the overall implementation of EU environmental law in the Member
States.
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134 Eighth International Conference on Environmental Compliance and Enforcement 2008
• The checklist, as presented in this report, was developed through a process
designed to draw upon the practical experience of members of the IMPEL Network
in the implementation and enforcement of EU environmental law. A draft checklist
was prepared by experts in consultation with a project team and international
review group consisting of legal and enforcement experts, based on research into
practicability and enforceability problems and various existing national and European
initiatives and tools designed to address these problems. The draft checklist was
discussed at an international project workshop with the participation of experts
from 17 IMPEL Member countries and EU institutions. Participants to the workshop
assessed the provisions of two pieces of EU legislation, the IPPC-directive and the
Waste Shipment Regulation, with the aim of exploring practicability and enforceability
issues and testing the checklist. The checklist was further refined in light of the
workshop's findings and recommendations. The checklist was finalised taking into
account the views of the review group and the IMPEL Cluster on Better Legislation.
• The checklist is designed to enable actors and stakeholders in the legislative process
to assess EU environmental legislation (and associated national legislation and
implementation efforts) on various aspects of practicability and enforceability, both
ex ante and ex post. Practicability and enforceability considerations can be assessed
and addressed at various stages of the legislative process by different actors:
policy and legal experts and officials of the Commission and of the Member States,
Members of the European Parliament and their staff and the legal/drafting services
of the European Parliament and Council secretariats. In their different capacities
and roles, all these actors can have a decisive influence on the design and wording
of environmental legislation. Stakeholders such as national authorities competent
for implementation and enforcement, European networks like IMPEL, the regulated
community and NGOs, can also use the checklist to provide input into the legislative
process based on their own insights and experiences.
• The checklist is structured in five sections to facilitate its use at various stages of the
legislative and implementation process. It takes into account the differences between
different types of EC legislative acts. The questions are intended to help users address
the relevant issues thoroughly. However, not all questions are relevant at all stages of
the process, and users may decide to use parts of the checklist selectively, based on
their specific role in the process, expertise and concerns.
• In most cases, it will not be possible to answer the questions by "yes" or "no". Users
are encouraged to approach them rather as open questions. In a way, asking the
questions is as important as answering them. In fact the questions here below can be
used in different ways: as a real checklist, as a questionnaire and as an aide-memoire.
Project Recommendations
1. All actors at the different stages of the EU legislative and implementation process
should take Practicability and Enforceability (P&E) issues into account.
Relevant stages are:
• During the pre-legislative (pre-proposal) phase: when drafting proposals and
organising Impact Assessment (IA) and consultative processes on draft proposals
for legislation;
• During the formal EU legislative procedure: when negotiating legislative
proposals;
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• After adoption of EU legislation: when transposing the adopted legislation or
establishing complementary legislation at Member State level;
• During implementation of legislation: when securing sound implementation
conditions;
• After implementation of legislation: when carrying out ex post assessments and
review processes.
Actors are: European Commission, Council, European Parliament, Member States
(through Council and at transposition/implementation stage).
2. Stakeholders - parties who have an interest in practical and enforceable legislation and
who can give insights on how to achieve this - should be consulted in a timely manner
to ensure that relevant experience on practicability and enforceability is taken on board.
Stakeholders are: national authorities competent for implementation and enforcement,
the judiciary, IMPEL and other Implementation and Enforcement Networks.
3. In order to get involved and to time efforts, stakeholders need a clear, accurate and
up-to-date timetable of the Commission legislative agenda (roadmaps), including
information on what issues are involved.
4. Actors and stakeholders are recommended to use the P&E Checklist to ensure that all
relevant P&E issues are taken into consideration and that P&E issues are assessed and
addressed in a structured way.
5. The P&E Checklist can be used stand alone or in conjunction with other better
legislation tools, like the Joint Practical Guide of the EU institutions. It is recommended
to explore the possibilities of incorporating elements of the P&E Checklist in the
Guide and in the Impact assessment Guidelines of the European Commission.
6. More effort is needed to secure that stakeholders have sufficient capacity to provide
the necessary input, to maximize synergies between existing networks and to
make sure that the full range of stakeholders (e.g. public prosecutors) get involved.
IMPEL specific Recommendations
7. IMPEL cluster 3 (Better Legislation) is recommended to use the P&E Checklist when
offering advice on the practicability and enforceability of new and existing legislation
on basis of IMPEL Members experience. It is suggested that the Cluster apply the
Checklist on some more legislation to develop it further.
8. IMPEL members are recommended to use the Checklist in national fora and to
exchange experiences on its use, for example in the IMPEL cluster 3. IMPEL is
recommended to provide for translations of the Checklist in the IMPEL country
languages so as to get the broadest uptake possible.
9. IMPEL and its members are recommended to promote the Checklist, contacting all
relevant actors and stakeholders in the EU legislative process both on a national and
EU level and using a proper communication strategy.
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136 Eighth International Conference on Environmental Compliance and Enforcement 2008
10. IMPEL is recommended to consider developing links to relevant networks and Better
Legislation initiatives from interested parties. In particular IMPEL should look for
opportunities to promote the P&E Checklist in connection with The Barriers to good
environmental regulation Paper, currently developed by The Heads of European
Environmental Protection Agencies Network.
The IMPEL Checklist on Practicability and Enforceability
A. Questions relating to legislative policy and the choice of legislative
instrument
Primary addressee: Commission policy makers and MS experts involved in the
consultation process.
Phase of the legislative process: very early stage of the legislative process, as part of IA
when there is a proposal, and potentially as part of an ex post evaluation.
Explanatory remarks: The questions in this section relate to the choice of the legislative
instrument - whether directive or regulation. They are inspired by relevant policy
documents on the application of the principles of subsidiarity and proportionality and on
'better regulation'. In practice the choice of legislative instrument might well have been
made before the Impact Assessment and the IA is only carried out on the actual proposal
- i.e. after the choice between regulation or directive (or other instrument) has been made.
In this case the evaluation of the practicability and enforceability of proposed legislation
arises only after the basic policy choice to have recourse to legislation as an instrument
has already been made.
In the Inter-institutional Agreement on better law-making of 16 December
2003, the European Parliament, the Council and the Commission have recalled
the definition of the term 'directive' in Art. 249 of the Treaty, which provides:
A directive shall be binding, as to the result to be achieved, upon each Member State to
which it is addressed, but shall leave to the national authorities the choice of form and
methods.' The same Inter-institutional Agreement further states that, in formulating
proposals for directives, 'the Commission will ensure that a proper balance is struck
between general principles and detailed provisions, in a manner that avoids excessive
use of Community implementing measures.' In the Agreement, the Commission commits
itself to 'explain and justify to the European Parliament and to the Council its choice of
legislative instrument'.
The following provisions of the 1997 Protocol on the application of the principles of sub-
sidiarity and proportionality annexed to the EC Treaty are also directly relevant to the
choice of legislative instrument: 'The form of Community action shall be as simple as
possible, consistent with satisfactory achievement of the objective of the measure and the
need for effective enforcement. The Community shall legislate only to the extent neces-
sary. Other things being equal, directives should be preferred to regulations and frame-
work directives to detailed measures. (...) Regarding the nature and the extent of Com-
munity action, Community measures should leave as much scope for national decision as
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possible, consistent with securing the aim of the measure and observing the requirements
of the Treaty. While respecting Community law, care should be taken to respect well
established national arrangements and the organisation and working of Member States'
legal systems. Where appropriate and subject to the need for proper enforcement,
Community measures should provide Member States with alternative ways to achieve
the objectives of the measures.'
Questions
1. If the proposed choice of legislative instrument is a Directive, is this choice justified in
view of its contents and purpose?
Does it provide sufficient flexibility to facilitate its transposition and insertion into
the national legal systems of the Member States, without compromising the effective
achievement of the results it pursues?
Is the Directive sufficiently clear about the results to be achieved by Member States?
2. If the proposed legislative instrument is a Directive, has a proper balance been struck
between general principles and detailed provisions?
Does the Directive allow for the use of different regulatory instruments and alternative
options for implementation and, if so, is it sufficiently clear under what conditions
these instruments and options can be applied?
Where desirable flexibility is provided by the Directive, would it nevertheless be
useful to provide complementary, non-binding guidance material for national
authorities in charge of transposition and implementation?
Where flexibility is considered undesirable, would the choice of a Regulation not
have been more appropriate in view of the perceived need for a fully harmonized
approach?
3. If the proposed choice of legislative instrument is a Regulation, is this choice justified
in view of its contents and purpose?
Is it necessary that the intended measures be applied in a uniform manner in all
Member States?
If there is no true need for uniform application, would the choice of a Directive not
have been more appropriate in view of subsidiarity considerations?
4. If the chosen legislative instrument is a Regulation, are its provisions actually capable
of direct application in all Member States?
Has the need for complementary legislation clearly been identified?
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138 Eighth International Conference on Environmental Compliance and Enforcement 2008
B. Questions relating to the suitability for transposition and implementation
Primary addressees: Commission policy makers, evaluation units, and Member States'
policy and legal experts/negotiators
Important stakeholders: national authorities competent for implementation
Phase of the legislative process: is primarily focused on the proposal stage of the
legislative process (and could be a core part of IA process). Potentially also as part of an
ex post evaluation.
Explanatory remarks: This set of questions addresses the next stages in the EC regulatory
chain, from the perspective of the public authorities competent for transposition and
implementation in the Member States. Issues of practicability from the perspective of
the regulated community are no less important, but are addressed by a separate set of
questions (see section D).
Transposition, as explained above, is only relevant where the EC legislative instrument
used is a Directive. In this case, implementation in the Member States follows
transposition into their domestic law. In the case of a Regulation, no transposition is
required, and the directly applicable provisions of the EC legislative instruments are
to be implemented as such, though complementary provisions of domestic law may
be required to enable effective implementation. Because of this fundamental difference
between both types of legislative instrument, additional specific questions have been
developed to complement the general ones that are common to both choices.
Questions
5. Does the legislative instrument clearly and unambiguously spell out the requirements
and tasks for the national authorities competent for implementation?
6. To the extent that EU institutions or EU bodies, specifically established under the
legislative instrument or designated by it, are given implementation tasks, is the
division of responsibilities between these institutions or bodies and the competent
national authorities clearly spelled out?
7. Does full implementation of the legislative instrument require the adoption of
implementing measures at the EU level (i.e. delegated rule-making through
comitology procedures)? If so, are such measures likely to be adopted in time?
8. Has the need for any support on EU level for the national authorities competent for
implementation prior to the date of application of the legislative instrument (e.g.
through guidance materials or other practical measures) sufficiently been considered?
9. Has the need for any cooperation between the Member States (and, if relevant,
between Member States and non-member States) in the implementation of the
legislative instrument sufficiently been considered?
Has sufficient attention been given to the possible need for exchange of experience
on EU level between the national authorities competent for implementation after the
coming into force of the legislative instrument?
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10. Are the implementation burdens for the (national and, where applicable, European)
authorities competent for the implementation of the legislation clear? (human
resources, financial resources, knowledge and/or training, performance of new
functions, ICT, organisational structure, etc.)
Are these burdens proportionate to the intended results?
Has a proper balance been struck between public and private burdens?
11. To the extent that the legislative instrument imposes monitoring and/or reporting
obligations on national authorities, are these obligations proportionate to the intended
results and has the resulting administrative burden been kept as low as possible?
12. To what extent are/were national authorities competent for implementation involved
in the development of the legislation at the appropriate stages of the legislative
process and have their opinions on implementation burdens been taken into account ?
Specific question for Directives
13. Is the time period allowed for transposition of the Directive into national law adequate
(e.g. for administrative changes or making investments)? Does the date by which the
Directive is to be transposed leave Member States sufficient time to properly prepare
their implementing bodies for the practical aspects of implementation?
Specific questions for Regulations
14. To the extent that the provisions of the Regulation are not fully self-executing, does
it leave Member States sufficient time to adopt whatever complementary national
legislation may be required for its full implementation?
15. Does the date by which the Regulation comes into effect leave Member States
sufficient time to properly prepare their implementing bodies for the practical aspects
of implementation?
C. Questions relating to the quality of the legislation
Primary addressees: Commission, Council and European Parliament legal drafting units;
MEPs; Member States' legal experts/negotiators
Important stakeholders: national authorities competent for implementation
Phase of the legislative process: This is at the proposal stage - where the concepts of the
proposal (objectives, targets, target audience, timescales) have been worked out and need
translation into robust legislative language.
Explanatory remarks: These questions relate to the intrinsic quality of legislative
drafting and are formulated in such a way that they can be applied to any existing or
proposed provisions of EC environmental legislation, whether in the form of a Directive
or a Regulation, referred to as 'the legislation' (in the event of legislative proposals this
obviously should be read as 'the proposed legislation').
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140 Eighth International Conference on Environmental Compliance and Enforcement 2008
Questions
16. Does the preamble clearly state the intended environmental result of the legislation?
Does the preamble justify and explain the enacting provisions in simple,
understandable terms?
Is it fully consistent with these provisions?
17. Does the legislation contain any provisions without legislative character (e.g. wishes,
political statements) which may confuse the addressees or seem to contradict the
actual normative provisions?
18. Have all the key terms been properly defined, while avoiding excessive detail in
definition which may hamper enforcement? Are the definitions clear and consistent
with the definitions in related legislation?
Is the same term used throughout to express a given concept consistently with the
definitions?
19. Is it clear from the provisions of the legislation who are the ultimate addressees of the
rights and/or obligations they set out?
20. Are the rights and/or obligations of those to whom the legislation is to apply clearly
defined?
Has the use of exceptions been minimised?
Are any technical standards laid down in the legislation clear?
21. Besides the actual target group, will other parties be confronted with the legal effects
of the legislation and, if so, does this come across clearly?
22. Are the rules formulated in such a way that the addressees can read and understand
them easily?
Is the wording clear, simple, concise and unambiguous? Have unnecessary
abbreviations, 'Community jargon' and excessively long sentences been avoided?
23. Are the various provisions of the legislation consistent with each other?
24. Is the legislation consistent with existing legislation (including any international
conventions binding on the EC) and has pointless repetition of existing provisions
been avoided?
Are any references to other texts precise? Have unnecessary cross-references which
make the text difficult to understand been avoided?
25. Does the legislation contain annexes or refer to implementing rules to be laid down
at EC level (delegated legislation), guidelines, technical reference documents or other
documents that have to be taken into account for purposes of implementation and/or
enforcement?
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If so, is the legal status of these instruments clear and do they themselves meet the
practicability and, where relevant, enforceability criteria of this checklist?
26. To the extent that the legislation amends or further develops existing legislation, have
any opportunities for consolidation sufficiently been considered?
Have any opportunities for integration with other relevant pieces of legislation
sufficiently been considered?
Has any relevant case-law of the ECJ on the existing provisions been taken into
account?
D. Questions relating to the practicability of compliance by the regulated
target group
Primary addressees: Commission policy makers, evaluation units, Member States' policy
experts/negotiators
Important stakeholders: national authorities competent for transposition and
implementation and regulated target groups (e.g. industry)
Phase of the legislative process: is focused on the proposal stage of the legislative process
(and could be a core part of IA process). Potentially also as part of an ex post evaluation.
Explanatory remarks: This set of questions is aimed at assessing the likely response of
the regulated target group to the legislation, bearing in mind that the political choice
to have recourse to legislation as a policy instrument has in principle been made.
It draws most heavily on the Table of Eleven, a tool developed in the Netherlands
which can help map the strong and weak points of rules with respect to the likelihood
of compliance and the feasibility of enforcement. It consists of eleven dimensions,
which together determine the extent to which legislation is complied with. The
eleven dimensions are formulated with a view to achieving the highest possible
practicability in the fields of policy development and law enforcement. See also Annex 4.
In applying this part of the checklist, users should be aware that what matters for the
ultimate addressees of the legislation is not so much the EC legislative text itself, but their
perception of it, as they are confronted at their level with either the provisions of domestic
law transposing the requirements of a Directive, or the directly applicable provisions of a
Regulation, as interpreted and applied by competent national authorities in the domestic
legal context, together with relevant complementary provisions of national law. Since all
of these elements are not fully known at the time EC legislation is drafted, users of the
checklist will have to make a number of assumptions about these various factors which
will influence the target group's perception and resulting behaviour. The relevance of
some questions and the possibility of answering them with any degree of confidence
will vary widely according to national circumstances. If it is not possible to address some
questions during the legislative process at the EU level, the same questions will most
likely have to be addressed at the stage of transposition or elaboration of complementary
national legislation. To the extent that the ultimate impact of the legislation on the target
group depends on choices made in a national legislative process, this section of the
checklist will be of particular importance for those involved in this process.
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142 Eighth International Conference on Environmental Compliance and Enforcement 2008
Like all other sections, this section of the checklist has been drafted from the perspective
of public authorities concerned with ensuring the highest possible level of compliance
with rules that have been or are intended to be laid down. It is not primarily concerned
with evaluating the burden and cost of compliance for the regulated community, which is
an issue that normally should be addressed at an earlier stage in the policy development
process, when the political decision whether or not to legislate, rather than how to
legislate, is made. Obviously, the practicability of compliance is a question that is closely
related to that of administrative burdens and compliance costs for the private sector,
which are key issues for consideration in IA procedures. Consequently, those responsible
for carrying out such procedures at the EU or Member State level may also find the
questions in this part of the checklist useful, as will representatives of the regulated
community who may be consulted during the IA process. The answer to some questions
is likely to vary considerably depending on who answers them.
Questions
27. Is it clear who belongs to the target group?
Will it be clear to the target group what obligations it will be expected to comply with?
Is the target group actually capable of understanding the rules as formulated?
28. Are the obligations implementable (achievable/realistic) for the parties to whom they
are addressed?
If there is no specific target group, are the parties responsible for implementation
clearly identified or identifiable?
29. In the target group's perception, are the policy and rules embodied in the legislation
likely to be regarded as reasonable and acceptable, and the burden of complying with
them as not disproportionate?
Does the target group feel it shares responsibility for putting this policy into practice?
30. In the target group's perception, does compliance with its obligations cost relatively
little time, money and effort?
31. In the target group's perception, could breaking the rules be thought to yield little
or no advantage (i.e. no incentive not to comply) or even disadvantages (i.e. positive
incentive to comply)?
32. In the target group's perception, could complying with the rules be thought to yield
any advantages?
33. Can compliance with or contravention of the rules be easily and unambiguously
established by the target group (e.g. through a fixed measurement method)?
34. In the target group's perception, is it likely that any violation would soon be noticed
by its peers?
Does the target group's community generally disapprove of such violations?
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35. Is there likely to be any horizontal supervision (e.g. financial auditing, disciplinary
codes, auditing for certification) which may encourage or facilitate compliance with
the rules laid down in the legislation?
36. Are there easy ways of avoiding compliance with the rules? Have the fraud-
susceptible points in the legislation been identified and can measures be taken to
address them ?
E. Questions relating to the enf orceability of the legislation
Primary addressees: Commission, Council and European Parliament legal drafting units;
MEPs; Member States' legal experts/negotiators
Important stakeholders: national authorities competent for enforcement (e.g. public
prosecutors) - who know how the enforcement system works in practice.
Explanatory remarks: These questions address the final link in the regulatory chain:
the possibility and likely effectiveness of the use by national public authorities of
legal, administrative and other means at their disposal to check compliance and to
convince or if necessary compel the ultimate addressees of the legislation to comply
with their obligations, where they are found to be unwilling to do so without coercion.
Enforceability too, depends on a wide range of different factors, some of which are very
difficult to judge at the time of drafting legislation at the EU level. Since compliance
checking, inspection and enforcement remain essentially determined by national law,
these questions will normally have to be addressed mostly at the stage of transposition
(for Directives) or elaboration of complementary national legislation (for Regulations),
taking into account specific national circumstances. However, if it is expected that the
effectiveness of a piece of EU legislation heavily depends on adequate enforcement in the
Member States, it is also crucial to already explore in the proposal phase what provisions
should be regarded as key, what in practice is needed in terms of enforcement, whether
the Member States have sufficient means in this respect and whether the EU legislation
should contain concrete and detailed enforcement requirements. This also applies to
the issue of enforcement co-operation between Member States in case of transboundary
activities. Finally, users of the checklist should be fully aware of the fact that the decision
to impose criminal sanctions on violators of environmental law ultimately depends on
independent judicial authorities who operate in accordance with general procedures,
rules and principles of criminal law whose rationale is unrelated to the objectives of
environmental policy.
Questions
37. Is it clear which authorities will be in charge of checking compliance, carrying out
inspections and enforcing the legislation and what their tasks and obligations will be?
38. To what extent were these authorities involved in the development of the legislation
at the appropriate stage of the legislative process?
Has their opinion on the enforceability of the legislation and the burden involved been
sought and taken into account?
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144 Eighth International Conference on Environmental Compliance and Enforcement 2008
39. Has the need for any support on EU level for the national authorities competent
for inspection and enforcement prior to the date of application of the legislation
sufficiently been considered?
Has the possible need for common guidance materials been anticipated?
40. What non-coercive means will be available to competent national authorities to
achieve compliance without having recourse to formal enforcement action (e.g.
penalties, coercive measures) under administrative or criminal law? Are such means
likely to be effective or is recourse to enforcement action likely to be frequently
required?
41. Is it clear what provisions should be enforced and what provisions should have
priority in this respect (core provisions of the legislation)?
Is it clear what means of enforcement under administrative and/or criminal law can
be used under the terms of the legislation and are these likely to be effective?
42. Are the inspection and enforcement burdens for the competent authorities clear
(human resources, financial resources, knowledge and/or training, performance of
new functions, ICT, organisational structure, etc.)?
Are these burdens proportionate to the intended results?
43. Are the monitoring and measurement methods to be employed consistently defined?
Is the compliance checking effort expected of competent authorities realistically
feasible?
44. Is sufficient capacity for the performance of the inspection and enforcement tasks
available?
45. Where relevant, has the need for any cooperation and/or exchange of experience
between competent national authorities in the actual inspection and enforcement of
the legislation sufficiently been considered?
46. To the extent that EU-level bodies, specifically established under the legislation, are
given tasks directly related to inspection or enforcement, is the division of labour
between these bodies and the competent national authorities clearly spelled out?
47. Has the date on which the legislation will enter into effect been established in such a
way as to allow sufficient preparation time for the national authorities competent for
inspection and enforcement?
48. In the target group's perception, will there be a high risk of detection of a violation
in the event of an inspection (i.e. a records inspection or a physical inspection) by the
competent authorities?
Is the inspection technology used sophisticated enough?
Will there be a major real risk of detection in an inspection?
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49. In the target group's perception, will there be a high risk of a violation detected by
others than the authorities (e.g. those exercising horizontal supervision or the general
public) being reported to the authorities?
Does the target group think that people generally know which authorities to report
detected violations to and would be generally inclined to do so?
50. In the target group's perception, will there be a high risk of incurring a sanction if a
violation is detected in an inspection or reported to the authorities?
Will there a major objective risk of a sanction being imposed once a violation has been
detected or reported?
51. In the target group's perception, will the type of sanction associated with the violation
and additional disadvantages of being sanctioned (e.g. damage to reputation) be
regarded as sufficiently severe to have a deterrent effect?
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Couturier 147
PRIORITIZED STAFF SKILLS FOR AN ENVIRONMENTAL ENFORCEMENT
TRAINING PROGRAM
COUTURIER, M.ED., DANIEL1
1 Instructional Designer, U.S. Environmental Protection Agency - National
Enforcement Training Institute, 1200 Pennsylvania Ave., N.W. (AR 6211),
Washington, DC 20004 USA, netiwest@epa.gov.
SUMMARY
While environmental enforcement training programs will necessarily vary widely
in size and funding, a successful training program must have skilled personnel
with specified responsibilities. The skills held by employees should help define
the organization's structure, and determine its duties. This paper outlines key
personnel skills upon which to build an environmental enforcement training
program. In order to make this model useful to smaller and newly formed
programs, the critical employee skills are presented in a prioritized order. A
skilled employee foundation will breed success, no matter the size of a particular
program. The central concept promoted in this paper is to be specific and
comprehensive when making adjustments to staff within a training organization.
1 INTRODUCTION
Any one enforcement officer with an audience can be a trainer. Any two people
working together for training purposes could be called an enforcement training
organization - this represents the simplest training program structure. Fifty
persons placed together, all doing training, can be just as simple an organization as
the two people. Yes, the large group will likely have more resources and products,
but if it has only a simplistic approach to goals and staffing, the large group may
not differ from the small group. What distinguishes successful training programs
is the level of structured and coordinated efforts - not the size the group. The work
of two persons, well planned and coordinated, can have the impact of ten persons
who work independently toward no particular goals.
2 STAFF DEVELOPMENT VERSUS COURSE DEVELOPMENT
Because this paper is focused upon staff skills, the list below does not follow a
normal sequence used to prepare training materials for delivery. For example, the
first step in course development is analysis, though the importance of having an
Analyst on staff is listed later. Likewise, a Manager (later priority) would typically
meet with a Designer before the Subject Matter Expert or a Developer (highest
priorities) was involved. When assembling a staff, versus a training course, it is
helpful to distinguish the course development processes from needed staff skills.
The methods used to deliver training have changed drastically over the past
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148 Eighth International Conference on Environmental Compliance and Enforcement 2008
decade. The traditional means of teaching (i.e., a notebook or a chalkboard) are
still useful and remain among the most effective. However, increasingly, new
and revised course materials are rapidly needed, and large audiences are widely
distributed. Technology offers a means to meet those needs more quickly, while
enhancing the impact and interaction. All skills in this paper assume some
proficiency with hardware (computer, camera, telecommunication, etc.) and
software (word processing, databases, graphical representations, etc.). Sometimes,
staff improvement goals must start with the improvement of basic productivity-
related skills, such as computer usage, project management, budgeting, or setting
priorities - before training-related skills can be substantially improved.
3 PRIORITIZED PERSONNEL SKILLS
Because a small enforcement program may not have all the specialized skills
needed to form a large and sophisticated training team, it must choose which skills
to develop within its group. If given a choice, a program should select persons
with skills that would enhance any current staff capabilities. Following is a list of
particular skills related to personnel positions that a comprehensive organization
would need in order to offer a full range of training products and services. The list
also places those skills in a priority order so that organizations can build step-by-
step upon a few initial positions.
4 SKILL 1: SUBJECT MATTER EXPERTISE
If there were just one person to form a training "program," it must be a person
who knows the technical topics to be taught - this person is often called the
Subject Matter Expert. Without a topical Expert, there can be no training. It is
common for enforcement training programs to be formed by simply assembling
field investigators who have an interest in training. Unfortunately, the other
skills that support effective training (e.g., material formatting, collaboration,
presentation skills) may not be strong capabilities of those same Experts. There
are boring attorneys or investigators who do a lot of low quality presentations,
simply because they know the subject matter better than others. If there is limited
availability of good presenters, this may be an unavoidable situation. Low
quality training may still be worthwhile when it is the only means for inspectors,
attorneys, case developers, managers, and others, to learn.
If possible, the enforcement Subject Matter Experts should be assigned to another
unit, such as a separate legal or technical program within the enforcement
program, rather than placed with the core training team. However, Subject Matter
Experts need to remain available to advise the training program because they
are critical for the development of good training. The Subject Matter Expert's
primary roles are collecting and summarizing the technical issues, and helping to
determine the scope of topics to be covered in training. Such a support role allows
Experts from many different areas to be occasional contributors to training, while
maintaining their primary technical or legal duties. If one Subject Matter Expert
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leads all training, then the program will be limited to whatever skills that Expert
might have. For example, an attorney who is a good trainer and presenter, would
likely struggle to lead the training on industrial technology topics that are very
familiar to a field inspector. It is no fault of an Expert that she/he cannot cover
all issues within the entire environmental enforcement realm. Having Experts
available from other organizations also allows training resources to be expended
directly and exclusively upon training. Mixing the training and technical program
staffs and budgets may mean that funds and efforts are likely to be dispersed away
from training to address technical or other issues.
5 SKILL 2: MATERIALS DEVELOPMENT
Central to training is the creation of materials for presentation. A materials
Developer should be able to format content, layout presentations, write computer
programming code, edit graphics, and package materials for distribution. A
Developer need not be familiar with the particular content being presented. One
Developer, working together with various Experts providing technical content, can
be the means to produce training on a wide range of topics. If the Subject Matter
Experts were placed in separate legal or technical divisions, as discussed above,
then the Developer position would be the primary building block for establishing
a training program.
6 SKILL 3: MATERIALS DESIGN
Detailed technical topics (from an Expert) and good materials format (from a
Developer) do not guarantee learning. An often overlooked aspect of training
success is ensuring that the training has intentional form and achievable objectives.
Training objectives should be clear, measurable, and have specific desired
outcomes. Outcomes should be aimed at employee performance improvement in
a certain area.
In the role of project manager, the Designer becomes the "liaison and interpreter"
between the Subject Matter Expert and the Developer. Together they form
the course agenda. The Designer applies his knowledge of learning theory,
instructional design principles, and experience with various formats and
technologies to ensure quality and appropriateness within and across materials.
A delivery format should not be selected simply to use the "latest" technology.
A Designer should also ensure that students interact with the training material.
Interactions should lead the students to practically apply the learning through
exercises. For example, providing a set of facts that present a case study allows
both investigators and attorneys to apply learning to a specific and realistic
situation. At the end of the training cycle, a Designer will lead revision of materials
based upon evaluations.
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150 Eighth International Conference on Environmental Compliance and Enforcement 2008
6.1 Design and Development Notes
The largest portion of workload for a training program should be the development
of materials. If there were a staff limit of three persons to form a training program,
then the best selection of personnel positions likely would be: two Developers and
one Designer (assuming that Subject Matter Experts are available from another
program). One Designer could work with multiple Experts to send materials to
multiple Developers. Generally, the proportion of Developers on staff should be
higher than other positions in order to prevent productivity from slowing down
during the longer development phase.
A training organization ideally should allow for separate Designer and
Developer positions. These two positions are often mentioned together during
course creation; however, the role of a Developer has moved significantly into a
distinct set of technical skills, especially due to the increasing use of educational
technology (e.g., internet, complex software). If forced to choose only one of these
two positions, a Designer or a Developer, then the Developer would be of higher
value. Without materials being professionally produced, it is difficult to create
quality training. Hopefully, while learning development skills, a Developer has
acquired some design skills to apply, in place of a separate professional Designer.
Although oversight by a professional Manager is important, hiring a Manager
among the first three members of a core training team would be too soon. So, if
only Designers and Developers were chosen to form a small training team, they
would need some natural or trained administrative and management skills.
7 SKILL 4: MANAGEMENT
Up to this point in staffing, there has been an assumption that the basic training
team (Subject Matter Expert, Developer, Designer) have an acceptable level of
self-management to conduct a training program without immediate oversight.
However, the traits inherent to a formal Manager position are too critical to be
assumed. Without leadership, authority, credibility, and coordination applied by
a Manager, even the best Experts, most creative Designers, and most productive
Developers, will likely struggle to coordinate with the larger organization.
Working with a Manager from a larger department can ensure that the efforts of a
small self-directed training team are in accord with larger organizational priorities
and objectives. A good Manager will leave the technical content, the design, and
the development work, to those members who have a proven ability to make
good decisions. A Manager's primary roles include setting priorities, monitoring
progress, coordinating with other managers, acquiring resources, and managing
personnel.
It is debatable whether a Manager needs to have training experience or subject
matter expertise herself. Like the Designer who does not need to be familiar
with technical subjects, a Manager can be an effective coordinator without prior
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Couturier 151
training experience. However, in both cases, a Designer and a Manager, experience
is preferred since it tends to foster a shared understanding that will benefit the
entire program.
7.1 Administrative Support Skills
The following skills (number 5-7) should be represented by two or more
individuals, but can be combined, especially for smaller organizations.
Together these skills form the ways and means to conduct a training program.
An organization which does not have these specialists, typically struggles to
assess audience needs, deliver efficient events, and respond to client requests. If
specialized staff are not assigned to these duties, individuals must do these tasks
incidental to their primary responsibilities. Including the following skills on staff
should not be overlooked or minimized in favor of overstaffing with Experts or
Managers.
8 SKILL 5: COMMUNICATION / MARKETING
Demands from a large client audience can overwhelm an organization.
Maintaining clear and frequent communication with clients is important. Sending
out a catalog of course descriptions and a schedule of course delivery dates and
locations can prevent many questions from coming in. A staff position similar
to Public Information Officer or Customer Service Manager can create, collect,
compile, and publish information, as well as maintain professional associations
and social networks.
9 SKILL 6: COURSE DELIVERY SUPPORT
The practicalities of course delivery require a staff person who gives attention to
detail, and has knowledge of material formats and delivery technologies, to ensure
that preparations are complete. Logistical support provided by a Coordinator
includes, student registration (listing and confirming attendees), securing a location
(facility reservations and equipment, coordinating with host organizations),
reproduction of materials (copying and distributing), hardware and software set
up (updating and purchasing equipment), travel arrangements, expenses, and
loading information to computer networks. In addition, a Coordinator may need
to maintain relations with a cadre of available instructors and a network of remote
facility managers and hosts. For example, attorneys who need to accumulate
continuing education documentation would appreciate a Coordinator who can
obtain training material certifications from legal associations.
10 SKILL 7: ANALYSIS AND EVALUATION
Training programs should conduct an analysis of needs within the target audience
to ensure that appropriate goals are set for training, prior to beginning course
development. A post-delivery evaluation of a course can provide valuable input
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152 Eighth International Conference on Environmental Compliance and Enforcement 2008
from students, instructors, experts, and managers. A staff Analyst should be able to
collect measurable feedback, and then summarize both facts and impressions from
the data. Expenses (development and delivery costs, return on investment), facility
usage, student count, and many other data can be analyzed. Even a small training
organization will need some measures of productivity and success. Ultimately,
analysis should justify the resources that are being expended.
11 TO BEGIN OR EXPAND
What to "do next" for staffing depends upon which skills are currently within the
organization. Periodic restructuring of units and responsibilities is a normal part of
growth and refinement. An organization which currently has few or no employees
has an ideal opportunity to build staff intentionally, though they may face a
difficult start. A group which already has plenty of people may struggle with a
random mix of skills and historical constraints. Careful consideration is needed
when choosing to either increase skills in current positions (thus doing more of
the same work, and doing it better), or redirecting staff to new skills (thus offering
new services to clients). The best hiring or skills development sequence can only
be determined by the particulars of a specific situation. Contrary to the order
of priorities above, a Coordinator who facilitates an increase in the number of
training events per year could be hired before a Manager to represent the training
program. Likewise, an Analyst who can justify resource needs for budgeting may
be of greater value than a broad-reaching communication network.
Current staff might resist learning new skills. Retaining employees (through
recognition and rewards) who already have desired skills is most critical during
restructuring. Despite the wide range of skills suggested above, one Expert might
be able to expand his responsibilities to encompass design, development, and
delivery of materials. Such a person working with one Manager who expands
her responsibilities and skills to include planning, coordination, advertising, and
analysis, can together form a limited but complete training program. The main
idea here is that all aspects of a complete training program should be considered,
and covered to the extent possible, no matter the organization size and resources
available.
12 SUPPORT AND PARTNERSHIPS
Although the above staff listing uses a building block method, an organization
could bypass the inclusion of any skill position - as long as a substitute is
obtained from outside the organization. Few organizations can establish all
necessary functions within their own staff. Contracting with other private or
commercial organizations may be a highly attractive option, especially when
highly specialized or limited-use skills or services are needed. Because expertise
and primary decision-making authority is retained by government agencies, there
may be no commercial sources of support available for many environmental and
enforcement issues. Partnering with governmental agencies or public institutions
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Couturier 153
is also an option when staff and equipment can be shared. Identifying the portion
of target audiences shared by training providers allows collaboration when goals
or subjects are similar.
13 CONCLUSION
Purposeful planning and personnel management may have the greatest influence
upon the success of a training program. Even a good plan for staff restructuring
can be stalled by external influences, such as political and philosophical decisions
beyond the control of the training program. Incorporation of appropriate
personnel and related skills can overcome many limitations. Balancing the goals of
an organization with its capabilities requires flexibility. A program may choose to
divest from prior obligations, rather than automatically replacing a staff position
with someone of like skills. With each change of mission, or departure of staff, a
new opportunity arises to redefine a training program.
14 AUTHOR NOTES
Daniel Couturier wishes to gratefully acknowledge the suggestions and
encouragement of Marcia E. Mulkey, Director of the National Enforcement
Training Institute, of USEPA.
The content of this paper represents the personal views of Mr. Couturier, and not
necessarily views shared by the United States government.
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Craigie & Fourie 155
OPERATION FERRO: TAKING ON THE GIANTS
CRAIGIE, FRANCES1 and FOURIE, MELISSA2
1 Director: Strategic Compliance and Enforcement, Gauteng Department of
Agriculture, Conservation and Environment, Market Street Johannesburg South
Africa,: Frances.Craigie@gauteng.gov.za
2 Director: Enforcement, Environmental Quality & Protection Branch, Department
of Environmental Affairs & Tourism, Van Der Walt Street, Pretoria, South Africa,
mfourie@deat.gov.za
SUMMARY
This paper provides an overview of the strategic environmental compliance
and enforcement project referred to as "Operation Ferro" which focusses on the
iron and steel and ferroalloy industry in South Africa. The reasons for focusing
on this industry sector are briefly discussed in the paper followed by an insight
into the planning and implementation of the project, including the criteria used
for prioritization of inspections. As this project is still in the process of being
implemented, the final sections of the paper will detail some of the non-compliance
trends that are already evident as well as the achievements and lessons learned to
date.
1 INTRODUCTION
In 2006, against the background of the environmental rights contained in the Bill
of Rights1 of the South African Constitution2 and the international obligations3
focusing on the development and implementation of effective compliance
and enforcement systems, the newly established Environmental Management
Inspectorate (more commonly known as the Green Scorpions), embarked
on the first joint4 compliance and enforcement programmes for the effective
implementation of the relevant legislation. These programmes have included
proactive approaches to assess compliance in specific industries in a coordinated
and integrated manner in order to achieve overarching policy objectives, whilst
meeting specific compliance and enforcement responsibilities.
As compliance and enforcement activities can be costly and time-consuming,
strategic implementation within the resource and capacity constraints is crucial.
It was therefore necessary to plan compliance and enforcement actions based on
priorities. The factors that are generally considered in setting priorities includes the
significance of violators; severity of impacts;5 involvement of priority pollutants;
relative contributions to environmental harm; complexity of processes; availability
of resources; levels of government; sensitivity of the receiving environment, and
types of industry/sector.
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156 Eighth International Conference on Environmental Compliance and Enforcement 2008
While understanding that the above factors form the basis for prioritisation, it
also needs to be understood that environmental compliance and enforcement,
particularly in an industrial context, are relatively new within the South African
context. Accordingly, there are major gaps in compliance and enforcement
information required to target and plan specific actions with ideal accuracy. In
the absence of detailed information required to profile violators and accurately
determine relative contributions to environmental harm, the decision to prioritise
the iron and steel and ferroalloy industry was based on a number of factors,
including the cumulative impact of this industry on the environment.
2 SELECTION OF THE PROJECT
At the outset, it is important to understand that, until Operation Ferro, there had
been no co-ordinated, proactive, strategic compliance projects in any industrial
sectors in South Africa. Historically, inspectors - focused only on either air, waste
or water - would do fairly random and superficial compliance inspections, without
enforcement action of any significance being taken where violations were detected.
These inspectors were the same officials who issued permits to the facilities in
question. Never were any comprehensive, integrated compliance inspections
conducted to assess compliance with all environmental legislation.
In 2006 (one year after the statutory establishment of the Environmental
Management Inspectorate), Operation Ferro was selected as the first project
focused on the monitoring and enforcement components of the traditional
regulatory cycle within a specific industry sector. Sufficient information existed
to understand that this industry - comprising iron and steel, ferrochrome,
ferromanganese and ferrosilicon - is unquestionably one of the largest polluting
industries. Such a conclusion was drawn from, inter alia, the following
information:
• Most ferroalloy production occurs in submerged electric arc furnaces which
convert electrical energy to heat. Pollutants are emitted by these facilities
in significant volumes from both point and diffuse sources, include (SO2),
nitrous oxides (NOx) (which is a precursor for ozone formation), carbon
monoxide (CO) and particulate matter (PM2.5 and PM10). Metallic hazardous
air pollutants, such as chromium, nickel, manganese, lead, phosphorus,
antimony, cadmium, arsenic, and selenium, are also emitted depending on the
production process involved. Partly for these reasons, both the iron and steel
and ferroalloy industries had already been prioritised for review of their air
emission permits in a related project.6
• Facilities that fall within this sector treat and/or dispose of various hazardous
wastes (hazardous primarily because of the heavy metal content) to waste
disposal sites on the facility's premises. The waste disposal sites associated
with most of the facilities, historically unlined, have resulted in and continue to
result in significant soil and water pollution.
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Craigie & Fourie 157
In addition to the above, it was felt that the cumulative environmental impacts of
this sector justified tackling the industry as a whole and ensuring an integrated
compliance and enforcement approach which had been lacking in the past. It was
recognised that many of the sites in question were a number of decades old, with
associated legacy pollution issues. Many sites had also embarked on expansions
which had resulted in increased production, but had also compounded detrimental
impacts on the receiving environment. A review of the different information
management systems available, drawing on the knowledge and experience of
officials within the different government departments, revealed that it was likely
that many of the expansions as well as other activities on the different sites were
not authorised in terms of environmental legislation.
It should be noted that, while contributing significantly to the degradation of
the environment in the vicinity of the different sites, the sector also makes a
large contribution to South Africa's gross domestic product as well as providing
employment, both directly and indirectly, for a vast number of local people. This is
particularly attributable to significant infrastructure investment by both the public
and private sector. As a result, enormous profits7 are generated by the sector,
with only a small percentage of these profits being applied to environmental
improvements in relation to the South African operations.8
Despite the substantial environmental impact of the industry, the entire sector
consisted of no more than 40 sites of meaningful size, based in six of South Africa's
nine provinces, and controlled by approximately 17 companies.9 Many of these
companies are listed on the Johannesburg Securities Exchange (JSE) and most
even on the JSE's Social Responsibility Index (which includes environmental
responsibility). At least 4 of the 6 biggest players have ISO14001 accreditation. The
Inspectorate therefore resolved that all the industry was relatively manageable in
terms of regulation and compliance monitoring.
3 PROJECT OBJECTIVES AND PHASES
3.1 Objectives
The agreed primary objectives of Operation Ferro are to:
• assess and evaluate the current compliance of key players in the iron and steel
and ferro-alloy industry with environmental legislation (including permits and
authorisations issued in terms of such legislation); and
• take appropriate corrective action in cases of non-compliance, including
enforcement action.
3.2 Phases of the project
In this, the first compliance and enforcement project of its kind, Environmental
Management Inspectorate took a particularly methodical approach, which woulds
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158 Eighth International Conference on Environmental Compliance and Enforcement 2008
for proper preparation before engaging with the industry sector itself. The project
was therefore split into four separate components:
1. planning and information-gathering;
2. prioritisation;
3. a pilot compliance inspection; and
4. comprehensive compliance inspections.
These components are brief described below.
3.2.1 Planning and Information-gathering
The planning and information-gathering phase was particularly important in
view of the lack of adequate information about the industry, and Environmental
Management Inspectorate's relative inexperience in both the industry sector and
compliance inspections in general. Environmental Management Inspectorates
therefore conducted at least five project meetings, held in different parts of the
country, to consider and assess the various facilities in each province. Information-
gathering and learning encompassed:
• identifying all authorisations issued to facilities by all spheres of government,
including air pollution permits, waste disposal site permits, general
environmental impact assessment authorisations and local government
authorisations;10
• general compliance monitoring data available from all environment
institutions;
• air quality monitoring data gathered by various bodies collated and analysed at
the hand of meteorological data and basic dispersion models;
• geochemical maps being produced by the national Council for Geosciences
indicating levels of soil pollution by heavy metals as a result of particulate air
emissions over time;
• satellite imagery available for at least 10 years which may be applied to
o link significant particulate emissions to particular large ferroalloy producers'
facilities; and
o investigate waste handling, storage, treatment and disposal practices; and
• general comparative information provided by inspectors from the Environment
Agency of England and Wales regarding regulation and compliance monitoring
of similar facilities in the UK.
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Craigie & Fourie 159
Other crucial work done during this phase was the finalisation of an inspection
methodology and a general enforcement strategy for Operation Ferro.
3.2.2 Prioritisation phase
Once necessary information was gathered, it was necessary to identify both
a suitable pilot site as well as determine the order in which all sites would be
inspected. The site selected for the pilot compliance inspection was identified
on the basis of specific objectives as set out in 4.2.3 below, while different criteria
were used for the determination of the pilot site in comparison to deciding on the
schedule of site inspections of the other facilities.
The graphs below provide an indication of the criteria used for both pilot
selection (Figure 2) as well as general prioritisation for determining the order in
which all sites would be inspected (Figures la and Ib). These criteria include
many internationally recognised prioritisation criteria, such as relative pollutant
contributions from various facilities and companies; provincial and national
priorities;11 complexity of the processes involved; sensitivity of the receiving
environment having regard to high impact receptor density (e.g. highly polluted
residential areas where industries are concentrated); citizen complaints; significant
violators in the industry and government circles and financial, technical and
human resources required. Due to the size of these graphs only the ten facilities
that scored the highest are reflected in this paper and the writers may be contacted
to view the results in relation to all the facilities.
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160
Eighth International Conference on Environmental Compliance and Enforcement 2008
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Craigie & Fourie
161
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162 Eighth International Conference on Environmental Compliance and Enforcement 2008
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Craigie & Fourie 163
The following important points should be noted in relation to the prioritization
conducted:
• as all sites were going to be visited as part of the project, a risk-based approach
to prioritization could be supplemented by other criteria;
• site inspections needed to be prioritised in a way that ensured adequate
capacity was built up during the process of inspections;
• the most complex sites needed to be visited later in the project, in order to
ensure that the team was adequately trained and skilled;
• the order of inspections needed to sensitive to the benefits associated with
awareness of the project and the media messages which formed part of the
communications strategy; and
• criteria for determining the order of inspections were developed and weighted
in such a way that the higher the score, the sooner the site inspection should
take place.
3.2.3 Pilot phase
The pilot site inspection - selected on the basis of specific criteria listed above -
provided both industry and Environmental Management Inspectorates with
invaluable experience regarding appropriate compliance inspection methodology
in this particular industry sector, within the existing capacity and experience
deficit amongst authorities. Expertise of consultants were also utilised during this
inspection in order ensure building of capacity.
3.2.4 A comprehensive compliance inspection phase
The comprehensive compliance inspection phase entails a series of compliance
inspections, conducted in an order determined by the prioritisation described
above, and taking into account all lessons learned from the Pilot Phase.
4 ANALYSIS AT THIS STAGE OF IMPLEMENTATION
4.1 Achievements
Although Operation Ferro has been focused on a single industry sector, its
implementation has undoubtedly and permanently changed the perception
that there is no compliance monitoring and enforcement of pollution, waste and
environmental impact assessment legislation in South Africa. Despite not having
a particularly sophisticated media strategy for Operation Ferro, the South African
media (particularly the business print media and radio) has given extensive
coverage to the concept and findings of Operation Ferro. In this way, Operation
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164 Eighth International Conference on Environmental Compliance and Enforcement 2008
Ferro has also strengthened and established the roll-out of the Environmental
Management Inspectorate.
Findings of non-compliance have been followed by administrative enforcement
action against two facilities thus far, with more to follow. Even at this early stage,
it appears from the major environmental improvement projects proposed by only
two of the facilities in response to enforcement action that the project is likely to
have a major positive impact on environmental quality in one of the most polluting
industries in the country.
Great care was taken to ensure that all facilities and companies are treated in an
equal manner, with the ultimate purpose of levelling the economic playing field
whilst avoiding allegations of targeting, at least within this particular industry.
A major achievement of the project has been to establish a reliable, consistent
protocol for industrial compliance inspections in South Africa. This protocol has
already undergone a number of key improvements borne out of experience in the
first six inspections, and the input from the Environment Agency. Along with the
protocol, a significant amount of capacity-building has taken place for all officials
who have participated in the inspections as part of the project.
However, the most notable achievement of Operation Ferro was probably
the networking and relationship-building between national, provincial and
municipal officials that has taken place during the planning for and conducting
of the compliance inspections, as well as the inspiration and energy that have
grown from the project. On a number of occasions, officials participating in the
inspections have voluntarily worked far beyond office hours, and particularly
municipal officials have repeatedly expressed excitement for the project.
4.2 Trends in noncompliance
From the findings of the compliance inspections to date, noticeable non-
compliance trends in the industry sector include the following:
• a consistent failure to lodge audit reports required in terms of permits
applicable to the sites;
• a lack of consistent monitoring, particularly of emissions to air, with the
resulting in very few facilities demonstrating compliance or non-compliance
with permit conditions;
• where monitoring data is available for emissions to air, that data shows regular
exceedances of permits;
• no lined or permitted disposal sites originating from before 1990;
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Craigie & Fourie 165
• the ongoing disposal of hazardous and general waste on these unlined,
unpermitted disposal sites; and
• fairly significant groundwater contamination at almost every site, with limited
measures to address the contamination.
Despite the above-mentioned trends, most facilities are and have repeatedly been
certified as compliant with the ISO14001 standard. In addition, these facilities
generally have extensive environmental improvement programmes; surprisingly,
these programmes do not necessarily address compliance with environmental
legislation and permits.
5 LESSONS LEARNED
As a developing country that has designed and implemented its first strategic,
sector-based compliance and enforcement campaign, the following lessons have
been learned:
1. Choose an industry that has known significant detrimental environmental
impacts but is not under serious financial pressure (ideally, such a project
should be implemented in a growth industry).
2. Spend sufficient time in preparing participating institutions (or participating
officials) through information-gathering and collation, and input from industry
experts (domestically or internationally).
3. Agree on a single inspection methodology before going on site. Such a
methodology, particularly where baseline compliance assessment is being done,
should include more inspection teams consisting of fewer inspectors.
4. Send an unambiguous message to facility management regarding the purpose,
process and consequences of the compliance inspection.
5. Design and implement a comprehensive media strategy to accompany project
roll-out.
6. Ensure that the enforcement strategy implemented is consistent, but also
aligned with the approach followed by the permitting sections of the relevant
institutions.
7. Make reporting as simple as possible. Most of the assessment being done is
baseline assessment and therefore the first inspection reports are necessarily
broad and comprehensive, entailing very detailed work after the inspection
by the inspection team (consisting of EMIs and other officials based in various
institutions). The delay in issuing of inspection reports to facilities threatened
to undermine the project.
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166 Eighth International Conference on Environmental Compliance and Enforcement 2008
8. Ensure that the enforcement strategy - and the implementation of that strategy
- provides for effective criminal investigation and prosecution. Without this
"stick" part of the strategy, industry will not take the project seriously.
9. Give credit to facilities who respond positively and with commitment to
address non-compliances.
10. Once this industry sector shows meaningful signs of change, start to divert
attention to other industry sectors to prevent a political backlash and
accusations of targeting only one industry sector.
6 CONCLUSION
Operation Ferro has provided an opportunity for extensive learning and capacity-
building within the newly established Environmental Management Inspectorate
in South Africa. At the same time, it has jolted South Africa industry - beyond
the iron and steel and ferroalloy industry sector - out of their complacency about
the apparent absence of consequences of non-compliance with environmental
legislation.
Although Environmental Management Inspectors were very inexperienced
at the outset of this project, the mere fact that EMIs were at facilities, engaging
with facility management in a coordinated manner, has had a significant impact.
Neither inspections nor inspectors have to be perfect to catalyse a change in
attitude towards environmental compliance in an industry sector.
7 REFERENCES
1 Constitution of the Republic of South Africa (1996), section 24.
2 Which, inter alia, obliges government to act reasonably in order to protect the
environment by preventing pollution, promoting conservation and sustainable
development, while building the economy and society.
3 Agenda 21 emphasises that institutional strengthening with the development of
dedicated compliance and enforcement programmes is important for achieving
the goal of sustainable development. This mandate was reinforced at the World
Summit of Sustainable Development held in Johannesburg in 2002.
4 The Environmental Management Inspectorate in South Africa consists of
Inspectors based in all three spheres of government (national, provincial
and local);joint compliance and enforcement programmes therefore entail
unprecedented cooperation between these spheres of government.
5 As preparation for the full commencement of the new National Environmental
Management: Air Quality Act (2004), the Department of Environmental Affairs
and Tourism embarked on the review and conversion of all air pollution permits
issued in terms of previous air pollution legislation. This review started with
certain prioritised industry sectors, which included the iron and steel and
ferroalloy industries.
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Craigie & Fourie 167
6 As preparation for the full commencement of the new National Environmental
Management: Air Quality Act (2004), the Department of Environmental Affairs
and Tourism embarked on the review and conversion of all air pollution permits
issued in terms of previous air pollution legislation. This review started with
certain prioritized industry sectors, which included the iron and steel and
ferroalloy industries.
7 Mittal Steel South Africa's Annual Report for 2006 indicates in the Financial
Summary that profit from operations during the year amounted to R5.8 billion
while capital expenditure for environmental projects was limited to R104 million
(website: www.iscor.co.za).
8 In our experience, it is always easier to conduct compliance and enforcement
campaigns at a time or in an industry sector that is experiencing a growth phase.
9 Mittal Steel South Africa , Highveld Steel and Vanadium, Cape Gate , SCAW
Metals , Acerinox - Columbus Stainless, Hernic Ferrochrome, Merafe, Samancor
Manganese, Samancor Chrome, Manganese Metal Company, Vametcor (could
now be Rhovan Vanadium - check), Assmang Manganese (previously Ferralloys)
(3 sites), Kumba Resources, International Ferrometals, ASA Metals, Richards Bay
Minerals and Ticor SA.
10 In South Africa, both air and waste permits are currently still issued by national
government, while provinces issue authorizations pursuant to Environmental
Impact Assessments and municipalities issue effluent discharge permits.
11 Air pollution priority areas have been declared by the national department (e.g.
Vaal triangle).
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BETTER REGULATION IN THE CONTEXT OF ENVIRONMENTAL
ENFORCEMENT
FARMER, ANDREW M.1
1 Head of Pollution and Climate Team, Institute for European Environmental
Policy, 28 Queen Anne's Gate, London. SW1H 9AB, UK, afarmer@ieep.eu.
SUMMARY
Better regulation is a major challenge and opportunity for environmental
regulators. It is important to ensure that 'better regulation' is not seen as
a deregulatory agenda, but one which seeks to improve the efficiency and
effectiveness of environmental protection measures while reducing burdens for
business. Regulators need to approach better regulation across the whole of the
regulatory cycle, from legislative development to permitting, inspection, and the
imposition of sanctions for non-compliance. To assist in completion of this task,
a number of tools are available and approaches adopted by regulators in different
countries provide valuable lessons to others.
1 INTRODUCTION
Better regulation is an important policy driver providing challenges and
opportunities to the work of environmental regulators. However, the nature of
what is meant by better regulation and how this is reflected in regulatory activity
varies significantly between countries and even between bodies within countries.
This paper examines the interaction between better regulation and environmental
enforcement and considers how regulators can ensure that delivering better
regulation results in improved environmental outcomes and increased efficiency
and effectiveness across the range of the activities that they undertake.
2 BETTER REGULATION
Better regulation has become an important agenda in many countries. Better
regulation goes by many different names, such as 'cutting red-tape', reducing
the administrative or regulatory burdens on companies, streamlining regulation,
paperwork reduction, smart regulation, and simplification. As a result, many
public authorities have introduced regulatory reform programmes to improve
the efficiency and effectiveness of regulations in a variety of ways, e.g. removal of
obsolete and contradictory legal requirements, consolidation of overlapping legal
requirements, application of new tools with the support of information technology,
and introduction of organisational and structural changes.
The aim of better regulation should be to reduce regulatory burdens wherever
possible, but without removing necessary protection for the environment or
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workers. However, there are also pressures for deregulation. This questions
the need for environmental protection and can be seen explicitly or implicitly in
a number of contexts. Environmental enforcement authorities should resist an
agenda that increases risks to health and the environment.
The term 'better regulation' is, therefore, not synonymous with 'less regulation.'
While much better regulation activity might reduce the regulatory burden
on businesses, it is important to focus on the central principles of regulation.
Regulations are necessary to protect the environment and new regulations may
be required to achieve this and can lead to economic opportunities for businesses,
as recognised in the Prague Statement.1 Better regulation requires that such
regulation is efficient, cost-effective, and imposes the minimum burden necessary
to achieve its objectives. Thus, where countries have adopted near blanket bans on
new regulation (sometimes through pressure from external agencies) on the basis
that this is 'business friendly/ this is counter to the principles of what regulation
is about and is not better regulation. It is for this reason that the term 'better
regulation' is preferred to the others listed above.
3 BETTER REGULATION ACROSS THE REGULATORY CYCLE
For environmental regulation, it is important to consider better regulation across
all of the elements of the regulatory cycle: legislative development, strategic
planning, permitting, monitoring, inspection, and non-compliance responses.
Where the emphasis of 'better regulation' is largely on reducing legal regulatory
obligations, most of the emphasis on action is often on legislative and permitting
requirements. However, it is also important to focus on other parts of the cycle, as
it is here that burdens are often applied to businesses and regulators can undertake
efficiency measures.
3.1 Legislative Development
Legislative development is a central part of better regulation activity. New
laws should be scrutinised so that they are deemed to be necessary and their
requirements are efficient in application, such as considering whether alternatives
to regulation are appropriate and whether the benefits outweigh the costs.
Existing legislation can be similarly reviewed. This is often the major focus of
better regulation activity, as seen at European Union level.2 Legislation should
ensure that regulators have the legal and administrative means at their disposal to
encourage or, in the event of wilful non-compliance, compel those being regulated
to comply with their obligations. Effective regulation is better regulation. Such
regulations must also be able to be implemented efficiently, with minimum costs
to business. Thus, legislation should ensure:
• The obligations on those being regulated need to be clear and understandable
and must be achievable through available techniques and within a realistic
timescale.
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• The obligations need to be communicated effectively to those being regulated.
• Compliance with the regulatory obligations must be viewed as more beneficial
than breaking the law, e.g. through fear of sanctions.
• Ways of avoiding compliance must be reduced, through controlling fraud in
reporting, effective inspections, etc.
• The options for enforcement action by environmental enforcement authorities
and others need to be clearly defined.
3.2 Strategic Approaches
Many countries have adopted strategic approaches to better regulation. These have
a number of benefits:
• They provide a focus for high level commitment to better regulation.
• They can provide a forum to debate fundamental issues.
• They can identify where the major burdens on businesses are and, therefore,
where better regulation initiatives ought to take place.
• They bring better regulation initiatives together into a common framework and
provide more 'joined-up' thinking.
• They can keep up the pressure - not allowing environmental enforcement
authorities or others to relax once a single initiative has been adopted.
• They are important in reacting to proposals for new regulation (to tackle the
adoption of burdensome regulation on one issue while a better regulation
measure is being adopted for regulation on another issue).
The smart regulation initiative in Canada is an example of such an approach
across government. It is comprehensive in that it covers all governmental
regulatory activity and seeks to involve a very wide range of stakeholders. An
important aspect of smart regulation is that it establishes, up front, the principles
upon which it operates, including a commitment to environmental sustainability.
This statement of principles provides a benchmark against which the many
specific initiatives can be judged, and through which stakeholders can have more
confidence. Smart regulation has also adopted a rigorous process for taking
forward its initiatives, including studies and extensive consultation processes.
This framework approach is important in its success and it is clear that being
systematic in analysis and delivery is a key objective.
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The Canadian example is government-wide, but strategic approaches are also
necessary at the level of individual institutions, as is demonstrated by a number
of environmental regulators. Strategic approaches must ensure buy-in from
all relevant stakeholders. This should include different levels of government,
business, and community groups. The latter are particularly important if the
process is not to be perceived as an unravelling of environmental protection.
3.3 Permitting
Acquisition of a permit can involve different administrative processes which can
be complex and impose significant costs on businesses, not least as the time that
permit acquisition can take can increase business uncertainty. This is particularly
the case where activities are subject to different regulatory regimes each with
separate permits. A number of approaches have been adopted to achieve the
objectives of better regulation in permitting, including:
• Changing the processes of individual permit regimes to introduce streamlining
measures, such as on-line permit application procedures.
• Seeking to combine multiple permitting processes into a single permit.
• Removing the requirement to apply for permits and replacing this with a
generally applicable rule or by a notification procedure.
• Accelerated permitting whereby permits procedures for more rapid
determinations.
• Reducing the information requirements for permits.
• Linking timetables for permit review requirements to risk-based assessments of
activities.
Some better regulation permit initiatives have taken complex analysis to develop,
as they seek long-term detailed changes, such as seen in the Netherlands. Bringing
permitting regimes together delivers benefits. Thus, leaving complex overlapping
regimes in place can be considered as bad practice. In general, the utilization of
binding rules in place of permits has benefits, but also limitations. It must be clear
that the change would not result in reduced environmental outcomes (e.g. for
some local sensitive environments) or undermine public confidence/participation
(indeed a proposal in this regard in Finland was dropped for the latter reason).
3.4 Monitoring
Monitoring (by public bodies or by enterprises) can be expensive. Unlike
obtaining a permit, monitoring and reporting have start-up and recurrent costs.
Thus, it is important that what companies are being asked to monitor, and how
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they are being asked to report, accurately portray the nature of that activity and
the needs of regulators. Unnecessary monitoring is not justified. As a result, it is
important to:
• Only monitor those things that are necessary.
• Only require collection of data that can actually be used.
• Ensure that the frequency of monitoring is linked to the required accuracy of
the results.
• Replace, where possible, parameters that are expensive to monitor with those
that are cheaper that can act as a proxy.
• Standardise monitoring methods, etc, to increase efficiency.
Another approach to better regulation is to make better use of the monitoring
processes in a more efficient framework. In Flanders (Belgium) authorities have
brought together disparate reporting obligations into a unified framework in
order to make monitoring more streamlined and effective through an integrated
information technology system. It is important to start from a comprehensive
inventory of existing reporting obligations in order to identify those obligations
that apply to the largest target group as candidates for inclusion in an integrated
reporting system. The system can later be expanded to include other, more
specialized reporting obligations, which concern a more limited target group. All
administrative authorities with responsibility for the collection and management
of environmental data from operators should be involved in the preparation
and implementation of the reform, as they will need to revise their respective
regulations and operating procedures. Reducing monitoring and reporting
obligations can be viewed as one better regulation option. However, this can be
controversial, especially if there is concern that this undermines confidence in
environmental enforcement.
3.5 Inspection
Inspection is necessary to ensure compliance. There are different opposing
pressures on inspection activity. At the EU level there is, for example, increasing
emphasis on ensuring inspection activity is undertaken. In contrast, some
Eastern Europe, Caucasus and Central Asia countries have introduced significant
restrictions on inspections in an attempt to be business friendly, but which
can also undermine environmental protection. Better regulation initiatives on
inspection must not impede the ability of regulators to ensure the compliance of
regulated activities. However, there are steps that can be taken to achieve this,
while reducing unnecessary business burdens. Most obviously, these include the
bringing together of different types of inspection activity into single inspections.
Risk-based approaches are also important - targeting inspection on activities
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which pose the greatest risks to the environment, such as seen with the Operator
and Pollution Risk Appraisal approach of the Environment Agency of England
and Wales. Risk-based approaches to inspection in effect redistribute the burden
on businesses.
3.6 Noncompliance action
There has been limited focus on the role of better regulation in the area of sanctions
for non-compliance. However, it is an important area to ensure that the actions of
regulators and others are effective and efficient. Poor use of sanctions, for example,
can undermine the whole purpose of regulation. In 2006 the UK completed
a review of sanctions undertaken within its better regulation programme.3
Importantly, the review concluded that sanctions, in the context of better
regulation, should be sufficient to deter and change behaviour and an effective
sanctioning regime should allow for a flexible and proportionate approach with a
broad range of sanctioning options, so that authorities can respond to individual
cases and the specific nature of the offence. Effective sanctions can also aim to
restore the harm caused by regulatory non-compliance and take into consideration
the needs of victims, offenders, and communities affected by it. Thus, regulators
need to develop enforcement strategies that ensure sanctions are effectively used
as a central element of a better regulation strategy.
4 APPROACHES AND TOOLS
There are a range of tools and approaches that regulators can use or engage in
to assist in delivering better regulation. Regulatory Impact Assessment (RIA) is
increasingly used to examine legislation/regulation prior to its adoption. This
can be used to examine options for different implementation approaches4 and,
therefore, ensure that regulation is both efficient and effective. It is important,
therefore, for regulators to ensure that the focus of RIA is not limited to assessments
of costs, but also examines the consequences for effective implementation of the
regulatory cycle as a whole necessary to deliver environmental objectives.
An element of better regulation analysis has been to quantify the burdens placed
upon industry by different regulations. The Dutch standard cost model5 assesses
burdens to business and administrations, and is becoming more widely used
across Europe. In some cases, this has led to ministries having quantified targets
to reduce their administrative burdens (e.g. VROM had the overall objective of
achieving a 30 percent reduction in administrative burdens by the end of 2007).
It is important to ensure that the costs of regulatory activity are accurately
determined. This will assist regulators in helping to focus resources to more
effective ends. More problematic is the fact that simply quantifying burdens does
not lead to decisions on regulatory change. Costs must be compared to benefits.
For example, in Europe the Integrated Pollution Prevention and Control Directive
is often cited as one of the most costly directives to implement. However, it
aims to achieve major benefits across a wide range of industrial activities, which
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contrast to other directives which are much more limited in scope. Quantifying
benefits can be difficult, but regulators have a critical role in undertaking this,
particularly to ensure that the results reflect a common sense understanding of the
situation.
As noted above, risk-based approaches are also useful in delivering better
regulation. In essence, risk-based regulation targets the resources of the regulator
at activities that pose the greatest risk to the environment. This also links costs
of such regulation to business to risk, which is a principle of better regulation.
Risk-based regulation can be used for a wide variety of regulatory activities.
For example, in the Netherlands, elements of risk-based assessments have been
incorporated into analyses underlying the development of compliance strategies
for different sectors.6 Risk-based approaches can also be combined with various
forms of compliance assistance into an overall Compliance Management System
which is reflected in the U.S. Environmental Protection Agency's approach of
'smart enforcement.' To take account of all of the potential risk issues requires a
significant quantity of information on the operation of an activity, as is seen with
the Operator Pollution Risk Appraisal of the England and Wales Environment
Agency, which brings much relevant information together into a single analytical
system, which is focused via the permitting procedure and resulting inspection.
5 CONCLUSIONS
Better regulation represents an opportunity for regulators to deliver more
efficient systems for protection of the environment. Rarely do regulators suggest
that they do not have some form of resource problem in undertaking their
functions. Therefore, actions to increase the efficiency of all aspects of regulation
(across the regulatory cycle) and the effectiveness of environmental protection
should be welcomed. However, some regulators and stakeholders can view the
better regulation agenda as a threat. Indeed, where it is poorly understood by
governments or is, in effect, a deregulatory agenda, it can be a threat. In such
cases, regulators have a duty to emphasise the importance of efficiently designed
regulation to protection the environment and health of citizens and for positive
economic benefits.
More generally, regulators should engage positively with better regulation
initiatives. This should be across the regulatory cycle. Undertaking a major
initiative to develop better regulation approaches at any or all parts of the
regulatory cycle requires significant investment in staff time and involvement
of business. Eventually, this will prove a useful investment. However, up-front
commitment is necessary, and failure to complete the process properly could result
in problems to the regulator and/or business.
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6 REFERENCES
1 Network of Heads of European Environment Protection Agencies. 2005. The
Contribution of Good Environmental Regulation to Competitiveness. 'The Prague
Statement'.
2 Farmer, A.M. 2007. Simplifying EU Environmental Policy. European Parliament
Study. Policy Department Economic and Scientific Policy.
3 Macrory R. 2006. Regulatory Justice: Making Sanctions Effective. Better Regulation
Executive, London.
4 Farmer, A.M., ten Brink, P. and Kettunen, M. 2006. Taking advantage of flexibility
in implementing EU environmental law. Journal for European Environmental
Planning and Law. 3: 395-405.
5 Ministry of Finance 2003. Focus on Administrative Burdens! Guide for Defining
and Quantifying Administrative Burdens for Businesses. Ministry of Finance, the
Netherlands. The Hague.
6 Van der Schraaf, A. 2005. The compliance strategy in the Netherlands. Proceedings
of the Seventh International Conference on Environmental Compliance and Enforcement.
Pp 89-94. INECE, Washington.
7 BIBLIOGRAPHY
Aldersgate Group. 2006. Green Foundations. Aldersgate Group, London, http://
www.aldersgategroup.org.uk/public_reports/view_document/4.
European Commission DG Enterprise. 2006. Streamlining and Simplification of
Environment Related Regulatory Requirements for Companies. Final Report of the
Best Expert Group. http://ec.europa.eu/enterprise/environment/index_home/
best_project/best_2006_simplifi cation_final_report.pdf.
Farmer, A.M. 2007. A Handbook of Environmental Protection and Enforcement.
Earthscan, London.
Farmer, A.M., Skinner, I. & Beyer, P. 2003. Effective Enforcement Needs a Good Legal
Base: the Final Report of the IMPEL Better Legislation Project. IMPEL Report
2003/13. Brussels.
Pallemaerts, M., Ten Brink, P., Farmer, A.M. & Wilkinson, D. 2006. Developing
a Checklist for Assessing Legislation on Practicability and Enforceability. IMPEL
Report No 2006/15, Brussels.
Mandelkern Group 2001. Final Report on Better Regulation. European Commission,
Brussels.
OECD, 2003. From Red Tape to Smart Tape: Administrative Simplification in OECD
Countries. OECD, Paris.
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THE RELATIONSHIP BETWEEN TRADE AND EFFECTIVE ENFORCEMENT
JONES, DAVIS 1
1 International Enforcement Training Coordinator, Office of Enforcement and
Compliance Assurance, United States Environmental Protection Agency, 1200
Pennsylvania Ave., NW, Mail Code 2254A, Washington, DC 20460, jones.davis®
epa.gov.
SUMMARY
The United States is negotiating free trade agreements with an expanding list of
countries worldwide. In order to prevent environmental harm associated with
increased industrialization as trade barriers decline, these agreement contain
commitments by each trading partner to effectively enforce its environmental laws
to achieve high levels of protection. Effective enforcement requires a multifaceted
approach to setting priorities, identifying and resolving violations, and increasing
compliance. The United States Environmental Protection Agency and others
are helping to build capacity to achieve an effective environmental enforcement
program which ensures compliance with domestic environmental laws and
demonstrates the country's commitment toward environmental enforcement.
1 FREE TRADE AND ENVIRONMENTAL ENFORCEMENT
1.1 Trade Agreements to Achieve High-Levels of Environmental
Protection
There is a worldwide movement toward greater liberalization of international
trade. We see this at a global level through the Doha round of negotiations of the
World Trade Organization. Regional examples include The North American Free
Trade Agreement between the United States, Canada, and Mexico; the agreement
between five countries in Central America, the Dominican Republic, and the
United States (CAFTA-DR), and trading agreements between countries in other
regions such as the Association of Southeast Asian Nations, and the Southern
African Customs Union. The United States has established bilateral agreements
with Israel, Jordan, Chile, Singapore, Australia, Morocco, Bahrain and Oman,
and continues negotiations or is in the approval process with South Korea, Peru,
Panama, Colombia, Thailand, the United Arab Emirates, and is working toward
comprehensive agreements that will create the Free Trade Area of the Americas.
It is a busy time at the Office of The U.S. Trade Representative, and the associated
agencies involved in these negotiations, The United States Environmental
Protection Agency continues to be an active part of the negotiating team to ensure
that environmental issues are appropriately addressed.
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The purpose of these agreements is to increase trade by reducing tariffs on
traded goods and services and reduce non-tariff trade barriers that could include
regulatory activities designed to protect or give advantages to domestic companies
over foreign investors. Pursuant to executive order, the U.S. is obligated to level
the economic playing field in a way that does not allow environmental protection
to be imperiled by increased trade or for low levels of environmental protection to
create havens for polluting industries seeking to create competitive advantages by
escaping the stringent American environmental rules.
1.2 Effective Enforcement of Environmental Laws
There are significant enforcement concerns with the various environmental
provisions of the Free Trade Agreements and there have been a number of
challenges to U.S. regulatory decisions. Other countries can challenge US
Environmental Protection Agency regulatory actions for violating trade rules, and
investment provisions allow challenges from foreign investors that are allegedly
locked out of the U.S. market by environmental rules. Additional provisions
are included in Free Trade Agreements to ensure that the lack of environmental
enforcement is not used as an incentive for environmentally devastating activities,
and US Environmental Protection Agency and other government agencies have
focused capacity building activities to improve the environmental governance of
U.S. trading partners.
In all of its recent Free Trade Agreements, the United States has included
environmental chapters that contain core obligations to provide for high levels
of environmental protection and ensure effective enforcement of environmental
laws, as well as recognition that it is inappropriate to derogate from these
laws to encourage trade or investment.1 (Chapter Seventeen of the CAFTA-
DR agreement provides a good example.2) These provisions recognize that an
environmental legal regime can only reach its goal of protecting human health
and the environment if the regulated entities put the requirements in practice
and comply with those requirements. Compliance cannot be achieved if there is
not an effective compliance program to motivate people to change their behavior
using compliance incentives and compliance assistance together with compliance
monitoring, sanctions and legal remedies when the regulated community fails to
meet its obligations under the law.
All recent Free Trade Agreements environment chapters include provisions
to promote public participation, provide appropriate remedies for violations
of environmental laws, and promote measures to enhance environmental
performance. CAFTA-DR establishes a public submission process similar to that
established under North American Free Trade Agreement, and this has been a
significant concern for the Central America and Dominican negotiators where
there are recognizable gaps in their compliance and enforcement programs. To
quote from CAFTA-DR Article 17.2 l.(a), "A Party shall not fail to effectively enforce
its environmental laws..." Further, Article 17.7 outlines an enforcement procedure
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to follow if that clause is violated: "Any person of a Party may file a submission
asserting that a Party is failing to effectively enforce its environmental laws."
The Humane Society International filed the first of these submissions under
CAFTA-DR on May 8, 2007, alleging that "by failing to complete a comprehensive
inventory of products made from sea turtles as required by domestic law, the
Dominican Republic is failing to effectively enforce sea turtle protection laws
prohibiting the sale of products manufactured from endangered sea turtles that
were captured and killed in the country after July 31, 2001."3 On December 5, 2007,
the CAFTA-DR Secretariat for Environmental Matters determined that Humane
Society International's submission met the terms of the citizen submission
requirements in Article 17.7.4, and formally requested that the Dominican Republic
submit a response to the points raised in the submission.4
2 WHAT IS EFFECTIVE ENFORCEMENT
2.1 U.S. Free Trade Agreements Do Not Clearly Define "Effective
Enforcement"
What is meant by "effective enforcement?" The alleged failure to enforce
Dominican laws protecting endangered species cited above, and submissions
filed under NAFTA regarding specific activities in the U.S., Canada or Mexico, all
address specific examples where environmental laws have not been enforced in a
particular instance or at a particular facility or industry. But, what about systemic,
programmatic shortcomings that cause widespread failure to effective enforce
environmental laws that extend beyond a particular situation?
The definitions contained in the trade agreements are limited, and do not
adequately recognize the full range of activities necessary to ensure compliance
with environmental laws. Article 17.13 of the CAFTA-DR defines "environmental
law," "statute and regulation," and "judicial or administrative proceedings," but
does not define "Enforcement" or "Effective." Parties should know with greater
clarity what they are supposed to be effective at doing before agreeing to potential
trade sanctions or penalties for violating a provision of the agreement to which
they become a party.
CAFTA-DR outlines that there should be judicial, quasi-judicial, or administrative
proceedings in place to sanction and remedy violations. Those proceedings shall
be fair, equitable and transparent, and appropriately and effectively prescribe
remedies or sanctions for violations. The public should be able to request that the
government investigate violations, and the public should be able to take action
against violators themselves or the government if the government fails to act. The
agreement also recognizes the role that voluntary mechanisms and incentives have
in enhancing environmental performance. While very important, these are only
a small part of an effective enforcement program. Of course, these comprise the
enforcement sandbox where lawyers mostly play, but it fails to recognize other
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aspects of a compliance program, which are equally important to effectively
achieve high levels of protection.
Priority settin
Compliance promotion
Compliance monitoring
Enforcement response
Clear roles
2.2 Enforcement Cycle Must Include Full Range of Activities
The above graphic5 demonstrates the cyclical nature of a fully functioning
compliance and enforcement program. The process begins with the awareness
and understanding of the problem, and continues with the planning and
implementation of a program to address the causes of that problem. The final
phase is the evaluation of the effectiveness and results, and the determination
of whether or not the goals have been achieved. Part of that evaluation includes
recommendations for changes along the way to improve the various components
of the cycle.
The initial step sets environmental goals that will help recognize and resolve the
problem. Those goals may be to reduce risks posed by particular activities to
human health and the environment, to attain higher levels of environmental quality
such as cleaning the water in a watershed, or reducing urban air contamination.
Prospective goals for pollution prevention or sustainable development may be set,
as well as retrospective goals to correct past problems. Extensive information on
the problem is required in order to fully understand what goals may be achievable
given applicable technologies.
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Once the goals have been established, management must select approaches which
will be most effective to reach the goals. These may be regulatory, voluntary
measures, or a liability scheme that relies on individual actions in the courts, but
less on government intervention. Approaches such as the traditional command and
control mechanisms and economic or market based systems usually have a strong
regulatory component, and many voluntary schemes may require additional laws
to be effective.
If a regulatory approach is utilized, the legal requirements may be implemented
through a variety of methods stemming from constitutional provisions, laws,
regulations, individual permits or licenses, and even judicial determinations that
interpret the laws. Developing countries often look to the U.S. for examples of
these laws, but should be careful, as most of the U.S. laws could be improved or
will not work in other contexts.
Once the rules are in place (or ideally, as they are being developed), strategies
and programs must be designed and implemented which program managers will
use to ensure compliance with the requirements. The development of these rules
is not usually considered part of the enforcement scheme, but without thinking
of the enforcement consequences, the laws may be impractical or impossible to
implement. Examples abound where countries have adopted regulations from
more other countries that relied on laboratory or field measurement procedures
that were not readily available when the law took affect. As a result, the regulated
community can not determine their own compliance, and the government can not
prove a violation. This can severely damage the credibility of the entire regulatory
structure. Instead of wholesale adoption, countries must adjust foreign regulations
to meet their specific situation and needs.
Programs must set priorities, especially given limited resources, to address
enforcement. The government must decide what industrial sectors or areas to
pursue first, and how to efficiently dedicate resources for the greatest return. Part
of the efforts must be dedicated toward educating the regulated community and
the public about the environmental laws and why they should comply through
compliance assistance and compliance promotion. The regulators must develop
strategies to effectively monitor compliance, through government inspections,
industrial self-monitoring, or citizen monitoring and reporting.
Governments should consider the punitive activity considered so important to
trade negotiators: responding to violations in a consistent, fair, and appropriate
manner. The response should follow standardized and transparent national
policies, yet take into consideration individual factors such as the appropriate
remedy of the violating situation, the economic benefit of the violation, the gravity
of the violation, and compensation for any harm caused.
Finally, the compliance program should be internally and externally evaluated
to determine if it is achieving the behavioral change that leads to environmental
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results. Environmental Compliance and Enforcement Indicators6 can help
demonstrate how resources have been utilized and the resulting benefits to the
environment. Demonstration of these results is crucial to show that the regulatory
authorities are properly using the public's resources, and to establish the credibility
of the enforcement agencies. These results, or lack there of, allow for the program
evaluation necessary to restart the cycle. The indicators can point out whether the
goals need to be changed, whether failures to achieve those goals may be a result
of bad law, or whether changes in our implementation strategies are necessary.
Without that type of program evaluation, the same mistakes will continue or
society will fail to make the innovations needed to solve our environmental
problems.
3 CONCLUSION
The "enforcement response," including sanctions and judicial determinations, is
only a small part of a larger program. For a compliance program to be effective,
every link in the chain must function together,7 and the program must evolve
to achieve continuous improvements. In recognition, each recent Free Trade
Agreement now includes side agreements for environmental cooperation, and
the State Department, US AID, US Environmental Protection Agency and other
partners have expanded long term capacity building programs with trading
partners to help bolster their Environmental Compliance and Enforcement
programs. These programs do not only support the "enforcement response," but
also address each of the different components of the cycle with training on the
development of law and regulations, institutional strengthening, enforcement
program design, inspections and criminal investigations, prosecution of
environmental crimes, training for the judiciary, and the use of indicators for
program management.8
It took the US Environmental Protection Agency over 30 years to evolve into the
existing Compliance and Enforcement program. Through cooperation with trading
partners, the U.S. Government can use its experience in environmental control to
share successes and failures and accelerate the program development in countries
world-wide to ensure that everyone effectively enforce their environmental laws
to achieve high levels of environmental protection.
(The views expressed herein are those of the author and do not represent the views of the
USEPA.)
4 REFERENCES
1 U.S., CAFTA-DRCountries Sign Two Supplemental Agreements toFacilitatelmplementing
the FTA's Environmental Provisions, Office of the United States Trade Representative
(Feb. 2005), http://www.ustr.gov/Document_Library/Press_Releases/2005/February/
US,_CAFTA-DR_Countries_Sign_Two_Supplemental_Agreements_to_Facilitate_
Implementing_the_FTAs_Environmental_Provisions.html.
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Jones 183
2 http://www.ustr.gov/assets/Trade_Agreements/Regional/CAFTA/CAFTA-DR_
Final_Texts/asset_upload_file9_3937.pdf.
3 Second Submission To The Secretariat For Environmental Matters For The Central
America - Dominican Republic - United States Free Trade Agreement, Marta M.
Prado, Esq. Humane Society International, September 28, 2007, http://www.saa-
caftadr.sieca.org.gt/comunic_activas/tortugas/Revised%20Submission.pdf.
4 Determination according to Articles 17.7.2 and 17.7.4 of the Free Trade
Agreement between the Dominican Republic, Central America and the United
Status of America, CAFTA-DR Secretariat for Environmental Matters (SEM),
December 5, 2007, http://www.saa-caftadr.sieca.org.gt/comunic_activas/tortugas/
Determinacion%20OriginalEng.pdf.
5 Principles of Environmental Enforcement, US EPA, 1992, www.inece.org/
enforcementprinciples.html.
6 Indicators Forum, International Network for Environmental Compliance and
Enforcement (INECE) www.inece.org/indicators.
7 Akella, Anita, and Cannon, James B., "Strengthening the Weakest Link",
http://web.conservation.org/ImageCache/CIWEB/content/programs/policy/
ccgenforcementreport_2epdf/vl/ccgenforcementreport.pdf.
8 CAFTA-DR Environment and Labor Cooperation Projects, U.S. Department of
State, September 28, 2006, http://www.state.gOv/r/pa/prs/ps/2006/73328.htm.
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Kok 185
CHAIN ENFORCEMENT COMPLEMENTING THE EXISTING SYSTEMS
KOK, FRED1
1 Secretary of the National Authority of Environmental Enforcement, Koningskade
40, 2596 AA Den Haag, the Netherlands, fkok@lom.nl.
SUMMARY
This paper describes the relatively new concept of 'chain enforcement.' Since
the development of environmental legislation and its enforcement, the focus has
primarily been on stationary sources. In the last decade however, a lot of attention
has been directed towards environmental problems, which are not directly
related to stationary sources. The problem-oriented approach is at the moment
not entirely compatible with the way the legislation is organised. The problem-
oriented approach instead of a task-oriented approach is therefore not self-evident
and demands more attention. The fact that there still is unfamiliarity with the
chain enforcement approach, stresses that more attention is needed for creating
support and confidence.
The National Authority of Environmental Enforcement published the guideline
document Chain Enforcement, which describes the process of chain enforcement in
five steps. The guideline document especially deals with the way the process has
to be organised and the conditions that have to be fulfilled for successful chain
enforcement.
1 PROBLEM-ORIENTED WITHIN TASK-ORIENTED LEGISLATION
Since the beginning of the 19th century till the sixties in the 20th century, the
Netherlands only had one general environmental law. From the sixties onwards,
the environmental theme has come onto the public agenda. This meant diverse
sector-oriented laws with different permit systems. Within the decentralised
government of the Netherlands the following proverb applies: "decentralise
whatever can be decentralised, and centralise what has to be centralised." Because
of this, a patchwork of systems with different competent authorities has arisen, that
even after advanced development of environmental legislation, exists till today.
The protection of the environment and its enforcement is done by approximately
five hundred different governmental organisations; central, regional and local.
Environmental legislation is mainly directed towards location bounded industrial
activities. The main instrument environmental legislation offers is the permit
system. Besides the actual environmental protection, the environmental legislation
also arranges the division of the different authorities over the five hundred
governmental organisations. The legislation gives each government a task
assignment to protect the environment for those parts for which the concerned
government is appointed to through law as official competent organisation.
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Because of this, a task-oriented system exists. Finance, steering incentives and
accountability is therefore primarily focused on fulfilling the assigned task.
In the last decade, however, experience shows that there are still gaps in the
system with the task-oriented approach. For stationary sources and possibly non-
compliance behaviour it can be assumed that the enforcement governments have
developed in such a way that they are in general in control with the situation. This
doesn't exclude incidents and situations where the willingness to enforce is deficit.
Non-compliance related to non-stationary sources is nowadays more seen as
a problem. It mostly involves products, materials and waste streams which
have their own cycle. This cycle is a chain consisting of the phases origin-
transportation- processing- end application or recycling. In each phase in the cycle
an environmental threat can come from these materials. For instance a demolition
firm which pretends to dispose of asbestos to a waste company but, in fact, dumps
the asbestos in an illegal manner to avoid extra costs.
Because of their non-stationary character, and sometimes, because of the long
time-line, depending on the context in the cycle, every time different laws apply
and mostly there are also diverse competent authorities.
The enforcement of these kinds of environmental problems sometimes demands
an approach that is different from the approach to stationary sources. The National
Authority on Environmental Enforcement published a guideline document, which
step by step describes the conditions and circumstances for successful chain
enforcement. It involves the following steps:
Phase 1: Selection of the chain
Phase 2: Chain research
Phase 3: Intervention strategy
Phase 4: Prepare implementation
Phase 5: Implement and monitor
1.1 Consequences for problem-oriented way of working
The problem-oriented approach takes place within the boundaries of the juridical
possibilities and might therefore experience possible resistance. Developments
in society are not guided by legislation, but to the opportunities which arise. As
one can see, the trade in waste (and such) materials and products has become big
business. The same applies to raw materials, which are easily transported all over
the world. In this sector, just like all the other sectors, a relatively small part of
the market beliefs in ideology on sustainability and are showing an exemplary
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behaviour that is compliant. Another small part is after making money and
economic profits despite the environmental impacts and are not whatsoever
afraid for doing criminal environmental activities. By far most of the actors behave
in a calculated manner. They are, in principle, prepared to comply to the rules,
especially if the competition in general also comply on a large scale. If by non-
compliance, the chances of getting caught, the sanction extent and the damage to
the image are great enough, it will stimulate compliant behaviour. On the other
hand however it also means that this group will easily join in a culture of non-
compliance. Such cultures arise if the incentives (positive and negative) for
compliance are insufficient. This trend can also be seen in other countries (on
international level). Depending on time, place and prevailing jurisdiction each
time different requirements apply in the life-cycle of such harmful materials or
activities.
Companies or traders, who behave in a calculated manner make use of these
circumstances and know how to organise themselves in these chains, or keep the
chain entirely in their hand. To adjust and make (mis)use of the circumstances
surely pays off against the chances of being caught for non-compliance.
Enforcement governments who want to be effective in this chain, shall have
to organise themselves in a similar way. For this, a system is set up in the
Netherlands.
2 SELECTION OF THE CHAIN
The methodology for selecting chains which have priority is based on the
Compliance Strategy of the Ministry of Housing, Spatial Planning and the
Environment. For subjects wherefore chain enforcement is a suitable solution, the
following steps are taken:
1. Divide the working area into chains e.g. with waste materials the following
phases can be identified a) dispose b) collect and store c) process d) useful
application / permanent removal; and list and select the relevant types of
impact (sustainability public health, safety and also the social impacts which
can occur).
2. Specify and assess each chain and chain phase for disadvantageous impacts
that in principle can occur.
3. Analyse and assess each chain for the chance that impacts might occur;
different chance determined factors are being assessed.
4. Determine the risk of each chain (total impact score X total chance score) and
based on this prioritise.
5. To assess the need for chain enforcement.
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Step 1 till 4 also occur in other methodologies and will therefore not be discussed
here. To assess if chain enforcement is desirable, the following aspects have to be
considered:
- Risks which are caused by insufficient insight into and grip on the whole
impact of industrial activities of companies, processing and transport within in
the chain of materials.
Insufficient compliance in the moments of transfer between the different stages
of industrial activities in the chain. A characteristic of a material stream is
that a lot of legislation and rules apply to the diverse links in the chain. Even
some material streams can change their identity and for instance become from
waste a raw material (input). The value of a material also changes then. It can
therefore be attractive and even easy to violate the rules.
- Risks in one link can have an impact on the whole chain.
- Risks related to legislative tasks and policy tasks that are, compared to other
risks in the chain, clearly the most important.
In general the following aspects in the process of selecting a chain are useful:
- Work is structured and follows the described steps, but uses the quick-scan
method. Do not waste energy to detailed study; this will come in a later stage.
- In this phase have confidence in your professional intuition. The methodology
has a lot of sufficient elements further on where you can confirm your
assumption or not.
- The different interests can even play a role in the first phase. Independent
process management can offer safeguard against this problem.
- Make sure that the report is well founded and that even a layman can
understand it.
3 CHAIN RESEARCH
Formulate a clear main question and aim, so it can give direction. The main
question and aim indicate where the focus of the chain research lies. Clearly define
the research area and also make clear where the chain research is not focused on.
Step by step, the research can have the following features. Make the aim explicit
and derive the central question from it. From this central question, different sub-
questions can be formulated which determine the way the data will be used and
which methods to apply. By answering the sub-questions, the central question can
be answered and subsequently steps can be taken to achieve the aim.
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Kok 189
With such an approach a project leader is needed, who has full confidence from
the involved government and who is given the opportunity to do his research
independently and/or with the help of hired expertise.
In general the following notions in the phase of the chain research apply.
- Invest energy in a clear but short project - or research plan with the necessary
elements.
- Consider, if possible with the directly concerned (potential project group
members), explicitly the project organisation and decide to do it yourself or
hire expertise.
- Make a time management plan and make a realistic estimate of the budget
needed
- Invest in organising a data facility. Make sure that the chain research is not
alienated from daily practice.
4 INTERVENTION STRATEGY
When setting up an intervention strategy, it is wise to use a broad scope. The
problem and especially the key moments which maintain the problem is the
departure point for the intervention strategy. This gives opportunity to abstract
from task and roles which are laid down in existing regulations. The legislation
is especially directed towards territorial and functional competence. In an
intervention strategy on the contrary, aims and the desired impacts are defined
and the assigned competences are just an instrument to achieve the aims.
An intervention strategy consists of three levels:
- Strategic •* what do we have to do or what has to be done to achieve the aims
and impacts?
- Tactical "* what is the best way to do it?
- Operational ~* who has to do which activity when and with what result?
The strategy is the answer to the question what do we have to do or what has to
be done in order to achieve the aims an impacts and thus get sufficient grip on
the problem. This will be answered within the context of the whole chain. The
territorial and functional competence is a part of this answer and certainly not a
independent aim. For instance, a strategy formulated in the intervention strategy
'Building and Demolition Waste' of the National Authority of Environmental
Enforcement is to prevent that building and demolition waste—during building
and demolition—is not contaminated with asbestos, paint tins, etc.
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The strategy is provided with different tactics. That means what is the best
way to do it. An example of a tactic from the intervention strategy 'Building
and Demolition Waste' is to force the separation of waste- during building and
demolition- through permits.
The tactic is an important step and should be a well-considered decision. Good
decisions are mostly taken in steps. Advisable are the steps: forming a picture,
judging and decision-making.
- To form a picture: which solutions (measurements and instruments) are in
principle conceivable? Each member of the project group can think of and write
down different solutions.
- Judging: how can the solutions be measured against each other? What are the
advantages and disadvantages? In this step the different solutions are discussed
and measured against each other.
- Decision-making: finally, based on the discussion on the advantages and
disadvantages of the different possibilities, a decision is made.
If the tactics are determined, then for each tactic it is worked out who is responsible
for the operational actions. An example of an operational action formulated in the
intervention strategy 'Animal Fats' is: the Inspection Department of the Ministry
of Environment should list (mid 2005) all the companies that are active in the fat
recycling chain. All actions together form the operational action program for this
problem.
To develop a strategy the following general remarks can be made:
- Do not restrict the scope. Think creative and work in the lines of broad to
narrow in strategies and tactics. First develop solutions that are conceivable and
then determine which are practical and from which one more is to be expected.
- Make sure, more than in the chain research phase, that there is enough input of
practical expertise and experience. The intervention strategy has to be feasible.
- Safeguard the implementation in the intervention strategy by explicitly
describing the way the implementation should be organised.
5 IMPLEMENTATION AND MONITORING PLAN
The implementation plan consists of elaborate information for the people who
are responsible for the governance, the managers and the enforcers. These target
groups are discussed in the following paragraphs.
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Kok 191
5.1 People responsible for governance (governing officials)
To get support from the governing officials it is important to give them insight
into:
1. The environmental problem and the related enforcement question.
2. The 'organisation exceeding' character of the problem: let the governing
officials understand the risks of these problems which cannot be solved alone
within their own organisation and make them aware of the positive role they
can plan.
3. The importance of chain enforcement to solve the problem
4. Who plays preferably which role.
5. What are (roughly) the costs and benefits to participate in the implementation.
A characteristic of environmental problems in a chain is that the distance between
the violation and the harmful impacts are great. Because of this, the risk exists that
the problem feels more like a problem that is far away and it is much easier to
shift the problem instead of solving it. Therefore offer administrative perspective
that creates room for responsibility that is not only within the boundaries of its
own domain. Be aware that the description is meant for governing officials: keep it
short.
To make decisions governing officials would like to have insight into the costs and
benefits. Think of the following advantages:
- Advantages on micro-level. Advantages for the own organisation, for instance
to get grip on the risks within the own domain.
- Advantages on region-level. Advantages on regional scale and to achieve goals
together with other similar responsible government organisations.
- Advantages on macro-level. National or international advantages like
governments operating united and aspects of international solidarity.
5.2 Managers
To a great extent, managers need the same information as the people responsible
for governance. They also have to convince the board in staff meetings.
In addition managers are responsible for the daily management. They want to
have an overview of the whole chain input-throughput-output-outcome. Aims and
impacts should be presented in a practical manner.
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Managers should take into account how the organisation should be organised
and the different modalities for possible forms of organisation should be given to
them.
Special attention should be given to the aspect: exchange of information. Effective
cooperation depends on the willingness to exchange information and also to
actually do it. The necessity should be founded. Think of the following types of
exchange:
- Exchange of information in the own organisation between the different
departments.
- Exchange between enforcement partners. This concerns data which one
organisation gathers and is also put at disposal and is available for other fellow
organisations.
- Exchange among different organisations and an agreed central point. The
information can then also be available for monitoring performance and input.
5.3 Enforcers
A summary of information given to governing officials is desirable, so that the
enforcer has insight into the context of his conduct. The plan also has to consist of
supervision and enforcement instructions like:
- Where the focus should be during the supervision
- How the violations can be established and confirmed
- How the violations related to evidence should be determined
- How the feedback to the management is arranged
To conclude this chapter some general remarks can be made.
- Make the implementation plan, especially concerning the part that is directed
to the executers, as concrete as possible.
- Make clear to the governors and managers why the approach to the problem
needs an attitude that should look above their own domain to other domains.
Especially in the attitude, there is potential for recognition and appreciation of
its own contribution.
- Look critically at the implementation plan if it attractive to participate,
especially for the individual governments. Participation is not self-evident and
also not compulsory. Tempt them.
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6 IMPLEMENTATION, EXECUTION AND MONITORING
In this phase a distinction can be made between the different steps.
1. Prepare the implementation of the action program
2. Implement the actions of the action program
3. Monitor and periodically assess the performance of the implementation
The action program can take form through a cycle process called quality circle of
Deming (plan, do, check). In general the following advice can be given.
- Form an implementation group with people of a 'certain level' chosen from the
involved organisations. Try to win them over, inspire and motivate them, and
make expectations explicit. Try to involve them in the decisions and the actions
that have to be taken. Try to be open for criticism and foresee, enumerate and
react to resistance and criticism.
