SUMMARIES OF THEMES AND DISCUSSION SESSIONS

 

 

THEME 1: DOMESTIC ENFORCEMENT PROGRAM STRATEGIES, TOOLS AND MANA­GE­MENT SYSTEMS

 

Reporter: Hans E.C. Lefèvre

 

 

1.0       Goals

 

Compliance does not just happen, the government's agencies have to make an effort in getting as much compliance as possible. One of the means to get to that goal is monitoring the compliance and take, whenever necessary, enforcement steps. But compliance monitoring and enforcing the environmental regulations don't just happen either: a philosophy on the importance of the enforcement link in the regulatory chain, an enforcement policy, strategies and management tools are a conditio sine qua non: without them both the enforcement's efforts and re­sults will be and will remain poor. Within theme 1, those aspects of the enforce­ment link and the enforcement approach in several countries were high­lighted.

 

 

2.0       Presentations

 

The Netherlands' Director-General for the Environment, Marius Enthoven, speak­ing in the name of the Minister, Hans Alders, made a speech which was strictly speaking not part of theme 1, but it actually did cover it for quite a bit. He presented the beginning of the Netherlands' environmental policy (end of the sixties) and the development the enforce­ment policy (from the early eighties) in particular. The importance of the enforcement link within the whole of environ­mental policy was emphasized as well as the need for a clear policy, support from the parliament and citizens for such a policy, and the availabi­lity of the necessary human resources, financial means, tools and management systems.

 

Cheryl Wasserman, Acting Director, Office of Enforcement Policy, Office of En­force­­ment, US EPA, Washington, presented an overview of how the United States enforcement program is implemented, specifically what strategies, management systems and tools are employed to make it work successfully. She examined the philosophical basis for enforce­ment, defined compliance and enforce­ment strate­gy elements and planning systems, management systems and tools. A special sub­ject was management accountability and the question of how to measure and eva­lu­ate enforcement results.

 

Ed Reich, Deputy Assistant Administrator, Office of Enforcement, U.S. EPA, talked about environmental enforcement authorities, tools and remedies in the United States. He addressed the sources of enforcement authority, EPA's part­nership with state govern­ments, and the roles of Congress, the legislative direc­tion and the judiciary in shaping and interpreting environmental laws. EPA takes enforce­ment action, separately or simultane­ously, in administrative, civil judicial and criminal proceedings. Some problems and challenges in those areas were high­­lighted.

 

Jit Peters, Director for general policy and administrative affairs, Netherlands' Ministry of Housing, Physical Planning and Environment, presented one of the Dutch National Environment Policy Plan's (1989) important elements: in order to abate pollution, the polluters themselves (trade and industry) have to make an effort: companies must focus all attention on environmental issues. Amongst other measures, companies have to start off environmental management systems, which is an internal control system aimed at controlling in a systematical and coherent manner the effects on the environment of conduct business and if pos­sible at decreasing those effects. An activity program has been set up with dual (government and businesses) task setting in stimulating the implementati­on of those environmental management systems.

 

Hans Schaap, Deputy Inspector-General for the Environment, Netherlands' Minis­try for Housing, Physical Planning and Environment, highlighted the small busi­nes­ses' compliance and the role of the local municipalities in the enforcing area. In the Netherlands, the municipalities play an important role, even since the 19th century, in permitting and thus regulating all kinds of companies, large and small ones. The enforcement of the environ­mental regulations, applicable for almost all businesses (farmers, dry-cleaners, small industry, etcetera) also is the municipali­ties' job. Since 1984 enforcement by local governments is given a special boost by financially supporting their projects concerning compliance monitoring and enforcing chemical waste regulations. The importance of coopera­tion between the enforcing authorities and the necessity to interest the police and judiciary in this subject is emphasized. The results of a more systematic inspection and the use of civil law, criminal law and administrative law were described, together with the importance of having well trained staff. Hans Schaap concluded saying that in the Netherlands we are only (or: already!) halfway to our goal of raising the enforce­ment to an appropriate level.

 

Hans Fangman, National Coordinator Environmental Enforce­ment for the Public Prose­cu­tion, Ministry of Justice, the Netherlands, presented the developing involvement in enforcing environmental regulations by the Office of the Public Prosecution. The existence of a good partnership between the Public Prosection with not only the local police, but also with the administrative authorities (such as the munici­palities and the provinces) was emphasized. The development and implementation of coordinated enforcement programs, local and regional, on an annual basis are needed, as is a good infrastructure of both the Public Prosecu-tion and the police. Especially since the issuing of the National Environmental Policy Plan (1989) we know the police and the Public Prosection will have much more money to be spend (only) on environmental issues including appropriate staf­fing.