- Try to achieve concrete results, quick wins always work inspiring. The longer
concrete results fail to occur, the harder the implementation is and reverse.
- Try to quickly approach difficult cooperating organisations. Do not hesitate to
seek help for such problems on a higher level. Successful cooperation is not the
responsibility of one person.
- Use the circle plan, do, act & check consciously and make the different steps
explicit, on the level of the action program and also on the level of the different
individual actions to be taken. Do not restrict the scope. Think creatively and
work from broad to narrow, in strategies and tactics. First think of solutions
that are possible, and subsequently determine which are practical and from
which one the most is expected.
- Make sure of - more than in the chain research- input of expertise and
experience. The intervention strategy should be practical.
- Safeguard the implementation by explicitly describing the way the
implementation should be organised.
7 EPILOGUE
The methodology offers a rational model for the possible approach to chain
enforcement. The National Authority of Environmental Enforcement already
has experience with the implementation of the intervention strategies asbestos,
building and demolition waste, animal fat and prohibited consumer fireworks,
started in 2005. Experience has shown that chain enforcement can be a good
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answer to the fact that companies are not operating independently but are part of a
chain where there are opportunities between two links where compliant behavior
does not always have the preference.
In spite of all rationality, to create support and confidence for this approach is
essential. The Dutch experience shows that creating support on the enforcers-
level delivers the least problems. They are constantly banging their head against
the wall because they can not operate effectively with the restrictions of the
current system. The chain enforcement gives them opportunities to increase
their effectiveness. To get the support and confidence of governing officials
and managers is more complicated. It is politically correct to affirm the chain
problems and support the chain approach. At the same time one can observe
there are certain reservations because of the implications support has for its own
organisation. Governing officials and managers are pointing at the essential pre-
conditions which first have to be fulfilled before they take action. For the managers
an extra complication is that they are not only responsible for the environment
but also for daily management and most often the tasks are directed towards this.
These are task assignments and performance commitments which mostly focus on
the classical territorial and functional domains, instead of the broader view which
underlies the chain enforcement.
It is therefore important to achieve support and confidence from governing
officials and on managerial level and also for the implications it might have on
its own organisation. It is also important that from the cooperating governments,
one governing official in particular is responsible for the performance and also
to report it. Especially to prevent that responsibility for all, sometimes means in
practice that will no one is taking responsibility or action in the end.
Besides the eagerness of an appointed project leader it is also important that a
governing official is involved who is also interested to turn the project into a
success. The governing official should recognize possible stagnation in the project
as if it is his own failure and should be able to approach his colleague if there is
a problem. Such a committed sense of urgency is needed for the management to
legitimately reserve capacity in their internal management. At the same time the
management is also an important advisor to the governing official. The sense
of urgency message should be expressed by the management to convince the
governing official of the chain enforcement approach.
8 BIBLIOGRAPHY
National Authority of Environmental Enforcement, Guideline Chain Enforcement
(2007).
National Authority of Environmental Enforcement, Intervention Strategy Building
and Demolition Waste (2005).
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Kok 195
National Authority of Environmental Enforcement, Intervention Strategy Asbestos
(2005).
National Authority of Environmental Enforcement, Intervention Strategy
Prohibited Consumer Fireworks (2005).
National Authority of Environmental Enforcement, Intervention Strategy Animal
Fats (2005).
Compliance Strategy of the Ministry of Housing, Spatial Planning and the
Environment (2004); www.vrom.nl/international.
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CHALLENGES ON COMPLIANCE AND ENFORCEMENT OF THE
WASTEWATER MANAGEMENT LEGISLATION IN TANZANIA
LUGWISHA, RUTH H.J.1, LEENTVAAR, JAN2, BAYA, BONEVENTURA T.3
and DOUVEN, WIM J.A.M4
1 Principle Environmental Management Officer, National Environment
Management Council, Directorate of Environmental Compliance and
Enforcement, Tancot House, 3rd Floor, Sokoine Drive, P.O. Box 63154, Dar es
Salaam Tanzania, ruthtz@yahoo.com or lugwil@unesco-ihe.org.
2 Director Chief Inspector Water, Water Management Inspectorate, 8200 AB
Lelystad, the Netherlands, jan.leentvaar@ivw.nl orj.leentvaar@unesco-ihe.org.
3 Director General, National Environment Management Council, Tancot House, 3rd
Floor, Sokoine Drive, P.O. Box 63154, Dar es Salaam Tanzania, bbaya@hotmail.
com, nemc@nemctan.org, nemctz@yahoo.com.
4 Senior Lecturer, UNESCO-IHE Institute for Water Education, Department of
Management and Institutions, P.O. Box 3015, 2601 DA Delft, the Netherlands,
w.douven@unesco-ihe.org.
SUMMARY
The lack of compliance and enforcement of wastewater management legislation
in Tanzania has raised concerns due to the significant environmental and public
health threats that result from unregulated discharge of industrial effluents.
Utilization of the "Table of Eleven" tool, a behaviour-analysis model providing
insight into the level of legislative compliance, makes it possible to explore
motives that encourage industries to comply with, or violate, existing wastewater
management legislation. This paper discusses how application of the "Table
of Eleven" tool has enabled the government of Tanzania reveal strong and
weak points pertaining to the compliance and enforcement of the wastewater
management legislation. As a result, it is clear that more attention is needed to
improve comprehension of the legislation and to increase the use of incentives and
economic instruments. Future steps should include applying this knowledge to
the development of environmental indicators.
1 INTRODUCTION
Despite the enactment and implementation of environmental legislation at the
national and international levels, various measures of environmental quality
show continuing global degradation across a broad spectrum, resulting in serious
consequences for ecosystems and public health (Constantinides 2001). One of
the main reasons for the continuing degradation is non-compliance with existing
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198 Eighth International Conference on Environmental Compliance and Enforcement 2008
environmental legislation. Also contributing to the degradation is the failure to
invest in compliance and enforcement coupled with the fear that improving
compliance and enforcement will increase the cost to industry, harm industry's
competitiveness at home and abroad, and deter foreign investment. However,
investing in enforcement and compliance not only improves environmental
quality and public health, it also improves the competitiveness of firms and
nations. Improving enforcement and compliance in Tanzania will likely enhance
respect for the rule of law; therefore, strengthening the foundation for improved
environmental governance (see Zaelke et al. 2002).
In Tanzania, the regulatory and administrative framework surrounding
wastewater management is driven by international conventions, regional treaties,
and national environmental policies and strategies (cross-cutting and sector-
based). The primary regulators for compliance assurance and enforcement of
effluents operate at national and local levels.
Inadequate coordination between actors and poor application of legal instruments
are among of the reasons that contribute to the current situation wastewater
management in Tanzania (Lugwisha 2004). Additionally, there are no indicators
available in Tanzania that can be used to assess compliance and enforcement. The
government has been using the State of Environment reports and annual targets,
along with the strategic plans of government departments, as a base for exploring
potential indicators. These resources suggest the need to investment in compliance
and enforcement programs, capacity building, and quality of water resources.
However, due to a lack of well established environmental database systems, it has
been difficult to measure the effectiveness of compliance and enforcement with
the legislation based on these indicators. In this respect, the "Table of Eleven"
tool (Dutch Ministry of Justice 2006) was used while conducting studies in Dar
es Salaam, Tanzania and gave the estimates of compliance with the wastewater
management legislation. The tool has also revealed motives for non-compliance,
enforcement efforts, and helped in developing measures for improving the existing
regulatory and administrative frameworks.
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199
Table 1: Dimensions of "Table of Eleven"
Compliance dimensions
1
2
Knowledge of rules: Target group
familiarity with legislation, clarity
(quality) of laws and regulations.
Costs/Benefits: Material and
non material advantages and
disadvantages resulting from
violating or observing legislation.
Compliance dimensions
3
4
5
Level of acceptance: The extent
to which the target group accepts
policy and legislation.
Normative commitment: Target
group's respect for authority
and willingness to comply with
legislation.
Informal control: Social control.
Noncompliant behaviour of the
target group can be detected and
disapproved by third parties and
severity of sanctions that might be
imposed by the third parties.
Enforcement dimensions
6
7
Risk of being reported: Possibility
that an offence may be revealed
during official investigation or
inspections and may be officially
reported.
Risk of inspection: Likelihood of
being subject to physical inspection
by authorities.
Enforcement dimensions
8
9
10
11
Risk of detection: Possibility of
being detected of an offence during
inspection.
Selectivity: Extent to which
inspectors succeed in checking
offenders more than who obey the
legislation.
Risk of sanction: Possibility of
sanctions being imposed if an
offence has been detected through
controls and investigations.
Severity of sanction: Severity and
type of sanction and associated
adverse effects caused by imposing
sanction e.g. loss of respect and
reputation.
Source: Dutch Ministry of Justice 2006
2 THE "TABLE OF ELEVEN" TOOL
2.1 What Is "The Table of Eleven" Model Tool?
The "Table of Eleven" Model tool was developed by the Dutch government as a
monitoring tool (Dutch Ministry of Justice 2006). It provides insight into the
level of compliance of any legislation. It is a behaviour-analysis model allowing
legislators, policy makers, and enforcers to get a picture of the motives for
compliance or non-compliance of a specific rule in a specific target group. The tool
uses a checklist that consists of eleven dimensions which are classified into two
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groups of compliance and enforcement (Table 1, Dutch Ministry of Justice 2006).
The compliance dimensions are the factors that affect the incidence of voluntary
compliance - that is, compliance that would occur in the absence of enforcement.
2.2 Testing the "Table of Eleven" Tool in Tanzania
Prior to the general application of the "Table of Eleven" tool in Tanzania, the
mechanism was tested in the field and improved to suit the country's specific
situation. The tool's checklist module, which provides an impression of the extent
to which the legislation is complied, was also modified. Additionally, the data
management module, which offers the possibility of documenting several formal
data on the tested legislation, was increased from ten to 50 documentations.
The focus for the study was on industrial effluents that, as discussed above, have
been the major concern for the pollution to the environment; as a result, the target
group for the "Table of Eleven" assessment was industries. Assessment was done
through focused group interviews with (1) representatives nominated from the
organisations that regulate the legislation and (2) representatives from a group
of industries. A total of seven groups were involved in the interview using the
"Table of Eleven" checklist. Groups of industries consisted of 15 people from
the following polluting industries: textile mills, food processing and beverages,
soap manufacturing, and the Confederation of Tanzania Industries. Groups from
regulators, with the number of representative from individual organisations in
brackets, included: the Dar es Salaam City Council (6); Ruvu Wami Water Basin
(3); Dar es Salaam Water Supply and Sewerage Authorities (5); Occupational
Safety and Health Agency (6); Government Chemist Laboratory Agency (10); and
the National Environment Management Council (8). Wastewater management
legislation that was assessed include: The Public Health (Sewerage and Drainage)
Ordinance of 1955; Water Utilization (Control and Regulation) (Amendment) Act
No. 10 of 1981; Water Utilization (Miscellaneous Amendments) Act No. 8 of 1997;
Water Laws (Miscellaneous Amendments) Act No. 1 of 1999; the Dar es Salaam
Water Supply and Sewerage Authority Act, 2001; the Occupational Health and
Safety Act 2003; Industrial and Chemicals (Management and Control) Act 2003
(ICC); and the Environmental Management Act No. 20 of 2004.
Industries assessed all the above mentioned legislation while the organisations
assessed legislation that the individual organisation regulates. Therefore, resulting
opinions represent views of the organizations, not the individual. For the purpose
of security and to remain anonymous, code numbers were used to represent the
industries.
The rest of this paper discusses the results of the following Acts: the Public
Health (Sewerage and Drainage) Ordinance of 1955; Water Utilization (Control
and Regulation) No. 42 of 1974 and its amendments; and the Environmental
Management Act No. 20 of 2004.
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Lugwisha, Leentvaar, Baya & Douven 201
3 FINDINGS ON THE EXTENT OF COMPLIANCE AND ENFORCEMENT
OF THE WASTEWATER MANAGEMENT LEGISLATION IN
TANZANIA
Application of "Table of Eleven" in Dar es Salaam, Tanzania revealed the main
strengths and weaknesses of the existing systems of compliance and enforcement
of the wastewater legislation in managing industrial wastewater discharge.
Based on the evaluation of the regulators and industries, the key findings are the
following (See also boxes 1 to 3 for the details):
• Both individual groups of regulators and industries have more of less the same
observations on the motives that encourage compliance or violations.
• Industries are capable of understanding the legislation; however, the
wastewater management legislation is not familiar to industries. The legislation
lacks clarity as has not been translated in a simple language, including means
to realise the objectives and outcomes (e.g., how to meet national effluent
standards and reduce pollution loads to the environment). In short, inadequate
knowledge on the legislation has contributed to industries not accepting the
legislation's objectives and understanding it's effects and outcomes.
• Despite of inadequate knowledge on the legislation, industries are concerned
with enhancing good reputation and image of the business to the public and
competitors, avoiding high costs to be incurred if they violate the legislation,
avoiding risks being involved when inspected or detected of any violations
and sanctions to be imposed, promoting their businesses through certification
on the quality of the products (ISO 9000) and environment (ISO 14001), and
avoiding negative reactions from public and within the industry's sector.
• Industries would like to comply fully; however, there is a lack of compliance
schemes, such as incentives and economic instruments to motivate compliance,
within the legislation.
• While industries believe that they are respecting regulators, the latter seem not
always necessarily agree.
• Industries, Dar es Salaam City Council, and Wami-Ruvu Water Basin identified
"social control" as one of the factors that encourages compliance to the
legislation, and the National Environment Management Council was observed
to be weak.
See Appendix 1- Related to Compliance Profiles of Wastewater Management
Legislation
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202 Eighth International Conference on Environmental Compliance and Enforcement 2008
4 RECOMMENDATIONS
In order to improve the current situation it is recommended that wastewater
management is made more available and better explained to the industries and
relevant actors, such as public. This can be accomplished by translating the
legislation into simple language and raising awareness though the media, public
forums, websites, etc.
Consultative forums of actors who have stake in wastewater issues (including
regulator - industries forums) should be enhanced. This would encourage
voluntary compliance. Also, industries need to have environmental management
plans and commitments for implementing the same and conduct self-monitoring
and report to the regulators.
The current situation can also be improved by developing transparent and
consistent compliance schemes. These schemes could consider the activities and
performance of each industry or sector, risks and impacts to the environment
and public health, evaluate the proportionality of compliance (balance of
action to protect the environment against risks and costs, deterrent effects,
appropriateness).
Effective coordination among regulators should be established to avoid
inconsistencies and ensure accountability while working to implement the
objectives of applicable legislation. This could be enhanced by having binding
benchmarks, memorandum of understanding, and protocols in executing
responsibilities. The memorandum of understanding could incorporate issues
such as responsibilities, information, resources, and accountability (specified and
clear objectives, targets and indicators of performance, liability, procedures for
conflict resolutions, etc.).
5 CONCLUSIONS
Application of the "Table of Eleven" tool has enabled the government of Tanzania
to reveal strong and weak points pertaining to the compliance and enforcement
of the wastewater management legislation. More attention is needed to improve
comprehension of the legislation and the increase the use of incentives and
economic instruments.
Effective collaboration among regulators would enhance joint use of merger
resources from the government, effective information sharing and promote
accountability.
Although the reasons for promoting compliance and non-compliance with the
wastewater management legislation in Tanzania have been identified by both
regulators and regulated community, a need to develop indicators that can
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Lugwisha, Leentvaar, Baya & Douven 203
compliment the results, using international experience (including the Netherlands,
USA, INECE, etc.), should be emphasised.
6 REFERENCES
1 Constantinides G 2001. Cost-benefit Analysis Case Studies for GPA Strategic
Action Plan on Sewage. UNEP.
2 Dutch Ministry of Justice 2006. The "Table of Eleven: A versatile tool (Version:
October 2006)". The Hague, Netherlands, 27.
3 Lugwisha RHJ 2004. Integrated Wastewater Management in Coastal Urban Areas.
A Case Study of Msimbazi River Catchment, Dar es Salaam, Tanzania. MSc Thesis,
UNESCO-IHE Institute for Water education.
4 Ministry of Health 2003. Industrial and Chemicals (Management and Control)
Act 2003.
5 Ministry of Labour and Youth Development 2003. The Occupational Safety and
Health Act, 2003
6 Ministry of Regional Administration and Local Government. Public Health
(Sewerage and Drainage) Ordinance of 1955.
7 Ministry of Water 2001. The Dar es Salaam Water and Sewerage Authority Act
2001.
8 Ministry of Water. The Water Utilization (Control and Regulation) No. 42 of 1974
and its amendments.
9 OECD 2005. Integrated environmental permitting guidelines for EECCA.
10 Vice President's Office 2004. The Environmental Management Act No 20 of 2004.
11 Zaelka D, Markowitz K, Higdon T 2002. Strengthening Environmental
Enforcement and Compliance (ECE) through network. Paper presented to the 1st
International Conference in ECE in Latin America.
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204 Eighth International Conference on Environmental Compliance and Enforcement 2008
APPENDIX 1: COMPLIANCE PROFILES OF WASTEWATER MANAGEMENT
LEGISLATION
Box 1: Compliance profile of the Public Health (Sewerage and Drainage)
Ordinance based on industries and Dar es Salaam City Council
Encourages
violation
strong weak
Tla - Unfamili;
Tlb-Lackofclari
T2a - Compliance tot
T2b - Violation tot
T2c - Implications foi ima<
T3a - Acceptance of policy obje
T3b - Acceptance of effects of polii
T4a - Government authoiit1
Till - Competing authority-
T5a - Social contn
T5b - Horizontal supervision-
16 - Informal risk of a violation being
T7a - Risk of inspection o
T7b - Risk of physical in
T8a - Risk of detection in inspection
i si) - Risk of detection in physical in
T10 - Risk of a sanction being impose*
Dar es Salaim City Council —
DSM Industrialists ABCD on Public Health Sewerage and Drainage) Act
Although there variations in the
perception of the level of compliance, both the
City Councils and industries identified that the
compliance to the Ordinance is strongly
encouraged by fear of damaging image to the
public, social control and risks of being inspected
and detecting violations as well as the sanctions
to be imposed.
While the city council realise that
industries inadequately respect the regulators, the
industries disagree.
Both groups also identified lack of
incentives and economic instruments as motives
that weakens compliance, while lack of clarity
and unfamiliarity to the Ordinance encourage
violation.
Box 2: Compliance profile of the Water utilization Act No 42 of 1974 and its
amendments based on industries and Wami-Ruvu Water Basin
Encourages
violation
stiong weak
Tla - Unfamiliarity
Tib- Lack of clarity
T2a - Compliance toi
T2b - Violation toi
T2c - Implications for imag<
T3a - Acceptance of policy object
T3b - Acceptance of effects of poll
i-n - Government authority
T4b - Competing authority
T5a- Social contn
!"•"•!• - Horizontal supervisi
T6 - Informal risk of a violation being reported •
1,1 - Risk of inspection of record
T7b - Risk of physical inspect!
T8a - Risk of detection in inspection of recor
T8b - Risk of detection in physical inspect!
T9 - Selectiv
I L " - Risk of a sanction being impos
Til - Sanction - sevei
-
Ministry' of Water - Warn! Ruvu Basin —
DSM Industrialists ABCD on Water Utilization Act
Both industries and Water Basins realise that
social control and reputation of the image and risk
based management as well are factors that encourage
compliance. Risks are on inspections and violations
being detected and reported as well as sanctions to be
imposed. Fear on high costs for compliance
compared to the benefits weakens compliance.
While, lack of clarity and familiarity of the Act,
strongly encourage violations. This is due to the fact
that the Act has been amended for many times and
not translated in a simpler language to be understood
well, and does not reflect the objectives of the
National Water Policy 2002 to meet the existing
challenges. From the figure this is highly indicated by
the Water Basins.
While industries recognise the compliance is
encouraged by the industries to implement ISO 9000
and ISO 14001, Water Basins do not see it.
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Lugwisha, Leentvaar, Baya & Douven
205
Box 3: Compliance profile of the Environmental Management Act No. 20 of 2004
based on industries and NEMC
Tli-Unfamilijiity
Tib-Lick sfclirity-
T2i- Compliance total
T2b-Violation total
T2c - Implications for image-
T3a - Ac«pun« of policy object-
T3b - Acceptance of effects of pclicy-
T4a - Government authority
T4b - Competing authority
T5» - Social contn
T5b - Horizontal supervision-
T6 - Informal risk of a violation being reported -
T7i - Risk of inspection of records-
T7o - Risk of physical inspect!
T8a - Risk of detection in inspection of records-
T8b - Risk of detection in physical inspection-
T! - Selectiiity-
T10 - Risk of a sanction being imposed-
Tll - Sanction - sewity-
Both NEMC and industries observed that:
• Compliance to the Act is encouraged as it creates good
reputation to the public. Fear of high risks associated with
inspections, detection of violations, high costs for
violations as well as sanctions that could be imposed are
also factors encourage compliance. Acceptance of the Act's
objectives and its effect as well as respect to the authority
by industries and implementing programmes that enhance
businesses such as ISO 9000 AND ISO 14001 encourage
compliance with the Act.
• Lack of incentives and economic instruments weaken
compliance.
• Unfamiliarity and lack of clarity to the Act encourage
violation.
Industries observed that detection of violation by public and
non-government organisations that could result into high costs
and bad reputation, encourage compliance. However, NEMC
observed that, social control is still not effective to make
industries to comply with the Act. This is attributed by the fact
that the Act is not familiar and has not translated into a simpler
form that the public can easily understand.
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Marshall & Smith 207
MANAGING PARALLEL CIVIL AND CRIMINAL ENVIRONMENTAL CASES
MARSHALL, MELISSA P.1 and SMITH, WALKER B.2
1 Senior Counsel, Office of Civil Enforcement, United States Environmental
Protection Agency, 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460,
marshall.melissa@epa.gov
2 Director, Office of Civil Enforcement, United States Environmental Protection
Agency, 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460, smith.
walker@epa.gov
SUMMARY
The United States Environmental Protection Agency (EPA) has two primary
objectives when enforcing federal environmental laws: bringing violators into
compliance, and imposing penalties for deterrence.1 These objectives may be
achieved through civil actions, criminal actions or, less frequently, a combination
of the two when the full range of these authorities is necessary for complete relief.
Most of the environmental statutes enforced by EPA include both civil
and criminal remedies.2 Both mechanisms are critical components of EPA's
enforcement program. For some very practical reasons, which include ensuring a
wise utilization of resources, EPA generally favors bringing only a civil or only a
criminal action to resolve an environmental violation. The general preference may
be overcome when the magnitude or range of the environmental violations (or the
available sanctions) make both criminal and civil enforcement appropriate. This
paper discusses the approach EPA is taking to manage parallel civil and criminal
enforcement actions.
1 DEFINING A PARALLEL PROCEEDING
EPA broadly defines civil and criminal enforcement activities that are taken with
respect to the same or related parties and deal with the same or a related course of
conduct as "parallel proceedings," although the actions do not necessarily progress
simultaneously or completely "in parallel." This definition is designed to capture
related activities effectively throughout the enforcement process. "Proceedings"
refers to enforcement activities from the investigative stage (including the use of
entry and information-gathering authorities) to the conclusion of administrative or
judicial actions. Enforcement activities include criminal sanctions, civil penalties,
court ordered injunctive relief, compliance orders issued by EPA, and recovery of
government cleanup costs.3
There are essentially two types of parallel proceedings. The most common
parallel proceedings are criminal actions where there is a need for a parallel civil
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208 Eighth International Conference on Environmental Compliance and Enforcement 2008
administrative cleanup order. This type of parallel proceeding ensures that a
cleanup action is not delayed by a criminal proceeding. The other type of parallel
proceeding is taken where the nature of the conduct is sufficiently egregious that
both civil and criminal responses are appropriate, or where complete relief cannot
be obtained in the criminal action. These parallel proceedings tend to involve
significant and complex enforcement actions, requiring careful case-by-case
management and on-going effective communication and coordination.
2 CHALLENGES OF PARALLEL PROCEEDINGS
Parallel proceedings in the United States can present a number of practical
challenges. These challenges include legal restrictions on sharing criminal
information, the preference to protect witnesses from premature exposure, and
different judicial rules for the scope of discovery and admission of evidence in
civil and criminal cases. Careful management of the proceedings is necessary to
navigate these issues.4
3 MANAGEMENT OF PARALLEL PROCEEDINGS
EPA's civil and criminal programs have historically functioned with more limited
interaction than occurs today. As the Agency's enforcement program has matured,
EPA has focused on larger, more complex cases in both the civil and criminal
programs, which has increased the need for coordination and communication
between the two programs. EPA recently issued a revised Parallel Proceeding
Policy (Policy)5 that provides a structure for active consultation and cooperation
between the civil and criminal programs on parallel proceedings, consistent with
legal requirements.
EPA has found that the success of any parallel proceeding depends on coordinated
decisions by the civil and criminal programs as to the timing and scope of
enforcement activities. For example, it is often important for the criminal program
to notify civil enforcement managers that a criminal investigation is about to
become known to the subject. It is similarly important for civil enforcement staff
to notify their criminal counterparts when there are legal or factual developments
that might affect the criminal case. Communication and coordination is critical at
both the staff and managerial levels, and continues through the resolution of all
parallel matters. The Policy requires EPA's headquarters and regional enforcement
offices to establish systems for communication and coordinated decision-making.
Because the United States Department of Justice (DOJ) represents EPA in federal
court, EPA also maintains open communication with DOJ civil and criminal
enforcement staffs.
Emphasis is placed on ensuring that the activities of each program complement,
but do not interfere with the other program, and that neither program directs
the activities of the other. Emphasis is also placed on gathering information
in such a way that it can be shared to the maximum extent appropriate. In all
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Marshall & Smith 209
parallel proceedings, EPA's civil and criminal staff meet to weigh the options and
determine how to achieve the most complete and appropriate relief.
There are a number of ways that EPA can approach a potential complex parallel
proceeding, including:
• Deciding that either the civil or criminal action will be sufficient to achieve the
Agency's objectives;6
• Deferring the civil proceeding until the criminal case is resolved;
• "Carving-out" civil or criminal claims where allegations in either proceeding
do not overlap or where the defendants are not the same; or
• Proceeding with the civil and criminal matters simultaneously.
Where a determination has been made that parallel proceedings are appropriate,
decisions must be made about the timing of enforcement activities. A few of the
factors that favor bringing the criminal proceeding to conclusion first include:
• The significant deterrent and punitive effects of criminal sanctions;
• The possibility that imposition of civil penalties might undermine a prosecution
or the severity of a subsequent criminal sentence;
• Preventing a defendant from exploiting the broader civil discovery rules to
obtain evidence for a criminal proceeding; and
• The Speedy Trial Act7 requirement that criminal trials be held within specified
time frames after indictment.
Factors supporting the initiation or continuation of the civil judicial or
administrative action prior to conclusion of the criminal action include:
• A threat to human health or the environment that should be expeditiously
addressed through injunctive relief from the court or an order by EPA;
• A threat of dissipation of a defendant's assets;
• An immediate statute of limitations or bankruptcy deadline;
• Where only a marginal relationship exists between the civil and criminal
actions; and
• Where the civil case is in an advanced stage of negotiation or litigation when
the potential criminal liability is discovered.
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210 Eighth International Conference on Environmental Compliance and Enforcement 2008
4 MEMORIALIZATION
Once the civil and criminal programs decide to pursue parallel proceedings, staff
memorialize the decision in a case-specific Parallel Proceedings Memorandum.
The Memorandum contains a summary of the decision(s) regarding the timing
and scope of the parallel proceedings and provides essential information, such as
a description of the key factual allegations and potential statutory and regulatory
violations. Limiting the scope of the information contained in the Memorandum
serves to minimize damage in the unlikely event that the Memorandum is
disclosed to the defendant, either inadvertently or by court order. As an additional
precaution, the Memorandum is marked as privileged and maintained as an
enforcement confidential record.
The Memorandum is signed by the appropriate managers in both the civil and
criminal programs. As the parallel proceedings are developed and moved toward
resolution, it may be necessary to supplement the decisions recorded in the
Memorandum; any new or modified changes are documented and the revised
Memorandum is distributed to the civil and criminal case teams.
5 KEY LEGAL ISSUES
Parallel proceedings in the United States present specific legal issues regarding
investigations, discovery and litigation. The most significant issues relate
to procedural protections that are afforded by United States law to criminal
defendants. Several key legal and policy issues are restated in the Policy for
emphasis.
One important legal issue is the requirement that grand jury materials remain
confidential. Grand juries are convened in many criminal matters to determine
whether there is sufficient evidence to charge an alleged violator with a crime.
Grand jury proceedings are secret, and information cannot be disclosed to
unauthorized persons. Civil attorneys are rarely authorized to receive grand
jury information and the Policy discusses these limitations. Information that is
obtained by the criminal enforcement personnel outside of the grand jury process
may generally be shared with civil enforcement staff. It should be noted that these
confidentiality issues do not arise in civil investigations because any information
developed by the civil program for a legitimate civil purpose, including
information obtained in discovery, may be shared with criminal enforcement
personnel.8
The Policy includes a reminder that Agency staff cannot intentionally mislead
any person as to the possible use of any responsive information in the criminal
proceeding in such a way as to violate the Fifth Amendment's guarantee of due
process and its privilege against self-incrimination. The Policy includes reminders
that a threat of criminal prosecution cannot be used to obtain a civil settlement,
and a threat of civil enforcement cannot be used to resolve a criminal matter. It also
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Marshall & Smith 211
notes that combined civil penalties and criminal sanctions must not be so grossly
disproportionate to the underlying violations that it constitutes a violation of the
United States Eighth Amendment's prohibition against excessive fines.9
6 SIMULTANEOUS OR COORDINATED RESOLUTIONS
Although civil and criminal staff communicate and coordinate their activities,
the civil and criminal cases are separately conducted and separately resolved.
However, in some instances a defendant or defendants may seek to have
a simultaneous resolution of the civil and criminal claims. A "coordinated
resolution" under the Policy is the simultaneous resolution of both civil and
criminal liability. A coordinated resolution is not appropriate unless it can be
accomplished in a manner that does not unduly delay or interfere with the
criminal proceeding, and does not limit EPA's ability to obtain appropriate judicial
injunctive relief to address the environmental problem.
Coordinated resolutions require separate settlement documents that are
negotiated independently. Separate settlement documents are necessary to avoid
the appearance of impropriety. The appearance of impropriety can arise because,
as stated above, a threat of a criminal prosecution cannot be used to obtain a
civil settlement nor can release of civil liability be used to influence a criminal
resolution. EPA and DOJ policies therefore prohibit providing a release of criminal
liability in a civil settlement, or waiving or resolving civil liability in a criminal
plea agreement.
7 CONCLUSION
EPA is refining its approach to parallel proceedings to ensure that it can achieve
the most effective resolution when faced with serious violations of environmental
laws. Parallel proceedings allow coordinated solutions that provide significant
deterrence and ensure that violators come into full compliance with the law.
8 REFERENCES
1 EPA may also seek remediation of past harm in appropriate circumstances.
In addition, there are some environmental statutes that are designed to seek
remediation as the primary objective, e.g., the Comprehensive Environmental,
Response, Compensation, and Liability Act (Superfund), 42 U.S.C. § 9601, et seq.
and the Oil Pollution Act, 33 U.S.C. § 2701, et seq. , which provide for cleanup pf
sites contaminated with hazardous substances.
2 Most environmental statutes include full criminal enforcement authority.
Exceptions to this general rule include the Toxic Substances Control Act, 15 U.S.C.
§ 2601, et seq., and the Federal Insecticide, Fungicide, and Rodenticide Act, 7
U.S.C. § 136, et seq., both of which include criminal misdemeanor, but no felony,
sanctions. The National Environmental Policy Act, 42 U.S.C. § 4321, et seq., and
the mobile source (vehicles and other nonstationary sources) provisions of the
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212 Eighth International Conference on Environmental Compliance and Enforcement 2008
Clean Air Act, 42 U.S.C. §§ 7521 - 7590, do not include any criminal provisions.
Conversely, criminal prosecutors may include claims in environmental cases
that are not available to the civil enforcement program, such as claims for false
statements under the authority of the federal criminal code, 18 U.S.C. § 1001.
3 EPA brings judicial actions to recover costs that the Agency has expended in a
hazardous waste or oil spill cleanup.
4 Parallel civil and criminal proceedings do not give rise to double jeopardy
prohibitions against trying a defendant twice for the same crime. The Fifth
Amendment to the United States Constitution only protects against the imposition
of multiple criminal punishments of the same person for the same offense. Hudson
v. United States, 522 U.S. 93 (1997).
5 See, www.epa.gov/compliance/resources/policies/enforcement/index.html
6 It is EPA's general practice to go forward with only a criminal proceeding if it
will provide complete relief. If the criminal matter has the potential to provide
complete relief, but its outcome is uncertain, both the civil and criminal matters
continue.
718 U.S.C. § 3161, et seq.
8 United States v. Kordel, 397 U.S. 1 (1970).
9 See, Hudson, 522 U.S. at 103.
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Nwachukwu 213
ENVIRONMENTAL SANITATION ENFORCEMENT AND COMPLIANCE
BEST MANAGEMENT STRATEGIES FOR NIGERIA
NWACHUKWU, MICHAEL A.1
1 Department of Earth & Environmental Studies, School of Science & Mathematics,
Montclair State University New Jersey, U.S.A
SUMMARY
A great problem in Nigeria is determining what sanitation programmes to
implement and designating the best enforcement strategies to adopt. The issue
of environmental sanitation compliance and enforcement cannot be properly
discussed because currently no serious sanitation programmes exist in Nigeria.
This paper recommends a combination of direct and indirect enforcement, with a
number of sanitation strategies. The strategies are concerned with the management
of human and cow excrement, including solid waste, sewage and drainage
systems. These strategies must be designed to reduce environmental related
diseases, poverty, and mortality.
1 INTRODUCTION
Nigeria and many developing countries, have no central sewage collection and
disposal system. Every home in the urban and semi-urban areas utilizes block
lined private septic and soak away pits for excreta and sewage disposal. The
rural areas use unlined toilet pits with no provision for waste water. Even in the
urban and semi-urban areas that use septic and soak-away pits or water systems,
and there is often a lack of water to run the system. Yet in the rural settings,
approximately half of the population does not have even the pit toilet.
The greatest dangers lie in the evacuation and disposal of the excreta and sewage
from the septic and soak-away pits when they fill up. Private contractors can be
paid to do this, along with the police department. Motorized trucks equipped
with suction pump are used to suck the wastes into the tank. Other individuals
who work in groups as contractors do the evacuation manually, using buckets and
hand pushed trucks. The work is done during the day, when the home is free of
residents. Additionally, despite serious air pollution and health concerns, the only
sanitizer used is kerosene.
After the evacuation, how the excreta-sewage is disposed of is a matter for great
concern. Typically, the contractors dispose the waste at any site convenient to
them, including ditches, ravens, unreclaimed borrow pits, and in isolated bush or
forest areas. As a result, the disposed wastes are washed back to nearby streams by
the next rain. In Nigeria, roughly 40 percent of the population does not have access
to any form of toilet. Their toilet is the bush or forest areas. There is increasing
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214 Eighth International Conference on Environmental Compliance and Enforcement 2008
surface and groundwater pollution, especially in areas where groundwater table is
close to the surface or coincide with weathering depth.
Another major threat to safe water is the indiscriminate dropping of excreta
by cattle, following uncontrolled grazing. This threat is heightened by the
tremendous increase in migration and grazing of cattle from the northern side of
Nigeria to the south. Whereas the north has vast savannah grasslands away from
residential areas for good grazing, the south is disadvantaged with limited rain
forest lands that adjoin residential areas, as well as greater streams and drainage
density. As a result, persistent and frequent epidemics of environmental related
diseases occur, including malaria, typhoid fever, diarrhea, hepatitis, and cholera.
Additionally, high mortality, increasing poverty, public health disorder, and lack
of environmental freedom results from poor excreta and sewage disposal and
management.
2 ADDITIONAL SANITATION RESEARCH
According to Snel and Smet (2006), "It is now becoming evident that the most
effective intervention against water and sanitation related diseases is safe excreta
disposal." P.K. Jha (2007), in his work on sustainable technologies for waste
management, stated: "Human excreta is the cause of many enteric diseases such
as cholera, dysentery, typhoid, paratyphoid, infectious hepatitis, hookworm,
diarrhea, etc." "In rural areas, 80 percent of diseases are borne of human excreta,
and safe disposal of human waste is most important to improve community health
and quality of life." Similarly, Bastable (2000), informed that diseases transmitted
through unsafe excreta disposal accounts for 50 percent of death. He also cited
Esrey (1981 &1991), to state that safe excreta disposal can account for 36 percent
reduction of childhood diarrhea.
Njemanze et al (1999) attributed the high rate of diarrhea in the Imo State of
Nigeria to lack of potable water at different communities, indicating that a total
of 11,537 cases of diarrhea have been reported in 1999, whereas more than half of
this number may not have been reported. The number of deaths due to this and
the financial drain on individual households and the state economy are yet to be
determined. From Match Strength Abstract (2004), out of 65 patients that reported
febrile condition in a salmonella typhus screen in some parts of Nigeria, 20 were
positive whereas a total of 36 had malaria or both. They found that the patients
were in a ratio of 10/14 (female/male), with a mean age of 33 years, and were
found to have been drinking both tap and "pure water" (p.179-81). UNDP report
(2004) implies that about 40 percent of Nigerian population does not have access
to potable drinking water and 41 percent also have no access to good sanitation.
3 SANITATION ENFORCEMENT AND COMPLIANCE
Poor environmental sanitation in Nigeria is due to bad leadership. The military
regimes and the past administrations have failed to formulate adequate
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Nwachukwu 215
environmental laws and regulations. There have been few past actions related to
environmental enforcement and compliance in Nigeria. In the past, governments
appear to have concentrated on problems of the Niger Delta oil and gas
pollution crisis. The hundreds of people dying every day due to neglect of waste
management and lack of sanitation are ignored.
The only sanitation strategy in Nigeria during the last thirty years that can be
recalled was implemented by the short lived Buhari and Idiagbom military
regime (1983-1985), when the monthly national environmental sanitation exercise
was started with war against indiscipline. During this period, sanitation was
improved across the nation. Urinating outside, excreting in the bush or by the
road side, and littering were punishable offences. People complied for fear
of being arrested, prosecuted, or fined. War against indiscipline and national
environmental sanitation exercise were enforced by a combined team of the
war against indiscipline brigade, the police, and participation of the public. The
program became very popular, and war against indiscipline was a household
name. However, this program was not sustained by subsequent administration.
The public viewed the program as a type of military order that had no public
mandate. Today, only very few states still conduct the monthly sanitation exercise
with reduced popularity, enforcement, and public participation.
It is important to recall also that Nigeria has abundant manpower for the sanitary
regulations that need to be enforced. There were sanitary inspectors who in the
1970s to early 1980s were very effective in inspecting sanitary facilities and
conditions from urban to rural communities. Today, sanitary inspection is almost
forgotten. Further, trained inspectors are less motivated because the government
currently pays little or no attention in this area of service. The result is poor
sanitation, use of a toilet facility by unlimited number of people, presence of
overgrown trees in living areas, and ecosystem destruction.
4 SANITATION STRATEGIES
The reality is that poor sanitation and inadequate excreta management in
Nigeria is due to failure on the part of government to instill in the public a
better environmental culture, which would promote public participation in
environmental waste management. This is further enhanced by the lack of
knowledge on the part of Nigeria's leaders and the high level of illiteracy on the
part of the masses. As a result, intensive environmental education must occur in
the country, including primary through secondary schools and teachers.
Public awareness, enlightenment, and environmental education of all stakeholders
must become a priority. Knowledge should be shared with the local community
at their domain, accomplished by visiting market squares, churches, schools,
and in the local government headquarters to educate them on sanitation and its
benefits. There is need for a social change from poor excreta-sewage disposal and
management culture, to a culture where human and cattle excreta is converted to a
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216 Eighth International Conference on Environmental Compliance and Enforcement 2008
safe to use organic manure, where sewage is treated prior to disposal, and sanitary
landfill is used for solid waste disposal (Nwachukwu, 2007a). Additionally,
sanitary landfill sites must be properly investigated, and identified with natural
lining, to reduce or eliminate the high cost of geosynthetic liners, and make
sanitary landfill affordable to poorer communities (Nwachukwu, 2007b). Landfills
must also have odor control, leachate collection and treatment system, or operators
be prosecuted. All open gutter drainage should be covered by 2010; federal
government must direct states, with special grants to support, as some individuals
find the open gutter as the nearest place for excreta disposal, and urinating.
The promotion of adequate environmental compliance and enforcement also
include monthly environmental sanitation program is to be reinforced by the
federal government. There should be adequate protection of national, state, and
local waters from surface runoff, particularly at such locations where the waters
adjoin residential areas. All gas stations, churches, stores, schools, streets, motor
parks, restaurants and hotels, corporate offices, health centers, mechanic villages,
business centers must operate a well maintained public toilet facility for free use
by the public. Government should build and maintain two standard toilet facilities
on every business street in each Nigerian city; longer streets may be required to
have more than two toilets.
5 ENFORCEMENT STRATEGIES
Nigeria has recently recruited a large population of youths into the civil defense
corps in all the states. Government should provide adequate training to these
fellows and commission them to environmental duties, rather than using them as
errand boys and girls to self aggrandizing politicians, government functionaries,
and private individuals.
Local governments could implement indirect strategies to stimulate environmental
enforcement and compliance, such as awarding free medical service to members of
every household present on the five cleanest streets in a city on yearly bases. This
will provide the public incentive to establish proper sanitation.
The poor environmental habits of many Nigerians are embedded in their
lifestyles, such as littering the streets with cans and plastic bags. Programs should
be implemented to reward cash for waste cans and plastic bags supplied by
individuals based on the weigh, providing incentive not to litter. This is another
example of an indirect enforcement strategy.
Additional enforcement strategies that should be developed include the federal
government penalizing states for noncompliance with environmental sanitation
standards. Example, five percent of the state's allocation may be withdrawn
and paid into a federal environmental health emergency fund. Moreover, states
can also fine local governments for not complying with national standards or
sanitation programmes. Additionally, there must be law prohibiting urinating
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Nwachukwu 217
and excreting outside. Offenders must be prosecuted and fined accordingly.
Three regional environmental appeal courts should be established in each of the
following three regions: East, West, and the North. A federal environmental high
court of appeals should be located in Abuja.
6 CONCLUSION
Environmental sanitation strategies, enforcement strategies, and compliance are
the most important, but neglected environmental issues in Nigeria; as a result,
emergency response is now required. Solutions to alleviate the sanitation crises
are easy and available, and are important in improving human and environmental
health within this country.
REFERENCES
Bastable, A. (2000), Guidelines for excreta disposal in emergencies, Oxfam
technical manual
Esrey (1986,1991), As in Bastalda, A. (2000).
Match Strength 14:214 (2004), British Journal of Biomedical Science. 61(4), 179-81
Njemanze, P.C, Anozie, J.O, Ihenacho, J.O, Russel, M.J & Uwaeziozi, A. B (1999),
Application of risk analysis and geographic information system technologies to
the prevention of diarrhea diseases in Nigeria. Am. J. of Trop. Med. Hygiene
61(3).
Nwachukwu, M.A (2007a), Environmental geology/geophysics field techniques
in the selection of a landfill site, making sanitary landfill affordable to poorer
communities. A research project presented to the Department of Civil and
Environmental Engineering, Villanova University, Pennsylvania U.S.A.
Pending: Nwachukwu, M. A (2007b); Environmental sanitation best management
practice for Imo State Nigeria, phase 1: Solid waste management by sanitary
landfill option, technical, and economic imperatives. A paper presented
to the government and people of Imo State Nigeria, at the 'Environmental
stakeholders forum' Owerri 26th -27th November, 2007.
P.K. Jha (2007), Sustainable technologies for waste management. Retrieved from:
http//:www.ias.unu.edu/proceedings/icibs/ecosan/jha-dl
Snel, M. A & Smet, J (eds), 2006: The value of environmental Sanitation case
studies (occasional paper series; No. 42), IRC Int. water and sanitation center,
The Netherlands.
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Nijssen, Mumladze, Ruessink & Huizinga 219
TRAINING PROGRAMME BETWEEN GEORGIA AND THE NETHERLANDS
ON WASTE MANAGEMENT AND ENFORCEMENT
NIJSSEN, CHARLES1, MUMLADZE, KATEVAN2, RUESSINK, HENK3
and HUIZINGA, KEES4
1 Senior consultant at ARCADIS, P.O. Box 264, 6800 AG Arnhem, The Netherlands,
c.e.g.e.nijssen@arcadis.nl.
2 Senior inspector, Inspection for Environmental Protection, Analytical Service,
Gulua str. #6, Tbilisi 0114, Georgia, kmumladze@yahoo.co.uk.
3 International management consultant, VROM-Inspectorate, Rijnstraat 8, P.O. Box
16191, 2500 BD Den Haag, henk.ruessink@minvrom.nl.
4 Senior inspector, VROM Inspectorate Region North, P.O. Box 30020, 9700 RM
Groningen, The Netherlands, kees.huizinga@minvrom.nl.
SUMMARY
In 2006, the Environmental Inspectorates of Georgia and the Netherlands took
the initiative to develop and execute a training programme focusing on waste
management and enforcement, with the aim to exchange theoretical and practical
knowledge and experiences.
The training concentrated on three main issues: (1) environmental management
and general principles; (2) waste management; and (3) enforcement of
environmental regulations. These issues were highlighted in the development of
the training, which took place around two "blocks." Block A took place in Georgia
and focused on the more theoretical aspects of the three topics; discussions on how
to implement these issues in its daily practice also occurred. Block B took place in
the Netherlands, during which theoretical issues were illustrated by site visits to
(sanitary) landfills and incineration plants.
An essential focus of the whole training was the implementation of the "train the
trainer" principle. It was the explicit intention to train Georgian inspectors on the
main issues, so that they would be able to train other environmental inspectors
within their inspectorate.
This article describes the background of the training programme, including
establishment of the programme and experiences gained from both inspectorates.
The implementation of the "train the trainer" principle is also discussed.
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220 Eighth International Conference on Environmental Compliance and Enforcement 2008
1 INTRODUCTION
Waste is a serious environmental issue in Georgia. The historical lack of policies
focusing waste regulation coupled with steady economic growth contributes to the
problem. Additionally, the physical infrastructure is not adequate to handle and
dispose of waste in an environmental sound manner. Consequently, risks related
to the impact on human health, safety, and the environment are increasing.
There are numerous examples demonstrating the mismanagement of hazardous
waste in Georgia. For instance, separation of household waste does not take place.
Waste burning mostly takes place at urban landfills, which greatly contributing to
air pollution. Further, data on hazardous waste is very limited and controversial.
There is no proper capacity in the country for treatment and disposal of
(hazardous) waste, even though technical knowledge is locally available. Also,
abandoned pesticide containers are not properly rinsed or disposed of, resulting
in the potential leaching of chemicals into the soil and ground water.
The obstacles to improving waste management in Georgia are vast, including
the seriousness of waste problems and the current political turmoil. However,
the importance of such development can hardly be underestimated.
Firstly, environmental protection and enforcement may well be a key factor in
the development of Georgia, particularly concerning opportunities for ecological
tourism. Secondly, the development of Georgia as a transit country (pipeline,
shipping, road traffic) should carefully evaluate adverse effects of improper
waste management; neglecting these issues will likely be counterproductive
to the economic development of the country. As a result, cooperation between
the Netherlands (a transit country of excellence) and Georgia on waste and
enforcement issues will likely be fruitful.
There are a number of environmental laws and regulations in force in Georgia.
However, adequate environmental policies are lacking in a number of areas.
Among them, waste management is one of the most neglected areas. The recent
implementation of the general waste management law was of great importance.
This law sets out a number of important waste management aspects and
principles, such as prevention, "the polluter pays principle," monitoring, waste
classifications, and legal tasks and responsibilities of various administrations.
It also sets an important "baseline" for enforcement. However, enforcement of
environmental legislation has been in the juvenile stage for many years, but is
slowly gaining importance.
2 ABOUT THE INITIATIVE
The Environmental Inspectorate of Georgia has appointed waste management
and waste enforcement as a subject of high priority. Amongst other issues, the
institutional design of the Inspectorate and the training of personnel is one of
the areas of concern. Within the framework of the cooperation between the
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Nijssen, Mumladze, Ruessink & Huizinga
221
Georgian Inspectorate and her sister organisation in the Netherlands (the VROM-
Inspectorate), a training programme on waste management and enforcement
was organized which fulfilled the needs of the Georgian Inspectorate and were
developed in line with the mentioned areas of priority.
3 DESIGN OF THE TRAINING
The training programme was mainly executed in four phases. The general design
of the training is illustrated in Figure 1 below.
Figure 1: General set up of the training programme
STEP 1: DEVELOPING THE TRAINING PROGRAMME
STEP 2:TRAINING IN GEORGIA (BLOCK A)
DAY 2
Basic knowledge
on waste; prevention,
recycling and
sand
DAYS
Compliance and
enforcement
Inspections: roles.
tasks of an inspector
International examples
Site visit
Evaluation, conclusions,
recommendations
process report
STEP 3: TRAINING IN THE NETHERLANDS (BLOCK B)
DAY 2 DAY 3
DAY1
Site visit sanitary landfills
(household and
industrial waste)
Site visits to waste
incineration plants
Evaluation, conclusions,
recommendations
process report
STEP 4: AFTERCARE
• Implementation 'train the trai
•Follow up actions
•Etc.
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222 Eighth International Conference on Environmental Compliance and Enforcement 2008
During the first phase, specification of training needs and development of a
training manual took place. Inspectors who would join the training were selected.
Important criteria for this selection - also with the "train the trainer" principle in
mind - included general basic knowledge about environmental principles, strong
knowledge about the (internal) organization of the Inspectorate, insight into
"target" groups of regulation and enforcement, and profound skills in enforcement
of environmental regulations.
In the second phase, a four day training session occurred in Georgia (block A)
focusing primarily on theoretical aspects of environmental principles in general,
waste management issues, and international enforcement principles.
Within the third phase, the Georgian inspectors-trainees came to the Netherlands
and visited with their trainers/hosts a number of selected (sanitary and closed)
industrial and municipal landfills and incinerators. During this phase theories
of environmental protection and approaches to control and enforcement were
illustrated in practice. Open discussions with the management of the facilities
were also included.
During the final phase all experiences and findings were laid down in a process
report with general findings, conclusions, and recommendations. The report was
finally submitted to both Inspector Generals of the Environmental Inspectorates.
4 EXPERIENCES FROM BOTH INSPECTORATES
Apart from their interest in general policy approaches to waste management
and enforcement, the Georgian trainees were particularly interested in the
practical aspects of enforcement operations. Issues such as the communication
with industry/enterprises, the preparation and actual execution of enforcement
activities, the reporting thereof and the follow-up turned out to be of special
importance. Also the (horizontal and vertical) coordination with other authorities
received considerable interest. Although a one-to-one transformation from the
Dutch to the Georgian situation is not realistic, the trainees nevertheless indicated
that they absorbed basic ideas for future developments in their country. At the
same time, it was realized that the general framework for enforcement in Georgia
needs further strengthening.
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Nijssen, Mumladze, Ruessink & Huizinga
223
Photo 1: Inspectors and trainers
The Georgian trainees emphasized the importance of having international contacts
with countries that already have a well developed legal system and infrastructure
in relation to waste management and control/inspection. Although it is realized
that additional steps must be taken, the trainees clearly expect benefits from the
training programme. One of the challenges for the trainees will be to "translate"
what they learned from their Georgian colleagues in very practical, operational,
and hands-on terms. The materials (brochures, manuals, checklists, etc) should
probably be tailored towards specific issues or objects of inspection, like
transboundary shipments of waste, land filling, polluting industrial sectors, etc.
The Dutch trainers were impressed by the eagerness of the Georgian trainees to
learn more about waste regulation, waste management, and enforcement, along
with the trainee's motivation to extrapolate from this to useful policies for and
approach to enforcement in the Georgian context. Also, the trainers experienced
that an intensive process of preparation and interaction with their foreign
colleagues was very useful and contributed to the success of the training. An open
attitude from both sides is one of the key factors.
5 CRITICAL FACTORS OF SUCCESS
A number of issues can be identified as critical factors of success for the training
programme and it's follow-up.
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224 Eighth International Conference on Environmental Compliance and Enforcement 2008
First, the selection of inspectors for the training programme is essential. Basic
knowledge on environmental, waste, and enforcement issues is an advantage.
Moreover, inspectors must be capable of implementing gained knowledge in
practice and possess the ability to advise and train other inspectors.
Second, input of local knowledge during the development and execution of the
course was essential, not only from the point of view of collecting background
information, but also for language, linguistic, and logistic matters. To facilitate
this, a local consultant was involved in the project and translators were available
during the whole course.
Furthermore, quality of regulations is clearly a critical factor for effective
enforcement. Limited human and financial resources and "competition" from
economic objectives makes it rather difficult to enforce environmental regulations
adequately. Nevertheless, with the new act on waste management a further
important step has been taken.
For the short term, it is essential that the trainees succeed in training their
colleagues. This further dissemination of knowledge requires a very practical
approach, tailored towards the specific operational requirements and needs of
inspectors in the day-to-day reality of inspection and enforcement in Georgia. It is
recommended that international assistance and cooperation programs also invest
in these suggested practical steps as they forward.
6 CONCLUSION
The entire training focused on implementing the "train the trainer" principle,
allowing the knowledge gained form this training to be utilized to train additional
Georgian environmental inspectors within the Inspectorate. The initiative of the
Environmental Inspectorates of Georgia and the Netherlands to develop and
execute a training programme focusing on waste management and enforcement
will likely result in positive impacts improving the environment and economy of
Georgia.
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Pink 225
BUILDING REGULATORY CAPACITY IN ENVIRONMENTAL AGENCIES:
THROUGH TAILORED TRAINING
PINK, GRANT1
1 Acting Assistant Secretary, Compliance and Enforcement Branch, Australian
Government Department of the Environment, Water, Heritage and the Arts,
Level 4, John Gorton Building, Parkes, Canberra, Australian Capital Territory
26001
SUMMARY
The Australian Government's Department of the Environment, Water, Heritage
and the Arts is an emerging regulator. Upon commencement of its cornerstone
legislation, the Environment Protection and Biodiversity Conservation Act 1999 (Cth),
Department of the Environment, Water, Heritage and the Arts inherited significant
regulatory powers.2 Concurrent to this was the groundswell from other local,
State and Federal environmental regulators, all of which had identified a need
for greater coordination and interoperability between co-regulators and partner
agencies.
Arising out of this amalgam is a career path in its own right, which now includes
a professional association of like-minded entities together with a hierarchy of
nationally accredited vocational qualifications3 that have been customized for the
environmental compliance professional4. These vocational qualifications articulate
fully into a similarly customised post graduate qualification.
1 INTRODUCTION
1.1 The Department
Department of the Environment, Water, Heritage and the Arts is the Australian
Government's (Federal level) premier environmental regulator. It has some 2500
staff, and while most of these are based in the nation's capital, Canberra, some are
geographically dispersed in locations ranging from the Northern Territory through
to Tasmania and even as far a field as Antarctica.
The Department administers some 17 pieces of environmental legislation. These
relate to both terrestrial and marine environments, with the marine environment
stretching to the 200 nautical mile Exclusive Economic Zone. Additionally
Department of the Environment, Water, Heritage and the Arts administers and
is responsible for numerous International Treaties and Conventions which the
Australian Government is a signatory to.
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226 Eighth International Conference on Environmental Compliance and Enforcement 2008
The Department's cornerstone piece of legislation is the Environment Protection and
Biodiversity Conservation Act 1999 (Cth). Its focus relates to environmental issues
which are of national environmental significance. This legislation is complimentary
to and does not override Local, State, or Territory government environmental
laws.5
1.2 The Network
The Australian Environmental Law Enforcement and Regulators Network is a
network of environmental regulatory agencies. Collectively these agencies:
"...are responsible for the management of natural resources or the protection of
the environment. It aims to build relationships between jurisdictions to facilitate
the sharing of information and to improve the regulatory compliance capacity of
member agencies. It also seeks to develop national standards for training and best
practice in environmental regulation."6
In November 2003 Australian Environmental Law Enforcement and Regulators
Network consisted of 12 foundation member agencies. In just over four years
this has grown to 35 member agencies. This, in combination with Department
of the Environment, Water, Heritage and the Arts' expanding regulatory role, is
evidence of the groundswell of demand for the building of capacity, in respect
to environmental regulation in Australia. In relation to capacity, that is capacity
which can be; built quickly, is robust and most importantly has utility across
jurisdictions, agencies, commodities and sectors.
2 CHALLENGES FACING A NEW REGULATOR
In building capacity, any new regulator is typically required to address issues such
as staff training, compliance culture, corporate knowledge, business continuity,
and establishing credibility with co-regulators and the regulated community.
In addition to these generic challenges, with it, the environmental regulatory
regime brings unique capacity building issues. In Department of the Environment,
Water, Heritage and the Arts' experience this has included but is not limited to:
• An ever increasing environmental expectation by society.7
• A political imperative to address environmental concerns.8
The requirement for a blend of traditional mainstream law enforcement
capabilities coupled with significant scientific and natural resource expertise.9
, 9
A requirement for internal cultural realignment from one with a policy,
program and public administration focus, to one which is akin to more of an
adversarial and confrontational enforcement role. The latter following the more
traditional 'command and control' model of regulation.10
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Pink 227
• The newness of our cornerstone legislation. Arising from this aspect is the fact
that most compliance and enforcement activities addressed are firsts in their
own right. Further there have been few matters legally tested; therefore as yet
there are only a few persuasive and even less binding legal precedents which
Department of the Environment, Water, Heritage and the Arts can use as a
foundation.
• A steep corporate learning curve, exacerbated by the fact that it is a significant
deviation from what was core business. Compliance and enforcement, has gone
from 'no business, to new business, to core businesses11 in as little as four years.
• There are substantial risks associated for the Department and staff when their
operating environment has been altered so dramatically.
• A lack of documented policies, protocols and standard operating procedures.
• No off the shelf training package customised for environmental regulation.
• As a burgeoning industry, the demand for staff with expertise, has meant that
the Department must be a competitive employer (referred to as an 'employer
of choice' by some) having to address issues of staff retention and facilitating
professional and career development.
• Around this time there were concurrent pressures within the federal level for
Australian Government regulatory agencies to tighten up issues surrounding
case management and managing/supervising12 authorised officers13 who have
access to coercive powers,14 including the training of those staff, together with
issues surrounding developing of an appropriate compliance culture.15
3 TRAINING AS A KEY AREA OF CAPACITY BUILDING: THE
AUSTRALIAN EXPERIENCE
3.1 The Need
Once Department of the Environment, Water, Heritage and the Arts' increased
role as a regulator became apparent, training was quickly identified as a major
enabling factor in building of regulatory capacity. In the period between 2005 and
2007, the organisational focus with respect to training focused on the development
and implementation of a suitable training regime for its authorised officers.
It quickly became apparent, however, that training was more than merely the
transferral of information to individuals to arm them with the knowledge and
skills they need to perform their regulatory functions. In the situation faced
by Department of the Environment, Water, Heritage and the Arts - that of an
organisation required to build capacity quickly in an esoteric discipline - the issue
of training brought with it risks and opportunities beyond the norm.
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228 Eighth International Conference on Environmental Compliance and Enforcement 2008
The Department of the Environment, Water, Heritage and the Arts experience
is that the success or otherwise of training for authorised officers can influence
organisational success in numerous dimensions:
• Individual Competence, which is influenced by the rigour and utility of the
training.
• Group and Executive Competence arising from the development of corporate
knowledge, which is influenced by the scale, utility and consistency of the
training.
• Organisational Competence associated with the development of a suitable
culture,16 which is influenced by the quality, immediate relevance and delivery
style of the training, and, in particular, the attitudes inculcated by the training
staff.
• Long-Term Capacity Building which is influenced by the development of a
supported career path for compliance and enforcement professionals which,
in turn, affects attraction and retention in a competitive and increasingly
specialised labour market.17
3.2 Addressing the Need
From the outset, any training developed had to conform with the national training
framework18 so as to constitute nationally recognised (and accredited) vocational
training. In essence, this meant it had to conform to a hierarchy of training levels
that start with the foundation or entry level (Certificate) and migrate through to
supervisor (Diploma) and executive (Advanced Diploma) levels.19
Within the context of the framework described above, whilst the initial preference
of the Australian Environmental Law Enforcement and Regulators Network
National Committee was to adopt the Diploma-level as its baseline, after
consideration, given the needs of the entire network, it was felt that the Certificate-
level qualification was more suitable. The common capacity-building problems
faced by a number of the member agencies suggested that there was merit
adopting a 'baby steps' or 'building block' approach to training. This approach
was believed to compliment the change management initiatives directed towards
building an appropriate culture of compliance and enforcement.
When it came to actually implementing the Certificate-level training, it became
apparent that there was a dearth of suitable off-the-shelf training packages. The
long-standing default Government certificate course that related to regulation
was based on fraud control. This clearly offered little of relevance to non-fraud
investigations, which had recently led to the development of a more generic
(non-fraud) Government investigator qualification. While this was a significance
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advance, it still failed to meet the needs of Department of the Environment, Water,
Heritage and the Arts and other Australian Environmental Law Enforcement and
Regulators Network agencies involved in environmental regulation. A uniquely
tailored Certificate-level training course was required.
3.3 Managing the Tensions
Department of the Environment, Water, Heritage and the Arts, in consultation with
Australian Environmental Law Enforcement and Regulators Network, primarily
through the training sub-committee, coalesced cross-agency opinion into unified
support for the Certificate course. Having done so, the training sub-committee
took a "pick and mix" approach to selecting core and elective modules in sufficient
quantity and proportion to satisfy the requirement for National accreditation. The
committee then provided detailed and specific information to inform the course
content.20
Having developed the Certificate, Department of the Environment, Water,
Heritage and the Arts trialled the course internally and following refinement,
the product (the training course itself) was released to Australian Environmental
Law Enforcement and Regulators Network member agencies, who undertook
further local refinement21 based on factors such as agency role, jurisdiction,
commodity, industry and sector. Agencies operated on this basis for several years.
During this period (2006-07), whilst agencies ran their own courses, external
participation rates from other member agencies continued to increase. The cross
fertilisation of experiences and shared problems and the growing interoperability
of environmental regulators prompted reconsideration of course content and
structure to perhaps reflect a more harmonised version.
As part of the ongoing commitment to professional development the Diploma
course was developed in a similar fashion to the Certificate course. The first of
the Diploma courses was held in November 2007 and included participants from
all three levels of Government and from each Australian jurisdiction. The level
of participation coupled with course feedback reinforced the need to refine and
harmonise the Certificate level course.
This assisted the environmental regulatory community to map out a career path
for the environmental compliance and enforcement professional. This was made
possible by balancing and working through the naturally occurring tensions
between the need for the training to be customised for the member agency, and
the need for it to conform to the broader requirements of an external accrediting
body. This situation is distinguishable from that encountered in traditional post-
graduate professional qualifications which are university-based.
The advances in professionalising the role of the environmental compliance
and enforcement practitioner have been seized upon by at least one Australian
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230 Eighth International Conference on Environmental Compliance and Enforcement 2008
university. This university has recently developed the first post-graduate
(university) qualification for environmental compliance and enforcement, which
will be available in the latter part of 2008.
The benefit of this is twofold, in that, in addition to professionalising the
workforce, it enhances staff personal development by allowing them to articulate
purely vocational qualifications into post-graduate qualifications. This further
reinforces the credibility and standing of the individual and the agency within the
regulated community.
4 CONCLUSIONS
New regulators face a number of challenges when seeking to build capacity. It has
been the Australian experience that environmental regulators face additional and
unique challenges. These include; the ever-increasing profile of environmental
issues, the speed at which capacity must be built, the esoteric nature of
environmental regulation, and the relatively small pool of existing specialist
knowledge from which to draw.
The training of environmental regulators - and particularly environmental law
enforcers (authorised officers) has been found to be a key factor in organisational
success. Indeed, it forms part of the critical path to becoming a competent, capable
and credible regulator.
By failing to address training, or by using training that is not tailored for the target
audience, agencies fail to inject the appropriate knowledge into the individual and
they fail to up-skill groups. As a result the organisation itself fails to grow and
restricts its ability to undertake its new business.
In addition, to the inherent risks associated with government compliance and
enforcement work, failing to implement suitable training introduces higher order
(strategic) risks including issues relating to maintenance of corporate knowledge
and the retention of an engaged and motivated workforce.
Conversely, the implementation of a training regime, which includes an
appropriate level of customisation, a hierarchy of nationally-accredited
qualifications and therefore an identifiable and marketable career path, has proven
to be a cornerstone of our success. This is highlighted by the fact that 'training has
without a doubt been the most significant factor influencing agencies to join the
Australian Environmental Law Enforcement and Regulators Network network.'22
5 REFERENCES
1 The writer acknowledges the assistance of the following in the preparation of this
paper: Mr. Neville Matthew, Assistant Secretary, Compliance and Enforcement
Branch and Mr. Michael Tonge, Senior Policy Officer, Compliance Support Unit.
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Pink 231
2 Powers similar to those addressed by Professor Macrory in his analysis of the
UK experience of sanctioning regimes; see Macrory, R.B, Regulatory Justice: Making
Sanctions Effective - Final Report, Better Regulation Executive, London, 2006.
3 Nationally accredited vocational qualifications in Australia relevant to this paper
are the Certificate IV, Diploma and Advanced Diploma. For further information
see http://www.ntis.gov.au/.
4 Covering areas such as: monitoring and audit, compliance and investigations.
5 See section 10 of the Environment Protection and Biodiversity Conservation Act 1999
(Cth) at: http://www.frli.gov.au/ComLaw/Legislation/ActCompilationl .nsf/0/9A86
45F9CEFE8EFBCA25730400834D6B?OpenDocument.
6 For further information see http://www.aelert.com.au/ homepage, welcome
section.
7 See, for example, Harman, J., The Relationship Between Good Governance and
Environmental Compliance and Enforcement, INECE 7th Conference Proceedings, p5.
8News Article: Australia Should Crack Down on Breaches of Green Laws: OECD, see
http://au.news.yahoo.com/080319/21/1678f.html.
9 As manifest in the tension between the need to ensure compliance with the
regulatory framework and the need to provide enough flexibility to deliver
outcomes. See Australian Public Service Commission (APSC) (2007) Agency Health:
Monitoring Agency Health and Improving Performance, Canberra, p22.
10 See Cunningham, N, Regulation: Enforcement and Compliance, Beyond Compliance:
Next Generation Environmental Regulation, Canberra, Australian Institute of
Criminology. Retrieved 27 March 2008 from http://www.aic.gov.au/publications/
rpp/57/08_sec4.html.
11 Sullivan, Greg. Manager, Compliance Coordination Unit, Queensland
Department of Natural Resources and Mines, personal comment, November 24
2006.
12 Adequate controls on the exercise of coercive powers is one of the 10 lessons for
public administration as detailed by Professor McMillan in his review of referred
immigration cases. See McMillan J, Lessons for Public Administration: The
Ombudsman Investigation of Referred Immigration Cases, Public Administration
Today, Issue 12: July - September 2007, p37.
13 Authorised Officers refers to persons authorised (whether as Inspectors, Wardens
or Rangers or similar) pursuant to Commonwealth legislation.
14 Coercive powers under the EPBC Act, 1999 include; arrest, monitoring and
search warrants, and the power to compel persons to answer questions and
provide information and material.
15 'Good processes and procedures need to complemented with a strong
organisational culture and value set.' See Metcalf A, 2007 Immigration Referred
Cases: Lessons for Government, Public Administration Today, Issue 12: July -
September 2007, p40.
16 'An agency's culture needs to be effectively aligned to its outcomes and business
... the culture in a regulatory and/or inspection agency, for example, will differ
from the culture of an agency with a strong policy development focus.' See
APSC (2007), Agency Health: Monitoring Agency Health and Improving Performance,
Canberra, p20.
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232 Eighth International Conference on Environmental Compliance and Enforcement 2008
17 As evidenced by the difficulty regulators have reported in recruiting sufficient
qualified staff. See for example Hampton, P (2005) Reducing Administrative Burdens:
Effective Inspection and Enforcement, HM Treasury, Norwich, UK.
18 This is known as the Australian Quality Training Framework (AQTF).
19 Under the AQTF, all of these qualifications articulate upwards to a post-graduate
(university-level) qualification.
20 This included legislation, policy, industry and sector inputs.
21 The benefits of localised refinement are consistent with and have been
incorporated into the development of other national regulators training manuals.
See for example United States, Environment Protection Agency, Conducting
Environmental Compliance Inspections, Inspectors Field Manual International
Edition. Preface section, p. ii, \ 3.
22 Sullivan, Greg. Secretariat, AELERT National Committee, personal comment,
November 26 2007.
6 BIBLIOGRAPHY
Australian Environmental Law Enforcement and Regulators Network (AELERT),
Homepage (20 March 2008) available at http://www.aelert.com.au/homepage
Australian Government, Australian Public Service Commission (2007) Agency
Health: Monitoring Agency Health and Improving Performance, Canberra.
Australian Government, Australian Public Service Commission (2007) Building
Better Governance, Canberra.
Australian Government, Australian Public Service Commission (2007) Tackling
Wicked Problems: A Public Policy Perspective, Canberra.
Australian Government, Department of the Prime Minister and Cabinet (2006)
Implementation of Program and Policy Initiatives: Making implementation
matter, Canberra.
Commonwealth of Australia Law, Environment Protection and Biodiversity
Conservation Act 1999, available at http://www.frli.gov.au/ComLaw/
Legislation/ActCompilationl.nsf/0/9A8645F9CEFE8EFBCA25730400834D6B?O
penDocument
Cunningham, N., (2004). Regulation: enforcement and compliance, Beyond
compliance: next generation environmental regulation, Australian Institute
of Criminology, Canberra (27 March 2008) available at http://www.aic.gov.au/
publications/rpp/57/08_sec4.html
Hampton, P., (2005) Reducing administrative burdens: effective inspection and
enforcement, Norwich, HM Treasury.
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Harman, J., (2005) The relationship between good governance and environmental
compliance and enforcement, INECE 7th Conference Proceedings.
Macrory, R., (2006) Regulatory Justice: Making Sanctions Effective, Final Report,
London, HM Treasury.
Metcalfe, A., Immigration Referred Cases: Lessons for Government; Public
Administration Today: Issue 12: July-September 2007, Institute of Public
Administration Australia.
McMillan, J., Lessons of Public Administration: The Ombudsman Investigation
Cases; Public Administration Today: Issue 12: July-September 2007, Institute of
Public Administration Australia.
National Training Information Service, (20 March 2008) available at http://www.
ntis.gov.au/
United States, Environment Protection Agency, Conducting Environmental
Compliance Inspections, Inspectors Field Manual International Edition.
Yahoo 7 News, Aust. should crack down on breaches of green laws: OECD (19
March 2008) available at http://au.news.yahoo.com/080319/21/1678f.html
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Telesetsky 235
PAYMENTS FOR ENVIRONMENTAL SERVICES:
A WISE USE OF THE MARKET ECONOMY
OR MISDIRECTED COMMODIFICATION?
TELESETSKY, ANASTASIA1
1 Briscoe Ivester Bazel LLP, 155 Sansome Street, San Francisco, California 94104
atelesetsky@briscoelaw.net
SUMMARY
This paper reviews "payments for environmental services," a conservation
mechanism with the potential to improve compliance with local, regional, or
international law. This paper observes that payments for environmental services
programs are most promising when a resource is threatened by current or
future development, time is of the essence to protect the resources, and there is a
mutually agreed upon contract between a seller of an environmental service and a
buyer of an environmental service.
1 INTRODUCTION
As the adage goes, you can give a man a fish and he will eat for a day; you
can teach a man to fish and he will eat for a lifetime. Sometimes, however, it is
necessary to pay the man not to take the fish for dinner when what you are
trying to protect is the fish. Payments for environmental services apply the rules
of the market to environmental conservation efforts by paying individuals or
communities to protect a resource either by not using it or by restoring it.
This paper first explores an operational definition for Payments for Environmental
Services and how Payments for Environmental Services might be an effective
strategy in promoting compliance with local and national environmental laws.
The paper then briefly describes how a successful Payments for Environmental
Services system has been implemented. Finally, the paper addresses some of the
limitations on using Payments for Environmental Services as an incentive for
environmental compliance.
2 INCENTIVE OF PAYMENTS FOR ENVIRONMENTAL SERVICES TO
FURTHER ENVIRONMENTAL COMPLIANCE
There is no single agreed upon definition or name for Payments for Environmental
Services. Some of the other names used for projects or ideas that combine economic
incentives with obligations for environmental protection or restoration include
"markets for environmental services," "rewards for environmental services," and
"compensations for environmental service."
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236 Eighth International Conference on Environmental Compliance and Enforcement 2008
Sven Wunder, from Center for International Forestry Research, provides a
useful five step conceptual framework for understanding the basic principle of
Payments for Environmental Services. For a program to qualify as a Payments
for Environmental Services, it should (1) be based on a voluntary contractual
arrangement; (2) concern an environmental benefit that can be defined or
measured; (3) be bought or exchanged; (4) be from an individual or community;
and (5) on the condition that the promised benefit is delivered.1
Because it creates a specific incentive for refraining from or performing certain
behaviors, Payments for Environmental Services has the potential to accelerate
compliance with conservation laws especially where a given environmental
resource is either scarce or in demand.
There are a variety of objectives for a Payments for Environmental Services
program. Programs can focus on payments for not doing a certain behavior,
such as slash and burn agriculture, dynamite fishing, extracting timber, releasing
untreated wastewater, or hunting threatened or endangered species in a certain
geographical area. Programs can also offer payments for doing certain behaviors,
such as actively managing an ecosystem or participating in reforestation efforts.
There is no single formula for creating a successful Payments for Environmental
Services program. A program can be managed by the public through its ministries
or departments of environment or conservation. Private companies or non-profits
can fund and run Payments for Environmental Services projects. Or public private
partnerships can operate programs. Sellers can be communities or individuals.
Agreements between sellers and buyers can be formal negotiated contracts or
simply informal promises. Payments can be in cash or in-kind (e.g., construction
materials for a school or beehives.)
Where Payments for Environmental Services programs are designed for furthering
compliance with certain environmental laws, the buyer of an environmental
service must possess a clear idea of what will be considered an acceptable delivery
of environmental services. Laws without specific numerical thresholds can be
interpreted in a variety of manners. The expectations of environmental service
buyer need to clearly specified in advance of an agreement.
For example, a country may have legal obligations under an international
convention to protect a specific sub-species of an animal that happens to be widely
and historically eaten by communities within the country. A private philanthropy
group wants to create a Payments for Environmental Services program whereby
it will pay individuals to protect the animals. Are the communities expected not
to hunt any of the animals even though some of the sub-species are plentiful? Or
are they simply prohibited from hunting the sub-species listed in the international
convention? Are the communities only restricted from hunting or must they also
desist from making changes that might also affect the animal's habitat? Concepts
of protection are likely to be, in part, culturally-specific and may be difficult to
translate.
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Telesetsky 237
In addition to spelling out their expectations as an environmental service buyer, a
buyer must also be clear about what the standards will be for payments. Is there
an agreed upon baseline from which to measure whether a seller has upheld his
or her end of the bargain? Who will do the measuring? Will certain environmental
conditions, such as a drought or a flood, trigger a seller of environmental services
to avoid specific behavior and also take affirmative steps; for example, an
individual will not only refrain from hunting a bird but also rescue eggs?
Payments for Environmental Services schemes have the potential to boost
environmental legal compliance because the schemes introduce a new level of
quantifiable value for a given resource. When confronted with making decisions
about how to live in a rapidly evolving world, those who reside closest to a
resource, irrespective of whether they are the owner of the resource or not,
are faced with ambiguous rational economic decisions. Should they give their
consent for resource extraction when they stand to benefit monetarily? Or should
they leave the resource in situ because otherwise they will be forced off the land
that they are now occupying by resource extraction companies? For many, it
is a Faustian bargain where law plays only, at best, a marginal role. A proposed
Payments for Environmental Services scheme, on the other hand, allows for
occupants to remain in place and to receive compensation for keeping a resource
in situ. The given resource no longer simply has an inherent value but also has an
external value. The shift from an "either/or" paradigm to a "both/and" paradigm
creates a new favored position for law where compliance is not considered an
obstacle but an opportunity.
In addition to enhancing perceptions about compliance, Payments for
Environmental Services schemes have the potential to create new framework for
local enforcement. As interested parties, Payments for Environmental Services
sellers are more likely to take an active interest in delivering the agreed upon
conditions and may activate social enforcement systems such as customary law or
social sanctions to ensure that they benefit from their agreement.
Some Payments for Environmental Services sellers may also be more inclined
to call upon local or regional law enforcement officials to help them fulfill their
protection obligations. If a resource under a Payments for Environmental Services
contract is threatened by an individual or group over which the seller has no
control, sellers may be willing to enlist external enforcement assistance, assuming
the assistance is reliable, to punish bad actors such as poachers or illegal loggers.
Calling for backup help would be especially likely in areas locally perceived of as
commons, such as government protected areas or reserves.
3 COSTA RICA'S PUBLIC SCHEME FOR PAYMENTS FOR
ENVIRONMENTAL SERVICES
Payments for Environmental Services schemes are not theoretical. A leader
among the Latin American countries, Costa Rica designed a Payments for
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Environmental Services project referred to in Spanish as a "Projecto Pago por
Servicios Ambientales". The project is run by the government and transfers funds
to individual farmers who have entered formal contracts to deliver environmental
services for five years. These contracts are recorded in the public land register
and run with the land. To fulfill their contracts, individual farmers undertake
reforestation, forest preservation, or agroforestry efforts.
Much of the conservation success of the program is that it is implementing from
the ground level up Costa Rica's Forest Law, Environmental Law, and Biodiversity
Law while providing income opportunities.2 Some of the greatest lobbyists for
enforcing the laws associated with forest protection are now the recipients of the
payments who are directly engaged with reforestation, forest protection, and
sustainable management of the forests.
The program has had both direct and indirect effects, including offsetting some
of the carbon produced in Costa Rica, improving community environmental
education in areas such as waste management, and increasing household income.
Participants of the Costa Rica program adhere to the environmental laws that form
the foundation of the Projecto Pago por Servicios Ambientales program, in part,
so that they can receive their payments. Whether the Projecto Pago por Servicios
Ambientales programs have been more or less successful than simply a command
and control regulatory program is less clear.
4 PRACTICAL LIMITATIONS ON EMPLOYING PAYMENTS
FOR ENVIRONMENTAL SERVICES AS AN INCENTIVE FOR
ENVIRONMENTAL COMPLIANCE
While the Costa Rica program has been successful in creating new value for the
forest and providing new incentives to comply with existing laws, not all Payments
for Environmental Services programs, including the Costa Rica program, measure
up to expectations of a market fix.
There are a myriad of reasons why parties do not comply with environmental
laws. Often the costs of non-compliance are minimal and the risks of being caught
non-existent. Sometimes, a law is passed but never explained. In other instances,
a law is irrelevant because it has not been updated to reflect current resource
extraction or industry practices; therefore, it cannot provide protection against the
real threats to the environment.
Just as Payments for Environmental Services is not a one formula conservation, it
is also not a one-size fits all solution. While Payments for Environmental Services
programs are likely to increase compliance with environmental laws, they may
also inadvertently create perverse incentives, including rewarding bad actors. As
a result, this creates the conditions for "greenmailing" and shifting environmental
harm to other locations.
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Telesetsky 239
As best practiced, Payments for Environmental Services programs provide
a common language for linking human needs with ecosystem needs. As
unintentionally practiced, Payments for Environmental Services programs reward
the parties that are most likely to destroy the environment.
By commodifying the environment, Payments for Environmental Services
programs fail to acknowledge the efforts of those who are already in compliance
with environmental laws. Throughout the world, there are individuals who are
unintentionally in full compliance with international, national, and regional
environmental laws as a result of their lifestyles. Many of these parties are
indigenous peoples who have been living for centuries in balance with the land
and following their own culturally specific laws. These parties are the least likely
to be rewarded with a Payments for Environmental Services project because they
have demonstrated that they are the least likely to destroy their resources because
of complex personal, social and spiritual reasons.
The parties that are most likely to be rewarded are the parties that are in the
process of violating environmental laws, or who threaten to do so. As a result, a
strange enforcement dynamic occurs because violators, or would-be violators,
receive financial incentives rather rewarding law-abiding citizens that are already
conducting sound environmental practices. At an instinctual level, there is
something unfair about a system that rewards offenders.
On another level, paying to prevent environmental violations makes policy sense
if the parties would have engaged in additional environmentally destructive
"but for" the payment. For the individuals who were previously causing or
contemplating causing environmental harm, the decision is no longer in a zero-
sum result but a positive-sum result.
If the payments for the environmental services are high enough to provide
individuals or groups with the opportunity to pursue new, less resource intensive
livelihood options, then Payments for Environmental Services projects may serve
as the first step to the rehabilitation of certain individuals and groups. A useful
comparison is the gang-rehabilitation education programs in the United States.
Some high schools with a large population of students at-risk of leaving school
spend scarce resources to work with members of gangs to ensure that they get an
education. In some instances, these students leave their gangs as a result of the
extra attention from the schools. Payments for Environmental Services programs
that reward environmental violators might be justified for the same reason. Just
as the school programs for gangs lead to shifts in attitudes for some members,
Payments for Environmental Services programs have a greater potential for
rehabilitating attitudes about the need for complying with environmental laws
than incarceration or fines.
In addition to the unfairness aspects, critics also worry that paying violators
or would-be violators to refrain from causing environmental harm might
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embolden these individuals to "greenmail" already resource-poor programs by
demanding excessive money or services in payment for continued good behavior.
While "greenmailing" may prove to be a sizable future threat to Payments for
Environmental Services programs as they develop, a more direct immediate threat
resulting from a Payments for Environmental Services program is the relocation
of environmentally undesirable behavior from the Payments for Environmental
Services project site to a neighboring area. For instance, if people cannot collect
firewood within a preserve, they will go just outside the boundaries to the buffer
zones.
Another potential problem is Payments for Environmental Services may challenge
existing property regimes. In creating a Payments for Environmental Services
scheme, what seems most important to the buyer of an environmental service is
stopping undesirable behavior. What happens if the sellers of environmental
services are not the owners of the land on which the environmental services are
sold?
Imagine an important buffer zone for a world heritage quality tropical rainforest.
The land is owned by absentee landlords living hundreds of miles away who have
expressed an interest in eventually developing the land for commercial purposes.
The land is currently occupied by peasant farmers who intend to use the land
for grazing. As a buyer environmental service, who do you work with? Do you
contract with the absentee landowner who does not need the small sums of money
being offered and has no intention of developing the land in the near future? Or
do you contract with the occupiers who have indicated that they intend to use
the land in a manner that will reduce the viable buffer with the rainforest that the
buyer is trying to protect? If you contract just with the title property owner, how
can you guarantee that he or she will enforce the non-use of his land when there
is no historical precedent for preventing others from entering his land and the
amount of money is negligible? If you contract just with the farmers, do you create
the conditions for luring additional needy people to become squatters in hopes of
being offered a Payments for Environmental Services contract? Should a Payments
for Environmental Services buyer pay both parties? Is this the most effective way
of enforcing the law?
5 CONCLUSION
Payments for Environmental Services systems are still developing. A Payments
for Environmental Services system is most effective when it is clear what
environmental services are being contracted for and when the seller of the services
has either secure land tenure or an unchallenged occupation of land and is willing
to self-enforce the contract in order to receive the payments.
Where the conditions exist for a Payments for Environmental Services system to be
effectively implemented, a buyer can demand as one of the terms of the contract
full compliance with existing or pending environmental laws. When time is of the
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Telesetsky 241
essence to conserve rapidly diminishing habitats or endangered species, Payments
for Environmental Services schemes may the solution for creating long-term shifts
in attitudes towards the value of both conservation and legal compliance.
6 REFERENCES
1 Wunder, Sven, PAYMENTS FOR ENVIRONMENTAL SERVICES: SOME NUTS AND BOLTS,
(2005) Center for International Forestry Research Occasional Paper No. 42 available
at http://www.cifor.cgiar.org/publications/pdfJiles/OccPapers/OP-42.pdf.
2 Russo R.O. and Candela, G. "Payment of Environmental Services in Costa Rica:
Evaluating Impact and Possibilities" in Tierra Tropical (2006) 2(1): 1-13.
7 BIBLIOGRAPHY
Gutman, P., ed. FROM GOODWILL TO PAYMENTS FOR ENVIRONMENTAL SERVICES (2003),
World Wildlife Fund.
Landell-Mills, N. and Porras, I. SILVER BULLET OR FOOL'S GOLD? A GLOBAL REVIEW
OF MARKETS FOR FOREST ENVIRONMENTAL SERVICES AND THEIR IMPACT ON THE
POOR, (2002) Instruments for Sustainable Private Sector Forestry. International
Institute for Environment and Development.
Mayrand, K. and Paquin, M. PAYMENTS FOR ENVIRONMENTAL SERVICES: A SURVEY
AND ASSESSMENT OF CURRENT SCHEMES, (2004) Unisfera International Centre for
the Commission for Environmental Cooperation of North America available
at www.cec.org/files/pdf/ECONOMY/ Payments for Environmental Services
-Unisfera_en.pdf.
Pagiola, S., Arcenas, A. and Platais G. "Can Payments for Environmental Services
help reduce poverty? An explanation of the issues and evidence to date. 33 (2)
WORLD DEVELOPMENT 237-253 (2005).
Pagiola, S., Bishop, J., and Landell-Mills, N. (eds.) SELLING FOREST ENVIRONMENTAL
SERVICES: MARKET MECHANISMS FOR CONSERVATION AND DEVELOPMENT, (2002).
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Van der Schraaf 243
CAPACITY BUILDING IN THE DUTCH INSPECTORATE:
BRIDGING THE GAP
VAN DER SCHRAAF, ANGELIQUE A.A.1
1 Dean of the Inspectorate Academy, VROM Inspectorate, Post-box 16191, 2500BD
The Hague, The Netherlands,angelique.vanderschraaf@minvrom.nl.
SUMMARY
The Dutch Inspectorate has developed a strategic methodology for capacity
building of its inspectors. It is a three-year plan where - based on setting capacity-
objectives per working field - step by step the knowledge gap is closed. An
Academy consisting of six employees is set up to facilitate 550 inspectors on their
way to becoming better-qualified professionals. After five years of intensive work,
the Dutch Inspectorate Academy has had a number of successful initiatives to
build-up knowledge within the Inspectorate.
1 INTRODUCTION
Every country that is serious about environmental compliance should have
professional inspectors. The Dutch Inspectorate, existing in the present form since
2002, followed a European Committee Recommendation to professionalize its
inspectors. In this paper, the capacity building methods of the Dutch Inspectorate
and the funding of its Inspectorate Academy are examined.
The VROM-Inspectorate was organised in its current form in 2002. It was
aggregated from the Environmental Inspectorate, the Inspectorate for Housing,
the Spatial Planning Inspectorate, and two Intelligence Clusters of the Ministry.
2 THE ORGANISATION
The Inspectorate Academy is part of the VROM Inspectorate and Staff department.
Currently, it consists of six persons. It started with two permanent staff members
and four contractors, with the need to prove that six full-time staff members were
necessary to do the job right. After three years of hard and consistent work, the
Academy managed to establish itself as a valuable part of the VROM Inspectorate,
solidifying the need for its existence.
3 CONCEPTUALISATION
The Inspectorate Academy was practically invisible to inspectors in the field
during its first year. The Academy started working on building an initial concept
that would form the base for the Academy in the following years.
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244 Eighth International Conference on Environmental Compliance and Enforcement 2008
To increase its visibility, the Inspectorate Academy embraced the very practical
"knowledge-value chain" model of Professor Mathieu Weggeman was embraced.
The "knowledge-value" chain provides a structured framework for reaching a
goal. This includes the knowledge process composed of the following elements:
creation, sharing, application, and evaluation. Applying this model to the
mission of the Inspectorate results in the following five steps: (1) investigate
what knowledge the Inspectorate Academy must obtain (what are the needs?);
(2) acquire the needed knowledge for the organisation; (3) develop methods
to disperse the knowledge within the Academy; (4) invest in the application of
knowledge in the daily work of the organization; and (5) make sure to take time
for evaluation (are we really professionalizing?). The focus of the rest of this article
will be on the steps of this model.
Figure 1: The Knowledge Value Chain Model: © Mathieu Weggemans
Mission
Inspectorate
Strategy
Needs for Knowledge
Knowledge acquisition
Spreading knowledge
Application of knowledg
Zero measurement
Strategic.
Knowledge maps
Actual knowledge:
Yellow pages
Education
Recruitment &
Selection Mobility
Mentoring
Intranet
COP's
Lunch meetings
Handbook
Working processes
Instructions
NEEDS FOR KNOWLEDGE: NEEDS ANALYSIS
4.1 Zero Measurement
The Dutch Inspectorate started an intensive investigation to establish the needs
for knowledge. In the initial compliance measurement (referred to as the zero
measurement), the Dutch Inspectorate investigated if the organisation was ready
for knowledge management. The starting point was the wish of the Management
to invest only in a very practical way of capacity building and— in doing so— to
get as close to the working needs of the fieldworkers as possible. As a result, no
deep and long investigations occurred. Starting a large and elaborate process of
establishing knowledge management within an organisation requires an open-
minded and mature organisation. Thus, picking the right moment is essential at
this point.
The zero measurement took place one year after the founding of the VROM-
Inspectorate. An electronic questionnaire was used to find an answer to this
question. The test results pointed out that the organisation was not ready yet
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Van der Schraaf 245
to focus on knowledge management. As a result, the Dutch Inspectorate had to
wait one or two more years to give the organisation time so settle down. A final
evaluation will occur in 2009, the same measurements on knowledge management
will be done again to see the readiness of the organisation for knowledge
management has progressed.
4.2 Strategic Knowledge Maps
In the "silent" years between the zero measurement and the coming out of
the Academy, we started to develop so called "strategic knowledge" maps.
The Inspectorate staff was divided in several working field clusters. Groups
including inspectors working on Waste Management, another group on Safety /
Risk management, Intergovernmental Supervision, Nuclear Safety, Security and
Safeguards, Intelligence and Tracing Service, and more. Within each cluster several
meetings were planned in order to develop (in a bottom-up process) a strategic
knowledge chart. During each meeting a group of five to eight inspectors were
invited to develop this chart. Additionally, an external facilitator was present.
During the first meeting, the strategic environment of the working field was
viewed. The following three questions were evaluated: (1) what will happen on
strategic / political level; (2) what new legislation is expected; and (3) what new
technologies are expected? After these questions are answered, the competences
necessary to meet with these strategic challenges must be established.
Competences include knowledge, skills, and the right attitudes. The second
meeting focused on evaluating these competences. The competences from the first
meeting in a 2 x 2 matrix, in which we distinguished the urgency:
• Current and future importance is major: already existing professionalization
programmes (pick the existing programmes and improve them).
• Current importance is minor, but will increase in the future: new programmes
have to be developed.
• Current importance is major, but will decrease in the future: no more effort
necessary, eventually use the existing programmes.
• Current and future importance is minor: no development necessary.
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246 Eighth International Conference on Environmental Compliance and Enforcement 2008
Figure 2: The Strategic Knowledge Chart: Knowledge Fields and Importance for
the Organisation
STRATEGIC KNOWLEDGE MAP
u
1 I
1 1
Source: CIBIT
Current importance is
minor, but will
increase in the future
Current and future
importance is minor
Current and future
importance is major
.Scope
Current importance is
major, but will
decrease in the future
MAJOR
CURRENT IMPORTANCE
Figure 3: The Strategic Knowledge Chart: Working Field Intergovernmental
Supervision
STRATEGIC KNOWLEDGE MAP:
N I »
I I 3
^ ^ Pi
« s p
INTERGOVERNMENTAL SUPERVISION
AVERAGE
CURRENT IMPORTANCE
MAJOR
Source: CIBIT
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Van der Schraaf 247
The Dutch Inspectorate also discerned three levels per mentioned competency,
including operational, specialist, and super specialist. We asked the inspectors
what the content and scope of the three levels should be, including what are the
final qualifications to be met within the following three years and how many
inspectors of each level should attend the professionalisation track. As a result, the
competences were discussed on a more detailed level than occurred during the
first meeting.
In a final meeting, the inspectors were asked which colleagues / potential institutes
could be contracted to build up the wanted competences. All the meetings were
facilitated by the consultancy group CIBIT that had developed this model of a
strategic action plan.
4.3 Yellow Pages
Additionally, the Dutch Inspectorate mapped the "personal knowledge charts"
of each inspector. We asked them to classify their own level of knowledge (based
on the strategic knowledge maps). We are aware of the subjectivity this exercise
would imply, but it was a quick way to establish knowledge levels. For example,
when the total results of one regional office were published and each member
saw what their colleagues had filled in, a more objective levelling out took place.
Each inspector is the holder of his own knowledge chart and he/she is the only one
who could change the content. And we noticed that quite a few did change their
knowledge charts.
Twice a year a large "knowledge chart" campaign was organized. All six members
of the Academy visited the regional offices and assisted the inspectors to fill in
their charts. Meanwhile, we promoted the benefit of the charts (i.e., what is in it for
you) and what the Academy could mean for them if most colleagues - including
themselves - have filled in those charts. This process allowed the inspectors to
get to know the members of the Academy and we were able to gain their insights
and advice. In short, it was a promotion tour that paid off, and was well work the
effort put in. The Academy now has a yearly update of the personal knowledge
charts. As a result, we created the so-called "Yellow Pages" of the Dutch VROM-
Inspectorate. In the last two years, 70 percent of all Inspectors have filled in their
knowledge charts.
5 KNOWLEDGE ACQUISITION
The Academy now possesses two large databases on Inspectorate knowledge -
the strategic knowledge charts and the yellow pages. Comparing the knowledge
from the strategic knowledge maps with the actual knowledge results in identify
a method to bridge the gaps. Further, we developed the so-called "learning
streams" for each working field. These are three-year programmes, with all kind
of educational forms to obtain the needed capacity. This was accomplished mostly
in the form of courses and training, and also internships and mobilisation / job
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248 Eighth International Conference on Environmental Compliance and Enforcement 2008
rotation. The latter two were not done by the Academy, but by the HRM-advisor
and the management of the Inspectorate.
A learning stream is a package of learning possibilities that an inspector within
a certain working field cluster can utilize to professionalize himself/herself. The
actual form of learning he/she will actually utilize will be determined in close
consultation with his/her manager.
Because we have good pictures of what we have and what we want, the acquisition
of knowledge from outside the Inspectorate by recruitment and selection
procedures could be more focussed. This would be another way of bridging the
gap-
Quite a different way of knowledge acquisition is obtained by the use of "super
specialists." We have fourteen super specialists, spread over all working fields,
who get time to specialise in one field of work. The Inspectorate, the policymakers,
and other public administrations consult them for the extensive knowledge and
competences they have. They can spend half of their working time to obtain
this extensive knowledge and competence level. The way they acquire this
intensive knowledge level is by attending courses on state of the art, self study,
reading, consulting with other specialists (national and international), developing
Inspectorate procedures, and more. Additionally, part of their job is to share their
knowledge throughout the Inspectorate.
6 SPREADING OF KNOWLEDGE
Once knowledge is obtained it should be spread throughout the whole
organisation. Our slogan is: "Knowledge is power, sharing knowledge gives
empowerment!" The Academy has dedicated effort to develop well-designed and
accessible home pages in the intranet of VROM. But, electronics are not always
the ultimate tool. As put in the last paragraph, a nice way of spreading knowledge
in a non-electronic way is by a Community of Practise (COP); for example, the
super specialists organise meetings and seminars to inform their colleagues.
Additionally, regional level lunch meetings are efficient, practical, and inspiring
ways of knowledge sharing. During these meetings, colleagues share good
practices and discuss the problems they have met.
7 APPLICATION OF KNOWLEDGE
While spreading knowledge, it is important to think of several ways to capture all
the knowledge of the inspectors. Once it is captured, it becomes information that
is no longer subjected to one person. The recording of the information can be done
by describing the inspectorial procedures in instructions and handbooks, making
it easy to disseminate knowledge among all the inspectors.
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Van der Schraaf
249
Recording the lessons learned and best practices is of the utmost importance.
It seems very obvious to do so, but recording the obtained knowledge is the
one trammel in the chain that often gets little attention or is forgotten. Another
important point of attention in application of knowledge is to see to it that the
information is well assessable, otherwise it will not be used and all the encoding
effort is all in vain.
8
EVALUATION
After some time it is good to look back and investigate if the effort put in
capacity building is effective. Such an evaluation will be started this year in the
Netherlands. Managers will be interviewed and asked whether they notice a
measurable better performance in the Inspectorate work. If so, is the increase in
efficiency due to the educational programmes or are other factors at stake? Has the
Academy bridged the gap? What other efforts are needed to obtain the objectives
put in the strategic knowledge maps? Are we still ahead of what will be expected
in our working field? Are there new developments to come? After six months, the
trained inspectors will be asked similar questions.
Figure 4: Bridging the Gap
rrent situation
A learning stream is a package of learning
possibilities that a staff member within a certain
working field cluster can utilize to professionalize
himself/herself. Which form of learning he/she
will actually utilize, will be determined in close
consultation with his/her manager.
9 THE EXPERIENCE OF THE DUTCH INSPECTORATE ACADEMY:
WHERE DO WE STAND NOW?
After approximately five years of intensive work, the Dutch Inspectorate Academy
has gained a strong position within the Inspectorate and has earned a well-
deserved role as the capacity building institute within the Inspectorate. This is
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250 Eighth International Conference on Environmental Compliance and Enforcement 2008
demonstrated by the establishment of a current staff of four permanent workers
and only one contract worker.
We have developed Academy procedures and handbooks with practical "do's and
don'ts" to do our work effective and costumer oriented. We learned that strong
public relations are essential; the creation of an appealing brand mark (that is seen
all over the Inspectorate) gives us a face. As a result, members of the Academy
are encouraged to take time to become visible and approachable. Further, our
greatest success factor is that we listened to the needs of the inspectors in the field
and developed ways of learning that can be directly applicable in the day-to-day
practice.
The bottom-up process of generating the strategic knowledge maps was an
innovative part of this effort. There was a risk in not getting the managerial
approval for applying the results. But, due to the well-based investigations and
the personal approach of the separate managers to get the approval, approval was
finally granted after a six month process. It is clear that a strong managerial is
essential for a successful Academy.
Within the Inspectorate a certain amount of money (€ 1098) and a certain amount
of time (ten working days) per inspector is assigned for capacity building on
a yearly base. A large amount of capacity building money was trusted to the
Academy (70 percent of the total amount). Quarterly management reports on the
use of the funds, the number of courses, the evaluation of the courses, and the
number of attended inspectors monitor the progress of the three-year capacity
building process in a quantitative an qualitative way. During the year it is possible
for the management to reallocate funds, courses, and inspectors. As a result,
external (strategic) factors can be directly translated in an up-to-date capacity
building programme.
Another success factor is the use of the already built-up knowledge within the
Inspectorate. For instance, while developing the strategic knowledge maps,
trusting and honouring the knowledge of the inspectors makes them dedicated
co-workers of the Academy. Also, utilizing inspectors in training programmes
is cheap and effective way of knowledge transfer. It is our experience that this is
an effective method of transferring knowledge from one inspector to the other,
resulting in a large impact. Additionally, the Academy uses our super specialist
very often as teachers in training programmes.
In developing training programmes and courses, we always work in teams
consisting of Inspectorate content professionals and some educationalist. As a
result, we remain assured that the new training programmes will be an educational
right and are as close to the day-to-day practice as possible. The evaluation results
of each training are communicated with the content professionals in order to
improve the courses and training programmes time after time.
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Van der Schraaf 251
10 BIBLIOGRAPHY
The VROM-Inspectieacademie (capacity building programmes per learning
stream).
Weggemans, Mathieu , Wijnen, G., Kor, R. (eds). Ondernemen binnen de
onderneming. Kluwer, 2003.
Needs analysis - bridging the gap. van der Schraaf, A.A.A.,. Brokerhof, M.E.
Hand-out INECE Conference 8, April 2008, Cape Town.
Spek, Rob van der, .Kingma, J., Kleijsen, A., Kruizinga, E., Schuurman, J.,
.Romgens, B. Methoden en Instrumenten voor kennisgericht organiseren. www.
dnv.nl/Binaries/methoden_en_instrumenten_tcm26-272224.pdf -
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Woodward 253
MORE COST EFFECTIVE ENVIRONMENTAL REGULATION
WITH LESS RED TAPE
WOODWARD, JOE1
1 Deputy Director General, Environment and Regulation Division, Department of
Environment and Climate Change, New South Wales, Australia, joe.woodward®
environment .ns w. go v. au.
SUMMARY
Governments in Australia and internationally have raised concerns about the
impact of increased environmental regulation on productivity. Reviews have
suggested that the amount and methods of regulation impose unnecessary
burdens on industry and governments. On the other hand, surveys have shown
that the public wants to increase environmental regulation because they are
witnessing continuous environmental degradation.
Both of these views are correct. We do have to increase our effort to solve
outstanding environmental problems and we need to do that more cost effectively
than we have in the past.
This paper focuses on experience in New South Wales (NSW), Australia where our
approach to environmental regulation and compliance has evolved over several
decades and now provides an effective mix of strategies aimed at achieving the
environmental outcomes in the most cost effective way. Further, examples of the
most successful regulatory and compliance initiatives currently used in NSW are
evaluated.
Important messages include (1) focusing on the desired outcomes; (2)
acknowledging the need to reduce unnecessary red tape; (3) understanding the
communities' concerns and priorities;and (4) choosing the most cost effective
approach to solve each problem.
1 INTRODUCTION
There has been global concern regarding the burden of regulation on society,
coupled with suggestions that it stifles the economy. Environmental regulation has
been one of the targets of this concern. A report by Philip Hampton for the HM
Treasury in the UK entitled Reducing Administrative Burdens - Effective Inspections
and Enforcement (Hampton 2005) concluded that the whole regulatory system
is complicated with overlaps in activities resulting in too many forms, requests
for information, and multiple inspections. Similar reviews have been conducted
in Australia; for example, the Australian Government recently established
the Taskforce on Reducing Regulatory Burdens on Business, which made 178
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recommendations to reduce red tape and resulted in the establishment of the
Office of Better Regulation to oversee the implementation of the recommendations.
Similarly, at a state level, NSW has commissioned red tape reviews including
Investigating the Burden of Regulation in NSW and Improving Regulatory Efficiency
(IPART 2006) and has also set up a Better Regulation Office to review existing and
new regulations.
The need for regulatory reform to minimize red tape in environmental regulation
is just as evident in developing countries as it is in developed ones. In developing
countries environmental regulation is sometimes seen as a barrier to economic
development. Therefore, it is important to ensure environmental regulation
focuses on the important problems and is cost effective, increasing the likelihood
of such protection being accepted by governments and the community.
This paper explains why and when environmental regulation is important and
provides examples of successful environmental regulation and compliance
initiatives in NSW Australia, based on experience that has evolved over several
decades.
2 WHY DO WE NEED ENVIRONMENTAL REGULATION?
Regulation, and more broadly government policy intervention, is particularly
important in cases of market failure - where private costs and benefits differ from
social costs and benefits. When market failures occur, regulation by government
can lead to more efficient outcomes and can provide incentives to maximise the net
benefit to society. This is true across society - from traffic management to health
standards and pollution control.
Examples of market failure in NSW Australia include: (1) loss of biodiversity with
the extinction of more than 80 species of native animals and plants and threatened
extinction of a further 900 species since European settlement commenced 200 years
ago; (2) land degradation estimated to cost $AU1.15 billion per annum; and (3) air
pollution in Sydney causing up to 400 premature deaths a year and health costs
between one and 4.1 billion Australian Dollars (DEC State of Environment Report
2006, DEC Air Pollution Economics 2005).
The Heads of the European Environment Protection agencies responded to
this with a report titled The Contribution of Good Environmental Regulation to
Competitiveness (Network of Heads of EPAs 2005). This report stated that "Effective
environmental regulation is integral to successful markets, an essential ingredient
of a vibrant, modern economy. Unregulated markets would be chaotic, unfair
and unlikely to deliver what people want - safe, reliable products and a clean
environment in which to live and work." Further, a review that looked at national
competition in Australia concluded "Regulation is an important tool for delivering
governments' social and economic goals, including ensuring Australia's safety
and security, guarding freedom of choice, protecting the environment and setting
standards for corporate governance" (Productivity Commission 2003).
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Woodward 255
International, national and local experience is compelling - good environmental
management does not impede economic development. In fact, it is driving
investment and innovation in process and product improvement. There is an
expectation that the government undertakes this stewardship role, as no other
body can.
The challenge is therefore to provide a mix of policy tools that deliver the most cost
effective environmental outcomes - minimising compliance costs and maximising
the public benefits.
3 HISTORICAL TRENDS IN ENVIRONMENTAL REGULATION IN NEW
SOUTH WALES
Environmental regulation has evolved in NSW over the last half century
in response to changes in social, economic, and environmental conditions.
Environmental regulation in NSW has been at the leading edge of global trends in
environmental policy from the "end of pipe" focus of the 1970s to current cleaner
production programs and market based mechanisms. The following summarises
the shift in focus of environmental policy as ongoing reforms have resulted in
more responsive, flexible, efficient and effective regulation.
1970s: Initial efforts to address environmental issues focused on concentrated
point sources of pollution that were relatively easy to identify, particularly
heavy industry and sewerage. Prescriptive technologies involving "end of pipe"
measures to reduce pollution from industrial facilities were also prevalent.
1980s: There was more focus on improving economic efficiency of environmental
requirements. Shift from "end of pipe" to process improvements were factored
into product and process design. Cleaner production initiatives were promoted,
and the introduction of economic instruments - taxes and charges, deposit refund
schemes - occurred.
1990s: Greater focus on improving cost effectiveness of environmental regulation,
rather than just cost efficiencies, and an increased use of policy tools and education
occurred in the 1990s. There was also an intensified focus on diffuse sources and
developing markets for clean green products. Linking command and control
instruments with economic and voluntary approaches occurred, including price
differentials for cleaner fuels, load based charges for pollution, pollution trading
schemes, and "bubble" licensing.
2000s: Strategic planning and regulation of cumulative impacts across airsheds
and biosystems, aiming to maximise benefit across the community and achieve
economy wide efficiencies have expanded in the 2000s. More flexible risk based
approaches, including offsets schemes for air pollution, biodiversity and nutrient
water pollution, have evolved.
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256 Eighth International Conference on Environmental Compliance and Enforcement 2008
4 NSW CURRENT ENVIRONMENTAL REGULATION AND
COMPLIANCE
The Department of Environment and Climate Change now administers over 50
Acts and manages over 40,000 licenses. The Department has responsibility for air,
water, noise, waste pollution, chemical contamination, radiation, wildlife including
threatened species and native vegetation protection, and protection of indigenous
cultural heritage.
NSW developed a framework for environmental protection - a modern, efficient,
effective, flexible, and comprehensive approach that includes a mix of policy
tools from regulation to voluntary programs and market based measures. All
new environmental regulations undergo rigorous cost benefit analyses in NSW
to ensure that key principles of good regulation are met. In addition, an ongoing
program of regulatory reform ensures that legislation remains relevant, effective
and efficient.
The following section summarises the best approaches from experience gained by
NSW in environmental regulation and compliance.
5 UNDERSTANDING COMMUNITY EXPECTATIONS
The NSW Environment Protection Authority did an initial community survey
on the community's attitudes, knowledge, skills and behaviour towards the
environment in 1994. It provided such an excellent insight into the community's
thinking that it has been repeated every three years since, and we can now follow
trends in community thinking. These surveys assist our policy and regulatory
development, and inform Government and the business sector of the community's
views. The latest survey is available at www.environment.nsw.gov.au/whocares/
whocares2006.htm.
The most recent survey (DEC Who Cares 2006) showed that NSW people care
about the health of the environment and want both strong regulation and
incentives to do the right thing. For example:
• 87 percent of survey respondents were very concerned about environmental
problems and most think the government should do more to protect the
environment.
• Approximately 40 percent of people think that environmental regulation is too
lax compared to just 15 percent thinking it is too strict in NSW.
• 78 percent rejected the idea of lessening regulation in NSW.
• 68 percent do not believe that environmental regulation restricts the economy,
compared to only 23 percent who think it does.
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Woodward 257
5.1 Cost Benefit Analyses
NSW has found it very valuable to conduct rigorous and published cost-benefit
assessments for proposed new environmental requirements, which ensure the
benefits outweigh the costs or that they deliver the desired outcomes at least cost.
This process includes close consultation with stakeholders. Effective cost benefit
analyses provide government and business with solid evidence of the benefit of
proposed new regulations.
For example, a regulatory impact analysis in NSW for a proposed regulation
relating to prevention of leakages of underground storage tanks concluded that the
average cost of the proposed preventative measures would be $AU5,400 per tank
compared to the average cost of clean up and remediation costing $AU110,000
per tank. (DEC Underground Petroleum 2005). Additionally, the benefits of
the proposed NSW Clean Air Regulation are four times greater than the costs
(DEC Clean Air Regulation 2003), and the benefits of the National Environment
Protection Measure on Ambient Air Quality 1998 are seven times greater than the
costs (NEPC 1997). More broadly, several cost benefit analyses done for proposed
regulations in NSW and internationally have concluded that for every $AU1
spent on air pollution control there is a corresponding saving on health benefits of
between 4 and 9 times (BDA, 2005).
5.2 Institutional Integration and Efficiencies
Australia, like many other countries, has three levels of government and all have
some responsibility for environmental regulation. The Australian government
has responsibility for international and nationally significant environmental
issues. National environmental standards, e.g. air and water quality standards,
are established by the National Environment Protection and Heritage Council that
consists of the Environment Ministers of each State and the National Government.
The states have the primary responsibility for environmental regulation and
compliance although some responsibility is delegated to local councils.
NSW has gained efficiencies in environmental regulation by combining separate
environmental agencies into the one department, Department of Environment and
Climate Change, with responsibility for all pollution, biodiversity, radiation, and
cultural heritage protection.
In the past there was often duplication and even conflict between the role of the
state government and local government when dealing with pollution issues. To
overcome this, legislation was passed to introduce the concept of "appropriate
regulatory authority" that clarifies whether the State government or the local
council has responsibility for enforcing environmental compliance for any
environmental issue. This has improved clarity for business and the community,
has reduced red tape, and successfully prevented minor issues from being
escalated to the State agency.
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258 Eighth International Conference on Environmental Compliance and Enforcement 2008
5.3 The Most Cost Effective Approaches for Compliance and
Enforcement in NSW
Experience in NSW has shown that the best approach to environmental protection
is a mix of policy tools linking regulation with economic instruments and
voluntary approaches. Indeed, research into environmental regulation consistently
demonstrates that flexible approaches and complementary policy measures assist
in ensuring efficient and effective outcomes. However, it is important to note that
these are complementary measures and are not a replacement for regulation.
5.4 Risk Based Regulation and Compliance
All environmental regulators adopt some form of risk-based approach to their
work. This can apply not only to the development of regulations but also to how
compliance and enforcement of the regulations is carried out.
In the past, NSW has tended to implement the regulations uniformly and this
has partly been in response to calls from industry and others for consistency in
approach. However, we have found that more cost effective outcomes can be
achieved by adopting a transparent risk based approach that can permit a greater
level of flexibly without compromising public confidence in the agency.
NSW has developed a good mix of regulatory tools and our objective is to use the
most cost effective tool to achieve compliance with the environmental objectives.
This has been influenced by Malcolm Sparrow who, in his book The Regulatory
Craft (Sparrow 2000), recommends that environmental regulatory agencies should
rearrange how they operate and focus their approach to "pick important problems
and solve them." Although simple in principle this is quite difficult to achieve.
Some of the most successful cost effective "tools" NSW utilizes include:
5.4.1 Environmental audits
Industry can do "voluntary audits" that are protected from disclosure. Where a
breach is suspected, industry can required to conduct "mandatory audits" and
we can use the information gained in court proceedings. NSW also does a smaller
number of environmental audits which are important as a deterrence to industry
and for public confidence.
5.4.2 Public reporting
NSW requires exception reporting, meaning that industry must immediately
report all serious license breaches, and then annually report all other breaches.
The CEO must certify the completeness and accuracy of the information, including
the reasons for any breaches and measures they have undertaken to prevent a
recurrence. NSW then publishes the information on it's website. We can also fine
the industry, including the CEO, for any false information they provide to us.
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Woodward 259
5.4.3 Campaigns
NSW often concentrates on short term campaigns to alleviate widespread
problems, such as illegal waste dumping. These involve mobilising our own staff
often from different areas, multiple inspections, working with other agencies (e.g.,
the police), involving any industry associations, and using the media to publish
the campaign and the results. We also provide education material and advice to
industry. Once a campaign is completed, NSW concentrates on tackling the next
big problem.
5.4.4 Prosecutions
NSW has three tiers of prosecutions. Tier three involves penalty infringement
notices (on the spot fines), tier two is for prosecutions in court, and tier one can
involve higher fines and/or jail sentences for deliberate serious breaches. Court
penalties are extensive and can include financial penalties, restoration orders,
or other community service orders. As an alternative to court prosecutions,
we can permit industries with minor breaches to enter into a court enforceable
undertaking to do agreed compensatory works. This avoids a conviction being
recorded against the company, but provides a transparent outcome for the
community.
5.4.5 Environmental amenity issues
For less serious environmental amenity issues, for example odor, noise, or nuisance
dust emissions, NSW encourages industry to manage these issues with their local
communities. As an additional incentive, we are charging fees for inspections and
directions if we need to respond to public complaints.
5.4.6 Remediation directions
NSW uses stop-work orders and remediation directions effectively; for example,
with the illegal clearing of vegetation. Remediation directions can be issued
immediately and prevent the person from gaining a commercial benefit from the
clearing works.
5.4.7 Risk based licensing
NSW divides up our 3,000 pollution licenses into high and low risk activities,
with only 25 percent in the high risk category. We manage the high risk activities
proactively with investigations and improvement programs and we manage the
low risk ones reactively, mainly responding to public complaints or obvious issues.
We expect the low risk licensees to manage their activities responsibly and we take
firm action if we find breaches.
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260 Eighth International Conference on Environmental Compliance and Enforcement 2008
5.4.8 Pollution Reduction Programs
NSW uses Pollution Reduction Programs as a license condition to require
improvements within specified time frames. Such conditions are generally agreed
upon with the licensees, but can be impose if necessary. For larger industries with
multiple problems, we prioritise the issues and work over longer time frames.
For example, we required five year Pollution Reduction Programs, over a 25 year
time frame, on an older steel industry to complete all the retrofit work needed to
transform this large plant into a high-quality, modern steelworks. All Pollution
Reduction Programs are on a public register on the Department of Environment
and Climate Change website.
5.4.9 Polluter liability
NSW ensures its legislation places the onus on the polluter, holding directors and
managers culpable for breaches, along with the corporate entity. For example, our
waste legislation places liability on those who generate, transport, or dispose of
waste. Also, our contaminated land legislation places the liability on the original
polluter and moves through a hierarchy to the current land owner or mortgagor.
Government assistance is provided if the original polluter(s) no longer exist
and the land owner has no financial means to clean up the contamination. This
approach has saved the NSW Government hundreds of millions of dollars where
past polluters have been required to clean up contaminated sites.
5.4.10 Voluntary approaches
In addition to voluntary pollution audits, NSW legislation permits voluntary
remediation agreements for contaminated sites. In practice we often permit
voluntary environmental improvements for minor issues where we have the
confidence they will be completed, rather than use our regulatory powers to
require them.
5.5 Economic Instruments and Market Based Measures
NSW has been developing and using innovative economic instruments for over
twenty years and these are used in conjunction with other compliance measures.
Economic tools drive either prices or quantities of regulated activities to provide
economic incentives for companies to further reduce waste and emissions beyond
minimum compliance. They can better influence action on cumulative impacts that
traditional regulation has not been able to solve. Examples of successful economic
instruments include:
5.5.1 Load Based Licensing
Load Based Licensing was introduced in the early 1990s to set license fees
proportional to the degree of environmental impact. Load reduction agreements
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Woodward 261
provide an additional incentive by allowing licensees to commit to future works
and avoid the increased fees while those measures are being implemented. They
have to repay the fee savings if they fail to meet their commitment.
5.5.2 Tradable Emissions
NSW has been developing cap and trade emission schemes since the early 1990s.
For example, the Hunter River Salinity Scheme sets a total allowable emission
level for the river, and allows companies to trade emission entitlements to
minimise corporate costs. Trading now occurs across the internet with minimal
administrative burden on Department of Environment and Climate Change or
industry, resulting in acceptable salinity level in the Hunter River that was difficult
to achieve in the past when we relied on command and control approach with
individual companies.
5.5.3 Waste Levy
This has been a key economic tool since the 1970s for waste reduction in NSW. It
is simple to apply, readily understood, and broad in coverage. A levy of $AU37
per tonne is charged for disposal of waste to landfills in Sydney. This provides
incentives to recycle waste and, more importantly, achieve better resource
conservation in the first place. Money collected accumulates in an Environmental
Trust Fund and is used to fund innovative waste reduction programs and other
environmental initiatives.
5.5.4 Biocertification and Biobanking
NSW has lost important natural biodiversity as a result of cumulative land
developments. Laws to protect biodiversity have been partially successful in
slowing down the loss, but the pressure of individual developments has continued
to see further erosion of biodiversity. Recent legislation in NSW to improve and
streamline biodiversity protection for new land developments now provides
better biodiversity outcomes through biocertification of large land areas, rather
then individual developments, and a biobanking scheme. The biobanking scheme
allows developers to buy and sell biodiversity credits so that when biodiversity
is destroyed in a development, there is an equivalent amount of biodiversity
protection achieved.
5.5.5 Environmental Offsets
NSW uses environmental offsets where a better and more cost effective
environmental outcome can be achieved than by traditional regulation. For
example, it was costing sewage treatment operators approximately $AU10,000 for
each additional kilogram of phosphorus reduction in a river in Sydney, but NSW
discovered that phosphorus could be reduced for $AU500 a kilogram from other
cumulative urban sources (e.g. runoff from nearby market gardens). NSW licenses
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262 Eighth International Conference on Environmental Compliance and Enforcement 2008
now require additional phosphorus reductions from the sewage treatment plants,
and allow this to be achieved through an accredited offset scheme with other
landholders. Offsets are best suited to localized impacts and are not suitable for
acute or toxic emissions. NSW requires that all practical measures to minimise
environmental impacts be first undertaken before permitting offsets.
6 CONCLUSION
NSW has recognised the importance of reducing the unnecessary burden of
environmental regulation on industry and government while increasing cost
effective regulation to solve the outstanding environmental problems. We have
tried many approaches to environmental compliance over 40 years, evolving from
traditional command and control regulation to a sophisticated mix of regulatory
and economic tools. Over the last decade, the population of NSW has increased
by 10 percent and the economy has expanded by 40 percent, while spending on
environmental management has increased by only two percent. The environment
continued to improve during this period.
Our experience shows that it is important to be flexible and to pick the most
cost effective approach to the problem at hand. We seek to continually improve
our regulatory compliance approaches through updating our legislation and
continuously working to improve environmental compliance and enforcement.
7 BIBLIOGRAPHY
Australasian Compliance Institute, www.compliance.org.au.
Australian Environmental Law Enforcement and Regulators Network, www.
aelert.com.au
Department of Environment and Conservation, NSW, 2006, DEC Social Research
Series: Who Cares About the Environment in 2006. A survey of environmental
knowledge, attitudes and behaviors in the NSW community.
Department of Environment and Climate Change, www.environment.nsw.gov.au.
Gunningham N and Sinclair D, 2002, Leaders and Laggards, Next Generation
Environmental Regulation.
Regulatory Institutions Network (RegNet), http://regnet.anu.edu.au.
Sparrow, Malcolm K, The Regulatory Craft: Controlling Risks, Solving Problems,
and Managing Compliance, Brookings Institution Press 2000, Washington, DC.
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Duncan & Nowlan 263
TRACK B: DETECTING NONCOMPLIANCE
OFF THE RAILS: THE ENVIRONMENTAL ENFORCEMENT
CHALLENGE OF CANADA'S RAILWAY INDUSTRY
DUNCAN, LINDA1 and NOWLAN, LINDA2
1 International consultant, Environmental Law and Policy, former Chief
Enforcement, Environmental Protection, Environment Canada and Head, Law
and Enforcement, North American Commission for Environmental Cooperation,
9816-90 Avenue Edmonton AB T6E 2T1, Canada ,duncan@telus.net
2 Faculty Research Associate, Program on Water Governance, IRES and Department
of Geography, IRES-UBC, 439-2202 Main Mall, Vancouver, BC V6T 1Z4
SUMMARY
Consistent and effective enforcement of Canadian environmental laws related
to rail transportation and dangerous spills is currently a major issue and will
become even more pressing in the future given the enforcement challenges
posed by projected increased rail traffic in dangerous materials. Key barriers
to more effective and cooperative enforcement of overlapping laws regulating
environmental and health risks associated with Canadian railways include:
a jurisdictional morass around rail regulation; an emphasis on fast-tracking
transboundary shipments of goods across provincial and international boundaries,
including servicing the growing North American-Asia trade; existing challenges
faced by inspection and enforcement officers in tracking and responding to
transboundary movement of goods; a trend towards self-inspection and-reporting
and voluntary compliance for all industry sectors, but particularly evident in
the rail industry; and inconsistent enforcement policies/enforcement responses
occurring across regions of Canada and also across the US/Canada borders.
1 THE ENVIRONMENTAL ENFORCEMENT CHALLENGE OF CANADA'S
RAILWAY INDUSTRY
The Canadian rail industry poses significant challenges for local enforcement
officials confronted with dramatic increases in derailments and spills damaging
sensitive waters in recent years. In 2005, 1248 rail accidents were reported, a
10% increase from a 2004 total of 1138 and an 18% increase from the 2000-2004
average of 1055. A reported 17% of accidents in 2005 involved toxic or dangerous
freight.1
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264 Eighth International Conference on Environmental Compliance and Enforcement 2008
Figure 1: Rail Accidents in Canada, 1996-2005
Number of Accidents
1996 1997 1998 1999 2000 2001 2002 2003 2004 2005
Source: Transportation Safety Board of Canada
A 2006 investigative report by the Toronto Star, one of Canada's largest
newspapers, examined a decade's worth of accident reports filed by the federal
Transportation Safety Board and found that "Canadian freight trains are running
off the rails in near record numbers and spilling toxic fluids at an alarming rate,
but only a tiny fraction of the accidents are ever investigated."2 That same year,
Canadian National Railroad Company experienced a 36% increase in main-track
derailments. These statistics, coupled with the investigation reports on two recent
major train derailments indicate serious problems with the Canadian rail safety
regulatory and enforcement regime. Absent action to address these deficiencies,
environmental and health risks posed by this transboundary sector appear slated
to increase.
Railroads were the driving force behind Canada's Confederation. Railways
historically relied on coal driven engines that required water, resulting in the
construction of railroad lines along rivers and lakes. Canada today has 73,047
kilometers of railway tracks across the country posing a significant potential
environmental risk from derailments and spills.
Consistent and effective enforcement of Canadian rail transport and spill laws can
be anticipated to face increasing challenges into the future given the many barriers
and constraints including:
1. the jurisdictional morass around rail regulation including the jurisdictional
split between the federally regulated railroad industry and the shared
responsibility for environmental enforcement and emergency response;
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Duncan & Nowlan 265
2. the limited powers of environmental enforcers to address rail accidents;
3. strong policy support for fast-tracking transboundary shipments of goods
across provincial and international boundaries, to service the growing
North American and Asia-Pacific trade markets;3
4. already documented challenges faced by inspection and enforcement
officers in tracking and responding to transboundary movement of goods;4
5. a growing trend towards self-inspection and-reporting and voluntary
compliance for all industry sectors, particularly evident in the North
American rail industry;5 and
6. inconsistent enforcement policies/enforcement responses occurring across
regions of Canada and also across the US/Canada borders.
Taken together, these factors significantly diminish the ability of federal and
provincial environmental enforcers to take effective action to prevent derailments
and spills and to ensure timely emergency response action thus increasing the
probability of continued environmental degradation from rail spills.
This paper outlines the enforcement challenges experienced by Canadian
enforcement officials during two recent derailments and spills in two bordering
provinces mere days apart. These incidents reveal not only wide discrepancies in
enforcement responses across regions, but provide concrete evidence of the major
challenges facing the regulators and enforcers by this growing North American
transboundary industry.
1.1 Two Environmental Disaster Derailments, Two Responses
Despite the existence of a Canadian federal regulatory regime for rail safety
and federal and provincial emergency and spill response laws, protocols and
environmental compliance and enforcement policies, the failed response by
industry and government alike to two separate Canadian National Railroad
Company freight train derailments resulted in spills of hundreds of thousands of
litres of toxic chemicals causing significant environmental damage. The failure
to prevent such incidents or contain environmental damage has drawn attention
to deep founded institutional problems with rail safety in Canada. The following
two cases taken alone demonstrate significant variability in actual on-the-ground
enforcement practices and cross- jurisdictional failures to effectively regulate and
enforce this transboundary sector.
Lake Wabamun Spill, Albertal
On August 3, 2005, 43 cars of a Canadian National Railroad Company freight train
derailed and spilled 730,000 litres of Bunker C oil and 88,000 litres of pole treating
oil into Lake Wabamun, a major recreational area near the province of Alberta's
capital city, Edmonton. The lake also provides cooling water for the provinces
major electricity generating plants. About a third of the Bunker C oil has not been
recovered from the lake. More than 530 migratory birds were oiled, including
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loons, geese, and osprey and nesting ground for the Western Grebe, a provincially
listed endangered species.
Health advisories issued against swimming, boating or use of the lake water
remained in place for more than a year. The Alberta Government issued a number
of Environmental Protection Orders6 directing spill containment, remediation and
monitoring actions. Provincial authorities have filed one charge against Canadian
National Railroad Company under the provincial Environmental Protection and
Enhancement Act for failure to take all reasonable measures to remedy and confine
a spill. The maximum penalty on conviction is $500,000. No charges have been
brought by federal agencies despite clear evidence of violations under federal
laws including the Migratory Birds Convention Act and the federal Fisheries Act. The
limitation date for charging for summary conviction offences expired August 2007.
Cheakamus River Spill, British Columbia
On August 5 2005, a Canadian National Railroad Company freight train derailed
about 30 kilometers north of Squamish, British Columbia, dumping 41,000 liters of
sodium hydroxide, commonly known as caustic soda or lye into the Cheakamus
River Canyon, instantly killing more than 500,000 adult and young salmon,
steelhead, trout, lamprey and other species. Prior to the spill a fish recovery
program had just succeeded in restoring a threatened salmon population. Two
days before the two-year limitation period expired in August 2007, two charges
were filed by Justice Canada against Canadian National Railroad Company under
the federal Fisheries Act and three charges under the B.C. Environment Management
Act. An expensive restoration effort is still underway by the Canadian National
Railroad Company. The Company could pay up to $5 million in fines if convicted.
In November 2007, Transport Canada finally ordered Canadian National Railroad
Company to reduce train lengths along this mountainous corridor.
Aboriginal and environmental groups say it will take millions to restore fish wiped
out by the spill. Canadian National Railroad Company has reportedly committed
about $3.5 million toward clean-up efforts for this spill to date. Less than two
weeks after the Cheakamus River derailment, Canadian National Railroad
Company donated $250,000 to the Pacific Salmon Foundation for a local watershed
salmon-recovery program.
2 CONSTRAINTS TO EFFECTIVE ENVIRONMENTAL ENFORCEMENT
FOR RAILWAYS IN CANADA
2.1 Jurisdictional Morass
In Canada, jurisdiction over rail traffic, accident response and clean up is spread
over numerous agencies within the federal and provincial governments. While
the construction and safe operation of railroads is an area of federal responsibility,
federal and provincial governments share jurisdiction over transportation of
dangerous goods and emergency response and clean up. Regardless of legal
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powers, emergency response is viewed by the governments as primarily a
provincial responsibility7
The fact that provincial environmental enforcement agencies can't even require
the federally regulated railroad companies to have an emergency response plan in
place means that the onus falls to the federal government to ensure that consistent
strict requirements are imposed, regularly updated and recalcitrant operators
punished.8 The dilemma lies partly in the balance of power: Transport Canada
regulates the industry and the Transportation Safety Board investigates accidents,
while the relatively powerless provincial (and federal) environment agencies
mandate is limited to responding to spills and laying charges for environmental
damage. The latter is made more challenging by the decision to preclude use of
Transportation Safety Board reports as evidence.
The credibility of Transportation Safety Board reports have been challenged due
to their policy of circulating their draft investigation reports to the rail companies
before publicly releasing final reports. As rail condition monitoring is done for the
most part by the railroads, investigators rely on these self monitoring reports.
While they provide far greater penalties, federal laws, including rail laws and
environmental protection laws, are rarely used as a basis for prosecution. With a
few exceptions in some regions, the federal government takes a back seat to the
provinces in bringing charges. The Toronto Star found that Transport Canada "is
either unable or unwilling to prosecute the railways, with five convictions from
seven prosecutions since 1999 under the Railway Safety Act, a span that includes
7,658 accidents. The penalties have totaled $168,000 in fines, according to Transport
Canada."9
2.2 Fast Tracking Transboundary Transport of Goods
Significantly increased rail traffic is projected across Canada and the United
States east to west to serve the burgeoning North American trade with Asia.
The Pacific Gateway Strategy calls for strengthened support to trade in the Asia-
Pacific market.10 More rail service is planned to service the expanding west coast
ports, including the expanded port in Prince Rupert, BC. The Canadian National
Railroad Company also touts rail transport routes between US the eastern
seaboard and Asia via Alberta and British Columbia as more cost efficient options.
Another prominent factor is the planned increase in rail traffic which will serve the
massive tar sands and bitumen upgrader developments in northern Alberta. Two
major rail yards and expanded rail lines are in the works.
2.3 Embracing Self-Reporting and Voluntary Action
Increased reliance on industry self-reporting and voluntary compliance is a
growing trend across Canadian enforcement agencies, often with detrimental
results for the environment. n Consistent with this trend, the federal Railway
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Safety Act 12 was amended in 1999 giving railways the power to implement
Safety Management Systems to integrate safety into day-to-day operations, a
move condemned by rail workers and others concerned about this apparent
conflict of interest whereby the railways themselves would decide if they were in
compliance.
Under this system, railways prepare safety reports which are audited by Transport
Canada. Fewer inspections and spot checks are performed. The Toronto Star's
investigation found that since this new safety protocol was introduced in 2001,
Transport Canada has performed only one audit each of Canada's major rail
companies Canadian National Railroad Company and Canadian Pacific Railway.
The Canada Safety Council has blamed deregulation for the increase in spills,
identifying the Safety Management Systems policy change as an end to the
oversight role of Transport Canada.13 Labour organizations have also been vocal in
their opposition to this policy.14 Environmental organizations also decry Canadian
National Railroad Company's 'blase' attitude towards spill prevention and call
for stricter enforcement. 15 Consistent with this philosophy, and to the chagrin of
affected public, Canadian National Railroad Company was made the designated
lead and point of contact for the Wabamun spill.
2.4 Inconsistent and Half- hearted Enforcement
Possibly the most important barrier to effective enforcement of rail safety and spill
laws is lack of consistent enforcement policies across provincial and international
borders.
The compliance and enforcement policy for the federal Fisheries Act, arguably
Canada's strongest environmental law, "sets out principles of fair, predictable,
and consistent enforcement that govern application of the law, and responses
by enforcement personnel to alleged violations. This Policy also tells everyone
who shares a responsibility for protection of fish and fish habitat—including
governments, industry, organized labour and individuals—what is expected of
them."16 Yet as the Alberta and BC derailment cases demonstrate, enforcement
responses are inconsistent in the two adjacent western regions.
While federal officers in B.C. have a history of bringing charges, this response
contrasts sharply with neighbouring-province Alberta where Environment Canada
has limited its role to providing scientific and technical support to first responders.
In the mid 1990s the department cut its emergency response budget by 40%
(www.ec.gc.ca/ee-ue/respond/response_e.asp). The Transportation Safety Board
investigation report on the Wabamun spill was not issued until two months past
the limitation date for summary charges. While the Transportation Safety Board
reports are not admissible in court proceedings, the rail inspection expertise is
housed in the Transportation Safety Board and their findings are therefore critical
to environmental enforcement authorities.
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Duncan & Nowlan 269
Harmonization talks surrounding import and exports have tended to focus on
ports, rather than rail transport. A North American Commission on Environmental
Cooperation study on environmentally sound management of hazardous waste
which sought to improve the tracking of the imports and exports of hazardous
waste between the NAFTA countries, failed to address the cross border rail
industry.17
3 ACTION NEEDED TO ADDRESS THE CANADIAN RAILWAY
ENFORCEMENT CHALLENGE
Prompted by repeated calls for public review of what critics dubbed "the ticking
time bomb" of rail safety, two separate federal bodies and one provincial body
were mandated to study the issue: an expert panel appointed by the Minister of
Transport is due to report on its review of the Railway Safety Act in Feb 2008,18 and
a Parliamentary Committee is also poised to issue a report following its study of
rail safety.19
Post the disastrous Wabamun spill, the Government of Alberta convened a special
Commission tasked to review the province's ability to respond to environmental
incidents.20 The Commission identified significant shortcomings in the government
capacity, including the need to take decisive steps to improve jurisdictional
collaboration, coordination and cooperation, in particular as risks to health and
the environment have to be minimized as an ever-increasing volume and diversity
of goods are transported across the province. The Commission identified the need
for a stronger role in the Alberta government to provide oversight and response
capacity. Most profoundly it advised that "government cannot privatize public
safety." Yet despite widespread recognition of the need to clarify and coordinate
overlapping jurisdiction and responsibility for railroads and emergency response,
even these reviews proceeded independently, not as joint initiatives.
The Transportation Safety Board 21 investigation reports, released two years
after the Wabamun and Squamish spills, identify similar serious and continuing
operating and regulatory and enforcement deficiencies: over reliance on outdated
and ineffective inspection technologies; lack of funds to explore improved
detection equipment; a discrepancy in standards for exiting and maintenance rails
increasing the risk of defects and derailments; inadequate labeling and reporting
of potentially hazardous loads; and, inadequate emergency response planning,
training and supervision. Many of the same problems were reported by the
Transportation Safety Board twelve years earlier.
It is also noteworthy that the derailment occurred despite the fact that the
Canadian National Railroad Company conducted inspections for the Wabamun
area track were five times more frequent than the Rail Track Safety Rules require-
reportedly only one inspection per year for internal defects. None of the
inspections conducted by Canadian National Railroad Company in the year of the
derailment identified any problem with the track. The Transportation Safety Board
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recommends that due to known limitations of monitoring technology, reduced
accidents can best be achieved through stricter requirements for replacement rails.
No rule changes have yet been made and the train traffic continues past Lake
Wabamun and the Cheakamus River.
As early as 2002, Transport Canada issued a Notice and Order to Canadian
National Railroad Company rail citing recurring reports of unsafe practices-
inaccurate car counts, car sequences, train lengths and tonnages. Commitment by
Transport Canada to stronger enforcement measures could prevent derailments
and reduce the need for costly interventions by emergency response and
environmental enforcement officers.
In summary, post incident analyses of these two incidents reveal significant
challenges faced by environmental enforcers in effectively responding to the
growing incidence of environmental violations associated with derailments. Equal
commitment by governments on both sides of the border to stricter enforcement
would significantly improve compliance with transport laws and reduce response
costs of derailments and spills. The upcoming reports from Transport Canada's
independent expert review panel and the Parliamentary Transport Committee
again have the opportunity to recommend changes to railway enforcement
procedures, and more importantly to require a response on when and how
enhanced enforcement procedures will be implemented.
4 REFERENCES
1 Statistics from accident reports filed by the federal Transportation Safety Board,
obtained through access to information requests by the Toronto Star, "Freight
Trains accidents soar", Toronto Star March 06, 2006.
2 "Only 1.3 per cent of all accidents are investigated by the Transportation
Safety Board, with the rest filed under "data collection." David Cooper, "Freight
train accidents soar " Toronto Star ,March 06, 2006 , http://www.thestar.com/
printArticle/202496.
3 The recent purchase by Bill Gates of a major interest in Canadian National
Railroad Company is an indication of the growing value of the sector.
4 Tracking and Enforcement of Transborder Hazardous Waste Shipments in North
America; A Needs Assessment, Report of the law and Enforcement Cooperation
program of the Commission for Environmental Cooperation (CEC, 1999,
Montreal).
5 Supra n. iv.
6 EPO-2005/12-CR.
7 The Harmonization Accord of the Canadian Council of Environment Ministers
provides that the "best situated" authority is responsible for inspection and
enforcement. In practice the decision on who responds varies considerably across
the regions.
8 A significant reason for the extent of damage to Lake Wabamun is the complete
lack of preparedness to contain Bunker C oil either on the part of the company
and the governments and no system in place to rescue wildlife.
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Duncan & Nowlan 271
9 David Cooper, "Freight train accidents soar " Toronto Star, March 6, 2006.
"Transport Canada Media Advisory, November 4, 2005.
11 Mark S Winfield (2007). Governance and the Environment in Canada From
Regulatory Renaissance to "Smart Regulation". Journal of Environmental Law and
Practice, 17(2), 69-83 and Jerry V DeMarco, Toby Vigod. (2007). Smarter Regulation:
The Case for Enforcement and Transparency. Journal of Environmental Law and
Practice, 17(2), 85-113. Conversely, strong regulations and effective enforcement
have been shown to reduce pollution: Peter K. Krahn, "Enforcement versus
Voluntary Compliance: An Examination of the Strategic Enforcement Initiatives
Implemented by the Pacific and Yukon Regional Office of Environment Canada
1983 to 1988" In Fifth International Conference on Environmental Compliance and
Enforcement proceedings, Volume 1 ( Monterey, US, US, 1998).
12 S.C. 1985, c. 32 (4th Supp.)
13 Letter from Safety Council to the Railway Safety Review Panel, May 28, 2007:
"..., The Safety Management System (Safety Management Systems) introduced
to the railways eight years ago entailed a reduction in regulatory oversight. The
years since Safety Management Systems was put into place have seen an alarming
increase in serious rail incidents involving fatalities, injuries, damage to the
environment and economic losses...." http://www.safety-council.org/news/media/
letters/2007/May28-railway.html.
14 For example, the submission from the Teamsters Canada Rail Conference,
Provincial Legislative Board of Ontario to the Railway Safety Act Review Panel,
August 2007, states " It is felt that the majority of railway employees in Ontario
as well as management in some cases, are at a loss as to how safety management
systems work." http://www.tc.gc.ca/tcss/RSA_Review-Examen_LSF/Submissions-
Soumissions/TCRC-ON.pdf
15 "Federal Environment Minister Stephane Dion must state clearly that Canadian
National Railroad Company - a federally regulated corporation - will be
prosecuted to the full extent of the law. Perhaps then Canadian National Railroad
Company will not be so blase about its responsibilities to clean up these water
bodies and prevent future spills." Sierra Club of Canada News Release, Tuesday,
August 9, 2005.
16 Compliance and Enforcement Policy for the Habitat Protection and Pollution
Provisions of the Federal Fisheries Act http://www.ec.gc.ca/ele-ale/default.
asp?lang=En&n=D6765D33-l.
17 CEC Crossing the Border: Opportunities to Improve Tracking of Transboundary
Hazardous Waste Shipments in North America OCTOBER 2005 The objective of this
report is to describe the current hazardous waste information tracking procedures
and systems used by each of the North American Free Trade Agreement (NAFTA)
countries for transboundary hazardous waste shipments and to recommend ways
to improve cooperation within North America on the trans- boundary tracking of
these wastes.
18 In December 2006, the Minister of Transport announced the Railway Safety Act
Review, undertaken by an independent four-member panel that does not include
any rail union representative: http://www.tc.gc.ca/tcss/RSA_Review-Examen_LSF/
toe e.htm.
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272 Eighth International Conference on Environmental Compliance and Enforcement 2008
19 The Parliamentary Standing Committee on Transport, Infrastructure and
Communities (TRAN) began its study of Rail safety in Canada in October 2006,
two months before the Minister of Transport's panel was appointed. There has
been little coordination of these two parallel investigations,. The chair of the TRAN
Committee expressed his view that: "I would be hopeful that before the minister
takes final action on the panel's recommendations, he would come before this
committee so that we can complete our report and make any comments that we
wish to make." http://cmte.parl.gc.ca/cmte/CommitteeHome.aspx?Lang=l&PARLS
ES=392&JNT=0&SELID=e22_.l&COM=13202&STAC=2238700.
20 A review of Alberta's Environmental and Emergency Response Capacity, Learning
the Lessons and Building Change, Report of the Alberta Environmental Protection
Commission, (Alberta Environment, 2006, Edmonton) www.environment.gov.ab.ca
21 Transportation Safety Board of Canada Railway Investigation Report RO5E0059
Derailment Canadian National Freight Train M303351-03, Mile 49.4 Edson
Subdivision, Wabamun, Alberta 03 August 2005, http://www.Transportation Safety
Board .gc.ca/en/reports/rail/2005/r05e0059/r05e0059.index.asp; Transportation
Safety Board of Canada Railway Investigation Report Number R05V014105 August
2005 — Derailment, Canadian National Freight Train No. A47151-05, Mile 56.6,
Squamish Subdivision, Garibaldi, British Columbia, http://www.Transportation
Safety Board .gc.ca/en/reports/rail/2005/r05v0141/r05v0141.asp.
5 BIBLIOGRAPHY
"Canadian National Railroad Company operating unsafely: Ottawa", Edmonton
Journal, March 1, 2006
Mark S Winfield (2007). Governance and the Environment in Canada From
Regulatory Renaissance to "Smart Regulation". Journal of Environmental Law
and Practice, 17(2), 69-83.
DeMarco, Jerry V., Vigod, Toby. (2007). Smarter Regulation: The Case for
Enforcement and Transparency. Journal of Environmental Law and
Practice, 17(2), 85-113.
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Hayes, Porteous & Zhou 273
TECHNOLOGICAL DEVELOPMENTS FOR ENVIRONMENTAL
MONITORING
HAYES, LADSON1, PORTEOUS, GRAHAM2 and ZHOU, TAO3
1 Director, Advanced Computer Engineering Laboratory, Electronic Engineering and
Physics, University of Dundee, Perth Road, DD1 4HN Dundee, United Kingdom.
l.w.b.hayes@dundee.ac.uk
2 Director, Aberdeen Technical Services, Raik Road 6A, AB11 5QL Aberdeen, United
Kingdom, graham@aberdeentechnical.co.uk
3 Knowledge Transfer Associate, Electronic Engineering and Physics, University of
Dundee, Perth Road, DD1 4HN Dundee, United Kingdom, t.zhou@dundee.ac.uk
SUMMARY
New software and digital hardware technologies combined with the utilisation of
Ethernet, the Internet Protocol, and wireless mesh based networks provides the
opportunity for monitoring activity at almost any location in the world from any
other location in the world. The essential limitation is the availability of power at
the location to be monitored, and not the communications infrastructure that might
be present there.
This paper considers the promise and applicability of the use of recent video
technologies for deterrence and evidence gathering of environmental compliance,
from the perspective of in house experience. The central theme of this perspective
is that intelligent approaches to the gathering of video data are essential in order to
avoid being swamped with data that may not merit analysis or storage.
1 DETERRENT EFFECT OF ENVIRONMENTAL MONITORING FOR
ENFORCEMENT
Automated video monitoring represents a source of environmental intelligence,
allowing the collection of statistical descriptors of salient events, and improved
utilisation of resources. The availability of such data may contribute to the
strengthening of enforcement systems, but the premise of this paper is that the video
monitoring process will have an important contribution to make to deterrence.
A review of empirical research on the effectiveness of monitoring and enforcement
of environmental policy in deterring individuals and firms from violating
environmental laws or achieving an improved level of environmental performance
is presented by Cohen.1 Studies reported by Cohen show that increased government
monitoring and increased enforcement activities resulted in reduced pollution and/
or increased compliance with existing laws. Cohen alludes to the limitation of the
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274 Eighth International Conference on Environmental Compliance and Enforcement 2008
performance measures used in environmental deterrence research investigated in
that most performance measures used were self-reported. Further, Cohen notes
that a finding that increased monitoring leads to increased compliance does not tell
us if the marginal cost of increased monitoring is out-weighed by the benefits of
increased compliance.
This paper outlines recent technological developments that facilitate the routine
gathering of video data for environmental monitoring purposes. These developments
are timely because the cost reductions now afforded to the gathering and analysis of
the data may enable the routine use of video data as deterrence.
2 TECHNOLOGICAL ADVANCES IN VIDEO MONITORING
2.1 Remote Video Monitoring
Remote video monitoring is an enabling ability, which allows monitoring agents
to manage and view data from an entire network of video devices from a remote
location, quite possibly substantially removed from the site. This is a significant
step beyond local alarm monitoring and event management because it allows the
observers to be quite removed from the focus of interest, while providing live or
archival coverage and visual confirmation of an incident or event.
Detracting from video monitoring, remote or local, are the issues of having to deal
with overwhelming quantities of data and the often mind-numbing monitoring staff
must perform. Technological developments, largely associated with the availability
of inexpensive video acquisition systems and cheap processing of the data that they
produce, now allow for the routine 'intelligent' processing of multiple video streams
without operator intervention, identifying and recording incidents and events.
2.2 Intelligent Video Monitoring
Intelligent video monitoring embraces the automation of much of the monitoring
activity and the archival of only those incidents identified to be of interest. The
monitoring activity is intelligent and automatic, intervention being required only for
those incidents that may not be classified by the automated process. The available
technology is not yet flawless, with some incidents being missed altogether, or
producing false-positive, and indeterminate results. In many situations this sub-
optimal performance of automated systems is obviously a problem, but in a climate
of deterrence, inevitable failings of the system are not a show-stopper.
The contention in this paper is that automated video analysis technology is now
sufficiently mature to deliver real value in some environmental compliance
applications. Where enforcement and legislative procedure require, human
judgement can be bought to those instances where the automated system is
inadequate. An important idea here is that the application of this human judgement
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Hayes, Porteous & Zhou 275
is facilitated by the automated system being able to highlight incidents and events
of interest or uncertainty.
Attitudes are evolving as awareness about the benefits within the limitations of the
available technology builds. The extreme view was that it was assumed that video
technology could be used to replace staff, but this is true only in the sense that there
are limits to the number of cameras/video streams a human can reasonably monitor.
There are limits on a computer's ability to discern successfully real incidents from
benign changes in the natural environment, and in consequence, automated video
analysis technology is often used to assist operational staff with the mundane
elements of the monitoring activity. Indeed the processing algorithms are sometimes
purposely set to deliver a high rate of alerts and alarms for human decision-making.
Our experience is that it is really the role of the staff that changes. As the technology
increases human effectiveness by automating video monitoring to a larger and
larger degree, an increasing number of cameras are able to be managed effectively.
2.3 Intelligent Algorithms for Video Analysis
Intelligent video analysis is often triggered by motion detection. Motion detection
is a fairly mature technology that is often provided free, or integrated within many
video acquisition devices. The general approach to motion detection is simply to
measure the number of pixels that change between successive video frames. It is
usually possible, and sometimes a requirement, to set the level of alerting, perhaps
if 15% of the pixels change from frame to frame. A further refinement may enable
the definition of the amount by which a pixel needs to change before a 'real' change
is indicated: perhaps more than 10% of its previous value (after normalisation).
Many of the recent advances in intelligent video processing are built on complex
algorithms that identify and filter out video "noise" that presents in the form of
unimportant pixel changes. Regular motion detection has clear limitations when
used outdoors, for example when trees and bushes blowing in the wind might trigger
false alarms. There has, accordingly, been substantial development to avoid false
alarms and to produce more robust algorithms. Such algorithms sometimes rely on
the classification of shapes and objects in the field of view once a significant change
in pixels is detected. Different algorithms use different methods to differentiate
and classify shapes and objects, as appropriate for particular applications. The
classification in turns leads to the possibility of developing a profile of the normal
behaviour of the object, and an alert may be generated or recording is commenced
only when the behaviour of the object departs from the normal profile. Indeed
much of the effort in setting up an intelligent system for the automated analysis of
video is in developing an appropriate profile of the object(s) of interest.
Through the use of profiling software, monitoring agencies are able to more easily
track unexpected and questionable activities. Output may take the form of reports
ranging from a count of the number of incidents in a time-period through to assisted
retrieval - perhaps in the form of a web link - of all incidents in chronological order.
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276 Eighth International Conference on Environmental Compliance and Enforcement 2008
Historically, incidents would require to be observed in real-time by personnel
monitoring the video feeds. The important distinction is that measurements and
statistics may now be obtained without operator intervention.
More than the availability of inexpensive video cameras, the recent drop in prices
of pan-tilt-zoom -capable cameras has made pan-tilt-zoom functionality more
commonly available, pan-tilt-zoom functionality increases possibilities for the
intelligent automated analysis of incidents as pan-tilt-zoom (and static 360° cameras)
may be programmed to automatically zoom in and follow a particular object once it
has been detected. Algorithms have been developed that will latch on to an object
and follow the object through complex environments. In instances of cross-over
and temporary obscuration of the object algorithms are available to predict where
the object will be, and in the event that the object does not reappear as anticipated,
to back off and look for the object in the wider scene.
2.4 Management
Instead of disparate video monitoring systems, which are monitored locally, a
remote monitoring network may be configured to support a wide-area monitoring
facility. The data store, or data stores, may be linked to a management network
to provide functional requirements such as simultaneous multi-site monitoring
and the retention of archival data, video recording and playback, bi-directional
communication (e.g. pan-tilt-zoom commands) and the distribution of real time
video to local agencies, as required.
If an alarm is generated, a video image of the site location may be automatically
routed to a monitoring agent. Monitoring agents may then visually confirm the
nature of the alarm and alert local agencies following verification. The significant
change from what has gone before is that the monitoring agent is now concerned
only with incident verification, without the requirement for continuously monitoring
the video sources.
2.5 Reporting
Real-time analysis enables an alarm and a response, as deployed in traditional
CCTV networks. However there is also analysis that monitors the environment
over days or months, such as, for example, animal counting, fish catches, bird
nests, movement pattern analysis, duration of activities and waiting times between
activities, etc. The output may be presented in report form, and not necessarily as
video data although this may be retained for evidential use.
In addition to statistical summaries generated daily, weekly or monthly, reports may
contain web hyperlinks to video and still images providing visual documentation
of events captured. Weekly summaries of an activity at a particular location may
be sent by e-mail.
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Hayes, Porteous & Zhou 277
2.6 Smart Cameras
Modern video cameras feature monitoring enhancements such as megapixel image
quality, built-in motion detection, alarm management, web-enabled controls, and
encryption for secure communication. A more recent trend is to run the video
analysis on the video acquisition device itself, with the advantage that the entire
video stream does not require transmission over the network for processing, with
only significant events being sent over the network for storage.
These 'smart cameras' perform the video processing directly inside the camera to
create an all-in-one embedded device.2
3 CONCLUSION
Early adopters of the intelligent video technology were big enterprises and high-
risk environments such as governments and transportation, particularly airports.
There was also significant uptake in the banking sector, where security issues are a
particular consideration.
As the use of video for monitoring grows and matures, intelligent video analysis
will become routine and may even be bundled into cameras as an integral part
of their operations. Where an extensive network, of video cameras already exists,
these are able to be added to an intelligent processing network for less than the cost
of purchase and installation of replacement systems.
Intelligent video analysis will facilitate the audits of large-scale, 24/7 monitoring
operations, contributing to both deterrence and evidence gathering in
environmentally sensitive locations. As such, intelligent video analysis has an
important contribution to make to the monitoring of environmental compliance.
4 REFERENCES
1 Cohen, M.A., Empirical Research on the Deterrent Effect of Environmental
Monitoring and Enforcement, Environmental Law Reporter, 30, pp. 10245-10252
(2000).
2 National Instuments, National Instruments Smart Cameras, available at http://
www.ni.com/vision/smartcamera.htm (2008).
5 BIBLIOGRAPHY
Harwood, E., Digital CCTV: A Security Professional's Guide, Butterworth
Heinemann, 272p. (2008).
Cieszynski, J., Closed Circuit Television, 3E, Newnes, 336p. (2006).
Kruegle, H., CCTV Surveillance: Video Practices and Technology, 2E, Butterworth-
Heinemann, 672p. (2006).
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278 Eighth International Conference on Environmental Compliance and Enforcement 2008
Damjanovski, V., CCTV: Networking and Digital Technology, 2E, Butterworth-
Heinemann, 584p. (2005).
Goold, B. J., CCTV and Policing: Public Area Surveillance and Police Practices in
Britain, OUP, 264p. (2004).
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Lankhorst 279
INTERVENTION STRATEGY
LANKHORST, HESTER KLEIN1
1 Head of the Policy and Strategy Department, Ministry of Housing, Spatial Planning
and the Environment, VROM Intelligence and Investigation Service, St. Jacobsstraat
135,3511BP Utrecht, The Netherlands, hester.kleinlankhorst@minvrom.nl.
SUMMARY
The Intervention Strategy is a method for getting the most effective and efficient
mix of instruments for attaining compliance. In this strategy, criminal investigation
is not considered as a separate or extra instrument, but as an integrated part of the
mix. When gathering this mix of instruments, one has to take into consideration the
specific circumstances that apply to the case. This way the purpose of the regulation
can be attained at minimum costs.
1 INTRODUCTION
"Think before acting" is the underlying idea of what is referred to by the Dutch
Inspectorate of the Ministry of Housing, Spatial Planning and the Environment
(the Inspectorate) as the "Intervention Strategy."1 This article will first generally
review this strategy. Second, two practical examples are addressed, extracted from
experience of the VROM Intelligence and Investigation Service, which is part of the
Inspectorate.
2 THE INTERVENTION STRATEGY OF THE INSPECTORATE
The Intervention Strategy consists of a systematic approach for attaining maximum
compliance. Through this approach, one can obtain the maximum effect in achieving
the purpose of government policy with the most limited costs. These costs can be
both material and immaterial. The Intervention Strategy is part of the Compliance
Strategy, in which the focus is on "doing the right things" (i.e., setting the right
priorities). Given these priorities, the Intervention Strategy gives an answer to the
question how to do the things right, achieve the purpose of the regulation, and
achieve maximum compliance at limited costs.
The objective of the Inspectorate is that relevant addressees follow the policy,
rules, and regulations of the Ministry. The safety and sustainability of the Dutch
society - and also of other societies that accept Dutch exports (such as waste) - is
best protected when compliance is widespread. Consequently, one must attempt to
alter the attitude of the potential offender.
The Intervention Strategy focuses on developing the most effective approach
to increase compliance, including reaching this goal with limited material and
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immaterial costs. How can one get the optimum of interventions? The selection
within the instruments of the Inspection, (i.e., enforcement or criminal investigation)
depends on the statuary regulation, the nature of the problem, the purposes in
mind, and the typification of the addressees. One has to remember that there is
not an ideal mix of interventions in all cases, but it is dependent on the different
circumstances. Nevertheless, one could define a strategy of a few steps that should
lead to this ideal mix.
When the problem is identified, one has to determine the target group. Common
specifics need to be determined, such as the number of companies within the sector,
the average company size, the financial perspective, and the (non-)existence of an
influential association within the sector.
To find out how the target group is composed, one has to analyse the group
and find out the motives for non-compliance. This is done in a systematic way,
by what is called a Til-test.2 This test is a model based on behavioural sciences,
consisting of eleven dimensions. Together, these dimensions are decisive for the
level of compliance with legislation. The eleven dimensions are formulated with
a view to as high a practicability as possible in the fields of policy-making and law
enforcement. The dimensions include the knowledge of the rules, economic profit
of non-compliance, acceptance of the rules, and chance to get caught. In expert
sessions the dimensions are scored. This makes the Til-test an excellent instrument
to find out what motives there exist for non-compliance.
With this study one has identified the characteristic behaviour of the sector. We
make a difference between the "not-knowing," the "unable," and the "unwilling."
Table 1 shows how these groups can be linked to different interventions. Those who
are not aware that they are in non-compliance can be helped by informing them
about the legislation (on the other hand, a large group of unknowing compliers can
be an indication for superfluous regulation). Those who know about the legislation,
but do not know how to cope, can be assisted in the process through what is known
simply as "compliance assistance." Those who do not want to comply (intentionally
breaking the law) are the people we focus on with enforcement actions and criminal
investigation.
This is a general approach that can be applied to every target group, but it will have
different results every time, because of its varying input. The unique point in the
strategy is that it takes all kinds of possible interventions together in one coherent
approach, without giving more importance to one or another intervention, and
focuses on the result that is to be achieved.
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Table 1: The Different Interventions Linked to the Specific Circumstances
"^\_
Inclined
to comply
Inclined
to break
Not knowing
A
Informing
Pointing out
B
Informing combined
with enforcement
Unable
C
Facilitate
Pointing out
D
Facilitate combined
with enforcement
Unwilling
E
Rewarding or
"seducing"
F
Scaring of by more
stringent inspections,
controls or sanctions.
THE INTERVENTION STRATEGY IN PRACTICE
Since 2007, the VROM Intelligence and Investigation Service, as part of this
Inspectorate, has been working with the Intervention Strategy. In general, it is noted
that criminal investigation is a very expensive and time-consuming instrument; so
applying the Intervention Strategy can be very rewarding. Two examples of how
the strategy was applied by the VROM Intelligence and Investigation Service are
shown below.
3.1 Example One: Soil Regulation
In 2007, the Inspectorate started with an Intervention Strategy on soil regulation.
This regulation was just renewed. It was recognized that the old regulation was
diverse, difficult to understand, and easy to ignore. To improve the knowledge of
the new soil regulation, the policymakers focused on communication, including the
use of workshops (corresponding to phase A and probably B in Table 1).
Too many companies were not able to comply with the old regulations; this was one
of the reasons why the policymakers were willing to change the rules (corresponding
to phases C and D in Table 1). An aspect of the new regulation is the necessity
of having a certificate and a permit for dealing with soil. Thus, in this phase the
companies with a certificate are aware of and able to comply with the regulation.
Next, is phases E and F in Table 1. The succeeding step is an "enforcement week" that
is held with the whole Inspectorate. In this week, a lot of companies will be visited
and evaluated. When an offence of the law is spotted, the inspector will decide
whether it is necessary to issue a sanction, do more inspection in the future, or even
start a criminal investigation. Additionally, regional teams with administrative
inspectors and criminal investigators are active. In these teams, crucial information
is shared and it is decided whether the sanction should be administrative or criminal.
Only when there are serious environmental offences with a national or international
impact a criminal investigation will be started, being the most expensive and most
time-consuming instrument.
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3.2 Example Two
The Intervention Strategy has also applied to another sector with a structural
problem with non-compliance of environmental law, which must not be identified
to allow the most effective implementation of the Strategy. Following the initial
execution of the Strategy, a large amount of information on a great part of the
market was gathered and analyzed. After understanding the ways and motives
of non-compliance, the most effective and efficient instruments were chosen. It
appeared that the offending companies had to be categorised in section F of Table 1.
As a result of the Intervention Strategy, the following actions were set-up:
(1) policymakers needed to strengthen policies and regulations; (2) cooperation with
foreign countries needed to be established where inspection and administrative
enforcement activities could be implemented; and (3) transporters needed to be asked
in writing whether they were aware of the fact that they might be carrying illegal
merchandise. Additionally, companies in the sector, among them the companies
involved in the illegal trade, will be advised to abandon any legal activity. If non-
compliance sustains, companies will loose their permit and/or criminal investigation
will be set up.
4 CONCLUSION
Utilization of the Intervention Strategy is an effective and efficient way of
implementing the policy of the Minister, resulting in increasing compliance and
improving the environment. If one "thinks before acting" the problem of non-
compliance will be easier to solve and the purposes of the regulation will be reached
at minimum costs. An integrated approach is an essential part of this strategy and
no other superior instruments exist.
5 REFERENCES
1 This article is partly based on the base-document of the Intervention strategy of the
Inspectorate of the Ministry of Housing, Spatial Planning and the Environment.
2 More information about this instrument can be found using the following web
link: http://www.sam.gov.lv/images/modules/items/PDF/item_618_NL_The_table
_of_Eleven.pdf.
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DOING THE RIGHT THINGS: A STEP-BY-STEP GUIDANCE FOR PLANNING
OF ENVIRONMENTAL INSPECTIONS
LIEBREGTS, TONY M.1 and KRAMERS, ROB2
1 Project Manager, Netherlands Inspectorate for Housing, Spatial Planning and
the Environment (VROM), P.O.Box 29036 , 3001 GA Rotterdam, tony.liebregts®
minvrom.nl.
2 Senior Environmental Advisor, InfoMil, P.O. Box 30732, 2500 GS The Hague,
kramers@informil.nl.
SUMMARY
The European Union's Recommendation on Minimum Criteria for Environmental
Inspections encourages Member States to enhance their current environmental
inspection activities. This includes implementing advanced planning. Practitioners
in the EU expressed the need for guidance to help the implementation of the minimum
criteria on planning in the Recommendation on Minimum Criteria for Environmental
Inspections. A step-by-step guidance book for planning environmental inspections
was produced for that purpose. The guidance book describes in detail the steps that
have to be taken to successfully develop an inspection plan and the elements that
the inspection plan should cover.
1 INTRODUCTION
In 2001, the European Commission adopted the Recommendation on Minimum
Criteria for Environmental Inspections, which was aimed at encouraging Member
States to improve the quality of their inspection activities. The purpose of the
Recommendation on Minimum Criteria for Environmental Inspections is to
strengthen compliance with, and to contribute to a more consistent implementation
and enforcement of, environmental law in all EU Member States.
The Recommendation on Minimum Criteria for Environmental Inspections
establishes criteria for environmental inspections of installations and other
enterprises/facilities whose air emissions, water discharges or waste disposal or
recovery activities are subject to authorisation, permit or licensing requirements
under Community law. These are also known as "controlled installations." All
inspecting authorities in the EU Member States should apply these criteria.
The planning of inspection activities is a key requirement of the Recommendation
on Minimum Criteria for Environmental Inspections. Planning defines and explains
the work a Member State is about to implement, so that the country can perform in
an effective, efficient, transparent, and accountable way. The Recommendation on
Minimum Criteria for Environmental Inspections is currently being reviewed by
the European Commission.
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2 DOING THE RIGHT THINGS
The EU Network for the Implementation and Enforcement of Environmental Law
is an informal network of the environmental authorities of the EU Member States.
Under the project title "Doing the right things," the Netherlands (Inspectorate for
Housing, Spatial Planning, and Environment) developed a step-by-step guidance
book for planning of environmental inspections within the Implementation and
Enforcement of Environmental Law network. This guidance book was developed
to support inspecting authorities in carrying out that difficult task. It helps to pose
the right questions and suggests ways for finding the right answers.
The guidance book is based on the concept of the Environmental Inspection Cycle,
which consists out of the following seven steps:
1. Describing the context
2. Setting priorities
3. Defining objectives and strategies
4. Planning and review
5. Execution framework
6. Execution and reporting
7. Performance monitoring
In general the Environmental Inspection Cycle (see figure 1) can be described as
follow.
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285
3. Execution and
Reporting
2.1 Describing the Context
The first step in this cyclic process is "describing the context" (box la in figure 1).
During this stage, the inspecting authority evaluates its statutory tasks. This part
sets the scope of the inspection plan; in addition, it is necessary to gather information
for performing the risk assessment as part of the next step.
2.2 Setting Priorities
The second step is "setting priorities" (box Ib in figure 1). This step starts with a
risk assessment that will result in a list of installations or activities that are ranked
and classified. Priorities are also established in this set. In other words, items that
will get the necessary attention (and how much) are determined.
2.3 Defining Objectives and Strategies
The third step is "defining objectives and strategies" (box Ic in figure 1). Within
this step, the inspecting authority identifies inspection objectives and targets. These
objectives and targets can be presented quantitatively and/or qualitatively. When it
is clear what is to be achieved, one can define or modify the inspection strategies in
order to meet these objectives and targets.
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2.4 Planning and Review
The fourth step is "planning and review" (box Id in figure 1). The inspection plan
is developed at this stage. The inspection plan covers a defined time period and
describes and explains the steps taken in boxes la, Ib, and Ic. Part of the inspection
plan is an inspection schedule, which may stand as a working annex to the inspection
plan, or as a separate document referenced within the inspection plan.
2.5 Execution Framework
The fifth step is "execution framework" (box 2 in figure 1). Before inspections
can be executed, one has to make sure that all necessary conditions are met. The
appropriate working procedures and instructions, powers and competences, and
equipment should be in place.
2.6 Execution and Reporting
The sixth step is "execution and reporting" (box 3 in figure 1). In this step the
inspection work is done. The routine and non-routine inspections are executed and
reports of findings are written. Data on the inspections that are carried out, and the
outcomes and follow-up should be stored in a good accessible database.
2.7 Performance Monitoring
The seventh step of the process is "performance monitoring" (box 4 in figure 1). To
ensure that the objectives and targets have been reached, the output (were the planned
activities carried out?) and the outcome (what were the effects of our activities?)
must be monitored. This information will then be used for reviewing the plans
and for reporting to different stakeholders, for instance the minister responsible,
parliament, the general public, the European Commission, and more.
2.8 Following Completion of All Seven Steps
After completion of the seventh step (Performance monitoring), inspectors should
return to step four (Planning and review). Based upon the monitoring results, along
with possible changes in step one (describing the context), the inspection plan (and
schedule) will be reviewed and possibly be revised.
The first four steps of the Environmental Inspection Cycle form the "Planning
Cycle" (see figurel). The output of the Planning Cycle is the "Inspection Plan."
As a result, in order to develop the inspection plan, the inspecting authority has to
first identify the relevant activities that should be covered by the inspection plan
and gather information on these activities. With this information, the inspecting
authority can perform an assessment of the risks of the identified activities and
assign priorities to these activities. Typical criteria that are taken into account when
setting priorities are environmental impact, compliance record, legal obligations
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Liebregts & Kramers 287
to inspect, national policies, and objectives and available resources. The priorities
indicate what activities should get the highest attention. A folio wing step is to define
measurable inspection objectives and targets for the activities to be inspected, and
to choose the best inspection strategy to accomplish these targets.
All steps contribute to the inspection plan. The inspection plan clearly indicates the
time period and area it covers. An inspection plan outlines the context in which
the inspecting authority performs its inspections. It describes the mission and
objectives of the inspecting authority, its statutory tasks and inspection obligations
and (national) policies to be implemented. Further, the inspection plan gives an
overview of the priorities that have been assigned and explains why and how these
priorities were set. The plan also gives general information on inspection targets,
strategies, procedures, and the planned inspection activities themselves. The
inspection schedule describes what, where, when and by whom the different types
of inspection activities will be executed. The inspection plan and the inspection
schedule need to be reviewed and - when appropriate - revised periodically.
3 IMPLEMENTATION OF THE GUIDANCE BOOK
The outcome so far of the project "Doing the right things" was not only the step-
by-step guidance book, but the recommendations from the EU Member States
that emphasised that the use of the guidance book should be further promoted
and supported. During the biannual plenary meeting of Implementation and
Enforcement of Environmental Law in Lisbon, November 2007, the network decided
that (under the same project name, "Doing the right things") the implementation of
the guidance book in the EU Member States will also be facilitated. This succeeding
project will aim at supporting the Member States in 2008 with providing training
sessions and an electronic tool. Further, in 2009 the execution of an enhanced
support programme will occur.
The guidance book can be downloaded from the Implementation and Enforcement
of Environmental Law website http://ec.europa.eu/environment/impel/index.htm.
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SAMPLE CHAIN OF CUSTODY
LUBIENIECKI JR, GENE
Program Coordinator, United States Environmental Protection Agency, Office
of Enforcement and Compliance Assurance (OECA), National Enforcement
Investigations Center, Bldg 25 DFC, PO Box 25227, Denver, Colorado 80227 USA,
(lubieniecki.gene@epa.gov)
SUMMARY
Evidence management chain of custody is a process designed to protect the
integrity of evidence and defend against allegations that evidence was tampered
with or otherwise compromised. The integrity of evidence is maintained through
proper handling and is supported through documentation. Chain of custody
documents the linkage of events from the time the evidence is collected, through
when the evidence (or the data derived from it) becomes part of the record in legal
proceedings, to the time of ultimate evidence disposal. A chain of custody record is
maintained to provide a history of physical evidence transfer.
Proper chain of custody procedures are not only part of accepted "good practices"
for enforcement case management; they are also extremely important in cases where
the defense attempts to show "reasonable doubt" based on questions regarding the
integrity of the evidentiary samples.
Obviously, chain of custody records may be very simple if only one or two individuals
are involved with all aspects of sample management, or very complex if numerous
individuals and/or organizations are involved with the sample. While this paper
describes a fairly elaborate and prescriptive set of chain of custody procedures
(including use of sample tags, logbook entries, etc.), one must keep in mind that the
primary objective of chain of custody is simply to be able to control and account for
access to the evidentiary samples, from the time that the samples are obtained until
the case is closed and the samples are properly disposed of.
1 PROCEDURE
1.1 General
Written chain of custody records of samples of liquids, gases or solids track the
samples from collection, delivery to the laboratory, and through analysis and
disposal. Samples are kept under custody until the samples are no longer needed
for evidentiary purposes.
A sample is in custody if:
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• it is in the possession or control of a person with sample handling responsibilities.
These persons are most likely the sample collectors or laboratory analysts;
• while in the custody of designated enforcement personnel, it is secured in a
container in an appropriate location, such, as a locked vehicle or hotel room, or
within a secured facility such as the laboratory; and/or
• it is sealed within a container during storage, shipping or transport under the
direction of enforcement personnel.
The records relating to the samples must show the current location of the evidence
and identify the individuals who previous handled the evidence. To simplify the
custody chronicle, as few people as possible should have custody of the samples
during the investigation.
1.2 Sample Custody in the Field
Field personnel are responsible for the custody of samples from the time the
samples are collected until the samples are relinquished, usually to a laboratory
representative. After a sample is collected in the field:
• Information about the appearance, physical characteristics, method of collection,
type and number of sample containers, and the name(s) of the sampler(s) is
recorded in a field logbook. Any specific treatment of the samples, such as icing
or adding preservatives, must also be documented in the field logbook.
• Each sample and the source of the sample are photographed.
• Each sample is identified with a uniquely numbered sample tag or label indicating
the sample/station number, the case name, date and time of the sample collection,
and the signature(s) of the sampler(s). Figure 1 is an example of a sample tag.
Sample tag information should be completed using a pen or marker with waterproof,
non-erasable ink. The sample container should be placed into a tamper-evident bag
or sealed with a tamper-evident custody seal. Figure 2 is an example of a labeled
sample jar with sample tag and evidence bag. When using a tape type tamper-
evident seal, the initials of the person securing the container and the date that it was
secured must be recorded on the seal. At this time, samples are kept in the control
of field personnel, either in their possession or view, or secured in locked containers
(such as modified ice chests).
Sample tag information should be checked against the field notes in the field
logbook. Once the field team member is satisfied that the sample information is
correct, this information is transcribed to the Chain of Custody Record. Figure 3
shows an example of a completed Chain of Custody Record. Unique information
about a sample should be written in the "Remarks" section on the Chain of Custody
Record.
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A copy of the Chain of Custody Record should be placed with the samples in the
sampling shipping container and must accompany the samples when they are
shipped (the Chain of Custody Record has multiply duplicate pages). The samples
should be transported and stored in locked containers until the samples are
transferred to the receiving laboratory.
When shipping samples by commercial carrier:
• The sampler/shipper must make sure that proper shipping requirements,
appropriate for the type of sample shipped and the means of transportation, are
satisfied.
• If applicable, record the "air/freight bill" number on the Chain of Custody
Record.
• Ship the locked or otherwise sealed outer container with the original of the Chain
of Custody Record inside. Each sealed outer container should have a Chain of
Custody Record within it that has the information applicable for the samples
shipped within that container.
• Keep the copy of the Chain of Custody Record in the project leader's project files
along with a copy of the air/freight bill (if available).
2 TRANSFER OF SAMPLES AND SAMPLE CUSTODY
When transferring custody of the samples, the person(s) relinquishing the samples
as well as the person(s) receiving them, must sign, date, and note the time on the
Chain of Custody Record(s). Upon receipt of the samples, any abnormalities or
departures from normal or specified conditions should be recorded on the Chain
of Custody Record and/or in the principal analytical chemist's laboratory logbook.
The project leader should retain the copy of the Chain of Custody Record.
2.1 Sample Custody in the Laboratory
Laboratory personnel are responsible for the custody of samples from the time
the samples are received into the laboratory until the samples are authorized for
disposal/release.
Upon sample receipt, the laboratory personnel will;
• compare and verify sample information against the Chain of Custody Record;
• note any discrepancies with the samples or sample tag information, if present,
on the Chain of Custody Record. If a longer explanation is needed, then record
additional information in the analysts' laboratory notebook;
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• sign and date the Chain of Custody Record;
• note and record the description and condition of the shipping container;
• note and record the description of the sample containers;
• note environmental conditions (ice, etc.), if applicable;
• note any inappropriate shipping conditions of the samples such as, improper
segregation, improper use of preservatives, tamper evident tape issues, etc.;
• retain any shipping records in project file if samples were shipped by common
carrier;
• secure samples in the appropriate area, either a locked cabinet, locked refrigerator
with limited access, locked cart in the laboratory, or locked container in a
refrigerator;
• use reset-able combination locks or tamper-evident seals to limit access to
samples.
When destructive tests are performed, procedures must ensure that as much material
as possible is retained for possible re-analysis. Procedures for any sub-sampling
must ensure that sample integrity is maintained. Prior to examination/analysis,
the samples must be protected from loss, cross transfer, contamination, and/or
deleterious change. Samples must be in the custody of the analyst/examiner at all
times. Samples must be secured when they are out of sight of the analyst/examiner.
When samples must be stored under specified environmental conditions, these
conditions will be maintained, monitored, and recorded. Samples are segregated
according to sample type and on the basis of any information available from field
screening or process knowledge in order to protect sample integrity and assure
chemical compatibility.
The project's principal analytical chemist is responsible for custody of the samples
while in the laboratory. This responsibility includes collecting the records generated
during the analysis of those samples, which must show who handled the samples
and when.
3 LONG TERM STORAGE OF SAMPLES
Samples, or empty sample containers, are retained until the case has been closed
and/or the samples are no longer needed for evidence in the case. These samples are
then properly disposed. While in storage awaiting disposal, the samples must be
secured in an appropriate ice chest or container with the following considerations:
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Lubieniecki 293
• Samples are normally secured in their original sample containers; if the original
container is broken, a new container is obtained. The individual containers and/
or the outer container should have tamper-evident seals. The seals must either
have a unique identifier or when using a tape-type seal, contain the initials of the
person securing the container and the date that it was secured
• The outer container is marked with any appropriate hazard information (such as
flammable).
• A copy of the analytical report is placed in a clear, plastic folder and taped to the
top of the container.
• Samples are retained until official notification that they can be released.
If at any time, it is determined by the principal analytical chemist or other personnel
that it is unsafe to continue to store a particular sample, that sample may be properly
disposed. Some examples of these types of materials are elemental phosphorous,
chlorine gas in corroding gas cylinders, and unstable explosives such as lead azide
or picric acid.
4 DISPOSAL OF SAMPLES
When the samples are no longer needed for case evidence (normally when a case is
closed), the samples are packed as required and shipped for disposal according to
any applicable regulations. The disposal of the samples is documented, with all of
the other Chain of Custody Records, in the permanent case file.
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Figure 1: Example Sample Tag
Figure 2 - Labeled Sample Container with Tag and Evidence Bag
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295
Figure 3: Example Completed Sample Chain of Custody Record
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ELECTRONIC EVIDENCE MANAGEMENT
LUBIENIECKI JR, GENE
Program Coordinator, United States Environmental Protection Agency, Office
of Enforcement and Compliance Assurance (OECA), National Enforcement
Investigations Center (NEIC), Bldg 25 DFC, PO Box 25227, Denver, Colorado 80227
USA, (lubieniecki.gene@epa.gov)
SUMMARY
Evidence management is a process designed to protect the integrity of evidence
and defend against allegations that evidence was tampered with or otherwise
compromised. The integrity of evidence is maintained through proper handling
and is supported through documentation.
Environmental enforcement personnel may collect computerized electronic
information as evidence during criminal search warrants or civil compliance
monitoring investigations. This paper introduces some standard procedures to
protect and document the integrity of electronic evidence.
1 PROCEDURE
The integrity of electronic evidence is maintained by proper handling and
appropriate documentation. The custody of this type of evidence is tracked from
collection through analysis and final disposition. The following are some procedures
used to protect electronic evidence and document custody while being collected
and shipped.
• The project logbook (to record actions and observations relating to the
evidence).
• A label or tag, with the project number and a unique identifier (to be placed on
the evidence to uniquely identify that evidence).
• Tamper-evident material, e.g., tape, seal, bag (to seal the evidence itself, or the
outer shipping container for the evidence).
• A chain of custody record (to document the transport and receipt of the evidence
and identify the persons and carriers involved). This record contains two copies:
the original to accompany the evidence during transport, and the carbonless
copy for the team leader's project files.
• Locked shipping containers (to secure samples during shipping, using re-
settleable combination locks if available).
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• Shipping records (to document the transport of the evidence by commercial
carriers. These can include freight bills, bills of lading, Federal Express air bills,
etc.).
When transferring the possession of electronic evidence, the person relinquishing
the evidence, as well as the person accepting the evidence, will sign, date, and note
the time of transfer on the chain of custody record. Custody documentation and
shipping records will be retained as part of the project file. Employees of commercial
carriers do not have access to the evidence (through the use of locked shipping
containers) and therefore do not sign the chain of custody record.
Once the evidence arrives at the receiving facility, receipt is documented and any
abnormalities are recorded on the chain of custody record. The sealed electronic
evidence is stored in fire-resistant locked cabinets within the receiving facility.
When analyses are to be performed, the electronic evidence is removed from the
locked cabinet and restored to a hard drive on a designated computer forensics
work station. Once the data has been restored, the original evidence is returned
to the locked cabinet. Actual computer forensics analysis is performed on the
copies restored from the original electronic evidence, not the original evidence. To
document the restoration process and maintain the link between the electronic copies
to the original evidence, information concerning the restoration process (such as the
person restoring, date, time, media stored on, etc.) is recorded in a bound project
logbook or on bench sheets that become part of the permanent project file.
2 ELECTRONIC EVIDENCE LONG-TERM STORAGE AND FINAL
DISPOSITION
After the restoration process and analyses are complete, the electronic evidence
(both original and restored), including hard drives, tapes, and other electronic media
will be re-sealed with a custody seal or stored in evidence bags. The evidence will
be transferred to long-term secure storage. The evidence will remain sealed until a
formal request is made for either further analysis or final disposition (in accordance
with any particular organization's specific procedures).
When the case is closed, a copy of the original electronic evidence is copied on
alternative media (currently DVDs) and retained in the permanent case file. Other
copies of electronic evidence may also be transferred after receipt of a request,
(verbal or written). The request for transfer of the electronic evidence must contain
the date, name of requestor, and title of requestor. The request becomes part of the
project file. If the electronic data is released, a custody record must be completed by
the relinquisher and the receiver of the electronic evidence. A copy of the custody
record for the release must be kept in the project file.
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3 BIBLIOGRAPHY
Information in this paper adopted from; US Environmental Protection Agency,
Office of Enforcement and Compliance Assurance, National Enforcement
Investigations Center, Evidence Management Procedure, NEICPROC/00-059R2
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CASE STUDIES: USE OF REMOTE SENSING AND
OTHER INVESTIGATORY TECHNIQUES
LUBIENIECKI JR, GENE
Program Coordinator, United States Environmental Protection Agency, Office
of Enforcement and Compliance Assurance (OECA), National Enforcement
Investigations Center, Bldg 25 DFC, PO Box 25227, Denver, Colorado 80227 USA,
(lubieniecki.gene@epa.gov)
SUMMARY
Remote sensing is a powerful tool for monitoring the compliance status of
regulated entities and gathering evidence for enforcement case develop. Remote
sensing can involve relatively simple activities, such as visual observations, to
the use of sophisticated technologies such as satellite imagery. Obviously, the
use of remote sensing in any particular situation is dictated by numerous factors
including available technologies, resources, and time. This paper provides brief
descriptions of a variety of remote sensing techniques used in actual United States
Environmental Protection Agency (US EPA) enforcement investigations.
1 BURIED TANKER TRUCK
Background - Information was received that an 8000 gallon (approximately
30000 liter) tanker trailer containing regulated hazardous waste was buried on a
commercial property not authorized for waste disposal. Leakage of hazardous
waste from the buried tank could threaten area groundwater drinking water
supplies. There was no obvious visual evidence on the surface at the suspected
burial site indicating the specific location of the tank.
Challenge - The investigators needed to find and sample the tank safely, and as
efficiently as possible with minimal surface disruption.
Solution - Without remote sensing, parallel trenches would normally be dug until
the metal tank was located. This can be expensive, and time consuming, and may
not result in actually finding the buried item. In this case the team was able to use
several remote sensing tools to more precisely locate the suspected tank location
before digging was initiated. Aerial photography (figure 1 next page) of the area
before and after the suspected burial was used to narrow down the location of
disturbed soil and the suspected landfill site. A magnetometer (figure 2 next page)
was used to measure subsurface magnetic anomalies (figure 3 next page) in the
suspected burial area. Ground penetrating radar was used to map the relative
dielectric characteristics of subsurface materials. A Global Positioning System
was used to map and precisely record grid locations used during the magnetic
and dielectric work. The combination of information provided by these remote
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302 Eighth International Conference on Environmental Compliance and Enforcement 2008
Figure 1: Aerial Photography of Site
US EPA NEIC Criminal Case
Unpermitled landfill location
Approximately 185 feet by 500 feet
(92,500 square feet)
This aerial image dated June 1, 2001
shews the area before clearing of trees
for the landfill.
Alleged buried tanker area
Approximately 50 feet by 70 feet
(3.500 square feet)
&EFA
Figure 2 - Magnetometer
Figure 3 - Anomaly Grid Showing Probable
Tank Location
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Lubieniecki
303
sensing tools identified the specific area where the suspected tank was buried. An
excavator was then used to remove soils from the area to reveal the tank.
Outcome - The tank was rapidly found and excavated (figure 4). The individual
responsible for burial of the tank was found guilty of improper handling of
hazardous and has been incarcerated.
Figure 4 -Buried Tank
~r
2 OIL AND GAS EXPLORATION - VOLATILE ORGANIC COMPOUND
(VOC) EMISSIONS
Background - Oil and gas exploration and production results in emissions
of volatile organic compounds. When exposed to sunlight and elevated
temperatures, these compounds form ground-level ozone, a pollutant that harms
the lungs and makes breathing more difficult. Currently, with the rising costs of
energy, exploration and production of oil and gas in the western portion of the
United States is rapidly expanding. The volatile organic compound emissions
from these activities, including tanks (figure 5), surface impoundments, engines,
etc., are thought to be surpassing volatile organic compound emissions from more
traditional sources such as motor vehicles and are thought to be a significant
source of recent violations of health limits for ozone along the metropolitan area of
the Colorado Front Range. (In one Colorado County, volatile organic compound
emissions from the oil and gas industry are estimated to be 10 times greater than
those produced by vehicle traffic).
Figure 5 - Natural Gas Condensate Tank
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304 Eighth International Conference on Environmental Compliance and Enforcement 2008
Challenge - In order to identify specific emission sources, control these emissions
and determine regulatory compliance, it is necessary to be able to effectively
monitor these volatile organic compounds. Traditional monitoring for volatile
organic compounds involves use of some type of flame ionizing organic analyzer
placed in the immediate vicinity of the suspected source: a very labor and time
intensive activity. Moreover, traditional monitoring normally requires permission
of the facility owner. A more effective monitoring method was necessary.
Solution - A specialized hand- held infrared camera (figure 6), originally under
development and testing to "see" fugitive volatile organic compound emissions
from refinery components, is being used to identify the numerous volatile organic
compound sources from the oil and gas industry. The use of the camera allows
for real-time imagery of the volatile organic compound plumes which can be
digitally recorded for evidence (figures 7, 8, 9 and 10). The infrared window used
by the camera coincides with the IR absorbance of various hydrocarbons. This
absorbance of infrared energy is captured by the camera and appears as a black
or grey "smoke" in the digital images. To date, the camera has been tested by the
manufacturer for detection of numerous volatile organic compounds including,
but not limited to, ethylene, benzene, methane, toluene and xylene.
Figure 6: IR Camera
Figure 7: IR Image of Condensate Tank Volatile Organic
Compound Emissions
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Lubieniecki 305
Figure 8: Pressure Relief Valves on Gas Treatment Tank
Figure 9: Leaking Pressure Relief Valve
Figure 10: Attempt to Repair Leaking Plug
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306 Eighth International Conference on Environmental Compliance and Enforcement 2008
Outcome - The use of the infrared camera has provided evidence of excessive
emissions at various oil and gas exploration and production facilities and
numerous violations of emission control requirements at other oil and gas
facilities. As a result of this evidence, the US EPA is discussing voluntary emission
reductions with one company (not found in specific violation) and is preparing
formal enforcement action against at least one other major company. The US EPA
is also working on amended regulations to make use of the hand-held infrared
camera an alternative work practice to obtain imaging to identify the source of
volatile organic compound emissions. This should make identification and repair
of leaking components more cost effective.
3 UNPERMITTED WASTEWATER DISCHARGE
Background - An informant provided information that toxic wastewater was
being illegally discharged from a large metal plating operation. A search
warrant was served and a sump with a four inch discharge plastic pipe, allegedly
used for illegal waste plating bath disposal, was identified (figure 11). If not
handled properly, heavy metals in the spent plating baths could kill wildlife
and contaminate area drinking water supplies. Plant workers were unable (or
unwilling) to identify the discharge point of the pipe.
Figure 11: Illegal Discharge Sump
Challenge - To establish an illegal discharge, the EPA needed to identify the
location and receiving waters of the discharge. Additionally, the location of the
waste discharge was necessary to remediate any damage from toxic wastes. Visual
inspection of the area to find the discharge point was extremely difficult due to
heavy vegetation and adjacent wetlands.
Solution - The use of a smoke bomb (figure 12), sealed in the pipe entrance, failed
to reveal the discharge point (this technique had been previously successful in
other similar situations). A "bull horn" (figure 13) was finally used to send
amplified sound waves through the pipe. Investigators in the wetlands were then
able to follow the sound resonating from the discharge end of the pipe to the
discharge point, over 100 meters from entrance of the pipe, partially submerged in
a particularly heavily vegetated area.
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Lubieniecki 307
Figure 12: Smoke Bomb
Figure 13: Bull Horn
Outcome - The plant owner pleaded guilty to environmental charges. The use of
relatively simple remote sensing tools like the smoke bomb and the bull horn can
be very successful in "remotely" gathering information/evidence for compliance
investigations.
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Rosenberg, Coyne & Shepherd 309
THE U.S. ENVIRONMENTAL PROTECTION AGENCY'S
"REPORT A VIOLATION" WEBSITE
ROSENBERG, PETER1, COYNE, PATRICK2 and SHEPHERD, MATTHEW3
1 Director, Planning and Communications, Office of Criminal Enforcement, Forensics
and Training, U.S. EPA, 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460,
rosenberg.peter@epa.gov.
2 Special Agent, Criminal Investigations Division, Office of Criminal Enforcement,
Forensics and Training U.S. EPA, 1200 Pennsylvania Avenue, N.W., Washington,
D.C. 20460, coyne.patrick epa.gov.
3 Environmental Protection Specialist, Criminal Investigations Division, Office
of Criminal Enforcement, Forensics and Training U.S. EPA, 1200 Pennsylvania
Avenue, N.W., Washington, D.C. 20460, shepherd.matthew@epa.gov.
SUMMARY
Over the last two years, the United States Environmental Protection Agency (EPA)
has taken a major new step to reach out and enlist the general public to help identify
potential violations by asking citizens to provide information about possible
harmful environmental activities in their communities and workplaces. Formally
known as "Report a Violation," individuals can go directly to EPA's website to alert
authorities to potential violations that might lead to civil or criminal enforcement.
This process has resulted in new enforcement cases that have advanced the cause of
environmental protection.
1 INTRODUCTION
To protect the environment, the United States Government has enacted a series of
laws, regulations, and standards to control the amount of pollution that businesses,
industries, or persons can legally discharge or emit into the air, land, or water. Since
its creation in 1970, it has been the responsibility of the EPA's enforcement program
to ensure there is compliance with these laws and regulations.
EPAuses several methods to determine if an entity is violating the law by discharging
or emitting excess pollution. Historically, the most widely used method is regularly
scheduled inspections by EPA or state environmental personnel, who look at the
facility's records and manufacturing processes to see if they are consistent with and
following the facility's operating permits.
Another way that federal and state environmental inspectors assess whether a facility
may be violating the law is through that facility's "self-reporting" of environmental
discharges or emissions, e.g., the amount of wastewater it discharges monthly
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310 Eighth International Conference on Environmental Compliance and Enforcement 2008
or the total amount of toxic chemicals it releases annually into the environment.
Government regulators can then determine if the amount of pollution released is
greater than the amount the facility can legally discharge.
There are other less systematic ways that the government may learn about potential
environmental violations. An employee at a facility may come forward to tell
authorities about alleged violations he thinks occurred or says he has been told
to commit (in the United States, these employees are called "whistleblowers").
Sometimes, members of the general public may notify authorities about things that
"don't look right" and may indicate illegal activity, such as observing dense smoke
coming out of a chimney, abandoned drums along a roadside, dead fish in streams
or waterways (particularly if the water appears to contain foreign substances such as
detergent, bleach, chemicals, or has a strange color), or pipes or valves that appear
hidden that would allow for discharge from a plant.
2 REPORTING A VIOLATION BY THE PUBLIC
Over the last two years, EPA has taken a major new step to reach out and enlist
the public to help serve as "eyes and ears" in the identification of potential
violations by asking citizens to provide information about potentially harmful
environmental activities in their communities and in their workplaces. Formally
known as "Reporting a Violation" (and informally known as "tips and complaints"),
this process has resulted in new enforcement cases that advance the cause of
environmental protection.
In January 2006, EPA unveiled a new tool on the home page of its website that
greatly expanded the scope and quality of leads from the public about possible
environmental infractions. A new icon invites the public to report possible
environmental violations or crimes. More than a million people a month who visit
the Agency's home page (www.epa.gov/tips) have the opportunity to help EPA
protect public health and the environment by sharing any problems they see in
their communities.
When a citizen visits EPA's "Report a Violation Website" to report a violation,
he is first reminded of two important considerations. First, it is important that a
citizen understand the distinction between a possible environmental violation and a
potential emergency situation. An environmental violation is a situation which does
not comply with an existing environmental law or regulation. An environmental
emergency is a sudden threat to the public health or the well-being of the environment
arising from the release or potential release of oil, radioactive or biological materials,
or hazardous chemicals into the air, land, or water. EPA has a distinct and separate
reporting scheme for emergency situations when an immediate response is of the
essence.
Second, EPA does not want citizens to "play detective" or put themselves in harms
way. If citizens do spot anything they think is suspicious, they should not try to
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Rosenberg, Coyne & Shepherd 311
investigate on their own. EPA provides several safety tips, admonishing individuals
against entering confined spaces or low-lying areas, leaning over open waste
containers, or kicking, rocking or puncturing waste containers, taking samples
unless trained, and making sure to keep others away from the scene until assistance
arrives.
3 THE PROCESS
A person who wishes to report a potential violation visits the EPA "Report a
Violation" website to fill in information fields that elicit as much information as
possible about the nature and location of the possible violation as well as who
may be responsible for it. See Appendix 1, Screen Shot of the Report a Violation
Website.
For example, the citizen is asked to describe the incident or scene he is reporting
(e.g., whether it involves dumping, a spill, spraying, or land filling) and whether
the pollution involves the land, water or air). He/she is also prompted to identify
the suspected violator, if known. While the individual reporting the violation is
encouraged to give his name and address so that he can be contacted later by state
or federal inspectors or investigators to provide more information, he is not required
to identify himself if he wishes to remain anonymous.
The person reporting the violation is also asked to indicate whether the suspected
violation is "accidental" or "intentional." This is a critical distinction for
determining how the "tip" will subsequently be reviewed by EPA enforcement
personnel. "Accidental" violations will be referred to EPA's civil enforcement, while
"intentional" violations will be reviewed by EPA's criminal enforcement program.