 

Dale Bryson, Acting Director, Water Division, Region 5, U.S. EPA, Chicago, pre­sen­ted practical applications of an enforcement management system. Enfor­cing authorities absolutely need an effective enforcement system. The US Enforce­ment Management System is a system for translating compliance informa­tion into timely and appropriate enforcement actions. Special attention was given to the development and use of the Violation Review Action Criteria and the Enforce­ment Response Guide. The first mentio­ned criteria establish the violating sorting process, that Guide includes the guidance used in deciding what type of enforce­ment action should be initiated in response to specific violations. Imple­mentation of such a management system will result in a more disciplined and effective enforce­ment program that returns violators to compliance and achieves environ­mental improvement - the main (and only) ultimate goals of the enforce­ment policy.

 

Dale Bryson also presented the legal and technical cooperation for effective enforcement. He reviewed the differences between "lawyers" and "engineers" not only in training and knowledge but also in attitude. He concluded that both of them, especially when working together in a team, are the key to successful enforcement. While there are barriers that exist between the two professions, those barriers must and can be overcome in order to achieve desired results - environmental protection.

 

Agneta Melin, Supervision Department, Swedisch EPA, Solna, presented the Swe­dish system for compliance and environmental enforcement. The effective­ness of compliance and enforcement programs is becoming more and more impor­tant for the success of the environmental protection efforts. The Swedish system for moni­toring and inspection is based on self monitoring at the source in combinati­on with a decentralized system for inspections carried out by regional and local authorities. In recent years the requirements for monitoring have been strengthe­ned. Inspection campaigns are carried out in different industrial sectors. The results from the self-monitoring programs are reported to the supervisory autho­rities. Since 1989 every permit-holder has to give an annual report, signed by the vice president of the company involved, to the supervisory authori­ties. Criminal enforce­ment may include imposing a fee on the physical or legal person who has carried out the infringement, the amount of which should equal the economic gain resulting from the infringement. Government's staffing now is to be increa­sed at all levels. The Ministry of Environment clearly declared recently that supervision is one of the major tasks for the environmental authorities in Sweden today.

 

 

3.0       Plenary and Open Discussion Sessions

 

The parallel session concerning theme 1, domestic enforcement program strate­gies, tools and management systems, was chaired by Paul Keough, EPA Region 3, Boston (Mass.). Representatives from the USA, Canada, Sweden and the Nether­lands were participating.

 

Bonnie Wein, Canada, explained the environmental role of the provinces in Cana­da, especial­ly the province of Ontario. This province is inhabited by some 10 million people. Ontario is bordering Hudson Bay in the North, Quebec in the East, the Great Lakes in the South and Manitoba in the West. Its capital is Toronto. On­ta­rio was the first province in Canada to have a real environmental policy. Now­adays Ontario has a rather aggressive Environmental Minister. In recent years the Environmental policy is being taken serious in Canada's political spec­trum. The province, in the whole of the Nation's organization, plays an important role in enforcement, including criminal enforcement matters. She has 111 investi­ga­tors, most of them have a police background, and some 200 people on the staff for support. Is there an important role, if any, in enforcement matters for the municipalities? No, the provinces in Canada are carrying out that job. However in the environ­mental policy there is some delegation of tasks from the provinces to the municipalities, such as "NOD's" (noise, odor, dust). Finally, the (big) cities give the permits for pretreatments and for fire regulations.

 

Dale Bryson, US EPA, Chicago (also bordering one of the Great Lakes) points out the big difference in training of the normal police officers in the USA, and perhaps also Canada, and the Netherlands. Nico van Helten, police commissioner in a Netherlands provincial town, agrees on that: the basic training for police men (who have to graduated from at least something like the US High School) is 18 months, senior officers get a training of four years.