EPA has both civil and criminal enforcement authority. As a legal matter, in the
American criminal justice system environmental criminal liability is triggered
through the existence of some level of intent or knowing violations of the law. A
"knowing" violation is one in which the defendant is aware of the facts underlying
the violation - conscious and informed action brought about the violation, rather
than accident or mistake. Thus, an intentional decision to discharge pollutants into
a river without a permit, or to bypass a required air pollution control device could
be "a knowing violation," and thus criminal, without regard to the defendant's
knowledge of the law. Individuals who commit criminal environmental violations,
for example, run the risk of going to jail, whereas civil violators would only pay a
fine.
Civil liability, on the other hand, arises simply through the existence of an
environmental violation, without regard to what the responsible party knew about
the matter. While the object of civil enforcement is primarily to gain compliance,
i.e., having a company take the actions necessary to stop the current violation and
prevent future occurrences, criminal enforcement is designed to both "punish"
current violators and deter future violators.
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312 Eighth International Conference on Environmental Compliance and Enforcement 2008
This distinction between potentially "criminal" and "civil" violations drives EPA's
"report a violation" internal process. EPA's Office of Criminal Enforcement,
Forensics and Training has the primary responsibility for evaluating and routing
these leads as they come in. The system sorts tips based on their potential under
criminal, civil or state jurisdiction.
If the violation is described as being "accidental" it goes directly to EPA's civil
enforcement program in the Region where the suspected violation occurred. It can
then be further investigated by regional civil enforcement personnel or referred to
the appropriate State environmental agency for further action (e.g., if the "violation"
does not meet federal standards but might be a violation of state environmental
law).
If the violation is described as "intentional" (or if it is described as "unknown"),
it is referred to EPA's criminal enforcement office, where it is reviewed by Special
Agents in the Criminal Investigation Division. These agents are fully-authorized
federal law enforcement officers, like their counterparts in other U.S. federal law
enforcement agencies such as the FBI, U.S. Customs Service and U.S. Secret Service,
and they investigate criminal violations of all federal environmental statutes.
Once the potentially "criminal" tip is reviewed by the special agent, it is either:
• closed without further action if determined that no violation (either civil or
criminal occurred);
• sent to one of the EPA criminal enforcement field offices for further review if the
possibility of a criminal violation exists; or
• sent to the EPA civil enforcement program in the appropriate Region or State
where the suspected violation occurred if the "tip" is deemed potentially
worthwhile for civil response but not criminal after all.
Tips that result in further enforcement response are tracked through the normal
civil and criminal enforcement procedures. As noted, tips that will not result in
further federal response may be referred to the states. The State's response to tips
referred from EPA is managed within each State as a regulatory or law enforcement
issue. . EPA's goal with regard to referrals to states is to provide tips containing as
much useful information as possible for review.
4 RESULTS
Since the inception of EPA's Report a Violation program in January 2006, criminal
enforcement has screened over 12,675 tips. Most tips are referred to a criminal
field office, civil enforcement, or other law enforcement partners (such as the states)
within 48 hours of receipt. More than 11,574 tips have been sent directly to the civil
program
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Rosenberg, Coyne & Shepherd 313
As of February 1, 2008, 1,402 tips have been referred to criminal enforcement's 46
field offices. Fourteen "tips" have currently been opened as formal criminal cases
and the investigations are continuing. One criminal case resulting from a tip has
resulted in formal charges being filed and prosecuted.
The charged case involves a company that has been issuing Hazardous Materials
certifications and physical fitness reports to untrained temporary workers. Many of
these same workers are then dispatched throughout the southeastern United States
to do cleanup work at contaminated sites waste sites. Using the "report a violation"
website, a witness informed agents that approximately 80 percent of the training
certificates issued by the suspect are fraudulent. Following the receipt of the tip
and the formal opening of the investigation, state and federal law enforcement
personnel served a search warrant for documents and computer records stored
at the corporate office. On July 17, 2007 the defendant entered a guilty plea to
two felony counts of making a material false statement, i.e., lying to governmental
authorities. Sentencing has not yet occurred.
This prosecution demonstrates one of the bonuses of the "report a violation" process.
The criminal enforcement program is seeing is not just an increased volume of tips,
it is getting more quality information, such as identification of additional witnesses
or facts in existing cases.
5 FUTURE STEPS
Since it has only been implemented for a little over two years, the EPA National
report a Violation Website is still a work in progress. Over the next year, it will be
important to systematically assess and evaluate the utility of the site regarding the
degree to which:
• it facilitates a more organized and coordinated effort between EPA's criminal
and civil enforcement offices;
• it supports more timely EPA responses to public requests for assistance
• referral of complaint information to EPA's state and local counterparts result in
civil or criminal enforcement actions below the federal level
• it facilitates accurate internal EPA tracking of complaint information; and
• it helps support the identification and tracking of national trends in environmental
civil and criminal enforcement.
6 CONCLUSION
The purpose and goal of the "report a violation" process is not to create more tips for
the government to investigate. Rather, it is to increase the quality of those tips and
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314 Eighth International Conference on Environmental Compliance and Enforcement 2008
help ensure that both the EPA and the states address the most important violations
from an environmental and public health standpoint with the resources they have
at their disposal. The tips that are investigated should be of the highest quality.
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Rosenberg, Coyne & Shepherd 315
Appendix 1: Screen Shot of the Report a Violation Website
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Smith & Amstrong 317
ENVIRONMENTAL CITIZEN SUITS AND GOVERNMENT ENFORCEMENT
SMITH, R. JUSTIN1 and ARMSTRONG, ANDREA2
1 Attorney, United States Department of Justice, Environment and Natural Resources
Division, 950 Pennsylvania Ave N.W., Washington, DC 20044, justin.smith@usdoj.
gov.
2 Citizen Suit Coordinator, Paralegal, United States Department of Justice,
Environment and Natural Resources Division, 950 Pennsylvania Ave N.W.,
Washington, DC 20044, andrea.armstrong@usdoj.gov.
SUMMARY
Citizen suits play a significant role in the enforcement of federal law in the
United States. This article introduces citizen suits as a supplement to government
enforcement and identifies the relationship that these suits have to government
enforcement.
1 CITIZEN SUITS AS A SUPPLEMENT TO GOVERNMENT
ENFORCEMENT
Citizen suits are actions filed by private parties seeking to abate ongoing violations
of environmental laws. This paper will discuss these suits, the legal provisions that
apply, and governmental oversight of citizen litigation. The environmental laws
also have provisions allowing citizens to bring suit against the government; such
suits are an Environmental Protection Agency rate topic and will not be addressed
in this paper.
The Environment and Natural Resources Division of the U.S. Department of Justice
(together with the Environmental Protection Agency) monitors citizen enforcement
of federal environmental statutes. Citizen enforcement can be an important
component of environmental enforcement, as the government has only limited
resources with which to bring its own enforcement actions. From 2000 to 2007,
Environment and Natural Resources Division received, on average, eleven Clean
Air Act and 53 Clean Water Act citizen suit complaints per year.
The U.S. Congress enacted the first citizen suit provision in the Clean Air Act of
1970 (see 42 U.S.C. 7604). Since then, citizen suit provisions have been a component
of every major environmental statute with the exception of the Federal Insecticide,
Fungicide, and Rodenticide Act. In addition to the Clean Air Act and Clean Water
Act, statutes that contain citizen suit provisions include the Safe Drinking Water
Act, the Resource Conservation and Recovery Act, the Toxics Substances Control
Act, and the Endangered Species Act. Citizen plaintiffs may seek injunctive relief
(an order to comply with the law), civil penalties, and attorney fees.
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318 Eighth International Conference on Environmental Compliance and Enforcement 2008
Congress intended to create an incentive for regulated entities to comply with the
law by empowering those most affected by pollution to ensure compliance with
environmental protection laws when federal or state governments do not do so.
The legislative history of these provisions reflect tensions between those who
wanted to provide a safety valve when citizens were harmed by pollution and
those who feared the courts would be flooded with litigation. These tensions led to
safeguards including a requirement for prior notice of suit to the defendant and the
government, a bar on suit in cases in which there is prior government enforcement
action, and federal government oversight of suits and settlements.
There have been a number of significant citizen suits, and citizen groups often
attain substantial relief in citizen suit cases. To cite a recent high-profile example,
in 2007, the Supreme Court issued a ruling in Duke Energy, a case in which there
were both a federal government claim and a claim by a citizen's group against
the same defendant, a power company, relating to violations of the Clean Air Act
(the Supreme Court had accepted review of the case following a request by the
citizen's group). Citations to other notable citizen suit cases may be found in the
bibliography, below.
2 FEDERAL OVERSIGHT OF CITIZENSUITS AND THEIRRELATIONSHIP
TO GOVERNMENT ENFORCEMENT
The citizen suit provisions include elements to allow governmental oversight of
citizen litigation. These elements include:
2.1 Notice
The citizen suit provisions of the major environmental statutes require citizens to
notify the agency with enforcement authority prior to bringing suit. See 33 U.S.C.
1365(b) (60-day notice requirement of the Clean Water Act). According to the
legislative history, the purpose of the required notice is to allow the government to
have an opportunity to enforce. Such notification alerts federal and state agencies to
the alleged violations, thus enabling them to take enforcement action. The defendant
must also receive notice; this allows the violator to come into compliance, which
may enable the potential defendant to avoid suit altogether, to reduce its liability
and limit the number of days in violation, or allow the parties to discuss settlement
before litigation ensues.
2.2 Government Intervention
The United States does not routinely intervene in citizen suits, but it can and does
do so, when appropriate. The citizen suit provisions allow the federal government
to intervene as a matter of right.
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Smith & Amstrong 319
2.3 Diligent Prosecution
As previously noted, if the United States is diligently enforcing against a violation, a
citizen suit against the same violation may be barred. The statutory bar varies from
provision to provision, with some bars applying only to governmental enforcement
actions in court and others applying equally to administrative enforcement
actions.
2.4 45-Day Comment Period
The Clean Water Act, section 505(c)(3), and Clean Air Act, section 304(c)(3), require
both complaints and proposed consent decrees to be served on the Environmental
Protection Agency and the Attorney General. Once the parties have served the
proposed consent decree on the Environmental Protection Agency and the Attorney
General, the court is required to wait at least 45 days before it can adopt the
proposed consent judgment. The Clean Air Act 45-day notice provision specifies
that the Government "may submit its comments on the proposed consent judgment
to the court and parties or may intervene as a matter of right" during the reserved
comment period (see 42 U.S.C. 7604(c)(3)). Clean Water Act legislative history
suggests that the 45-day notice provision was intended to protect the public against,
"abusive, collusive or inadequate settlements," and to "maintain the ability of the
government to set its own enforcement priorities" (see remarks of Senator Chafee,
Legislative History of the Water Quality Act of 1987 at 1351).
2.5 The United States Not Bound by Citizen Suits
Citizen suit settlements do not bind the United States. The case law is clear that
the United States is not bound by any settlement of an action brought under an
environmental citizen suit. See, e.g., Hathorn v. Lovorn, 457 U.S. 255, 268, n.23 (1982)
(Attorney General is not bound by cases to which he was not a party); Sierra Club
v. Electronic Controls Design, 909 F.2d 1350, 1356 n.8 (9th Cir. 1990) (United States
is not bound by consent judgment in Clean Water Act citizen suit and can bring its
own enforcement action at any time). Thus, the United States remains free at all
times to bring its own enforcement action.
3 ELEMENTS OF CITIZEN SUIT SETTLEMENTS
Proposed settlements in Clean Air Act and Clean Water Act citizen suits are generally
reviewed by Environment and Natural Resources Division and the Environmental
Protection Agency. Environment and Natural Resources Division attorneys take
an active role in the review of proposed settlements and may negotiate changes to
a proposed settlement, may file comments on a proposed settlement, or may object
to entry.
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320 Eighth International Conference on Environmental Compliance and Enforcement 2008
3.1 Consent Decrees
Most environmental citizen suits are resolved by consent decrees. Consent decrees
typically include civil penalties paid to the U.S. Treasury, injunctive relief, mitigation
projects, or a combination of these remedies. Consent decrees often have a
termination date or formula for determining a termination date, with the termination
date set sufficiently far in the future to allow for continued compliance.
3.2 Relief
Environment and Natural Resources Division reviews each proposed consent
decree under standard criteria. As a reflection of the overarching purposes of
the Acts, each proposed consent judgment is reviewed for injunctive relief and
stipulated penalties sufficient to bring the defendant into compliance.
3.3 Civil Penalties and Stipulated Penalties
Civil penalties resulting from court order or settlement are paid to the United States
Treasury. Civil penalties are imposed for past violations; stipulated penalties are
prescribed to ensure future compliance with the consent decree. Stipulated penalties
fix a penalty amount on a per day and per violation basis. Most statutes specify
maximum penalty amounts and factors for courts to take into account in assessing
civil penalties (see 33 U.S.C. 1365(a) (Clean Water Act) and 42 U.S.C. 7604(a) (Clean
Air Act) (as amended in 1990)). The Environmental Protection Agency developed a
civil penalty policy under which it seeks penalties by calculating and recovering the
economic benefit the violator has achieved from delayed compliance and adjusting
it against other factors, such as the gravity of the violation and good faith efforts of
the violator to comply.
3.4 Supplemental Environmental Projects
Citizen suit resolutions at times also incorporate Supplemental Environmental
Projects, which are environmentally beneficial projects that defendants agree to
undertake in settlement of an enforcement action, and which the defendant would
not otherwise perform. Supplemental Environmental Projects include a variety of
projects that range from pollution reduction to prevention projects that address the
resource that has been affected by a violation. Unlike government enforcement
cases where mitigation projects are implemented by the defendant, some projects
may be implemented by environmental non-profits, community organizations,
or land trusts active in the area where the violation occurred. The United States
reviews Supplemental Environmental Projects for their appropriateness and on
other criteria.
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Smith & Amstrong 321
3.5 No Self-Dealing
A plaintiff cannot obtain damages or other awards in settlement of citizen suit
claims. Environmental citizen suits are intended to enable citizens to obtain relief
from violations of the environmental laws, and to deter future violations, not to
compensate the plaintiff for any losses suffered as a result of the violations. Except
for reasonable attorney's fees and litigation costs, which are authorized in citizen
suit provisions, a settlement of citizen suit claims should not involve a direct or
indirect payment from the defendant to the plaintiff.
4 REFERENCES
1 Haag, Mark. The Department of Justice's Role in Monitoring Environmental Citizen
Suits. American Bar Association, Section of Natural Resources, Energy and
Environmental Law. October 17,1997.
2 Lloyd, Edward. Citizen Suits and the Defenses Against Them. American Law Institute
- American Bar Association Continuing Legal Education. June 27-30, 2007.
3 Axline, Michael. Environmental Citizen Suits. Butterworth Legal Publishers. 1995.
5 BIBLIOGRAPHY
Environmental Protection Agency, Final Supplemental Environmental Projects Policy
(April 10, 1998) available at http://www.Environmental Protection Agency.gov/
compliance/resources/policies/civil/Supplemental Environmental Projects /
fnlsup-hermn-mem.pdf
Environmental Protection Agency, Policy on Civil Penalties, 41 Env't Rep. (BNA)
(Fed. Laws) 2991 (1984).
Lloyd, Edward, "Supplemental Environmental Projects Or Supplemental
Environmental Projects Have Been Effectively Used in Citizen Suits to Deter
Future Violations as well as to Achieve Significant Supplemental Environmental
Benefits." 10 Widener Law Review 2, 413 (2004).
Environmental Defense v. Duke Energy Corp., 127 S.Ct. 1423 (2007).
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOO, Inc., 538 U.S. 167
(2000).
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, (1987).
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Wijbenga, Ruessink, De Wit & Kapitein 323
ENVIRONMENTAL POLICING IN THE 21ST CENTURY - BACKGROUND,
ORGANISATION AND EXPERIENCE IN THE NETHERLANDS
WIJBENGA, BERT1, RUESSINK, HENK2, DE WIT, ARIE3 and
KAPITEIN, PIM4
1 Chief Constable, Police Region Flevoland, The Netherlands, bert.wijbenga®
flevoland.politie.nl.
2 Senior Researcher/Lecturer, Police Academy of The Netherlands, henk.ruessink®
politieacademie.nl.
3 Senior Advisor, Police Academy of The Netherlands, arie.de.wit@politieacademie.
nl.
4 Chief Inspector, Southern Office of the General Inspection Service, The Netherlands,
p.kapitein@minlnv.nl.
SUMMARY
The current organisation of the environmental enforcement function of the police
in the Netherlands is sketched from an historical development perspective. Over
the last few decades, the police had to respond to the growing concern in society
over environmental issues, the expanding amount of legislation for the protection
of environmental values, and the increasing role of domestic and international
environmental crime. Furthermore, it was recognised that the fight against
environmental offences is a multi-actor activity, where effective cooperation and
exchange of information between police and other authorities is crucial.
These developments and considerations have led to an environmental policing
function that is organised at four geographical levels: local, regional, supra-regional,
and national. Each level has specific responsibilities, tasks, and competences.
This structure has been in place since 2005. This paper describes initial results
and experiences, as well as the needs identified for further improvements and
developments. Although situations and circumstances in other countries with
respect to environmental policing may differ in several aspects, elements of the
structure presented in this paper are probably useful elsewhere.
1 INTRODUCTION
Police forces in the Netherlands were active in enforcing environmental laws in
the 1950s. At that time, the main focus was on counteracting illegal and criminal
activities in the area of hunting and poaching. At the same time, due attention was
given to the connected phenomenon of illegal possession and use of firearms.
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324 Eighth International Conference on Environmental Compliance and Enforcement 2008
Later, toward the end of the 1970s, initiatives were taken to broaden and extend
police control and enforcement activities, particularly in the area of the so-called
"brown" environmental issues, such as noise, nuisance, emissions, and waste. At that
time, the first more or less specialised entities for environmental policing appeared
in the police force. These units continued to be active on the (traditional) "green"
enforcement topics as well, and hence had a broad environmental profile. On one
hand, their expertise and contribution to the protection of nature and environment
was highly valued. On the other hand, there were voices that doubted the need for
specialised units within the police, which were seen as expensive.
At the end of the 1980s, it was finally concluded that environmental enforcement
should be just one of the general tasks of the police. This implied that each and every
police officer should take up environmental enforcement as an integral element of
his/her task and duties.
2 DECADE OF GROWING AWARENESS
The recognition that the police had to play an important role with respect to
environmental enforcement followed the general awareness of environmental
issues that came up in society in the late 1980s. Environmental scandals, serious
environmental accidents, and alarming reports underlined that the environment
was seriously at risk, and, along with this, the health of humans and nature were
negatively influenced. Therefore, it was clear that proper action had to be taken.
In fact, these developments underlined the importance of one of the articles of
the Dutch Constitution, Article 21, which states that the care of the government is
directed towards habitability of the country and the protection and improvement
of the environment.
As an important milestone, the First National Environmental Policy Plan "Choosing
or Loosing" was published in 1989. The protection of the environment became
an issue for politics and society in general. In this plan, the government defined
the nature and extent of the environmental problems and presented a policy and
according regulation to protect and improve the quality of the environment. It was
the task of the industry, the general public, and governments to implement the
environmental policy. To realise this, these stakeholders had to develop appropriate
knowledge, understanding, capacities and competences. This also refers to the
authorities that were responsible for compliance control and law enforcement.
Although - in the Dutch situation - compliance assurance is primarily based on
administrative law and sanctions by local, regional, or national administrations.
However, in cases of serious offences enforcement by criminal law is also possible.
The administrative and criminal law enforcement systems are to a large extend
complementary. The police, together with a few specialised non-police services, are
responsible for the criminal investigations (the public prosecutor's office decides on
criminal prosecution).
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Wijbenga, Ruessink, De Wit & Kapitein 325
As a result of its growing awareness, the police had to start appropriate initiatives
to take up its role in environmental enforcement. Policy papers with respect to
issues of organisation, infrastructure, cooperation, and planning were prepared.
Police forces invested in projects for training and capacity building of their officers.
However, it is fair to say that the big reorganisation of 1993, which changed the
system of one national and many municipal police forces into a system of 25
regional forces and one national service unit, initially had a negative impact on
the effectiveness of the environmental police function. As a result of earmarked
subsidies from relevant ministries, some organisational provisions kept up specific
environmental enforcement expertise. Coupled with the personal dedication
of many police officers to environmental enforcement, over time the situation
improved again.
In general, environmental enforcement is only one of many tasks of the police.
Hence, with limited resources there is always a competition for priorities. Along
with the fact that the environmental task is not always perceived to be of high
importance (e.g. because there are often (seemingly) no victims1) and the belief that
environmental enforcement is particularly complex, this leads to a situation where
the police is not always very motivated to give sufficient priority to and invest in
environmental investigations. Also, the circumstance that citizens generally do not
report criminal environmental offences, contributes to this situation.
3 PREPARING FOR THE NEW CENTURY
The role and function of the police in environmental (criminal) enforcement became
clearer around the Millennium. The underlying observations and considerations
are as follows:
• For an integrated contribution to safety and quality of life, environmental
enforcement has to be embedded in the total package of police functions/
services in society at large. Small offences that are relatively easy to investigate
and enforce, can be dealt with by officers that are active in general (community)
policing. In case of more complicated and/or more serious offences, these
officers should invoke the assistance of colleagues that are more specialised in
environmental issues.
• For successful execution of their environmental tasks, police officers require
relevant know-how and competences, adequate information and sufficient
capacity. This implies that there needs to be effective training facilities,
information systems and - not the least important - clear support from
superiors and higher management, not only in wording, but also in acting. So,
environmental enforcement requires dedication at all police levels.
• The police are often not the only player in the field of environmental compliance
and enforcement. In The Netherlands, as in many other countries, other
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organisations such as regional or local administrations have a role as well. For
effective and efficient compliance and enforcement, the partner authorities
have to work together and coordinate their activities. This refers to aspects like
programming, sharing of information and mutual assistance. Today, to a certain
extent, legal obligations for inter-agency cooperation are imposed.
• To arrive at a problem-oriented coordinated program for compliance assurance
and enforcement, relevant authorities have to sit together and jointly produce an
analysis of the state of the environment in terms of quality, developments, risks
and the actual level of compliance. From this, a set of priorities for a programmed
approach develops. The police should fully participate in this process on the
basis of its own expertise, specific information and responsibilities.
• The police activities regarding environmental compliance and enforcement
should be in connection with environmental policies, strategies and developments
at different levels: local, national and international. In a world that continues its
globalisation, all actors - including criminal investigators of the police -have
to contribute to combat the negative environmental side-effects, e.g. those
frustrating sustainable development. But also domestically, contributions are
expected to protect the quality of the living environment. This implies that in
environmental compliance and enforcement activities the attention of the police
should be directed towards:
1. the increasing pressure on the public space and vital functions which leads to
physical and health risks and to an endangered natural environment;
2. enterprises, institutions and civilians that operate in a calculating manner,
trying to run away from their environmental responsibilities at the cost of
others and the environment;
3. criminal "entrepreneurs," e.g., in the area of waste treatment and disposal,
international illicit trade in hazardous waste streams and trade in endangered
species of plants and animals that have serious detrimental effects on public
health, biodiversity and the environment.
• The "modus operand!" of environmental offences and crimes moves clearly in
the direction of illicit operations in structures of chains and networks made up
of dynamic flows of waste, recycled materials, products and information. No
longer are such crimes of a merely local and straightforward character. In a
globalising world, the complex international dimension of environmental crime
is of growing importance. Opportunities for illegal operations are especially at
stake when and where commodities are transferred from one player in a chain
or network, to another, especially when substantial economic benefits can be
gained. During these instances and at those places, risks for the environment
and health of people are glooming. This implies that enforcement and criminal
investigations have to be directed and tailored towards combating infringements
and crimes that take place in the chains and networks of illegal actors. The
intertwined nature of the underlying structures makes inter-agency cooperation
a prerequisite for success.
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Wijbenga, Ruessink, De Wit & Kapitein 327
4 IMPLICATIONS FOR THE ENVIRONMENTAL POLICE FUNCTION
Taking into account the above developments, observations and considerations, the
environmental function of the Dutch Police was redefined and reorganised in the
first years of the new century. The directly involved ministries of environment,
interior, and justice played an important and decisive role in this. This was related
to the fact that they are responsible on the political level for adequate enforcement
of (environmental) legislation and had invested substantial amounts of money in
the environmental task of the police and public prosecutors, which they wanted to
give effective output and outcome.
Since the beginning of 2005 the criminal enforcement and investigation function of
the police is organised at 4 distinct levels:
• National level - the National Investigation Service is responsible for dealing with
severe organised environmental crime issues (or suspicions thereof), both in
terms of intelligence and information analysis, as in terms of dealing with specific
concrete cases. It cooperates with special criminal investigation services at four
Ministries (Agriculture/Nature/Food Quality, Environment, Social Affairs and
Finance).
• Supra-regional level - six so-called Interregional Environmental Teams are
responsible for the criminal investigation of cases of serious environmental
crime that manifest themselves across borders of individual police-regions and
internationally, with a particularly focus on chain- or network-oriented criminal
offences. The total capacity for the Interregional Environmental Teams amounts
to approximately 120 full-time-equivalents.
• Regional level - each of the 25 police-regions in The Netherlands has its own
Regional Environmental Team. These teams are responsible for the investigation
of environmental crimes of intermediate gravity that do not go beyond the
regional scale. For example, criminal offences that take place inside enterprises
or in connection to infrastructural developments, such as the illicit application of
certain waste-type streams in civil engineering.
• Local level - Simple environmental criminal enforcement activities are dealt with
by the local police squads as a part of their general police function in city districts
and rural areas. The nature of the environmental cases is mostly connected
to littering, nuisance, dumping of garbage, small emissions to water, but also
offences like illegal manuring of farmland. When the local squads come across
environmental offences that are more complex or more serious, they inform
the Regional Environmental Team so that experts can take over. In this sense,
the local police officers are the eyes and ears (and noses) for their specialised
colleagues.
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328 Eighth International Conference on Environmental Compliance and Enforcement 2008
The Office of the Public Prosecutor is ultimately the responsible authority for criminal
investigation and enforcement. In order to strengthen its position and abilities to
counteract environmental crimes, a so-called Functional Service for environmental
crime and fraud was put in place, simultaneously with the reorganisation of the
environmental police function. This functional unit is responsible for the steering
of criminal investigation activities of the Regional Environmental Team and
Interregional Environmental Teams of the police forces and for the prosecution of
identified suspects. The unit has a staff of approximately 100 people and operates
at the national level.
5 FRAME OF REFERENCE FOR THE ENVIRONMENTAL POLICE
FUNCTION
In order to assist and advise the forces in the process of the reorganisation of
environmental policing functions, and to do this in an unequivocal way, dedicated
terms of reference for the new structure were developed. In fact, these terms of
reference can be seen as a model-description of the new organisation, which
serves as a reference to monitor how far police forces have progressed with the
implementation of the new structure, both individually and collectively.
In the frame of reference the following aspects have specifically been worked out:
• Responsible executive officer who holds the portfolio of (criminal) environmental
enforcement within the Board of Chief Constables.
• Responsible executive officer who holds the portfolio of (criminal) environmental
enforcement within the regional police forces.
• Definition of "simple environmental offences," "intermediate environmental
crime," and "serious environmental crime."
• Steering mechanisms.
• Information management.
• Cooperation with other authorities and services for criminal and administrative
enforcement at national and regional level [see Appendix for concrete
example].
• International cooperation.
• Job descriptions and required competences.
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Wijbenga, Ruessink, De Wit & Kapitein 329
• Planning, control, monitoring, and reporting.
6 FIRST EXPERIENCES AND FURTHER DEVELOPMENTS
The first experiences with the new environmental police structure and organisation
have been evaluated in a midterm review in 2006/2007. The main findings, which all
have a mutual relationship, include the following:
• The position of the teams with respect to criminal information and intelligence is
rather fragmented. This is related to the problematic mutual sharing of relevant
data between the different criminal and administrative enforcement authorities.
Major steps forward are required here, so that the analysis and selection of cases
and the profiling of criminal activities can improve. This also pertains to the
international exchange of information.2
• The integral and quantified picture of serious environmental crime is largely
missing. This is mainly a consequence of the limited information position of the
police and other authorities, as sketched. Therefore, it is probably just the tip of
the iceberg of environmental crime that is noticed and counteracted.
• The professional position of the teams is still vulnerable. This is related to
the sometimes limited support and priority of higher management for the
environmental police function. The implementation of clear functional profiles
for team members could improve the professional status of the teams and the
tasks they fulfil. Competitive renumeration is also an element in this context.
Furthermore, the allocation of officers to the teams in terms of qualifications
and professional skills deservers further attention. A balanced combination
of environmental expertise and criminal investigative competences is ideally
required.
• Finally, the review made clear that the frame of reference for the environmental
police function has not been implemented in a uniform and structured manner
throughout the police organisation. Individual polices forces followed diverging
approaches and interpretations.
The environmental police function is by no means static in nature. Developments
in society at large, the police in general and crime patterns specifically, require that
environmental policing responds in a dynamic way. Some examples of ongoing
developments, also in response to the above interim findings, are the following:
• The Dutch police have put forward first, and altogether distinctive, steps towards
intelligence led policing in her attempt to clamp down on serious environmental
crimes.
• The enforcing agencies, whether on local, regional or national level, have an
obligation, to report serious crimes that they encounter to the police/justice
department.
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330 Eighth International Conference on Environmental Compliance and Enforcement 2008
• In order to strengthen the intelligence position on serious crimes, a program has
been initiated that stimulates employees of organizations and enterprises that
are active in the transport and treatment of waste, to report anonymously to the
police serious crimes/offences they know of. This had already led to tens of new
cases for further investigation.
• Each of the regional police forces is obliged to deliver annually an environmental
threat assessment, which serves as a foundation for their environmental
enforcement strategy.
• In the coming three years the Dutch police, in close cooperation with its
National Police Academy, will invest considerable time and effort in improving
the professional quality of field officers, analysts, detectives and 'runners'
(informants) in both the criminal world and legal businesses.
• The concrete contributions of the Dutch police to the broader government objective
to improve, protect, and maintain the quality of our living environment, will
be evaluated every year by independent researchers from the Police Academy.
The results will be published by the chief commissioner, who holds portfolio
of environmental enforcement, and be presented to the other police chiefs, the
justice department and other relevant Ministries.
7 CONCLUSION
The development and the current structure and organisation of the police
function in the Netherlands have been outlined in this paper. This description is
not meant to serve as a blue-print for police forces in other countries. Different
traditions, cultures, legal structures, and even scope of environmental problems
prevent generalistic approaches to environmental policing. Nevertheless, the
authors are convinced that specific elements of this paper will be of relevance in
the international perspective. However, where this applies, it is not a matter of
just copying structural or organisational provisions from the Dutch context. Much
more will be required to carefully translate and tailor the approaches to the specific
situation in other countries. Subsequently, it would be very helpful if police forces
share their solutions for better mutual understanding, networking and cooperation.
This would serve the ultimately goal, i.e. the effective international enforcement of
environmental crime.
8 REFERENCES
1 The casualties and wounded of the Probo-Koala disaster (2006) in the city of
Abidjan, Ivory Coast, demonstrate the severe impact that environmental crime -
dumping of hazardous waste in this case - may have.
2 In this context, Interpol is promoting the use of EcoMessage as a versatile tool for
the international exchange of information on cases of environmental (wildlife and
pollution) crime. See www.interpol.int for more information.
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Wijbenga, Ruessink, De Wit & Kapitein 331
9 APPENDIX - EXAMPLES OF COOPERATION AND CRIMIINAL
INVESTIGATIONS
Example 1: Co-operation Between Police and Other Criminal Enforcement
Agencies: The General Inspection Service (AID)
The Convention on International Trade in Endangered Species of Wildlife Flora
and Fauna (CITES) is one of the most important international conventions for
the protection of animal and plant species. The Convention aims to ensure that
the existence of wildlife is not threatened as a result of trade. It deals with living
protected plants and animals and derived products, such as ivory, turtle shells and
seashells.
In the Netherlands, the Minister of Agriculture, Nature and Food Quality is
responsible for the implementation and the enforcement of CITES legislation. To
this end, the General Inspection Service (AID) of this ministry strives to monitor and
improve compliance with CITES in the Netherlands. Together with the policymakers
of the ministry, the AID decides which enforcement instruments to apply. These
entail monitoring, criminal investigations, or communication measures aimed at
specific target groups.
In view of compliance assurance of CITES, inspectors of the AID carry out inspections
at animal traders, zoos and fairs throughout the Netherlands where protected
species are bought and sold. The information they obtain occasionally leads to
larger-scale criminal investigations. These investigations are also part of the overall
approach aimed at stimulating CITES compliance. Analyzing possibilities for fraud,
identifying trends and developments, directing and conducting (complex) criminal
investigations are the domain of the AID's Criminal Investigations Department, one
of the four special criminal investigation services in the Netherlands. Time and
again, the results of the chosen instruments provide input for future enforcement
strategies, where collaboration with the police, customs and other criminal
investigation agencies is of utmost importance - as also shown by the following
example.
Example 2: (International) CITES case
During an investigation in Belgium, a suspect and a witness stated that a third suspect
caught birds and plovered eggs in several countries, including the Netherlands.
The relevant department of AID received this information on the basis of a formal
request for (international) legal aid and started further work in the Netherlands. This
lead to an extensive investigation, spanning three Dutch provinces, during which
AID cooperated with regional environmental teams of the police. Experts from
several institutions and services supported the investigations. Special investigative
methods were applied, like observations, wiretaps and radiographic tracing. As
a result, several illegal activities could be established, like emptying of bird nests,
domestically, but also in Belgium, Germany and even Greece.
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332 Eighth International Conference on Environmental Compliance and Enforcement 2008
Eventually, in 2007 the investigations resulted in house searches in which
approximately 250 birds and 1200 eggs were confiscated. Also, illegal catching
means were found and seized. The suspects used falsified CITES certificates, reused
the rings of dead birds and applied rings for other birds than allowed.
Private bird protection organisations and the Belgian police participated in the
investigations. The offences have been reported to the public prosecutor, who will
take further action. Belgian authorities have been asked to take proper action as
well, and to this end information has been shared.
Example 3: Illegal Discharge of Chemical Waste in Sewage Disposal System
This particular investigation started after an anonymous report about the illegal
disposal of chemical waste from the production process of cleaning products into
the sewage system. The first suspect appeared to be the managing director of a
company that manufactures cleaning products.
The second suspect, a production employee, was first suspended, but later allowed
to work under the condition that he paid a fine, because the offence was entirely his
initiative.
The case was taken to the court of justice. The environmental public prosecutor's
office demanded the managing director pay a fine of € 40.000. The verdict was a fine
of € 10.000, of which € 5000 was conditional. The public prosecutor appealed the
decision.
The case against the production employee was handled separately, because there
was first the need for a probation report of this suspect.
In the meantime, the managing director filed a claim of € 180.000 at the local
administrative authorities for closing down his plant during the investigation. The
plant was not allowed to produce from Friday until Monday.
Example 4: Illegal Disposal of Shipping Wastewater
This case was a spin-off case from an investigation against another collector of
waste. The information concerned the illegal processing of ship wastewater. Ship
wastewater is a blend of water and oil from the engine-room in ships. It is against
environmental regulations to dispose of this kind of wastewater; it should instead
be collected by registered and authorised waste collectors. About 60,000 tons of
wastewater arise aboard Dutch ships annually.
As a result of the information gathered, an investigation was started. Four suspects
were arrested and their premises were searched. The suspects were the managing
directors of two companies to collect ship waste and ship wastewater. The
investigation concerned ordinary companies without any suspicious behaviour.
The national police force was even a customer of one of the companies with the
ships of the river police.
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Wijbenga, Ruessink, De Wit & Kapitein 333
The idea was that the collectors sold the ship waste water to other companies, where
the waste water was worked up and blended to fuel oil for heating installations of
agriculture market gardens.
The main suspect was focussed to financial advantage and was considered to be
the actual and the intellectual suspect. He started the illegal case. The case was not
brought to court. The public prosecutor offered the suspects s settlement € 8000 - to
€ 12.000, which the suspects accepted to pay.
Example 5: Illegal Trade & Storage of Fireworks
This case started with the arrest of a suspect, who transported 200 kilograms of
fireworks. The suspects arrest lead to information about the illegal storage of
fireworks on four different locations in the province of Noord-Holland. Searches of
the four locations revealed 8800 kg of fireworks.
There were three suspects in this case. The main suspect was a 45-year-old owner of a
constructing company, who was previously convicted for illegal trade in fireworks.
The second suspect was the son of the main suspect. The third suspect was major
purchaser of the illegal fireworks.
The illegal import, trade, and storage of fireworks are serious problems in the
Netherlands. A couple of years ago, there was a serious disaster with an exploding
storage facility in the city of Enschede. As a result of this explosion, 23 people were
killed and nearly 1000 injured, along with the complete devastation of a residential
area.
Example 6: Illegal export of hazardous waste and chemical compounds
This example concerns the trade and export of hazardous waste to countries outside
the European Union. There was spin-off information that triggered the start of an
investigation against two waste processing companies. This investigation was
entailed a cooperation between the Interregional Environmental Teams of Noord-
Oost-Nederland, the customs, the environmental inspection and the seaport police
of Rotterdam. It was coordinated by the specialised public prosecutor's office for
environmental crime.
During the investigation 40 sea containers were intercepted on their way to Asia
and searched. The Dutch national forensic lab scanned the containers with the latest
technology. Four containers held (ozone-destructing) chloro-fluorocarbons. In two
containers, waste was found. The approach was the same in all cases: legal waste
was stored close to the container entrance and the hazardous (illegal) waste was
stored deep into the container, harder to detect. Three suspects were arrested for
exporting chloro-fluorocarbons. Further, there was a strong suspicion of fraud in
the export papers. The Case is still ongoing.
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TRACK C: TRANSBOUNDARY COMPLIANCE
AND ENFORCEMENT
COMBATING TRANSBOUNDARY ENVIRONMENTAL CRIME
WITH THE HELP OF CUSTOMS' SINGLE WINDOW:
EXPERIENCE OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY AS
THE U.S. GOVERNMENT DEVELOPS A SINGLE WINDOW FOR TRADE
BEARDEN, JANET1
1 Associate Director, International Compliance Assurance Division, Office of
Federal Activities, Office of Enforcement and Compliance Assurance, U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue, N.W., Washington,
DC 20460, United States, bearden.janet@epa.gov
SUMMARY
The ability of importers to file electronically the information required by Customs
and relevant federal agencies through what is called a "single window" offers
multiple benefits both to trade and to the agencies. By eliminating the need to
provide duplicate information to multiple parties and eliminating paper filing, it
simplifies and streamlines the filing process for trade, resulting in lower costs. It
speeds the flow of imported goods, improving the profit margin and enhancing
just-in-time deliveries. It allows Customs to do more work with fewer resources,
supporting an efficient government. Importantly, it allows participating federal
agencies to target for, identify and ultimately stop unsafe and illegal imports,
resulting in protecting the public and providing a level playing field for compliant
importers.
The experiences of the U.S. Environmental Protection Agency (EPA) in working
with U.S. Customs and Border Protection and other U.S. Government federal
agencies in the development of a single window for trade offer opportunities for
sharing and comparing with others the challenges we have encountered, the early
successes we have realized, and the expectations we have for the future. The single
window application is expected to be adopted by many countries in the years to
come.
This article describes the impetus for our participation, the approaches we
have taken, and the enforcement outcomes we are already receiving from our
work. And while this is a work in progress, as the U.S. Government Automated
Commercial Environment system is still being developed, I will share lessons
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336 Eighth International Conference on Environmental Compliance and Enforcement 2008
learned along the way, some of which may be useful to paper-based single window
systems as well.
1 INTRODUCTION
EPA's statutory authorities cover some of the most hazardous and potentially
dangerous commodities manufactured and imported into the U.S, including
pesticides and pesticide devices, chemical substances and mixtures, hazardous
wastes, and ozone depleting substances.l EPA also regulates imports of motor
vehicle and non-road engines and equipment and the fuels used to power
combustion equipment, as well as regulating the amount of lead in drinking water
faucets and pesticide residues on food. EPA's responsibilities for imports are
spread across multiple program offices and the enforcement office. Information
technology support, particularly as it relates to the integration with Customs'
single window Automated Commercial Environment system, is provided by our
Office of Environmental Information. With one exception, the program offices are
"owners" of the six data systems where reference data is collected and maintained
for domestic and imported commodities. The enforcement office relies on this
data to support compliance determinations.
Here's an example: EPA's Office of Pesticide Programs collects and maintains
data on registered pesticides and registered pesticide producing establishments,
consistent with our regulatory authority. Of approximately 13,000 registered
establishments, 1,300 are located outside of the U.S. The enforcement office (Office
of Enforcement and Compliance Assurance), through our 10 regional offices,
processes some 20,000 - 30,000 notices from foreign manufacturers of their intent
to ship pesticides into the U.S., shipments worth more than $1 billion dollars
annually. These "notices of arrival" are, with few exceptions, paper.
Each of our 10 regional offices is staffed to process these documents, which
requires, among other things, going into the program office database to ensure that
both the pesticide and the producer are registered. A signed "notice of arrival"
is required to accompany the shipment into the country. Customs and Border
Protection responsibilities include representing EPA at the border for pesticides
and other commodities for which EPA has statutory authority under joint
regulatory authority. Without the paper, Customs and Border Protection cannot
allow the pesticides shipment to enter the U.S. A large pesticide producer may be
importing pesticides at multiple ports around the U.S. Each shipment may go to a
different regional office for processing, depending on location of the port of entry.
2 OBSERVATIONS ON OPERATING IN OUR "AS IS" ENVIRONMENT
While the process described in the above example may be cumbersome, it does
carry certain benefits. For example, EPA individuals responsible for processing the
"notices of arrival" are well trained, able to spot deficiencies in notices and provide
personal service to importers and to Customs to address those deficiencies. Staff
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Bearden 337
recognize when labels are not appropriate to the product being shipped, and are
also able to identify for Customs and Border Protection shipments that should be
subject to greater scrutiny. At any point in the review process, they can request
additional information from the importer to support the "notice of arrival".
Unfortunately, once a "notice of arrival" is processed the copy goes into a file
drawer or relies on creation of a separate electronic record by the regional office.
Absent a single system, EPA is not able to identify import activity trends involving
certain chemicals or importers, share information between regions and with other
law enforcement agencies, or even provide basic summaries of activities. Nor is
there a reliable system of "closing the loop" between shipments EPA has approved
and actual arrivals.
3 EPA'S INTRODUCTION TO AND ENTRY INTO "SINGLE WINDOW"
After September 11, 2001, EPA recognized that it needed to strengthen its
relationship with Customs and Border Protection. By early 2003, EPA had
formed the EPA/Customs Initiative, designed to improve communication
and collaboration between our two agencies, and signed a Memorandum of
Understanding with Customs and Border Protection to share information. And
while the Memorandum of Understanding provided assurances that EPA would
be able to receive data from Customs and Border Protection, EPA soon learned that
obtaining that data from Customs and Border Protection's legacy systems required
significant extraction and report preparation that Customs and Border Protection
did not have the resources to provide. By 2004, EPA began working with Customs
and Border Protection and eight other federal agencies to modernize Customs'
legacy data systems into the Automated Commercial Environment.
EPA was also invited to join the Board of Directors of the International Trade Data
System. International Trade Data System is not a separate data system; rather, it is
the name given to the collection of U.S. Government agencies that are engaged in
development of this now government-wide, single window data system.2 Trade
participates with the International Trade Data System group through the Trade
Support Network, providing a transparent and vital exchange of information.
Initially, participation in the International Trade Data System was voluntary.
Between 2004 and 2006, the number of participating government agencies grew
from eight to twenty four. However, with passage of the Safe Port Act in October
2006,3 every federal agency with import/export responsibilities was required
to participate, and International Trade Data System now includes all of the U.S.
Government agencies with import or export responsibilities.
In order to build Automated Commercial Environment, Customs and Border
Protection was authorized $3.3 million/year for 10 years, and International Trade
Data System was budgeted to receive approximately $1.7 million/year. The money
is used to fund hardware and software purchases, design and build the system,
and provide contractor support to assist the federal agencies through the design
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338 Eighth International Conference on Environmental Compliance and Enforcement 2008
phase. Each agency is expected to design and fund its integration with the central
government system. Early EPA estimates for integrating all six of our commodity
flows with Automated Commercial Environment range as high as $15 million,
which includes upgrading existing systems.
Moving from the early desire to participate in Automated Commercial
Environment to where EPA is today has required a large investment of time
and effort. From 2004 to 2007 the effort was led by EPA's enforcement program,
recognizing that they have the most to gain from a successful integration with
Automated Commercial Environment. Unti passage of the Safe Port Act in late
2006, and a following Presidential Executive Order4 in July 2007 mandating that
each agency demonstrate that its Chief Information Officer support Automated
Commercial Environment integration, the enforcement program faced an uphill
battle: it lacked ownership of the data systems that needed to be integrated, it
lacked the resources to fund the integration, and it lacked the technical expertise
to fully manage the project. The Safe Port Act and the Executive Order provided
Office of Environmental Information with the direction it required to take
ownership of the integration project and to bring a proven Information technology
solution for integrating EPA's data systems with Automated Commercial
Environment. It also ensured that the program offices would work together with
Office of Enforcement and Compliance Assurance to address a shared mission.
When Office of Environmental Information took over the integration phase, a
foundation was in place from which to work. EPA staff had examined every
paper form required to import a commodity, and each form's data elements had
been built into a Standard Data Set designed by Customs and Border Protection.
One activity, which played out over a year's time and consumed enormous staff
resources, required EPA to sit around a table with Customs and Border Protection
and other federal agencies to hammer out the harmonization of data elements.
For example, one agency form might call for "Port of Arrival;" another, "Port
Where Shipment Arrives;" yet another, "Arrival Port." All parties then had to
agree on a common definition for each accepted data element. Only through this
somewhat arduous exercise was Customs and Border Protection able to develop
a manageable set of data elements it could then map back to each federal agency
requiring that data set.
There were many such exercises, including how our individual agency data
standards harmonized with the standard data set, with The United Nations
Centre for Trade Facilitation and Electronic Business and the World Customs
Organization standards. Of particular concern was how our commodity product
codes, or lack thereof, would work with Customs and Border Protection's
Harmonized Tariff System to ensure commodity identification in Automated
Commercial Environment. For example, a single harmonized tariff code might
cover more than 100 chemicals on EPA's Toxic Substances Control Act chemical
inventory. This could range from fairly innocuous chemicals to chemicals of real
concern. Each of the chemicals regulated under the Toxic Substances Control
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Act is identified by a unique Chemical Abstract Service number, and only those
chemicals on the inventory are legal for import into the U.S. An appropriate
approach to commodity codes is still being worked out.
4 EPA'S VISION OF A "TO BE" ENVIRONMENT UNDER THE SINGLE
WINDOW
Since 2005, EPA staff has been creating a Concept of Operations document to help
Customs understand what our business and Information technology operations are
now and how Information technology operations will be used in a single window
system. This "as is" and "to be" examination of import programs is the primary
planning tool for Automated Commercial Environment integration. The format
for the Concept of Operations is identical for every participating agency. Concept
of Operations, in conjunction with a related Memorandum of Understanding,
will provide the framework for EPA's future work. Both documents are subject
to significant negotiation with Customs and Border Protection — for Information
technology, for business operations, and from a legal perspective.
An important function of the Concept of Operations is to identify areas where EPA
may lack existing authorities to gather information and look for ways to maximize
the information to which we are entitled through Automated Commercial
Environment. In some cases, where new authorities may not be forthcoming,
this may be addressed by creating Memorandums of Understanding with
other agencies for sharing information. For example, it is possible that the U.S.
Department of Transportation may receive information about hazardous waste
shipments that could be shared with EPA, or vice versa.
Leveraging Automated Commercial Environment to the fullest extent is important,
since Customs' vision is that Automated Commercial Environment will enable
agencies to assume much of the burden that has historically fallen to Customs
and Border Protection for identifying noncompliant imports. This shift in
responsibilities can be significant and presents EPA with an unfunded mandate.
It also requires of EPA a level of expertise and resource commitment currently
lacking. Therefore, each step of the process has to be carefully considered.
EPA currently envisions a three-part plan for Automated Commercial Environment
integration: (1) re-engineer our business processes and operations, where we
work with Customs and Border Protection to identify opportunities to eliminate
redundancies and accelerate our collective business process; (2) upgrade and
modernize our existing EPA data systems that collect and exchange trade data so
that they can support electronic forms, automated transactions, and provide EPA's
data to Customs officials when and where they need it; and (3) leverage EPA's
existing environmental data exchange infrastructure/technology. Step 3, utilizing
EPA's Exchange Network and the Central Data Exchange, is the cornerstone of
EPA's "to be" vision.
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In production for more than four years, Central Data Exchange is the system
that enables States to report water and air quality data and other information
vital to EPA; it allows EPA to provide toxic release inventory data submissions
and other data to States; it allows States to exchange data with one another,
including homeland security and hazardous waste transporter data, among other
functions. All 50 U.S. States and many tribes use Central Data Exchange to file
their environmental reports. Importantly, as the central point through which
environmental data enters EPA, it provides important functions that will serve
EPA well with Automated Commercial Environment, including user registration,
authentication, and enhanced security, translation, and data validation. It is
through Automated Commercial Environment and the Exchange Network that
Automated Commercial Environment will connect to EPA's backend, or reference
systems. EPA will test two of its systems, for ozone depleting substances and for
toxic chemicals in 2008, and anticipates data flows for these two commodity lines
in early 2009.
At the same time the Information technology work is moving forward, EPA
staff are going through each step of the operations for each commodity
area, determining how operations can be refined to create clearer roles and
responsibilities between EPA and Customs and how they can best take advantage
of new technologies and infrastructure. We are working to balance the information
we need to do our job with the information to which we are legally entitled. As
powerful a tool as Automated Commercial Environment may be, it cannot provide
us with data for which we lack regulatory authority. Automated Commercial
Environment can decrement for us actual hazardous waste shipments against
those we have agreed to accept, but we must establish a linkage for that to occur.
New rulemaking for electronic filing must be written; staff must be trained.
Importantly, we must prepare ourselves that we may soon experience something
analogous to drinking from a fire hose. We began this endeavor in 2003 with
almost no data from Customs and Border Protection; managing the future will
require our best efforts to stay on top of voluminous data.
5 MEASURING OUR SUCCESS, LEARNING TO MANAGE THE FUTURE
Over the past few years, EPA has seen a surge in the number of motor vehicles,
motor vehicle engines, and non-road equipment, such as tractors, lawn mowers,
generators and other small engines imported into the United States. Many of these
products are not certified to meet EPA's air pollution standards under the Clean
Air Act. EPA has also identified noncompliant imports of highly toxic pesticides,
registered for agricultural use only, that have been used in homes, including
naphthalene mothballs, insecticidal chalk, roach killers, mosquito coils, and rat
poisons. Managing this increasing threat from illegal and unsafe imports is one of
our enforcement priorities.
In 2005, Customs and Border Protection migrated data it was collecting on
entered imports onto the early Automated Commercial Environment platform,
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and allowed access to participating government agencies, providing individuals
held appropriate security clearances and observed strict precautions. Accessing
Customs data was an important step for EPA, allowing for an opportunity to
work with Customs data for the first time. Six individuals underwent full field
background investigations and training, and have steadily enhanced EPA's ability
to use the data for identifying noncompliant shipments. In some cases, EPA
has determined that importers have reported information on ozone depleting
substance imports to Customs different from what they are reporting to EPA; that
Toxic Substances Control Act certifications being submitted to Customs by some
importers or Customs brokers, working in conjunction with or under contract with
the Importer of Record, lack factual verification as to Toxic Substances Control Act
compliance, as well as identifying other areas of noncompliance. In addition to
the enforcement actions EPA is taking, these early successes are helping us refine
our targeting efforts and our outreach to importers and Customs brokers.
6 CONCLUSION
Participating in a single window system promises significant benefits for agencies,
as well as for trade. Costs will vary depending on design and other choices made
during the process, and a carefully-crafted plan of operations, while critical, is not
enough. The program must be affordable, able to be implemented and measured,
and have the support of agency managers. Further, it is clear to EPA, based on
experience to date, that all parties will benefit from coming to the multi-agency
table early and advocating for our specific interests throughout the design and
build process.
EPA has learned that the integration process is complicated by the range of
regulatory authorities and EPA's "stove-piped" organizational structure. EPA
has also learned that absent a mandatory requirement for government-wide
participation, a fully successful outcome is far more difficult to achieve.
EPA's earlier efforts to partner with Customs are paying off in developing
operational plans related to Automated Commercial Environment integration, as
each agency better understands how we can build and then implement a system
that supports our shared and critical mission of protecting the people of the United
States from unsafe and illegal imports.
Ultimately, as governments adopt the single window application around the
world, we will need to establish standards that enable multiple single window
systems to communicate data with each other in a secure manner.
7 REFERENCES
1 Toxic Substances Control Act; 40 CFR Subchapter R, and part 707.20 and 19
CFR Sections 12.118-12.127 and 127.28(1); Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA); Federal Food, Drug and Cosmetic Act (FFDCA), 40 CFR
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Subchapter E, and 19 CFR sections 12.1 and 12.110 - 12.117; Resource Conservation
and Recovery Act (RCRA) Subtitle C, 40 CFR sections 262-265; Clean Air Act
(CAA) section 203, 4- CFR parts 85-94 and 1039 - 1068; CAA section 211, 40 CFR
part 79-80; CAA, Title VI, 40 CFR part 82. Available at http://www.epa.gov and
http://ww w. cbp. go v.
2 International Trade Data System Report to Congress, November 2007. Available
at http://www.itds.gov.
3 Security and Accountability for Every (SAFE) Port Act of 2006, (P.L. 109-347),
section 405.
4 Executive Order 13439, Establishing an Interagency Working Group on Import
Safety, July 18, 2007. Available at http://www.importsafety.gov.
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VERIFICATION OF WASTE DESTINATION: A QUESTION OF PRIORITY?
DOLS, NIEKOL1, HUIJBREGTS, CARL2 and LOONSTRA, ANNO3
1 Program manager international waste enforcement
2 Project manager enforcement of Asian waste shipments
3 Project manager enforcement of African waste shipments
The Inspectorate of the Ministry of Housing, Spatial Planning and the Environment in The
Netherlands
Department of Enforcement Policy
P.O. Box 20951
2500 EZ The Hague
Ipc 530
Email: MeldkamerEvoa@minvrom.nl
SUMMARY
The Inspectorate of the Netherlands Ministry of Housing, Spatial Planning and
Environment is the competent authority for transboundary waste shipments in
the Netherlands. Waste and/or second-hand goods are shipped all over the world
for recycling or re-use. In most cases, waste ends up in environmentally-sound
processing facilities. However, sometimes shippers merely act in order to make as
much profit as possible and seek the way of least resistance by which waste ends
up at illegal dumpsites causing environmental and/or human harm. Therefore, the
Inspectorates wishes to set up contacts with key officials of competent authorities
(e.g. environmental authorities, customs, port authorities) in Asian and African
countries to exchange information on a case-by-case basis focusing on waste
destination and waste management. In this article authors pose a few questions to
these key officials and highly appreciate their contributions.
1 INTRODUCTION
1.1 General
This article provides an overview of the expectations of the Netherlands
Environmental Inspectorate underlying the request for contacts with relevant
stakeholders in countries outside the European Community either from the
government or from (local) NGOs. The Inspectorate wishes to exchange
information with these stakeholders, in general and on a case-by-case basis,
regarding waste destination and recycling in the waste receiving countries, in
order to promote the implementation of the legal procedures for waste trade and
to prevent harmful waste shipments. Verification of the final destination, a critical
factor in achieving an essential target of waste shipment regulations, ensures that
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waste is processed in an environmentally-sound manner, and in accordance with
local environmental regulations. By verification as such, enforcement of waste
shipment regulations becomes more than a 'dead letter'.
1.2 Background
On 12 July 2007 a new Regulation (EC No 1013/2006) on transboundary shipments
of waste came into force in the European Community. This Regulation is the
follow-up to the Waste Shipment Regulation (259/1993) and aims to simplify and
streamline waste shipment procedures.1 This paper focuses on article 49, which
states in summary:
That the producer, the informant and other parties involved in a shipment of
waste and/or its recovery or disposal shall take the necessary steps to ensure that
every waste they ship is managed without endangering human health and in an
environmentally sound manner (ESM) throughout the whole period of shipment
and during its recovery and disposal. In case of export from the EU to third countries
of destination, the competent authority of dispatch are responsible for its compliance
and shall require information about the shipment and its processing.
Environmentally sound management may be assumed as regards the waste recovery
or disposal operation concerned, if the informant or the competent authority in
the country of destination can demonstrate that the facility receiving the waste
operates in accordance with human health and environmental protection standards
comparable to standards established in Community legislation2.
Article 49 of the Waste Shipment Regulation requires European authorities to
verify that waste leaving Europe is processed in a way that no harm is done to the
environment or to human health. Herewith this article is one of the legal bases to
prevent dumping of waste in third countries.
Waste is shipped globally due to high demand of secondary material, low
processing and disposal costs in the South and European recycling targets. The
Netherlands Inspectorate of the Ministry of Housing, Spatial Planning and
Environment (which is the competent authority for enforcement of mentioned EU-
regulation) is not aiming to hamper legal trade, the Netherlands wishes to prevent
environmental damage in other countries and the Inspectorate is seeking ways to
manage its responsibilities in a way that benefits both the countries of destination
and dispatch.
Additionally, illegal shipments cause false competition between involved
companies and ports. The Dutch seaports (Rotterdam, Amsterdam) are the main
shipping (transit) ports of European waste. Most of these shipments are legal and
the waste will be used as good quality raw materials in the country of destination.
Illegal shipments, however, may damage the image of the country and its ports.
In order to improve verification of waste destination the Netherlands Inspectorate
initiated two projects concerning shipments and processing of waste leaving
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Europe via Netherlands' ports and focus on setting up contacts with concerned
competent authorities in Africa and Asia.
2 VERIFICATION
2.1 Definition
Verification of waste destination is defined as a broad check to:
- Determine whether waste arrives and is processed at the indicated destination
and whether recovery operations follow requirements of both legal systems of
the administration of the country of dispatch and of destination;
- Ensure that waste is processed in an environmentally sound manner in
accordance with local environmental regulations and
- Determine if the imported waste and the rest stream after recovery match and
if it meets with the relevant environmental (and/or trade) goals.
Apart from an environmental perspective, verification of waste destinations is
necessary, in part because:
- Investigations in the Netherlands demonstrate that shippers sometimes present
incorrect, false or fictitious companies of destination in the official documents
to hide the real destination. Occasionally even names of well-known waste
facilities are misused.
- Like other material, waste is regularly resold during shipment. By this,
waste ends up in a different company then the one indicated in the original
documents. Often this is due to rerouting to a cheaper recycler with fewer
facilities, which couldpossibly cause environmental damage. Occasionally,
waste is rerouted for reasons of tax evasion.
By working together, the authorities will be able to follow the waste from cradle to
grave. Both countries will gain knowledge about the characteristics of waste trade.
For receiving countries this generates better possibilities to prevent environmental
damage in their country. Since illegal waste shipments are often linked with
other criminal activities, such as import tariffs fraud or trade in stolen goods,
collaboration of environmental authorities could also help to get a better grip on
these activities.
Effective cooperation will also help to solve problems of completed illegal
shipments because procedures for returning such shipments will become easier.
The authorities will be better able to tackle illegal shippers and to prevent further
environmental damage.
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2.2 Verification in Africa
Export of waste to African countries (non-OECD) is allowed when the importing
country has explicitly communicated to the EU the specifications of the waste they
wish to receive (third countries regulation2'3).
In practice, the interpretation and execution of this rule is more complicated:
- Is waste or non-waste at issue (especially difficult in the case of second hand
goods)?
- The gap between 'paper' and 'practice': do the documents really cover the
content of the transport?
- Will recycling be completed in a licensed facility?
- What is meant by the national standards of receiving country as stated in
Column D of the regulation (EC) No 1418/2007?3
It is of utmost importance for the competent authorities in the Netherlands, and
in other EU-member states, to have relevant contacts in "receiving" countries to
facilitate verification of the above-mentioned at their disposal. Only then, will
Dutch and other European national authorities be able to take immediate action in
case of doubts as a result of inspections of goods or waste ready for transportation.
For importing countries, it is also particularly important to provide the competent
authorities in the exporting countries with relevant information, to ensure that
their standards are taken into account during inspections or in the preparations
and issuing of export-permits.
In general it is assumed that a structural cooperation will facilitate enforcement of
the regulations in both the exporting and the importing countries.
For the Netherlands the following African destinations are currently important:
- Benin - Egypt
- Ethiopia - Ghana
- Ivory Coast - Kenya
- Nigeria - South Africa
In order to further improve the process of verification of waste destinations for
both the exporting country and the importing African countries, the following
information would be helpful:
1. Figures on waste and/or second hand goods import into these countries from
The Netherlands / Europe / developed countries in general.
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2. The extent to which African countries consider the import of waste from
'developed countries' a problem, and the concrete nature/magnitude of such
problems.
3. Names, functions and (email) addresses of key officials of the competent
authorities of the countries of destination (Environmental Authorities,
Transport- or Trade - related authorities, Customs, etc.).
4. The existence of specific waste regulations other than mentioned in column D of
the green list regulation (see endnote 3) and general environmental regulations
in these countries?
2.3 Verification in Asia
In general it is very important that authorities of shipping and receiving countries
have regular contact to know and understand the main features of each other's
national legislation. Through this process, countries learn to understand and
respect the specific strict rules that are sometimes applicable. Because of lack of
recovery capacity, some countries ban more (non-) hazardous waste streams than
others. Also, several countries imposed a ban on the import of all second hand
abandoned electronics because of proven environmental damage of e-waste
processing practices.
For the Netherlands the following Asian destinations are important:
- PR. China (cooperation - India
has begun) - Malaysia
- Vietnam - Indonesia
- Philippines - Sri Lanka
- Bangladesh - Pakistan
In order to further facilitate the process of verification of waste destinations
for both exporting country and the importing Asian countries, the following
information would be helpful.
1. The extent to which imported waste causes problems and the nature of such
waste problems. Information on (cases with) involvement of shippers from The
Netherlands.
2. The way in which countries are dealing with recurring questions (such as
definitions with respect to waste/non-waste, hazardous/non-hazardous, allowed/not-
allowed).
3. The existence of recycling facilities and their legal possibilities to receive waste.
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348 Eighth International Conference on Environmental Compliance and Enforcement 2008
4. Information regarding the correspondence of the recycling method with the
information in the export documents.
5. Information on actual (environmentally sound) recycling of waste.
3 VERIFICATION: A MATTER OF PRIORITY
Verification is not a question, but a matter of priority, since it is an essential
element of sound management and enforcement of international waste streams.
The authors hope that authorities concerned in both the countries of dispatch
and destination find further ways and means to join forces in order to strengthen
approaches and activities for verification of waste destinations and in the end both
benefit from it. The authors highly welcome observations and comments on this
paper.
The authors appreciate to learn from environmental authorities, customs and other
relevant organisations in the above mention African and Asian:
- names, functions and (email) addresses of their key officials;
- figures on waste and/of second hand goods imports from Holland/Europe;
- relevant regulations regarding import and processing of waste;
- 'problematic' transboundary shipments of waste from Holland; and
- other items mentioned in § 2.2 and § 2.3.
The authors would like to stress the importance of your contribution to make
verification of waste destination a matter of priority.
Please contact the Inspectorates Waste Shipment incident room via email:
meldkamerevoa@minvrom.nl or contact directly Mr. Anno Loonstra for African
countries or Mr. Carl Huijbregts for Asian countries via above mentioned email
address.
4 REFERENCES
Website: IMPEL-TFS final report on Verification of waste destination, ' What you
see is what you get?' published by IMPEL, June 2006, and project newsletters
website: http://ec.europa.eu/environment/impel/tfs_projects.htm#verification
5 ENDNOTES
1 The Waste Shipment Regulation formalizes the control procedures for
transporting waste within, into and out of the EU. The aim is to ensure a high
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Dols, Huijbregts & Loonstra 349
level of environmental and human health protection, while at the same time
safeguarding trading rights. This Regulation integrates the Basel Convention on
the Control of Transboundary Movements of Hazardous Wastes and their Disposal
and the OECD Decision on Control of transfrontier movements of wastes destined
for recovery operations. The Regulation covers shipments of all types of waste, for
final disposal or for recovery. Among waste for recovery, the non-hazardous waste
(so-called "green list waste" represents a useful secondary source raw material for
EU and non-EU trading partners.
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THE PROBO KOALA INCIDENT IN ABIJAN COTE D'lVOIRE: A CRITIQUE
OF THE BASEL CONVENTION COMPLIANCE MECHANISM
EZE, CHUKWUKAN. LLM (DALHOUSIE)1
1 Secretariat of the Basel Convention, United Nations Environment Programme,
Geneva, Switzerland.
SUMMARY
The alarming rate of illegal dumping of hazardous wastes witnessed in the
late 1980s appeared to have been checked in the early 1990s by the adoption
and subsequent entry into force of the Basel Convention and some regional
instruments on the subject. The Probo Koala incident in Abidjan, Cote d'lvoire in
August 2006, however, has brought to the remembrance of the global community
the harsh health and environmental consequences of this unwholesome practice.
More importantly, it constitutes a litmus test for the existing instruments,
revealing their strengths and weaknesses. Thus, against the background of
the Probo Koala incident, this paper undertakes a critical analysis of the Basel
Convention compliance mechanism, identifying inadequacies in the mandate of
the Basel Secretariat and the poor exchange of information requirements under the
Convention as major contributors to the Cote d'lvoire tragedy.
1 INTRODUCTION
The dumping of hazardous wastes in Abidjan, Cote d'lvoire in August 2006
by the tanker - The Probo Koala (hereinafter "the Probo Koala incident") has
brought to the limelight, not only the thriving business of transboundary
movement of hazardous wastes around the world, but also the adverse health and
environmental implications of this infamous trade.1 It has also brought to light
institutional and operational deficiencies, as well as a drastic lack of capacity of a
large number of countries to manage waste in an environmentally sound manner.2
It questions the effectiveness of the existing relevant international instruments in
combating this trade around the world, particularly from the developed to the
developing countries, and underscores the questionable nature of the parties'
compliance with the regulatory instruments. Recognizing this fact, the former
Executive Secretary of the Basel Secretariat, Mrs. Kuwabara-Yamamoto stated that:
One of the important lessons from the situation in Abidjan is that we have a
serious problem with enforcement. National and international laws are in place to
regulate these exports, but problems arise because of the lack of legal and technical
institutional capacity in many developing countries to monitor traffic across their
borders. Strengthening the enforcement capacity of the Parties will therefore
remain a priority for the Basel Convention in years to come3
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352 Eighth International Conference on Environmental Compliance and Enforcement 2008
Furthermore, besides revealing cracks in the current structure of international
environment governance,4 the incident specifically questions the efficacy of the
Basel Convention on the Control of the Transboundary Movements of Hazardous
Wastes and their Disposal ("the Basel convention")5 in fulfilling its mandate of
protecting human health and the environment against the adverse effects of the
generation, transboundary movements and management of hazardous wastes.
In light of the Probo Koala incident, this paper undertakes a critical analysis of
the Basel Convention compliance mechanism. In order to address the relevant
issues raised by the subject, the paper is divided into five parts. Part II provides
an account of the Probo Koala incident and Part III discusses the existing
compliance mechanism under the Basel Convention. Part IV critically assesses
the Basel Compliance mechanism against the events of the Probo Koala. Part V
concludes the discussion, making recommendations for improving the compliance
mechanism of the Basel Convention.
2 THE PROBO KOALA INCIDENT
The series of events which culminated in the Cote d'lvoire tragedy began when
a Korean-built, Greek-managed, but Panamanian-flagged tanker chartered by the
multibillion dollar (euro) Dutch commodities trading company Trafigum Beheer BV
("Trafigura") docked in Amsterdam to discharge its load on 2 July 2006. As the ship
discharged a portion of its cargo in a barge that was moored alongside the ship, a
west wind carried its sharp stench into nearby residential neighborhoods, where
residents notified the police. "This is the worst stench we have ever experienced
here," said an employee of Amsterdam Port Services, a waste disposal company.6
Amsterdam Port Services took a sample of the black substance from one of the
tanker's tanks. Though declared as "waste water" used to clean gasoline shipping
tanks, chemical analysis told a different story. The hydrocarbons in the material
contained high concentrations of mercaptan, a substance which is highly toxic and
odorous in high concentrations.7 After an analysis of the residues, it was decided
that the disposal operation required the use of specialist facilities in Rotterdam
and would cost in the range of Euros 250,000 - 300,000 and not Euros 19,000 as
originally envisaged, due to the high toxicity of the waste. Trafigura stopped the
discharge of the residues, refusing Amsterdam Port Services' new quotation for the
disposal of the slops. The slops were reloaded on the Probo Koala and the tanker
left with the consent of the Amsterdam Port Authorities. Trafigura assured the Port
Authorities that the residues would be managed safely elsewhere.
Three days later, the Probo Koala set sail to Estonia. Amsterdam port officials sent
an urgent message to their counterparts in Paldiski, an Estonian port, informing
them that a ship with a "suspicious cargo" was headed their way. Thus, the Probo
Koala was unable to get rid of its 'chemical soup' in Paldiski, where it took on a
consignment of gasoline bound for Africa. After unloading the gasoline in the
port of Lagos, Nigeria, it arrived in Cote d'lvoire in August. A company called
Tommy, which had just been established in July, took delivery of the slop which
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the European ports had turned away. Ivorian officials and witnesses say more
than a dozen trucks contracted by Tommy simply poured 528 tons of the waste at
17 public sites around Abidjan after midnight of August 19. In the early hours of
Monday 21 August 2006, residents of several parts of the district of Abidjan were
awoken by a thick and suffocating smell. By morning, eyes were stinging, noses
bleeding, stomachs, chests and ears were aching. Tests later confirmed the sludge
contained mercaptans and hydrogen sulfide, a potent poison that, particularly
in confined spaces, can cause blackouts, respiratory failure and death. Alerted,
the Ministry of Environment and Forestry mobilized its services whose initial
investigations led to the discovery of the dumping of some substance on several
sites of the district of Abidjan.
The incident evolved into a crisis and a tragedy from sanitary, psychological,
ecological and socio-economical perspectives. It led to massive displacement
of residents living near the dump sites, and violent public demonstrations
throughout the district of Abidjan. In view of the magnitude of the crisis, the Prime
Minister and the Government resigned on 7 September 2006. A new Government
was formed with the Ministers of Environment and Transport replaced by new
individuals. The heads of the Customs Services, the Abidjan Harbour and the
Governor of the District of Abidjan were all relieved of their duties.8 Interestingly,
it has also led to an upsurge in calls for a reassessment of the compliance
mechanism of the Basel Convention.
3 THE BASEL CONVENTION COMPLIANCE MECHANISM
Articles 4 and 6 of the Basel Convention impose obligations on parties to prevent
pollution due to hazardous wastes. With the object of preventing the adverse
health and environmental implications of hazardous wastes generation, movement
and disposal, the Convention regulates the generation, movement and disposal
of hazardous wastes. Adopting a preventive approach, the Convention enjoins
parties to take appropriate measures to ensure the reduction, to a minimum, of
the generation of hazardous wastes within their territories, taking into account
social, technological and economic aspects.9 It also requires parties to cooperate
in the development and implementation of new low-waste technologies, with a
view to eliminating, as far as practicable, the generation of hazardous wastes.10 In
regulating the transboundary movement of wastes, it prescribes the Prior Informed
Consent procedure.11 The Prior Informed Consent procedure imposes a duty
on the state of export to notify the prospective states of import or transit, of any
intended transboundary movement of hazardous wastes. The state of export can
either provide this information itself or require the generator or exporter to do so
through the channel of its competent authority.12 The state of import shall respond
to the notifier in writing, either consenting to the movement with or without
conditions, or denying permission for the movement, or requesting additional
information.13 A copy of the final response of the state of import shall be sent to the
competent authorities of the states parties concerned. In this regard, the state of
export shall not allow the generator or exporter to commence the transboundary
movement until it has received written confirmation that:
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354 Eighth International Conference on Environmental Compliance and Enforcement 2008
(a) The notifier has received the written consent of the state of import; and
(b) The notifier has received from the state of import confirmation of the existence
of a contract between the exporter and the disposer specifying environmentally
sound management of the wastes in question.14
More so, each state of transit is obligated to promptly acknowledge to the notifier
receipt of the notification. It may subsequently respond to the notifier in writing,
within 60 days, consenting to the movement with or without conditions, or
denying permission for the movement, or requesting additional information.
To this end, the state of export shall not allow the transboundary movement to
commence until it has received the written consent of the state of transit.15 When
the waste finally arrives in the state of import, the Convention enjoins parties to
dispose of such wastes in an environmentally sound manner. This entails taking
all practicable steps to ensure that the wastes are managed in a manner which will
protect human health and the environment against the adverse effects which may
result from such wastes.16
In addition, the Convention obliges parties to take appropriate measures to ensure
inter alia: (a) the availability of adequate disposal facilities for the environmentally
sound management of hazardous wastes;17 (b) that the transboundary movement
of hazardous wastes is reduced to the minimum;18 and (c) prevent the import
of hazardous wastes if it has reason to believe that it will not be managed in an
environmentally sound manner.19
4 THE PROBO KOALA INCIDENT AND THE BASEL CONVENTION
COMPLIANCE MECHANISM: A CRITICAL ANALYSIS
The sequence of events that precipitated the Probo Koala incident reveals the
inadequacies of the regulatory procedures/mechanism of the Basel Convention. As
earlier noted, the tanker - Probo Koala carried the hazardous wastes from the port
of Amsterdam to Paldiski, Estonia, and further down the road to the port of Lagos,
Nigeria before its final dumping in Abidjan, Cote d'lvoire. I am persuaded that
a more efficient international regulatory framework would have intercepted the
waste in transit and averted the eventual disaster in Abidjan. There are obvious
weaknesses in the policing of parties' compliance under the Basel Convention.
Two areas of weakness that facilitated the Cote d'lvoire tragedy are discussed in
this paper, namely, (1) the absence of the duty on parties to inform neighbouring
states of the presence of a vessel with hazardous wastes within their region;
and (2) the lack of supervisory role for the Basel Secretariat in waste shipments.
It is noteworthy that these two are not the only areas of weakness in the Basel
Convention, but the ones that provided a leeway for the Probo Koala incident.20
4.1 Absence of the duty to inform
The notification requirement under the Prior Informed Consent procedure, article
13(1) of the Basel Convention obligates parties to inform other states which are
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Eze 355
likely to be affected by an accident which occurred during the transboundary
movement of wastes or their disposal. Clearly, this duty arises only after the
occurrence of an accident, and the information should be given to states which
are likely to be affected by the accident only. There is no obligation in the Basel
Convention for a party to inform its neighbours of the movement or transit
of hazardous wastes within their coastal waters. The absence of this duty is
particularly worrisome given the widespread capacity deficiency amongst parties
to the Convention. In the case of the Probo Koala, Amsterdam port officials had
to send an urgent message to their counterparts in Paldiski, Estonian using the
Port State Control database as required by the EU Directive,21 but the Estonian
authorities found themselves under no obligation to inform African countries
when the ship headed for Africa. Similarly, after offloading its consignment of
gasoline in Nigeria, the Nigerian authorities, even though informally informed
of the ship and its cargo,22 did not find themselves obliged to alert fellow African
countries of the 'suspicious cargo' aboard the Probo Koala. This gives room for
the assumption that, had there been such a duty to inform, information about the
slop aboard the Probo Koala would have been made available to the appropriate
authorities, thereby foreclosing any reason why any state might have for accepting
the waste.
This point is aptly supported by the UNEP Project Document on the Capacity-
building Programme for the Monitoring and Control of Hazardous Wastes and
Toxic Chemicals in the Gulf of Guinea, which identified the need for proper
information sharing among neighbouring states as a veritable tool for averting a
reoccurrence of such incident, thus -
The sequence of events and the route followed by the Probo Koala in the Gulf of
Guinea before she eventually discharged the waste in the port of Abidjan confirms
the regional dimension of the problem. It also highlights the absolute need for the
sharing of appropriate information between port facilities in the sub-region. It also
confirms the necessity for a fluid and efficient mechanism for information sharing
as well as early warning procedures in the case of illegal traffic. This mechanism
should be regulated under an adequate legal framework.23
I sympathize with this observation and will reiterate that the absence of a duty to
inform in the Basel Convention is a major limitation of the instrument and a key
contributor to the Cote d'lvoire incident.
4.2 Lack of supervisory role for the Basel Secretariat in waste
shipments
Article 16 of the Basel Convention enumerates the functions of the Basel Secretariat
to include arranging and servicing meetings provided by the Convention,
preparing and transmitting reports of meetings, communicating with focal points
and competent authorities of parties, compiling information concerning authorized
national sites and facilities. Hence, the core functions of the Basel Secretariat are
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356 Eighth International Conference on Environmental Compliance and Enforcement 2008
that of coordinating and monitoring, with very limited supervisory functions.24
This limited supervisory authority of the Secretariat in wastes shipments (e.g., in
the Prior Informed Consent procedure) has been identified as a major weakness
of the Convention.25 Consequently, the effective implementation of the Convention
depends on the extent and quality of its implementation at the national level. Thus,
given the prevalent lack of capacity to dispose wastes in an environmentally sound
manner amongst parties to the Convention, breach should be expected.
This weakness played-out in the Cote d'lvoire episode. Had the Secretariat been
clothed with adequate supervisory functions over waste shipments, it could
have been notified by one of the parties that had business with the Probo Koala
before the incident (i.e., the Netherlands, Estonia, or Nigeria). This could have
triggered the intervention of the Secretariat to prevent the eventual health and
environmental disaster in Cote d'lvoire. As long as the Secretariat is expected to
stay aloof of wastes shipments, expecting parties to play according to rules in the
absence of an umpire, more disasters may be looming. It is indeed a great pity that
the Secretariat is to be notified concerning any given transboundary movement of
hazardous wastes only when a party which considers that its environment may be
affected by such movement has requested that this should be done.26 Apart from
this situation, the Secretariat will be considered a trespasser or a meddlesome
interloper if it ventures into issues relating to the transboundary movement of
wastes between parties. The Bamako Convention on the Ban of the Importation
into Africa and the Control of Transboundary Movement and Management of
Hazardous wastes within Africa27 makes a better provision in this respect. It
obligates its parties to ensure that copies of each notification concerning any
transboundary movement of hazardous wastes and the response to it are sent to
the Secretariat. Clearly, such notification requirement enhances the Secretariat's
participation in the shipment of wastes.
5 CONCLUSION
The dumping of hazardous wastes in Abidjan, Cote d'lvoire has once again
awoken the global community to the adverse health and environmental
consequences of the hazardous wastes trade. As efforts are being made in several
fora to prevent a reoccurrence of such an incident, and to improve the capacity of
states in handling similar disasters, it is necessary that the international community
returns to the drawing board, by taking a look at the legal superstructure upon
which waste trades are regulated. Since the Basel Convention is the principal
instrument in this regard, the foregoing analysis has revealed areas of possible
amendment of the instrument in order to strengthen its regulatory framework.
To this end, there is need to impose a duty on parties, to inform neighbouring
states of the presence of vessel(s) with suspicious cargo within their region, and
to accord the Secretariat a supervisory role over inter-parties shipment of wastes.
It would appear wanting in discretion to expect parties to conduct themselves in
accordance with the provisions of the Convention in the event of waste shipments
without a supervisory body to ensure compliance.
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Eze 357
6 REFERENCES
1 The adverse health and environmental dangers posed by the transboundary
movement of hazardous wastes are frightening: (i) In the village of some
developing countries, children have been found playing with spheres containing
radioactive isotopes formerly used in x-ray machines. John May, The Greenpeace
Book of The Nuclear Age: The Hidden History, The Human Cost (1990) 364;
(ii) In another instance, some Mexicans split open an x-ray machine sphere that
contained a radioactive isotope dust. As a result of its luminescent quality, the
Mexicans believed the dust to be a good luck charm. In the course of venerating
the deadly dust, it was spread throughout the city, and placed upon bodies of
many of those who came in contact with it. Consequently, some of the city ground
was contaminated and had to be removed and replaced. All of those who came
in contact with the dust became ill, and some died; (iii) Residents of developing
nations also find dangerous uses for the container of improperly disposed
hazardous wastes - old x-ray machines have been cut up and the metal which
may be radioactive, sold for scrap and latter combined into new metal or built
into a house, World Common on Environment and Development, Our Common
Future (1987) 226; (iv) In 1988, many drums of toxic wastes were dumped at the
backyard of a compound in a village located along the Delta of the River Niger,
Nigeria. Several months later, the contents had eaten up the drums and spilled to
the land, thereby creating very serious environmental pollution problems. Many
people lost their lives and the health of several people was adversely affected. See
Ekosse, George. "Transboundary Movement of Hazardous Wastes" in Pollution
Control and Waste Management in Developing Countries edited by Rogers W'O
Okot-Uma et al, (2000) UK, London, Commonwealth Secretariat, 417 at 425; (v)
The Peruvian incident seems more pathetic. On June 2nd, 2000, a truck from the
Yanacocha Mine spilled 151 kilograms of liquid mercury along a 40-kilometer
stretch of highway passing through Choropampa and two neighboring villages.
People gathered up the mercury, believing it to be a valuable metal. According
to conservative government estimates, more than 900 people were poisoned.
Symptoms of mercury poisoning (skin irritation, headaches, diminished eye sight,
kidney problems, stomach aches, etc.) emerged a few days after the spill. Several
of the victims were hospitalized, and one woman went blind. Juana Martinez from
the Choropampa Defense Front said: "Several children have been born missing
fingers and toes. Nothing like this ever happened in our village before the mercury
spill." Miscarriages are also occurring at an alarming rate, while children suffer
from chronic nosebleeds, respiratory infections, loss of sight and hearing, chronic
migraine headaches and an inability to concentrate. See Dividing and Polluting
- Yanacocha Gold Mine in Peru, online: Friends of the Earth International, http://
www.foei.org/publications/link/mining/22.html; (vi) More recently, following
the Abidjan illegal dumping of hazardous wastes, the name of one Jean Jacques
Kakou has been added to the list of victims of this infamous trade. Jean, a 27 years
old construction worker, like thousands of others awoke to an overpowering
stench that burned his eyes and made it hard to breathe. Three weeks later, he
was dead. Authorities suspect that one out of 10 deaths could be linked to the
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358 Eighth International Conference on Environmental Compliance and Enforcement 2008
illegally dumped hazardous waste. See From Rich to Poor: Ivory Coast Tragedy
Highlights Hazardous Waste Trade on Rise by The Associated Press, International
Herald Tribune (France) 17 October 2006, online: Basel Action Network, . The probe panel blames
the illegal dump on administrative failures and negligence. See Ivorian Toxic
Waste Probe slams errors by officials, online: Basel Convention Regional Centre
Pretoria, . For similar examples,
see Gwan, Cyril Uchenna. "Adverse Effects of the Illicit Movement and Dumping
of Hazardous, Toxic and Dangerous Wastes and Products on the Enjoyment of
Human Rights" (2002) 14 Florida Journal of International Law 427 at 432-433.
2 For an account of the paucity of capacity in handling the wastes by the Ivorian
government, see the United Nations Environment Programme "Regional Capacity-
building Programme for the Monitoring and Control of Transboundary Movement
of Hazardous Wastes and Toxic Chemicals in the Context of the Implementation of
the Basel Convention and other Related Multilateral Environmental Agreements in
the Gulf of Guinea." [Unpublished] (Hereinafter "The UNEP Project Document").
3 United Nations Environment Programme, "Liability for Cote D'lvoire Hazardous
Waste Clean-Up", online at http://www.unep.org/Documents.Multilingual/
Default.asp?DocumentID=485&Article
4 This incident reveals a gap in the existing multilateral instruments as it has
remained unclear whether the incident falls within the mandate of the Basel
Convention or that of the International Convention for the Prevention of Pollution
from ships 1973/78 (MARPOL 1973/78). As the waste in question was generated
in a vessel, some analysts see it as wastes derived from the normal operations of
a ship, the discharge of which is covered by another international instrument,
expressly excluded from the regulation of the Basel Convention by its article 1(4).
Similarly, others argue that there was no transboundary movement of the waste in
question to trigger the application of the Basel Convention. On the contrary, some
have contended that the offloading and reloading of the wastes in Amsterdam
before its final disposal in Cote d'lvoire satisfies the requirement of transboundary
movement etc. Obviously, there are points in each argument, revealing the gap in
the current global regime on the transboundary movement of hazardous wastes.
5 The Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal ("The Basel Convention") is the main multilateral
instrument regulating the transboundary movements of hazardous wastes around
the world.
6 See Sebastian Knauer, Thilo Thielke and Gerald Traufetter, Profits for Europe,
Industrial Slop for Africa, on 18 September 2006, online at http://www.spiegel.de/
international/spiegel/html
7 ibid.
8 For detailed account of the Probo Koala incident, see Eze, Chukwuka N.
"Bamako Convention on the Ban of the Import into Africa and the Control of
the Transboundary Movement and Management of Hazardous Wastes within
Africa: A Milestone in Environmental Protection?" (2007) 15:2 African Journal of
International and Comparative Law, 208 at 211; The UNEP Project Document,
supra, note 2; From Rich to Poor: Ivory Coast Tragedy Highlights Hazardous Waste Trade
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Eze 359
on Rise by The Associated Press, International Herald Tribune (France) 17 October
2006, supra, note 1.
9 Basel Convention, Article 4(2)(a); See also Kummer, Katharina. International
Management of Hazardous Wastes: The Basel Convention and Related Legal Rules
(Oxford: Oxford University Press, 1995) at 55.
10 Basel Convention, Article 10(2)©; Kummer, Katharina, ibid.
11 The PIC procedure is regulated by Articles 6, 7 & Annex VA of the Basel
Convention.
12 Basel Convention, Article 6(1); Kummer, Katharina, supra, note 9 at 65 and 66.
13 Basel Convention, supra, Article 6(2).
14 Ibid., Article 6(3).
15 Ibid., Article 6(4).
16 Ibid., Article 2(8) defines the Environmentally Sound Management (ESM).
This definition has been criticized for being very general in terms, see Abrams
David. "Regulating the International Hazardous Waste Trade: A Proposed Global
Solution" (1990) 28 Columbian Journal of Transnational Law, 801 at 828.
17 Ibid., Article 4(2)(b).
18 Ibid., Article 4(2)(d).
19 Ibid., Article 4(2)(e).
20 There are other areas of weakness in the compliance mechanism of the Basel
Convention. One such example is the Compliance Committee of the Convention
which has not handled any case for over six years of its establishment, owing to
the negative perception amongst Parties that "resort to the Committee could
be a strong diplomatic act." See Report of the Fifth Session of the Compliance
Committee of the Basel Convention, online at http://www.basel.int/legalmatters/
compcommitee/reports/cc5_06.doc
21 See The UNEP Project Document supra, note 2 at 14, where it was stated that
"The officials of the Shipping Division of the Transport and Water Management
Inspectorate (IVW) notified the next port using the PSC (Port State Control)
database in order to ask this port to carry out a check on the quantity of slops on
board the Probo Koala."
22 See the Report of the International Enquiry Commission on the Discharge of
Toxic Waste in Abidjan, 24 February 2007.
23 Emphasis supplied, See The UNEP Project Document supra, note 2 at 15.
24 See Basel Convention, Article 13; Kummer, Katharina, supra, note 9 at 82.
25 Ibid; Abrams David, supra, note 16 at 835.
26 Basel Convention, Article 13(4).
27 The Bamako Convention, 1991 was adopted in Bamako, Mali, on 30 January 1991
and came into force on 10 March 1999. As at 31 October 2007, there are 29 African
states signatories and 22 parties to the convention. Bamako Convention, online:
Basel Action Network http://www.ban.org/Library/bamako_treaty.html
7 BIBLIOGRAPHY
Abrams, David. J. "Regulating the International Hazardous Waste Trade: A
Proposed Global Solution" (1990) 28 Columbian Journal of Transnational Law,
801.
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360 Eighth International Conference on Environmental Compliance and Enforcement 2008
Ekosse, George. "Transboundary Movement of Hazardous Wastes" in Pollution
Control and Waste Management in Developing Countries edited by Rogers
W'O Okot-Uma et al, (2000) UK, London, Commonwealth Secretariat, 417.
Eze, Chukwuka N. "Bamako Convention on the Ban of the Import into Africa and
the Control of the Transboundary Movement and Management of Hazardous
Wastes within Africa: A Milestone in Environmental Protection?" (2007) 15:2
African Journal of International and Comparative Law, 208.
From Rich to Poor: Ivory Coast Tragedy Highlights Hazardous Waste Trade on Rise by
The Associated Press, International Herald Tribune (France) 17 October 2006,
online: Basel Action Network, http://www.ban.org/ban_news/2006/061017_
rich_to_poor.html
Greenpeace, Toxic Death Ship Blocked, 25 September 2006, online at http://www.
greenpeace.org/international/news/toxic-ship-probo-koala-240906
Gwan, Cyril Uchenna. "Adverse Effects of the Illicit Movement and Dumping of
Hazardous, Toxic and Dangerous Wastes and Products on the Enjoyment of
Human Rights" (2002) 14 Florida Journal of International Law, 427.
International Institute for Sustainable Development and United Nations
Environment Programme Division of Technology, Industry and Economics,
Environment and Trade: A Handbook (second edition) (2005) 16.
Kummer, Katharina. International Management of Hazardous Wastes: The Basel
Convention and Related Legal Rules (Oxford: Oxford University Press, 1995).
May, John. The Greenpeace Book of The Nuclear Age: The Hidden History, The
Human Cost (1990) 364.
Sebastian Knauer, Thilo Thielke and Gerald Traufetter, Profits for Europe, Industrial
Slop for Africa, on 18 September 2006, online at http://www.spiegel.de/
international/spiegel/html
Trafigura, Probo Koala Updates, 16 August 2007, online at http://www.trafigura.
com/trafigura_news/probo_koala_updates.aspx
United Nations Environment Programme, "Liability for Cote D'lvoire Hazardous
Waste Clean-Up" (2006), online at http://www.unep.org/Documents.
Multilingual/Default.asp?DocumentID=485&Article
United Nations Environment Programme "Regional Capacity-building Programme
for the Monitoring and Control of Transboundary Movement of Hazardous
Wastes and Toxic Chemicals in the Context of the Implementation of the Basel
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Eze 361
Convention and other Related Multilateral Environmental Agreements in the
Gulf of Guinea." [Unpublished].
World Common on Environment and Development, Our Common Future, (1987)
226.
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Florano, Prieto & Dig 363
RAPID APPRAISAL OF THE PHILIPPINE COMPLIANCE WITH,
AND IMPLEMENTATION OF ITS VARIOUS MULTILATERAL
ENVIRONMENTAL AGREEMENTS' OBLIGATIONS
FLORANO,EBINEZER R.1, PRIETO, PREJEAN A.
and DIG, EUGENIC ANTONIO E.2
1 Assistant Professor and Research Fellow, University of the Philippines-National
College of Public Administration and Governance, Diliman, 1101 Quezon City,
Philippines, efloranoy@yahoo.com and ebinezer.florano@up.edu.ph
2 Research Assistants, University of the Philippines-National College of Public
Administration and Governance, Diliman, 1101 Quezon City, Philippines,
prejudice_1985@yahoo.com and gene-no@yahoo.com
SUMMARY
This study evaluates the implementation of 10 multilateral environmental
agreements to which the Philippines is a signatory and/or has ratified. Out
of these 10 multilateral environmental agreements eight are global, and 2 are
regional. They represent various environmental concerns, such as climate change,
ozone depletion, biodiversity, bio-safety heritage sites, forests, oceans and seas,
and transboundary air pollution. Using the rapid appraisal method, the study
identified variables which serve as either facilitating or hindering factor in the
effective implementation of these multilateral environmental agreements.
1 INTRODUCTION
The Philippines' intention and ability to comply with and domestically implement
multilateral environmental agreements to which it is a signatory and/or has
ratified have been a subject of many case studies. Observations vary in their
assessment of the Philippine performance. Some are critical while others are
cautiously positive. Negative reviews usually center on institutional dysfunctions,
e.g., over-coordination of environmental policy formulation, implementation, and
review involving the Department of Environment and Natural Resources, the
Philippine Council for Sustainable Development, and the National Economic and
Development Authority;1 and fragmentation and communication failures primarily
between the Department of Foreign Affairs and the Department of Environment
and Natural Resources (DENR) on negotiating multilateral environmental
agreements, etc.2 Positive reviews, on the other hand, highlight the adaptability
of the Philippines to respond to the demands of the various multilateral
environmental agreements and the strategies being used for multilateral
environmental agreement implementation. There are also those which examine
the Philippines' extent of compliance depending on the nature of the multilateral
environmental agreement.3 Yet, most of these reports do not employ systematic
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364 Eighth International Conference on Environmental Compliance and Enforcement 2008
analysis of the causes of compliance (or non-compliance) of the Philippines.
Most of them concluded their reports by citing procedural accomplishments,
e.g., ratification of multilateral environmental agreements, enacting of enabling
national/domestic laws and measures, reduction of Ozone-Depleting Substances,
etc. Unfortunately, these are not enough to understand the Philippines' level of
compliance and implementation successes (or failures).
1.1 Objectives
This rapid appraisal aims not only to determine the levels of compliance (or
non-compliance) of the Philippines with its various multilateral environmental
agreements obligations, but explain the reasons behind them by analyzing the
factors that affect their effective implementation. The multilateral environmental
agreements considered in this study are listed in Table 1 (The 10 Multilateral
Environmental Agreements).
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Florano, Prieto & Dig
365
Table 1: The 10 Multilateral Environmental Agreements
Multilateral
Environmental
Agreement
Kyoto Protocol
Montreal Protocol on
Substances that Deplete
the Ozone Layer
Convention on Biological
Diversity
Cartagena Protocol on
Bio-Safety
Convention Concerning
the Protection of the
World Cultural and
Natural Heritage
International Tropical
Timber Agreement-1994
United Nations
Convention on the Law of
the Sea
Basel Convention on
the Transboundary
Movement of Toxic and
Hazardous Wastes and
Their Disposal
ASEAN Agreement
on the Conservation
of Nature and Natural
Resources
ASEAN Agreement on
Transboundary Haze
Pollution
Year of
Approval/
Open for
Signature
1997
1987
1992
2000
1972
1994
1982
1989
1985
2002
Year of Entry
Into Force
2005
1989
1993
2003
1975
1997
1994
1992
—
Year of
Ratification
by the
Philippines
2003
1991
1993
2006
1985
1994
1982
1993
1986
Lead
Government
Agency
in the
Philippines
EMB
POD
PAWB
NCBP
NCCA&
DENR
FMB
MOAC
EMB
DENR
PHTF-EMB
1.2 Theoretical Framework
This study builds on INECE's collection of literature on compliance theories.
In particular, this study uses Weiss and Jacobson's framework entitled, "A
Comprehensive Model of Factors that Affect Implementation, Compliance, and
Effectiveness."4 The model posits that the implementation and effectiveness of,
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and compliance with, international environmental accords could be explained by
variables grouped into four broad categories. These four groups of variables and
the specific hypotheses under them are as follows:
1. Characteristics of the Activities Involved: An accord can be effectively
implemented if there are smaller numbers of actors involved; there is a
positive implementation cost-benefit ratio; large transnational corporations are
monitored; and a regional hegemon provides good implementation examples
to others.
2. Characteristics of the Accord: An accord leads to effective implementation if
it adopts the differentiated obligations principle; it has precise objectives
and obligations; it utilizes scientific and technical advice from the epistemic
community; it requires party-signatories to submit reports to the secretariat;
it provides other forms of monitoring member-signatories' compliance; it
provides for an effective and efficient secretariat; and there are incentive and
sanction provisions.
3. International Environment: A conducive international environment for effective
implementation is one where international conferences are held to discuss
issues and problems; international media and informed public opinion
and non-governmental organizations pressure governments to deal with
environmental issues; and major international organizations and international
financial institutions are able to provide moral persuasion and financial/
technical assistance.
4. Factors involving the Country: Factors inherent to the country lead to effective
implementation if: the countries' history and culture are pro-environment/eco-
centric; the countries are democratic and rich; there is high local administrative
and technical capability; there is active participation from local non-
governmental organizations; and there are pro-environment political leaders.
1.3. Methodologies
This study employed the Rapid Appraisal Methods which are quick, low-cost
ways to gather the views and feedback of beneficiaries and other stakeholders
on the implementation of multilateral environmental agreements which concern
them. Data were also gathered from the Department of Environment and Natural
Resources and its various bureaus, and from the libraries, databases, and websites
of the 10 multilateral environmental agreements.
2 SUMMARY OF FINDINGS AND ANALYSES
Philippine laws as enabling instruments for the domestic implementation
of international accords are inter-related. Like multilateral environmental
agreements, domestic laws influence each other. The Local Government Code
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Florano, Prieto & Dig 367
of 1991 influences almost all the other environmental laws as it provides for the
devolution of environmental protection services. Thus, environmental programs
and projects usually involve local government units and the participation of the
people from the grassroots. The National Integrated Protected Areas System Law
also takes part in the implementation of various environmental programs as it
encompasses the marine, forest and terrestrial environments as long as they are
considered protected areas. The National Integrated Protected Areas System Law
has a transcending authority over the other sub-sectors of the environment.
Interconnections between and among domestic laws and between multilateral
environmental agreements are also perceivable and this is manifested by
the management of a single site or program in compliance with two or more
multilateral environmental agreements. For example, the Tubbataha Reef National
Marine Park is managed as a marine protected area (under the Convention on
Biological Diversity (CBD)), as a sanctuary of marine resources under the United
Nations Convention on the Law of the Sea (UNCLOS), as a world heritage site
under the World Heritage Convention, and as a protected wetland under the
Ramsar Convention. The same is true for the Puerto Princesa Subterranean River
National Park as a PA and as a world heritage site. Some forestlands are also
managed as protected areas under National Integrated Protected Areas System
and as forest reserves under International Tropical Timber Agreement-1994
(ITTA).
Due to the complexity and interrelationship of domestic laws, coordination among
the different government agencies is a must. Thus, implementation of some laws
is done in an inter-agency approach. The agricultural aspect of the Fisheries Code
of 1998, for example, is implemented by the Department of Agriculture's Bureau
of Fisheries and Aquatic Resources through its fishery and livelihood programs.
In addition, the Department of Environment and Natural Resources takes part in
the implementation of the code's environmental aspect through its marine and
coastal resources management programs. But, both of these are in compliance
with the United Nations Convention on the Law of the Sea. In the case of the
Montreal Protocol, the Philippine Ozone Desk (POD) takes the lead, with the
support from other agencies like the Bureau of Customs, Department of Trade and
Industry, Department of Health, among others. Likewise, the implementation of
the Cartagena Protocol is undertaken by the National Committee on Bio-safety of
the Philippines (NCBP) and Bureau of Plant Industry as lead agencies.
In some cases, the inter-connectivity of domestic laws leads to multilateral
environmental agreement implementation conflicts. The National Integrated
Protected Areas System and IPRA Laws, for example, conflict with each other in
protected area management because the former upholds participatory approach,
while the latter promotes (indigenous peoples') rights-based approach. The case
of the indigenous peoples of Coron Island in Palawan is one example where the
IPRA Law dominated the National Integrated Protected Areas System Law, i.e.,
the indigenous peoples' rights were upheld over those of the majority's rights for a
healthful ecology.
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Philippine compliance with the 10 multilateral environmental agreements can
be plotted in a spectrum of procedural and substantial compliance. In terms
of substantial compliance, some of the provisions and obligations under some
multilateral environmental agreements have already been undertaken by the
Philippines even before their ratification and entry into force in the country. Thus,
we may call this as "perfunctory compliance" because of the routinary activities
or practices prior to the multilateral environmental agreements' enforcement.
Some protected areas, for example, have been established as early as the 1980s.
The National Committee on Bio-safety of the Philippines has also been engaged
in genetically-modified organism issues and concerns since 1990. Government
agencies like the Cabinet Committee-Maritime and Ocean Affairs and Maritime
and Ocean Affairs Center, have also been engaged in marine environmental
protection and baselines and territory identification prior to the United Nations
Convention on the Law of the Sea.
Among many other factors, financial incentives may have attracted the Philippines
to ratify many multilateral environmental agreements. Majority of the multilateral
environmental agreements under study provide financial assistance for developing
countries to implement them. Nine of these multilateral environmental agreements
have been ratified by the Philippines, the most recent of which is the Cartagena
Protocol (October 2006).
Table 2: Multilateral Environmental Agreements Ratification and Provision for
Financial Assistance
Multilateral Environmental
Agreements
ITTA
CBD
WHC
UNCLOS
ACNNR
Basel3
Montreal
Cartagena
ATHP
Kyoto
Philippine Ratification/
Signature
X
X
X
X
X
X
X
X
X
Available Financial
Assistance
X
X
X
X
X
X
X
X
X
Note:
a Financial assistance is based on voluntary contribution.
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Florano, Prieto & Dig 369
Generally, the Philippines is strong in procedural compliance, including the
submission of national reports, attendance in international meetings and
conferences, and membership in subsidiary bodies created by the international
conventions. The Protected Area and Wildlife Bureau, for example, has already
submitted its "Third National Report to the Convention on Biological Diversity."
Likewise, the Forest Management Bureau has transmitted its "Second National
Report to the International Tropical Timber Organization." The National
Commission for Culture and Arts also transmits regularly its "National Report
to the World Heritage Committee" which is supplemented by the conservation
reports of local organizations in charge of the management of the world heritage
sites. The Environmental Management Bureau has also completed its "National
Reporting" and "National Communication" to the Basel Convention and Kyoto
Protocol, respectively.
Other examples of procedural compliance of the Philippines are: the development
of criteria and indicators system and issuance of tenurial agreements
(International Tropical Timber Agreement -1994); the issuance of permits to
recyclers, and transporters to operate (Basel Convention); the issuance of permits
to conduct business (Cartagena Protocol); and the establishment of protected
areas (Convention on Biological Diversity). Still, substantial improvements on
the condition of environment are hardly recorded or reported. Without these
accomplishments reported, interested parties may get lost or confused when
measuring the multilateral environmental agreements' effectiveness because the
real measures as to the improvement of the environment are not apparent.
This study affirms that financial capability is a very significant factor in effectively
implementing multilateral environmental agreements at the local/ground level. In
the case of the Convention on Biological Diversity, a trend of effective management
is observed in revenue-earning protected areas. This is true in the cases of the
Tubbataha Reef National Marine Park (user fee is imposed), and the Rice Terraces
of the Cordilleras (no user fee is imposed). The former is effectively protected
using the funds generated from the user fees, while the latter is not because,
aside from the fact that individual lots of the terraces are privately owned, user
fees cannot be imposed which could be used to renovate the slowly eroding rice
terraces. In the forestry sector, reforestation effort was at its peak when there was
still money from the ADB-funded National Reforestation Program. However,
reforestation began to wane when there were no longer enough funds to conduct
massive reforestation again. In the case of the Montreal Protocol, the effective
implementation of the National CFC Phase-Out Plan is partly attributed to the
funds provided by the Multilateral Fund and World Bank (multilateral assistance),
and Swedish International Development and Cooperation Agency (bilateral
assistance).
The skills of officials in charge (e.g., managers or superintendents of protected
areas, foresters, custom examiners, agriculturists, etc.) of the implementation of
the multilateral environmental agreements are also necessary to achieve effective
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implementation. Most of the protected area superintendents or managers in the
Philippines are not knowledgeable in the field , hence, most of the protected
areas are also not managed effectively, according to the Haribon Foundation, an
environmental NGO. Likewise, customs officials may have to be trained to check
multilateral environmental agreements' objects of control (e.g., hazardous wastes,
genetically-modified organism s, Ozone-Depleting Substances, biodiversity species
for trade, etc.) at the port-of-entry. Lack of knowledge or its inadequacy among
Bureau of Customs personnel would put the country in jeopardy with hazardous
wastes and its multilateral environmental agreement obligations. One such case
is the entry of Ozone-Depleting Substances in a port in Cebu. The Department
of Environment and Natural Resources also admits that there are illegal entries
of Ozone-Depleting Substances in the country, but these are not monitored and
usually unreported. Apart from the lack of knowledge of officials, the geographic
character of the Philippines, an archipelagic country, contributes to the illegal entry
of Ozone-Depleting Substances, genetically-modified organisms, and hazardous
wastes because each part of the country's coasts may be considered as possible
ports of entry.
Personnel turnover (i.e., resignation, transfer, retirement) is also a factor that
hinders effective implementation of some accords. In the Philippines, personnel
turnover does not provide for the continuation of programs and activities. Hence,
new staff begins from scratch because the knowledge of the previous staff are not
passed on to them. In the case of the ASEAN Agreement on Transboundary Haze
Pollution (ATHP), for example, the retirement of the focal person has led to the
partial loss of knowledge and expertise in the field.
The study encountered some difficulties in assessing the effectiveness of
implementation of two multilateral environmental agreements, namely, United
Nations Convention on the Law of the Sea and ASEAN Agreement on the
Conservation of Nature and Natural Resources (ACNNR). The United Nations
Convention on the Law of the Sea, a document composed of more than 200
pages, is a very broad accord and this has not permitted the researchers to make
a substantial assessment. Although the study on United Nations Convention on
the Law of the Sea focused on the provisions of marine environmental protection,
difficulty in analysis was still encountered. This is because the provisions on
marine environmental protection are highly related and inseparable to the other
contents of the accord such as shipping, marine pollution due to oil spills, and
exploration of seabed. In addition, the sheer size of the Philippine marine territory
makes it difficult to assess the effectiveness of the accord's implementation.
Agreement on the Conservation of Nature and Natural Resources is another
multilateral environmental agreement with which the study had difficulty in
assessing. It was ratified by the Philippines, but it has never entered into force
due to the failure of other member-countries of the Association of Southeast Asian
Nations to ratify it.
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Florano, Prieto & Dig 371
3 CONCLUSION
The Philippines is one of the countries which has the most number of multilateral
environmental agreements, i.e., 28. It is well-noted that the country "possesses one
of the most responsive institutional and legislative mechanisms for environmental
management in South East Asia."5 Yet, it also has its share of environmental law
and regulation implementation problems especially in fulfilling its multilateral
environmental agreement obligations. In this study, the following variables were
observed as facilitating or hindering factors in the effective implementation of
multilateral environmental agreement obligations in the Philippines: political will,
funds, technical knowledge in implementing environmental laws, cooperation
of civil society organizations and the business sector, coordination between and
among national and local authorities and government agencies, and harmony
among national/domestic environmental and various other laws.
4 REFERENCES
1 UNESCAP Virtual Conference, Philippines: Over-Coordination (4 April 2006)
available at http://www.unescap.org/drpad/vc/orientation/m3anx_phl_int_coor.
htm.
2Boyer, Brook et al., National and Regional Approaches in Asia and the Pacific,
p. 27; and UNESCAP Virtual Conference, The Philippines: Communication
Difficulties (4 April 2006) available at http://www.unescap.org/drpad/vc/
orientation/M3anx_ph_int_part.htm.
International Institute for Sustainable Development (USD), Summary Report of
the Informal Regional Consultation on Inter-Linkages: Synergies and Coordination
Among Multilateral Environmental Agreements (4 April 2006) available at http://
www.iisd.ca/sd/interlinkages/interlink2/sdvol48numl.html.
4Weiss, Edith Brown & Jacobson, Harold, K., Engaging Countries: Strengthening
Compliance with International Environmental Accords, Chapter 1 (2000).
5Tan, Alan K. J., Preliminary Assessment of Philippine's Environmental Law,
APCEL Report: Philippines (2 June 2003) available at http://sunsite.nus.edu.sg/
apcel/dbase/filipino/reports.html.
5 BIBLIOGRAPHY
ASEAN Agreement on the Conservation of Nature and Natural Resources,
available at http://www.aseansec.org/1490.htm.
Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal, available at http://www.basel.int/text/documents.
html.
Boyer, Brook Et al., National and Regional Approaches in Asia and the Pacific
(2002).
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372 Eighth International Conference on Environmental Compliance and Enforcement 2008
Cartagena Protocol on Bio-safety to the Convention on Biological Diversity,
available at http://www.cbd.int/biosafety/protocol.shtml.
Convention Concerning the Protection of the World Cultural and Natural Heritage,
available at http://whc.unesco.org/
Convention on Biological Diversity, available at http:// www.cbd.int/convention/
convention.shtml
Florentino-Hofilena, Chay and Baretto-Lapitan, Giselle, LGU Mandates on Solid
Waste Management, available at http://lgrc.lga.gov.ph/greenstone/collect/
serviced/archives/HASHde27.dir/doc.pdf (2000)
Department of Environment and Natural Resources, 2001 Accomplishment Report
(2001).
Department of Environment and Natural Resources, Clean Development
Mechanism-Philippines, available at http://www.cdmdna.emb.gov.ph/cdm/
public/cdm-updates.php?main=updates&start=8&p_f=-l (2006).
Department of Environment and Natural Resources-Forest Management Bureau,
National Report of the Philippines: Criteria and Indicators for Sustainable
Management of Natural Tropical Forests (2003).
Department of Environment and Natural Resources, Philippine Forestry Statistics
(1990-2004).
Environmental Management Bureau, Country Fact Sheet for the Basel Convention,
available at http://basel.int/natreporting/2005/cfs/philippines.doc (2006).
Estacio, Julieta Fe L., Philippine Bio-Safety Regulations: EO 430 History, Process
and Experience (2004).
Ferrari, Maurizio Fahan & de Vera, Dave, A Choice for Indigenous Communities
in the Philippines, available at http://www.cceia.org/resources/publications/
dialogue/2_ll/online_exclusive/4457.html.
Florano, Ebinezer R., Assessment of the "Strengths" of the New ASEAN
Agreement on Transboundary Haze Pollution, 4(1) INTERNATIONAL REVIEW
OF ENVIRONMENTAL STRATEGIES, 127-147 (2003).
Florano, Ebinezer R., Regional Environmental Governance: A Study on the ASEAN
Regional Haze Action Plan, PhD dissertation submitted to the Graduate School
of Public Administration, International Christian University (2004).
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Florano, Prieto & Dig 373
International Institute for Sustainable Development (USD), Summary Report of the
Informal Regional Consultation on Inter-Linkages: Synergies and Coordination
Among Multilateral Environmental Agreements, available at http://www.iisd.
ca/sd/interlinkages/interlink2/sdvol48numl.html.
International Tropical Timber Agreement of 1983 and 1994, available at www.itto.
or.jp/live/PageDisplayHandler?page!d=225.
Koh, Kheng-Lian, ASEAN Agreement on the Conservation of Nature and Natural
Resources, 1985: A Study in Environmental Governance, available at http://law.
nus.edu.sg/apcel/publications/pub/kohkhenglian/ASEANPaper.pdf (2003).
League of Municipalities in the Philippines & Department of Environment and
Natural Resources, Best Coastal Management Programs Awards 2000, available
at http://www.oneocean.org/download/20001123/best_crm_2000.pdf (2000).
Montreal Protocol on Substances that Deplete the Ozone Layer, available at http://
www.unep.org/ozone/Treaties_and_Ratification/2B_montreal_protocol.asp
Ozone Action Program Library, Illegal Trade in Ozone Depleting Substances —
UNEP Takes an In-depth Look, available at http://www.uneptie.org/ozonaction/
information/mmcfiles/4691-e-illegalt.pdf (2001).
Saway, Adolino T., & Mirasol, Jr., Felix S., Decentralizing Protected Area
Management: A Mt. Kitanglad Range Natural Park Experience., available at
http://www.prof or.inf o/pdf/Makapuka w_Mirasol.pdf (2004).
Sutherland, Duncan et al., Main Constraint # 1: Limited Organizational Capability,
available at http://www.itto.or.jp/live/Livej3erver/621/Philippines%20Fire%20
Analysis.doc (2004).
Tan, Alan K. J., Preliminary Assessment of Philippine's Environmental Law,
APCEL Report: Philippines, available at http://sunsite.nus.edu.sg/apcel/dbase/
filipino/reports.html.
UNEP-Ozone Secretariat, The Montreal Protocol, available at http://ozone.unep.
org/Treaties_and_Ratification/2B_montreal_protocol.asp.
United Nations Convention on the Law of the Sea, available at http://www.un.org/
Depts/los/index.htm.
UNESCO-World Heritage Centre, Report of a Joint Reactive Monitoring Mission to
the Rice Terraces of the Philippine Cordilleras, Ifugao Province, the Philippines,
available at http://www.iucn.org/themes/WCPA/wheritage/monitoring/
RiceTerr2006en.pdf (2006).
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UNEP, International Environmental Governance: Multilateral Environmental
Agreements (2001).
UNESCAP Virtual Conference, The Philippines: Communication Difficulties,
available at http://www.unescap.org/drpad/vc/orientation/M3anx_ph_int_part.
htm.
UNESCAP Virtual Conference, Philippines: Over-Coordination, available at http://
www.unescap.org/drpad/vc/orientation/m3anx_phl_int_coor.htm.
UNESCAP Virtual Conference, Response of the Philippine Government to
Multilateral Agreements, available at http://www.unescap.org/drpad/vc/
conference/ex_ph_34_rpg.htm.
United Nations Framework Convention on Climate Change, available at http://
www. unfccc.int.
Velasco, Yolando T., Climate Related Policies, available at http://www.whrc.org/
policy/climate_change/ALApdf/ALA-05 PHILIPPINES.pdf (2005).
Vienna Convention for the Protection of the Ozone Layer, available at http://www.
unep.ch/ozone/vc-text.shtml.
Weiss, Edith Brown & Jacobson, Harold, K., Engaging Countries: Strengthening
Compliance with International Environmental Accords, Chapter 1 (2000).
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Goran, Gorana, Merica & Ranka 375
BALLAST WATER MANAGEMENT IN CROATIA
BELAMARIC, GORAN, GORAN A, JELIC-MRCELIC, MERICA, SLISKOVIC and
RANKA, PETRINOVIC1
1 Faculty of Maritime Studies Split, Zrinskofrankopanska 38, 21000 Split, Croatia,
gjelic@pfst.hr.
SUMMARY
The World Health Organization, as well as Port Authorities, have expressed
great concern regarding the growing menace of harmful aquatic organisms and
pathogens released from the ballast tanks of freighters partaking in international
voyages. Management and control measures include (1) minimizing the uptake
of organisms during ballasting by avoiding areas where populations of harmful
organisms are known to occur; (2) cleaning ballast tanks, such as removing mud
and sediments that accumulate in tanks, which may harbour harmful organisms;
and (3) avoiding unnecessary discharge of ballast. Ballast Water Exchange is
the operational method currently used by all ships that are subjected to existing
regulations, this exchange strives to remove exotic species from ballast tanks by
replacing seawater taken on in port and near shore areas with seawater from the
deep, open ocean. International regulations concerning the problem of ballast
water were first introduced in the late 1980s. In 2004, The Ballast Water Convention
was adopted, consisting of Articles and an Annex which includes technical
standards and requirements for the control and management of ships' ballast water
and sediments. By adoption of the Maritime Code in 2004, which is based about 80
percent on Maritime Code of the Republic of Croatia enacted in 1994, Croatia was
obliged to create legislation on ballast waters control and management within the
period of two years from the enforcement of the Code.
1 INTRODUCTION
International Maritime Organization estimates that ten billion tons of ballast water
with 10,000 species of marine organisms is transferred each year worldwide. The
introduction of invasive marine species into new environments has been identified
as one of the four greatest threats to the world's oceans. The vast majority of
marine species carried in ballast water do not survive the journey. Even those
that do survive a voyage and discharging, the chances of surviving in the new
environmental conditions, including predation by and/or competition from
native species, are low. However, when all factors are favourable, an introduced
species may become invasive, out-competing native species, and multiplying into
pest proportions. There are hundreds of examples of catastrophic introductions
around the world resulting in economic and/or ecological impacts in the native
environment, and causing severe consequences to human health. Unlike other
forms of marine pollution, such as oil spills, where ameliorative action can be
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taken and from which the environment will eventually recover, the impacts
of invasive marine species are most often irreversible. Further, municipal and
industrial water users have spent large sums of money in recent decades cleaning
infested waters. Also, commercial and recreational fisheries throughout the world
have sustained economic losses due to the depletion of native species. Action to
prevent and control future invasions is essential.
2 BALLAST WATER MANAGEMENT
Ballast Water Exchange is the method currently used by all ships that are subject
to existing regulations, which requires seawater taken on in port and near shore
areas to be exchanged with seawater from the deep, open ocean. This exchange can
be accomplished by the sequential (empty and refill) method or by the overflow/
flow-through method. The sequential method requires completely emptying
segregated ballast tanks and refilling them with open ocean water. The overflow
method entails pumping open ocean water into a full, ballast tank for a length
of time that will exchange the ballast water tank volume at least three times. The
biological effectiveness of ballast water exchange has not yet been confirmed and
exchange occasionally cannot be performed due to safety concerns. Ballast water
exchange is not completely effective and may have safety and cost implications
for the operation of the ship. Other options include (1) mechanical treatment
methods such as filtration and separation; (2) physical treatment methods such
as sterilisation by ozone, ultra-violet light, electric currents and heat treatment;
and (3) chemical treatment methods such adding biocides to ballast water to
kill organisms and various combinations of the above. Due to the limitations of
Ballast Water Exchange, it is clear that practical and economical onboard treatment
methods must be developed and their efficacy confirmed.
3 BALLAST MANAGEMENT TIPS
The following measures are recommended to minimize the uptake and release
of harmful aquatic organisms. These measures are of the utmost importance
to improve environmental compliance and enforcement within ballast water
management.
3.1 Minimize Ballasting in Ports and Coast Areas
Although most merchant ships require ballast water for stability, minimizing
the amount of ballast water taken in from ports and coastal areas will reduce the
number of potential invades transported to the next port.
3.2 Perform Open Ocean Ballast Exchange Within Safety Permits
Most open ocean species cannot survive in the near shore environment. With
open ocean exchange, ballast water containing organisms from near shore sites is
replaced within open ocean water containing species not well adapted to the near
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Goran, Gorana, Merica & Ranka 377
shore environment. Croatia must adopt a law requiring exchange of ballast water
at open sea or following other specified management requirements.
3.3 Avoid Ballast Uptake Over Night
Some organisms rise in the water column to feed or reproduce during the
day, making them more available for uptake. The chance for bottom dwelling
organisms and sediments being entrained with ballast water increases when
ballasting in shallow ports where sediments are disturbed by propeller wash.
3.4 Avoid Ballast Uptake in "Hot Spots"
"Hot spots" are water bodies that are particularly infested with non-native species,
have toxic algal blooms or are contaminated by sewage outfalls. Scientists are
trying to identify global hot spots.
3.5 Reduce Invasions Via Hull and Anchor Fouling
Non-native species can attach to hull, pipes and tanks. They should be removed
and disposed off on a regular basis. Anchors and anchor chains should be rinsed
during all retrievals to prevent transport of nuisance species from their point of
origin.
3.6 Keep Records of Ballasting Operations
Masters of all vessels carrying ballast water into Croatian waters after operating
beyond the Exclusive Economic Zone, unless specifically exempted, are required
to keep records and provide written information to the Authorities (Harbour
Master).
4 CROATIAN MARINE AND COASTAL AREAS
The exceptional natural beauty of Croatia's coastal and marine areas and the
irrational use of natural resources gives rise to the fear that these areas will be
contaminated by invasive species due to ballast water exchange. Consequently, the
imposition of an efficient marine and coastal management system appears to be
an extremely important objective. A comprehensive assessment on the country's
marine and coastal areas would go beyond the scope of this paper but some of the
most significant problems should be mentioned:
• Seriously insufficient level of scientific knowledge about marine ecosystems
and species;
• The lack of coastal management plans;
• The absence of specially designated and managed marine areas;
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• Inefficient control due to physical features of marine areas (well-indented coast
and numerous islands makes control both difficult and expensive);
• Intensive and often illegal building activities along the coastline and related
problems;
• The development of nautical tourism, which results in rapidly increasing
number of recreational crafts and related problems; and
• The disrespect of sustainable capacity of marine environment in general.
5 ENVIRONMENTAL LEGISLATION ENFORCEMENT
At the national level, responsibility for the environment belongs to the recently
established Ministry of Environmental Protection and Physical Planning, which
has significantly strengthened the competence and capacity of environmental
protection in Croatia. Inadequate working conditions (the lack of human
resources, financial sources, equipment, on-the-job training opportunities, etc) and
enforcement agencies (inspection, administrative offices), particularly their local
branches, are the major institutional problems. The Ministry of Environmental
Protection and Physical Planning has authorized environmental inspectors,
but their number is far from sufficient. Such understaffing is mostly apparent in
major towns such as Zagreb, Rijeka, Split, and Osijek. In addition, insufficient
coordination with other governmental bodies (such as the Navy, Maritime
Police, Ministry of Maritime Affairs, Business and Commerce) results in a lack
of awareness of their responsibilities. Further, at the local level, the uneven and
often scarce capabilities of local administration are responsible for failures in
enforcements of environmental laws and regulations.
Regarding Croatia's environmental legislation practice, the following facts should
be emphasized:
• Environmental legislation still needs to be harmonized with ratified
international treaties and EU legislation;
• The lack of utilization of the Croatian judiciary system in environmental
matters makes both courts and attorneys inexperienced in regard to relevant
cases;
• The inefficiency of the judiciary system in general; and
• The insufficient rate of public participation in environmental decision-making
procedures due to the lack of proper information and awareness.
The lack of environmental protection programs adopted at the regional level
illustrates inefficient law enforcement in Croatia. The failure to implement local
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Goran, Gorana, Merica & Ranka 379
environmental programs results from the incompetence of regional environmental
authorities and the lack of experts to carry out these tasks. However, the Croatian
government is motivated to impede environmental degradation in their country.
For example, in 1997, Croatia invested about 0.2-0.3 percent of their GDP directly
to environmental protection (the equivalent of $30-35 million U.S. dollars).
Regardless, it is the opinion of the authors that corruption significantly contributes
to environmental problems, particularly in certain regions and fields of interests.
Such cases include the issuance of building permits for the coastal zone without
respecting physical planning documents, or allowing the exploitation of certain
natural resources, such as gravel and rocks.
6 BALLAST WATER REGULATIONS
International regulations concerning the problem of ballast water were first
introduced in the late 1980s. Canada and Australia brought their concerns to
the attention of the International Maritime Organization's Marine Environment
Protection Committee after experiencing particular problems with marine flora
and fauna devastations caused by unwanted species. In 1991, Marine Environment
Protection Committee Resolution 50 (31) - Guidelines for Preventing the
Introduction of Unwanted Organisms and Pathogens from Ships' Ballast Water and
Sediment - was adopted by Marine Environment Protection Committee. Two years
later, International Maritime Organization Assembly adopted resolution A774
(18) with same title. The resolution required updating of the original guidelines
according to development of international applicable legally-binding provisions
by Marine Environment Protection Committee and MSC.
On February 13, 2004 the International Convention for the Control and
Management of Ships Ballast Water and Sediments (Ballast Water Convention) was
adopted at International Maritime Organization Diplomatic Conference in London.
The Ballast Water Convention consists of Articles and an Annex which includes
technical standards and requirements for the control and management of ships'
ballast water and sediments. In accordance with the Ballast Water Convention,
coastal countries have a right to take, individually or jointly with other Parties,
more stringent measures with respect to the prevention, reduction, or elimination
of harmful aquatic organisms transfer in consistency with international law.
Ships have to be surveyed, certified, and remain open to inspection by Port State
control. The Ballast Water Convention will come into force twelve months after the
Convention is ratified by 30 States representing 35 percent of world ships tonnage.
Between 2009 and 2016, the introduction of mandatory ballast water management
is necessary in order to eliminate the common practice of vessels discharging
untreated ballast water. During the transition period, ships are allowed to
exchange ballast water, but it must be at least 200 nautical miles from nearest
land and at least of 200 meters depth. If it is not possible, the ship should stay
at least 50 nautical miles from the nearest land and at 200 meters depth. When
these requirements cannot be met, special areas may be designated jointly by
neighboring states where ships can exchange ballast water. For example, the North
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Adriatic Sea is less than 100 meters deep sea and the ballast waters should be
exchanged only at the Strait of Ontranto.
In recent years, the public in Croatia has gained awareness of the need to manage
ballast water. The problem of ballast water in the Adriatic Sea is extremely serious
because eight million tons of ballast water is discharged every year. The Adriatic
Sea is a shallow, semi-closed sea with a slow shift of currents. Although the
maximum depth is 1300 meters, it does not exceed 100 meters in the North and
20 meters in the Trieste gulf. The Adriatic Sea's ecosystem is highly sensitive and
the preservation of balance is of vital importance. By adoption of the Maritime
Code in 2004, which is based about 80 percent on Maritime Code of the Republic
of Croatia enacted in 1994, the Minister in charge of maritime affairs, with consent
of Minister of Environment, was obliged to bring legislation on ballast waters
control and management within the period of two years from the enforcement of
the Code. In 2007, Croatian Code for the management and control of Ship Ballast
Water was set out. The recent Croatian initiative is to identify the Adriatic Sea as
Particularly Sensitive Sea Area.
7 CONCLUSION
In summarizing the issues covered by this ballast water management analysis, it
is apparent that many problems are connected to improper pollution control by ships,
industries and waste management in general. Ballast water, pollution, and waste are
in various ways the principal contributors to the degradation of Croatia's marine
and coastal areas. The existing ballast water management system, characterized
by numerous vessels operating without proper preventive measures fails in
both technical and educational aspects. Croatia has created a comprehensive
legal framework for sound environmental management, mostly based on the
"command and control" principle, but it has not been fully adopted yet. However,
there is still a need for further adjustment of legislation by following contemporary
environmental legal standards, especially those of the EU. These adjustments have
to be done with respect to Croatian conditions and circumstances. Furthermore, a
balancing of domestic environmental laws and regulations with some traditional
laws covering related issues (coastal/marine management, water management) is
necessary to make their application more efficient.
8 REFERENCES
1 Economic Commission for Europe, United Nations. 1999. Report on providing
environmental protection in the Republic of Croatia.
2 Kandzija, V., Kumar, A., Palankai, T., Karaman, A. N., Grabovec, M. O. 1997.
Economic system of European Union and adjustment of the Republic of Croatia.
Faculty of Economics University of Rijeka. Universita degli studi di Trieste.
3 Kerovec, N. 1995. Stimulative employment measures in the Republic of Croatia.
Journal of Social Policy, 1, 27-36.
4 Ministry for building, housing, communal affairs and environmental protection
Republic of Croatia. 1987. Report of quality of environment in Croatia.
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Goran, Gorana, Merica & Ranka 381
5 REC Country Office Croatia. 2001. Strategic Environmental Analysis of Croatia.
6 State Directorate for the Protection of Nature and Environment of the Republic of
Croatia. 1998 Coastal Area Management in Croatia.
7 The GEF/UNDP/IMO Global Ballast Water Management Programme (GloBallast):
http://globallast.imo.org (25/04/2007).
8 The International Maritime Organization. 2001. Workshop Report of the 1st
International Ballast Water Treatment Standards Workshop, 28-30 March,
Raaymakers, London, UK.
9 The International Maritime Organization. 2003. Workshop Report of 1st
International Workshop on Guidelines and Standards for Ballast Water Sampling,
7-11 April, Raaymakers, Rio de Janeiro, Brazil.
10 Fairmont Shipping Limited (Canada). 2005. Ballast Water Management Manual.
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Isin, Wick & Kushner 383
ENVIRONMENTAL PROTECTION THROUGH BORDER PROTECTION
ISIN, AMELIE1, WICK, ANNE2 and KUSHNER, ADAM M.3
1 Program Analyst, Air Enforcement Division, Office of Enforcement and
Compliance Assurance, United States Environmental Protection Agency, isin.
amelie@epa.gov.
2 Vehicles and Engines Team Leader, Air Enforcement Division, Office of
Enforcement and Compliance Assurance, United States Environmental Protection
Agency, wick.anne@epa.gov.
3 Director, Air Enforcement Division, Office of Enforcement and Compliance
Assurance, United States Environmental Protection Agency, kushner.adam@epa.
gov.
SUMMARY
The U.S. Environmental Protection Agency's (EPA) mission is to protect human
health and the environment; this includes responsibilities for the safety of imported
commodities. EPA regulates products ranging from pesticides to vehicles, and
takes action when imports are not in compliance with environmental laws. In
addition, EPA collaborates with other agencies and stakeholders to identify and
prevent noncompliance in imported merchandise. This paper discusses the role
of EPA's enforcement program with regard to illegal imports, and presents as a
case study EPA's coordination with U.S. Customs and Border Protection Patrol
(Customs) to identify more effectively imports that violate U.S. Clean Air Act
standards; one example of this collaboration is in the importation of uncertified
vehicles and engines into the United States.
1 INTRODUCTION AND BACKGROUND
EPA statutes such as the Clean Air Act the Federal Insecticide, Fungicide, and
Rodenticide Act, the Resource Conservation and Recovery Act, and the Toxic
Substances Control Act all contain restrictions on imports and exports. These
statutes cover some of the most hazardous commodities imported into the United
States. EPA applies its regulatory authorities to evaluate and control the potential
risks of new products before they are manufactured or imported and takes
enforcement actions when these commodities are in violation of environmental
regulations.
Events in 2007, such as the lead-contaminated toy recalls that occurred over
the winter holidays and the recall of more than 5,300 melamine-laced pet food
products, have resulted in heightened interest in what the U.S. government is
doing to safeguard the health of its citizens with regard to imported consumer
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products.1 This concern over import safety has been the subject of numerous
articles in the press, as well as Congressional inquiries, and has led some to reflect
on how government resources can be used most effectively in this area.
In July of 2007, President Bush signed Executive Order 13439 establishing an
Interagency Working Group on Import Safety. This Working Group consists
of over ten government agencies including EPA and the Departments of Health
and Human Services, Homeland Security, State, Treasury, Justice, Agriculture,
and Transportation. The wide range of agencies involved in this Working Group
illustrates the breadth of import issues and the depth of expertise and experience
necessary to address them. The establishment of this Working Group also
emphasizes the need for interagency collaboration to effectively regulate imports, a
strategy already in use by EPA's Office of Enforcement and Compliance Assurance
(OECA).
This paper will describe the many ways in which EPA has adapted its traditional
enforcement activities to address the challenges of monitoring, assessing, and
enforcing violations as they occur in the importation of products into the United
States. EPA has progressed, in recent years, from a rote case-by-case enforcement
approach to a multifaceted strategy for environmental protection based on
compliance assistance, outreach, targeted inspections, self-disclosures, and
cooperative efforts with other U.S. regulatory agencies and foreign governments.
2 COLLABORATION AS PART OF EPA'S ENFORCEMENT AND
COMPLIANCE ACTIVITY RELATED TO ILLEGAL IMPORTS
EPA's enforcement program is addressing the problem of illegal imports on
two fronts: enforcement and outreach. EPA takes enforcement actions, often in
cooperation with Customs, against importers of goods that do not comply with
environmental laws. With respect to outreach, EPA is working with importers and
manufacturers, other U.S. agencies, foreign governments, and other stakeholders
to stem the importation of unsafe products upon entry into the United States.
EPA and the General Administration of Quality Supervision, Inspection and
Quarantine of the People's Republic of China (AQSIQ) signed a Memorandum
of Understanding in fall of 2007 to facilitate cooperation on environmental
compliance. EPA's enforcement program also works with environmental and
enforcement agencies in Canada and Mexico to determine how information about
noncompliant or suspect imports can be shared appropriately between countries.
This collaborative approach is critical to addressing the challenges of import
safety and, at the same time, protecting the environment. For example, some of
EPA's challenges in enforcing the Clean Air Act with regard to consumer products
originate from the fact that EPA's regulations limit liability to the importer of the
illegal goods, not the foreign manufacturer of the product or the retailer selling
the illegal product. Another complicating factor is the prevalence of small business
importers, who are often unaware of the environmental regulations that apply to
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Isin, Wick & Kushner 385
their goods. Lastly, the volume of imported goods has increased steadily over time,
leading to more opportunities for noncompliant imports.
3 RECENT SURGE IN CLEAN AIR ACT VIOLATIONS IN IMPORTED
PRODUCTS
The most numerous Clean Air Act violations caused by imported goods involve
mobile sources or devices containing ozone-depleting substances, usually
chlorofluorocarbons (CFCs). EPA has pursued dozens of actions over the past
few years to address these violations and to control the air pollution caused from
the violations. Consistent with the Clean Air Act and U.S. obligations under the
Montreal Protocol on Ozone-Depleting Substances, EPA takes action against
release of substances that harm human health and the environment by depleting
ozone in the upper atmosphere. This includes enforcement against persons who
continue to sell and distribute banned ozone-depleting substances, such as CFCs,
formerly used as refrigerants.
In the last few years, EPA has noticed a surge in the number of illegal motor
vehicles, motor vehicle engines, and nonroad equipment, such as tractors, lawn
mowers, generators, and other small engines imported into the United States.
EPA requires the certification and testing of these products. Certified engines and
vehicles must also bear permanent emission labels that identify these products as
certified.
A large portion of the imported engines that have been inspected by Customs
are not certified to meet EPA air pollution standards under the Clean Air Act.
Uncertified engines can emit air pollutants at levels as much as 30 percent above
EPA standards. This is of concern because roughly half the air pollution in the
United States is caused by on-road and off-road mobile sources, thereby increasing
the risk of respiratory illness and other adverse health effects.
4 OUTREACH ON VEHICLES AND ENGINES
Outreach is an essential component of EPA's air enforcement strategy for illegal
vehicle and engine imports. EPA publishes "Enforcement Alert" newsletters to
inform the public and those regulated by environmental laws about important
environmental enforcement issues, recent trends, and significant enforcement
actions. The information in these newsletters should help the regulated community
comply with environmental laws and applicable regulations. Each issue also
provides readers with links to relevant EPA websites and other resources to
learn more about the laws and regulations and how to comply with them. EPA's
September 2006 Enforcement Alert described standards for nonroad engines.2
There are other sources of information for importers. For example, EPA supports
an imports hotline, which provides telephone assistance on how to legally import
goods into the United States. EPA also encourages companies to self-disclose
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violations. In cases where a company discovers a violation, promptly discloses the
violation to EPA, and expeditiously corrects the violation, the company may be
eligible for penalty mitigation under EPA's 'Audit Policy."
In 1996, EPA and Customs signed a Memorandum of Understanding to formalize
cooperative nonroad engine and motor vehicle enforcement activities. Customs
also adopted regulations corresponding to EPA's at Title 19 Code of Federal
Regulations (C.F.R.) Parts 12.73 and 12.74. In addition, a Protocol signed by the
two agencies in 2000 establishes specific procedures for examining and processing
nonroad engines, and specifies the information that Customs may share with EPA
on these cases.
Given the fact that the commodities being imported are often not obviously non-
compliant, EPA routinely conducts several inspector training sessions for various
Customs ports each year. In the last two years, EPA has held ten training sessions
on different kinds of vehicle and engine violations for both Customs employees
and import brokers, in locations ranging between Orlando, Florida, and Oakland,
California. EPA also plans to expand the available training opportunities for
Customs staff and import brokers by developing online modules that provide
information on regulated equipment, specifically mobile source case development
and enforcement.
In addition to working with Customs, EPA maintains a tips database and tip
hotline, where anyone can report an environmental violation. This service is
often used by competitors who are marketing similar products and have inside
information about violations that might not be readily apparent at the border.3
Once their products are seized at one port, importers often change the port of entry
for subsequent shipments. To catch any subsequent violations, communication
between ports, as well as between EPA and Customs, needs to be operating at
a high level of efficiency. EPA has access to Customs' Automated Commercial
Environment (ACE) database, and frequently works with Customs headquarters
to enter "criteria" into their system in order to target specific importers or specific
types of goods for inspection.
The cases this year have reflected the continued increase in imports from China
which began in fall 2004. Initially the majority of import violations concerned
engines that had not been certified. Recently, many more manufacturers have
obtained certification. EPA's mobile air enforcement program interprets this trend
as a sign that its efforts in the enforcement arena are beginning to take effect.
However, now the nature of the violations has shifted to engines that are missing
the required emissions controls, do not bear the proper emissions labels, and/or
do not meet emission standards over the full regulatory life of the equipment.
Although manufacturers cannot be directly held accountable by EPA, EPA's
outreach to agencies such as the AQSIQ of the People's Republic of China and
the Memorandum of Understanding signed in fall of 2007 specifically address
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Isin, Wick & Kushner 387
prevention of the manufacture and importation of noncompliant gasoline and
diesel engines through a variety of information exchange programs.
5 ENFORCEMENT ON VEHICLES AND ENGINES
Over the past 18 months, EPA has administratively settled 58 cases concerning
approximately 48,000 illegal importations of motorcycles, automobiles, generators,
tractors, and construction equipment. The sum of the penalties paid to settle these
administrative cases has totaled nearly $2.4 million. This number does not include
the U.S. Customs civil penalties, the storage fees, the cost of exporting the illegal
equipment or correcting the violations, and the cost of implementing a compliance
plan. The majority of the violators are small businesses. Due to the fact that these
violations are usually their first, they are given a reduced penalty.
EPA's penalty is an important deterrent, because noncompliant imports can often
be cheaper than legal alternatives. According to Clean Air Act Section 205, EPA
is required to take into account the gravity of the violation, the economic benefit
or savings, the size of the violator's business, the violator's history of compliance,
any action taken to remedy the violation, and the violator's ability to pay when
determining the amount of civil penalty. The statutory maximum penalty for
illegally importing an engine or vehicle is currently $32,500 per engine.
In addition to the cases led by EPA, Customs has initiated about 68 separate
actions against importers of nonroad engines and vehicles with assistance from
EPA in the past 18 months. Every settlement agreement signed by EPA in recent
years is available on EPA's website; public access to this information also serves as
a deterrent.
To supplement information received from Customs, EPA's mobile source air
enforcement program may invoke its Clean Air Act Section 208 information
request authority to inquire about importers' past activities. In this way, EPA can
resolve current and past environmental infractions at the same time.
In order to address the difficulties of enforcing against companies who have no
U.S. presence, EPA has explored several ways of working outside the U.S. to stop
the flow of illegal imports. Some EPA permits and licenses (such as EPA certificates
of conformity) can be withdrawn when the foreign factory refuses entry to an EPA
inspector. Withdrawal of the license effectively stops the foreign company's ability
to export to the U.S. In addition, the country in which the company is located may
have its own laws against criminal or otherwise illegal actions committed by the
company. A domestic enforcement action may curtail the company's business
activities, thus illustrating the necessity of coordination between EPA and the
environmental regulatory agency in the foreign country.
The focus of this paper has been EPA's efforts with regard to illegal imports;
however one country's imports are another country's exports. All U.S.
environmental statutes contain bans on U.S. exports that do not comply with
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international laws or the laws of other sovereign nations. For instance, U.S.
nonroad engine exports must meet the emission standards of the country to which
they are being exported. Another example is the prohibition on the exportation of
hazardous water in violation of foreign laws.
6 MOVING THE PROGRAM FORWARD
This year EPA intends to focus on emissions compliance testing over paper-based
compliance evaluations in its mobile source enforcement program. This is in
response to the observed shift in violation type from uncertified engines to engines
that do not conform to certified specifications.
EPA will continue to explore new enforcement strategies to leverage scarce
resources while striving to ensure safe imports of products the U.S. U.S. Customs
is redesigning its data systems and EPA is involved step-by-step to ensure EPA
enforcement needs are met. EPA enforcement is involved in all aspects of rule-
making to enhance enforcement where permitted by law, and with efforts to
change the law where necessary to fill enforcement loopholes.
EPA would like to eventually move toward the development of clean air
regulations that place responsibility on retailers of noncompliant commodities, in
addition to importers of these goods. In addition, future rulemaking could include
broadly interpreting the causation of prohibited acts and requiring bonding to
cover post-certification responsibilities such as recall and warranty.
7 CONCLUSION
EPA enforcement against illegal imports relies on traditional approaches such
as inspection and legal action, as well as more innovative approaches such as
interagency cooperation, outreach to stakeholders, and foreign cooperative
agreements. This multifaceted approach has been applied to the case study of the
illegal importation of motor vehicles and engines.
EPA management and staff continue to learn about new ways to improve
outreach and enforcement. While EPA has benefited from working with many
partners on monitoring, assessing, preventing, and enforcing violations at the
U.S. border, EPA's partners have also benefited from working with EPA. EPA is
committed to working to ensure that U.S. exports are compliant with international
environmental laws. This type of mutually beneficial arrangement is of key
importance to the success and sustainability of interagency partnerships.
This paper has described how EPA fulfills its mission to protect human health and
the environment by promoting the safety of imported products. As demonstrated
by its accomplishments, EPA's multi-faceted, multi-partner approach is versatile
enough to address the myriad types of environmental noncompliance found at the
ports of the country that is the world's largest importer.
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8 REFERENCES
1 See U.S. Consumer Product Safety Commission, December 2007 Recalls and Product
Safety News, http://www.cpsc.gov/cpscpub/prerel/prereldec07.html.
2 See EPA Enforcing Stringent Standards for All Nonroad Engines, EPA Enforcement
Alert (Sept. 2006), http://www.epa.gov/compliance/resources/newsletters/civil/
enfalert/nonroadengines-0609.pdf.
3 EPA Compliance and Enforcement, Report an Environmental Violation Website,
http://www.epa.gov/compliance/complaints/index.html.
9 BIBLIOGRAPHY
Clean Air Act, U.S. Environmental Protection Agency, available at http://www.epa.
gov/air/caa/.
Executive Order 13439, The White House, available at http://www.whitehouse.
gov/news/releases/2007/07/20070718-4.html.
Enforcement Alerts, U.S. Environmental Protection Agency, available at http://
www.epa.gov/Compliance/resources/newsletters/civil/enfalert/index.html.
EPA Audit Policy, U.S. Environmental Protection Agency, available at http://www.
epa.gov/compliance/incentives/auditing/auditpolicy.html.
EPA Vehicle and Engine Import Information, U.S. Environmental Protection
Agency, available at http://www.epa.gov/otaq/imports/index.htm.
Report an Environmental Violation, U.S. Environmental Protection Agency,
available at http://www.epa.gov/compliance/complaints/index.html.
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Isarin 391
INSPECTION AND ENFORCEMENT
OF HAZARDOUS WASTE AND GOODS:
FOSTERING INTERNATIONAL CROSS-BORDER COLLABORATION
BY THE INAUGURATION OF A SEAPORT NETWORK
ISARIN, NANCY1
1 Project manager, Ambiendura, Estrada de Quelfes 5A 1° esq., 8700-207 Olhao,
Portugal, Nancy.Isarin@ambiendura.com.
SUMMARY
The Seaport Environmental Security Network consists of authorities involved in
the monitoring and control of cross-border movements of waste shipped through
ports. The ultimate success of the Seaport project is dependent on the drafting of
feasible plans and proper supervision of all stages of the project. Environmental
protection is a complex field that requires an integral approach, encompassing
economic aspects along with focusing on the protection of the environment and
human health. The impact of expanding global markets on the environment makes
cross-border cooperation a necessity.
This paper discusses the need for the Seaport Network because the ports are vital
components of the logistical chain of waste shipments. Cooperation between the
various organisations operational concern with seaports (including customs,
maritime police, port authorities, and environmental agencies) must be enhanced.
Divergences between these organizations include cultural differences, ineffective
reporting and exchange of information, competence issues, lack of experience,
and inadequate capacity. One of the goals of this paper is to act as a stimulus for
discussion on improvements to the existing structures for effective cross-border
cooperation, including methods to reduce current obstacles.
1 INTRODUCTION
The Seaport Environmental Security Network is comprised of authorities involved
in the monitoring and control of cross-border movements of waste shipped through
ports. This Network creates a bridge between principle and practice. Multilateral
agreements, such as the Basel Convention on the Control of Transboundary Movements
of Hazardous Wastes and their Disposal, the Convention on International Trade
in Endangered Species of Wild Fauna and Flora, and the Rotterdam Convention
on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and
Pesticides in International Trade, do not automatically strengthen the principle of
cross-border cooperation and enforcement. The provisions of such international
agreements have limited impact on enforcement until they are imbedded into a
country's national legislation and policy. Further, solid cooperation mechanisms
and enforcement structures need to be developed to enable the implementation of
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these international agreements. Enforcement is an integral part of the regulatory
cycle; however, it is often given low priority.
Cooperation through the Seaport Network stimulates awareness and encourages
the creation of domestic policy while maintaining the "Sovereign Principle" in
cases of cross-border control and enforcement. Seaports are strategic hubs in the
logistical chain of waste shipments, resulting in the great need for an effective
Seaport Network to promote environmental compliance and enforcement.
Cooperation between the various agencies and organisations involved in
regulating seaports must be enhanced. This paper aims to stimulate discussion
surrounding improvements to the existing structures for effective cross-border
cooperation and ways in which current obstacles can be reduced.
2 THE ROLE OF SEAPORTS
Seaports are the crucial global hubs in the movements of goods and waste. The
seaport network provides the infrastructure through which intelligence and
administrative information can pass. Conduits already exist for the exchange of
administrative information, such as historic bills of lading, which is a document
issued by a carrier acknowledging that specified goods are onboard for
conveyance to a specific location and person. However, experience has proven that
these documents do not always contain accurate information either in content or
as valid proof of the cargo's antecedence. It is neither practicable nor desirable that
a system be imposed that requires every item to be double-checked. However, the
tracking of goods should strive for a life-cycle approach. For example, if there is
continuity of registration in the system it should be possible to trace a shipment
back to its place of origin and forward to its destination.
Many agencies are involved in the handling and control of shipments, including
the port authority, customs, the police, shipping agents, and cargo handlers. The
priorities given to the various stages of control, storage, and trans-shipment are a
matter for the regime in the port where the cargo rests at any given time - this is
known as the "Sovereign Principle." These priorities will not necessarily coincide
with other ports on the shipments journey to its destination. For example, checks
carried out in a modern container port, such as Rotterdam, will likely involve more
sophisticated control mechanisms and inter-agency cooperation than would be the
norm in a busy, less affluent port in a developing country. With the introduction
of a comparison process, a joint working programme between ports could be
implemented. This would create a continuity of procedure that would facilitate an
enhanced flow of information; as a result, enforcement structures and compliance
controls would be supported.
3 THE REGULATORY PROCESS
Involving various authorities in the monitoring and control of cross-border
movements of waste shipped through ports will help enhance the regulatory
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process related to port management. Developing policy, law-making, permitting,
and enforcement are all aspects of the regulatory process and are interrelated.
Enhancing cooperation is a core aim of the Seaport Network; improving the
processes of assessment, review, and development will generate valuable feed-
back for all those involved, including governments, port authorities, and attendant
agencies. Guidance is necessary for sound management and implementation of
environmental enforcement and compliance strategies at the ports. Regulations
in the field of environmental protection are complex and can even appear
contradictory; as a result, cooperation and dialogue provide an opportunity for a
better understanding of the regulations resulting in improved compliance.
4 THE OBSTACLES TO COOPERATION
The obstacles to cooperation vary with the location of the port. Cultural differences
are often underestimated in the international forum. Concepts are freely given as
are proposed solutions, but dispersal of ideas does not ensure that these concepts
will be well received or considered necessary from a cultural perspective. Political
considerations are by their very nature in a constant state of flux. However,
economic realities are usually more static. Likewise, the presence or absence of
good governance is also a factor worthy of careful consideration.
Where there is a simple lack of experience, competence, or skill, support must
accompany the proposed cooperation. The Seaport Network needs to consider the
importance of technology transfer between ports. Likewise, available information
technology capability is a factor in the efficient exchange of information and
intelligence. Given the extent of global networks, access of digital information
is usually not a problem. However, the manner of its use, especially in regard to
information databases, often raises challenges. For example, many governments
regard the existence of any database that they do not exclusively control as a
possible threat; which is the reason why in certain countries there is no link
between information concerning criminals and administrative records. Mutual
cooperation, including information exchange, between the various port authorities
and agencies must be enhanced.
Some countries believe that any form of environmental regulation will adversely
affect competitiveness. However, this view has never been substantiated. In
contrast, the World Bank concluded in the 1994 publication Competitiveness
and Environmental Standards that the higher environmental standards achieved
in industrial countries has not adversely affected their competitive position
internationally.
The final obstacle that warrants discussion is corruption. In many countries
corruption is viewed as a business norm, and bribes are not unusual or considered
dishonest. Bribes often occur between two individuals, one of whom has power
over the other. For example, one person requires a permit for something and the
other has the official position of authority to issue the desired permit. Where
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394 Eighth International Conference on Environmental Compliance and Enforcement 2008
inherent corruption exists the permit applicant will accept that he or she must
make a payment to the official before the document required will be issued.
This transaction is never recorded and no complaint will be made. A request for
cooperation in such an environment will be greeted with warm enthusiasm, but
the actual cooperation will not materialise unless it is considered to be to the
advantage (financial or otherwise) of the individual concerned.
5 EXAMPLE OF INTERNATIONAL ENFORCEMENT COLLABORATION
The project "Sky-Hole-Patching" is an example of how international cooperation
and collaboration can result in the prevention of illegal movements of hazardous
goods and waste. The project, launched in September 2006, is an initiative of the
UNEP Regional Office for Asia and the Pacific together with the World Customs
Organization Regional Intelligence Liaison Office for Asia and the Pacific. The
project developed a tracking, notification, and monitoring system to follow
movement of suspicious shipments of ozone depleting substances (ODS) and
dangerous commodities across several customs territories. The system enabled
the involved authorities to: (1) follow shipments; (2) exchange information and
intelligence; and (3) take immediate enforcement action on any abnormality
detected during the monitoring process. The initiative has intercepted several
cases of illegal movements of ODS and hazardous wastes.
6 WASTE IN DISGUISE
Hazardous waste presents a clear and present danger. Non-hazardous waste,
destined for unlawful or incompetent disposal or treatment, carries with it
an insidious danger to the environment and human health. When the figures
for waste tonnage collected for recycling or disposal are compared with the
capacity available to process it, there is no doubt that a considerable amount of
it just "disappears." Such disappearance often occurs in affluent societies due
to the rising costs of processing and disposing of the waste. The container's
documentation does not always accurately reflect its content and without port
checks it will unjustly become another country's problem. It is imperative that this
traffic be stopped.
There are many legitimate recycling companies. They operate an "open door"
policy and prove that waste can be profitably sorted and safely shipped abroad
to be recycled. Conversely, there are unscrupulous companies that ship waste
without the intent to recycle or safely dispose of the hazardous material, resulting
in an eventual health hazard. This waste, even when intercepted, cannot be easily
traced back to its original source, resulting in the perpetrator being free of any
responsibility for the illegal shipping, the potential health risks, and the violation
of national and international laws. Without cross-border cooperation between
ports, an increase in domestic regulation, and a strengthening of environmental
compliance and enforcement, the present international legislation is powerless.
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Isarin 395
7 SEAPORT ENVIRONMENTAL SECURITY NETWORK
INECE is establishing a Seaport Environmental Security Network to facilitate
capacity building and compliance cooperation on issues associated with the trade
in environmentally sensitive commodities. This project will initially focus on the
transboundary movement of wastes, but could eventually be expanded to other
threats such as chemicals and smuggled wildlife.
In order to prevent illegal transboundary movements, the Network will
promote compliance with provisions related to transboundary movements and
management of waste.
Fostering national and international collaboration will also be a priority. The
Network will also offer support regarding inspections and enforcement of
transboundary movements of waste.
To accomplish the abovementioned aims, the project will set up an active and
practical network of focal points involved in the monitoring and enforcement of
waste shipments shipped via seaports around the world, making use of already
existing structures and platforms, linking and expanding them. The Network will
also conduct a needs assessment within the network. This assessment will be done
with a questionnaire and interviews and should provide information regarding
the current situation with respect to capacity, cooperation, legal powers, legal
and executive frameworks, and knowledge. Also, the assessment should give a
clear view of the different needs to improve the situation. Developing a toolkit to
build capacity and support inspections, enforcement, and collaboration should
also occur. This toolkit could, for example, include inspection manuals (based
on already existing documents), the organization of trainings and workshops,
the exchange of inspectors, and the development a communication tool for
information exchange. Finally, the Network should organise and facilitate joint
cooperation with respect to actual inspections in seaports and their follow-up.
8 CONCLUSION
Cross-border cooperation, achieved through the Network, is paramount to the
effectiveness of international laws for the control of waste movements globally and
the ongoing protection of the environment. This will be achieved by stimulating
and facilitating cooperation between the relevant authorities and related
enforcement bodies. It is proposed that the Seaport Network also develops tools
such as manuals, memorandum of understanding, and joint working programmes.
The Network should also carry out an assessment of current enforcement
structures. Additional tools, training, instruction in risk assessment, and awareness
raising will also be included.
The Seaport Network will encourage awareness, foster cross-border cooperation,
enhance and empower enforcement, and facilitate the adoption of coherent
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national policies. Accomplishing this will result in increasing the significance and
enforcement of international agreements. Additionally, these factors will help
ensure a stable and healthier future environment.
(The aim of this paper is to promote membership of the Seaport Network by demonstrating
the necessity for the Network and the added value of membership. Delegates are invited
to join the Seaport Network and support its vital role in the future of Inspection and
enforcement of hazardous waste and goods and international cross-border collaboration.
For more information, please visit www.inece.org/seaport.)
9 REFERENCES
1 United Nations Environment Programme, Guidelines on compliance with and
enforcement of Multilateral Agreements (2001), http://www.unep.org/DEC/docs/
UNEP.Guidelines.on.Compliance.MEA.pdf.
2 Press Release, United Nations Environment Programme, Project Sky Hole Patching
Goes into Operation (1 Sept. 2006), http://www.unep.org/Documents.Multilingual/
Default.asp?DocumentID=487&ArticleID=5344&l=en
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MANAGING EXPIRED PESTICIDES AS HAZARDOUS WASTE ACROSS
BORDERS
KREISLER, EVA1 and HEISS, ROBERT2
1 Senior Attorney, International Compliance Assurance Division, Office of Federal
Activities, Office of Enforcement and Compliance Assurance, U.S Environmental
Protection Agency, 1200 Pennsylvania Avenue, N.W. Washington, DC, 20460,
United States, kreisler.eva@epa.gov.
2 Director, International Compliance Assurance Division, Office of Federal
Activities, Office of Enforcement and Compliance Assurance, U.S Environmental
Protection Agency, 1200 Pennsylvania Avenue, N.W. Washington, DC, 20460,
United States, heiss.robert@epa.gov.
SUMMARY
The notification process for controlling transboundary movements of hazardous
waste under the Basel Convention and other international agreements also applies
to transboundary movements of expired pesticides. Collecting expired pesticides
from farmers and exporting them under a notification process in order to obtain
safe disposal, however, poses unique problems. As a result, it is necessary to
develop innovative approaches to deal with the practical and legal problems that
are associated with managing these wastes to ensure compliance with applicable
environmental laws. In this article we discuss the challenge to human health and
the environment that is presented by growing stockpiles of expired pesticides
around the world; analyze the unique problems associated with managing
transboundary movements of these pesticides in established notification schemes;
describe a pilot project by the U.S. Environmental Protection Agency (USEPA)
to reduce the amount of expired pesticides in the United States-Mexico border
region; and offer lessons learned to help with cleanups involving transboundary
movements.
1 INTRODUCTION
Unlike other generators of hazardous waste, farmers do not actively produce
pesticides as hazardous wastes. Instead, others manufacture the pesticides,
which farmers acquire and store as chemical products for intended agricultural
application. It is the expiration of the manufacturers' specified use dates that causes
the pesticides to be re-classified as wastes because they are no longer suitable for
their original intended purpose. Furthermore, since farming is not an economic
process that regularly produces any kinds of hazardous wastes as byproducts,
farmers are not accustomed to performing the role of a hazardous waste manager.
Moreover, the quantities of particular expired pesticides held by each farmer may
be small and may represent an inconsequential part of their farming operations,
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even though the collective problem of managing expired pesticides in agricultural
areas of a country may be large.
At both the domestic and transboundary level, pesticide wastes present
particular challenges to enforcement programs, and do not lend themselves to
an aggressive punitive response. Since most of the "violators" are diverse, small
farmers, discovering the violations is a resource intensive exercise for inspectors.
In addition, the penalty or sanction to an individual farmer is likely to be
very low based on the small amount of pesticides they may have at their farm.
The individual attention required for a traditional inspection and enforcement
response approach demands great resources, while the benefits for each individual
case may be very low. The collective harm caused, however, may be great, so
compliance programs must look for other ways to address the collective problem
with low investments at the individual level. Stockpiles that accumulate in
countries that lack domestic facilities for the proper disposal of waste pesticides
pose international environmental risks unless management pathways available
elsewhere can be utilized for their disposal. Successfully managing these wastes
before they become a compliance or enforcement problem is a challenge for the
world community. Ultimately, for environmental enforcers worldwide, this is
truly an instance, as the old adage says, where "an ounce of prevention is worth a
pound of cure".
Border areas between countries share common ecosystems and, therefore, need
coordinated and comprehensive environmental protection. Nevertheless the
existence of different governmental and legal systems in close proximity may
offer unintended opportunities for the unscrupulous to deceive authorities and to
mismanage expired pesticides in cross-border activities.
Adequate disposal facilities for waste pesticides may be located across borders or
even across oceans from where the waste pesticides are stockpiled, requiring their
transboundary movement. Established systems for controlling transboundary
movements of hazardous waste are based on notice-and-consent schemes requiring
prior informed consent for the shipment of identified maximum quantities and
types of hazardous wastes.
2 WORLDWIDE PROBLEM OF SOUND ENVIRONMENTAL
MANAGEMENT OF EXPIRED PESTICIDES
Expired pesticides are "those pesticides that can no longer be used for their
intended purpose."1 For example, pesticides are sometimes left over from pest
control campaigns and stored well after their shelf-life, leading to "physical
or chemical changes that result in phytotoxic effects on the target crop, or an
unacceptable hazard to human health or the environment".2 In other situations,
stockpiles may consist of pesticides that have been banned for use or which were
abandoned decades ago.3
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Unfortunately, agricultural communities tend to be poor, rural populations that
lack access to up-to-date information on the chemicals they are exposed to or the
means to properly store or dispose of them. In addition, while proper management
of pesticides requires continuous updating of inventory records, this is not always
done.4 Thus, stockpiles can range "from well-stored products that can still be used
in the field, to products that have leaked from corroded steel drums and other
containers into the soil."5
The multilateral environmental agreement known as the Basel Convention, the
OECD Council Decision controlling transboundary movements of hazardous
waste, and, in the United States, the Resource Conservation and Recovery Act,
part of the Solid Waste Disposal Act, all treat expired pesticides as hazardous
waste.6 Chemicals comprising pesticides deteriorate over time, resulting in
hazardous waste that is more toxic than the original product and which poses a
threat to human health and the environment.7 Unfortunately, expired pesticide
stockpiles in developing nations are usually not stored properly, possibly
leading to spillage, blending or illegal dumping. According to the UN Food and
Agriculture Organization, "high quantities of toxic chemical waste from unused or
obsolete pesticides are posing a continuing and worsening threat to people and the
environment in Eastern Europe, Africa, Asia, the Middle East and Latin America".8
Moreover, most of these countries do not have facilities for the destruction of these
chemicals.9
Poorly stored hazardous waste that leaks into environment can cause a variety of
problems to human health and the environment. Hazardous waste leachate may
contain dangerous insecticides, such as the Persistent Organic Pollutants aldrin,
chlordane, DDT, dieldrin, endrin, heptachlor and organophosphates.10 Leaching
hazardous waste can lead to the chronic poisoning of entire communities, possibly
resulting in death, cancer, or reproductive and neurological disorders.11 "The
UN World Health Organization estimates that three million people are poisoned
by pesticides every year, most of them in developing countries. Every year some
20,000 of these poisoning victims die."12 As pesticides degrade, they may leach into
soil and water, or they may be windswept or volatilized reaching neighboring, or
far away, areas.13 Thus, the clean-up of hazardous waste stockpiles is an urgent
matter around the globe.
An additional concern regarding waste pesticide stockpiles is that they can
become the target of black markets.14 The chemicals sold in these black markets
may be obsolete, banned or created for a different purpose from the one peddled
by the sellers.15 Unfortunately, farmers may not be aware of the source of the
pesticides sold to them and unwittingly introduce dangerous chemicals into the
environment.
Countries with the capacity to properly dispose of hazardous waste are in a unique
position to assist nations without facilities that can handle expired pesticides.
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Their assistance could help eliminate existing stockpiles and prevent future
accumulations around the world.16
3 UNITED STATES-MEXICO BORDER EXPIRED PESTICIDE CLEAN-UP
PROJECT
The United States-Mexico Environmental Program, Border 2012, is a partnership
between the United States and Mexico, represented by Federal environmental
agencies, 10 border states and U.S. border tribes, is designed to improve the
environment and protect the health of the nearly 12 million people living along
the common border. Under Goal IV of the program, the United States and Mexico
are working jointly to address pesticide issues at the border.
One of the projects undertaken as part of this initiative is a waste pesticide
collection effort. The first of these collections took place in August 2006, in the
areas of Yuma, Arizona, U.S and the San Luis Valley in Sonora, Mexico, resulting
in the gathering and disposal of 72,000 pounds of hazardous waste at a U.S.
facility. Another collection event, along the Baja California and California border,
is tentatively scheduled for February 2008.
The USEPA and the Secretaria de Medio Ambiente y Recursos Naturales selected
the Yuma-San Luis Valley area for collection because it was a highly productive
agricultural area which, over time, had seen an increase in the amount of old or
unwanted pesticides. Agricultural growers on both sides of the border were offered
free collection and disposal of their stocks of unwanted or obsolete pesticides. In
order to identify the types and amounts of hazardous waste to be collected from
each grower, a registration form in both English and Spanish was developed.
The types and maximum amounts of pesticides to be collected from each grower
were predetermined to ensure a large number of participants. In addition, it was
necessary for officials to know the universe and amounts of hazardous waste to
be exported from Mexico in order to: 1) obtain the necessary export and import
permits and consents in a timely manner; 2) determine the number of vehicles
necessary to transport the hazardous waste; and 3) select the final destination
facilities.
On collection day, the project team found a storage shed with many leaking
and corroded pesticide drums at the San Luis Valley collection site. The amount
of hazardous waste in these drums caused the quantity of waste at the site
to exceed the limit in the document showing the U.S. consent for the import of
hazardous waste. In response, staff from participating agencies coordinated their
efforts to collect and properly store this extra waste until the waste could be
exported. Secretaria de Medio Ambiente y Recursos Naturales staff submitted an
amendment to its initial notice of intent to export, and USEPA gave its consent to
the import without delay. Three months later the extra waste was shipped to the
U.S. for proper disposal.17
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4 EXPORT/IMPORT OF HAZARDOUS WASTE BETWEEN MEXICO AND
THE UNITED STATES
The pesticide collection project invoked the requirements of The Agreement of
Cooperation Between the United States of America and the United Mexican States
Regarding the Transboundary Shipments of Hazardous Wastes and Hazardous Substances
(The Agreement). This bilateral Agreement establishes notification procedures
for importing and exporting waste between the U.S. and Mexico. While The
Agreement itself has no binding affect on importers and exporters, both USEPA
and Secretaria de Medio Ambiente y Recursos Naturales have promulgated
standards under their hazardous waste regulations to ensure that the movement of
hazardous waste across the U.S./Mexico border occurs after the receiving country
has provided its prior informed consent.18
The process for the exportation of hazardous waste from Mexico to the U.S. is
straightforward. The Mexican exporter submits a Notice of Intent (NOI) to export
to Secretaria de Medio Ambiente y Recursos Naturales headquarters. This NOI
must describe the quantity and type of hazardous waste to be exported during
a 12-month period, or once if that is all that is needed. The process includes an
exchange of cables between Relaciones Exteriores,19 and the U.S. Department of
State. Upon obtaining consent, Secretaria de Medio Ambiente y Recursos Naturales
processes all other documentation required for exports under its regulations,
including insurance and bonds, before allowing the export to proceed.
For the pesticide collection project, USEPA and Secretaria de Medio Ambiente y
Recursos Naturales staff worked together to acquire the appropriate import and
export documentation. Secretaria de Medio Ambiente y Recursos Naturales's
regional office in Sonora assumed responsibility as the exporter and requested
consent to import from the USEPA. In order to streamline the process, USEPA
regional and headquarters staff worked side by side with Secretaria de Medio
Ambiente y Recursos Naturales regional and headquarters staff to ensure
timely delivery of needed documentation. They instituted an expedited process
for submission and approval of the notice of intent to export, and USEPA and
Secretaria de Medio Ambiente y Recursos Naturales staff maintained open lines of
communication to ensure that the permit process met no obstacles.
5 LESSONS LEARNED
Along with the immediate benefit of reducing the aggregate hazardous waste
stockpile of expired pesticides, the extensive, hands-on cooperation that is required
of the participating nations in a waste pesticide collection project yields a practical
model for conducting sound environmental management, and anticipating and
avoiding future compliance problems. The following lessons emerged from the
United States-Mexico pesticide collection project:
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5.1 In order to ensure that the complex process is successfully completed,
the appropriate national and state authorities, or some other organization,
must coordinate all phases of the collection project—horn the notification process
beforehand through the physical collection, movement, and disposal stages.
Because the farmers are not organized for these purposes, leadership for the effort
must be provided from somewhere else. Furthermore, the coordinator of the waste
collection must serve, or find someone to serve, as the exporter who will pursue the
notification process between the governments of the participating countries.
5.2 Whenever possible, local agency personnel, from regional or state offices,
should be part of the coordinating team. Their area-based knowledge is invaluable
in planning activities, communicating with the local population, and identifying
potential pitfalls in implementation.
5.3 Because government authorities at the national and regional/state levels
play vital roles in the notification process, they must participate in the early
planning of the project and devise means to facilitate the approval phase of the
project. Their knowledge of and experience with international agreements and
domestic regulations for the transboundary movement of hazardous waste,
and the issuance of import/export permits and consents is critical to the timely
issuance of the appropriate documents to allow the waste pesticides to legally
move internationally. If the sending country itself, or its sub-national unit, agrees
to serve as the exporter, then the planning is somewhat simplified.
5.4 The coordinator(s) of the collection and ultimate disposal of the hazardous
waste must have adequate technical expertise to tackle these activities. The handling
of hazardous waste is a dangerous endeavor which necessitates highly skilled
personnel in order to avoid human and environmental exposures.
5.5 The private sector has a role in these projects. Transporters and disposal
facilities can be brought in to assist in the collection process. In the United States-
Mexico project, a private party handled the transportation and final disposal of the
hazardous waste. In future endeavors, hazardous waste management companies
may be hired to act as the hazardous waste exporters. This would reduce the
burden on government personnel and resources.
5.6 Based on the United States-Mexico border project, it is advisable to estimate
generously the potential quantity of waste pesticides for collection. Some farmers may
underestimate their stockpile during the planning phase, and some farmers may
not even initially participate in the planning phase. Nevertheless they may deliver
additional quantities on the collection day. The receiving country's consent to
a notice, however, is limited to the maximum potential amount identified in the
notice. Therefore, nothing can be done at the time of collection to increase the
quantity allowance for the export, since consent to the additional amount will
require either amendment of the existing notice or a new notice. So a generous
initial estimate of the total quantity of the waste pesticides for export will avoid
the cost of a follow-up collection.
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Kreisler & Heiss 403
5.7 The participation of the print and electronic press in promoting the
collection projects as well as disseminating information concerning the proper
handling of hazardous wastes will assist the government's compliance assistance and
outreach to the agricultural sector.
5.8 Press coverage on the day of the collection itself can further assist in
disseminating information both to industry and the public. In particular it can
raise citizen awareness of the problem of waste pesticide stockpiles and can generate
public interest in a continuing program of stockpile management and proper
disposal. This augments government resources available for compliance assistance
and inspections.
5.9 Collection projects should also emphasize that prevention is the goal of their
program. This can be achieved by offering agricultural communities instruction on
pesticide inventory management, regulatory controls on hazardous waste, and the
proper handling and storage of hazardous waste. Training of this kind will raise
the awareness of agricultural communities.
5.10 Whenever possible, countries should also establish ongoing assistance to
encourage the transport and disposal of hazardous waste at appropriate disposal
facilities. The Yuma-San Luis Valley project raised the awareness of the agricultural
communities to the benefits of this type of program. As a direct result of this
project, Arizona has budgeted $100,000 per year for at least three years to collect
and dispose of unwanted pesticides throughout the state. In Mexico, the collection
events have led Federal agricultural leaders to request that all agricultural regions
survey growers to report on quantities of unwanted pesticides that may be in
storage. This is an important first step in building momentum for a sustainable
national collection program.
5.11 The technical assistance provided during collection projects as well as the
actual collection, shipping, and disposal of expired pesticides all cost money.
Although these expenses should be internalized in the prices charged for the
crops, that is generally not the case. As a result, governments and international
organizations must step in with funding in order to reduce environmental risks
and avoid damage.
6 CONCLUSION
To avoid the contamination of soil and groundwater from leaking expired pesticide
containers, the misapplication of these pesticides on crops, and the dumping of
these dangerous chemicals, a comprehensive, world-wide management strategy
with adequate funding is needed for expired pesticides. Countries that possess
adequate facilities to handle these hazardous wastes must ensure compliance with
existing requirements for storage and disposal in their own countries through
inspections and compliance assistance. For all other countries, the eradication of
waste pesticide stockpiles remains a serious challenge for the world's environment.
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Effective management in these circumstances is a complex endeavor best achieved
through cooperation between nations and their respective governmental and
non-governmental organizations. Where facilities exist across borders, or even
in countries that are an ocean away, it is important to facilitate access to effective
stewardship elsewhere through controlled transboundary movement, rather than
letting illegal disposal occur where the stockpiles exist.
The United States-Mexico border project for the collection and disposal of waste
pesticides offers one model to consider. The comprehensive effort conducted
simultaneously in both countries reduced the potential opportunity for private
parties to take advantage of the situation in either country, effectively reduced
the existing stockpiles on both sides of the border, and ensured compliance with
applicable environmental requirements.
7 REFERENCES
1 Martinez, J., Practical Guideline on Environmentally Sound Management of
Obsolete Pesticides in the Latin America and Caribbean Countries [Practical
Guideline]. 2004, p. 4.
2 Id. at 7. Pesticides generally have a shelf-life of two years from the date of release.
3 Id. at 17.
4 Id. at 18.
5 Id.
6 Basel Convention on the Control of Transboundary Movements of Hazardous
Waste and their Disposal (1989), Article 1, paragraph l(a); OECD Decision of
the Council Concerning the Transfrontier Movements of Hazardous Wastes
as Amended (2001), Chapter II, A (i) and (ii), and the Solid Waste Disposal Act,
Resource Conservation and Recovery Act, 40 USC 261.32 and 33 .
7 Obsolete Pesticides, United Nations Food and Agricultural Organization, (2006)
available at http://www.fao.org/ag/AGP/AGPP/Pesticid/Disposal/en/what/103380/
index.html.
8 FAO warns of pesticide waste time bomb in poor countries. United Nations Food
and Agricultural Organization, (9 September 2004) available at http://www.fao.
org/newsoom/en/news/2004/50119/index.html.
9 There is no destruction or final disposal facility in most Latin American countries.
Practical Guideline, supra note 3, p. 25.
10 Id.
11 Obsolete Pesticides, supra note 9, p. 2.
12 Id.
13 In the Caribbean, for example, "[t]he impact of the mismanagement of such
stocks is further aggravated by the vulnerability of small-island developing
states to severe natural disasters. For example, stockpiles of pesticides are easy
targets for hurricanes in the Caribbean, which help spread waste into the sea,
or leach into scarce groundwater supplies with direct and immediate impact on
local populations and the environment." Thus, UNEP has called for resource
mobilization in order to initiate a Project for the final disposal of existing waste
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Kreisler & Heiss 405
pesticides and selected persistent organic pollutants and the prevention of future
accumulation in the Caribbean. United Nations Environmental Program, Call for
Resource Mobilization, available at http://www.basel.int/resmob/app-funding.
html.
14 Portas, Pierre, Unwanted Stocks of Hazardous Wastes Breaking the Vicious
Cycle (2000) available at http://www.oecd.org/dataoecd/22/30/1934602.pdf.
15 In Pakistan, for example, a black market exploited a dump of expired pesticides
that went unmanaged for over twenty-five years. Albion Monitor, Malir, (2001)
available at http://albionmonitor.com/0102a/malir.html.
16 For example, during September 2005, the World Bank announced that it had
approved the first phase of the Africa Stockpiles Program (ASP-PI). The aim of
the continent-wide is to eliminate and prevent future build-ups of waste pesticide
stockpiles, including persistent organic pollutants. World Bank News & Broadcast,
Press Release No: 2006/096/ESSD, (29 September 2005) available at http://web.
worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:20666046~pagePK:64
257043~piPK:437376~theSitePK:4607,OO.html.
17 The time frame between the two collections ran from August to November 2006.
18 U.S. regulations for exports of hazardous waste can be found at 40 C.F.R. 262,
subpart E.
19 Mexico's Foreign Relations department.
BIBLIOGRAPHY
Martinez, J., Practical Guideline on Environmentally Sound Management of
Obsolete Pesticides in the Latin America and Caribbean Countries [Practical
Guideline]. 2004
Obsolete Pesticides, United Nations Food and Agricultural Organization,
(2006) available at http://www.fao.org/ag/AGP/AGPP/Pesticid/Disposal/en/
what/103380/index.html
FAO warns of pesticide waste time bomb in poor countries , United Nations Food
and Agricultural Organization, (9 September 2004) available at http://www.fao.
org/newsoom/en/news/2004/50119/index.html
New Programme To Eliminate Obsolete Pesticides From Africa, World Bank News
& Broadcast, Press Release No: 2006/096/ESSD, (29 September 2005) available at
http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:206660
46~pagePK:64257043~piPK:437376~theSitePK:4607,OO.html
Portas, Pierre, Unwanted Stocks of Hazardous Wastes Breaking the Vicious Cycle
(2000), available at http://www.oecd.org/dataoecd/22/30/1934602.pdf
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Kopsick & Bearden 407
RADIO FREQUENCY IDENTIFICATION TRACKING OF INTERNATIONAL
SHIPMENTS OF HAZARDOUS AND RADIOACTIVE MATERIALS
KOPSICK, DEBORAH1 and BEARDEN, JANET2
1 Environmental Scientist, Radiation Protection Division, Office of Air and
Radiation, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue
(6608J) N.W., Washington, D.C., United States 20460 kopsick.deborah@epa.gov.
2 Associate Director, International Compliance Assurance Division, Office of
Enforcement and Compliance Assurance, U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue (2254A) N.W., Washington, D.C., United States 20460
bearden.janet@epa.gov.
SUMMARY
The U.S. Environmental Protection Agency (EPA), working with other
stakeholders, is exploring the feasibility of using radio frequency technology
to track hazardous wastes entering the U.S. It is anticipated that this technology
can provide near real-time, accurate data to enforcement and compliance officials
on the status of international shipments of hazardous and radioactive materials.
While the demonstration pilot is focused on the U.S./Mexican border, the results
from this pilot may inform the application of this technology to a much broader
range of international trade in environmentally dangerous goods and substances.
Currently, there is no accurate inventory or accounting of hazardous waste
entering the United States from foreign-owned Mexican manufacturing plants
known as maquiladoras. The current paper-based manifesting system does not
allow for timely tracking of shipments that enter the U.S. but do not arrive at
the designated receiving facility. Inspection evidence has indicated that some of
this material is being abandoned in warehouses on both sides of the border. An
enhanced tracking system that provides timely, accurate data to regulatory officials
is needed to prevent illegal disposal. An integration of a tracking technology, such
as radio frequency identification, with the current manifest system may allow
near real-time tracking of international hazardous waste shipments from the
generator to the receiving facility. This article provides information about a range
of radio frequency identification technology applications the U.S. will test in a
series of import/export hazardous waste shipping scenarios to determine if it is an
appropriate technology for voluntary implementation by generators and shippers
of trans-border waste. While this article focuses on hazardous and radioactive
materials, it is feasible that this technology could be used to track other materials
of interest. With "just-in-time" inventory systems being used globally, where
supplies of raw materials are not maintained on-site, any tracking system that can
reduce time spent crossing international borders will be advantageous to these
facilities.
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408 Eighth International Conference on Environmental Compliance and Enforcement 2008
1 INTRODUCTION
There is a lack of accurate information concerning the hundreds of thousands of
tons of hazardous waste that cross into the United States each year from Mexico1.
Much of this waste is from the foreign-owned maquiladora (manufacturing and
assembly) facilities in the Mexican border zone. The Resource Conservation and
Recovery Act, part of the Solid Waste Disposal Act, requires that all hazardous
waste be tracked from cradle-to-grave. Currently, due to the paper-based manifest
system being used, the U.S. Environmental Protection Agency (EPA) is unable
to fully determine when the maquiladora waste enters the U.S. and when, or if,
the waste reaches the designated receiving facility. Mexico is not required to file
a Notice of Intent to import these materials, as they classify them as returned
product and not hazardous waste. The Department of Homeland Security has
identified hazardous material shipments as being vulnerable to terrorist attack2;
therefore greater accountability of these shipments while in transport is needed.
The need for tracking and monitoring international shipments of hazardous
wastes is a global one. For example in Europe, the European Union Network
for the Implementation and Enforcement of Environmental Law - TransFrontier
Shipment Seaport Project, which inspected cross-border shipments of hazardous
wastes from Europe to overseas countries, found that 20% of the inspected wastes
shipments were illegal3.
2 MEXICAN MAQUILADORA SYSTEM
In 1965, Mexico introduced their Border Industrialization Program or maquiladora
program. This program encouraged foreign corporations to locate their
manufacturing and assembly plants in Mexico by eliminating duties on raw
materials imported into Mexico. Raw materials can be imported into Mexico
without import duties, as long as the waste products from these materials are
exported to the country of origin. Foreign-owned companies took advantage of
the lower labor costs and reduced shipping distances for products, resulting in
heavy industrialization in the Mexican border zone. As of October 2006, there are
more than 2,294 maquiladora facilities in the six Mexican border states, employing
close to 1 million people. These facilities produce a number of goods, including
chemicals, electronic parts, textiles, automotive components and machinery,
valued at more than $112 billion in 20054.
3 LEGAL REQUIREMENTS
3.1 U.S. Legal Requirements
Hazardous waste in the U.S. is regulated through Resource Conservation
and Recovery Act which is administered by the EPA and the states5. Resource
Conservation and Recovery Act's requirement for cradle-to-grave tracking
of wastes is made more complex when the generator is in one country and
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Kopsick & Bearden 409
the receiving facility is in another. Each shipment of waste is required to be
accompanied by a Uniform Hazardous Waste Manifest. EPA is considering
implementation of an electronic manifesting system to allow automation of the
process, improving the timeliness of the tracking of these shipments. There is no
regulatory requirement for the physical tracking of maquiladora waste, and any
adoption of radio frequency identification tracking of hazardous waste will be on
a voluntary basis.
3.2 Mexican Legal Requirements
The foreign-owned maquiladoras operate solely under Mexican laws and
regulations. The Secretariat of Environment and Natural Resources is responsible
for setting standards and administrating the General Law of Ecological Balance
and Environmental Protection. Article 153 of the Fourth Title, Chapter VI outlines
the procedure for the export of hazardous waste to other countries. Formed in
1992, the Federal Attorney General for Environmental Protection enforces the
environmental regulations and conducts inspections of maquiladora facilities.
Numerous countries, including the United States, Germany, Japan and Korea,
participate in the maquiladora program. If the raw materials supplied to any of
these facilities originate in the U.S., the wastes derived from these raw materials
are returned to the U.S. Because Mexico does not consider these exported materials
a hazardous waste, but instead a returned product, they do not submit a Notice of
Intent to the U.S.
3.3 International Treaties Governing Mexican Hazardous Waste
Wastes from "temporarily imported" raw materials must be returned to the
country of origin, as stated in Annex III of the Agreement between the United
States of America and the United Mexican States on Cooperation for the Protection
and Improvement of the Environment in the Border Area, known as the La Paz
Agreement. The U.S. and Mexico signed the La Paz Agreement in 1983. The
current Border 2012 program, which evolved from the La Paz Agreement, states
under its Goal # 3 that it will "by 2004, evaluate the hazardous waste tracking
systems in the United States and Mexico, and during the year 2006, develop
and consolidate the link between both tracking systems"6. Due to operational
deficiencies in both the Mexican and the U.S. waste tracking databases, both
systems have been discontinued, and this Border 2012 goal has not been achieved
as of this publication. Goal # 6 of the Border 2012 program is to "Improve
environmental performance through compliance, enforcement, pollution
prevention, and promotion of environmental stewardship," and this project will
help ensure compliance with the Resource Conservation and Recovery Act waste
tracking requirements.
The Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal went into force in 19927. Mexico has ratified the
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Convention but the United States has not. The Basel Convention can take
precedence over the North American Free Trade Agreement (NAFTA), allowing
countries to ban hazardous waste imports if they will not be managed in an
environmentally sound manner.
Mexico, the U.S. and Canada are signatories to NAFTA, which went into effect
in 1994. The Preamble to NAFTA states that its purpose is to reduce distortions
to trade, increase competitiveness and create an expanded and secure market for
goods, in a manner consistent with environmental protection and conservation.
Signatories to the agreement also agree to strengthen the development and
enforcement of environmental laws. Separate from NAFTA, but strongly aligned
to it, is the Supplemental Agreement on the Environment, which promotes
environmental enforcement.
4 RADIO FREQUENCY IDENTIFICATION TECHNOLOGY
4.1 Technology Description
A typical radio frequency identification system consists of four main components:
tags, an encoder, readers and central processing unit. An radio frequency
identification tag consists of a micro-transceiver and a flexible antenna sealed
in a plastic-coated inlay, which can be applied to or incorporated into a product
for the purpose of identification. The encoder writes information to the tag that
is acquired by a reader. The radio frequency identification system operates by
transmitting data using radio waves for communication between a tag and a
reader, and ultimately to a database. Power is supplied either by a battery or by
energy from the reader. The distance from the reader at which a tag can be read
varies from a few feet to over 100 feet, depending on the type of tag used. Line of
sight of the reader with the tag is not required, as is the case with barcodes.
4.2 Current Applications of Radio Frequency Identification to Track
International Movements of Goods
Radio frequency identification technology is a proven, commercially ready tracking
technology in the global supply chain, having been tested and implemented in a
large number of applications worldwide. EPA and Oak Ridge National Laboratory
have successfully demonstrated the use of radio frequency identification
technology to track radioactive materials in commerce8. The U.S. government
is currently pilot-testing radio frequency identification for a wide variety of
applications9'10 as is the commercial sector. For cross-border applications, U.S.
Customs and Border Protection (CBP), part of the U.S. Department of Homeland
Security, is using radio frequency identification and other technologies to track
both people and goods entering the U.S. "The development of wireless technology
and radio frequency identification will guide the future of communications and
tracking technology"11. Information on specific programs can be found at the CBP
website1243.
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Kopsick & Bearden 411
5 TECHNOLOGY TESTING APPROACH
5.1 EPA's Technology Verification Program
EPA's radio frequency identification testing will be conducted under its
Environmental Technology Verification Program, established in 1995 to develop
testing protocols and verify the performance of innovative technologies that have
the potential to improve the protection of human health and the environment. The
goal of the Environmental Technology Verification Program is to provide credible
performance data for commercially ready environmental technologies, collected
through rigorous and verifiable testing, to speed implementation for the benefit of
purchasers, vendors, stakeholders and the public.
In 2005, the Environmental Technology Verification Program began a new
element to evaluate innovative and commercially ready technologies that have
the potential to address high-risk environmental problems. This new program,
Environmental and Sustainable Technology Evaluations continues to maintain
the quality assurance, cost sharing, and stakeholder involvement that are
fundamental operating principles of Environmental Technology Verification.
The radio frequency identification project was competitively chosen as one of
the initial technologies to be tested. The Environmental Technology Verification
/ Environmental and Sustainable Technology Evaluations Program is a partial
cost-sharing program with stakeholders, where vendors supply their technology
and participate during testing. The testing process is transparent, with all results
being published on EPA's Environmental Technology Verification website, http://
www.epa.gov/etv/. EPA anticipates conducting verifications of up to 10 potential
vendors in the first round of testing.
5.2 Stakeholder Involvement
Officials from Mexico, the United States and Canada have agreed to participate
in radio frequency identification technology verification. Mexican officials
will include representatives from The Secretariat of Environment and Natural
Resources (regulatory), Federal Attorney General for Environmental Protection
(enforcement) and Aduana (Customs). Officials with the EPA Office of Enforcement
Compliance and Assurance, Office of International Affairs, Office of Solid Waste
and Region VI and XI will be active partners. Other federal agencies include the
U.S. Department of Homeland Security, including CBP, and the U.S. Department
of Transportation. The test information will be shared with the U.S. Intra-Gov
Working Group for Radio Frequency Identification, where U.S. agencies using
radio frequency identification technology transfer information on implementation
and work toward standardization. Environment Canada will track progress on the
testing, as the testing is designed to allow for the transfer of the radio frequency
identification systems to the U.S./Canada border.
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412 Eighth International Conference on Environmental Compliance and Enforcement 2008
State agencies, including the Texas Commission on Environmental Quality and
the New Mexico Border Authority, will participate in the data gathering effort.
Three maquiladoras and two Mexican trucking firms will volunteer their time and
equipment to support the testing. Up to 10 radio frequency identification vendors
will be demonstrating their system's capabilities during separate testing events.
Each vendor is responsible for providing their hardware and software, and setting
up and maintaining their radio frequency identification equipment at the testing
locations.
6 RADIO FREQUENCY IDENTIFICATION TESTING PROTOCOL
The site selected for this pilot is a U.S./Mexico border crossing away from a more
heavily utilized crossing, in an attempt to avoid any slowing of trade as the tests
are carried out. This pilot is also sensitive to and will assess the potential for
multiple readers to conflict with other signals used in other tracking applications.
To accurately simulate hazardous waste and raw material shipments, three
types of containers will be tracked, including: 55-gallon poly drums, 55-gallon
metal drums and corrugated cardboard cubic yard boxes. It is anticipated the
radio frequency identification signals will respond differently when attached to
each of these material types. Packing configuration within the truck will also be
varied to determine the effect on the radio frequency identification signal. The
radio frequency identification tags will read at five checkpoints, including the
generator facility, the Mexico border crossing, the New Mexico customs crossing, a
warehouse facility and the simulated receiving facility.
For testing, each radio frequency identification tag will be programmed with
a unique number that will link to information in a secure web-based database,
containing data from EPA's Uniform Hazardous Waste Manifest. Hazardous
waste is identified and shipped by separate waste streams, reflecting the specific
composition of each waste. Therefore, each separate container of waste, rather
than the full load on the vehicle, is the relevant tracking unit. It is the need for
more focused tracking and data gathering, down to the container level and
providing information that links to the specific waste stream that differentiates
this application of radio frequency identification from other tracking applications
currently in use.
During the testing, the measurement parameters will include radio frequency
identification tag read accuracy, operational frequency, effective radiated power
(power level), environmental conditions (temperature, humidity, wind speed,
particulates), truck trailer conditions (shock, vibration, temperature, humidity)
and truck velocity. Supplemental evaluations will be conducted on information
technology systems compatibility, system security (ability to cause interference),
cost and ease of operation.
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Kopsick & Bearden 413
While we know generally that active battery-powered tags are more expensive to
acquire and operate than passive tags, this pilot will provide more specific cost
data for implementing an radio frequency identification system on a container
basis than is currently available. Due to the different approaches being proposed
by the individual vendors, it is too early to predict actual operating costs. Based
on costs determined during the 2005 EPA radio frequency identification tracking
of radioactive materials in commerce study14, unit costs for hardware included
$3,400 per reader and $85 per active battery-powered tag. One time software
and installation costs totaled $10,300. The radio frequency identification industry
predicts that system costs will become more economical as standardized protocols
are adopted and more applications are brought on-line. Field testing will begin
when all funding sources for the pilot are in place.
7 CONCLUSION
In order to be able to verify cradle-to-grave tracking of hazardous waste from
Mexican maquiladoras, as required by Resource Conservation and Recovery
Act, EPA needs more near-real time accountability of this material. Tracking of
hazardous materials with radio frequency identification could provide timely,
verifiable information to U.S. enforcement officials regarding the quantity and
composition of the material entering the country and confirm that the material
has reached the designated receiving facility. Mexican enforcement and Customs
officials will receive verification that the waste has returned to the country of
origin, as required by Mexican environmental law. With a viable radio frequency
identification system in place, regulators, generators, shippers and importers
would all benefit from this additional layer of visibility, ensuring accurate and
timely documentation that their waste shipments reach the correct facility and
were not abandoned or inappropriately disposed of along the way.
8 REFERENCES
1 Jacott, M., Reed, C, and Winfield, M. (2004) The Generation and Management of
Hazardous Wastes and Transboundary Hazardous Waste Shipments between Mexico,
Canada and the United States since NAFTA: A 2004 Update, Texas Center for Policy
Studies, July 2004.
2 Department of Homeland Security (2007) Transportation Systems: Critical
Infrastructure and Key Resources Sector-Specific Plan as Input to the National
Infrastructure Protection Plan, available at http://www.dhs.gov/xlibrary/assets/
Transportation_Base_Plan_5_21_07.pdf accessed 06/21/07.
3 Isarin, N., 2005. IMPEL-TFS Seaport Project: European Enforcement Initiative
to Detect Illegal Waste Shipments, Seventh International Conference on
Environmental Compliance and Enforcement, pg. 250-252. Available at http://
inece.org/conference/7/voll/41_Isarin.pdf.
4INEGI (Institute Nacional de Estadistica Geografia e Informatica), 2006. Available
at http://www.twinplantnews.com/Maquila%20Scoreboard.htm.
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414 Eighth International Conference on Environmental Compliance and Enforcement 2008
5 U.S. Environmental Protection Agency (2006) Laws and Regulations: RCRA,
available at http://www.epa.gov/epaoswer/osw/laws-reg.htm updated March 31,
2006.
6 U.S. Environmental Protection Agency (2003) Border 2012: U.S.-Mexico
Environmental Program, EPA-160-R-03-001.
7 Basel Convention, 1992. Available at http://www.basel.int/text/documents.html.
8 Sheldon, F, Walker, R., Abercrombie, R., Cline, R., Kopsick, D., and Pantaleo, J.,
2005. Tracking Radioactive Sources in Commerce, WM'05 Conference. Available at
http://www.epa.gov/radiation/docs/source-management/rad-i-ncommerce-0305.
pdf.
9 United States Government Accountability Office (GAO), 2005, Radio Frequency
Identification Technology in the Federal Government, GAO-05-551, 36 pgs.
10 Subcommittee on Commerce, Trade, and Consumer Protection, 2004. RFID
Technology: What the Future Holds for Commerce, Security, and the Consumer,
70 pgs.
11 Customs and Border Protection (CBP), 2007. Securing America's Borders at
Ports of Entry, Strategic Plan 2007-2011, pg. 19. Available at http://www.cbp.gov/
linkhandler/cgov/border_security/port_activities/securing_ports/entry_points.ctt/
entry_points.pdf.
12 Customs and Border Protection (CBP), 2006a. FAST Reference Guide, Enhancing
the Security and Safety of Trans-border Shipments. Available at http://www.cbp.
gov/linkhandler/cgov/import/commercial_enforcement/ctpat/fast/fast_ref_guide.
ctt/fast_ref_guide.pdf.
13 Customs and Border Protection (CBP), 2006b. DHS Proposes To Expand The Use
Of Vicinity RFID In Implementing Western Hemisphere Travel Initiative. Available
at http://www.cbp.gov/xp/cgov/newsroom/news_releases/archives/2006_news_
releases/102006/10172006_2.xml.
14 Sheldon, F, Walker, R., Abercrombie, R., Cline, R., Kopsick, D., and Pantaleo, J.,
2005. Tracking Radioactive Sources in Commerce, WM'05 Conference. Available at
http://www.epa.gov/radiation/docs/source-management/rad-i-ncommerce-0305.
pdf.
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Kowalski 415
PAKOOTAS, ET AL., V. TECK COMINCO:
A CASE STUDY IN TRANSBOUNDARY POLLUTION ENFORCEMENT
KOWALSKI, EDWARD1
1 Regional Counsel, Region X, United States Environmental Protection Agency,
1200 Sixth Street, Seattle, Washington, 98101, USA, kowalski.edward@epa.gov
SUMMARY
On Monday, January 7, 2008, quietly sandwiched among the hundreds of routine
orders issued by the United States Supreme Court on pending requests for
review, without comment beyond the simple heading, "CERTIORARI DENIED,"
appeared case No. 06-1188 TeckCominco Metals, Ltd. V. Pakootas, Joseph A., et al.1
The Court's sparse order, however, betray both the environmental significance
and the adversarial vigor of the underlying battle to which it brought successful
conclusion. The complex case demonstrates how multiple environmental
enforcement and diplomatic tools can be effectively integrated to address
environmental harm in one country resulting from activities by a company located
in a different country.
1 BACKGROUND ON TECK COMINCO CASE
1.1 Contamination of the Upper Columbia River
The Teck Cominco story begins on the banks of the Upper Columbia River in
Trail, British Columbia, approximately 10 miles north of the U.S.-Canadian
border. Here, for over 100 years, Teck Cominco has owned and operated the
world's largest lead and zinc smelter. From the 1890s to 1995, the Trail smelter
discharged approximately 15 million tons of contaminated slag directly into the
river. In 1991, EPA sent a letter to British Columbia officials expressing concern
about the continued slag disposal, requesting that any future permit extensions
for the company be conditioned on addressing the slag discharge.2 A response the
following month indicated that British Columbia officials were trying to develop
a timetable of improvements to resolve environmental concerns, "taking into
account Cominco's current economic and technological uncertainties."3
Concern with the contamination remained a topic of senior-level meetings between
the two countries over the next two years before the Canadian Government
notified EPA in January 1994 that no future permit amendments would allow slag
discharge beyond December 31, 1995.4 For nearly a century, however, the slag, a
black, sandy, metal-laden needle-like particulate, abrasive to fish gills and absorbed
by fish, was transported by the swift-flowing waters of the Upper Columbia across
the border into the United States. Once in the U.S., the river slows into a more lake-
like environment, due to the presence of the Grand Coulee Dam, located 150 miles
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downstream. The reduced flow caused the slag to settle throughout 150 miles of
slow-flow deposition areas, including stream banks, sediments and recreational
beaches, north of the dam. This area of the river, also known as Lake Roosevelt, is
a popular national recreation area, providing recreational opportunities including
swimming, fishing, boating and hunting to an estimated 1.3 million visitors per
year.
1.2 Efforts to Study the Contamination
In August 1999, the Confederated Tribes of the Colville Reservation ("Colvilles"),
subsistence users of the Upper Columbia, which flowed through their
reservation lands, petitioned the U.S. Environmental Agency ("EPA") under
the Comprehensive Environmental Response, Compensation, and Liability
Act to assess the threat of contamination in and along the river. Comprehensive
Environmental Response, Compensation, and Liability Act is the U.S. law that
addresses remediation of environmental contamination caused by releases or
threatened releases of hazardous substances into the environment. This law
authorizes EPA to study and take cleanup actions at polluted sites, and uses a
"polluter pays" principle to impose strict liability on several classes of persons
who caused or contributed to the contamination - site owners and operators,
and persons who arranged for disposal or transported hazardous substances for
disposal. These classes of persons are liable for conducting site cleanup and for
reimbursing costs incurred by EPA for site investigation or cleanup. The Colvilles
had the right under Comprehensive Environmental Response, Compensation, and
Liability Act to request that EPA conduct a site investigation.5 EPA completed its
initial site assessment work in March 2003, concluding that site contamination,
including arsenic, lead, copper, cadmium, zinc and mercury, was significant
enough to merit more comprehensive study in the form of a formal "remedial
investigation and feasibility study to evaluate the risks posed by the contamination
to human health and the environment.6
EPA notified Teck Cominco, the smelter's owner and operator, of its potential
liability under Comprehensive Environmental Response, Compensation, and
Liability Act, offering it the opportunity to perform the study.7 The company
responded that as a Canadian corporation, it was not subject to personal
jurisdiction in the United States nor was it subject to its environmental law,
Comprehensive Environmental Response, Compensation, and Liability Act.
Despite its jurisdictional objections, the company agreed to enter negotiations
with EPA through its American subsidiary, Teck Cominco American, Inc., to
attempt to reach an agreement guiding the site investigation. After almost a year
of negotiations, it was clear that the company was unwilling to enter an agreement
providing the scope and depth of investigation required by U.S. law and which
EPA believed appropriate for the site.
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Kowalski 417
2 COORDINATION WITH FEDERAL, STATE, AND LOCAL
AUTHORITIES
EPA recognized the transboundary issues raised by pursuing a Canadian
corporation under U.S. environmental law to address pollution in the United
States, but which originated in Canada. By the time negotiations with the
company broke down in November 2003, EPA had begun what would become an
unprecedented degree of legal analysis and coordination with other stakeholders.
Prior to entering negotiations with the company, EPA regional representatives in
Seattle8 had initiated consultations with senior officials in EPA Headquarters. In
addition, the regional office brought the U.S. Department of State and Department
of Justice into early discussions. Because the site involved lands and resources
owned and managed by other federal agencies, the U.S. Department of Interior9
was consulted as well.
Nor was interest in the site limited to the federal government. The Colvilles were
joined by the Spokane Tribe of Indians, whose reservation also bordered on the
Upper Columbia, the State of Washington and several environmental groups, all
of which expressed strong support for an investigation of contamination at the
site consistent with Comprehensive Environmental Response, Compensation,
and Liability Act requirements. On the other hand, the seven local counties
surrounding the Upper Columbia had, at Teck Cominco's urging, formed a
working group, which separately approached EPA with a proposal to negotiate a
voluntary human health assessment of the river. Their proposal was designed to
answer 3 basic questions: was the water safe to drink; were the fish safe to eat; and
were the beaches safe to use. Their approach would not require strict adherence
to the Comprehensive Environmental Response, Compensation, and Liability Act
process or standards.
3 BREAKDOWN IN NEGOTIATIONS
The breakdown in negotiations with Teck Cominco left EPA with several options:
3.1 Accept the limited investigations proposed by Teck or the counties. In
EPA's opinion, however, these studies would not ensure protectiveness of human
health and the environment. Moreover, because they would not be performed
under Comprehensive Environmental Response, Compensation, and Liability
Act, consistent with the National Contingency Plan10, EPA might jeopardize its
ability to ensure future implementation of whatever cleanup might ultimately
be determined necessary at the site.11 The legal mechanisms under which the
investigations were offered to be performed also raised a number of concerns
about enforceability of those agreements.
3.2 List the site on Comprehensive Environmental Response, Compensation,
and Liability Act's National Priorities List, EPA's list of most contaminated sites,
use U.S. government funds to perform the necessary investigations and pursue the
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company for reimbursement. However, EPA policy is to have the polluter pay for
investigation and cleanup when there is a financially viable party to perform the
work. In addition, Teck Cominco and the counties were strongly opposed to NPL
listing,12 arguing that listing would stigmatize the area, harming its recreational
economy. Other stakeholders also preferred a resolution short of listing.
3.3 Ask the State of Washington to use its state authorities to secure
the investigation and cleanup.13 Similarly, EPA could look to the tribes or
environmental groups to use their respective legal authorities to compel
performance of the work. Earlier discussions along these lines, however, had
encountered resistance because the local authorities had limited resources, and felt
that federal mechanisms were more appropriate.
3.4 Utilize the 1909 Boundary Waters Treaty14 between the United States
and Great Britain, which recognized an obligation not to pollute waters flowing
between Canada and the United States, and established an International Joint
Commission to resolve disputes over transboundary waters. Issues raised by using
the treaty process to address the situation, included how well it would address a
dispute involving cleanup of large contaminated areas, rather than point source
discharges; concern that the International Joint Commission referral process
involved less certain timeframes; and concern that unless both Canada and the
U.S. Senate consented to referring the matter to the International Joint Commission
for a binding decision, any determination would be in the form of a nonbinding
recommendation.
3.5 Request the U.S. Department of Justice file a court action against Teck
Cominco, asking the court to order the company to perform the study, issue a
declaratory judgment establishing its liability and require payment of all costs.
Any action filed by the Department of Justice would be on behalf of the United
States, and would require close coordination of all federal agencies' interests at the
site. This course of action also would require resolution of the legal question of the
U.S. courts' jurisdiction to require Teck Cominco to perform this work under U.S.
law.
3.6 Issue a unilateral administrative order to Teck Cominco under
Comprehensive Environmental Response, Compensation, and Liability Act,
ordering it to perform the study.15
4 EXTRATERRITORIAL OR DOMESTIC LEGAL AUTHORITIES
Filing an enforcement action against Teck Cominco in U.S. courts would
raise the legal question of whether a judicial enforcement action against Teck
Cominco would be considered a "domestic" or "extraterritorial" application
of U.S. law. EPA would have to argue either that application of U.S. law in this
situation is a "domestic" application of Comprehensive Environmental Response,
Compensation, and Liability Act or that it is a permissible "extraterritorial"
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Kowalski 419
application under U.S. law. Longstanding U.S. law provides that Congressional
legislation, unless a contrary intent appears, is meant to apply only within the
territorial jurisdiction of the United States.16 However, an important exception to
this general principle, holds that U.S. courts may apply U.S. law extraterritorially
where the actions of a foreign entity outside the U.S. have significant adverse
impacts within the United States and are contrary to the U.S. national public
interest.17.
5 UNILATERAL ORDER AND SUBSEQUENT COURT ACTION
5.1 EPA's Unilateral Administrative Order and Diplomatic Objections
Having analyzed its options, on December 11, 2003, EPA issued Teck Cominco
a unilateral administrative order, requiring it to conduct a study for the Upper
Columbia River Site within United States territory.18 The Canadian Government
responded with a Diplomatic Note to the Department of State on January 8, 2004,
objecting to EPA's attempt to enforce its laws against a Canadian company, and
encouraging EPA to rescind the order and re-examine Teck Cominco's earlier
offer.19 Teck Cominco responded four days later, notifying EPA of its intent not
to comply with the order and resubmitting its previously rejected proposal.20
U.S. officials met with a Canadian Government delegation in February 2004 to
discuss the impasse. That meeting was followed a month later with a Canadian
Government proposal that the two governments negotiate a Memorandum
of Understanding to address the site through a joint scientific process bearing
many similarities to Teck Cominco's last proposal. The Canadian Government's
proposal launched the beginning of many months of negotiations between the two
countries in an attempt to reach a diplomatic resolution concerning the site. With
no agreement concluded, however, EPA initiated its own remedial investigation
and feasibility study at the site in 2004.
5.2 Tribe and State Obtain Court Enforcement of EPA's Order
While diplomatic discussions between the U.S. and Canada continued alongside
separate intermittent negotiations with the company, two members of the Colvilles
filed an action in federal district court for the Eastern District of Washington on
July 21, 2004, seeking enforcement of EPA's order. Washington State intervened
in the lawsuit. Teck Cominco moved to dismiss the suit based upon lack of
jurisdiction. On November 8, 2004, the district court denied Teck Cominco's
motion to dismiss.21 While the court recognized that the case involved applying
a domestic law to clean up a site located entirely within the United States, for
purposes of its analysis, it went on to assume the case involved an extraterritorial
application of Comprehensive Environmental Response, Compensation, and
Liability Act to conduct occurring outside of U.S. borders. The court held that
though extraterritorial, the application of Comprehensive Environmental
Response, Compensation, and Liability Act was appropriate in the case given
Comprehensive Environmental Response, Compensation, and Liability Act's
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420 Eighth International Conference on Environmental Compliance and Enforcement 2008
purpose to remedy domestic conditions and the well-established principle that the
presumption against extraterritorial application is not applied where failure to do
so will result in adverse effects within the United States.
Teck Cominco appealed to the Ninth Circuit Court of Appeals. The appeal was
extensively briefed, with multiple amicus briefs being filed on behalf of each side
of the jurisdictional issue.22 A unanimous 9th Circuit panel affirmed the district
court ruling, holding that the case did not involve an extraterritorial application
of Comprehensive Environmental Response, Compensation, and Liability Act.
Rather, the court reasoned, it involved a domestic application of Comprehensive
Environmental Response, Compensation, and Liability Act to a facility located
entirely within the United States and the release, leaching from the slag, also
occurred in the U.S.23 When Teck Cominco's Petition for Rehearing to the Ninth
Circuit was denied, it sought United States Supreme Court review.
5.3 Settlement With Company and Supreme Court Review
While the citizens' suit litigation was winding its way through the courts,
settlement discussions between the U.S., Canada, Washington State, Tribes and
Teck Cominco continued. On June 2, 2006, in the time between the 9th Circuit
oral argument and the court's decision, the United States and Teck Cominco
reached a settlement agreement under which Teck Cominco agreed to conduct the
remedial investigation, consistent with Comprehensive Environmental Response,
Compensation, and Liability Act's National Contingency Plan, in return for EPA's
withdrawal of its unilateral administrative order.
As the case went before the Supreme Court, EPA had Teck Cominco's commitment
to perform the investigation and an appellate ruling that the company was subject
to Comprehensive Environmental Response, Compensation, and Liability Act.
When the Supreme Court asked the U.S. for its position before ruling on Teck
Cominco's petition for review, the U.S. government first argued the case was moot
given the settlement with Teck Cominco and withdrawal of the administrative
order. Second, it argued the questions presented by the case did not merit Supreme
Court review, as there was no conflict among the appellate courts on those issues.
Finally, given the interlocutory nature of the appeal, it argued that the lack of
factual development in the district court made the case a poor vehicle to develop
law on any of the questions raised in the petition.
6 CONCLUSION
The Supreme Court had several choices for ruling on Teck Cominco's petition. It
could grant review, and upon review proceed to affirm the 9th Circuit's application
of Comprehensive Environmental Response, Compensation, and Liability Act to
transboundary pollution or overturn that finding. It could decline review, with or
without additional ruling. For example, the court could deny review but vacate the
9th Circuit opinion, in effect erasing that precedent and sending the parties back to
the beginning in district court.
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Kowalski 421
On January 7, 2008, the Supreme Court denied the Petition for Certiorari
without comment. Therefore, Teck Cominco remains subject to Comprehensive
Environmental Response, Compensation, and Liability Act jurisdiction and
responsible for evaluating the environmental damage it caused and the feasibility
of remedies to address it. Through effective coordination and application of
a creative mix of enforcement and diplomatic tools, federal, state and local
stakeholders were able to achieve the best results for the environment in and
around the Upper Columbia River.
(The views expressed herein are those of the author and do not represent the views of the
USEPA)
REFERENCES
1 552 U.S. , (January 7, 2008).
2 November 20, 1991 letter from Robert S. Burd, Director, Intergovernmental
Liaison, to Jim McLaren, Regional Waste Manager.
3 December 17, 1991 letter from Rick Crozier, Assistant Regional Waste Manager to
Robert Burd, Manager, Water Programs.
4 January 10, 1994 letter from E.D. Anthony, Regional Director General, to Gerald
A. Emison, Acting Regional Administrator.
5 See 42 U.S.C. Sec. 9605(d): "Any person who is, or may be, affected by a release
or threatened release of a hazardous substance or pollutant or contaminant, may
petition the President to conduct a preliminary assessment of the hazards to public
health and the environment which are associated with such release or threatened
release."
6 Under the Comprehensive Environmental Response, Compensation, and Liability
Act process, following the initial assessment finding contamination at a site, the
RI/FS is the usual next step in the cleanup process. The RI is intended to determine
the nature and extent of the problem presented by the release. The FS develops
and evaluates options for cleanup of the contamination.
7 See 42 U.S.C. Sec. 9604(a): "When the President determines that such action will
be done properly and promptly by the owner or operator of the facility or vessel
or by any other responsible party, the President may allow such person to carry
out the action, conduct the remedial investigation, or conduct the feasibility study
in accordance with section 9622 of this title."
8 Although headquartered in Washington, D.C., EPA has 10 regional offices
located throughout the United States. The regional office in Seattle has been
delegated much of the responsibility for environmental matters arising in Alaska,
Washington, Idaho and Oregon.
9 In addition to the Bureau of Reclamation, other federal agencies under the
Department of Interior with interests impacted by the site included United States
Geological Survey, Bureau of Indian Affairs, U.S. Fish & Wildlife Service, National
Parks Service and Bureau of Land Management. In addition, the Department of
Energy was consulted because of Bonneville Power Administration involvement
in dam operations.
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422 Eighth International Conference on Environmental Compliance and Enforcement 2008
10 The National Contingency Plan, located at 40 CFR Part 300, is the EPA rule
promulgated under Comprehensive Environmental Response, Compensation, and
Liability Act which lays out in great detail the framework for implementing the
Comprehensive Environmental Response, Compensation, and Liability Act statute,
including the process by which contaminated sites are investigated and ultimately
cleaned up. American courts have given great deference to EPA in challenges to its
decisions and actions as long as they were determined to be "consistent with the
National Contingency Plan."
11 Under Comprehensive Environmental Response, Compensation, and Liability
Act's structure, EPA separately negotiates with, or can legally require, responsible
parties to perform the RI/FS, or site investigation, and RD/RA, remedial design/
remedial action or site cleanup. In this case, if EPA entered into an agreement for
a site investigation not consistent with the National Contingency Plan, and later
brought an enforcement action to require site cleanup, it might subject itself to a
defense that the selected cleanup it was seeking to require was unenforceable on
the ground that the process leading to its selection was not consistent with the
National Contingency Plan.
12 Only sites listed on EPA's National Priorities List can receive remedial action
funding from the government.
13 In fact, Washington has a cleanup law modeled on Comprehensive
Environmental Response, Compensation, and Liability Act, known the Model
Toxics Control Act, RCW 70.105D.010 et seq.
14 Treaty Between the United States and Great Britain Relating to Boundary Waters
Between the United States and Canada, U.S.-Gr. Brit., Jan. 11,1909, 36 Stat. 2448.
15 42 U.S.C. Sec. 106(a) provides: "In addition to any other action taken by a State or
local government, when the President determines that there may be an imminent
and substantial endangerment to the public health or welfare or the environment
because of an actual or threatened release of a hazardous substance from a facility,
he may require the Attorney General of the United States to secure such relief
as may be necessary to abate such danger or threat, and the district court of the
United States in the district in which the threat occurs shall have jurisdiction to
grant such relief as the public interest and the equities of the case may require. The
President may also, after notice to the affected State, take other action under this
section including, but not limited to, issuing such orders as may be necessary to
protect public health and welfare and the environment."
16 See Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949).
17 See U.S. v. Aluminum Company of America, 148 F.2d 416 (2d Cir. 1945).
18 December 11, 2003 Unilateral Administrative Order, Docket. No. CERCLA-10-
2004-0018.
19 January 3, 2004 Diplomatic Note from the Ambassador of Canada, Note No.
0001.
20 January 12, 2004 letter from G. Leonard Manuel, Vice President & General
Counsel, to Michael Gearheard, Director, Environmental Cleanup Office.
21 Pakootas v. Teck Cominco Metals, Ltd., 2004 U.S. Dist. LEXIS 23041 (E.D. Wash.
2004).
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Kowalski 423
22 As it did in the district court litigation, the United States did not participate in
the appellate proceedings.
23 452 R3d 1066 (9th Cir. 2006).
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Whitehouse & Rain 425
A NEW DYNAMIC FOR THE HAZARDOUS WASTE TRADE
IN NORTH AMERICA
WHITEHOUSE, TIM1 AND RAIN, KELLY2
1 INECE Secretariat, 2300 Wisconsin Avenue NW, Suite 300B, Washington, DC
20007, twhitehouse@inece.org.
2 Law Fellow, Institute for Governance & Sustainable Development, 2300
Wisconsin Avenue NW, Suite 300B, Washington, DC 20007, kelly.rain@gmail.com.
SUMMARY
The United States is moving beyond an import-safety approach where decisions are
made at the border to one that targets critical points in the imports life cycle. This
trend is occurring in the hazardous waste trade in North America, where significant
weaknesses exist in the United States' ability to track hazardous waste across North
American borders. This paper reviews on-going efforts to improve hazardous waste
tracking across borders in North America. To build on these efforts, this paper
recommends that the United States and Mexican governments require foreign
consignees of United States or Mexican hazardous waste to send a certification
back to them stating that the recycling or disposal activity has occurred. It also
recommends that the United States and Mexico manually share data on hazardous
waste shipments from Maquiladoras to the United States. These two steps would
greatly improve the ability of North American governments to monitor hazardous
waste shipments. These efforts should occur as part of a larger effort to ensure that
the borders do not act as a shield to protect wrong doing in any NAFTA country,
and that all actors in the production, distribution, and sale of imports are held
accountable for ensuring that their products meet the environmental, health, and
safety standards of the country where they are being sold.
1 INTRODUCTION
This paper evaluates the United States' experience working to improve the
tracking of transboundary hazardous waste shipments with Canada and Mexico.
These efforts are largely consistent with the framework presented in the recent
United States government report, Action Plan for Import Safety: A Roadmap for
Continual Improvement.1 We offer suggestions for how these three countries can
work together to ensure that their borders do not act as a shield to protect wrong
doing in any NAFTA country.
2 THE PROBLEM
Public institutions have had difficulty keeping pace with the scope, pace, and
complexity of the rapid growth in international commerce. Since 1950, global trade
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426 Eighth International Conference on Environmental Compliance and Enforcement 2008
has grown twenty-seven fold to an estimated U.S. $16 trillion in 2007, equal to 31
percent of world gross domestic product (GDP).2
In countries throughout the world, this difficulty is evidenced by serious health,
safety, and environmental problems with certain imported products. Examples in
the United States include cadmium-contaminated zinc sulfate fertilizer from China,
lead-tainted toy jewelry from Mexico and China, engines that are non-compliant
with the Clean Air Act, smuggled wildlife, and ozone depleting substances from
all parts of the globe.3
Trade-related hazardous waste issues are more nuanced. Most hazardous waste
generated in the United States, Mexico or Canada remains in North America.
Problems have been documented in this North American trade in hazardous
waste and with hazardous waste management along the United States-Mexico
border. Yet no recent gripping or "smoking gun" situation has galvanized political
attention on compliance-related problems that may exist with this trade.4
A number of reasons exist why the United States is taking steps to improve
its ability to better manage these shipments despite this lack of a "smoking
gun." Hazardous waste has become a border security issue, both because of
the dangers inherent in the waste itself and because of the difficult nature of
properly inspecting the sealed drums containing these wastes. Moreover, because
generators have to pay to dispose of hazardous wastes, strong incentives exist to
illegally dispose of these wastes if adequate compliance monitoring controls do not
exist. Finally, governments in North America have felt acute political pressures to
make sure NAFTA does not cause a "race to the bottom" in terms of environmental
standards.
3 AN EVOLVING RESPONSE
Governments have historically responded to trade-related problems by increasing
the number of border requirements applicable to imported goods. The United
States Customs and Border Protection (Customs) now monitors imported goods
for compliance with more than 400 laws and 34 international treaties, statutes,
agreements and conventions on behalf of 40 federal agencies. Some agencies such
as the Department of Agriculture, the Food and Drug Administration, and the Fish
and Wildlife Service have inspectors at border ports to assist in these inspections.
Border inspections alone, however, can no longer ensure that international trade
is compliant with domestic environmental laws. Customs typically is able to
inspect only about 3 to 5 percent of all shipments.5 Even if Customs were able to
raise the amount of cargo it could inspect, most ports have little space for trucks
or containers to wait and backups would cause gridlocks in the transportation
system.
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Whitehouse & Rain 427
These border realities have caused the United States to move beyond an import-
safety approach where decisions are made at the border to one that targets critical
points in the imports life cycle. The Action Plan for Import Safety finds that the
border should be one of many spots in a network of interconnected points in the
import process where verification and inspection of goods occurs.
The plan puts forth five "building blocks" to advance a common vision of the
safety of product imports. These are: increasing accountability, enforcement, and
deterrence; focusing on risks over the life-cycle of an imported product; building
interoperable systems; fostering a culture of collaboration; and promoting
technological and innovative and new science.
Underlying this plan is a call for government agencies to work with the private
sector and foreign governments to "prevent harm in the first place" by improving
manufacturing and distribution processes of U.S. imports.
This framework is consistent with many on-going governmental efforts to improve
import compliance. Customs, for example, is leading a federal government effort
under a partnership known as the International Trade Data System, to utilize the
new Customs electronic data management system, the Automated Commercial
Environment, for the electronic collection, use and sharing of international trade
data. This system will offer single window electronic filing of documents to the
trade community and support the electronic exchange of information between
government agencies.
A number of federal agencies are also working to promote compliance before the
point of entry. Currently, for example, the Food and Drug Administration inspects
foreign medical factories importing products to the United States6 and the U.S.
Department of Agriculture evaluates the equivalence of foreign meat and poultry
food regulatory systems and sanitary measures to insure the product meets U.S.
import requirements.7
4 TRACKING HAZARDOUS WASTE SHIPMENTS IN NORTH AMERICA
The United States, Canada and Mexico employ the concept of prior informed
consent to control transboundary hazardous waste shipments. Under this system,
material regulated in one country as hazardous waste may only be exported with
the prior consent of the importing country. A number of weaknesses exist in the
system that makes it difficult to track international shipments of hazardous waste
from cradle-to-grave.
4.1 The Current System
The prior informed consent concept and domestic hazardous waste management
laws rely on government agencies sharing information on transboundary
hazardous waste shipments. In all three countries, importers and exporters must
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obtain written approvals from national governments to ship hazardous waste or
hazardous recyclable material from one country to another. Consent must also be
obtained from the destination country. Under this notice system, importers will
receive permission to ship a specific kind and amount of waste from one country
to another for a designated period of time.
Facilities that accept hazardous waste from foreign generators must notify the
U.S. EPA region before the first shipment arrives, but are not required to re-notify
the U.S. EPA unless the character or source of the waste changes. When an actual
shipment crosses the border, the U.S. receiving facility is required to send a copy
of the manifest to EPA Headquarters within 30 days of receipt.
This notice-based system does not track actual shipments, and does not operate
on a "real-time" basis. It does give the United States some control over what
hazardous waste enters the country, where it should be going and how it will be
treated. For the reasons discussed in the next section, however, collecting and
matching all the paperwork necessary to identify whether specific hazardous
waste shipments are going where they are suppose to be going is extremely
difficult, undermining effective compliance monitoring.
4.2 Weakness in the System
At least three major weaknesses exist in this system. The first weakness is that the
notice system is paper-based, and consequently imposes a high administrative
burden on the governments and limits their ability to use the information for
compliance monitoring. Currently, countries share export requests and consent
documents with one another by sending copies through the mail, by fax, or by
cable and enter data into multiple systems manually. It does not allow for the real-
time exchange of information between governments and government agencies,
resulting in processing backlogs and inaccuracies in existing data systems because
data must be entered manually.8
The second weakness is that maquildora industries, assembly factories in Mexico
operating under a special tax program, are exempt from this system. Under
Mexican law, maquiladoras are required to export their hazardous waste. Although
almost all of this waste goes to the United States, maquildoras are exempt from
the notice system under the La Paz Agreement.9 As a result, the Environmental
Protection Agency does not have accurate information on the quantity, type, origin,
method of handling, of maquiladoras sending waste into the United States. In the
past, the manifest was the critical document for beginning any compliance review
of maquiladoras. However, efforts to collect manifests at the border and enter them
manually into a data base called HAZTRAKs proved extremely unreliable, time
consuming and expensive. In addition, logistical and financial obstacles derailed
efforts to link the HAZTRAKs database with other United States hazardous waste
databases and with Mexican data bases.
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The final weakness in this system is that no return notice system is in place in the
United States as it is in Canada to ensure that the waste actually goes where it
is suppose to go. Only Canada has an integrated transboundary hazardous waste
management system. In Canada, the consignee of hazardous waste must send a
certification to Environment Canada stating that the recycling or disposal activity
has occurred. So, for example, if a Canadian company receives permission from
Environment Canada to send hazardous waste to the United States, once the
waste actually arrives at its destination facility in the United States, that facility
must notify Environment Canada when it has recycled or disposed of that waste.
With shipments originating in the United States, or Mexico for that matter, no such
return notice is required. The United States does not know whether shipments
leaving the country actually reach their approved destination. Likewise, Mexico
does not know whether shipments that are supposed to enter the United States
actually reach their destination.
5 A NEW DYNAMIC FOR THE HAZARDOUS WASTE TRADE
5.1 The Framework for Cooperation
Efforts to address these problems have evolved along the lines of the building
blocks put forth in the United States Action Plan on Import Safety. These efforts are
occurring largely — but not exclusively — through the work of the Commission
for Environmental Cooperation, often referred to as the environmental side
agreement to NAFTA.
In 2003, the Environmental Ministers of the Commission for Environmental
Cooperation put forth a resolution to promote greater cooperation on the
transboundary hazardous waste trade in North America. The resolution called on
the three countries to work to strengthen the environmentally sound management
of hazardous waste and hazardous recyclables on waste streams of common
concern; to work toward the interoperability of waste tracking systems; and to
support capacity building needs in Mexico. This resolution reinvigorated the work
of the Commission for Environmental Cooperation's Hazardous Waste Task Force,
which has been largely dormant the preceding years.
5.2 Developing a Business Process Model
The first step of the hazardous waste task force was to understand how the
North American hazardous waste trade actually worked. The task force held
three public workshops to develop schemas, known as business process models,
which outlined all the steps that need to occur for hazardous waste to be traded
between the three countries. Although the purpose of the business process models
was to lay the ground work for the electronic exchange of information between
the countries, it also ended up giving the governments a complete understanding
of the trade process, and as a consequence helped identify ways to maximize
government efficiencies, direct resources toward weak spots and to look for points
of collaboration.10
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5.3 First Steps Toward Inter-operability
With respect to the electronic exchange of information, the governments are
developing common data standards for export requests and consent documents
and a method for sharing this information electronically. The Commission for
Environmental Cooperation project will allow governments to exchange this
export request and consent information electronically. This will reduce government
administrative burdens, improve data quality, make it easier to provide data to
environmental enforcement and border protection agencies, facilitate the adoption
of emerging tracking technologies and help the governments provide more timely
and coherent information on what crosses their national borders. This project will
also enhance compliance. The new electronic system will include information on
shipment requirements contained in the notice and consent documents. This will
allow the governments to compare the requirements with the actual shipment
information in order to determine possible violations.11
5.4 Electronic Tracking of Waste
The U.S. Environmental Protection Agency (EPA) is exploring the feasibility
of using radio frequency technology (RFID) to track actual hazardous waste
shipments entering the United States. Currently, EPA is designing a demonstration
pilot for maquiladora waste entering the United States. RFID refers to small
electronic devices that consist of a small chip and an antenna. The RFID chip can
transmit manifest data on the hazardous waste shipment to government agencies
in near real-time at designated points in the process, such as the generating facility,
the border and the treatment, storage and disposal facility. The results from this
pilot may inform the application of this technology to a much broader range of
international trade in environmentally dangerous goods and substances.
6 CONCLUSIONS
Unlike the Food and Drug Administration or USDA's inspection work overseas,
the United States Environmental Protection Agency does not have a compelling
public health, safety or environmental reason for the regular inspection of
Mexican or Canadian generators or transporters of hazardous waste. However, all
three countries have compelling reasons to want to know whether waste shipped
within North America actually reach its intended destination and that the borders
are not used as a shield to protect unlawful behavior. The work described above
represents important first steps in this process. Some additional steps by the
United States could greatly enhance this effort.
6.1 Develop a Close-Looped, Canadian-Style System
Only Canada has the ability to track hazardous waste shipments from cradle-
to-grave. The simplest, easiest way to improve the ability of the United States to
monitor shipments would be for the United States and Mexico to adopt a similar
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system to that of Canada, where the consignee of the waste must notify the
exporter's government that the shipment has actually arrived at its destination.
6.2 Share Data on Maquiladora Shipments
The idea of linking HATRAKs with Mexican databases was ahead of its time.
However, the goal of linking databases should not obscure the fact that the United
States and Mexico could manually share information to determine the extent of
compliance-related issues with maquiladora shipments.
In Mexico, a maquiladora determines whether a waste is hazardous in Mexico and
the United States. If the waste is hazardous in the United States, the maquiladora
arranges with a U.S. facility to receive its hazardous waste before preparing
an aviso de retorno (return notice application). The information collected on an
aviso de retorno is entered into a data base in Mexico. This information includes
information on the generator, the destination and shipping route of the waste, and
the company that will handle the return of the waste.
If the United States should receive this information from Mexico, EPA and the
states could incorporate this information into the routine, periodic inspection
cycle.
6.3 Develop a Common Vision, Objectives and Strategies
North America has made tremendous progress in cooperating on ways to
improve the compliance monitoring of hazardous waste shipments. Given that
governments of Canada and Mexico have changed since the Commission for
Environmental Cooperation's Council Resolution 03-08, it may be time to consider
another resolution which puts forth a comprehensive framework for improving
the compliance monitoring of transboundary hazardous waste shipments. This
framework could reinforce ongoing trinational efforts while emphasizing the need
to share information on actual shipments, promote cradle to grave tracking of
waste shipments, and reinforce the need for proper training of border inspectors.
This framework should be part of a larger vision, with clearly defined objectives
and strategies, that work to ensure that the borders do not act as a shield to
protect wrong doing in any NAFTA country, and that all actors in the production,
distribution and sale of imports are held accountable for ensuring that their
products meet the environmental, health and safety standards of the country
where they are being sold.
7 REFERENCES
1 Action Plan for Import Safety: A Roadmap for Continual Improvement, A Report to the
President: Interagency Working Group on Import Safety (Nov. 20007), http://www.
importsafety.gov/report/actionplan.pdf.
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432 Eighth International Conference on Environmental Compliance and Enforcement 2008
2 World Trade Organization, World Trade Report 2007 (2007), at Executive Summary.
3 McQueen, M.P., Agency Misses Chance to Curb Lead in Jewelry, THE WALL STREET
JOURNAL (12 Feb. 2008); Imported Cadmium-Contaminated Zinc Sulfate Used in
Fertilizer and Other Products, Washington State Department of Ecology (July
2000), http://www.ecy.wa.gov/pubs/0004025.pdf; see Face to Face with Toy Safety:
Understanding an Unexpected Threat, ENVIRONMENTAL HEALTH PERSPECTIVES (2
Feb. 2008); Stefan Lovgren, Wildlife Smuggling Boom Plaguing L.A., Authorities
Say, NATIONAL GEOGRAPHIC NEWS (26 July 2008); see Environmental Investigation
Agency, Preventing Illegal Trade in ODS (31 May 2007), http://www.eia-international.
org/cgi/reports/reports.cgi?t=template&a=138.
4 Some of the problems have been document in publications such as Strengthening
U.S.-Mexico Transboundary Environmental Enforcement: Legal Strategies for Preventing
the Use of the Border as a Shield Against Liability (Environmental Law Institute,
2002, http://www.elistore.org/reports_detail.asp?ID=10706); The Generation and
Management of Hazardous Wastes and Transboundary Hazardous Waste Shipments
between Mexico, Canada, and the United States Since NAFTA: A 2004 Update (Texas
Center for Policy Studies, 2004, www.texascenter.org/publications/hazwaste04.
pdf; and Crossing Over: US Lacks Good Data on Hazardous Materials Trucked from
Mexico (The San Diego Union-Tribune (June 12, 2006), www.signonsandiego.com/
uniontrib/20060612/news_lnl2waste.html).
5 Variations of this number have been reported; for example, the Food and Drug
Administration examines 1-1.5 percent of food imports. Diedtra Henderson, Food
Imports Seldom Checked, THE BOSTON GLOBE (1 May 2007) (Since 1997, FDA officials
say, they have examined just 1 to 1.5 percent of food imports, while shipments
skyrocketed from more than 4 million entries in 1997 to more than 15 million in
2006); see Press Release, Senator Maria Cantwell, Senate Passes Comprehensive
Cantwell-Backed Port Security Package (14 Sept. 2006), http://cantwell.senate.gov/
news/record.cfm?id=263078 (". . . we are inspecting the contents of less than 3
percent of the more than six million containers entering our country each year.").
6 Overseas medical facilities are inspected at a rate of once every 13 years. In
comparison, American medical facilities are inspected every two years. The
problems arising from such a disparity has been highlighted by at least four deaths
and hundreds of allergic reactions related to the Chinese-supplied blood thinner
heparin. FDA Inspections Lag in Overseas Drug Factories, The Washington Times (28
Feb. 2008), http://www.washingtontimes.com/apps/pbcs.dll/article? AID=/20080228/
BUSINESS/906826390/1001.
7 See Process for Evaluating the Equivalence of Foreign Meat and Poultry Food Regulatory
Systems, USDA: Food Safety and Inspection Service (Oct. 2003), http://www.fsis.
usda.gov/OPPDE/IPS/EQ/EQProcess.pdf.
8 Commission for Environmental Cooperation, Tracking Hazardous Waste: Improving
the Transboundary Tracking of Hazardous Waste in North America: A Regional Approach
to a Global Effort (Sept. 2007), at 1, http://www.cec.org/files/PDF/LAWPOLICY/
hazwaste%20tracking_en.pdf; Commission for Environmental Cooperation,
Tracking and Enforcement of Transborder Hazardous Waste Shipment in North America:
A Needs Assessment (1999), at 36, http://www.cec.org/files/PDF/LAWPOLICY/
HazW-Ang.pdf.
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9 La Paz Agreement, 80 Stat. 271; 1 U.S.C. 113 (signed August 14, 1983, approved
July 8, 1966), http://yosemite.epa.gov/oia/MexUSA.nsf/ae0396372fe73b828825671cO
07eOb90/208f81d47fde81b9882566bl0061cbc2!OpenDocument.
10 Commission for Environmental Cooperation, Crossing the Border: Opportunities to
Improve Tracking of Transboundary Hazardous Waste Shipments in North America (Oct.
2005),http://www.cec.org/files/pdf/LAWPOLICY/Crossing-the-Border_en.pdf.
11 Tracking Hazardous Waste, supra note 8.
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TRACK D: BIODIVERSITY, ECOSYSTEMS
AND ENFORCEMENT
THE FORMAL AND INFORMAL ORDERS IN LAND CLEARANCE
REGULATION IN AUSTRALIA
BARTEL, DR. ROBYN1
1 School of Behavioural, Cognitive and Social Sciences, University of New England,
Armidale, NSW, 2351, Australia, rbartel@une.edu.au.
SUMMARY
Regulation of land clearance in Australia is attempting to curtail the big three
environmental threats facing humanity: the enhanced greenhouse effect,
biodiversity losses, and land degradation/desertification. This paper will review
the current legislative regimes in place to reduce the rates of land clearance and
some of the reasons why they have fallen short of generating compliance and,
therefore, regulatory success. Chief amongst these are the "disconnects" between
the "informal" codes or orders of behaviour upheld by norms within the regulated
community, as well as the regulators, and the "formal" order of norms promoted
by legislation. This paper will also describe how past regulatory failures may
herald a future of regulatory success resulting from the development of a culture
of learning and professionalism within agencies charged with implementation
and enforcement. As a consequence, the narrowing of the gap between the formal
order of the law and the informal order of society will likely occur.
1 INTRODUCTION
One of the major problems threatening Australia's environmental quality and
security of ecosystem benefit provision is clearance of native vegetation, resulting
from the lack of effective land regulation.1 Australia is the fifth highest land
clearing nation in the world, following only Brazil, Indonesia, the Democratic
Republic of Congo, and Bolivia.2 Past and continuing clearance of native
vegetation has dire consequences for the sustainability of natural environments
and production landscapes. Land clearance is linked causally to water and land
degradation, biodiversity losses, increases in greenhouse gas emissions, and
threats to the viability of agricultural industries. The term "desertification" is
readily applied to similar circumstances internationally. While land clearance in
Australia is not a new phenomenon, clearance rates have been greatest in the last
50 years, with the area cleared equal to that cleared in the first 150 years of white
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settlement.3 Government intervention in recent decades has reversed a historic
preference for clearance, which satisfied the growth agenda of the colonizers and
agricultural production, and made most acts of land clearance on private land
illegal without a permit. Government agencies are responsible for implementation,
administering permit allocations, and monitoring and enforcement of clearance
activities.
2 REGULATORY EVOLUTION
Australia has been governed through a Federal system since 1901, with a
central seat of power controlling areas of national importance, such as defence.
Additionally, six states and two territories have broad jurisdiction within their own
boundaries. In the century since establishment of a federal system of government,
the original demarcation of control has been eroded in favour of the national
government, which increasingly intervenes in state matters. Regardless, the state
governments remain in general control of natural resource management and in
particular control of land clearance.
In the states of South Australia and Victoria land clearance legislation dates from
the 1980s, with the remaining states introducing controls from the mid-1990s (see
Table 1). Regulation in most states is increasingly:
- Command and control in approach with regard to monitoring, enforcement,
and penalties;
- Technologically advanced, satellite imagery dependant, information intensive,
and reliant on vegetation maps classifying areas as deserving of different levels
of protection and requiring different levels of control;
- Adoptive of new approaches; for example, off-set arrangements where
clearance of one area may be made conditional on the saving of a similar or
greater area from clearance; and
- Adaptive and responsive to local conditions, with increasing devolution to
communities and "grass-roots" governance.
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Bartel
437
Table 1: Timeline and Selected Features of Land Clearance Regulation in
Australia*
STATE
LEGISLATION
Recent reforms
New South
Wales
Native Vegetation Act
2003 (took effect 2005) and
Regulations 2005
Native Vegetation Conservation
Act 1997
State Environment Planning
Policy (SEPP) 46 1995
(Protection and Management of
Native Vegetation Policy)
Maximum penalty for unpermitted clearance
is $1.1 million. Regionally-based Catchment
Management Authorities (CMAs) are the
permit authorities and can not permit broad-
scale clearance unless the overall effect is
to improve or maintain the environment.
All permits are conditional upon 15 year
Property Vegetation Plans.
South
Australia
Native Vegetation Act 1991
South Australia (as amended
2002)
Planning Act 1982
Amendments in 2002 increased the
maximum penalty from $40,000 to $100,000,
made permits conditional on achieving a
significant environmental gain; and placed
the cost of data provision for determining
applications on the landholder.
Victoria
Native Vegetation Management
Framework: A Framework for
Action (DNRE, 2002)
Native Vegetation Retention
Planning Control program 1989
In 2002 an earlier policy aim of no net
loss of vegetation was replaced with that
of achieving a net gain. Vegetation is
classified through a "habitat hectare" system
of quality assessment, which includes
measures of a particular site's condition and
landscape context which is used to assess
and compare areas.
Western
Australia
Environmental Protection
(Clearing of Native Vegetation)
Regulations 2004
Amendments in 2004 raised the maximum
penalties from $3,000 to $250,000 for
individuals and $500,000 for corporations.
Soil and Land Conservation Act
1945 (included land clearance
since 1986)
Queens-
land
(free-hold)
(lease-hold)
State Policy for Vegetation
Management, May 2004,
amended Nov 2006
Vegetation Management
Regulation 2000
Freehold land regulation -
Vegetation Management Act
1999
(freehold regulations introduced
2000)
Land Act 1994 (leasehold
regulations introduced in 1995)
Reforms have introduced an offsets policy,
on-the-spot fines, a minimum penalty
scale, removed the privilege against self-
incrimination and added presumptions of
landholder responsibility for clearance and
satellite data accuracy. Vegetation across the
state has been classified as either remnant or
non-remnant and a complete phase out of
broad-scale clearance of remnant vegetation
is the current aim. All applications to clear
require a property vegetation management
plan (PVMP) which must meet the
performance requirements of the regional
vegetation management codes.
Tasmania
Forest Practices Act 1985
(commercial forestry restrictions
extended to private forestry in
2002)
Tasmania has lagged behind the other states
in having no state-wide legislation until 2002
• Note that Australia is a Federation and land clearance is in the control of the States.
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3 REGULATORY FAILURE
The regulatory reforms outlined above have been enacted in response to regulatory
failures that have been evidenced through continuing high rates of land clearance
and poor implementation. Several studies, including those performed by this
author, have attributed these regulatory failures to a suite of difficulties.4 A lack of
political will and inadequate resourcing at a government level are often identified
problems, but there may also be inadequate "back up" of the law by appropriate
penalties and court sentencing.
At an agency level there may be a lack of agency personnel with the skill sets and
culture conducive to enforcement, education, or implementation generally, which
may be compounded by inadequate monitoring, knowledge, and information. In
the past, agencies have been accused of complicity in non-compliance, due to their
lax monitoring and poor enforcement.5 This is changing and is further discussed
below.
Amongst those being regulated there may be inadequate norm activation or moral
agreement with the law, along with various conflicts of interests between sectors of
the community. There are also perceived, and actual, inequities in the application
of the regulations, and the costs imposed on the regulated may be unable to be
borne. Additionally, market failures exist along with perverse incentives to break
the law.6 While maximum statutory penalties may be high, actual fines are often
low and of little deterrent value. In parallel, sentences also a lack of appreciation of
the seriousness of contraventions within the judicial, and also wider, community.
4 THE FORMAL AND INFORMAL ORDER OF LAW
The function of criminal law is to declare standards of moral conduct and mete
out punishment for violations, but Australian land clearance laws have been
accused of lacking the prerequisite moral repugnance and for attracting mainly
administrative penalties. Sentences that are imposed are inadequate, which
indicates that violation of land clearance laws is acceptable.
Certain sectors of society may perceive environmental crimes, such as land
clearance, as "not really crime." However, the argument that environmental
violations are legitimate crimes deserving punishment is achieving more
prominence; perhaps especially as global fears for human-induced climate
change become more mainstream. Such divergence of opinion is not unexpected,
particularly considering that land clearance was previously promoted by
governments and central to the vision of Australia held by European settlers.
The norms and cultures which exist within society may or may not be mirrored
by the "official" norms codified in legislation. The degree of convergence between
the "formal" and "informal" orders of law is important for raising compliance,
especially voluntary compliance, on which the efficacy of the regulatory system
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Bartel 439
relies. According to Teubner, the efficacy of a law may be compromised where
there is a value conflict between the regulations, the regulators and those being
regulated, and also where there is a conflict between the norms underpinning the
legal system and other social systems.7 However, Teubner also recognises that
regulation may still succeed if avenues of implementation are adopted that work
with internal motivators rather than against them.
5 COMPLIANCE MODELS AND MOTIVATIONS
Compliance has been traditionally sought via deterrence. However, deterrence-
based options have increasingly been strengthened in an attempt to trigger the
change in behaviour required. The "Benthamite" factors of deterrence may have
particular weight in encouraging compliance as land clearance occurs primarily
for agricultural expansion; therefore, the clearance is economic in motivation.
Other mechanisms of behavioural change must also be utilised so that voluntary
compliance with land clearance laws increases. Compliance motivations include
both the economic incitements and social influences. Social actor models
demonstrate the importance of social methods of enforcement (known as informal
sanctions), such as disapproval, approval, shame, and conferring of status, that
provide socially meted incentives and disincentives for behaviour. Social actor
models further suggest that deterrence efforts may be counterproductive when the
values underpinning the aims of the legislation are not shared by the community
because resistance to change will become socially galvanised (as groups identify as
anti-regulation or anti-government this becomes self-supporting of anti-regulation
behaviour).8 Members of the regulated community may indeed adopt what is
termed a "motivational posture" that is purposively non-compliant and resistant
to regulation.9 While such a posture may be adopted individually, a shared posture
will be stronger due to the informal sanctions operating amongst social groups, it
also becomes politically volatile in a democracy.
Therefore it is crucial that attempts to strengthen the deterrence approach are
not counterproductive. This is especially important as the empirical evidence
increasingly suggests that the adoption of a mix of implementation tools, including
punishment and persuasion, is vital in building compliance, as is building trust
between those being regulated and the regulators.10
There are some salutary lessons to be learned from the (imperfect) adoption
and application of regulatory compliance models. For example, one model for
improving social regard for regulation is public participation. Devolution of
regulatory responsibilities in the environmental arena to regional communities
and community overseership of administrative functions has been adopted by
several states and is federally supported.11 It is seen as a move towards more
geographically and socially responsive regulation, increasing biophysical
appreciation and social acceptance and understanding. However, such regulatory
models may suffer if inadequately resourced and if governance processes are
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440 Eighth International Conference on Environmental Compliance and Enforcement 2008
not well established. Certainly public participation may have great benefits, as
research has shown that if people are involved in the process of rule creation then
they may be more likely to accept rule application.12
For example, previous legislation in the state of New South Wales established
Regional Vegetation Management Committees to produce regional plans
outlining where land clearance could occur and what types of conditions and
permit requirements would be required for clearance. The system was intended
to decentralise the assessment process to the regions, with each operating under
a community-built and designed plan particular for each region. Additionally, an
attempt was made to democratise the administration by including representatives
from all major stakeholder, industry, and conservation groups within each
committee, along with representatives from the government departments involved.
Unfortunately, those appointed from each of the more "farmer-friendly" groups
formed coalitions and produced "majority" reports opposing the conclusions of the
reports produced by alliances formed between the environmentalist and scientific
representatives. The committees also became paralyzed by a lack of adequate data,
and were completely undone by the basic conflict of values inherent in competing
views about land use. The Regional Vegetation Management Committees
have been disbanded and have been replaced under legislation by Catchment
Management Authorities which are charged with the management of water as well
as native vegetation. Similar to Regional Vegetation Management Committees in
make-up, they are designed to be representative of all the interests. It is too early
to say how they will fare, but the story of their antecedents, combined with other
failures, has reflected badly on government agencies and damaged public trust.
Agencies have been accused of heavy handedness and inflexibility by one side,
while at the same time being accused by others of being hands-off and ineffectual.
Any model of improving regulatory compliance must generate acceptance,
behavioural change, and voluntary compliance amongst those being regulated.
Additionally, and possibly most importantly, the compliance regime must be
understood, adopted, implemented, and evaluated by agencies existing in an
often politically unpredictable and resource poor environment (especially at
the state-level in Australia). One optimal way for this to happen is for agencies
to develop cultures of professionalism and learning so that past experiences of
regulatory failures and successes are learned by agencies and disseminated within
and across state boundaries to other natural resource management agencies
experiencing similar issues. While perhaps the most important lesson to be learned
about regulatory success is its dependency on context (social, economic and
environmental) it is the development of a culture of learning that can truly enable
agencies to develop the skills necessary to appreciate the lessons of contingency.
6 AGENCIES AS CHANGE AGENTS
Many Australian agencies now charged with enforcement functions have
historically held, and may continue to hold, extension and support functions.
Often, these agencies regulate communities that possess norms counter to the
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Bartel 441
regulations, or who may be resistant for other reasons. There are often informal
orders within agencies as well, which are not immutable to change. Some agencies
have adopted more strategic approaches and recruited and retrained personnel
appropriate to enforcement tasks. They have begun to evaluate and audit
implementation activity.
From "humble" beginnings as an informal network between several agency
staff, a network of environmental enforcement agencies, called the Australian
Environmental Law Enforcement and Regulators Network, was established in
2003. This network provides a forum and support for cross-border enforcement
issues, awareness-raising, and professional development. As a result, agency
personnel are increasingly taking more proactive means to ensure that agency
activity is conducted in a professional manner with the requisite technical capacity
and expertise. The network promotes moves toward identifying and adopting
best practice; for example, to secure effective elements of deterrence as well as
informal coupling with social enforcement mechanisms. Most importantly, the
network provides a counter to the more traditional bureaucratic "silo" mentality
of some agencies and has assisted in developing within agencies cultures
which enable and promote learning.13 Agencies are developing "cultures" of
professionalism, learning, and engagement, both with other agencies within and
across jurisdictions, as well with those being regulated. This evolution of agency
style means that agencies will be more effective in the analysis and development
of regulatory practice as well as more effective "on the ground" to attain
environmental goals, build and regain public trust, and provide public benefits.
7 CONCLUSION
Past regulatory failures in the land clearance context in Australia may be
signs of the current problematic regulatory approach occurring in the country.
However, these failures, once learnt from, will likely contribute to the eventual
successful enforcement of environmental compliance in Australia. For example,
the environmental consequences of regulatory failures are raising the moral and
political imperatives for change. These are being felt and responded to, both by
those being regulated and within regulatory agencies and government.
Government, government agencies and regulated communities are all "reflexive"
to current conditions and, existing norms are being challenged and replaced with
alternatives more conducive to increasing the efficacy of environmental regulation.
The culture within implementing agencies is changing, which is critical for
ensuring regulatory success.
8 REFERENCES
1 Bartel, R. L. Environmental and Planning Law Journal, 2003, 20: 116-141; Bartel,
R. L. Australasian Journal of Natural Resources Law and Policy, 2004, 9(1): 1-31.
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442 Eighth International Conference on Environmental Compliance and Enforcement 2008
2 ABS (Australian Bureau of Statistics), Year Book Australia 2003, No. 1301.3,
available at http://www.abs.gov.aU/ausstats/abs@.nsf/94713ad445ffl425ca25682000
192af2/ec6d076300e4302cca256cae001599be!OpenDocument
3 Saunders, D., Beattie, A., Eliott, S., Fox, M., Hill, B., Pressey, B., Veal, D., Yenning,
J., Maliel, M. and Zammit, C, Biodiversity in Australia: State of the Environment
1996, CSIRO Publishing, Collingwood, 1996, pp. 4(1-59).
4 Ibid nl and also Auditor-General of New South Wales, Performance Audit
Report: Department of Land and Water Conservation: Regulating the Clearing
of Native Vegetation, The Audit Office of New South Wales, 2002, Available at
http://www.audit.nsw.gov.au/perfaud-rep/Year-2002-2003/LandClearing-Aug2002/
LandClearing-Contents.html; Productivity Commission, Impacts of Native
Vegetation and Biodiversity Regulations, Report No 29, Melbourne, 2004.
5 Ibid nl Bartel 2003
6 AGO (Australian Greenhouse Office), Land Clearing: A Social History, National
Carbon Accounting System, Technical Report No 4, 2000, Available at http://www.
greenhouse.gov.au/ncas/reports/tr04final.html
7 Teubner, G., Law as an Autopoietic System, Blackwell, Oxford, 1993.
8 Sheffrin, S. M. and Triest, R.K., Can Brute Deterrence Backfire? Perceptions and
Attitudes in Taxpayer Compliance, in Why People Pay Taxes, J. Slemrod (Ed), Ann
Arbor, University of Michigan, 1992.
9 Braithwaite, V, Braithwaite, J., Gibson, D., and Makkai, T, Law and Policy, 1994,
16: 363-94; McBarnet, D. and Whelan, C., Creative compliance and the defeat of
legal control: The magic of the orphan subsidiary, in The Human Face of Law, K.
Hawkins (Ed.), Oxford: Clarendon Press, 1997.
10 Braithwaite, V and Braithwaite, J., An evolving compliance model for tax
enforcement, In Crimes of Privilege: Readings in White Collar Crime, N. Shover
and J.P. Wright (eds), New York: Oxford University Press, 405-419, 2001, and
Murphy, K., Law and Human Behaviour, 28(2), 187-207, 2004.
11 Australian Government, Australian Government's response to the Productivity
Commission's Enquiry into the Impacts of Native Vegetation and Biodiversity
Regulations, 2004.
12 Lind, E. A. and Tyler, T. R., The social psychology of procedural justice, New
York: Plenum, 1988.
13 It is beyond the scope of this paper to engage fully in the literature on concepts
such as organizational learning, a nice introduction to this very broad area is
provided by Caravan, T, The learning organization: a review and evaluation, The
Learning Organization, 1997,4(1): 18-29.
9 BIBLIOGRAPHY
Anleu, S. L. R., Law and Social Change, Sage, 2000.
Gardner, G. T. and Stern, PC., Environmental Problems and Human Behaviour,
Pearson Custom, Boston, 2002.
Gunningham, N. and Grabosky P., Smart Regulation, Oxford: Clarendon Press,
1998.
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Bartel 443
Lange, B., The emotional dimension in legal regulation, Journal of Law and
Society, 2002, 29(1): p 197.
May, P. J. and Burby, R.J., Making sense out of regulatory enforcement, Law and
Policy. 1998, 20:157-182.
McBarnet, D., When compliance is not the solution but the problem: from changes
in law to changes in attitude, in Taxing Democracy, V. Braithwaite (Ed),
Ashgate, 2003.
Moore, S.F., Law and Social Change: The Semi-Autonomous Social Field as an
Appropriate Subject of Study, Law & Society Review, 1973, 7(4): pp. 719-746.
Posner, R. A. and Rasmusen, E. B., Creating and enforcing norms, with special
reference to sanctions, International Review of Law and Economics, 1999, 19:
369-382.
Wenzel, M., An analysis of norm processes in tax compliance, Journal of Economic
Psychology, 2004, 25, 213-228.
Winter, S.C and May. P.J., Motivation for compliance with environmental
regulations, Journal of Policy Analysis and Management, 2001, 20(4): 675-698.
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Du Toil & Craigie 445
ENFORCEMENT OF CITES AT O.K. TAMBO INTERNATIONAL AIRPORT,
SOUTH AFRICA
DU TOIT, JACQUES1 and CRAIGIE, FRANCES2
1 Assistant Director: Strategic Compliance and Enforcement, Gauteng Department
of Agriculture, Conservation and Environment, OR Tambo International Airport,
Johannesburg, South Africa Jacques.dutoit@gauteng.gov.za
2 Director: Strategic Compliance and Enforcement, Gauteng Department of
Agriculture, Conservation and Environment, Market Street, Johannesburg, South
Africa Frances.Craigie@gauteng.gov.za
SUMMARY
This paper presents a snapshot of the work being undertaken by a dedicated group
of officials, who have assumed responsibility for enforcing the Convention on
International Trade in Endangered Species of Wild Fauna and Flora at the busiest
airport in Southern Africa. Although an enormous number of challenges face these
officials in their daily work, an initiative focussing on compliance and enforcement
awareness and training has recently yielded significant results, examples of which
are illustrated through case studies. The paper also shares some insight into the
modus operand! of these smugglers.
1 INTRODUCTION
As a signatory to the Convention on International Trade in Endangered Species
of Wild Fauna and Flora, South Africa co-operates with other signatory countries
in the fight against unsustainable international wildlife trade and the protection
of biodiversity. The convention prohibits international trade in endangered species
and regulates international trade in species vulnerable to over-exploitation.
However, the question must be asked: Is South Africa winning this battle, or
are the criminals, with so many opportunities for smuggling, able to remain
one step ahead of the authorities tasked with enforcing the law? A small unit of
environmental enforcement officials stationed at the international airport located
in Johannesburg, South Africa have recently achieved a number of successes
through increased detection of criminal activities.
2 THE AIRPORT
The OR Tambo International Airport in Johannesburg, South Africa is recognised
as the gateway into and out of South Africa. As the largest airport in the region,
the OR Tambo International Airport is able to handle significant daily volumes of
passengers, luggage, cargo and mail (traffic) with approximately seven million
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446 Eighth International Conference on Environmental Compliance and Enforcement 2008
(7 779 000) passengers1 passing through the airport annually. The total volume of
passenger luggage, cargo and mail entering and leaving the country through the
airport is overwhelming with, for example, in the region of one hundred and fifty
million (150 151 690) items entering through the cargo section alone on an annual
basis. OR Tambo International Airport, as is the case with most international
airports, encompasses a large ground surface area, covering an estimated 8km2,
with the various activities scattered across this area.
Imagine for a moment the opportunities that exist should a criminal wish to make
use of the parcels, crates or suitcases to convey environmental contraband. The
shear volume of traffic at the airport makes detection of such contraband virtually
impossible, particularly if one considers that only six officials comprise the
airport's compliance and enforcement unit.
3 ENFORCEMENT UNITS AT OR TAMBO INTERNATIONAL AIRPORT
3.1 Environmental Enforcement Unit
Although the Gauteng Department of Agriculture, Conservation and Environment
regulates a number of different environmental laws, the OR Tambo International
Airport was identified as a key point area that requires specific attention from
the Department. A permanent enforcement unit (Special Investigations) within
the Compliance and Enforcement Branch of Gauteng Department of Agriculture,
Conservation and Environment has therefore been stationed at this airport. The
unit fulfils both a compliance monitoring and an enforcement function in relation
to legislation pertaining to illegal trade in endangered species.
The officials in the unit, who are also designated as Environmental Management
Inspectors in terms of South Africa's National Environmental Management
Act2, are responsible for conducting inspections to ensure compliance with the
obligations of Convention on International Trade in Endangered Species of Wild
Fauna and Flora and the associated Gauteng Nature Conservation Ordinance
(domestic enabling legislation), and to detect and investigate illegal international
trade in environmental contraband. The inspections are primarily conducted in the
cargo area and international mailing section at the airport, although passengers
and passenger luggage are also inspected on a regular basis.
As the international movement of endangered species is a highly specialised field
requiring consistent monitoring in order to effectively control the illegal trade and
exploitation of natural resources, the permanent placement of an environmental
investigative unit at the airport is important to maintain awareness amongst
other enforcement role players and provide support, where necessary. Due to the
technical nature of Convention on International Trade in Endangered Species of
Wild Fauna and Flora (such as permit types, identification numbers, micro chips,
ring numbers and punch numbers as well as the array of possible species involved)
typical law enforcement officials do not have the knowledge and expertise to
investigate these matters.
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Du Toil & Craigie 447
3.2 Other Law Enforcement Role Players
As with most international airports, a variety of law enforcement agencies are
present to fulfil their respective mandates, as is the case at OR Tambo International
Airport. Agencies such as Customs, Police Services, National Intelligence,
Immigration, Port Health, Agriculture, Veterinary services, Crime Intelligence and
airport security, to name but a few, operate on a daily basis at the airport.
4 STRATEGIC APPROACH: AWARENESS RAISING
Acknowledging the overwhelming quantity of people and items moving
internationally through the airport as well as the limited budget and therefore
number of environmental enforcement officials stationed at the airport, it was
essential for Gauteng Department of Agriculture, Conservation and Environment
to adopt a more strategic approach focussing on awareness raising in order to:
• increase detection rates;
• create a sound understanding of the international smuggling of Convention
on International Trade in Endangered Species of Wild Fauna and Flora -listed
species and the close relationship between these illegal activities and other
types of organised crime;
• provide EMI investigative support to other enforcement units at the airport
after detection of the environmental contraband; and
• create a foundation for sound co-operative governance which ensures the
understanding that further investigation and handling of cases after detection
of the contraband is the responsibility of the Environmental Management
Inspectors stationed at the airport.
The initial focus for this awareness programme was on the enforcement agencies
working within the OR Tambo International Airport. It was necessary to identify
the various role players, to summarise their respective mandates and key point
focus areas, in order to ultimately identify common ground from which to
approach these agencies for assistance in the battle against the international
smuggling of endangered commodities. The importance of this step cannot be
overemphasised as these agencies comprise individuals who often do not share the
same vision and ethical approach towards the conservation of endangered species.
Identified individuals within these agencies were therefore only approached after
careful consideration of all relevant issues and with an aim to ensuring the support
and understanding of the subject matter.
The second focus area for the awareness programme looked at those enforcement
agencies operating outside the boundaries of the airport in order to ensure early
detection and protection of live specimens rather than later detection (at the
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448 Eighth International Conference on Environmental Compliance and Enforcement 2008
airport) when, in many cases, the specie has already been destroyed. Detection of
these crimes within the country is therefore vital for the survival of endangered
species. In many instances, it is also more likely that illegal activities will be
detected outside the chaotic environment of an international airport.
The third crucial leg to the strategic awareness programme aimed at creating a
deeper understanding within the justice system of crimes involving endangered
species, is considering the impact these crimes have globally. Amidst a society
driven by money, it is easy for an investigating officer (as well as a prosecutor)
to place too much emphasis on the monetary value of the illegal items found and
confiscated. This emphasis often conceals the underlying importance of conserving
the species and does not provide an accurate indication of the seriousness of the
crime. By focussing on financial value, a court may agree to a less significant
sentence in cases where the quantity of items seized is less. Officials within the
justice system are therefore made aware, for example, of the true conservation
value of the last few species of an endangered species. The Department's approach
is to create a scientific and ethical foundation from which to obtain a conviction
which also serves as a deterrent for future transgressors.
While increasing the levels of awareness in relation to illegal activities involving
endangered species, it is also necessary to educate the environmental enforcement
officials on other criminal offences that may be detected during their compliance
monitoring inspections. Examples of such offences include counterfeit goods,
falsified passports, drugs, pornography and activities involving restricted
medicines. This increases the detection rate in relation to these crimes and
provides a platform for effective co-operative governance and builds professional
working relationships between the law enforcement agencies.
5 CASE STUDIES ILLUSTRATING SUCCESS OF APPROACH
5.1 Rhino Horn Seizure
Approximately a week after presenting the first training and awareness course
to Customs passenger administration officers at OR Tambo International Airport,
four White Rhino Horns were found hidden inside a suitcase that was destined
to be exported to China / Vietnam (see Figure 1 below). Upon detection of
the horns, which were wrapped in newspaper and sealed with tape, Customs
officials contacted the Environmental Management Inspectors stationed at the
airport. An investigation by the Environmental Management Inspectors led to
the apprehension of two Vietnamese citizens; one of whom was successfully
prosecuted. Although the second suspect was released, subsequent investigations
have linked him to a syndicate operating in South Africa.
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Du Toil & Craigie 449
Figure 1: White Rhino Horn Seized at OR Tambo International Airport
5.2 Snakes
After the initial awareness training sessions, which focussed on security and
Customs personnel responsible for the parcel screening points at the international
mail centre, six separate parcels over a period of five (5) months were identified
both entering and leaving the country containing live venomous and non-
venomous snakes (see example in Figure 2 below). Investigation by Environmental
Management Inspectors led to the location and prosecution of all the suspects
involved. Enforcement agencies in the countries of origin for a number of these
snakes have also been notified and Environmental Management Inspectors in
South Africa are co-operating with these agencies in ongoing investigations into
these matters.
Figure 2: Saw-Scale Viper Smuggled through Mail Centre
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450 Eighth International Conference on Environmental Compliance and Enforcement 2008
6 COMMON MODUS OPERANDI FOR SMUGGLING ENDANGERED
SPECIES
Although many species are smuggled in the absence of a Convention on
International Trade in Endangered Species of Wild Fauna and Flora permit, many
organised syndicates utilize the permit system associated with Convention on
International Trade in Endangered Species of Wild Fauna and Flora and other
conservation legislation to increase their efficiency when performing illegal
activities.
The examples set out below clearly illustrate how the Convention on International
Trade in Endangered Species of Wild Fauna and Flora permit system is utilized to
commit crimes.
Syndicates create fraudulent Convention on International Trade in Endangered
Species of Wild Fauna and Flora permits. For this reason, Convention on
International Trade in Endangered Species of Wild Fauna and Flora permits have
various security measures in place to detect fraudulent permits, although these
measures are worthless if relevant enforcement agencies outside conservation
circles are not properly informed of them. For example, a consignment of 250
African Greys were imported on a fraudulent Convention on International Trade
in Endangered Species of Wild Fauna and Flora permit from Congo to South
Africa. The original permit only allowed for 50 parrots; however, the airline,
freight handler and initial inspection did not notice that the permit was fraudulent
and the number had been increased by two hundred.
Syndicates apply for original Convention on International Trade in Endangered
Species of Wild Fauna and Flora permits and then resort to utilising the permit
more than once, thus increasing their profit margins and ultimately threatening
various wild populations. A company in South Africa dealing with orchids,
imported three separate consignments from Thailand on a single Convention
on International Trade in Endangered Species of Wild Fauna and Flora permit.
Although a Convention on International Trade in Endangered Species of Wild
Fauna and Flora permit makes provision for the inspection and subsequent
endorsement of the original permit, syndicates avoid inspections for as long as
possible.
Original Convention on International Trade in Endangered Species of Wild Fauna
and Flora permits allowing for the movement of certain species are also often
utilized to move a different specie. A prime example of this exists with birds,
such as parrots. In one case a permit was obtained to export Convention on
International Trade in Endangered Species of Wild Fauna and Flora II listed parrots
from South Africa to China. Upon exportation of the consignment, Convention on
International Trade in Endangered Species of Wild Fauna and Flora I listed parrots
(several times more valuable than ones indicated on the permit) were found
amongst the Convention on International Trade in Endangered Species of Wild
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Du Toil & Craigie 451
Fauna and Flora II consignment. Upon searching the suspect's home an e-mail was
found stipulating the location and amount of Convention on International Trade
in Endangered Species of Wild Fauna and Flora I parrots that were to be smuggled
in this manner, as well as a previous consignment that had been sent undetected.
Certain parrot species look very similar, especially when young, making detection
more difficult. The co-operative approach between Gauteng Department of
Agriculture, Conservation and Environment and the local revenue service office
in relation to this matter also resulted in the suspect being further assessed for six
million Rand in undeclared income.
OR Tambo International Airport, due to its location at the southern tip of Africa,
receives numerous in-transit shipments. Syndicates therefore obtain Convention
on International Trade in Endangered Species of Wild Fauna and Flora permits
to import items from one country to another, knowing these shipments will pass
through OR Tambo International Airport en-route to the destination country. Many
of these consignments are then intercepted at OR Tambo International Airport
and the goods smuggled into South Africa. The Department is in the process of
implementing a notification system between Customs and the environmental
enforcement unit in relation to consignments containing endangered species that
are being moved in-transit through the airport.
7 DETECTION OF ILLEGAL ACTIVITIES AND RESULT OF STRATEGIC
AWARENESS PROGRAMME
The implementation of a set of additional permit conditions3 (attached to all
Convention on International Trade in Endangered Species of Wild Fauna and Flora
permits issued in South Africa) forces people to notify the Gauteng Department of
Agriculture, Conservation and Environment office of any movement of Convention
on International Trade in Endangered Species of Wild Fauna and Flora listed
species, and to instruct them to submit all relevant documentation prior to such
movement. The inspector can therefore effectively undertake an inspection that
verifies the legitimacy of the consignment and detect any irregularities associated
with such consignments. After this inspection and verification process the permits
are endorsed, preventing an individual from utilising the permit again. It should
also be noted that non-adherence to this condition constitutes an offence.
In order to increase efficiency and productivity the use of scanning or x-ray
machines is crucial in the detection of possible endangered contraband amongst
large numbers of parcels, luggage or cargo. The Department is currently in the
process of purchasing two mobile machines that can be operated in any area of the
airport. This will enable the unit to perform strategic scanning and plan specific
operational work at different identified sections within the airport.
As machines are already used at various points within the airport by security
personnel due to modern-day threats that are associated with any international
airport, security personnel were included in the awareness programme which
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452 Eighth International Conference on Environmental Compliance and Enforcement 2008
included demonstrations of what various endangered species as well as derivatives
thereof looked like when passing through the x-ray machines. Use of these
personnel ensures that efforts are not duplicated and that the Department taps
into existing detection opportunities, detection of endangered species by existing
airport security and Customs in the past happened on average around three to
four times a year. After the initiation of the awareness programme, detection by
these other role players has increased to approximately four to five times a month.
Due to the high success rate following the initiation of the awareness programme,
the Department is now in the process of creating colour posters illustrating what
the illegal environmental contraband looks like when moving through scanning
machines. These will be distributed to all scanning ports and will no doubt further
increase awareness at the security points.
The awareness programme and training provided to other law enforcement
officials at the airport was initiated in mid-2007 and has resulted in an almost
200% increase in the number of Convention on International Trade in Endangered
Species of Wild Fauna and Flora cases originating at OR Tambo International
Airport between the first and second quarters of the 2007/2008 financial year. This
was a direct result of the increase in the detection rate following the roll out of
the awareness programme. In order to recognise this significant contribution and
to show appreciation and professionalism, the Department has now instituted a
report and recognition system that singles out individuals within these other
enforcement agencies.
8 CONCLUSION
Despite the recent successes discussed in this paper at OR Tambo International
Airport, the question still remains: Is South Africa winning the battle, or are
criminals and syndicates, with so many opportunities for smuggling, able to
remain one step ahead of the authorities tasked with enforcing the law? It is
unlikely that we will see a decrease in these illegal activities due to the high
demand for endangered species and profit margins that are associated with
international smuggling of these species. Consistent and ongoing evaluation
and upgrading of detection procedures will need to take place in addition to
elevating this problem at a national level to ensure political support and additional
resources, particularly ahead of the 2010 Soccer World Cup in South Africa which
will increase traffic in and out of the country.
Due to the serious global environmental threats posed by illegal trade of
endangered species, international co-operation is also essential and the
establishment of a Convention on International Trade in Endangered Species of
Wild Fauna and Flora enforcement forum should be seriously considered in order
to more effectively control and share information regarding the international
smuggling of endangered species.
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Du Toil & Craigie 453
9 REFERENCES
1 The number of pieces of passenger luggage moving through the airport is
approximately 21 176 000 per annum.
2 No. 107 of 1998.
3 Explaining to importers and exporters of Convention on International Trade
in Endangered Species of Wild Fauna and Flora products the procedure to be
followed when utilizing OR Tambo International Airport.
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Moshibudi 455
SUSTAINABLE FORESTS MANAGEMENT; ARE DELEGATIONS
APPROPRIATE?
MOSHIBUDI, RAMPEDI1
1 Department of Water Affairs and Forestry, Private Bag X313, Pretoria, 0001, South
Africa, rampedim@dwaf.gov.za
SUMMARY
Sustainable forests management in South Africa is regulated by the National
Forests Act, 1998 (Act no 84 of 1998) as amended. This paper is an attempt to
present lessons learnt from an executive decision of the Department of Water
Affairs of the government of South Africa with regard to the strategic management
of environmental compliance and enforcement programs for sustainable forests
management. In this case the selected sustainable forests management option
contributes to better regulation of forest resources. It is the implementation of a
system of regulation that creates a strategic option for better service.
Compliance and enforcement of the Act is done on the basis of delegation of
powers and duties. The delegation of powers and duties in terms of the Act is a
mix of a centralized and decentralized administrative system. Further review of
this administrative system reveals that it effects the provisions of the Constitution
of the Republic of South Africa; and enhances the delivery of government services
while addressing the geographic dynamics of the country and the nuances of the
forest sector. Lessons learnt from the past years indicated that the administration
and implementation of the Act by delegating powers and duties led to better
regulation and sustainable forests management in South Africa and has instilled a
sense of shared responsibility among the forest officers.
1 INTRODUCTION
South Africa's framework for sustainable forests development, co-operative
governance and participation is provided by the White Paper on Sustainable
Forest Development (1996), the National Forestry Action Programme (1997) and
the resultant National Forests Act (1998). The Department of Water Affairs and
Forestry's' main responsibility is to provide policy and a regulatory framework
within which appropriate institutions can manage forest resources.
Department of Water Affairs and Forestry is legislatively mandated by the
National Forests Act (No. 84 of 1998) and the National Veld and Forest Fire Act
(No.101 of 1998). The National Veld and Forest Fire Act (No.101 of 1998) prevents
and combats veld, forest and mountain fires throughout the country, thereby
limiting and reducing the damage and losses caused by fires to life, fixed property,
infrastructure, movable property, stock, crops, fauna and flora and veld in South
Africa. The provisions of the National Forest Act will be referred to later.
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456 Eighth International Conference on Environmental Compliance and Enforcement 2008
Sustainable forests management in South Africa is informed by these pieces of
legislation as well as other nationally appropriate policies and laws. Broadly, the
National forest laws have the following elements of promoting the sustainable
management and development of forests; providing social measures for protection
of certain forests and trees; sustainable use of forests for environmental, economic,
educational, recreational, cultural, health and spiritual purposes; community
forestry; and greater participation in all aspects of forestry and the forest products
industry by persons previously disadvantaged by discrimination.
Elements referred to above are covered by the two Acts referred to above as well
as the Forestry Laws Amendment Act no 35 of 2005. In addition to these laws and
policy framework, forest management in South Africa is affected and influenced
by related legislation, including, for example, water, biodiversity, protected areas,
land, heritage, labour, wildlife, environment, tourism, agriculture and mining
frameworks. The related legislation is obtainable through the South African
government information portal (www.gov.za) or through the specific departments'
websites. For purposes of this paper only the National Forests Act (No. 84 of 1998)
as amended will be addressed.
2 PROVISIONS OF THE NATIONAL FORESTS ACT, 1998 (ACT NO 84 OF
1998)
The National Forests Act, 1998 (Act no 84 of 1998) promotes and enforces the
sustainable management and development of forests for the benefit of all, the
promotion of sustainable use of forests as well as the provision of special measures
for the protection of forests and trees. The Act balances the protection of forests
with sustainable use; it regulates a wide range of uses, and sets out the right of
everyone to have a reasonable right of access to State forests for non-consumptive
purposes. The rights to use, manage, control and operate State forests and their
produce rests with the Minister of Water Affairs and Forestry.
Furthermore, the National Forests Act sets parameters for the administration
thereof, offences, penalties and enforcement measures. Noting that this paper is
addressing strategic management of environmental compliance and enforcement
programmes emphasizing better regulation; the paper will focus on the
administration of the Act, offences, penalties and enforcement. In administering
the National Forests Act, the responsible Minister has the power to assign and
withdraw certain powers and duties; he/she may delegate certain powers and
duties; expropriate property for forestry, reserve State land for forestry and make
regulations.
The National Forests Act makes provision for the duties and powers to be
delegated to a named official in the Department of Water Affairs and Forestry;
to the holder of an office in the department (Department of Water Affairs and
Forestry); to an organ of state; and a person who or which is not an organ of state.
Delegations referred to here are done in writing; are subject to conditions, must
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Moshibudi 457
specify the period for which it lasts. The Minister is not prevented from exercising
the power of performing the said duties and functions if he/she so deems it
necessary. Certain of the duties and powers may not be delegated; there includes
the power to assign, making regulations, developing policy and appointing
members of the Council (in this case the National Forests Advisory Council). The
National Forests Act provides for the Accounting Officer (the Director General)
to perform powers and duties as in the Act and as delegated by the Minister. An
Accounting Officer may further delegate certain powers and duties following the
same prescripts as outlined earlier with regard to the responsible Minister.
Compliance and enforcement of the National Forests Act is further strengthened
and consolidated by the provisions of the Act that sets out the relevant offences
and applicable penalties as well forest officers who the enforcers; they police the
provisions of the Act effectively. Relevant Forest Law Enforcers are deemed to be
peace officers intern of section 1 of the Criminal Procedure Act, 1977 (Act no 51 of
1977). Offences are classified into categories.
There are five categories of offence; the categories are based on the severity of the
offence and its potential impact on the sustainable management of forests. A fourth
category offence is of lesser impact as compared to first category offence. The table
below gives examples of an offence and the relevant penalty.
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458 Eighth International Conference on Environmental Compliance and Enforcement 2008
Table 1: Offences and penalties, the National Forests Act, 1998 (Act no 84 of
1998)
Sections of the
Act
Section 58 (1)
and sections
62 and 63
Section 58 (2)
and sections
62, 63 and 64
Sections of the
Act
Section 58 (3)
and sections
62 and 63
Section 58 (4)
and sections
63 and 64
Section 58 (6)
and section 61
category
first
second
category
third
fourth
fifth
offence
Any person who, without
a license or other authority
cuts, disturbs, damages,
destroys, removes or
receives seven-week ferns
Rumohra adiantiforme) from
any forest
Any person who cuts,
disturbs, damages, or
destroys any indigenous,
living tree in , or remove
or receive any such tree
from, a natural forest
except in terms of a license
issued
offence
Any person who
contravenes the
prohibition on the cutting,
disturbance, damage
or destruction of forest
produce in or the removal
or receipt of forest
produce from a protected
area
Any person who without
authority, enters an area
of a forest which is not
designated for access for
recreation, education,
culture or spiritual
fulfilment
A forest officer who fails
to inform an owner who is
in breach of a standard by
written notice
penalty
Maybe sentenced to a fine
or imprisonment for a
period of up to three years
or both fine and such and
imprisonment
Maybe sentenced on first
conviction for that offence
to fine or imprisonment
for a period of up to two
years, or both a find and
such imprisonment
penalty
Maybe sentenced on a first
conviction for that offence
to fine or imprisonment
for a period of up to one
year, or both a fine and
such imprisonment
Maybe sentenced on a first
conviction for that offence
to fine or community
service for a period of up
to six months or to both a
fine and such a service
May not be sentenced to
imprisonment, but may be
sentenced to a fine up to
50 000 (ZAR)
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Moshibudi 459
A person who is guilty of a second, third or fourth category offence may be
sentenced on a second conviction of that offence as if he or she has committed a
first, second or third category offence respectively. The Minister responsible may
amend the Section 58 (6) penalty by a notice in a government gazette to counteract
inflation. A court which convicts a person of offence in terms of this Act may
suspend or revoke a licence granted to the offender under section 7 or 23 of the
Act.
3 THE DELEGATION OF POWERS AND DUTIES IN TERMS OF THE
NATIONAL FORESTS ACT, 1998 (ACT NO 84 OF 1998)
Section 48 and 56 of the National Forests Act gives the responsible Minister and
the Accounting Officer to respectively delegate powers and duties. Delegations
are first by the Minister to the Accounting Officer. The Accounting Officer then
delegates to the incumbents and future incumbents of posts in the Department
of Water Affairs and Forestry program managing forests. A reference to the
incumbent in a particular post includes the incumbent of a post senior to the
holder of the post in the functional line. This is in line with section 48 (1) (b) and
section 56 (2) (b). In the event that the incumbent of a senior post exercises the
powers and performs the delegated duties; it shall be so with a good reason and
be held accountable and much as such must be recorded in writing. The right to
withdraw or amend or replace any delegation is reserved at all times.
Delegations range from duties and functions performed by designated senior
government officials based in Pretoria, the national office of the Ministry of Water
Affairs and Forestry to forest officers based in provincial and local offices in the
entire. The figure below shows the location of the offices referred to. In some
instances the delegations include a first and a second delegation. The incumbent
of a post indicated under first delegation in schedule may further delegate to the
incumbent of a post under the second delegation. In this instance accountability
remains with the incumbent of the first delegation.
The delegation of duties and functions is guided by the nature of the provision of
the Act as well as the strategic nature of the functions and its potential impact on
the sustainable management of forests. Table 2 gives an example of delegated and
non-delegated duties and functions
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460 Eighth International Conference on Environmental Compliance and Enforcement 2008
Table 2: Delegations under the National Forests Act, 1998
section
4(2)
4 (3) (b)
6(1)
16(1)
23(l)(d)
28(1)
32 (2) (c)
power
Determination of criteria, indicators
and standards
Identification of punishable breaches of
standards
Monitoring of forests
Request to the Registrar of Deeds to
record the protection against title deed
Licensing of the removal or receipt of
any other forest produce
Entering into contracts to sell timber or
other forest produce from a state forest
Provision of material or financial
assistance for community forestry
first delegation
Not delegated
Director
general
Head of
Forestry:
Region
Director:
Forestry
Regulation
Forester
Director
General
Deputy
Director
General:
Forestry
second
delegation
Deputy
Director:
Forestry
4 IMPLEMENTATION OF THE DELEGATIONS
Implementation of delegated duties and powers require administrative guidelines
to ensure consistency. The Department of Water Affairs and Forestry had to
develop and implement policies, regulations, licensing business processes, criteria
and indicators to guide officials. For example the implementation of provision of
material or financial assistance for community forestry (Section 32 (2) (c) of the
National Forests Act) is guided by the Policy for the Provision of Financial Support.
The policy was approved by the Forestry Functional Management Committee of
the Department of Water Affairs and Forestry. The department initiated a process
to investigate and develop national minimum standards for the Sustainable Forest
Management against Criteria, Indicators and Standards. Other measures taken
include holding Compliance and Enforcement workshops and developing a
Compliance and Enforcement Handbook and a Transgressions Recording System.
Department of Water Affairs and Forestry works with the National Prosecuting
Authority, the Justice College and the Department of Environmental Affairs and
Tourism among other state institutions as well as the private sector to ensure
coherent and sustainable compliance and enforcement efforts.
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Moshibudi
461
Enforcement of the National Forests Act by the department has yielded positive
results. For example Department of Water Affairs and Forestry the Western Cape
region received 136 Section 7 applications (license to cut, damage or destroy
any indigenous, living tree in, or remove or receive any such tree form a natural
forest) and issued 129 licenses in time following 130 site inspections. For the rest
of the country 680 Section 15 applications were received, 505 site inspections
were conducted followed by the issuing of 435 licenses. Licenses are issued with
conditions; 19 incidences of non-compliance with acts were recorded. The table
below shows other achievements of the regional offices in the past reporting
period (Department of Water Affairs and Forestry, Annual Report 2007/2008) with
regard to enforcement of the National Forests Act
Table 3: Results of the implementation of the National Forests Act
region
Eastern Cape
Western Cape
Gauteng
Northern Cape
Limpopo
Free State
North West
Mpumalanga
Number of cases
47
4
3
4
36
19
14
21
The implementation of the National Forests Act on a mix of a centralized and a
decentralized administrative decision-making system ensures that the users of
forests have access services. It appears that the implementation is working because
it is aided by proper monitoring and program accountability that provides
information to the decision makers at all levels (Markowitz. et. al., 2005). Other
measures observed are that the Department of Water Affairs and Forestry has
provided resources for the delegations to implement and provides a support
system to the forestry officers as the accountability for all enforcement actions
lies with the responsible Minister. The implementation system gives a clear
differentiation of responsibility between the forestry officials and is supported
by the Intergovernmental Relations Framework that formalizes the working
relationship of state institutions.
A mix of a centralized and a decentralized decision making system is not always
favored by all officials at it puts limits to their actions; ideally most officers would
prefer a total decentralization. Kishor and Rosenbaum (2005) refer to illegal
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462 Eighth International Conference on Environmental Compliance and Enforcement 2008
practices as capable of leading to a leakage of resources, such as tax revenue, the
same can be said for South Africa. The South African forestry industry contributes
an estimate of 12, 274 billion ZAR to the South African economy on an annual
basis and generates 170,000 jobs (this range from permanent, contract and informal
workers). The majority of the jobs created are low skilled based and concentrated
in rural areas where there is high unemployment. In comparison the forest sector
contributes about 1,1% to the total Gross Domestic Product of the Republic
of South Africa and 1,4% to the total formal employment; this is comparable to
other large sectors of the economy. It is therefore critical that Department of Water
Affairs and Forestry continues to implement and find other innovative ways of
protecting the forest resources.
5 CONCLUSION
South Africa is maintaining a sustainable forests management framework. The
government's effort has been successful because of proper monitoring, program
accountability, capacity building, making information available and allocating
resources to the Forestry program. Officials given the responsibility do appreciate
the integral contribution of forests to the state of the environment. Their efforts to
implement the National Forests Act, 1998 (Act no 84 of 1998) are broader in intent
and recognize the contribution of forests to ecological services.
6 BIBLIOGRAPHY
Danish Forest and Nature Agency, 2002, The Danish national forest programme in
an international perspective, Ministry of Environment
Department of Water Affairs and Forestry, Annual Report 2007/2008
Kishor N.M. and Rosenbaum K.L. 2005 Indicators to monitor progress of forest
law enforcement and governance initiatives to control illegal practices in the
forest sector in Making Law Work, Environmental Compliance and Sustainable
Development, Volume 2 Cameroon May, London
Markowitz, K., et al 2005 Improving Environmental Compliance and Enforcement
through Performance Measurement: The INECE Indicators Project, in Making
Law Work, Environmental Compliance and Sustainable Development, Volume
2 Cameroon May, London
National Forests Act, 1998 (Act no. 84 of 1998)
National Veld and Forest Fire Act, 1998 (Act no. 101 of 1998)
Zaelke D. et al 2005 Making Law Work, Environmental Compliance and
Sustainable Development, Volume 2 Cameroon May, London
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Rochow 463
STUCK IN STAGES: THE EVOLVING ROLE OF ENFORCEMENT
IN LIBERIA FOREST SECTOR REFORM
ROCHOW, JAMES K. W.1
1 International/Environmental Consultant, 33 Alexandria Drive, Oxon Hill, MD
20745, U.S.A., jrochow@globalleadnet.org
SUMMARY
Liberia became notorious for its internal collapse of civil order and its role as
an epicenter of regional conflict, of which "conflict timber" as well as "blood
diamonds" proved both cause and symptom. Pressured by UN sanctions and with
the support and cooperation of the international community and Liberian civil
society, the post-conflict Liberian government undertook a comprehensive reform
of the forest sector, beginning with a review of all existing forest concessions. The
ensuing legislative, regulatory, and management revisions and reforms formed a
program based on transparent transactions, competitive bidding, "cradle-to-grave"
timber tracking, community involvement, and public participation. But the reform
program's enforcement provisions do not completely match its comprehensiveness.
If environmental enforcement is viewed as proceeding through stages from a
"state of nature" to administrative-centered regulation that emphasizes prevention
and planning, the reformed enforcement provisions are "stuck in stages." Also,
enforcement provisions lack administrative order, authority, and civil penalty
assessment without consent. These limitations, which stem from a suspicion of
executive power rooted in past abuses, will especially handicap enforcement of the
"technical" tracking and permit requirements that form the core of the forest sector
reform program. The forest management reforms includes an interdisciplinary in-
house strike force (Enforcement Division) lodged in the forest agency, which could
serve to support and professionalize the field inspection force, as well as handle
priority cases. However, reaction to past abuses has led some to conclude that
the Enforcement Division should constitute an internal affairs investigative unit.
That view presents another illustration of how understandable concern about not
repeating the tragic immediate past can impede the effectiveness of present and
future enforcement efforts.
1 "CONFLICT TIMBER" AND PERVASIVE ILLEGALITY IN LIBERIA
1.1 Liberia as a Failed State
Liberia has eponymously exemplified a "failed state" and constituted an epicenter
of disorder for almost two decades. It is a country whose internal convulsions
ushered in a long civil war and regional boukversement characterized by rebel
factions and warlords brutally contending for corrupt advantage and territorial
control across the permeable boundaries of Liberia and its West African
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464 Eighth International Conference on Environmental Compliance and Enforcement 2008
neighbors. As a result of a peace agreement reached in 2003, Liberia is currently
functioning as a relatively stable and democratic government, with President Ellen
Johnson Sirleaf working with the international community to carry out a host of
legal, economic, and social reform programs. President Sirleaf is attempting to
accomplish the Herculean task of rebuilding Liberia almost from scratch and,
while doing so, tempering peoples' unrealistic expectations while retaining a sense
of optimism in the society. The United Nations Mission in Liberia remains the
world's largest peacekeeping mission, consisting of both soldiers and civil police,
designed to help keep the peace during Liberia's reformation.
1.2 "Conflict Timber": UN sanctions and the Liberia Forest Initiative
The illicit trade in "blood diamonds" centering in Sierra Leone and Liberia has
gained international recognition as a cause and dramatic symbol of civil disorder
and gruesome brutality - indeed it has become the subject and title of a recent
Hollywood movie. But illegal trade in "conflict timber" also played a major role
in perpetuating convulsive lawlessness in Liberia and in fueling conflict in West
Africa.1 Consequently, the UN Security Council embargoed both timber and
diamonds in the export sanctions it placed on Liberian exports pending Liberia's
transition to democratic government and institution of comprehensive reforms in
its management of the country's natural resources.
As a response to the UN sanctions and the recognized need to reform the forest
sector, key governments, international institutions, and NGOs (including the
European Union, the World Bank, the U.S. Government, and Conservation
International) formed the Liberia Forest Initiative in 2003. The Liberia Forest
Initiative embarked on a program of technical assistance and capacity building
based on the "3 C's" of forest management: (1) developing a sustainable industry
through Commercial Forestry; (2) democratizing process and profits through
Community Forestry; and (3) protecting biodiversity through Conservation.
2 THE LIBERIA FOREST CONCESSION REVIEW AND LAW REFORM
2.1 The Liberia Forest Concession Review
Recognizing the need to review all existing forest (timber) concessions in Liberia
as one of the first steps toward lifting the UN timber sanctions and reinstituting
control of the forest sector through systematic process and the rule of law, the
Forest Development Authority of Liberia instituted two in-house concession
reviews. Liberian civil society, however, refused to accept these reviews as
transparent and valid. To resolve those concerns and under prodding from the
international community, the government of Liberia mandated a third review
(Concession Review) by a Forest Concession Review Committee composed of both
Liberian and international representatives, including those from the government,
Liberia civil society, United Nations Mission in Liberia, and the Liberia Forest
Initiative. The concession review was conducted by a Technical Secretariat
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Rochow 465
consisting of Liberian experts and international counterparts2 under the direction
and control of the Forest Concession Review Committee.
The concession review x-rayed a pervasive pattern of lawlessness - it revealed that
two and a half times the entire surface forested area of Liberia had been granted
in concessions (pointing to a pattern of usurpative overlap) and that concession
holders owed over 64 million U.S. dollars in back taxes and financial arrears. Of
the 47 concessions reviewed on a case-by-case basis (the 23 others failed to respond
to the review and were automatically voided), not a single one could demonstrate
compliance with even minimum legal requirements (such as possessing a current
business license). Moreover, twelve of the concessions reviewed were identified
by the UN as associated with warlordism, insurrection, and illicit commerce. As
a result of these and similar findings, the Forest Concession Review Committee
recommended that all existing forest concessions be voided and the Liberian
Ministry of Justice duly followed up by sending formal cancellation notices to each
of the concession holders.3
2.2 The Concession Review as the Foundation of Forest Law Reform
The concession review in design and practice served as an animating model for
the restoration of the rule of law in post-conflict Liberia.4 The Forest Concession
Review Committee was explicitly mandated to recommend forest sector reform
measures based on the information collected and organized by the concession
review.
After considering the results of the concession review, the Forest Concession
Review Committee recommended a set of sweeping changes to the existing forest
legal regime. Those recommendations were founded on instituting formal and
transparent procedures for granting future concessions. These procedures include
competitive bidding, mandating a "cradle to grave" chain of custody system for
tracking timber, requiring concessions to adhere to site specific environmental
planning (including the preparation of environmental impact assessments), and to
comply as well with broader conservation plans and protected areas designations.
The newly elected Johnson Sirleaf administration adopted the Forest Concession
Review Committee's recommendations for concession cancellations and reform
measures in their entirety by executive order in one of its first official acts.5
2.3 Enactment of the Forest Sector Reform Program
The package of reforms recommended by the Forest Concession Review
Committee and endorsed by Executive Order No. 1 was enacted into legislation
virtually in their entirety.6 The Forest Development Authority of Liberia then
prepared a package of detailed rules and regulations to carry out the legislation,
most of which have now been issued. Moreover, the Forest Development
Authority of Liberia (with the support of the Liberia Forest Initiative) is in the
process of drafting field manuals and policy guidance documents to elaborate legal
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466 Eighth International Conference on Environmental Compliance and Enforcement 2008
requirements and operational procedures. In parallel, the Forest Development
Authority of Liberia has been undergoing an administrative reorganization and
streamlining to enable it to implement the detailed responsibilities of the reformed
forest sector regime.
4 ROLE OF ENFORCEMENT IN FOREST SECTOR REFORM: A MIXED
MESSAGE
4.1 Background: Three-Stage Theory of Environmental Enforcement
The three-stage theory of environmental enforcement provides a framework for
analyzing the enforcement provisions of Liberia's new forest law.7 That theory
postulates a typified evolution starting with a state of nature - no or very little
environmental regulation - and proceeding later in the first stage to the use of
private remedies sounding in tort for individualized damages for after-the-fact
harm. The second stage represents the transition to reliance on administrative
action and public remedies, including binding administrative orders develop
as a principal and efficient tool, governing statutes prescribe a panoply of civil
and criminal judicial remedies (including prospective (injunctive) relief), and
prevention of pollution based on violation of regulatory standards rather than
belated correction of and compensation for actual harm becomes the central
standard.
The concept of a permit links the second and third stages. The permit
institutionalizes prevention by translating general requirements into operation
specific requirements. As it evolves, the third stage emphasizes integrated
approaches (such as multi-media permits tied to environmental impact
assessments), coordination of permits with planning, and systematic data
collection (where every permit becomes, in effect, an experimental permit whose
monitoring data systematically generates information). The third stage also
increasingly rationalizes remedies, such as basing administrative civil penalties on
recouping the economic benefits of non-compliance.8
4.2 Enforcement under the Reformed Forest Sector Regime: Third Stage
Features
Based on the preceding description of the comprehensive structure for forest
sector reform that Liberia has established as a response to the civil disorder that
"conflict timber" helped spawn and sustain, one would logically assume that the
enforcement provisions in the revised law would likewise be as comprehensive
and advanced. Indeed, the whole elaborate forest reform effort ultimately depends
on enforcement, the point of the pyramid. In considerable part, that view is correct:
the enforcement provisions of the revised Liberian Forest Law contain some basic
second stage provisions, as well as some innovative third stage features.
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Rochow 467
Foundationally, the new forest law incorporates the Precautionary Principle,
and explicitly mandates the Forest Development Authority of Liberia to take a
precautionary approach to its administration and enforcement.9 Operationally, the
law makes it clear that all of the categories of permissions it requires - whether
they are labeled contracts (e.g., Forest Management Contracts) or permits (e.g.,
Forest Use Permits) - are essentially licenses.10
The significance of the law's pervasive license requirement for enforcement is
two-fold. First, licenses carry out the precautionary approach by requiring pre-
operation review of management plans and the filing of an environmental impact
assessment as part of the approval process.11 Licenses are also conditioned on
submittal of an annual operations plan on the status and progress of the operation.
Second, the licensing system gives the Forest Development Authority of Liberia,
theoretically at least, the upper hand in enforcement. A license is a unilateral and
revocable permission granted by the government to individuals and enterprises to
conduct activities under terms and conditions specified in law; whereas, a contract
is a freely negotiated agreement between parties assumed to be equal.
Enforcement through prevention is also embedded in the key operational concepts
of the new forest law. For example, pre-qualification under the competitive bid
system12 is designed to enhance environmental compliance and enforcement
by weeding out unqualified and incapable operators and "bad actors" from the
very beginning of the process. The chain of custody requirement,13 to take another
example, prescribes a "cradle to grave" tracking system based on continuity of
documentation.
Moreover, the new forest law mandates the collection and collation of data related
to enforcement and compliance by requiring the Forest Development Authority of
Liberia to prepare an annual report on its enforcement activities.14
4.3 Historical Ambivalence: The Missing Second Stage in Liberian
Forest Enforcement
Given the pronounced presence of third-stage provisions in the new forest law,
it is at least somewhat surprising that its enforcement provisions at the same
time lack some key second stage authority. As a result, these provisions pose the
potential of hindering the implementation of those reforms. Although the new
forest law does authorize prospective relief in the form of injunctions and allows
the Forest Development Authority of Liberia to sue in court for both civil and
criminal penalties, it provides no authority whatsoever for the Forest Development
Authority of Liberia to issue administrative orders and uniquely provides that
administrative civil penalties may only be imposed with the written consent of the
assessed.15
A salient characteristic of the second stage is its reliance on administrative
remedies. The most efficient way to ensure strong and proactive enforcement
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468 Eighth International Conference on Environmental Compliance and Enforcement 2008
is to provide a set of remedies the agency itself may initiate, including cease
orders. The new forest law's lack of provisions for administrative orders and its
limitation of administrative penalties to cases of consent especially handicap the
kind of technical enforcement that is necessary to vindicate the reformed statutory
scheme, which is grounded on a chain of custody tracking of commercial timber.
Under such a scheme, "technical" violations - those involving record-keeping
inaccuracies or unplanned timbering off-site, for example - need to be addressed
through routine administrative remedies to protect the integrity of the system.16
The common explanation for these limitations is that they reflect a profound
distrust of executive power given Liberia's recent history. The usurpative history of
forest concessions in Liberia dramatically illustrates those executive abuses. Forest
enforcement, when it occurred at all, was characteristically corrupt - government
inspectors would use the threat of enforcement action to obtain bribes. Although
Liberian civil society backed the limitations on administrative remedies in the
new forest law, the rationale for doing so seems unconvincing. The requirement
of written consent for administrative civil penalties will not necessarily vitiate
coercion: while written consent forms should enable comparative tracking of civil
penalties assessed and paid in, unreported bribes can still be coerced if a culture
of government corruption exists. The rationale also assumes that the judiciary is
itself incorruptible and unreliable. In fact, the Liberian judiciary did not prove
a bulwark against past executive abuse and more recently has not uniformly
demonstrated an understanding of the meaning and importance of environmental
requirements.17
4.4 A Test Case: The Forest Development Authority of Liberia's
Enforcement Division
Another prominent feature of the Forest Development Authority of Liberia's
enforcement program is the Enforcement Division, created last year within the
Forest Development Authority of Liberia as part of its management reform. On
its face, the Enforcement Division appears to embody a "strike force" concept,
statutorily conceived as a largely autonomous unit within the Forest Development
Authority of Liberia composed of inspectors and technical staff, with its director
reporting directly to the Forest Development Authority of Liberia's Managing
Director. However, the role of the Enforcement Division, however, has been subject
to a debate that reflects the legacy of historical ambivalence that compromised
the second stage remedies in the new forest law. Reflecting the trauma caused by
past abuses, some argue that the Enforcement Division should concentrate not
on enforcement, but on rooting out corruption among the Forest Development
Authority of Liberia inspectorate and enforcement personnel. While the reasons
for that view are historically understandable, the better view is to utilize the
Enforcement Division in two badly needed roles: to train inspectors and rebuild
the Forest Development Authority of Liberia's enforcement capacity and to draw
together experts from the different Forest Development Authority of Liberia
technical divisions into an interdisciplinary team to support the field inspectors
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Rochow 469
and to handle priority cases. The Enforcement Division should not mix those
environmental strike force functions with an anti-corruption mission. Turning
the Enforcement Division into an internal affair investigatory unit will discourage
the kind of cooperation with the field inspectors on the basis of mutual trust and
support that is necessary to fulfill the strike force concept. More positively put, the
strike force model will help fight corruption by fostering a highly professional and
competent interdisciplinary inspection force.
5 CONCLUSION
Liberia's comprehensive forest sector reform program generally provides a model
for the post-conflict reinstitution of the rule of law in "failed states." In partial
contrast, the enforcement provisions of the new forest law represent second and
third stage remedies emphasizing administrative regulation oriented toward
prevention inharmoniously mixed with a first stage absence of basic administrative
powers. Most notably is the lack of agency authority to issue orders and to collect
contested civil penalties. Such ambivalent enforcement authority traces back to the
legacy of Liberia's convulsive recent past, which (as the forest concession review
systematically confirmed) was characterized by pervasive abuse of executive
power. But the success of the forest sector reforms largely depends on the agency's
ability to enforce technical requirements such as chain of custody verification
on the spot (subject of course to due process challenges). Handicapping the
enforcement of the reform program through inapt analogies to the past would
detract from, not advance the rule of law and constitute a notable historical irony.
6 REFERENCES
1 While "blood diamonds" are more portable, easier to conceal, and perhaps
more notorious as sources of illicit funds than timber, forest concessions enable
territorial control and usurpation while also generating revenues channeled to
private militias and corrupt enrichment (Reno 1999; Global Witness 2004).
2 The author was the International Lawyer on the Technical Secretariat of the
concession review.
3 For a summary of the methodology of the concession review see Rochow 2006,
esp. p. 89.
4 Rochow 2006..
5 GOL 2006.
6 The National Forestry Reform Law of 2006, Part III, Liberian Code of Laws
Revised (hereinafter " New Forestry Law").
7 K. W. J. Rochow, "The Far Side of Paradox," 81 W Va. L. Rev. 559 (1979) (included
in Land Use & Environment Law Review [1980]).
8 One could identify a fourth stage of alternative, market-based regulation, which
depends upon the foundation of comprehensive command and control regulation
for market signals and baseline standards.
9 Section 3.1 b. of the New Forestry Law.
10 Section 1.3 of the New Forestry Law (definition of "Forest Resource License").
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470 Eighth International Conference on Environmental Compliance and Enforcement 2008
11 Sections 5.3 b. (iii) and 5.3 b. (iv)) of the New Forestry Law.
12 See Section 5.2 of the New Forestry Law.
13 Section 13.5 of the New Forestry Law.
14 Section 20.11 of the New Forestry Law.
15 Section 20.9 b. of the New Forestry Law.
16 It is possible to cobble together an approach focused on administrative remedies
even given the second stage limitations of the Forest Law. Notices of violation
accompanied by a proposed consensual fine (something like a traffic ticket)
with a signature line could constitute one such procedure. But it still would not
obviate the enforcement problems stemming from non-coercive remedies and the
consequent overreliance on the courts - it would be easy enough for violators not
to sign the notice of violation "ticket" and force the Forest Development Authority
of Liberia to chase them through the Liberian court system for even minor
violations.
17 Judicial training courses are planned as part of the forest sector reform effort.
7 BIBLIOGRAPHY
Forest Concession Review Committee (FCRC) 2004, Background Documents For
Concession Review Phase III [vol. 3], Monrovia.
Forest Concession Review Committee (FCRC) 2005, Forest Concession Review Report:
Phase III and Appendices, Monrovia, available at http://www.fao.org/forestry/
site/29659/en
Global Witness 2004, Dangerous liaisons: the continued relationship between Liberia's
natural resource industries, arms trafficking and regional insecurity, available at
http://www.fao.org/forestry/site/29036/en
McAlpine, J. L., O"Donohue, P. A. & Pierson, O. 2006, "Liberia: forests as a
challenge and an opportunity", International Forestry Review Vol. 8 (1), pp. 83-
92.
Reno, W. 1999, Warlord Politics and African States, Boulder: Lynne Rienner.
Republic of Liberia, Government of Liberia (GOL), "Executive Order No. 1 GOL
Forest Sector", February 2, 2006, available at http://www.fao.org/forestry/
site/31586/en
Rochow, K. W. J., Simpson, R. D., Brownell, A. L. and Pierson O. 2006, "The Liberia
forest concession review: lessons for resource management and restoration of
the rule of law", Journal of Peacekeeping and Development Vol. 3 (1), pp. 89-93
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Yousuf & Uddin 471
STATE OF BIO-DIVERSITY AND CONSERVATION COMPLIANCE
IN BANGLADESH
YOUSUF, ABDULLAH1 and UDDIN, NASIR2
1 State of Bio-Diversity and Conservation Compliance in Bangladesh, Institute for
Environment and Development Studies, 5/12-15, Eastern View (5th floor), 50, D.I.T
Extension Road, Dhaka-1000, Bangladesh, iendesbk@accesstel.net.
2 State of Bio-Diversity and Conservation Compliance in Bangladesh, Institute for
Environment and Development Studies, 5/12-15, Eastern View (5th floor), 50, D.I.T
Extension Road, Dhaka-1000, Bangladesh, iendesbk@accesstel.net.
SUMMARY
Indiscriminate and imprudent uses of lands and water in Bangladesh have had
significant impacts on natural ecosystems, changing the land's character and ability
to sustain biological resources. Both flora and fauna are threatened by the loss of
habitat resulting from increasing human populations and unwise utilization of
natural resources. A focus on biodiversity has been emphasized in the Forest Policy
and Environment Policy; however, a separate policy on biodiversity has not been
formulated. As a result, various departments of the government are responsible
for conservation of biodiversity. The Bangladesh National Biodiversity Strategy
and Action Plan is under preparation as a national obligation to the Convention
on Biological Diversity. Currently, the Forest and National Environment Policy
sets the policy framework for biodiversity and environmental protection. Serious
efforts must be taken to prevent further exploitation of Bangladesh's natural
resources; additionally, sustainable management plans need to be formulated and
implemented.
1 INTRODUCTION
Bangladesh is a transitional zone of flora and fauna because of its geographical
settings and climatic characteristics. Unfortunately, the degradation and
loss of natural resources in Bangladesh started a long time ago. A country
traditionally rich in biodiversity, the natural resources of Bangladesh have
become greatly depleted. Biological resources are consumed at an alarming rate,
and indiscriminate and imprudent uses of lands and water have had significant
impacts on natural ecosystems. The Ministry on Environment in Bangladesh has
promulgated and enforced a few environmental regulations, but it is clear that a
strategy and action plan to specifically protect biodiversity is needed.
2 BIODIVERSITY OF BANGLADESH
Bangladesh supports approximately 5000 floral species, of which about 300
species are being actively cultivated. There are many rivers and streams existing
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in the country covering a length of 22,155 kilometers. Both flora and fauna are
threatened by the loss of habitat resulting from increasing human populations and
unwise utilization of natural resources. Increasing demand for timber and fuel-
wood, general human encroachment, and Jhum (shifting) cultivation in the hilly
districts, are aggravating factors contributing to deforestation and environmental
degradation. The unplanned rapid urbanization and industrialization are leading
to waste and pollution problems that negatively stress natural ecosystems.
2.1 Impact of Habitat Depletion on Bangladesh's Flora
According to a recent estimate, total forest lands including plantations, gardens,
and homesteads cover about 2,600,000 hectares in Bangladesh, which is 17.87
percent of the land surface of the country. Most of the forests of Bangladesh are
located in the Greater Districts of Chittagong, Chittagong Hill Tracts, Sylhet,
Khulna, Dhaka, Mymensingh, and Tangail. The lack of environmental stewardship
in Bangladesh has resulted in over 100 threatened plants in this country. Further,
many plants with medicinal value may yet to be discovered.
For example, there are more than 100 species of orchids found in Bangladesh.
These plants have become immensely popular among urban dwellers, resulting
in their secret collection by businessmen. Also, Bangladesh has one of the most
biologically resourceful and unique forests known as the Sundarbans. The
Sundarbans, the world's largest mangrove forest, is very rich in biodiversity and
supports 334 species of plants. Additionally, the Sunderbans is the only remaining
habitat of the famous Royal Bengal Tiger (Panthera tigris) and harbors a large
number of threatened wildlife. Out of 26 species of mangroves, some are used
in newsprint mills for paper production, for fuel-wood, timber, and the leaves
of some mangrove species are used for thatching. Uncontrolled logging and
agricultural expansion threatens as the Sundarbans, along with other mangrove
forests in Bangladesh.
2.2 Impact of Habitat Depletion on Bangladesh's Fauna
Fish is the main dietary source of protein in Bangladesh; the country is rich in
fish and other aquatic resources. For example, Bangladesh's inland water bodies
are known to be the habitat of 266 species of indigenous fish, thirteen exotic fish,
56 prawns, about 26 freshwater mollusks, and 150 birds. The marine water bodies
(200 nautical miles along the coast) are home to 442 species of fish.
Fisheries supply over 85 percent of the total animal protein intake by the
population. The fisheries resources of Bangladesh are among the richest in the
world and the inland fisheries production ranks third globally, behind China and
India. Fish stocks in Bangladesh are in grave danger due to over consumption
in this densely populated country, including large scale water abstraction for
irrigation, construction of embankments for flood control, degradation caused by
siltation, soil erosion due to deforestation in the catchment water, and pollution
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from industrial, agriculture and municipal waste have placed great stress on
fisheries and decreased water quality. IUCN Red List (2000) revealed 54 threatened
species of fishes in Bangladesh.
Additionally, Bangladesh's mammal populations face an uncertain future as critical
habitat is destroyed. Furthermore, the conversion of wetlands into agricultural
lands, large-scale deforestation, and human overpopulation are considered to be
the major factors causing many species of birds in Bangladesh to be threatened.
3 ENVIRONMENTAL COMPLIANCE & ENFORCEMENT IN
BANGLADESH
Bangladesh is a signatory to about 28 environmental treaties, conventions, and
protocols. Bangladesh signed the Biodiversity Convention at Rio in 1992, and
ratified it in 1994. Currently, there is an overall focus on biodiversity emphasized
in Bangladesh's Forest Policy and Environment Policy. However, a separate policy
on biodiversity has not yet been formulated. As a result, various departments of
the government are responsible for conservation of biodiversity. The Bangladesh
National Biodiversity Strategy and Action Plan is under preparation as a national
obligation to the Convention on Biological Diversity.
Forest and National Environment Policy in Bangladesh sets the policy framework
for biodiversity and environmental action, in combination with a set of broad
sectoral guidelines. It emphasizes the need to focus on maintaining ecological
balance in Bangladesh, along with the need to focus on the overall development of
environmental protection and policy. The Forest and National Environment Policy
also highlights the need for identification and control of all types of activities
related to pollution and degradation of environment, including environmentally
sound development in all sectors and active association with international
environmental initiatives.
4 CONCLUSION
Biological diversity is crucial for the survival and progress of nature and humanity
in Bangladesh. The numerous direct and indirect human causes of environmental
devastation must be curtailed with the implementation of sound environmental
policy. Biological resources and biological diversity form the backbone of the
economy in Bangladesh. There is a great potential in Bangladesh for biodiversity-
based sustainable development. In spite of threatened flora and fauna, nearly
10,000 species of plants, animals, and microbial organisms still flourish in this
country. Serious efforts must be taken to promote environmental stewardship in
Bangladesh and prevent further exploitation of its valuable biological resources,
including the implementation of environmental policies and sustainable
management plans.
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TRACK F: CREATING A CULTURE OF COMPLIANCE
'DRINKING IN THE LAST CHANCE SALOON? NON-GOVERNMENTAL
ORGANIZATION ROLES IN VERIFYING LEGALITY
IN THE TROPICAL TIMBER TRADE'
BROWN, DAVID1
1 Research Fellow of the Overseas Development Institute (ODI), 111 Westminster
Bridge Road, London SW1 7JD, England, and Director of VERIFOR*. d.brown®
odi.org.uk
SUMMARY
This paper examines some of the transnational dimensions and arising issues of
rule-making and enforcement in the forest sector. The main interest is in the role
of non-governmental organisations in verifying the legality of tropical timber
production. The experience of advocacy and rights-oriented non-governmental
organisations in countries like Cambodia, Cameroon, Ecuador, Indonesia and
The Philippines provides case material to explore these themes. The paper draws
on the findings of the VERIFOR project, an international collaboration exploring
options for the verification of legality in the international timber trade.
The impact of non-governmental organisations working as environmental rights
monitors is examined, focusing on both the early innovators which opened up
the tropical forest sector to external scrutiny, and the subsequent and ongoing
consolidation phase, where attempts are made to routine forest monitoring. The
paper seeks to account for the likely disjuncture between the high impacts of such
non-governmental organisation monitors in the former case, and their less certain
roles in the latter. A number of practical measures are suggested which might
improve timber verification practice.
It should be emphasised that this is very much a 'work in progress' in that the
processes in question are generally still under development, and innovative
institutions (such as the EU voluntary partnership agreements) are not yet in
place.
1 TROPICAL FOREST GOVERNANCE
Tropical forest policy is well-known to be a problem area for international policy.
While tropical forests have important global public goods dimensions, they
are managed almost universally as sovereign resources of the state. The major
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producer countries are very mindful of their sovereignty and defend it assiduously.
Attempts to bring forested areas under an international convention have failed
to make any ground, and look most unlikely to do so in the foreseeable future.
Thus, to the extent that international organisations wish to defend the global
public goods dimensions of forests, they are unable to require compliance with
their interests, still less to enforce them, and have instead to rely on soft norms
and influencing mechanisms. In such situations, information gathering takes on
a heightened role, and non-governmental organisations have been particularly
prominent. Encouraging environmental rights non-governmental organisations
to 'name and shame' has grown in favour as a means to encourage compliance,
particularly when targeted on countries that are highly dependent on external
markets, and protective of their commercial image.
The forest sector is also problematic from the perspective of public governance,
and by and large the problem is greatest in tropical environments. This is partly
due to the practicalities of tropical production, but such problems are massively
inflated by the ways in which high windfall profits from timber production impact
upon the political economy of the encompassing societies. As Ross has noted1,
while conventional wisdom would suggest that involvement in the international
economy should be beneficial to states, this is not necessarily the case with the
forest sector. Governments attract foreign investment in manufacturing when
they maintain sound economic policies, but extractive industries operate rather
differently. In such cases, super-rents are generated in boom periods, far in excess
of the actual costs of production. These economic rents are there to be captured
regardless of the overall state of the economy - indeed it could be argued that
they are highest where disorder is greatest. High windfall rents lead to the twin
evils of rent seeking and rent seizing - the former implying attempts of private
actors to 'capture economic rents in a manner that is socially unproductive',
the latter implying rent seeking within the state, in which 'public officials seek
the right to allocate the rents held by ... government'.2 Rent seizing is a much
more pernicious problem than rent seeking in that it fundamentally alters the
institutions in which it occurs.3 Forest administrations and regulatory bodies are
likely to be largely ineffective during times of economic boom (assuming that they
were ever functional), a reflection of their subordination to the political order.
This has implications for legality verification, both in terms of the effectiveness of
institutions and their likely impacts, as will be later discussed.
The exceptional growth of resource rents in the tropical forest sub-sector in the
1980s and 1990s increased the temptations for rent seeking and seizing and led
to a widespread perception that the sector was in disarray. The decline of some
producer states into anarchy, part-fuelled by timber revenues (Liberia, Cambodia,
Democratic Republic of Congo) only increased the international concern. Various
attempts to improved management were initiated by the development assistance
community, with varying levels of success. These included aid conditionality
to leverage reform of the industry and the forest administration (more rigorous
planning requirements, enhancing revenue capture, etc.); encouragement to
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private sector initiatives in the areas of standard setting and certification; and
funding to a range of non-governmental organisations to 'kick-start' governance
reform through information generation at the state/industry interface.
It is with the third of these that this paper is concerned. As its title suggests,
recourse to non-governmental actors as the spearhead of forest reform was often a
last ditch effort of donor agencies to justify continued interest and investment in a
sector with an unattractive image and poor social record. The strategies employed
were in many ways the reverse of those that were coming into fashion elsewhere
in aid circles.
2 NON-STATE ACTORS AND ATTEMPTS TO IMPROVE FOREST
GOVERNANCE
In recent years, mainstream aid donors outside of the forest sector have largely
abandoned the old aid conditionality and have sought to reinforce the ownership
and initiatives of recipient governments. Their own contributions have been
limited to agreeing the broad outlines of an aid contract aligned with policy, as
represented by the nationally-owned poverty reduction strategy and supportive
of the Millennium Development Goals.4 Their various contributions have been
harmonised, applying only minimum conditions provided certain key welfare
objectives are met. Forest sector aid in the same period has proceeded in the
reverse direction, using aid conditionality and other pressures to force forest
ministries to accept reforms in which they often show little interest. The most
renowned instance of this has been in Cambodia, where the World Bank and
some western bilateral donors persuaded the government to implement a forest
crime detection programme in 1999. Inter alia, this involved the introduction of
an independent forest monitor to assess and comment on the effectiveness of the
government's own internal controls. This role (sometimes also described - perhaps
more accurately - as 'independent observation') was given to Global Witness,
a UK-based environmental rights non-governmental organisation which had
spent the previous four years exposing corruption within the Cambodian forest
industry and laying out its close links to the government. Following some initial
success, the World Bank and other donors then persuaded a second partner,
the Government of Cameroon, that Global Witness should also undertake pilot
activities there. This was integrated within a wider process of forest governance
reform, involving three levels of monitors: a private sector legal and accountancy
firm to monitor concession allocations; an activist non-governmental organisation
(Global Witness) to monitor forest operations; and surveillance by a specialist non-
governmental organisation (the World Resources Institute's 'Global Forest Watch')
to track changes in forest cover and exploitation by remote sensing techniques.
Global Witness operated from 2000-2004 on a succession of temporary contracts
to the Government of Cameroon, and was eventually replaced by another
environmental monitor, Resource Extraction Monitoring.5 Global Witness and
Resource Extraction Monitoring have also been funded by donors to undertake
similar independent forest monitor work on a variety of exploratory contracts
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in countries as diverse as DR Congo (where Global Witness has worked on a
pilot contract to the Government), Honduras, Ghana, Congo-Brazzaville and
Mozambique. Funding has been provided to another environmental rights
monitor in Indonesia, the Environmental Investigation Agency, independent of the
Indonesian government. (Such unofficial activities might be described as 'external
monitoring' to distinguish them from official 'independent monitoring').6
Independent forest monitor activities of the type undertaken in Cambodia,
Cameroon, and elsewhere provide one model for the independent forest monitor
component being promoted by the European Union in its 'voluntary partnership
agreements' with selected tropical producer states.7 These voluntary partnership
agreements are an outcome of the EU's Forest Law Enforcement, Governance and
Trade Action Plan, which includes a proposal (voluntary in its early stages, though
the intention is to move to binding legislation at some point) to restrict timber
imports into the territory of the EU to 'verified legal' production. Negotiations are
presently underway with four tropical producers (Malaysia, Indonesia, Ghana and
Cameroon) to establish the first set of voluntary partnership agreements.
Such attempts to reform the functioning of the forest sector by additional pressures
on the existing forest control bodies were not entirely new. A Forest Practices
Board was established in Tasmania, Australia in 1985. 'Multistakeholder forest
protection committees' were formed in the Philippines beginning in 1992, with
World Bank support and with a remit to report on maladministration and illegal
logging activities. In British Columbia, Canada, a Forest Practices Board was set up
by the government in 1995, following activism by Canadian and US environmental
non-governmental organisations. An 'outsourced monitoring system' was put in
place by the Government of Ecuador with some donor support, beginning in 1999,
under pressure from national environmental non-governmental organisations.
All of these innovations are worthy of note but it is the independent forest monitor
activities of the non-governmental organisations that are of particular interest
here, because of the ways in which they signal the movement of non-state actors
into territory which was formerly the exclusive domain of the state.8 The rest of
this paper focuses on the roles that such activist non-governmental organisations
may play in improving forest governance.
3 THE NON-GOVERNMENTAL ORGANIZATION RECORD
At one level, the non-state environmental monitors appear to have had a very
significant impact on the management of the sector. It is arguable, for example,
that the momentum which is carrying the voluntary partnership agreements
forward would not have occurred without strong pressure from the non-
governmental organisation lobby, and without the types of information that the
independent forest monitors and other external monitors have so tenaciously
unearthed. Even where the reforms have been resisted (and this is the case in
almost all the major instances), the governance of the sector is not what it was
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before, and some significant and positive changes can be identified. Considering
the complexity of the forest sector and the fact that the movement in question had
none of the force or legitimacy of an international convention, this must be worthy
of note. If some of the early voluntary partnership agreements negotiations come
rapidly to agreement, others are almost certain to follow. While the benefits to the
adopters will be largely reputational - for (judging by the experience of the forest
certification movement) very little is likely to follow by way of a price increment
and non-signatories will not be excluded from the market (at least in the early
years) - 'verified legal timber' is now very firmly on the forest trade agenda.
Interestingly, however, while non-governmental organisations were the driving
force of the early initiatives which laid bare the contribution of forest industry
to poor governance, there seems much less likelihood that they will be major
actors in the second wave of reform now underway, which seeks to routine
independent monitoring within trade regimes. While it is difficult to predict the
manner in which the sector will evolve in the coming months, it seems unlikely
at this juncture that the environmental rights non-governmental organisations
will continue to play such central and decisive roles. This would not have been
entirely unexpected even in the early days. Despite the immense publicity they
generated and the great praise heaped on them by environmental activists, their
activities have always courted controversy particularly in producer states. Global
Witness was dismissed from its contract to the Government of Cambodia in
2003, for instance, and replaced by a private sector operator, Societe Generale de
Surveillance, with a narrower set of terms of reference and much reduced ambition.
This contract was not renewed after its first term. The process went better in
Cameroon, after a somewhat shaky start. A particularly innovative feature here
was the new institutional structure created to support the independent forest
monitor, involving a 'Reading Committee' (Comite de lecture), to review and
validate the monitor's reports. However, Global Witness did not apply for renewal
when the initial experimental phase expired, and its replacement has worked
under increasing difficulties. Similarly, in Ecuador, the outsourced monitoring
system has suffered some significant challenges, constitutional and other, which
have come close to destroying it completely. The reform continues, though, with
limited non-governmental organisation support. The Philippines programme was
less controversial (its industry was already in decline) and still survives in some
provinces, though impetus was greatly diminished when World Bank funding
ended.
4 QUESTIONS OF IMPACT
Some interesting questions are thus raised about these attempts to improve
the compliance of the forest industry with its ostensible contractual terms,
and to introduce additional verification measures into the existing (and often
malfunctioning) control agencies of the producer ministries. For example:
• How do the different legal categories of actor perform in comparative
terms? These include various types of private sector agencies, both specialist
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forest auditors and legal/accountancy firms; activist and 'more neutral' non-
governmental organisations, as well as government agencies.
• Can any conclusions be drawn about the impacts of different types of
monitoring, and the different areas of activity (concession monitoring vs. field
monitoring of forest operations, for example)?
• What kinds of constituencies and concerns are likely to prevail at the end of the
day - industry, environment, the poverty lobby, good governance?
• How can the fluctuations in influence of the different actors, particularly non-
governmental organisation monitors, be explained?
We will review each of these in turn, and then consider what can be learnt from
these initiatives of wider interest to compliance practice.
4.1 Issues of legal status
Though the superiority of non-governmental organisation approaches has been
quite widely extolled, it is not necessarily the case that non-profit organisations
always perform better than profit-oriented ones, nor that they function well in
all respects. Instances can be found in which both public and commercial actors
have operated in exemplary fashion. Interpretation of the evidence requires care,
not least because non-governmental organisations are free to publicise their work
in ways that are denied many other operators, particularly those working to
industry standards and/or as financial auditors. This has some advantages, most
prominently the heightened power it gives to advocacy-oriented organisations
through the threat of publicity. No class of actor is necessarily inherently superior,
though the terms on which they are permitted to function exert a strong influence
over their effectiveness.
4.2 Effectiveness of different types of monitoring
Again, advocacy-oriented non-governmental organisations have significant
advantages here, in the high profile that they are able to adopt, but this may be
at the expense of long-term sustainability particularly where they operate across
sensitive national boundaries. Given the governance considerations earlier
discussed, the most radical and cost-effective initiatives are not necessarily the
ones that make the most noise, but may be those that attack patrimonialism at its
roots. Thus, in the case of Cameroon, it could be argued that the greatest impact
overall will come from the monitoring of concession allocations - because this
goes to the heart of the patronage relationships that are responsible for poor forest
governance. By contrast, the environmental monitors can claim greater success in
publicising realities on the ground, but are not necessarily in a position to do much
about them, particularly in the longer term. Still, there is also a view that the most
effective interventions are likely to be multifaceted ones - combining transparent
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concession allocations with independent observation of field operations, and
backed up by satellite monitoring to track the condition of the forest and
infrastructure! developments over the longer term.
4.3 What constituencies are likely to prevail?
It is too early to assess the likely impact of all the measures that are being
put in place, some of which could lead to a significant tightening up of forest
administration. However, there is a view that what began as a courageous
governance reform strategy with strong equity and environmental links could well
end up being captured and domesticated by the industrial lobby, and converted
into a facet of ecolabeling with restricted (and largely commercial) aims. If this
occurs, the explanation might be as follows. The movement started off with four
sets of objectives, all of them held to be mutually supportive (trade legalisation,
governance reform, pro-poor development and environmental conservation).
However, the sovereign character of the forest estate reduces the likelihood that all
four dimensions will be taken up into policy. Least likely to be acceded to are the
pro-poor and governance dimensions. Addressing the former requires a radical
process of tenurial reform, of a kind that is only really guaranteed in a situation of
major social transformation. It is less likely to come about through administrative
edict (and if such is the case, then the danger is that the reform will be captured
by elites). Addressing the governance dimension would require dismantling of the
kinds of politico-economic forces that lead to the association of the forest sector
with poor overall governance. To the extent that the major culprit is the windfall
profits that international market integration offers extractive industries, then the
best way to reform governance would be to suppress the export trade. However,
because of the sovereignty and global trade dimensions, the international
community has to limit its brief to reform, and to focus on trade sanitisation
not trade suppression. The environmental rights monitors are generally hostile
to large-scale industry (and may well have good grounds to be so), but given
this position, the willingness of some of them to sign up to contracts as official
industry monitors is questionable. Pursuing an anti-industry agenda is arguably
incompatible with maintaining the independence from all sectional interests that
official verification work requires. Thus, non-governmental organisation monitors
actively associated with anti-industry campaigns either are unlikely to retain
official contracts for long, or have to change their orientation to make them more
business friendly if they are to sustain their activities.
This leaves only the trade and environmental dimensions. Trade sanitisation
measures may be welcomed by the legitimate international industry, which has
much to gain by squeezing out the less reputable local 'political' operators. It
also fits in with the processes of industry consolidation, on both the supply and
demand sides. These have their origins in the same environmental pressures but
also serve other competitive interests and address other aspects of commercial
risk. Trade sanitisation is supportive of environmental sustainability - at least
at enterprise level. While this is likely to be much better than the status quo for
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tropical forests and their residents, it does not guarantee forest conservation in the
longer term, particularly in the more complex old growth forest environments.
Nor does it completely immunize the forest sector from the 'extractive industry
curse'. Such initiatives find it difficult to reform the basic structure of forest
governance, which is itself a product of that curse. Despite almost a decade of
donor pressure and conditionalities, and of independent monitoring, many of
the less functional tropical forest ministries are still marked by unbalanced and
over-concentrated structures of decision-making (powerful ministers but in
weak ministries), non-transparency as regards sanctions for breaches of law and
regulations, and excessively discretionary, unchecked powers for key individuals.
It will be interesting to see if the voluntary partnership agreements currently
under negotiation are able to address these difficulties.
4.4 Inconsistent influence
The last point may also help to illuminate the uneven role played by non-
governmental organisations in the processes of forest sector reform. Steadily
increasing influence of such non-state actors in standard setting and monitoring
of state performance is by no means assured, nor is their ability to control the
direction of change in line with their own value commitments. There is a distinct
risk of perverse effects. Among the reasons for this are the following:
• Non-governmental organisations use various strategies to find a seat at the
table in forestry negotiations, but are highly dependent on patronage. For
external non-state actors, this usually means reliance on donor support. This
support is intermittent and uncertain, and the relationship is ambiguous. At
the national level, the lack of legal status of non-governmental organisations
in Forest Law Enforcement, Governance and Trade negotiations also weakens
their bargaining power. National non-governmental organisations are not
precluded from influential roles, but these are also likely to depend on
patronage. This is particularly disadvantageous to advocacy groups that
operate largely in negative mode.1
• The heterogeneity of non-state actors, the rivalries between them (both
ideological and for funding) and the different positions adopted by external
and local non-governmental organisations add to the difficulties. They are often
unable to gain weight through cooperation amongst themselves.
• Non-governmental organisations may be thrown into competition with
commercial organisations, and this may either limit their radicalism or
alternatively reinforce it. The former would lead to convergence with private
sector operators. The latter would have more potential, though it could
diminish the room for manoeuvre in the producer context, while perhaps
reinforcing it externally.
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• The context of policy development in this sector is multi-faceted. Non-
governmental organisations are unusual in the extent to which they are likely to
support three sets of values: biodiversity, governance and poverty alleviation.
These values are not always compatible. By their vocation, advocacy non-
governmental organisations are unfavourably disposed to trade-offs, and are
not well-placed to accommodate them.
• Finally, there are multiple financial factors to be considered. The financing
of verification is a controversial issue, and whatever way it is resolved,
advocacy non-governmental organisations are unlikely to be advantaged.
To the extent that the issues relate to global and national public goods, then
putting the burden of compliance onto the timber industry may appear unjust.
But transferring the whole burden of compliance onto the national level is
not only also unjust (to the extent that the values under discussion are global
public goods), but is also likely to marginalise actors such as advocacy non-
governmental organisations which those national governments see as a thorn
in their flesh.
5 LESSONS FOR COMPLIANCE PRACTICE?
This paper is being presented in the section of the conference on 'creating a
culture of compliance'. While the verification of legal timber lies largely outside
the boundaries of international law, the need to create a culture of compliance still
presents itself, and is probably the main challenge to the Forest Law Enforcement,
Governance and Trade movement today. Various practical measures might be
suggested, most notably the utility of a set of internationally-recognised 'principles
of responsible verification'. These could serve to reassure producer governments
that official monitors will respect their sovereignty and authority, though
they could also reassure doubters that information about the realities of forest
governance will be openly and transparently shared. Institutional innovations
such as Comites de lecture could play a confidence building role, though these need
to be freed from over-dependence on single authorities and politicians if they
are to function effectively. Additional measures might be required to convince
governments that verification is not a threat to legitimate forest industry (for
example, broadening involvement in independent forest monitor through peer
review mechanisms). Professional accreditation of prospective independent forest
monitors might also be advised, in recognition of both the need to standardise
provision in a field with important international trade dimensions and also
on grounds of 'Quis custodiet ipsos custodes?' (here implying 'who monitors the
monitor?'). However, the number of providers is presently very small, and the
ideological gulf between different classes of operator fairly substantial, so such
formal accreditation may be premature.
Attempts to reform the sector confront a 'governance conundrum'. A complete
reform of forest governance is often required, but where such radical reform is
most needed, the government is least likely to accede. This underlines the size of
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484 Eighth International Conference on Environmental Compliance and Enforcement 2008
the task which confronts the movement for forestry reform in many societies. It
also points to the need to ensure that whatever steps are taken to address poor
forest governance should see enlargement of the spheres of engagement and
ownership - in short, generating high levels of public legitimacy - as a primary
concern.
6 REFERENCES
1 Ross, M (2001) Timber Booms and Institutional Breakdown in Southeast Asia,
Cambridge University Press
2 Ibid p.33
3 Ibid p.35
4 United Nations (2008) 'UN Millennium Development Goals', http://www.un.org/
millenniumgoals/
5 For a review of both these programmes, see Brown, D et al (2004) Forest law
enforcement & governance: The role of independent monitors in the control of
forest crime', ODI Forestry Briefing Papers, N°- 5.
6 For a discussion of monitoring terminology, see: Brown, D with Luttrell, C &
research associates in Cambodia, Cameroon, Indonesia and The Philippines, Review
of Independent Forest Monitoring, ODI London for: Policy Division, Department for
International Development (DFID), LONDON (2004).
7 See for example: 'Legality assurance systems: Requirements for verification',
ELI Forest Law Enforcement, Governance and Trade Briefing Note, N° 5; and
'Guidelines for Independent Monitoring', ELI FLEGT Briefing Note, N° 7; both
Brussels, 2007.
8 See, for example, Hall, R. & Biersteker, T. (eds.) The Emergence of Private Authority
in Global Governance, Cambridge University Press.
9 See, for example, Haufler, V (2001) A Public Role for the Private Sector. Carnegie
Endowment, for International Peace, Washington DC.
7 BIBLIOGRAPHY
For case studies of the country programmes of verification discussed above and
other commentaries and analyses of forest verification, see the VERIFOR Project
website (www.verifor.org), from which materials can be downloaded free of
charge.
Additional background references:
FAO, Best practices for improving law compliance in the forest sector, Rome, 2005.
Global Witness, A Guide to Independent Forest Monitoring, London, 2005.
[*VERIFOR is applied policy research project involving four partners: ODI, London
[lead agency]; CATIE, Costa Rica; CIFOR, Cameroon; and RECOFTC, Thailand. It
is funded by the European Commission and the Governments of the Netherlands
and Germany. See: www.verifor.org/ ]
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COMPLIANCE AND ENFORCEMENT IN A CO-OPERATIVE GOVERNANCE
STRUCTURE - CHALLENGES AND SOME SOLUTIONS
FOR THE SOUTH AFRICAN SITUATION
BOSMAN, C.1 and BOYD, L.2
1 Executive Director, Carin Bosman Sustainable Solutions, PO Box 26442, Gezina,
0031, Republic of South Africa, cbosman@global.co.za.
2 Specialist Advisor, Colder Associates Africa (Pty) Ltd Thandanani Park, Halfway
Gardens, Midrand, 1685, LBoyd@golder.co.za.
SUMMARY
Following the advent of a democratic South Africa, the top priority of the South
African Government has been, and still is, the delivery of services, especially
to people in the "second economy." To enhance developmental delivery,
the government has created a cooperative governance structure, in which
government is constituted in national, provincial, and local spheres. These
spheres are distinctive, interdependent, and interrelated, with specific roles
and responsibilities. The national government is mainly tasked with regulation,
while local government has the responsibility of ensuring the actual delivery of
services. Some of the services delivered by local government, such as wastewater
treatment, could have serious detrimental effects on both human health and the
environment. However, traditional criminal enforcement actions cannot be taken
in a cooperative governance environment context, and a dilemma is hence faced
with regard to ensuring compliance.
This paper outlines the interrelationships of the three spheres of government
in South Africa in the context of the principles of cooperative governance, and
highlights some environmental problems experienced during the last few years
as a result of the cooperative governance structure. Some creative compliance and
enforcement strategies have been under investigation as potential solutions to this
dilemma, and are briefly discussed.
1 INTERRELATIONSHIPS OF THE THREE SPHERES OF GOVERNMENT
The Constitution of the Republic of South Africa Act 108 of 1996 ('the
Constitution') (RSA, 1996) has assigned key executive, regulatory, administrative,
and service provision roles, responsibilities, and functions to national,
provincial, and local government, which has certain implications for sustainable
environmental management from a co-operative governance perspective. Some of
their responsibilities overlap, or have a direct influence on each other, specifically
with regard to environmental impact. A Local Government (or "municipality"')
specifically has a dual role to play in this regard, both as frontline regulator and as
a provider of basic services.
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486 Eighth International Conference on Environmental Compliance and Enforcement 2008
In terms of section 151 of the Constitution (RSA, 1996), a municipality has the
right to govern the affairs of its community in a democratic and accountable
manner (regulatory role). Section 152 assigns local government the responsibility
of providing democratic and accountable governance to its community, ensuring
the provision of sustainable services, promoting a safe and healthy environment
and involving communities and community organisations in its matters, subject
to compliance with national and provincial legislation (regulated role). In terms
of section 154, the national and provincial governments, by legislative and other
measures, must also support and strengthen the capacity of municipalities to
manage their own affairs, to exercise their powers and to perform their functions.
In accordance with the above, the Constitution assigned the power to national
government to pass legislation with regard to any matter; including a matter
within a functional area listed in its Schedule 4, but excluding a matter within a
functional area listed in Schedule 5 (section 44). The Constitution also delegated
to provincial government the power to pass legislation for its province with
regard to any matter within a functional area listed in Schedule 4 and Schedule 5
(section 104). A local government has executive authority (section 156) in respect
of, and has the right to administer the local government matters listed in Part B of
Schedule 4 and Part B of Schedule 5. Some of the matters listed in Schedules 4 and
5 that relate to the environment are outlined in Table 1 below:
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487
Table 1: Some Matters Listed in Schedules 4 and 5 to the Constitution that Relate
to the Environment (RSA, 1996)
Schedule 4: CONCURRENT NATIONAL
AND PROVINCIAL LEGISLATIVE
COMPETENCE
Part A
Administration of indigenous forests
Agriculture
Animal control and diseases
Cultural matters
Disaster management
Environment
Health services
Housing
Pollution control
Regional planning and development
Soil conservation
Urban and rural development
Part B - local government matters
Air pollution
Building regulations
Electricity and gas reticulation
Municipal planning
Municipal health services
Stormwater management systems in built-
up areas
Water and sanitation services limited
to potable water supply systems and
domestic waste-water and sewage
disposal systems
Schedule 5: FUNCTIONAL AREAS
OF EXCLUSIVE PROVINCIAL
LEGISLATIVE COMPETENCE
Part A
Abattoirs
Provincial planning
Provincial cultural matters
Part B - local government matters
Cemeteries, funeral parlours and
crematoria
Cleansing
Control of public nuisances
Facilities for the accommodation, care and
burial of animals
Municipal abattoirs
Noise pollution
Refuse removal, refuse dumps and solid
waste disposal
According to Weale (1992), the most obvious feature of potential environmental
impacts and pollution problems is that they affect both public health and resources
(for example the water resource), which are public goods, but the risk of pollution
often arises from otherwise legitimate activities within society, such as the
accommodation of waste or wastewater in the environment. The consequence is
that the control of potential impacts on humans and the environment is typically a
regulatory function, since society must be protected from pollution by government
action.
National government departments are generally charged with the management
of resources that are held in public trust. Some of the services rendered by local
government are however directly dependant on, and affected by, the integrity or
quality of such resources, such as the provision of potable water supply services.
In addition, some of the services provided by local government, such as sewage
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and solid waste disposal systems may have the potential to pollute these natural
resources, in particular the water resource. In these different responsibilities and
competencies of the different spheres of government thus lies the potential for
conflict, specifically with regard to environmental management aspects.
1.1 Principles of Cooperative Government
This potential for conflict was recognised by the drafters of the Constitution, and
section 41 of the Bill of Rights (RSA, 1996) makes specific provision for principles
of co-operative governance and intergovernmental relations. Some of these
principles, which are relevant in this context, are:
All spheres of government and all organs of state within each sphere must:
• respect the constitutional status, institutions, powers and functions of
government in the other spheres;
• not assume any power or function except those conferred on them in terms of
the Constitution;
• exercise their powers and perform their functions in a manner that does
not encroach on the geographical, functional or institutional integrity of
government in another sphere; and
• co-operate with one another in mutual trust and good faith by:
1 fostering friendly relations;
2 assisting and supporting one another;
3 informing one another of, and consulting one another on, matters of
common interest;
4 coordinating their actions and legislation with one another;
5 adhering to agreed procedures; and
6 avoiding legal proceedings against one another.
1.2 Conflict Resolution and Intervention
In accordance with the sections in the Constitution dealing with co-operative
governance, all reasonable measures to resolve conflict must be explored before
legal action is taken. Where municipalities fail to fulfil their constitutional
functions or executive obligations in terms of legislation, and the regulation of
their executive powers does not succeed in ensuring that they perform their
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Bosman & Boyd 489
functions effectively, intervention may be required. In terms of Section 139 of the
Constitution, provincial government has the power to intervene and may take any
appropriate steps to ensure that the municipality fulfils its obligation, including:
• Issuing a directive to the municipal council, describing the extent of its failure
to fulfil its obligations and stating any steps required to meet its obligations.
• Assuming responsibility for the relevant obligation of that municipality to the
extent required to maintain essential national standards or meet established
minimum standards for the rendering of a service; to prevent that municipal
council from taking unreasonable action that is prejudicial to the interests of
another municipality or to the province; and to maintain economic unity.
Although provincial government is primarily responsible for intervention, national
government may also need to intervene together with provincial government. This
may be necessary in instances (1) where a provincial government fails to intervene;
(2) where national fiscal resources are implicated; (3) where such intervention is
required to maintain economic unity, essential national standards, and national
security; or (4) to prevent unreasonable actions that are prejudicial to a province or
the country as a whole.
The White Paper on Co-operative Governance prepared by the Department
of Provincial and Local Government states that the fair and even exercise of
intervention powers requires a level of uniformity across the country (RSA,
1997). Predictability with respect to the exercise of intervention powers is also
an important requirement for stabilising the relationship between municipalities
and financial markets. For these reasons, national guidelines on the process of
intervention are based on the following principles:
• Steps should be taken to remove the need for intervention. This includes
ensuring that all municipalities have access to adequate training, capacity-
building, funding, and support systems to enable them to perform their
functions and manage their administrations properly. Good monitoring and
information systems are required to indicate potential problems before they
become crises, so that municipalities are able to take their own corrective
measures where problems arise.
• Clear responsibility and financial liability for mismanagement,
maladministration or fraud must be established, with rapid procedures for
prosecuting offenders at both the political and administrative level.
• National and provincial government should exercise the power given to
them in terms of Section 155(7) of the Constitution, to regulate the executive
authority of municipalities to ensure that municipalities perform their
functions effectively. It is anticipated that, in most instances, the regulation
of municipal executive authority will be sufficient to ensure that municipal
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490 Eighth International Conference on Environmental Compliance and Enforcement 2008
functions are effectively performed, and intervention in terms of Section 139 of
the Constitution will be a rare occurrence.
• Where intervention is required, the level of intervention needs to be appropriate
to the context, ranging from support and advice through issuing directives
for specific actions, to the assumption of executive authority for a municipal
function by another sphere of government.
• The ultimate sanction against a municipal council for persistent non-
performance is the loss of executive power. This should occur only where all
other mechanisms to improve the situation have failed and in a way which will
lead to the re-establishment of the municipal Council's executive power as soon
as possible.
• Powers of intervention should be seen a measure of last resort, where the
problem cannot be resolved through ordinary intergovernmental processes.
There is broad agreement that both national and provincial government are
committed to ensuring the stabilisation of the local government environment to
such an extent that interventions are exceptional and not regular occurrences.
These principles have been incorporated into the Intergovernmental Relations
Framework Act 13 of 2005, which mainly provides for the establishment of
Intergovernmental Relations Forums, where performance and disputes are to
be discussed and resolved, mainly by means of providing technical and training
support to local governments who are not meeting their obligations.
2 CHALLENGES OF COOPERATIVE GOVERNANCE FOR COMPLIANCE
AND ENFORCEMENT OF ENVIRONMENTAL IMPACTS
Although these principles seem sound in theory, they create a number of practical
problems and challenges, especially with regard to environmental compliance and
enforcement. Some of these problems and challenges are briefly discussed below:
2.1 Direct Impacts on Human Health and the Environment
Due to the fact that cooperative governance principles are preventing the
implementation of legal proceedings, the "command-and-control" approach to
ensuring environment compliance is no longer an incentive. As a result of large
scale housing and other developments, reticulation systems, pumping stations,
wastewater treatment works and waste disposal sites are not upgraded, and
cannot cope with the increased volumes of effluent and waste, and regularly
spill into the surrounding environment, in particular affecting water resources.
One example of this is the town of Delmas, where a typhoid epidemic broke
out in both 2002 and 2005, as a result of both inadequate sanitation systems and
insufficient potable water treatment services by the municipality. In 2005, more
than 3000 people fell ill, and five casualties were reported. However, no legal
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Bosman & Boyd 491
action was taken against the municipality, and in fact, the municipal manager
responsible for the treatment of drinking water and sanitation received a bonus for
overtime work during the crisis. A second example is the town of Emfuleni, where
a total breakdown of the local government services relating to sewage treatment
(pumping stations are continuously overflowing, and sewage works cannot
handle the load of effluent) has caused chronic pollution of the Vaal River and Vaal
Barrage, one of South Africa's major storage reservoirs, leading to regular fish kills,
and odour complaints from tourists visiting recreation resorts on the banks of the
Vaal River. These are but two examples of a growing problem - it is estimated that
more than 70 percent of the towns in South Africa are no longer complying with
the conditions of the licenses governing their effluent treatment works. In a survey
conducted by the Department of Water Affairs and Forestry in 2006 among district
municipalities in five regions, the percentage non-compliance was found to be
alarming, as illustrated in Figure 1 below:
Figure 1: Percentage Compliance with Licence Conditions of sewage works
Number of sewage works
Compliance
Uncertain. 49 <20% compliant. 24
^^^^^^^ 20-40% Compliant.
80-100% compliant. ^^^^^^^M /^^—^^^ 37
56
• ^^^^
40-60% compliant.
81
^—
60-80% compliant.
117
From this Figure, the lack of appropriate service delivery insofar as ensuring
appropriate wastewater treatment is concerned is clear, and intervention to
facilitate compliance is a matter of high priority. The following section will discuss
the current approach towards such intervention.
2.2 Administrative red tape
The intervention protocol that has been suggested by Department of Water
Affairs and Forestry to deal with non-compliant municipalities (or 'water services
authorities' (WSA's) as termed under the Water Services Act 108 of 1997 (WSA))
is illustrated in Figure 2 below. According to this protocol (Department of
Water Affairs and Forestry, 2005), fifteen steps need to be followed before legal
enforcement action can be taken. These steps are as follows:
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492 Eighth International Conference on Environmental Compliance and Enforcement 2008
• Step 1. Detect and prioritise the violating municipalities in each Water
Management Area
• Step 2. The solutions will require the cooperation of National Treasury,
Department of Provincial and Local Government and South African Local
Government Association (SALGA)
• Step 3: Identify main cause of problem in each high priority WSA to guide
detailed investigations
• Step 4: Investigate technical solutions for prioritised WSAs
• Step 5: Investigate Management and Operation solutions for prioritised
WSAs
• Step 6: Determine possible institutional solutions for prioritised WSAs
• Step 7 Address the financial viability of proposed solutions
• Step 8: Agree on timeframes for implementation of proposed financially
viable solution
• Steps 9 and 10: Department of Water Affairs and Forestry to support WSA with
preparation of an action plan and budget for the solution in the agreed time
frame
• Step 11: WSA obtains funding for the solution, own funds or other grants
• Step 12 Establish Department of Water Affairs and Forestry Project if WSA
cannot implement the solution
• Step 13: Accommodate solution in Catchment Management Strategy
• Step 14: Adjust license of WSA to accommodate the time frame of the solution
• Step 15: Monitor performance of WSA to evaluate if solution is effective
• Step 16: Legal Remedies if lack of cooperation
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Bosman & Boyd 493
Figure 2: Proposed Department of Water Affairs and Forestry Intervention
Protocol to deal with Non-Compliant Local Government
TYPICALINTERVENTION BUSINESS PROCESS
(APPLIES ONLY TO WSAs WHO ARE NOT COMPLYING WITH DISCHARGE STANDARDS)
1. Detect violation by WSA (Regulation, WS, WR)
2. Engage DPLG,
N. Treasury, SALGA
3. Identify chief cause(s) of problem and prioritise violating WSAs in each Water Management A
(WS/WR) for further investigation
+
4. Investigate WSA
technical Solutions
(WS)
1
^
5. Investigate WSA
Management
and operator solutions (WS)
1 1
i
8. DWAF/WSA/CMA
Agree solutions and time frame (WS/WR)
6. Investigate alternative
WSA/WSP institutional
arrangements (WS)
1
rea
|
7. Investigate WSA
financial viability
10. WSA accommodates
solutions in action plan (WS)
11. WSA budgets within
MIG, Equitable Share (WS),
Restructuring Grants, Own funding
12. If WSA cannot perform
timeously then
DWAF Regional Project
funded by MIG deduction
from WSA (RO)
13. CDM/DWAF Accommodates
solution in CMS (WR)
14. Adjust licence conditions to
accommodate solutions
and time frame (WR)
15. Monitor WSA performance (Regulation, WS, WR)
16. Legal
intervention
as last resort
The demands of this process are evident, not only with regard to human resources,
but particularly with regard to timeframes of implementation. It may take years
from identifying a problem of non-compliance to actually implementing the
solution that will address the non-compliance. By the time the solution is being
implemented, severe environmental degradation and effects on human health may
have occurred. In addition, it creates a duplicate system of intervention, where
compliance and enforcement for industries and mines follow a different route
from intervention for local government.
2.3 Legislative Inconsistencies
Most environmental legislation in South Africa, for example the National
Environmental Management Act 107 of 1998, the National Water Act 36 of 1998,
and others, criminalises non-compliance with its requirements, regulations,
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494 Eighth International Conference on Environmental Compliance and Enforcement 2008
standards, and authorisations. None of these laws makes separate provision for
dealing with non-compliance by local government. In terms of these laws, all non-
compliances should be dealt with and treated equally. However, the requirements
of cooperative governance precludes the taking of legal action against non-
compliant local governments, unless after following a long process, as outlined
above. Not implementing these criminal actions against non-compliant local
governments as they would have been taken against non-compliant industries
or mines creates an inconsistency of enforcement which weakens the overall
enforcement regime. It cannot be justified to prosecute a polluting industry or
mine, while the local government in whose area of jurisdiction the mine is located
is causing similar, if not worse, pollution problems.
3 POSSIBLE SOLUTIONS TO THESE CHALLENGES
McLoughlin and Bellinger EG (1993) identify four options that can be used for
sustainable environmental governance. These are:
• Command and control systems where criminal legal action is taken or
a polluter is shut down, because of non-compliance to environmental
authorisations;
• Market instruments that may include, for example, fees for discharging
contaminants into rivers so that it makes more economic sense for the industry
to treat the polluted water before discharge, or incentives such as grants;
• Agreements between various parties, which allow an industry or mine to keep
operating or assisting a local authority to provide its services on condition that
certain agreed targets are achieved; and
• Civil instruments that include environmental awareness, the media, and
society based organisations, performance reporting and eco-labelling.
Traditionally, compliance and enforcement approaches are heavily reliant on the
command and control approach. However, as illustrated above, in a cooperative
governance structure, command and control interventions to ensure compliance
are emasculated. Hence, the other policy options should be investigated as
possible solutions to ensure improved compliance by especially local governments.
Furthermore, these instruments should best be used in a hybrid approach.
Command and control instruments have been well developed, but are alone not
sufficient to address the problem. Market based instruments, for example by use
of a subsidy system, needs to be investigated, and the mechanism of agreements
requires a protocol for implementation. The fourth tool of civil instruments also
needs to be investigated for use as a compliance mechanism.
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Bosman & Boyd 495
3.1 Market Instruments
Two examples serve to illustrate the use of market instruments to facilitate
improved compliance, namely the Waste Discharge Charge System, and grants
and subsidies.
3.1.1 Waste Discharge Charge System
The Department of Water Affairs and Forestry is currently developing a market-
based instrument, namely a Waste Discharge Charge System as part of the Pricing
Strategy provided for in the National Water Act. The Waste Discharge Charge
System will introduce financial and economic instruments, designed to internalise
costs associated with waste and to encourage the reduction in waste and the
minimisation of detrimental impacts on water resources. The Waste Discharge
Charge System is based on the polluter-pays principle and aims to:
• promote the sustainable development and efficient use of water resources;
• promote the internalisation of environmental costs by impactors;
• recover some of the costs of managing water quality; and
• create financial incentives for dischargers to reduce waste and use water
resources in a more optimal way.
As such, the Waste Discharge Charge System is based on the concept of
internalising externalities and will consist of two types of charges, namely an
incentive charger and a mitigation charge. The main purpose of the incentive
charge is to ensure the optimal use of the resource for discharging or disposal of
waste. It is based on charging for the use of the resource rather than directly on
recovering costs. The mitigation charge component of the Waste Discharge Charge
System will be focused on the recovery and disbursement of quantifiable costs
incurred in the implementation of mitigation measures against impacts of waste
discharge in the resource.
It is expected that the Waste Discharge Charge System will provide financial
incentives to polluters to improve their performance, rather than a "command and
control" incentive. Its implementation may have a huge implication on the fiscus
of a local government and with many municipalities being already cash-strapped,
it is uncertain what the remedies will be should a municipality fail to pay the
charges levied against it.
3.1.2 Grants or Subsidies
A second type of market instrument is the provision of grants or subsidies. The
Intervention Protocol discussed in paragraph 0 (Figure 2) includes providing
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496 Eighth International Conference on Environmental Compliance and Enforcement 2008
grants to non-compliant local governments. An example of where grants were
implemented is in Emfuleni, one of the towns described in paragraph 0. In 2004,
National Treasury allocated R 140 million to Emfuleni through a restructuring
grant, and Department of Water Affairs and Forestry and National Treasury
agreed upon priority Key Performance Indicators which revolved around
appropriate water service provider institutional arrangements for the development
and implementation of a water services infrastructure refurbishment plan, and the
development and implementation of a water services operations plan with ring-
fenced budget, appropriate staffing and operational standards. Unfortunately, in
2008, very little, if any improvement was evident, and the matter was highlighted
again in a Carte Blanche television expose aired on 3 February 2008. This example,
however, showed some elements of an agreement, which is further discussed
below.
3.2 Environmental Management Cooperation Agreements
An Environmental Management Co-operation Agreement is a negotiated
agreement and complimentary policy tool for improving environmental
performance. These agreements are therefore a way in which to implement
co-operative governance to achieve compliance. In terms of Section 35 of the
National Environmental Management Act, the main objective of an Environmental
Management Cooperation Agreement is to promote compliance with the
principles of sustainability contained within Section 2 of National Environmental
Management Act. Every municipality may enter into Environmental Management
Co-operation Agreements with any person for the purpose of promoting
compliance with the principles laid down in National Environmental Management
Act, and section 35 indicate the following as aspects that Environmental
Management Co-operation Agreement's must contain:
• an undertaking by those concerned to improve on the standards laid down by
law for the protection of the environment which are applicable to the subject
matter of the agreement;
• a set of measurable targets for fulfilling the undertaking; and
• provision for periodic monitoring and reporting of performance against targets,
independent verification of reports, regular independent monitoring, and
inspections.
Guidelines published by the National Department of Environmental Affairs
and Tourism state that Environmental Management Co-operation Agreement's
should promote a more co-ordinated regulatory approach (National Department of
Environmental Affairs and Tourism, 2003) and outlines the procedures for public
participation, stating that.
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Bosman & Boyd
497
• Environmental Management Co-operation Agreements must only be entered
into with the agreement of every organ of state which has jurisdiction over any
activity to which such Environmental Management Co-operation Agreement
relates;
• Environmental Management Co-operation Agreements must only be
entered into with the agreement of the Minister of National Department
of Environmental Affairs and Tourism and the MEC concerned and after
compliance with such procedures for public participation as may be prescribed
by the Minister; and
• The Minister of Environmental Affairs and Tourism must sign all
Environmental Management Co-operation Agreements.
This requires a process of consultation, and a typical process towards the
establishment of an Environmental Management Co-operation Agreement is
illustrated in Figure 3 below:
Figure 3: Steps in Implementing an Environmental Management Co-operation
Agreement as Tool to Improve Compliance
The first example of such an agreement is Potchefstroom City Council- a
Department of Water Affairs and Forestry Agreement where upstream mining
activities under control of the Department of Water Affairs and Forestry had the
potential to impact on water services provision by the Potchefstroom City Council.
The agreement addresses amongst others, the improvement of environmental
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498 Eighth International Conference on Environmental Compliance and Enforcement 2008
performance, has mutual support and involvement as well as joint monitoring and
investigation.
Although Environmental Management Co-operation Agreements was probably not
initially, with the drafting of section 35 of National Environmental Management
Act, envisaged as a tool for co-operative governance, as a negotiated agreement
and complementary policy instrument for promoting improved environmental
performance (National Department of Environmental Affairs and Tourism, 2003),
it lends itself exceptionally well to promote and define co-operative governance,
especially where the roles of the different spheres of government interrelate.
As a result, Environmental Management Co-operation Agreements need to be
further explored in determining implementation thereof in a formal manner
to facilitate improved compliance. The use of Environmental Management Co-
operation Agreements has the further advantage that the public are aware of the
undertakings of their local government, and can therefore hold them accountable.
However, this leads to the discussion of civil instruments, below.
3.3 Civil Instruments, for example a Municipal Performance Rating
System
To date, not many governments explored the use of civil instruments to facilitate
improved compliance in environmental performance. Usually, complaints by civil
society reach the media, and both national and local government are then pressed
to do crisis management to preserve their images. At a workshop held in February
2006 between 38 responsible senior officials of the Department of Water Affairs
and Forestry to discuss solutions to achieve improved service delivery regarding
environmental compliance, the following creative proposal was formulated:
• All municipalities should be subject to a national rating system, which should
be displayed at the entrance of each town and publicly announced via the
print, broadcast and electronic media. The rating system should be based on a
minimum standard of performance. Achievement of a standard well above the
minimum would result in a high rating (e.g. gold status), which would qualify
the municipality for some kind of added remuneration / rewards / bonuses,
and failure to achieve these minimum standards would result in a low rating
(e.g. brown status), which would result in immediate compulsory assistance.
Such assistance, funded nationally, could range from compulsory training of
local government councillors and officials, to taking over the management of
the water treatment works by competent personnel.
The rationale is that as the local communities will be aware of how their local
government is performing with regard to the treatment of their water supplies,
waste water and waste disposal, they would be able to put public pressure on
municipal officials to achieve the highest rating, and hence getting value for their
rates and taxes. Tourism and business will also be affected, as municipalities with
a low rating will be avoided by tourists and investors, resulting in a major loss
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Bosman & Boyd 499
of income, and additional pressure on the municipal authorities by local business.
This proposal has not yet been implemented, but holds great potential towards
facilitating improved compliance by local government.
4 CONCLUSIONS AND RECOMMENDATIONS
Environmental compliance and enforcement is extremely challenging in a
cooperative governance structure. Challenges relate to the specific instruction to
avoid legal action against local government unless as a last resort in extreme cases,
and the actual poor performance of local government, resulting in very real and
direct threats to both public health and environmental integrity. The principles
outlined by the Department of Provincial and Local Government and the protocols
suggested by the Department of Water Affairs and Forestry are, while sound in
theory, quite cumbersome in practice. Ensuring compliance in a cooperative
governance structure requires innovative use of governance instruments other
than command-and-control enforcement, such as market-based instruments,
environmental co-operation agreements, and civil instruments, such as a rating
system. Specific guidelines need to be developed for the use of these instruments
as tools for ensuring compliance in a co-operative governance structure.
5 REFERENCES
• Environmental Management Co-operation Agreements in South Africa - Draft
Guidelines for Discussion: Department of Environmental Affairs and Tourism
(National Department of Environmental Affairs and Tourism), 2003. Draft 1.0.
Department of Environmental Affairs and Tourism, Pretoria.
• Environmental Pollution: An Introduction to Principles and Practice of
Administration: McLoughlin J and Bellinger EG 1993, Trotman/Marthinus
Nijhoff
• The Constitution of the Republic of South Africa Act, 108 of 1996: Republic of
South Africa (1996) Government Printer, Pretoria.
• Towards a White Paper on Local Government in South Africa: Department
of Provincial ond Local Government (Department of Provincial and Local
Government), March 1997, Government Printer, Pretoria. http://www.thedplg.
gov.za/subwebsites/wpaper/wpS.htm
• National Water Act, 36 of 1998: Republic of South Africa (1998a) Government
Printer, Pretoria.
• National Environmental Management Act, 107 of 1998: Republic of South
Africa (1998b) Government Printer, Pretoria.
• The New Politics of Pollution: Weale, A., 1992. Manchester University Press,
United Kingdom.
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Postiglione 501
REFLECTIONS ON THE ROLE OF JUDGES IN ENFORCING
ENVIRONMENTAL LAW
AMEDEO POSTIGLIONE1
1 Judge of the Supreme Court of Cassation of Italy, Vice President - European
Forum of Judges for the Environment, Director - International Court of the
Environment Foundation (ICEF), Via Cardinal Pacca 19 - 00165 Rome (Italy), icef.
postiglione@tiscali.it.
SUMMARY
Judges play a critical role in compliance and enforcement of environmental laws.
This paper discusses the obstacles to environmental enforcement that Judges must
overcome.
1 INTRODUCTION
The role of Judges is necessary for enforcing the law, because it is Judges who
must interpret the law and find the right solutions in actual cases. For substantive
environmental law, which is relatively recent in the various national legal systems
and possesses a strong technical content, the role of Judges has recently appeared
to be decisive, but this is slowly changing. The lack of the specific training of
Judges with regard to the environment, except for some praise-worthy exceptions,
is not compatible with current environmental laws, which embraces almost all
legal sectors and often appears in cases before the courts. The focus of this brief
paper will be on some of the progress that has been made in training Judges and,
most importantly, on identifying the politico-institutional role of the judiciary in
guaranteeing the greater effectiveness of environmental law. The paper will also
stress that the ineffectiveness of environmental law has deep roots, which must be
faced pragmatically and removed.
2 OBSTACLES TO THE ENFORCEMENT OF ENVIRONMENTAL LAW
Environmental law encounters many difficulties in its actual enforcement. There
are many complex explanations for such obstacles, including cultural, political,
economic, technical, and scientific causes. Despite the enactment of numerous
environmental laws and regulations, the environmental crisis continues to worsen
because the issues triggering the problem have not been removed. The need to
improve environmental enforcement and compliance is apparent in national,
regional, and international law. In other words, this is a "common challenge" for
which a "common response" has not yet been found.
Certainly, there are practical, and even legal obstacles, in the process of concrete
enforcement of environmental law at the various levels (local, national, regional,
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and international), but the removal and attenuation of these obstacles (even though
proper and useful) must not make us forget the more general implications of the
problem. The role of the Judge is an important component of the legal system
because - thanks to his/her professional activities - the law is verified through his/
her ability to solve actual cases, in accordance with the principles of consistency
and equity. An evaluation of obstacles to improving environmental compliance
and enforcement follows, below.
2.1 Cultural Obstacles
The role of the "environment" is still dynamic in modern society. The conceptual
importance of the environment has matured, and it is no longer considered
important by only a marginal segment of society. However, cultural maturity
towards the environment has not as yet been translated into coherent social
behaviour as society, and individuals, are still bombarded by contrary input.
The removal of cultural obstacles is a priority in order to promote environmental
"truth" and "justice" in the interest of sustainable development for all.
Regardless of the progression of society, it must be questioned whether are there
existing "cultural obstacles" among Judges if they still considered environmental
protection to be a marginal problem.
2.2 Political Obstacles
The existence of approximately 190 sovereign States does not facilitate the
adoption of effective measures at international level. The lack of effective supra-
national executive and adjudicating bodies for the global environment is justified
by valid political obstacles, and it is the duty of the political world to remove these
difficulties. Clearly, there are few other viable alternatives to protection of the
global environment. Even within many individual countries, the environment does
not as yet have an "integrated" place within the overall policies of the national
government.
It must be acknowledged that progress has been made within the system of the
European Union, the United Nations, the International Network for Environmental
Compliance & Enforcement, various regional organizations, and through
constitutional amendments. The question remains of whether there is awareness
amongst judges of the positive role of "dialogue" with political institutions on the
environment.
2.3 Economic Obstacles
The lack of sustainable consumption and production results in a negative
impact on the environment. In order to achieving economic growth while
respecting environmental limits, regulations must favour methods of production
and consumption that are less polluting. Some issues remain, such absorbing
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Postiglione 503
potential cost increases and promoting the adoption in practice of best available
technologies. The involvement of parties with economic interests is fundamental
for obtaining positive environmental results. Regardless, does the so-called
"incapacity of the economy to recover" justify breaking the law?
2.4 Technical & Scientific Obstacles
Regulations on the environment are often very "technical" in their content
(emission levels, dumping rates, electromagnetic pollution levels , etc.). Often,
Judges do not have the interdisciplinary competence to understand the practical
implications of his or her choices, but are still obligated to decide and enforce
the law. Further, some environmental problems have a high level of scientific
uncertainty, such as the precautionary principle, which may create uneasiness for
some Judges.
2.5 Legal Obstacles
Legal obstacles arise due to the interdisciplinary nature of the environment and the
relatively recent development of environmental law. Further, the sectorial nature
of environmental regulation, coupled with the lack of co-ordination between
institutions, has resulted in many issues pertaining to environmental compliance
and enforcement. Last, obstacles emerge from the often imprecise language of
environmental regulations.
2.6 Practical obstacles
Many important obstacles will only be overcome by adjusting the priorities of
judges and other institutions pertaining to environmental issues. Currently,
there is a lack of official case law reports, official statistics, and law journals on
the environment. Further, there has also been a deficiency of policy assisting non-
governmental organizations in regard to the legal aspects of their activities, such
as providing exemption from the costs of bringing civil proceedings. Throughout
time, such obstacles will hopefully be overcome as the environmental law and
regulation increases in popularity.
3 TRAINING
It is necessary that Judges become more competent in environmental matters. For
example, the inclusion of environmental law in one's legal education must become
more widespread. The "value" of the environment in the evaluation of judges
when they are undergoing their competitive examinations must be recognized.
Further, local courses and initiatives promoting compliance and enforcement with
environmental laws should be provided.
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4 IMPROVING THE LEGISLATIVE FRAMEWORK FOR THE PURPOSE
OF ENFORCEMENT
In order to promote compliance and enforcement with environmental law, the
role of the Judge must be linked with that of the other institutions involved. In
other words, Judges must participate in a cross-sector approach to environmental
protection. This includes the use of plain and easily understandable language,
without confusion between technical aspects and legal rules. Judges should
work to integrate the objective profiles of environmental law with the subjective
profiles, in the sense of defending the procedural role of the human right to the
environment (information, participation and access) and beginning to better define
the "substantive" content of the human right to the environment (right to water, to
food, etc.).
Judge can also increase compliance with environmental regulations by
strengthening criminal penalties in some sectors, and introducing mandatory civil
action for environmental damage. This can include working with the international
community to encourage "economic" penalties whenever there is a failure to
comply with the obligations of a multilateral environmental agreement.
5 CONCLUSION
Judges from countries around the world realize that there is a great sensitivity
surrounding the need for environmental protection. Judges have the ability to
provide justice to individuals experiencing degradation of their environment.
However, access to such justice remains problematic in international law. Judges
must continue to actively work to create a system of environmental governance to
prevent increasing occurrence of environmental harm.
6 BIBLIOGRAPHY
1 See the UNEP documents relating to the Johannesburg Conference in 2002 and
that in Nairobi in 2003;
2 See the book "The Role of the Judiciary in the implementation and enforcement
of environmental law", containing the proceedings of the conference of Rome,
edited by the International Court of the Environment Foundation (ICEF), Rome,
2004;
3 See the book "The prevention and remedying of environmental damage in the
light of Directive 35/2004/EC", containing the proceedings of the conference of
Ostia Antica, edited by Bruylant, Bruxelles, 2005;
4 The proceedings publishing of the Conference of Venice is forthcoming;
5 See the book "Access to justice as human right", by Francioni, F., edited by Oxford
University Press, 2007;
6 See the book "Justice and global environment", by Postiglione, A., edited by
Giuffre, Milan, 2002.
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Mtisis 505
PROMOTING WATER QUALITY LAWS ENFORCEMENT AND
IMPLEMENTATION IN ZIMBABWE'S URBAN AREAS
MTISIS, SHAMISO1
1 Zimbabwe Environmental Law Association- Zimbabwe, No. 6 London Derry
Road, Eastlea, Harare, Zimbabwe, www.zela.org, mtisik@yahoo.com.
SUMMARY
The governing of how water is distributed, how it is used, and how clean it is, are
the substance of a substantial body of law at the local, national and international
levels.2 However, the rights of urban residents to access clean, safe, and adequate
water in Zimbabwe are being infringed as the implementation and enforcement
of water quality laws and policies are inadequate and ineffective. This paper
unravels the mix of factors inhibiting the provision of clean water to residents and
access to justice. These include economic decline, poor local governance structures,
political interference, corruption, population growth, the decaying water supply
infrastructure, and sheer disregard of water quality standards and laws.
This paper is a synthesis of theory and practice. Theoretically, it highlights the key
legislative, policy, and institutional gaps and weaknesses in the implementation
and enforcement of water quality laws, such as the low penalties for water quality
related crimes, promotion of the "polluter pays" principle by the effluent disposal
permit system, and the absence of a constitutionally guaranteed environmental
right in Zimbabwe. From a practical perspective, the paper mixes theory and
practice by analysing civil and criminal court cases handled by the Zimbabwe
Environmental Law Association, a public interest environmental law group, based
on water pollution in Harare, Gweru, and Mutare. Notably, the major hindrance to
enforcing water quality standards through litigation are identified as the lack of an
environmental ethic within the judiciary and law enforcement agencies, the long
court process, and the current economic problems. Therefore, the thrust of this
paper is to create the foundation for political and economic reforms that enhance
compliance with environmental laws and access to justice. Additionally, this paper
promotes the development of an environmental ethic in the water management
and supply institutions, the judiciary, law enforcement agencies, local authorities,
the industrial sector, and households. Thematically, this paper falls under the
creation of a culture of compliance section, with an emphasis on public access to
justice and communicating a compliance message based on practical examples.
1 OVERVIEW OF THE WATER QUALITY SITUATION IN URBAN AREAS
The discharge of untreated industrial, municipal, domestic waste, and washing
of agricultural chemicals into water bodies are the major sources of pollution in
urban areas of Harare, Mutare, and Gweru. The net effect includes water supply
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problems, unpleasant odors and taste in tap water, death of fish, and increased
growth of weeds, as well as the escalation of water borne diseases, such as
diarrhoea, cholera, and dysentery.3 Consequently, compliance with water quality
standards is of paramount importance as water for human consumption must be
of high quality and access to safe water should be understood as a basic human
right.4
Over the years, Harare's sources of water, like Lake Chivero, have become heavily
polluted5 leading the Zimbabwe National Water Authority and the municipality
to use eight chemicals to treat the water for drinking. The chemicals are often
unavailable which has led to water rationing and people fetching water from
unclean sources or boiling tape water. As a result, a number of deaths due to
intermittent cholera outbreaks and poor sanitation in high-density suburbs have
been reported.6 On the other hand, the City of Gweru has also faced water quality
problems over the years. In 2003, the municipality negligently discharged sewage
into drinking water pipes and this contamination caused an outbreak of cholera
and diahorrea in Mkoba suburb.7 In 1997, the Gweru municipality discharged
untreated sewage effluent into Gweru River, which caused the growth of aglae
and blockage of irrigation pipes belonging to a group of farmers in Mambanjeni
communal lands. The farmers were greatly affected as their crops dried and
the water could not be used for bathing and washing as it caused itching of the
skin.8 The same situation played out in Mutare where the municipality has been
continuously discharging untreated sewage effluent into Sakubva River, negatively
impacting the livelihoods of a community living downstream.9
It should therefore be pointed out that the protection of rivers and dams that
supply water to urban areas is of utmost importance. This can only be achieved
if water quality standards are set out in national legislation, regulations, and
by-laws. Further, water policies must be effectively implemented and enforced
to ensure compliance by the industries, local authorities, and individuals. The
following sections will highlight the key administrative, legislative, economic, and
political factors inhibiting compliance and enforcement of water quality laws in
the country.
2 ANALYSIS OF LEGISLATIVE, ADMINISTRATIVE AND JUDICIAL
MECHANISMS TO PROMOTE COMPLIANCE
There is a plethora of legal frameworks that regulate water quality, such as the
Water Act (Chapter 20:22), the Water (Waste and Effluent Disposal) Regulations
(S.I 274/2000), the Public Health Act (Chapter 15:09), and the Environmental
Management Act (Chapter 20:27) as well as by-laws passed by local authorities.
These laws stipulate and prescribe administrative measures for ensuring
compliance with water quality standards such as effluent discharge permits,
investigation and monitoring of pollution. In legal parlance, judicial remedies
such as criminal sanctions and civil action are also used as functions of a legal
compliance and enforcement structure. Imperatively, the strengths and weaknesses
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Mtisis 507
of administrative and judicial measures in ensuring compliance with water quality
standards should be assessed.
2.1 Pollution Permit
The issuance of effluent discharge permits is being used as a tool to ensure
compliance with water quality legislation. Essentially, the Water Act in Section
68 (l)(a) and the Water (Waste and Effluent Disposal) Regulations criminalize the
disposal of waste effluent without a permit issued by the Pollution Control Unit.10
Color codes, green, blue, yellow and red are used to indicate the threat level of
effluent disposals. A blue permit indicates environmentally safe effluent disposals
while a red permit indicates environmentally harmful disposals. Conceptually,
the permit system denotes the application of the polluter pays principle in the
sense that permit holders pay for registration, an environmental monitoring fee,
and municipal fees.11 Polluters in the red category pay more fees for the permit
and this was aimed at forcing them to strive to reduce pollution and attain better
categories. Nevertheless, the permit system has been rendered ineffective in
combating water pollution and promoting compliance with legal requirements
due to the low permit fees paid by major polluters, such as local authorities and
industries, who find it cheaper to pollute than to invest in costly pollution control
technology when they are trying to cut production and operational costs due to
the adverse economic and political situation. Zimbabwe National Water Authority
water quality technicians confessed that some industries and local authorities
in Harare, Mutare, and Gweru that started in the red permit category when the
permit system was introduced are still in that category as the red permit fees do
not act as an effective disincentive to polluters.12 Additionally, the fees are not
constantly reviewed while inflation is rising.
2.2 Monitoring and Investigating Pollution Cases
Through an effective, accurate, and well resourced monitoring and investigation
system, unauthorized disposal of waste water and effluent can be easily detected
through biological, chemical, and physical analysis. Monitoring and investigation
of non-compliance with water quality standards is the duty of officers and
inspectors in the Pollution Control Unit in terms of the Water (Waste and Effluent
Disposal) Regulations and the Environmental Management Act.
However, monitoring and inspection of pollution cases has been hampered by the
economic problems. As a result, the Pollution Control Unit and local authorities
in Harare, Mutare, and Gweru are facing critical financial and human resources
problems. Many water quality experts and technicians have left Zimbabwe, and
most water quality monitoring stations do not have modern laboratory equipment
and continuously struggle with transport and fuel shortages.13 A combination of
these factors have emasculated and adversely affected the ability of the Pollution
Control Unit to conduct quarterly water quality compliance inspections. Further,
inspectors may find it difficult to monitor compliance at night as the Water Act
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and the Water (Waste and Effluent Disposal) Regulations only allow them to
access disposal sites during normal working hours for purposes of inspection and
collection of water samples.
2.3 Use of Criminal Sanctions
Criminal law is the most widely used method of enforcing environmental law
although its effectiveness is a subject of debate in many jurisdictions.14 Accordingly,
the Water Act in Section 68 and the Environmental Management Act in Section
57 prohibits water pollution and makes it an offense punishable by a fine or
imprisonment. A spot fine can also be levied on a polluter in terms of Statutory
Instrument 30 of 2005. For example, Mutare City Council was criminally charged
and convicted of polluting Sakubva River and for failing to apply for an effluent
discharge permit. Nonetheless, the major criticism against the use of criminal
sanctions in promoting compliance with environmental law is the low penalties
or monetary fines paid by those convicted of polluting water.15 For example, in
the Mutare Municipality case the criminal court ordered the municipality to pay a
paltry fine of Z$l,500,000 in 2005.
However, despite the low monetary penalty, the judgment is theoretically
significant as the court in addition to the fine, ordered the municipality to repair
its sewage treatment facilities and to construct a footbridge for the people to cross
the polluted river without contracting diseases. Rather depressing is the fact
that on the ground the municipality has not complied with the court order as it
cites lack of financial resources to upgrade the sewage treatment facilities and to
construct the footbridge. Another handicap for using criminal sanctions to enforce
water quality standards through the judicial process is the lack of appreciation and
awareness of the elements of environmental crimes by magistrates, prosecutors,
police officers, and even water quality inspectors. Additionally, while water
pollution cases require expert evidence, enforcement has also been hampered by
the long delays in the judicial process in Zimbabwe.16
2.4 Use of Civil Remedies
Civil law remedies are an equally important method of compelling compliance
with water legislation in Zimbabwe for those who suffer personal or economic
harm by claiming compensation and applying for court orders compelling
polluters to stop polluting water sources or to take other measures. Until recently,
not many people relied on civil law remedies to enforce water quality legislation
or environmental legislation.17 The major hindrance to access to justice for many
communities is the aspect of legal standing (locus standi). However, the Class
Actions Act (Chapter 8:17) provides scope for public interest litigation, but the
limitation is that before instituting legal action on behalf of others a person is
required to make an application to the High Court to have his/her legal standing
tested and confirmed by the court before instituting the legal action. In the
same vein, there are conceptual constitutional problems in enforcing water and
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Mtisis 509
environmental rights in Zimbabwe. Unlike a number of other African countries,
the Constitution of Zimbabwe does not recognize environmental rights, neither
does it recognize economic, social or cultural rights.18 Although the Environmental
Management Act19 espouses environmental rights, these rights are not enforceable
as they are just statements of intent.
In spite of this gloomy situation, there has been a steady upsurge of civil law
cases based on water pollution as well as nascent positive responses by the
courts to enforce the law.20 In the case of Moses Mazhande and others v. Chitungwiza
Municipality, residents sued a municipality for negligently discharging raw sewage
into homes and Manyame River.21 The High Court ordered the municipality
to take steps to close the sewage drain, to repair its sewage treatment works
and to rehabilitate the contaminated land. Another pending case is that of Dora
Community v. Mutare City Council which also highlights the use of civil law
remedies in enforcing water quality standards. The community sought an order to
compel the Mutare City Council to stop polluting Sakubva River and to construct
a footbridge across the river.22 Theoretically, the court decision in the Mazhande
Case was testimony that civil litigation or the threat of it can be a potent tool to
enforce and compel compliance with water quality standards. In that case, the
municipality was jolted into action, appealing for funds from the government
to upgrade the sewage system after receiving court summons. However, the
current political and economic problems are impeding litigation efforts as the
municipalities and polluters plead the lack of funds as a defense.
3 ECONOMIC AND POLITICAL FACTORS
The enforcement and implementation of water quality regime in Zimbabwe can
not be isolated from the broader political, social, and political context; doing so
hinders compliance. Ideally, a clean water supply system requires infrastructure
development by replacing old water networks and improving technology,
transparency, and accountability in local governance structures, as well as
sustainable and equitable tariffs, effective revenue collection, and investment to
improve efficiency. However, Zimbabwe has an ailing economy, characterised by
the highest inflation rate in the world standing at over 15 000% and rising. As a
result, there are acute shortages of foreign exchange, fuel, spare parts, laboratory
equipment, and even experts to repair, refurbish, and expand the sewage
treatment plants. Industries are no longer investing in pollution control while local
authorities and the Zimbabwe National Water Authority are overwhelmed by the
water supply situation.
Political interference and corruption have made matters worse as the Minister of
Local Government and National Housing dismissed all local authority councils
controlled by opposition political parties replacing them with Commissions
and eventually giving the Zimbabwe National Water Authority the mandate
to treat and supply water in many municipalities.23 Political manipulation also
affected the water pricing systems as government has consistently controlled the
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water prizing structure under the guise of making water affordable to the poor,
yet as a way of attracting urban voters during elections. The unsustainable and
uneconomic rates being charged for water in urban areas in the face of huge costs
for water purification and supply make compliance with water quality standards
difficult.24 In sum, the takeovers, uneconomic and low water charges, and political
interference create a fertile ground for corruption in the water treatment and
supply business and significantly inhibit the enforcement and implementation of
water quality and supply standards.
4 CONCLUSIONS AND RECOMMENDATIONS
From the above analysis a number of institutional, policy, and legal conclusions
and recommendations can be made to promote compliance with water quality
laws and standards.
First, the overarching issue in Zimbabwe is that as environmental management
is linked to the broader political and economic issues in the country, and there is
a need for concrete political and economic reforms. This will trigger investment
and the availability of resources required to improve the clean water supply
infrastructure and technologies and systematic governance structures. These
resources include foreign currency, fuel, spare parts and laboratory equipment,
retaining technical experts, and more.
Second, there is need for a new Constitutional dispensation that will protect
economic, social, and cultural rights, including a person's right to live in a clean
and healthy environment. This will in turn help in the creation and promotion of a
culture of compliance and enforcement of environmental laws.
Third, there is need to ensure that criminal monetary penalties and effluent
disposal permits are regularly reviewed in line with the hyperinflation trends in
the country to make them deterrent and discourage local authorities, individuals,
and industries from polluting.
Fourth, there is need to establish an Environmental Court that can deal with all
environmental cases, including water quality cases. This should be supported by
judicial training on environmental law.
Fifth, public interest law organisations should be capacitated and strengthened
to take up cases on behalf of poor communities affected by water pollution and
environmental harm.
Sixth point is that training workshops on monitoring and investigation of water
quality crimes and environmental crimes for the police, municipal police and the
local authorities should also be prioritized, while awareness campaigns must also
be conducted among the citizenry on water quality legislation to ensure that they
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Mtisis 511
know their duties and obligations in relation to water quality management thereby
creating an environmental ethic and values for compliance.
Last, public policy dialogues for decision makers should be held targeting the
national budget and policy making processes to ensure the promulgation of laws
and policies that can be implemented with the available financial resources.
5 REFERENCES
1 The Author is currently on a Research Fellowship Programme with the Advocates
Coalition for Development and Environment (ACODE)in Uganda.
2 Kochtcheeva L.V, (March 2002) "Enforcing Environmental Policies: A
Comparative Analysis of Water Enforcement Strategies in the State of Washington
and the Moscow Region of the Russian Federation", Paper delivered at the
International Studies Association Annual Meeting, New Orleans , United States of
America, at Page 4.
3 Zimbabwe National Water Authority (2000), Operational Guidelines for the
Control of Water Pollution in Zimbabwe.
4 One, The Campaign to Make Poverty History, Clean Water and Sanitation, online
accessed 8 October 2007, http://www.one.org/node/275.html.
5 Gumbo, B. (1997) Water and Sanitation for all: Partnerships and Innovations.
Integrated water quality management in Harare. Paper presented at the 23rd WED
Conference, Durban, South Africa (Date of presentation unknown).
6 The Daily Mirror, 30 January 2007, Cholera outbreak in Harare, Patience
Nyangove online accessed 5 November 2007 http://groups.google.com/group/
Living-in-Zimbabwe/msg/9956cef087de81a5.
7 The Zimbabwe Environmental Law Association was consulted by the Gweru
Residents Association in October 2003 to initiate dialogue and consider suing
the Gweru City Council over the alleged discharge of contaminated water into
drinking water. This case is still pending.
8 Zimbabwe National Water Authority (1997) Water Quality Test Report of Gwayi
Cathchment.
9 Dora Community -vs- Mutare City Council, HC 1312/2005.
10 Section 5(1) of Water (Waste and Effluent Disposal) Regulations and Section 68
of the Water Act.
11 This principle means that any person who causes environmental pollution or
environmental damage is expected to remedy or pay for the damage caused. It is
found in Section 4 (2).
12 Interview with Water Quality technicians in Harare, May 2005.
13 Interview with Water Technicians in Gweru, August 2005.
14 Rabie, MA, Loot C, Lyster R and Erasmus R, (1993) "Implementation of
Environmental Law" in Fuggle R.F, and Rabie, MA, Environmental Law in South
Africa at 128, Juta & Co.
15 Glazewski J, (2000) Environmental Law in South Africa, Butterworth, Durban.
16 Interview with Water Quality Technician in Mutare, August 2005.
17 A Litigation Project initiated by the Zimbabwe Environmental Law Association
strengthened the use of civil action in water pollution.
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512 Eighth International Conference on Environmental Compliance and Enforcement 2008
18 Economic, Social and Cultural Rights are recognised in the South African
Constitution and Article Article XIV of the Constitution of Uganda, which sets
the National Objectives and Directives Principles of State Policy. The Article states that
the state shall endeavor to fulfill the fundamental rights to all Ugandans to social
justice and economic development.
19 Section 4(1) (a) and (c) i).
20 Information about the cases was obtained from ZELA Litigation Project File,
2003-2007.
21 Moses Mazhande and others -vs- Chitungwiza Municipality HC No. 111552/03.
22 Dora Community -vs- Mutare City Council, HC 1312/2005.
23 The Financial Gazzette, 23 April 2004 Mudzuri Sues Mugabe, , accessed 20
October 2007, http://www.fingaz.co.zw/fingaz/2004/April/April23/5227.shtml.
24 The Financial Gazzette, 15 July 2004 Cabinet Files, , accessed 20 October 2007,
http://www.fingaz.co.zw/fingaz/2004/July/Julyl5/4685.shtml.
6 BIBLIOGRAPHY
Bruns R. B and Dick R. S, (2000) Negotiating Water Rights, International Food
Policy Research, New Delhi.
Chenje, M. and Johnson, P. (eds). (1996) .Water in Southern Africa, SADC/IUCN/
SARDC.
Maya, S. R. (1999) Handbook on consumer water quality and conservation in
Zimbabwe. Southern Centre for Energy and Environment Zimbabwe. Harare
Takawira M, (2001) Review of Policy and Legislation on Water Pollution:
Mambanjeni Case Study", unpublished Research paper for the IUCN ROSA
Environmental Law Project.
Ncube W, J. Katerere and Chenje M (2002), "Environmental Rights and Justice", in
Katerere J and Chenje M (eds), Environmental Law and Policy in Zimbabwe,
SARDC, Harare.
Zimbabwe National Water Authority, (2000) Operational Guidelines for the
Control of Water Pollution in Zimbabwe.
Kochtcheeva L.V, (March 2002) "Enforcing Environmental Policies: A Comparative
Analysis of Water Enforcement Strategies in the State of Washington and the
Moscow Region of the Russian Federation", Paper delivered at the International
Studies Association Annual Meeting, New Orleans, United States of America.
Rabie, MA, Loot C, Lyster R and Erasmus R, (1993) "Implementation of
Environmental Law" in Fuggle R.F, and Rabie, MA, Environmental Law in
South Africa at 128, Juta & Co.
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Mtisis 513
Gumbo, B. (1997) Water and Sanitation for all: Partnerships and Innovations.
Integrated water quality management in Harare. Paper presented at the 23rd
WED Conference, Durban, South Africa (Date of presentation unknown).
Glazewski J, (2000)Environmental Law in South Africa,, Butterworth, Durban.
Financial Gazette, 17 September 2004.
The Herald, Monday 27 September 2004.
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Sperling 515
RULE OF LAW AND THE ENVIRONMENT IN A GLOBALIZED WORLD
SPERLING, LAWRENCE I.1
1 Senior Adviser, Bureau of Oceans, Environment and Science, U.S. Department of
State, 2201 C St. N.W. Washington, DC 20520; sperlingli@state.gov.
SUMMARY
Transnational crime organizations in many parts of our globalized world subvert
stability, rule of law, democracy, and legitimate economies while spreading
corruption and environmental degradation and undermining sustainable
development. Highly networked criminal organizations are attracted to the high
profits and low enforcement risks of international environmental crime. Effective
enforcement of environmental laws is a key to good governance at the national
level, which is critical for achieving sustainable development. Promoting effective
environmental law enforcement in the developing world is an important part of
United States' efforts to promote well governed states that provide for the needs of
their people and act responsibly in the international system. The United States has
been a leader of efforts to combat wildlife trafficking, illegal logging, and illegal,
unregulated and unreported fishing, and to build environmental law enforcement
capacity in developing countries through cooperation with U.S. trade partners
and through efforts of international organizations such as the United Nations
Environment Program. While these initiatives have produced significant results
and demonstrated world-wide interest in collaboration to improve environmental
law enforcement, sustained efforts are needed to enhance political will, build
technical capacity throughout the enforcement chain, and promote interagency
and international cooperation in improved environmental law enforcement.
1 ENVIRONMENTAL CRIME: AN ATTRACTIVE NUISANCE FOR CRIME
NETWORKS
Globalization has given the world's poor access to much of the same information
and technology as the rich; it is helping to spur global demand for democracy and
to provide economic opportunity to entire segments of the world's population
previously without hope of advancement.2 Yet, some of these same forces are also
creating new challenges for both the environment and for the rule of law.
In many parts of3 the world, criminals exploit the opportunities and vulnerabilities
offered by globalization. Criminal organizations try to take advantage of the
information superhighway and of the increased flow of goods across borders to
confound states and to circumvent their laws and enforcement efforts. They often
have extensive worldwide networks to support their operations and are inherently
nimble, adapting quickly to change. These transnational criminal organizations
and networks destabilize societies by undermining the rule of law and democracy,
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subverting legitimate economies and threatening sustainable development
efforts globally. They undermine the safety and security of communities through
activities such as drug, human and contraband smuggling, financial fraud, product
counterfeiting, cyber crime, and environmental crimes. International organized
criminals also seek to corrupt public officials to protect their illegal operations and
increase their sphere of influence, often with tremendous financial resources and
sparing no expense to corrupt government and law enforcement officials. Often,
their activities produce devastating harm to the environment, whether through
trafficking in endangered wildlife species and timber products, or through illegal
dumping or trade in toxic wastes and chemicals.
These highly networked criminal organizations are attracted to the high
profits derived from criminal activity and jurisdictions that have high-levels of
corruption, weak law enforcement structures and the lack of political will to
prosecute criminals. While law enforcement agencies often focus limited resources
to combat "traditional" crimes, a wide range of "newer" highly profitable illegal
activities requires greater collaboration between law enforcement and technical
agencies to detect and prosecute, as well as an informed judiciary and adequate
legal provisions to ensure an effective deterrence. Highly networked and accessing
all the tools of the information age, criminal organizations take advantage of
the distrust that law enforcement agencies often exhibit for sharing information
with sister agencies in-country or counterparts in neighboring countries, trying
out new, high-profit crimes that are less likely to be the target of vigilance and
enforcement.4
A 2000 study characterized international environmental crime as one of the fastest
growing and most profitable areas of international organized crime, and estimated
the economic "value" of international trade in environmentally regulated goods
and products at between $22 and $31 billion annually.5 A growing body of
anecdotal evidence demonstrates a range of linkages between environmental
crime and other types of international crime.6
1.1 A Range of Linkages
Illegal profits are particularly high in the area of illegal wildlife trafficking, with
mounting evidence of links to organized crime, including the smuggling of drugs,
weapons, and people. There is evidence that smugglers of contraband tend to use
the same routes and methods, regardless of the items smuggled.7 Profits to be
made from wildlife trafficking are huge with less risk than other crimes.8
But high profits and links to organized crime also characterize other areas of
environmental crime. More recently, Interpol's Pollution Crimes Working Group
embarked on an evaluation of the linkages between environmental crime and
organized crime. Results of the first phase of that study suggested self-evident
linkages to organized crime in the majority of 36 case studies of international
pollution crime examined.9 Some linkages to other crime are direct, such as the use
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of ozone-depleting substances banned or restricted under the Montreal Protocol on
Substances that Deplete the Ozone Layer as a precursor chemical in the production
of methamphetamine.10
An emerging problem is the use of natural protected areas as a safe haven for
a range of illegal activities. This may occur on a grand scale, where vast, under
patrolled protected areas serve, in effect as ungoverned spaces where drug
traffickers, wildlife traffickers, illegal antiquities dealers, and illegal logging
operations convene and commingle.11 However, as our field trip during the INECE
Conference in Cape Town pointed out, even urban protected areas can serve as a
safe haven for all kinds of illicit activity, from petty thievery to poaching of rare
plants and animals to serving as a dumping ground for the victims of murder.
Along with the links between environmental crime and other, organized forms
of crime comes official corruption as well. Given the size and logistics of moving
timber products, official corruption seems to go particularly hand in hand with
illegal logging, which costs countries $10-15 billion each year in lost revenues,
destroy forest ecosystems, undercuts legal trade in forest products, and sometimes
finances civil conflict.12
Among the anecdotal evidence of linkages to other crimes are occasional
suggestions that environmental crime may be a lucrative source of financing
for terrorist organizations. For example, a recent article suggested that Islamic
militants are sponsoring poaching and transboundary trafficking in wildlife for
profit in South Asia.13
While environmental authorities in many countries are committed to address
these threats, often their ability to do so is weakened by inadequate budgets and
insufficient political will throughout government. Traditional law enforcement
agencies often do not view environmental crimes with the same level of priority
as other crimes that are considered more pressing, and lack the technical expertise
needed to build good cases. Environmental agencies lack adequate resources
to provide the monitoring, detection and technical support needed to ensure
adequate law enforcement. While these conditions may occur in rich and poor
countries alike, the inadequacy of will and resources to address these problems is
particularly daunting in the developing world.
2 SUSTAINABLE DEVELOPMENT AND GOOD GOVERNANCE
Indeed, the ability of a country to develop sustainably in a manner that provides
for the needs of its people and for those of future generations depends on its ability
to govern well. Democracy and sustainable development strategies can succeed
only when the rule of law is adhered to and when government is transparent to
its people. The rule of law, including effective enforcement of laws to protect the
environment and natural resources, is at the core of sustainable development. At
the World Summit on Sustainable Development (Johannesburg, 2002), developed
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and developing countries alike acknowledged that sustainable development
begins at home, with good governance.14 In fact, since economic development
often depends on how a society uses natural resources, environment and natural
resources are the very stuff of development. Sustainable development depends
particularly on nations adopting effective laws and enforcement programs to
protect the environment, and a commitment to values of honest governance,
openness, just conduct, and the rule of law in their implementation. Such laws
and their effective enforcement are essential to set the basic ground rules of
management and efficient use of those resources to ensure that they will continue
to serve the needs of today's citizens and future generations.
3 ENVIRONMENTAL GOOD GOVERNANCE: A CROSS-CUTTING
THEME FOR U.S. FOREIGN POLICY
The State Department's Bureau of Oceans, Environment and Science is one of the
few operations in the U.S. federal government that addresses the full range of
environmental issues, on land and sea. The bureau promotes improved chemicals
management, sustainable management of forests and wildlife, sustainable
fisheries and marine resources. As it negotiates international agreements and other
instruments, it also seeks to ensure their effective implementation. Promoting
effective laws and enforcement programs at the national level is a critical part of
Bureau of Oceans, Environment and Science's goal to protect the environment
from both industrial pollution and over-exploitation of natural resources on land
and at sea.
Promoting good environmental governance not only helps to protect the
environment, but also helps countries set the conditions for sustainable economic
opportunity, while building demand for and experience with rule of law and
democratic decision-making processes in a sector vital to any country's economic
and political development. Moreover, promoting cooperation between countries in
the management of shared resources and the implementation of laws that address
transboundary environmental concerns can help reduce sources of international
tension and instability. This mission is a central part of the evolving role of
diplomatic and foreign assistance efforts of the United States in promoting well-
governed states that provide for the needs of their people.15
3.1 Combating Wildlife Trafficking and Illegal Logging
U.S. efforts in recent years, lead in large measure by Bureau of Oceans,
Environment and Science, have included a strong focus on the problems of wildlife
trafficking and illegal logging, by:
• Spearheading the Coalition Against Wildlife Trafficking, which promoted the
Association of Southeast Asia Nations Wildlife Enforcement Network that has
already launched several successful operations against traffickers, and which is
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assisting the South Asia Cooperative Environment Program establish a similar
regional enforcement network.
• Negotiating Memoranda of Understanding on illegal logging with China and
Indonesia and committing an initial $1 million to train Indonesian customs and
judicial officials, and help Indonesia implement a new standard to assess the
legality of timber harvested and exported.
• Co-sponsoring, with Indonesia, Australia, the Philippines, and Thailand, a
resolution adopted in April 2007 in the UN Commission on Crime Prevention
and Criminal Justice on "International cooperation in preventing and combating
illicit international trafficking in forest products, including timber, wildlife and
other forest biological resources" — a significant first step to engage the law
enforcement community writ large to address forest and wildlife crimes.
• Helping Liberia restore rule of law in its forest sector, ravaged by illegal
logging during the Taylor regime. If sustainably managed, the country's forests
could generate substantial foreign exchange earnings and employ thousands of
workers.
3.2 Promoting a Level Playing Field for Free Trade
Free trade agreements that the United States negotiates include commitments by
trade partners to effectively enforce their respective environmental laws. With
Bureau of Oceans, Environment and Science leadership, the U.S. supports this
commitment through environmental cooperation agreements and work programs
to build its trade partners' enforcement capacity.
Most notably, the U.S. allocated over $18 million annually over the last three years
to implement a comprehensive environmental capacity building program with
its partners in the Central America - Dominican Republic Free Trade Agreement.
A large portion of this funding is focused on strengthening enforcement of
environmental laws, and improving private sector environmental compliance.
A team of U.S. agencies that include the U.S. Departments of State, Interior and
Justice, the Environmental Protection Agency (EPA), as well as international and
local non-governmental organizations (NGOs) has:
• Trained over 300 environmental compliance inspectors, prosecutors, and other
enforcement personnel in every Central America - Dominican Republic Free
Trade Agreement country, many of whom are now training other officials to
enforce environmental laws effectively.
• Assessed protected area laws in five Central America - Dominican Republic
Free Trade Agreement countries and, in Guatemala, provided the first-ever
protected area law enforcement training courses.
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• Strengthened enforcement of the Convention on International Trade in
Endangered Species by supporting local organizations and initiatives.
• Helped the Central America - Dominican Republic Free Trade Agreement
Parties establish a Secretariat for Environmental Matters to receive and process
submissions from the public alleging that a Central America - Dominican
Republic Free Trade Agreement Party is failing to enforce its environmental
laws effectively.
While efforts are most comprehensive with Central America and the Dominican
Republic, the U.S. also assists other Free Trade Agreement partners to build
environmental enforcement capacity. For example, it has:
• Developed training programs for Chilean judges and prosecutors on
environmental law enforcement.
• Sponsored numerous trainings in Morocco, Bahrain and Oman to strengthen
environmental enforcement and build inspection capacity.
• Assisted Jordan in creating a 400 person Environmental Rangers unit.
• With Singapore, trained port inspectors and custom authorities to identify
illegal shipments of Ramin wood, a tropical hardwood listed on Appendix II of
CITES.
3.3 Marine Conservation and Fisheries Enforcement
For the last 18 years Bureau of Oceans, Environment and Science, the U.S.
National Oceanic and Atmospheric Administration and the U.S. Coast Guard
have worked with countries and Regional Fisheries Management Organizations
around the world to strengthen their fisheries enforcement capacity. We have
conducted workshops and seminars on fishing gear regulations and enforcement
techniques in relation to the U.S. program to implement the shrimp/turtle law,
which promotes the mandatory use of turtle excluder devices in trawl nets on
commercial shrimp vessels.16
In partnership with National Oceanic and Atmospheric Administration and the
U.S. Coast Guard, Bureau of Oceans, Environment and Science is undertaking a
comprehensive push to ensure that Regional Fisheries Management Organizations
have consistent and effective mechanisms to identify and deter States and vessels
engaged in illegal, unreported, and unregulated fishing. In 2007, Bureau of
Oceans, Environment and Science successfully shepherded new measures in
three Regional Fisheries Management Organizations that allow stronger action
against illegal, unreported, and unregulated vessels while ensuring proper due
process. Bureau of Oceans, Environment and Science recently chaired a group of
experts who prepared a first draft of a new agreement to set minimum standards
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for port States to take against vessels who participate in illegal, unreported, and
unregulated fishing. The U.S. will be working closely with other States to craft an
effective tool for changing the economics of illegal, unreported, and unregulated
fishing by making it harder for illegal product to enter the market.
3.4 Global Capacity Building Efforts
Bureau of Oceans, Environment and Science also supports efforts by the United
Nations Environment Programme (UNEP) to build capacity in member states
to enforce domestic environmental laws and international commitments. In
particular, we have provided substantial expertise to UNEP's efforts to develop a
global capacity building program for judges on environmental law. We have also
provided significant support to UNEP's Green Customs Initiative, which seeks to
integrate training for customs officials on enforcing national laws implementing
the various multilateral environmental agreements that regulate transboundary
trade in products or goods because of environmental concerns.17 In providing
this support, the U.S. urges a focus on practical information that will help judges,
customs officials, and others in the enforcement chain, to implement national laws,
including those that incorporate international commitments.
The United States is also a strong supporter of the work of the United Nations
Forum on Forests, the International Tropical Timber Organization and the Food
and Agriculture Organization of the United Nations. All three organizations have
adopted significant policies or programs to combat illegal logging and the trade in
illegally harvested timber, as well as to strengthen forest-related law enforcement
and governance. In 2007, the UN Forum on Forests and the UN General Assembly
adopted a broad new Forest Instrument which provides a global framework
for national action and international cooperation related to forests, including
commitments to address deforestation and fight illicit trafficking in forest
products. The "Non-Legally Binding Instrument on All Types of Forests" also
enshrines good governance as a principal of domestic and global policies and
programs, and as a critical component of sustainable forest management.
3.5 Lessons Learned
Some important lessons may be drawn from the efforts described above. While
it is helpful to bring high level leaders together to build political will to improve
environmental law enforcement, declarations, agreements, and even coalitions
and partnerships are not sufficient without robust on-the-ground cooperation
that addresses capacity needs in a comprehensive manner. Clearly, our greatest
chance of success in engendering effective environmental law enforcement in
partner nations in the developing world appears when diplomatic initiatives, such
as negotiated agreements or resolutions, or partnership efforts, are backed up by
sustained support and funding.
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In the United States, this implies the need for recognition of the centrality of
promoting effective environmental law enforcement that transcends the divisions
of domestic politics, and enjoys the support of both executive and legislative
branches of government. The bipartisan commitment of the U.S. Congress
and Administration in supporting environmental capacity building in the
Central America - Dominican Republic Free Trade Agreement region through
2009 provides us the greatest hope of building lasting capacity for effective
environmental law enforcement in a neighboring region whose environmental
performance may directly affect the United States, and in which the United States
has a clear direct interest in promoting sustainable development, rule of law,
and a level playing field for free trade. Yet, it is clear that the effort will need to
be sustained beyond the commitment of the current U.S. Administration and
Congress to ensure lasting success in the region.
Environmental authorities can no longer act alone in advocating for increased
attention to environmental law enforcement capacity-building. Increasingly,
effective responses to environmental crime require the engagement of more
traditional law enforcement and customs authorities. The U.N. Crime Commission
resolution on illegal logging is an important step in this direction. Our efforts
should not stop with illegal logging, but should rather engage the broader law
enforcement community on the broad range of environmental crimes that provide
a growing attractive nuisance to organized criminal activity.
More broadly, in the United States as in other countries, our ability to marshal
commitment and resources for promoting effective environmental law enforcement
in the developing world depends on the ability to articulate why improved rule of
law in the environmental and natural resources sector must be a central part of our
foreign policy and development strategy. Building awareness that environmental
laws and their effective enforcement are a key part of the governance structure of
a country hoping to engender democracy and rule of law, economic growth, and
individual opportunity needs to remain a central focus of those advocating for
international support for sustainable development.
Our work in Free Trade Agreement partner countries other than Central America
- Dominican Republic Free Trade Agreement provides an important corollary
observation: while sustained funding has not been available to support our
cooperation work with Chile or Jordan, for example, we have been able to
produce important results with scant resources in partnership with countries
that have strong economies, a strong internal drive for improved environmental
performance, and the potential to lead by example in their respective regions.
Under these conditions, while sustained funding commitment is badly needed,
through creative leveraging we can produce a lot with a minimal amount of
resources. Even more so, our work to restore forest sector governance in Liberia
proves the power of leveraging somewhat more significant U.S. resources with
those of other international donors.
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The long-term success of political will-building initiatives, such as the Coalition
Against Wildlife Trafficking or our illegal logging MOUs with China and
Indonesia, will depend on our ability, and that of our partners, not only to attract
support of high level officials, but also to build capacity and cooperation on the
ground among environmental, law enforcement and customs officials, as well
as local communities, NGOs, consumers, and others with a stake in improved
environmental law enforcement.
3.5.1 The Enforcement Continuum
Enforcement requires a continuum of skills, disciplines and processes, and an
environmental enforcement program is only as effective as the weakest stage in
this continuum.18 Good laws are not likely to be followed, for example, if those
charged with monitoring their compliance do not know what to look for. Strong
detection capabilities are useless if prosecutors cannot preserve the evidence
and bring the case to court, or if judges do not understand the law and the basic
principles of fashioning remedies or meting out sentences to establish an effective
deterrence. Sustained capacity-building efforts are needed at every step of the
enforcement process: drafting of enforceable laws and regulations, promoting
compliance, compliance monitoring and detection, legal prosecutions and other
enforcement responses, and the adjudication of environmental enforcement
cases. Special attention is needed to the unique challenge of measuring the results
of these efforts and feeding experiences back into improving the enforceability
of laws as well as the allocation of enforcement resources to an effective but fair
deterrent impact.
Interagency and international cooperation are critical. All too often, environmental
crime involves conduct in one country with impacts or evidence in another
country. Often, bringing law enforcement and environmental experts from
different involved agencies and countries together can produce a multiplier effect,
enhancing investigations and prosecutions in all the involved jurisdictions, and
leading to the discovery of evidence and broader criminal schemes that no one
government entity acting alone is likely to detect. Moreover, even when violations
of the law do not involve transboundary aspects, the sharing of experiences
through networks and partnerships such as INECE and CAWT, and the regional
sub-networks they are promoting, is invaluable. Countries and agencies can learn
much from each other in their efforts to break down the barriers of specialization,
and overcome the advantages that lawless actors enjoy in the face of weak
deterrence and inadequate coordination among law enforcement and technical
experts.
While breaking down stovepipes between environmental and law enforcement
agencies and between countries, however, we must also strive to break down the
stovepipes that separate green, brown and blue issues within the environmental
enforcement and compliance community. Building capacity, will and resources to
ensure effective enforcement of environmental laws, whether on land or sea and
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whether to control pollution or conserve natural resources, presents common
challenges that can best be met through common purpose and effort.
4 CONCLUSION
We have seen a growing interest world-wide in collaboration to improve
enforcement of environmental and natural resource laws. But sustained efforts
are needed. High-level political commitment and adequate resources are needed
in all countries to ensure the effective enforcement of environmental and natural
resource laws. On the one hand, greater awareness is needed of the relationships
between environmental law, compliance and sustainable development; on the
other hand, the same is needed of the relationship between environmental crime
and other criminal behavior. In particular, those involved in implementing
environmental enforcement efforts must work to build understanding among
traditional law enforcement entities as well as diplomatic and foreign assistance
decision-makers of the importance of effectively enforcing environmental laws.
5 REFERENCES
1 The views expressed in this article are those of the author in his personal capacity,
and do not necessarily reflect the policy or views of the United States Department
of State or the United States Government.
2 See Friedman, T, The World is Flat: A Brief History of the Twenty-First Century,
2005. See also Friednman, T, The Lexus and the Olive Tree: Understanding
Globalization, 2000.
3 For a rich discussion of this problem, see Nairn, M, Illicit: How Smugglers,
Traffickers and Copycats are Hijacking the Global Economy, 2005. For example:
Since the early 1990's, global illicit trade has embarked on a great mutation. It is the
same mutation as that of international terrorist organizations like al-Qaeda or Islamic
Jihad - or for that matter, of activists for the global good like the environmental
movement or the World Social Forum. All have moved away from fixed hierarchies
and toward decentralized networks; away from controlling leaders and toward
multiple, loosely linked, dispersed agents and cells; away from rigid lines of control
and exchange and toward constantly shifting transactions as opportunities dictate. It
is a mutation that governments in the 1990s barely recognized and could not, in any
case, hope to emulate.
4 Id., at p. 7.
5 International Crime Threat Assessment, pp. 28-31, 2000 (prepared by a U.S.
Government inter agency working group).
6 While there has been little systematic effort to compile and evaluate these
anecdotes, the Royal Institute of International Affairs cited several linkage
anecdotes in its important analysis of the actors and drivers behind environmental
crime. Hayman, G. and Brack, D., International Environmental Crime: the Nature
and Control of Environmental Black Markets; The Royal Institute of International
Affairs, 2002.
A WWF-UK study noted that the evidence of organized crime involvement in
wildlife trafficking is particularly strong where drug production and distribution
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states coincide with major wildlife range states. Cook, D, Roberts, M and Lowther,
J, The International Wildlife Trade and Organized Crime, June 2002, at 14, 23. The
same study reported that 50% of those prosecuted for wildlife crime in northeast
England over a one year period had previous convictions for drugs, burglary,
assault, criminal damage and firearms offenses. Id., at 24.
Similarly the chief enforcement officer of the Convention on Trade in International
Species (CITES) analyzes indicators of organized crime involvement in: Sellars,
John, International Illicit Trafficking in Wildlife, The Police Chief, June 2007.
7 Cook, D, Roberts, M and Lowther, J, The International Wildlife Trade and
Organized Crime, June 2002, at 14, 17. The authors note: "The routes used by
wildlife smugglers are often complex, making it difficult for the authorities to track
and intercept shipments. Routes are also selected to take advantage of particular
weaknesses and loopholes in the international trade control regime, either by
using intermediate countries where controls are weakly enforced or not enacted at
all, or by crossing borders where controls have been relaxed ...." Id., at 17.
8 For example, according to one source, $100 to $400 might be paid to a hunter for
rhinoceros horns that will ultimately fetch up to $38,000 at the final destination
point. Havocscope Global Black Market Indexes, www.havocscope.come/
trafficking/wildlife.htm. According to another study, a South American poacher
may get $7.50 for a caiman skin that is later sold for as much as $200 on the black
market. An African parrot wholesaled for $18 may retrieve $700 downstream in
the black market. A golden lion tamarin which costs $190 in the country of origin
in South America may fetch upwards of $20,000 on the European black market.
Mastny L., and French, H., Crimes of a Global Nature, World Watch Magazine,
September/October 2002.
As one study notes, as a species becomes scarcer, its value on the black market
often increases. Cook, D, Roberts, M and Lowther, J, The International Wildlife
Trade and Organized Crime, June 2002, at 10.
9 Interpol Pollution Crime Working Group, Assessing the Links Between
Organized Crime and Pollution Crime, June 2006.
10 Businessmen Convicted in Scheme to Evade $1.9 Million in Taxes on Sales of
Ozone-Depleting Chemicals, U.S. Department of Justice Press Release, August 4,
2005; Ozone-Depleting Chemical Sold to U.S. Meth Labs, INECE Newsletter Fall
2005 (http://www.inece.Org/newsletter/l 1/enforcement.html)
11 See Nations, J., The Maya Forest, People, Parks and Ancient Cities, 2006.
12 See Soreide, T., Forest Concessions and Corruption, Anti-corruption Resource
Centre, CHR Michelsen Institute, 2007: "Corruption is directly linked to illegal and
unsustainable logging, a problem that causes significant environmental damage in
terms of erosion and reduced water quality, loss of biodiversity and challenges for
communities that are settled in natural forests."
13 The Guardian, Poaching for Bin Laden, May 5, 2007 (www.guardian.co.uk/
alqaida/story/0,,2073168,00.html).
14 Plan of Implementation of the World Summit on Sustainable Development, 2002,
especially the following paragraphs:
4. Good governance within each country and at the international level is essential
for sustainable development. At the domestic level, sound environmental,
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social and economic policies, democratic institutions responsive to the needs
of the people, the rule of law, anti-corruption measures, gender equality
and an enabling environment for investment are the basis for sustainable
development....
162. Each country has the primary responsibility for its own sustainable
development.... All countries should promote sustainable development at the
national level by, inter alia, enacting and enforcing clear and effective laws that
support sustainable development.
See also, par. 138.
15 In 2006, U.S. Secretary of State Condoleezza Rice articulated a new policy of
"Transformational Diplomacy". By combining the tools of diplomacy and foreign
assistance, the United States would play a transformational role in promoting the
capacity of countries to develop democratic institutions, to prosper economically,
to foster individual opportunity, and to act responsibly in the international system.
Rice, C, U.S. Secretary of State, Transformational Diplomacy (Speech at
Georgetown University), Washington, DC, January 18, 2006. Secretary Rice stated:
I would define the objective of transformational diplomacy this way: To work with
our many partners around the world to build and sustain democratic, well-governed
states that will respond to the needs of their people -- and conduct themselves
responsibly in the international system...Transformational diplomacy is rooted in
partnership, not paternalism — in doing things with other people, not for them. We
seek to use America's diplomatic power to help foreign citizens to better their own
lives, and to build their own nations, and to transform their own futures....
16 Public Law 101-162 (Sec. 609).
17 The United States provided financial support for regional Green Customs
workshops in East Africa in April, 2008, and in Southeast Asia in 2007. The author
served as a resource person in UNEP and World Customs Organization sponsored
Green Customs workshops in Shanghai in March, 2007, and in Bhutan in October,
2005. The United States Environmental Protection Agency has developed a green
customs training module, which incorporates practical exercises, and which is
posted on INECE's website.
18 See Akella, A. and Cannon, J., Strengthening the Weakest Links: Strategies for
Improving the Enforcement of Environmental Laws Globally (Conservation
International Center for Conservation and Government, 2004.
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Thomas, Limanon, Simachaya & Nepomuceno 527
ENVIRONMENTAL COMPLIANCE ASSISTANCE CENTERS DELIVER
TARGETED HELP TO THE REGULATED COMMUNITY
THOMAS, DEBORAH1, LIMANON, WATCHAREE2, SIMACHAYA, WIJARN3and
NEPOMUCENO, DOLORA4
1 Compliance Assistance Policy and Integration Branch Chief, U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue N.W., Washington, D.C. 20460,
U.S.A. thomas.deborah@epa.gov
2 Environmental Attorney, Asian Environmental Compliance and Enforcement
Network, 161/1 Soi Mahadlek Luang 3, Rajdamri Road, Patumwan, Bangkok
10330 Thailand wlimanon@eco-asia.org
3 Director, Environment Quality and Laboratory Division, Pollution Control
Department, 92 Soi Phahon Yothin 7, Phahon Yothin Road, Sam Sen Nai,
Phayathai District, Bangkok 10400, Thailand wijarn.s@pcd.go.th
4 Assistant General Manager, Laguna Lake Development Authority, Rizal
Provincial Capitol Compound, Shaw Blvd., Pasig City, Philippines
dnnepomuceno@llda.gov.ph
SUMMARY
The United States Environmental Protection Agency (EPA) has established
unique partnerships with external, non-profit organizations to create Compliance
Assistance Centers (Centers) over the past twelve years. These Centers provide
user-friendly access to comprehensive, easy-to-understand environmental
compliance information packaged to fit the specific needs of regulated businesses
in several industry sectors, particularly those with a large number of small and
medium-sized entities. The Centers have been very successful and demonstrate
several "best practices," including the: (1) effective use of partnerships to develop
and disseminate assistance to a target audience; (2) integration of compliance,
pollution prevention, and industry sector-specific content; (3) efficient use of
Agency resources; and (4) measurement of results.
With assistance from the Asian Environmental Compliance and Enforcement
Network, environmental agencies in the Philippines and Thailand are establishing
Centers based on U.S. best practices. EPA has worked closely with its Asian
counterparts to share U.S. experience and provide feedback on proposed strategies
and models. As in the U.S., the Asian pilot Centers target small and medium-sized
entities and employ a stakeholder-driven approach to identify target sectors,
and define center needs, capabilities and tools. This article describes the model
established for Centers in the U.S. and how that model has been adapted to
meet the needs of environmental agencies and businesses in the Philippines and
Thailand.
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1 INTRODUCTION
There are several tools available to environmental agencies to address
environmental problems, including compliance assistance, incentives, monitoring,
and enforcement. EPA's experience has been that environmental results are
optimized when all the tools are used strategically to change the behavior of
regulated entities. EPA has also learned that environmental compliance requires
that regulated entities know and understand all the environmental requirements
that apply to their operations. Based on this principle, EPA has established
effective models, and is sharing this experience in Asia.
2 THE U.S. MODEL FOR COMPLIANCE ASSISTANCE CENTERS
In the United States, getting compliance assistance information to those who need
it is challenging. Many small and mid-sized businesses are not routinely inspected
which creates a lack of information regarding what regulatory requirements may
not be well understood. The organizational structure of EPA offices also creates
problems in delivering compliance assistance.
Most assistance materials created by regulatory agencies are specific to a particular
regulation or media program (e.g., air, water, waste), instead of identifying how the
requirements affect different industry sectors and placing any new requirements
in context with other environmental requirements. Delivering assistance in this
way does not meet the needs of most businesses. Businesses are only concerned
with the environmental requirements that apply to their specific sector operations.
Building trust and acceptance with the regulated community is also a difficult
task for a regulating agency. Businesses, local governments, and federal agencies
may be hesitant to draw attention to their operations by seeking assistance
from agencies that regulate those same operations and are empowered to take
enforcement actions. EPA recognized that regulated entities are often more
accepting of compliance assistance delivered by their peers. The Centers were
established to address these issues and to provide an efficient delivery mechanism
for ongoing, up-to-date assistance. With a few exceptions, they are a peer-based
network that can directly communicate compliance assistance information to
regulated entities. It is EPA's Center partners - including industry associations,
universities, environmental groups, and other non-profit organizations - that
provide information in language that relate directly to the specific operations of
each sector.
2.1 Center Audiences
Most of the Centers are targeted to specific sectors and are able to reach a large
number of businesses (as well as local and tribal governments and federal
facilities). One of the key considerations in identifying candidates for Center
support is the number of small and medium-sized entities in the sector. Small
and medium-sized entities are often significant contributors to the total pollution
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Thomas, Limanon, Simachaya & Nepomuceno 529
load, but are less likely to be the focus of permitting, inspection or enforcement
efforts. EPA understands that smaller entities are usually not as well equipped
as large companies to comply with environmental laws; consequently, they have
been a primary audience for much of EPA's compliance assistance. In addition
to the regulated community, Centers have proven to be valuable resources for
compliance assistance providers and regulators.
Use of the Centers by their target audiences has grown each year, demonstrating
the effectiveness of this third-party assistance delivery best practice. Since 1998,
the Centers have experienced over nine million user visits; nearly two million of
those visits occurred in 2007.
2.2 Center Features
Over time, the Centers have evolved to better serve their audience. When the
Center concept was first developed over twelve years ago, the decision was made
to create web-based resources since the Internet was an emerging communication
vehicle, even for small businesses. Initially, the Centers only had a few features,
mainly providing links to applicable documents and resources and identifying
regulatory and assistance contacts. Today, the Centers are using sophisticated
web casting, on-line training, list serves, electronic newsletters, streaming videos
and more to provide timely and comprehensive environmental compliance
information. Additionally, virtual plant tours have been popular among Center
users. With an easy point-and-click of the mouse, Center users can readily
identify environmental regulations, pollution prevention opportunities and best
management practices associated with specific facility activities. The Centers
also offer information on enforcement actions in the specific sectors, emissions
calculators, discussion groups, and on-line 'Ask the Expert" services.
In Fiscal Year 2007, the Centers published over 224 newsletters reaching
over 17,000 subscribers. Subscribers received the latest on new regulations,
federal policy updates, information on upcoming conferences/events, funding
opportunities and more. Difficult compliance questions were answered, problems
resolved, publications ordered and comments/suggestions were submitted through
the Centers listserv functions. This year alone, the Centers received and responded
to over 3,000 inquiries.
2.3 Center Selection and Management
EPA has established criteria for selecting sectors candidates for Center support.
In addition to the prevalence of small businesses already mentioned, the criteria
include: impacts on health and the environment; prevalence of the problem
nationally; patterns of noncompliance; impacts of new environmental regulations;
subject to multiple environmental statutes/regulations; lack of comprehensive
compliance assistance program; and determination that compliance assistance
is an appropriate tool to address the problem. Once these threshold criteria have
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530 Eighth International Conference on Environmental Compliance and Enforcement 2008
been met, an additional criterion is applied: willingness of a sector or third-party
organization to partner with EPA in developing the Center.
Once a sector has been selected, EPA solicits, through a competitive process,
proposals to develop and operate that Center. EPA then selects the best qualified
organization(s) amongst those submitting proposals and provides funding
through a multi-year cooperative agreement. This third-party run Center model is
the primary model used in the U.S. However, three Centers are exceptions to this
model - the Centers for agriculture, federal facilities, and tribes. These Centers are
EPA owned and operated. In the case of federal facilities and tribes, EPA is already
a peer governmental organization and thus well-positioned to provide compliance
assistance.
The sectors currently served by Centers include agriculture, auto repair, auto
recycling, chemical, health care, education, printing, transportation, metal
finishing, paints and coatings, printed wiring board, and construction industries,
as well as federal facilities, tribes, local governments and compliance issues along
the US, Mexican and Canadian borders.1 A Center addressing the food processing
sector is scheduled to be launched by next year.
3 BEST PRACTICES
3.1 Using Partnerships
Developing effective partnerships is critical to the success of the Centers. Industry
support as well as input from other affected stakeholders must occur prior to
Center development and be maintained once the Center is operational. EPA seeks
stakeholder feedback in the Center candidate evaluation process through several
mechanisms. To ensure broad stakeholder input, national Federal Register notices
are published requesting suggestions on candidates for Center development.
Once a candidate sector has been identified, EPA has had particular success
convening meetings with representatives from that sector, academia, governmental
partners and other parties that routinely interact with the sector. The meetings
usually focus on the sector's compliance needs, identification of existing and
planned compliance assistance activities, obstacles to compliance and what
information or materials are needed to address outstanding compliance needs.
This process fosters improved communication and helps inform decisions about
what needs to be included on the Center. Center partners also routinely share
experiences with each other regarding the effectiveness and delivery of the
services they provide.
3.2 Integration of Content
Bundling of compliance assistance information with related information is another
best practice. By integrating pollution prevention, compliance assistance, technical,
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Thomas, Limanon, Simachaya & Nepomuceno 531
incentive and other information, the Centers provide easy access to resources and
programs that help regulated entities understand their regulatory requirements
and improve their operations. In one place, a business can readily find the
information they need to identify their environmental regulatory obligations,
implement pollution prevention to save money, locate vendor information, stay
current with industry-specific news and events, contact experts to have their
questions answered, and much more. Beginning in 2008, information on recent
enforcement actions in the sector and the nature of the violations will be added to
one or more of the Centers.
3.3 Efficient Use of Resources
Over the years, the Center program has expanded to include 17 Centers even as
funding has been reduced 29 percent from 1999 to 2007. In other words, in 2007,
EPA supported six additional centers and provided start-up funds for two more
with fewer funds than it had in 1997. Over this same time period, the average
annual cost for maintaining each Center has been reduced by 60 percent per
year. EPA has done this by routinely looking for and building efficiencies into
the development and maintenance of its newer Centers. Continual strategic use
of available resources ensures that the Centers can successfully meet the needs
of the regulated community. Two Center funding strategies developed by EPA
have: 1) created efficiencies in Center maintenance and content development; 2)
encouraged Centers to explore alternative revenue sources and reduce reliance on
Federal funding; and 3) based Centers funding on performance. The goal of having
Centers become self-sufficient over time through revenue-generating projects has
proven to be elusive. Currently, only one Center is completely self-sufficient.
3.4 Measuring Results
Although the direct beneficiaries of the Centers are those who seek answers to
their own compliance questions, the assistance provided by the Centers has also
benefited the public and the environment. In 2007,83 percent of the regulated entity
respondents to the annual survey reported that assistance from Centers increased
their understanding of environmental requirements; 81 percent reported they
improved their environmental management practices; and 53 percent reported they
reduced pollution at their facilities.2 While the number of annual survey respondents
is small and not representative of the sectors as a whole, they do suggest that
Center users improved their environmental performance, decreased the risk of
costly violations, and ensured a cleaner, safer environment for themselves and their
neighbors. It would be impossible to assess whether there is any value to the Center
model without establishing a method of measuring results.
4 ADAPTING THE U.S. CENTERS MODEL IN ASIA
Asia is the most economically dynamic region in the world, yet it is home to two
thirds of the world's poor. While Asia's economic progress has raised 270 million
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532 Eighth International Conference on Environmental Compliance and Enforcement 2008
people out of poverty, it has triggered a decline in natural capital - shrinking
forests, declining biodiversity, disappearing water sources, and barren lands.
Exploitation of natural resources, industrial production, and urbanization continue
to pose serious environmental challenges.
In response, Asian countries have developed an array of environmental laws and
judicial decisions that seek to implement international principles. Enforcement of
the resulting legal requirements, however, remains weak and uneven, due in part
to limitations in financial resources and in human and institutional capacity. To
overcome these limitations, many Asian governments have introduced innovative
mandatory and voluntary approaches that leverage market and community forces,
and are less resource-intensive than traditional command-and-control regulatory
approaches. These innovative approaches also promote voluntary compliance by
educating and assisting the regulated community, and providing opportunities to
publicize good corporate citizenship.
To share experience related to these efforts, Asian governments and donor partners
established the Asian Environmental Compliance and Enforcement Network
as a platform for promoting improved compliance with environmental legal
requirements through the demonstration and regional exchange of innovative
policies and practices (www.aecen.org). Asian Environmental Compliance and
Enforcement Network Members include national or sub-national environmental
agencies in Asia responsible for identifying, monitoring, and correcting non-
compliance with environmental laws and other requirements. The United States
Agency for International Development provides principal funding assistance
to Asian Environmental Compliance and Enforcement Network, while EPA
offers technical assistance to Asian Environmental Compliance and Enforcement
Network Members.
4.1 Establishing Compliance Assistance Centers in Asia
Asian Environmental Compliance and Enforcement Network works with member
agencies to develop pilot projects that demonstrate best practices for replication
throughout Asia. Based on regional priorities, Asian Environmental Compliance
and Enforcement Network is working with member agencies in the Philippines
and Thailand to establish Centers based on U.S. best practices. The objectives of
the pilot projects are to:
• Employ a stakeholder-driven approach to identify target sectors, and define
Center needs, capabilities and tools
• Identify the most efficient and cost effective approach for managing and
sustaining centers;
• Establish and pilot centers for target sectors;
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Thomas, Limanon, Simachaya & Nepomuceno 533
• Develop a monitoring and evaluation system to measure the outcomes; and
• Promote national replication to other sectors, and regional replication to other
countries.
Based on a series of consultation meetings, observational programs and targeted
technical assistance, Asian Environmental Compliance and Enforcement Network
members in the Philippines and Thailand have established Centers that provide a
basis for national and regional replication.
4.2 Thailand: Centers for the Swine Industry
Due to limitations in enforcement authority, Thailand's Pollution Control
Department has been exploring strategies for promoting environmental
compliance through compliance assistance centers. As with EPA, Pollution Control
Department is targeting sectors that are composed principally of small and
medium-sized entities. Through national consultation meetings, Pollution Control
Department decided to target the swine sector for its first Center, and has targeted
Nakornpathom Province in the Tha Chin River basin and the Chachoengsao
Province in the Bang Pakong River basin. Both rivers are among the most polluted
in Thailand due to agricultural, domestic and industrial pollution.
Based on subsequent consultations with pig farmers and other local stakeholders,
in 2008 Pollution Control Department will establish two centers that will provide
compliance information, technology support and training. Pollution Control
Department will take initial responsibility for operating the centers, but will
transition to local non-profit organizations, such as universities or associations,
to manage the centers. At present, Pollution Control Department has developed a
web-based assistance program, informational and outreach materials, and a "train-
the-trainer" program.
In establishing the centers, Pollution Control Department also shared experience
with the Council of Agriculture of Taiwan, and the Swine Association of Taiwan
to share lessons learned on compliance assistance programs and activities for the
swine sector. By 2012 Pollution Control Department also plans to establish centers
in Chapraya River basin, Songkhla Lake, Lamtakong River basin and the Ping
River basin.
4.3 Philippines: Compliance Assistance Centers for the Swine Industry
Laguna de Bay is the second largest inland freshwater lake in Southeast Asia
located on southern Luzon Island in the Philippines, and home to over 10 million
Filipinos or 13 percent of the country's population. The Laguna Lake Development
Authority is responsible for managing Laguna de Bay and its watershed in
coordination with over 30 environmental, natural resources, and water-related
agencies/offices, as well as 66 local governments.
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534 Eighth International Conference on Environmental Compliance and Enforcement 2008
Despite an effective wastewater discharge fee program managed by Laguna
Lake Development Authority, the Laguna de Bay watershed faces serious
water pollution challenges due in large part to industrial pollution from
small and medium-sized entities. In 2006, for example, less than half of the
67 slaughterhouses complied with the permitting requirements and effluent
standards. Similarly, in the commercial hog sector, only 26 percent of the piggeries
(53 out of 201) complied with permitting requirements and effluent standards.
Through a partnership with Asian Environmental Compliance and Enforcement
Network and EPA, Laguna Lake Development Authority convened stakeholder
consultations and has developed a model for "virtually-based" compliance
assistance centers that provide commercial hog farms and slaughterhouse
industries with updated information on environmental requirements, best
practices, technology options, and funding opportunities. Based on a survey of
existing models of compliance assistance, Laguna Lake Development Authority
and Asian Environmental Compliance and Enforcement Network formulated
a pilot framework and action plan to establish both centers, including a manual
of operations for the centers to guide day-to-day operations and to clarify
coordination among concerned agencies and institutions. Through this process,
Laguna Lake Development Authority entered into partnerships with the local
federation of hog farmers for the swine sector, and the Department of Agriculture-
National Meat Inspection Service for the slaughterhouses.
In 2007, Laguna Lake Development Authority and the NMIS piloted the
slaughterhouse compliance assistance website (www.slaughterhousecac-phil.org),
followed by an orientation workshop for regulators in March 2008 to assist hog
farm and slaughterhouse owners and operators comply with the Laguna Lake
Development Authority effluent standards. Initially, both centers will remain
"virtual," with support from Laguna Lake Development Authority. Based on the
response of these initial web platforms, Laguna Lake Development Authority is
working to establish physical compliance assistance centers, most likely located in
Rizal province.
4 CONCLUSIONS
Compliance assistance centers have proven an effective means for promoting
effective compliance and enforcement, especially in addressing pollution from
small and medium-sized entities. Experience in the U.S. and Asia demonstrates
that engaging stakeholders in defining target sectors, industry needs and center
operational requirements leads to the successful development of effective centers
that both meet user needs and optimize agency resources. Partnerships with third-
party operators has also proven a successful strategy for delivering compliance
assistance.
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Thomas, Limanon, Simachaya & Nepomuceno 535
5 REFERENCES
1 Access to each Center site, Compliance Assistance Center Homepage available at
http://www.assistancecenters.net
2 Back, T., FY 2007 Centers' Survey and Webtrend Results, 2007
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3. APPENDIX
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539
LIST OF PARTICIPANTS
Professor Rudi van Aarde
Director
Conservation Ecology Research Unit
Department of Zoology & Entomology
University of Pretoria
South Africa
Tel: +27-12-420-2753
Email: rjvaarde@zoology.up.ac.za
Ms. Christine Echookit Akello
Senior Legal Counsel
National Environment Management Authority
Uganda
Tel: +256-772-59-5252 or +256-414-25-1064/5/8
Email: cakelloS>nemaug.org
Ms. Farah Abrahams
Acting Deputy Director
Environmental Enforcement
Department of Environmental Affairs &
Development Planning
South Africa
Tel: +27-21-483-8779
Email: faabraha@pgwc.gov.za
Mr. Robin Adams
Operations Manager
Table Mountain National Park
SANParks
South Africa
Tel: +27-786-5656
Email: robinaS'sanparks.org
Mr. Abdirizak Dahir Ahmed
Kenya Wildlife Service
Kenya
Mr. Gustavo Alanis-Ortega
President
Mexican Environmental Law Center
Mexico
Tel: +52-555-286-3323
Email: galanisS'cemda.org.mx
Ms. Nawzat Ali
Legal Adviser to the Minister of Environment in
Jordan
Ministry of Environment
Jordan
Tel: +962-777-939-506
Email: nawzatS'hotmail.com
Mr. Jonathan A. Allotey
Executive Director
Environmental Protection Agency
Ghana
Tel: +233-21-662-693
Email: jalloteyS'epaghana.org
Dr. Henry Aryamanya-Mugisha
Executive Director
National Environment Management Authority
Uganda
Email: haryamanya@>nemaug.org
Mr. Dragan Asanovic
Senior Adviser
Ministry of Tourism and Environmental
Protection
Serbia
Tel: +382-81-482-176
Email: asanovicdS'mn.yu
Mr. Vilis Avotins
State Environmental Service
Latvia
Tel: +371-67-084-200
Email: vilis.avotinsS'vvd.gov.lv
Dr. Robert Bernard Baert
Inspector-General
Environmental Inspectorate Division
Flemish Government
Belgium
Tel: +32-2-5338183
Email: robert.baertS'lne.vlaanderen.be
Mr. Pradeep Bakshi
Secretary General
Asia-Pacific Jurist Association
India
Tel: +91-11-2433-0496/+91-11-2433-07096
Email: pbakshiS'apjalaw.com
Mr. Sonnyboy Bapela
Chief Director
Regulatory Services
Department of Environmental Affairs & Tourism
South Africa
Tel: +27-12-310-3098
Email: SBapelaS'deat.gov.za
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540 Eighth International Conference on Environmental Compliance and Enforcement 2008
Eng. Bonaventure Baya
Director General
National Environment Management Council
Tanzania
Tel: +255-22-213-4603
Email: nemctz@yahoo.com
Mr. Jason Bell
Country Director
Southern Africa Region
International Fund for Animal Welfare (IFAW)
South Africa
Tel: +27-21-424-2086
Email: jbell@ifaw.org
Mr. Izhak Ben David
Senior Deputy Director
Law Enforcement
Ministry of Environmental Protection
Israel
Tel: +972-2-655-3820/22
Email: izhakS'sviva.gov.il
Mr. Mohamed Ben Hassine
Engineer
Controle des eaux
Ministry of Environment
Tunisia
Tel: +216-71-23-6480
Email: bhassinegr@>yahoo.fr
Dr. (Mrs.) Ngeri Benebo
Director General
National Environmental Standards and
Regulations Enforcement Agency (NESREA)
Nigeria
Tel: +234-9-803-309-0864
Email: dgS'nesrea.org
Dr. Gustaaf A. Biezeveld
Functioneel Parket
Netherlands
Tel: +31-70-302-3209
Email: g.a.biezeveldS'om.nl
Hon. Susan Biro
Chief Judge
Office of Administrative Law Judges
U.S. Environmental Protection Agency
United States
Tel: +1-202-564-6267
Email: biro.susanS'epa.gov
Mr. Werner Johannes Boing
Department of Tourism, Environmental, and
Economic Affairs
South Africa
Tel: +27-51-400-9535
Email: boingS'dteea.fs.gov.za
Mrs. Manon Bombardier
Deputy Director
Environmental Enforcement Division
Environment Canada
Canada
Tel: +1-819-953-1741
Email: manon.bombardierS'ec.gc.ca
Mrs. Marta Bonif ert Szigeti
Executive Director
The Regional Environmental Center
Hungary
Tel: +36-26-504-023
Email: ahalaszS'rec.org
Ms. Magdel Boshoff Pieterse
Biodiversity and Conservation
Department of Environmental Affairs & Tourism
South Africa
Tel: +27-12-310-3534
Email: mboshoffS'deat.gov.za
Ms. Nikki Brajevich
Environment, Science and Technology Officer
Embassy of the United States of America
South Africa
Tel: +27-12-431-4345
Email: NikymbS'yahoo.com
Ms. Aarti Brijlall
Deputy Director: Administrative Enforcement
Directorate: Enforcement
Department of Environmental Affairs & Tourism
South Africa
Tel: +27-12-310-3420
Email: abrijlallS'deat.gov.za
Ms. Machteld Brokerhof
VROM-Inspectorate
Netherlands
Tel: +31-70-339-0616
Email: machteld.brokerhofS'minvrom.nl
Ms. Susan Bromm
Acting Director
Office of Federal Activities
U.S. Environmental Protection Agency
United States
Tel: +1-202-564-5400
Email: bromm.susanS'epa.gov
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Ms. Angela Bularga
France
Email: Angela.Bularga@oecd.org
Prof. Sedfrey Martinez Candelaria
Head
Research, Publications and Linkages Office
Philippine Judicial Academy
Philippines
Tel: +63-2-552-9523
Email: scandelaria@aps.ateneo.edu.ph
Mr. Alberto Santos Capra
Hazardous Waste
Ministry of Environment and Sustainable
Development
Argentina
Tel: +11-4348-8210
Email: acapraS'ambiente.gov.ar
Mr. Richard Charette
National Director
Enforcement Branch
Environment Canada
Canada
Tel: +1-819-953-4811
Email: richard.charetteS'ec.gc.ca
Mrs. Minky Chauke
Deputy Director
Compliance and Enforcement Gauteng
Department of Agriculture, Conservation and
Environment
South Africa
Tel: +27-11-355-1267
Email: minky.chaukeS'gauteng.gov.za
Mr. Quid Jiddou Cheikh
Point Focal NECEMA en Mauritanie
Ministere Environnement
Mauritania
Tel: +222-630-1861/+222-230-1861
Email: c.jiddouS'environnement.gov.mr
Mr. Bill Clark
Nature & Parks Authority
Israel
Tel: +972-2-566-5214
Email: clarkbS'netvision.net.il
Mr. Troy Collings
Australian Environmental Law Enforcement &
Regulators Network
Department of Natural Resources & Water
Australia
Tel: +617-3224-4842
Email: troy.collings@>nrw.qld.gov.au
Ms. Maria Comino
Manager Legislation and Implementation
Department of Water and Energy
Australia
Tel: +61-2-9569-2824
Email: Maria.CominoS'gmail.com
Dr. Rene Craemer
Netherlands
Tel: +31-70-3023209
Email: P.J.M.Roelg'om.nl
Mrs. Frances Craigie
Director: Strategic Compliance and Enforcement
Gauteng Department of Agriculture,
Conservation and Environment
South Africa
Tel: +27-11-355-1616
Email: Frances.CraigieS'gauteng.gov.za
Mr. John Cruden
Deputy Assistant Attorney General
Environment and Natural Resources Division
Department of Justice
United States
Tel: +1-202-514-2718
Email: john.crudenS'usdoj.gov
Mr. Hans Demmers
Chief International Affairs
Flevoland Police
Netherlands
Tel: +31-320-277-711
Email: hans.demmersS'flevoland.politie.nl
Mr. Mohamed Rida Derder
INECE Secretariat
United States
Email: ridaderderS'msn.com
Mr. Zoran Dimovski
State Environmental Inspector
State Environmental Inspectorate
Ministry of Environment and Physical Planning
Macedonia
Tel: +389-23-066-930
Email: zdimovski61@>mt.net.mk
Mr. Mihail Dimovski
Senior Project Manager
Environmental Policy
The Regional Environmental Center for Central
and Eastern Europe
Hungary
Tel: +36-26-504052
Email: mdimovskiS'rec.org
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542 Eighth International Conference on Environmental Compliance and Enforcement 2008
Mr. Jan ten Doeschate
Province North-Brabant
Netherlands
Tel: +31-73-6812415
Email: rheesen@brabant.nl
Mr. Wayne Evans
KZN Wildlife
South Africa
Tel: +27-82-3216843
Email: evansw@kznwildlife.com
Mr. Jia Feng
Deputy Director
Center for Environmental Education &
Communications
State Environmental Protection Administration
China
Tel: +86-10-84646351
Email: jiafengS'ceec.cn
Ms. Melissa Fourie
Director: Enforcement
Department of Environmental Affairs and
Tourism
South Africa
Tel: +27-72-306-8888
Email: mfourieS'fastmail.fm
Mr. Mike Frizzell
INECE Secretariat
United States
Email: frontman57@>sbcglobal.net
Mr. Ross Galbraith
A/ National Team Lead (Birds)
Environmental Enforcement
Environment Canada
Canada
tel: +1-506-364-7450
Email: Ross.GalbraithS'ec.gc.ca
Mr. Obopeng Tokgamo Gaoraelwe
Deputy Director
Environmental Compliance and Enforcement
Department of Tourism, Environment and
Conservation
South Africa
Tel: +27-53-807-4800
Email: ogaoraelweS'half.ncape.gov.za
Mr. Jo Gerardu
INECE Secretariat
Netherlands
Tel: +1-202-338-1300
Email: gerarduS'inece.org
Mr. Brendan Gillespie
Head of Division
Environment and Globalisation Division,
Environment Directorate
Organisation for Economic Development and
Co-operation
France
Tel: +33-145-249-302
Email: brendan.gillespieS'oecd.org
Mr. Jose Pablo Gonzalez Montero
Chief Environmental Prosecutor
Poder Judicial
Costa Rica
tel: +506-295-3401
Email: jpgonzalezS'poder-judicial.go.cr
Ms. Elisea Gozun
Consultant
Asian Environmental Compliance and
Enforcement Network
Philippines
Tel: +632-941-7233
Email: bggozunS'hotmail.com
Mr. Stephen Granger
Manager: Major Programmes and Projects
Environmental Resource Management
City of Cape Town
South Africa
Tel: +27-21-487-2236
Email: Stephen.grangerS'capetown.gov.za
Ms. Phyllis Harris
Vice President, Environmental Compliance
Wal-Mart Stores, Inc.
United States
Tel: +1-479-204-8117
Ms. Kim Hibbeln
National Director
Enforcement
Environment Canada
Canada
Tel: +1-819-997-4712
Email: kim.hibbelnS'ec.gc.ca
Mr. Robert G. Heiss
Director, International Compliance Assurance
Division
Office of Enforcement and Compliance Assurance
Environmental Protection Agency
United States
Tel: +1-202-564-4108
Email: heiss.robertS'epa.gov
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Mr. Jan van den Heuvel
DCMR Environmental Protection Agency
Netherlands
Tel: +31-102-468200
Email: jan.vandenheuvel@dcmr.nl
Mr. Markku Hietamaki
Environmental Counsellor
Environmental Protection Department
Ministry of Environment
Finland
Tel: +358-50-3616-392
Email: markku.hietamaki@ymparisto.fi
Mr. Tom Higdon
INECE Secretariat
United States
Tel: +1-202-338-1300
Email: higdon.thomasS'gmail.com
Mrs. Jenny van Houten
International Enforcement Cooperation
Ministry of Housing, Spatial Planning and the
Environment
Netherlands
Tel: +31-6-5259-5006
Email: jenny.vanhoutenS'minvrom.nl
Ms. Nancy Isarin
Ambiendura
Portugal
Tel: +351-91-3241900
Email: nancy.isarinS'ambiendura.com
Dr. Alejandro Iza
Director, Environmental Law Centre
Environmental Law Programme
IUCN
Germany
Tel: +49-228-269-2231
Email: jil.selfS'iucn.org
Mr. Mark Jardine
Deputy Director
Enforcement
Department of Environmental Affairs and
Tourism
South Africa
Tel: +27-012-310-3375
Email: mjardineS'deat.gov.za
Mr. Arwyn Jones
National Enforcement Manager
National Enforcement Service
Environment Agency of England and Wales
United Kingdom
Tel: +44-1925-542162
Email: arwyn46@>hotmail.com
Mr. Davis Jones
International Training Coordinator
Office of Enforcement and Compliance Assurance
International Compliance Assurance Division
Environmental Protection Agency
United States
Tel: +1-202-564-6035
Email: Jones.davisS'epa.gov
Mr. Samir Kaabi
Head Engineer
Pollution Control and Monitoring
Ministry of Environment
Tunisia
Tel: +216-717-50822
Email: dt.ctlS'anpe.nat.tn
Mr. Pirn Kapitein
MPM
Agriculture, Nature and Food Quality General
Inspection Service
Netherlands
Tel: +31-40-2563800
Email: p.kapiteinS'minlnv.nl
Dr. Diego Martin Kaplan
Attorney and Coordinator of Program
Undersecretary's Office of Environmental Control
and Prevention of Contamination
Ministry of Environment and Sustainable
Development
Argentina
Tel: +54-11-4348-8223
Email: dkaplanS'ambiente.gov.ar
Dr. Samuel Kasiki
Deputy Director
Biodiversity Research & Monitoring
Kenya Wildlife Service
Kenya
Tel: +254-020-600800
Email: skasikiS'kws.go.ke
Mrs. Xu Kezhu
Deputy Director
Center for Legal Assistance to Pollution Victims
China
Tel: +86-10-62210149
Email: xkezhuS'clapv.org
Dr. Julius Kipnge'tich
Director
Kenya Wildlife Service
Kenya
Tel: +254-02-600-800
Email: kipngetichS'kws.go.ke
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544 Eighth International Conference on Environmental Compliance and Enforcement 2008
Mr. Stephen Kisamo
Director
Lusaka Agreement Task Force
Kenya
Tel: +254-20-609-770
Email: skisamo@lusakaagreement.org
Mrs. Sharon Kisire
Head
Human Capital
Kenya Wildlife Service
Kenya
Tel: +254-20-600-800
Email: skisire@kws.org
Mrs. Hester Klein Lankhorst
Intelligence and Investigation Service
VROM Inspectorate
Netherlands
tel: +31-30-636-0263
Email: hester.kleinlankhorstS'minvrom.nl
Ms. Ana Maria Kleymeyer
Advisor to the Minister
Ministry of Environment and Sustainable
Development
Argentina
Email: akleymeyerS'ambiente.gov.ar
Mr. Fred Kok
LOM Secretariat
Netherlands
Tel: +31-70-351-9701
Email: fkokS'lomsecretariaat.nl
Mr. Dimitar Koparov
Consultant, INECE Secretariat
Earthpace LLC
Bulgaria
Email: dkoparovS'earthpace.com
Dr. Louis Kotze
Associate Professor
Faculty of Law
North-West University
South Africa
Tel: +27-18-299-1956
Email: louis.kotzeS'nwu.ac.za
Mr. Rejean de Ladurantaye
Regional Director
Environment Canada
Canada
Tel: +1-514-283-0181
Email: rejean.deladurantayeS'ec.gc.ca
Mr. Benjamin Malwa Langwen
Director
Compliance and Enforcement
National Environment Management Authority
(NEMA)
Kenya
Tel: +254-020-608118
Email: blangwenS'nema.go.ke
Mr. Andrew E. Lauterback
Office of Criminal Enforcement, Forensics and Training
Environmental Protection Agency
United States
Tel: +1-617-918-1724
Email: lauterback.andrewS'epa.gov
Mr. Luc Lebel
Manager
Environmental Enforcement Division
Environment Canada
Canada
Tel: +1-819-934-6061
Email: luc.lebelS'ec.gc.ca
Mr. Howard Leberman
EU Emissions Trading Scheme Policy Advisor
Environment Agency of England and Wales
United Kingdom
Tel: +44-1709-31-2822
Email: howard.lebermanS'envir onment-agency.gov.uk
Dr. Paul Leinster
Director of Operations
Operations Directorate
Environment Agency of England and Wales
United Kingdom
Tel: +44-1454-624065
Email: paul.leinsterS'environment-agency.gov.uk
Mr. Tony Liebregts
VROM Inspectorate
Netherlands
Tel: +31-6521-043765
Email: tony.liebregtsS'minvrom.nl
Ms. Catherine Lorenzen
EU and International Relations
Environment Agency of England and Wales
United Kingdom
Tel: +44-7769-911-739
Email: Catherine.lorenzenS'envir onment-agency.gov.uk
Mr. Gene Lubieniecki
National Enforcement Investigations Center
Environmental Protection Agency
United States
Tel: +1-303-462-9012
Email: lubieniecki.geneS'epa.gov
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List of Participants
545
Mrs. Salome Machua
Compliance & Enforcement Officer
National Environment Management Authority
Kenya
Tel: +254-2-605522
Email: smachua@nema.go.ke
Dr. Ken Macken
Programme Manager
Climate Change Unit
Environmental Protection Agency
Ireland
Tel: +353-87-207-5783
Email: k.macken@epa.ie
Mr. Sizwe Madlala
Assistant Director
KivaZulu-Natal Department of Agriculture and
Environmental Affairs
Department of Agriculture & Environmental
Affairs
South Africa
Tel: +27-033-355-9670
Email: paulos.madlalaS'dae.kzntl.gov.za
Mr. Sabelo Malaza
Director
Compliance Monitoring
Department of Environmental Affairs and
Tourism
South Africa
Tel: +27-012-310-3397
Email: smalazaS'deat.gov.za
Mr. Johannes H. Mans
VROM Inspectorate
Netherlands
Tel: +31-433652635
Email: janmansS'home.nl
Mr. Himot Maran
Councilor
Environmental Inspectorate
Estonia
Tel: +372-5185612
Email: himot.maranS'kki.ee
Mr. Kenneth Markowitz
Consultant, INECE Secretariat
Senior Counsel, Akin Gump Strauss Hauer &
Feld LLP
United States
Tel: +1-202-887-4513
Email: kmarkowitzS'akingump.com
Mr. Eugene Mazur
Project Manager
Environment Directorate
Organisation for Economic Co-operation and
Development (OECD)
France
Tel: +33-1-4524-7692
Email: eugene.mazurS'oecd.org
Dr. Maurizio Mazzi
Lawyer
International Court of the Environment
Foundation (ICEF)
Italy
Tel: +39-06-663-0546
Email: icef.mazziS'tiscali.it
Mrs. Catherine McCabe
Deputy Assistant Administrator
Office of Enforcement and Compliance Assurance
Environmental Protection Agency
United States
Tel: +1-202-564-2440
Email: mccabe.catherineS'epa.gov
Mr. James McDonald
Director
Office of Administrative Law Judges
Environmental Protection Agency
United States
Tel: +1-202-564-6255
Email: mcdonald.jamesS'epa.gov
Ms. Claudia McMurray
Assistant Secretary
Bureau of Oceans and International
Environmental and Scientific Affairs
Department of State
United States
Mr. Mark Measer
Associate Director
Criminal Investigation Division
Environmental Protection Agency
United States
Tel: +1-202-564-2403
Email: Measer.MarkS'epa.gov
Ms. Olya Melen
Head of Legal Unit
Environment-People-Law
Ukraine
Tel: +380-322-751534
Email: molyaS'uoregon.edu
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546 Eighth International Conference on Environmental Compliance and Enforcement 2008
Dr. Ladislav Miko
Director
DG Environment, DIR B - Protecting the Natural
Environment
European Commission
Belgium
Tel: +32-2-29-68797
Email: ladislav.miko@ec.europa.eu
Ms. Stacey H. Mitchell
Chief
Environmental Crimes Section
Department of Justice
United States
Tel: +1-202-305-0363
Email: stacey.mitchell@usdoj.gov
Mr. Ephraim Monyemoratho
Department of Water Affairs and Forestry
South Africa
Tel: +27-12-336-7140
Email: laiS'dwaf.gov.za
Mr. Matome Phillip Monyepao
Advocate
Economic Development, Environment & Tourism
South Africa
Tel: +27-15-295-3980
Email: monyepaompS'ledet.gov.za
Mrs. Elizabeth Maruma Mrema
Senior Legal Officer and Chief
Biodiversity and Land Law and Governance Unit
Division of Environmental Law and Conventions
(DELC)
United Nations Environment Programme
Kenya
Tel: +254-20-762-4252
Email: Elizabeth.MremaS'unep.org
Ms. Marcia E. Mulkey
Director
Office of Enforcement and Compliance
Assurance
National Enforcement Training Institute
U.S. Environmental Protection Agency
United States
Tel: +1-202-564-2430
Email: mulkey.marciaS'epa.gov
Mrs. Ketevan Mumladze
Chief Specialist
Planning Division Inspection for Environmental
Protection
Georgia
Tel: +995-55-100188
Email: kmumladzeS'yahoo.co.uk
Mr. Samuel Munene
Principal Environmental Impact Assessment
Officer
Compliance & Enforcement
National Environment Management Authority
Kenya
Tel: +254-20-605522
Email: smunene@>nema.go.ke
Mr. Peter Murtha
Office of Enforcement & Compliance Assistance
U.S. Environmental Protection Agency
United States
Tel: +1-301-589-0877
Email: murtha.peterS'epa.gov
Mr. Linda Ndlela
Assistant Director
Compliance Monitoring and Enforcement
Agriculture and Environmental Affairs
South Africa
Tel: +27-32-552-5302
Email: ndlelalS'sedbn.kzntl.gov.za
Mrs. Dolora Nepomuceno
Assistant General Manager
Department of Environment and Natural
Resources
Laguna Lake Development Authority
Philippines
Tel: +63-2-637-9748
Email: dnnepomucenoS'llda.gov.ph
Mr. Clement Ngcobo
District Conservation Officer
Ezemvelo KwaZulu-Natal Wildllife
South Africa
Tel: +27-079-539-2083
Email: ngcobocS'kznwildlife.com
Mr. Vadim Ni
Executive Director
Law and Environment Eurasia Partnership
Kazakhstan
Tel: +7-727-2420715
Email: vadimneeS'mail.ru
Mr. Alberto Ninio
Lead Environmental Counsel, Legal Vice
Presidency
The World Bank
United States
Email: AninioS'worldbank.org
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List of Participants
547
Ms. Horline Njike
Legal Adviser
Last Great Ape
Cameroon
Tel: +237-99967695
Email: horline@laga-enforcement.org
Mr. Nelson Ntokozo Nkosi
Department of Agriculture and Environmental
Affairs
South Africa
Tel: +27-034-315-3936
Email: mphazima@yahoo.com
Mr. Carl Nortier
Section Officer
Corporate Investigation Services (Specialized
Anti-Poaching Marine)
SANParks
South Africa
Tel: +27-021-7947995
Email: carlnS'sanparks.org
Mr. Otieno Maurice Nyunja
Director of Environment
Coats Province
Compliance and Enforcement
National Environment Management Authority
Kenya
Tel: +254-733-740133
Email: nyunjaS'yahoo.com
Mr. Antonio Oposa
President
The Law of Nature Foundation
Philippines
Tel: +63-2-809-6122
Email: tonyoposajrS'yahoo.com
Mr. Richard Paton
Environmental Governance Team Leader
Eco-Asia
Thailand
Email: rpatonS'eco-asia.org
Dr. Waltraud Petek
Deputy Director General
General Environmental Policy Pollution
Prevention and Control of Installations
Federal Ministry of Agriculture, Forestry
Environment and Water Management
Austria
Tel: +43-1-51522-2123
Email: waltraud.petekS'lebensministerium.at
Dr. Romina Picolotti
Minister
Ministry of Environment and Sustainable
Development
Argentina
Mr. Anbendren Pillay
Compliance Monitoring
Department of Environmental Affairs and
Tourism
South Africa
Tel: +27-123-103951
Email: apillayS'deat.gov.za
Mr. Grant Pink
Acting Assistant Secretary
Compliance and Enforcement Branch
Department of the Environment, Water, Heritage
and the Arts
Australia
Tel: +61-2-6275-9474
Email: grant.pinkS'environment.gov.au
Ms. Anel Du Plessis
Faculty of Law
North-West University (Potchefstroom Campus)
South Africa
Tel: +27-018-299-1924
Email: anel.duplessisS'nwu.ac.za
Dr. P.B. Rastogi
Director
Impact Assessment
Ministry of Environment and Forests
India
Tel: +11-243-67668
Email: pb.rastogiS'nic.in
Dr. Rosalind Reeve
Associate Fellow
Chatham House
Kenya
Tel: +254-726-99-33-77
Email: roz.reeveS'gmail.com
Ms. Meredith R. Reeves
Consultant, INECE Secretariat
Earthpace LLC
United States
Tel: +1-202-423-8817
Email: mreevesS'earthpace.com
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548 Eighth International Conference on Environmental Compliance and Enforcement 2008
Dr. Jacobus de Ridder
Professor
Public Administration
University of Groningen
Netherlands
Tel: +31-50-363-5673
Email: j.de.ridder@rug.nl
Mr. Desire Rubadiri
Rubadiri & Company
Botswana
Tel: +267-72101232
Email: rubadiri@botsnet.bw
Dr. Henk Ruessink
VROM Inspectorate
Netherlands
Email: henk.ruessinkS'minvrom.nl
Dr. Iwona Rummel-Bulska
Legal Counsel
Division of Environmental Law and Conventions
United Nations Environment Programme
Kenya
Tel: +254-20-762-3478/87
Email: iwona.rummel-bulskaS'unep.org
Mr. Patrick Salif u
Programme Officer
Policy and Enforcement
United Nations Environment Programme
Kenya
Tel: +254-20-7623956
Email: patrick.salifuS'unep.org
Mrs. Jelena Radoljub Samuilov
Senior Assistant
Municipal Prosecutor's Office of Pancevo
Serbia
Tel:+381-13-352-609/+381-13-354-497
Email: jsamuilovS'yahoo.com
Mr. Ezequiel Santagada
Lawyer
Legal Department
Institute of Environmental Law and Economy
Paraguay
Tel: +595-21-614619
Email: ezequiel.santagadaS'idea.org.py
Mr. Vsevolod Sapronov
Expert
Foreign Relations
Rostechnadzor
Russian Federation
Tel: +7-495-911-6072
Email: sapronovS'gan.ru
Dr. Angelique van der Schraaf
VROM Inspectorate Academy
VROM-Inspectorate
Netherlands
Tel: +31-703-392339
Email: angelique.vanderschraafS'minvrom.nl
Dr. John Seager
Head of Science Strategy
Environment Agency of England and Wales
United Kingdom
Tel: +44-117-914-2982
Email: John.seagerS'environment-agency.gov.uk
Mr. Surya Kant Sharma
Judge
Punjab & Haryana High Court, Chandigarh
Asia Pacific Jurist Association
India
Tel: +91-172-272-5758
Email: suryakant.jS'haryana.nic.in
Mr. Terence Shears
Head of EU and International Relations
External Relations
Environment Agency of England and Wales
United Kingdom
Tel: +44-1454-205743
Email: terence.shearsS'environment-agency.gov.uk
Mr. Kunihiko Shimada
Principal International Policy Coordinator/
Principal International Negotiator
Global Environment Bureau
Ministry of the Environment
Japan
Tel: +81-3-5521-8330
Email: kunihiko_shimada@>env.go.jp
Dr. Wijarn Simachaya
Director
Environmental Quality and Laboratory Division
Pollution Control Department
Thailand
Email: wijarn.sS'pcd.go.th
Ms. Walker B. Smith
Director
Office of Civil Enforcement
U.S. Environmental Protection Agency
United States
Tel: +1-202-564-4044
Email: Smith.WalkerS'epa.gov
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List of Participants
549
Mr. Dimitry Smyslov
Department Head
Environmental Compliance
Federal Environmental Service
Russian Federation
Tel: +7-495-657-9176
Email: dsmyslov@mail.ru
Mr. Phil Snijman
Private Consultant
South Africa
Tel: +27-21-880-1531
Email: psnijman@mweb.co.za
Mr. Lawrence Sperling
Senior Adviser
Bureau of Oceans, Environment and Science
Department of State
United States
Tel: +1-202-647-2061
Email: sperlingliS'state.gov
Mr. Michael Stahl
Director
Office of Compliance
U.S. Environmental Protection Agency
United States
Tel: +1-202-564-2280
Email: stahl.michaelS'epa.gov
Mrs. Ljiljana Stanojevic
Assistant Minister
State Inspection
Ministry for Environmental Protection
Serbia
Tel: +381648166-302
Email: Ijilja.stanojevicS'ekoserb.sr.gov.yu
Mrs. Cora Steffens
Province North-Brabant
Netherlands
Tel: +31-73-6812415
Email: rheesenS'brabant.nl
Mr. Peter Storey
Director
PPL International
South Africa
Tel: +27-72-230-9302
Email: peter.storeyS'ppl-int.com
Mr. Greg Sullivan
Chair-elect, Australian Environmental Law
Enforcement and Regulators Network (AELERT)
Brisbane City Council
Australia
Tel: +11-61-7-340-36114
Email: greg.sullivanS'brisbane.qld.gov.au
Dr. Alberto Szekely
Attorney
Szekely Associates
Mexico
Email: aszekelyS'compuserve.com.mx
Mr. Jorge Daniel Taillant
Executive Director
Center for Human Rights and Environment
Argentina
Email: jdtaillantS'cedha.org.ar
Mr. Mmaphaka Tau
Veld and Forest Fires Oversight
Department of Water Affairs and Forestry
South Africa
Tel: +27-12-336-7392
Email: TauMS'dwaf.gov.za
Mr. Andrey Terentyev
Principal Administrator
Expert Division
Russian Regional Environmental Centre
Russian Federation
Tel: +7-495-737-64-48
Email: terentievS'rusrec.ru
Mr. Mfanufikile Theledi
Director: Pollution & Waste Management
Agriculture & Land Administration
Mpumalanga Provincial Government
South Africa
Tel: +27-137-666063
Email: mthelediS'mpg.gov.za
Mr. Jacques du Toit
Strategic Compliance and Enforcement
Gauteng Department of Agriculture Conservation
and Environment
South Africa
Tel: +27-83-308-1366
Email: Jacques.dutoitS'gauteng.gov.za
Dr. Raul Vidable
Director
Undersecretary's Office of Environmental Control
and Prevention of Contamination
Ministry of Environment and Sustainable Development
Argentina
Tel: +54-11-4348-8428
Email: rvidableS'ambiente.gov.ar
Ms. Alexandra Viets
Communications Officer
INECE Secretariat
United States
Tel: +1-213-321-0911
Email: avietsS'inece.org
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550 Eighth International Conference on Environmental Compliance and Enforcement 2008
Mr. Alex Wang
Project Director
Natural Resources Defense Council
China
Email: awang@nrdc.org
Dr. Samuel K. Wasser
Research Professor
Department of Biology
University of Washington
United States
Tel: +1-206-543-1669
Email: wassersS'u.washington.edu
Mr. Timothy Whitehouse
INECE Secretariat
United States
Tel: +1-202-338-1300
Email: twhitehouse@inece.org
Mr. Bert Wijbenga
Chief of Police
Flevoland Police
Netherlands
Tel: +31-320-277-711
Email: bert.wijbengaS'flevoland.politie.nl
Mr. Gerard Wolters
Inspector-General
International Enforcement Cooperation
Ministry of Housing, Spatial Planning and the
Environment
Netherlands
Email: gerard.woltersS'minvrom.nl
Mr. Joe Woodward
Deputy Director General
Environment Protection and Regulation
Department of Environment and Climate Change
New South Wales
Australia
Tel: +61-2-9995-5400
Email: joe.woodwardS'environment.nsw.gov.au
Ms. Catherine Wright
Head of Modern Regulation
Environmental Policy & Regulation
Environment Agency of England and Wales
United Kingdom
Tel: +44-117-915-2336
Catherine.wrightS'environment-agency.gov.uk
Dr. Zhai Yong
Deputy Director General
Legislation Department
National People's Congress
China
Tel: +8610-63091635
Email: zhaiyong20@>yahoo.com
Ms. Laura Yoshii
Deputy Regional Administrator
Region 9
U.S. Environmental Protection Agency
United States
Tel: +1-415-947-8702
Email: yoshii.lauraS'epa.gov
Ms. Hu Yuan qiong (Joan)
Nature Resource Defense Council
China
Email: joan7511@>gmail.com
Dr. Sun Zhenshi
Program Officer
Environmental Inspection and Enforcement
State Environmental Protection Administration
China
Tel: +86-10-6655-6448
Email: sun.zhenshiS'sepa.gov.cn
Mr. Durwood Zaelke
Director
Office of the INECE Secretariat
United States
Tel: +1-202-338-1300
Email: zaelkeS'inece.org
Mr. Brahim Zyani
Director
Secretariat charge de 1'Eau et de 1'Environnement
Chair, Network for Environmental Compliance &
Enforcement in the Maghreb (NECEMA)
Morocco
Tel: +212-37680496/98
Email: bzyani2002@>yahoo.fr
-------
List of Participants per Region 551
AFRICA
LIST OF PARTICIPANTS BY REGION
Country
Botswana
Cameroon
Ghana
Kenya
Kenya
Kenya
Kenya
Kenya
Kenya
Kenya
Kenya
Kenya
Name
Mr. Desire Rubadiri
Ms. Horline Njike
Mr. Jonathan A. Allotey
Mr. Abdirizak Dahir
Ahmed
Dr. Iwona Rummel-Bulska
Dr. Samuel Kasiki
Dr. Julius Kipnge'tich
Mr. Stephen Kisamo
Mrs. Sharon Kisire
Mr. Benjamin Langwen
Mr. Salome Machua
Mrs. Elizabeth Maruma
Mrema
Title
Legal Advisor
Executive Director
Legal Counsel
Deputy Director
Director
Director
Head
Director
Compliance &
Enforcement Officer
Senior Legal Officer
& Chief
Organization
Rubadiri & Company
Legal Unite, Last Great
Ape
Environmental
Protection Agency
Kenya Wildlife Service
DELC United Nations
Environment Programme
Biodiversity Research
& Monitoring Kenya
Wildlife Service
Kenya Wildlife Service
Lusaka Agreement Task
Force
Human Capital Kenya
Wildlife Service
Compliance and
Enforcement National
Environment
Management Authority
(NEMA)
Compliance &
Enforcement National
Environment
Management Authority
Biodiversity and Land
Law and Governance
Unit, Division of
Environmental Law
and Conventions
(DELC), United Nations
Environment Programme
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552 Eighth International Conference on Environmental Compliance and Enforcement
Kenya
Kenya
Kenya
Kenya
Mauritania
Nigeria
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
Mr. Samuel Munene
Mr. Otieno Maurice
Nyunja
Dr. Rosalind Reeve
Mr. Patrick Salifu
Mr. Ould Jiddou Cheikh
Dr. (Mrs.) Ngeri Benebo
Professor Rudi van Aarde
Ms. Far ah Abrahams
Mr. Robin Adams
Mr. Sonnyboy Bapela
Mr. Jason Bell
Mr. Werner Johannes
Boing
Ms. Aarti Brijlall
Principal EIA
Officer
Provincial Director
of Environment-
Coats Province
Associate Fellow
Programme Officer
Director General
Director
Acting Deputy
Director
Operations Manager
Chief Director
Country Director
Deputy Director:
Administrative
Enforcement
Compliance &
Enforcement National
Environment
Management Authority
Compliance and
Enforcement National
Environment
Management Authority
Chatham House
Policy and Enforcement,
United Nations
Environment Programme
Point Focal NECEMA
en Mauritanie Ministere
Environment
National Environmental
Standards and
Regulations Enforcement
Agency (NESREA)
Conservation
Ecology Research
Unit, Department of
Zoology & Entomology
University of Pretoria
Environmental
Enforcement Department
of Environmental Affairs
& Development Planning
Table Mountain National
Park Sanparks
Regulatory Services
Department of
Environmental Affairs &
Tourism
International Fund
for Animal Welfare,
Southern Africa Regional
Department of Tourism,
Environmental, and
Economic Affairs
Directorate: Enforcement
Department of
Environmental Affairs &
Tourism
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List of Participants per Region 553
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
Mrs. Minky Chauke
Mrs. Frances Craigie
Ms. Wayne Evans
Ms. Melissa Fourie
Mr. Obopeng Tokgame
Gaoraelwe
Mr. Stephen Granger
Mr. Mark Jardine
Dr. Louise Kotze
Mr. Sizwe Madlala
Mr. Sabelo Malaza
Mr. Ephraim
Monyemoratho
Mr. Matome Phillip
Monyepao
Mr. Linda Ndlela
Mr. Clement Ngcobo
Deputy Director
Director: Strategic
Compliance and
Enforcement
Director:
Enforcement
Deputy Director
Manager: Major
Programmes and
Projects
Deputy Director
Associate Professor
Assistant Director
Director
Advocate
Assistant Director
District
Conservation Officer
Compliance and
Enforcement
Gauteng Department
of Agriculture,
Conservation and
Environment
Compliance and
Enforcement
Gauteng Department
of Agriculture,
Conservation
KZN Wildlife
Department of
Environmental Affairs
and Tourism
Department of
Tourism, Environment
and Conservation,
Environmental
Compliance and
Enforcement
Environmental Resource
Management City of
Cape Town
Enforcement Department
of Environmental Affairs
and Tourism
Law North-West
University
KZN-DAEA Department
of Agriculture &
Environmental Affairs
Compliance Monitoring
Department of
Environmental Affairs
and Tourism
Department of Water
Affairs and Forestry
Economic Development,
Environment & Tourism
Compliance Monitoring
and Enforcement
Agriculture and
Environmental Affairs
Ezemvelo KwaZulu-
Natal Wildlife
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554 Eighth International Conference on Environmental Compliance and Enforcement
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
South Africa
Tanzania
Uganda
Uganda
Mr. Nelson Ntokozo Nkosi
Mr. Carl Nortier
Ms. Magdel Boshoff
Pierterse
Mr. Anbendren Pillay
Ms. Anel Du Pleiss
Mr. Phil Snijman
Mr. Peter Storey
Mr. Mmaphaka Tau
Mr. Mfanufikile Theledi
Mr. Jacques du Toil
Eng. Bonaventure Baya
Ms. Christine Echookit
Akello
Dr. Henry Aryamanya-
Mugisha
Section Officer
Private Consultant
Director
Director
Director General
Senior Legal
Counsel
Executive Director
Department of
Agriculture &
Environmental Affairs
Corporate Investigation
Services (Specialized
Anti-Poaching Marine)
SAN Parks
Biodiversity and
Conservation DEAT
Compliance Monitoring
Department of
Environmental Affairs
and Tourism
Law North-
West University
(Potchefstroom Campus)
PPL International
Veld and Forest Fires
Oversight Department
of Water Affairs and
Forestry
Pollution & Waste
Management Agriculture
& Land Administration,
Mgumalanga Provincial
Government
Strategic Compliance
and Enforcement,
Gauteng Department of
Agriculture Conservation
and Environment
NEMC- Tanzania
National Environment
Management Council
National Environment
Management Authority
National Environment
Management Authority
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List of Participants per Region 555
ASIA & THE PACIFIC
Australia
Australia
Australia
Australia
Australia
China
China
China
China
China
China
India
India
Mr. Troy Collins
Ms. Maria Comino
Mr. Grant Pink
Mr. Greg Sullivan
Mr. Joe Woodward
Ms. Jia Feng
Mrs. Xu Kezhu
Mr. Alex Wang
Mr. Zhai Yong
Ms. Hu Yuan Qiong
Dr. Sun Zhenshi
Mr. Pradeep Bakshi
Dr. P.B. Rastogi
Manager Legislation
and Implementation
Acting Assistant
Secretary
Chair-elect
Deputy Director
General
Deputy Director
Deputy Director
Project Director
Deputy Director
General
Program Officer
Secretary General
Director
Australian
Environmental Law
Enforcement &
Regulators Network
Department of Natural
Resources & Water
Department of Water and
Energy
Compliance and
Enforcement Branch
Department of the
Environment, Water,
Heritage and the Arts
Brisbane City Council
AELERT
Environment Protection
and Regulation
Department of
Environment and
Climate Change
Center for Environmental
Education &
Communications
State Environmental
Protection
Administration of China
Center for Legal
Assistance to Pollution
Victims
Natural Resources
Defense Council
Legislation Department
National People's
Congress
Nature Resource Defense
Council
Environmental
Inspection and
Enforcement State
Environmental
Protection
Administration
Asia-Pacific Jurist
Association
Impact Assessment
Ministry of Environment
and Forests
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556 Eighth International Conference on Environmental Compliance and Enforcement
India
Japan
Kazakhstan
The Philippines
The Philippines
The Philippines
The Philippines
Thailand
Thailand
Mr. Surya Kant Sharma
Dr. Kunihiko Shimada
Mr. Vadim Ni
Prof. Sedfrey Martinez
Candelaria
Ms. Elisea Gozun
Mrs. Dolora Nepomuceno
Mr. Antonio Oposa
Mr. Richard Paton
Dr. Wijarn Simachaya
Judge
Principal
International Policy
Coordinator/
Principal
International
Negotiator
Executive Director
Head
Consultant
Assistant General
Manager
President
Environmental
Governance Team
Leader
Director
Punjab & Haryana High
Court, Chandigarh Asia-
Pacific Jurist Association
Global Environment
Bureau Ministry of the
Environment Japan
Law and Environment
Eurasia Partnership
Research, Publications
and Linkages Office
Philippine Judicial
Academy
Asian Environmental
Compliance and
Enforcement Network
Department of
Environment and
Natural Resources
Laguna Lake
Development Authority
The Law of Nature
Foundation
Eco-Asia
Environmental Quality
and Laboratory Division
Pollution Control
Department
CENTRAL & EASTERN EUROPE
Bulgaria
Estonia
Georgia
Hungary
Mr. Dimitar Koparov
Mr. Himot Maran
Mrs. Ketevan Mumladze
Mr. Mihail Dimovski
Consultant
Councilor
Chief Specialist
Senior Project
Manager
INECE Secretariat
Environmental
Inspectorate
Planning Division
Inspection for
Environmental
Protection
Environmental
Policy The Regional
Environmental Center
for Central and Eastern
Europe
-------
List of Participants per Region 557
Hungary
Latvia
Macedonia
Russia
Russia
Russia
Serbia
Serbia
Serbia
Ukraine
Mrs. Marta Bonifert Szigeti
Mr. Vilis Avotins
Mr. Zoran Dimovski
Mr. Vsevolod Sapronov
Mr. Dimitry Smyslov
Mr. Andrey Terentyev
Mr. Dragan Asanovic
Mrs. Jelena Radoljub
Samuilov
Mrs. Ljiljana Stanojevic
Ms. Olya Melen
Executive Director
State Environmental
Inspector
Expert
Department Head
Principal
Administrator
Senior Advisor
Municipal
Prosecutor's Senior
Assistant
Assistant Minister
Head of Legal Unite
The Regional
Environmental Center
State Environmental
Service
State Environmental
Inspectorate Ministry
of Environment and
Physical Planning
Foreign Relations
Rostechnadzor
Environmental
Compliance Federal
Environmental Service
Expert Division Russian
Regional Environmental
Centre
Ministry of Tourism
and Environmental
Protection
Municipal Prosecutor's
Office of Pancevo
State Inspection Ministry
for Environmental
Protection
Environment-People-
Law
CENTRAL AMERICA
Costa Rica
Mr. Jose Pablo Gonzalez
Montero
Chief Environmental
Prosecutor
Poder Judicial
SOUTH AMERICA
Argentina
Argentina
Mr. Alberto Santos Capra
Dr. Diego Martin Kaplan
Attorney and
Coordinator
of Progam
A.C.U.M.A.R
Hazardous Waste
Ministry of Environment
and Sustainable
Development
Undersecretary's Office
of Environmental
Control and Prevention
of Contamination
Ministry of Environment
and Sustainable
Development
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558 Eighth International Conference on Environmental Compliance and Enforcement
Argentina
Argentina
Argentina
Argentina
Paraguay
Ms. Ana Maria Kleymeyer
Dr. Romina Picolotti
Mr. Jorge Daniel Talliant
Dr. Raul Vidable
Mr. Ezequiel Santagada
Advisor to the
Minister
Minister
Executive Director
Director of
Undersecretary's
Office
Lawyer
Ministry of Environment
and Sustainable
Development
Ministry of Environment
and Sustainable
Development
Center for Human Rights
and Environment
Undersecretary's Office
of Environmental
Control and Prevention
of Contamination
Ministry of Environment
and Sustainable
Development
Legal Department
Institute of
Environmental Law and
Economy (IDEA)
MIDDLE EAST & NORTH AFRICA
Israel
Israel
Jordan
Morocco
Tunisia
Tunisia
Mr. Izhak BenDavid
Mr. Bill Clark
Ms. Nawzat Ali
Mr. Brahim Zyani
Mr. Mohamed Ben
Hassine
Mr. Samir Kaabi
Senior Deputy
Director
Legal Adviser to the
Minister
Director
Engineer
Head Engineer
Law Enforcement
Israel Ministry of
Environmental
Protection
Israel Nature & Parks
Authority
Ministry of Environment
Secretariat charge
de 1'Eau et de
1'Environnement
NECEMA
Controle des eaux
Ministry of Environment
Pollution Control and
Monitoring Ministry of
Environment
NORTH AMERICA
Canada
Canada
Mrs. Manon Bombardier
Mr. Richard Charette
Deputy Director
National Director
Environmental
Enforcement Division
Environment Canada
Enforcement Branch
Environment Canada
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List of Participants per Region
559
Canada
Canada
Canada
Canada
Mexico
Mexico
United States
United States
United States
United States
United States
United States
United States
United States
United States
United States
Mr. Ross Galbraith
Ms. Kim Hibbeln
Mr. Rejean de Ladurantaye
Mr. Luc Lebel
Mr. Gustavo Alanis-Ortega
Dr. Alberto Szekely
Hon. Susan Biro
Ms. Nikki Brajevich
Ms. Susan Bromm
Mr. John Cruden
Mr. Mohamed Rida
Derder
Mr. Mike Frizzell
Ms. Phyllis Harris
Mr. Robert G. Heiss
Mr. Tom Higdon
Mr. Davis Jones
A/ National Team
Lead (Birds)
National Director
Regional Director
Manager
President
Attorney
Chief Judge
Environment,
Science and
Technology Officer
Acting Director
Deputy Assistant
Attorney General
Consultant
Consultant
Vice President
Director
Consultant
International
Training
Coordinator
Environmental
Enforcement
Environment Canada
Enforcement
Environment Canada
Environment Canada
Environmental
Enforcement Division
Environment Canada
Mexican Environmental
Law Center
Szekely Associates
Office of Administrative
Law Judges U.S.
Environmental
Protection Agency
Embassy of the United
States of America
U.S. EPA Office of
Federal Activities
Environment and
Natural Resources
Division U.S.
Department of Justice
INECE Secretariat
INECE Secretariat
Environmental
Compliance Wal-Mart
Stores, Inc.
International Compliance
Assurance Division,
U.S. Environmental
Protection Agency Office
of Enforcement and
Compliance Assurance
INECE Secretariat
Office of Enforcement
and Compliance
Assurance International
Compliance
Assurance Division
U.S. Environmental
Protection Agency
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560 Eighth International Conference on Environmental Compliance and Enforcement
United States
United States
United States
United States
United States
United States
United States
United States
United States
United States
United States
Mr. Andrew E. Lauterback
Mr. Gene Lubieniecki
Mr. Kenneth Markowitz
Mrs. Catherine McCabe
Mr. James McDonald
Ms. Claudia McMurray
Mr. Mark Measer
Ms. Stacey H. Mitchell
Ms. Marcia E. Mulkey
Mr. Peter Murtha
Mr. Alberto Ninio
Senior Counsel and
Consultant
Deputy Assistant
Administrator
Director
Assistant Secretary
Associate Director
Chief
Director
Lead Environmental
Counsel, Legal Vice
Presidency
Office of Criminal
Enforcement, Forensics
and Training U.S.
Environmental
Protection Agency
U.S. Environmental
Protection Agency
Akin Gump Strauss
Hauer & Feld LLP and
INECE Secretariat
Office of Enforcement
and Compliance
Assurance International
Compliance Assurance
U.S. Environmental
Protection Agency
Office of Administrative
Law Judges U.S.
Environmental
Protection Agency
Bureau of Oceans
and International
Environmental and
Scientific Affairs US
Department of State
Criminal Investigation
Division US
Environmental
Protection Agency
Environmental Crimes
Section US Department
of Justice
Office of Enforcement
and Compliance
Assurance U.S.
Environmental
Protection Agency
National Enforcement
Training Institute
Office of Enforcement
and Compliance
Assistance U.S.
Environmental
Protection Agency
The World Bank
-------
List of Participants per Region 561
United States
United States
United States
United States
United States
United States
United States
United States
United States
Ms. Meredith Reeves
Ms. Walker B. Smith
Mr. Lawrence Sperling
Mr. Michael Stahl
Ms. Alexandra Viets
Dr. Samuel K. Wasser
Mr. Timothy Whitehouse
Ms. Laura Yoshii
Mr. Durwood Zaelke
Director
Senior Advisor
Director
Communications
Officer
Deputy Regional
Administrator
Director
INECE Secretariat
Office of Civil
Enforcement U.S.
Environmental
Protection Agency
Bureau of Oceans,
Environment and Science
US Department of State
Office of Compliance
U.S. Environmental
Protection Agency
INECE Secretariat
Biology University of
Washington
INECE Secretariat
Region 9 U.S.
Environmental
Protection Agency
INECE Secretariat
WESTERN EUROPE
Austria
Belgium
Belgium
Finland
France
Dr. Waltraud Petek
Dr. Robert Bernard Baert
Dr. Ladislav Miko
Mr. Markku Hietamaki
Ms. Angela Bularga
Deputy Director
General
Inspector-General
Director
Environmental
Counselor
General Environmental
Policy Pollution
Prevention and Control
of Installations Federal
Ministry of Agriculture,
Forestry Environment
and Water Management
Environment
Inspectorate Division
Flemish Government
DG Environment (DIRB-
Protecting the Natural
Environment) European
Commission
Environmental
Protection Department,
Ministry of Environment
Organisation for
Economic Co-operation
and Development
(OECD)
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562 Eighth International Conference on Environmental Compliance and Enforcement
France
France
Germany
Ireland
Italy
Netherlands
The Netherlands
The Netherlands
The Netherlands
The Netherlands
The Netherlands
The Netherlands
The Netherlands
The Netherlands
The Netherlands
The Netherlands
The Netherlands
The Netherlands
Mr. Brendan Gillespie
Mr. Eugene Mazur
Dr. Alejandro Iza
Dr. Ken Macken
Dr. Maurizio Mazzi
Dr. Gustaaf A. Biezeveld
Ms. Machteld Brokerhof
Dr. Rene Craemer
Mr. Hans Demmers
Mr. Jan ten Doeschate
Mr. Jo Gerardu
Mrs. Jenny van Houten
Mr. Pirn Kapitein
Mrs. Hester Klein
Lankhorst
Mr. Fred Kok
Mr. Tony Liebregts
Mr. Johannes H. Mans
Dr. Jacobus de Ridder
Head of Division
Project Manager
Director
Programme
Manager
Lawyer
Chief International
Affairs
MPM
Professor
Environment and
Globalisation Division,
Environment Directorate
Organisation for
Economic Development
and Co-operation
Environment Directorate
Organisation for
Economic Co-operation
and Development
(OECD)
Environmental Law
Centre Environmental
Law Programme IUCN
Climate Change
Unite Environmental
Protection Agency
International Court of the
Environment Foundation
(ICEF)
Functioneel Parket
VROM- Inspectorate
Functioneel Parket
Flevoland Police
Province North-Brabant
INECE Secretariat
International
Enforcement
Cooperation Ministry
of Housing, Spatial
Planning and the
Environment
Agriculture, Nature and
Food Quality General
Inspection Service (AID)
Intelligence and
Investigation Service
VROM Inspectorate
LOM Secretariat
VROM Inspectorate
VROM Inspectorate
Public Administration
University of Groningen
-------
List of Participants per Region 563
The Netherlands
The Netherlands
The Netherlands
The Netherlands
Portugal
United
Kingdom
United
Kingdom
United
Kingdom
United
Kingdom
United
Kingdom
United
Kingdom
United
Kingdom
Dr. Angelique van der
Schraaf
Mrs. Cora Steffens
Mr. Bert Wijbenga
Mr. Gerard Wolters
Ms. Nancy Isarin
Mr. Arwyn Jones
Mr. Howard Leberman
Dr. Paul Leinster
Ms. Catherine Lorenzen
Dr. John Seager
Mr. Terence Shears
Ms. Catherine Wright
Chief of Police
National
Enforcement
Manager
EU ETS Policy
Advisor
Director of
Operations
Head of Science
Strategy
Head
Head of Modern
Regulation
VROM Inspectorate
Academy VROM
Inspectorate
Province North-Brabant
Flevoland Police
International
Enforcement
Cooperation Ministry
of Housing, Spatial
Planning and the
Environment
Ambiendura
National Enforcement
Service Environment
Agency of England &
Wales
Environment Agency of
England & Wales
Operations Directorate
Environment Agency of
England & Wales
EU and International
Relations Environment
Agency of England &
Wales
Environment Agency of
England & Wales
EU and International
Relations External
Relations Environment
Agency of England &
Wales
Modern Regulation,
EP Policy & Regulation
Environment Agency of
England & Wales
-------
Acknowledgements 565
ACKNOWLEDGEMENTS
The Editors would like to provide special thanks to all the speakers, moderators,
facilitators, and rapporteurs, as well as those people who submitted papers
for the conference proceedings and to those who contributed to the conference
exhibits. In particular, we would like to express our deepest appreciation to the
speakers from our host county who welcomed the conference to Cape Town -
the Honorable Marthinus van Schalkwyk, Minister of Environmental Affairs and
Tourism, South Africa; the Honorable Tasnee Essop, Minister for the Environment
and Planning, Government of Western Cape, South Africa; Judge Dennis Davis
of the High Court of Cape Town; and Joanne Yawitch, Deputy Director General,
Department of Environmental Affairs and Tourism, South Africa. We would also
like to thank Professor Wangari Maathai for her spirited message delivered by
video.
The Executive Planning Committee of INECE provided leadership and direction
in the design of the program, selection of the speakers and facilitators, and
identification of individuals from a range of nations who could provide practical
contributions to the conference. In addition, Executive Planning Committee
members actively participated in plenary and workshop sessions. The Conference
day chairs - Catherine McCabe of the U.S. Environmental Protection Agency and
Gerard Welters of the Netherlands Ministry for Housing, Spatial Planning and the
Environment - must be specially commended for their leadership throughout the
week.
The conference would not have been possible without the commitment of Melissa
Fourie of South Africa's Department of Environmental Affairs and Tourism, who
provided invaluable guidance and support throughout the conference planning
process. Additionally, Sheryl Ozinsky Juliana Canham, and Fran Cox seamlessly
managed the local conference logistics - organizing everything from the inspiring
field visits to the afternoon at Kirstenbosch - and we emphatically thank them for
their assistance. Other special thank yous go to the staff at the Vineyard Hotel, the
Townhouse Hotel, Roopa Singh, Robin Adams, Mike Frizzell, Antonio Oposa, Jo-
lene Sathorar of Sibanye Economic Empowerment, Rikki Shuttle, and Cape Town
Tourism.
Funding of the Conference logistics, planning, and workshop development, and
participant travel was provided by the conference sponsors: the United States
Environmental Protection Agency, the Netherlands Ministry of Housing, Spatial
Planning and the Environment, the United Nations Environment Programme, the
European Commission, the British High Commission, Environment Agency of
England and Wales, Environment Canada, International Fund for Animal Welfare,
South Africa Department of Environmental Affairs and Tourism, Finland's Ministry
-------
566 Eighth International Conference on Environmental Compliance and Enforcement 2008
of the Environment, Environmental Compliance and Enforcement Network for
Accession, Asian Environmental Compliance and Enforcement Network, the
Danish Agency for International Development, Organisation for Economic Co-
operation and Development, the United States Embassy, Royal Netherlands
Embassy, the City of Cape Town, South Africa National Parks, Table Mountain
National Park, Kirstenbosch National Botanical Garden, Peninsula Beverage, Fleur
du Cap Wines, Glen Carlou Wine Estate, Muratie Wine Estate.
With great appreciation,
The Editors
-------
Project Management and Conference Support
567
PROJECT MANAGEMENT AND CONFERENCE SUPPORT
Durwood Zaelke
Director
INECE Secretariat
2300 Wisconsin Avenue N.W., Suite 300B
Washington, DC 20007
phone:+1.202.338.1300
fax:+1.202.338.1810
email: zaelke@inece.org
Davis Jones
U.S. Environmental Protection
Agency
jones.davis@epa.gov
Henk Ruessink
Netherlands Ministry of Housing,
Spatial Planning and the Environment
henk.ruessink@minvrom.nl
Tim Whitehouse
INECE Secretariat
twhitehouse@inece.org
Alexandra Viets
INECE Secretariat
aviets@inece.org
Jo Gerardu
INECE Secretariat
gerardu@inece.org
Mohamed Rida Derder
INECE Secretariat
ridaderder@msn.com
Thomas Higdon
INECE Secretariat
higdon.thomas@gmail.com
CONSULTANTS
Ken Markowitz
Akin Gump Strauss Hauer & Feld
LLP
kmarkowitz@akingump.com
Marcy Markowitz
Chief Executive Officer
Earthpace, LLC
mjm@earthpace.com
Meredith Reeves
Senior Project Manager
Earthpace, LLC
mreeves@earthpace.com
Dimitar Koparov
Database Administrator
Earthpace, LLC
dkoparov@earthpace.com
Michael Frizzell
INECE Secretariat
inece@inece.org
Sheryl Ozinsky
Local Event Planning Consultant
sherylozinsky@iafrica.com
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I N E C E
International Network for Environmental Compliance and Enforcement
-------
Sustainable
, Development
i
Good Governance
Compliance & Enforcement
http://www.inece.org
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