 

Hans Lefèvre raises the question of how, in which terms, to define the complian­ce monitoring and enforcements results. In papers and reports to the Parliament, for instance, in the Netherlands and elsewhere, information is given about the existence of an enforcement programme and of the - growing - enforcement orga­­ni­zation and number of enforcing officers. Sometimes information is given about the number of businesses visited by compliance monitoring officers or even about the number of cases dealt with in an administrative, or criminal or civil way - sometimes, but not always and certainly not completely. Informati­on about the results of all those efforts is very fragmentary and certainly very incomple­te. And if available, that information is defined in terms of compliance rates, but they are more impressions rather than hard figures... The most of the given infor­mation is about monitoring and enforcement efforts rather than results in terms of compliance or amelioration of the environment. Yet we do want to make a step forward on that issue. In the Netherlands we are trying to develop techni­ques to measure enforcement results. Perhaps other participants can show us the way?

 

Ed Reich, US EPA, Washington, clearly sees the problem how to measure enfor­cement results. A solution however is not easy, and perhaps impossible for any individual (non)complier. For the whole of the compliance of the regulated community information could be generated in his opinion. Cheryl Wasserman, US EPA, Washington, adds to all these considerations the statement that compliance rates perhaps are the best measure for enforcement results, but on the other hand it generates other problems. Better techniques, for instance, do show more discovered infringements. Secondly, measuring compliance rates (to see if the rate meets the previously set standard of for instance 90%) can cover up the real problems in cases when 90% compliance just is not good enough or, in some other cases, a 80% compliance rate would be very good!

 

Bonnie Wein focusses on the role of statistics as used in business promotion: when compliance rates or whatever figures concerning a certain business are becoming better, the company of course likes to go into publicity with it. Another more negative aspect of statistics as mentioned in the discussion is the race for the great numbers, that can lead to focus on rather easy cases, which means: many cases. "Counting beans" in such a way is not advisable. Paul Keough mentions the cleaning up Boston Harbor case, a huge multi-media action with enforcement parts; we should not go into discussions about the question whether that should be one case (which means only one point on your record) or say 79 cases.

 

Cheryl Wasserman refers to some points she made in her paper for this Workshop, especial­ly those in Section 4.1, "Measures of success" (included in the Procee­dings Part 1, pages 27 to 32).

 

In Sweden Agneta Melin, EPA Sweden, told us in her paper presented the other day, that from July 1st, 1989 every permit holder has to give an annual report to the supervisory authorities, signed by the vice president of the company. The public has a right to look into those reports. The Inspectorate is responsible for a follow-up. It seems to be an interesting compliance promoting instrument for other countries as well.

 

In the Netherlands, as Hans Schaap points out, a system like the Swedish one does not exist. There is since the early seventies a emission registration programme, based on voluntary cooperation of the companies. But indeed, voluntary means: not accessible to the public, nor for the Public Prosecutor. Jit Peters, who presented a paper on the issue of internal company environmental management, sees some clear parallel developments in a number of countries, including Sweden and the Netherlands.

 

Dale Bryson, US EPA, Chicago, says that in EPA Region 5 (Chicago) two States were asked to make reports by sewer operator, which reports were sent to local mayors and after that to the State's EPA. Compliance monitoring by using re­ports and by making arrangement between the State and some co-operating muni­ci­palities can work out very well.

 

Besides the above mentioned issues and summarized discussions some other sub­jects were discussed in the Theme 1 parallel session, such as:

-     the role of the local police (which varies from country to country);

-     the role of the municipalities (idem);

-     the importance of carrying out compliance monitoring and enforcement in a multi-media way;

-     in some countries (amongst others the USA) the definition of "compliance monitoring and enforcement" includes National government's inspections of businesses and other governments (checking if they are doing there job in the whole of the environmental area, such as planning, setting standards, permit­ting and enforcement), while in other countries (such as the Netherlands) that term only refer to governmental inspections of the regulated community, that is the businesses and - in some cases - the citizens themselves.

THEME 2: DOMESTIC INTERGOVERNMENTAL ENFORCEMENT

                        RELATIONSHIPS

 

Reporter: Henk Hurenkamp

 

1.0       Goals

 

The division of tasks between supranational/federal, national, provincial/regional or municipal/local authorities regarding enforcement must be clear. An exchange of information between the involved authorities is necessary in order to coordi­nate the different programs of enforcement.

 

 

2.0       Presentations

 

Peter Dordregter, Director Association of Netherlands Municipalities, presented "Intergo­vernmental relationships in the Netherlands". Mr. Dordregter gave an overall picture of the different authorities which have been involved in enforce­ment. A close co-operation as well as an integral approach in the field of enforcement are inevitable.

 

Prof. Dr. Übing, TÜV Rheinland, presented: "Environmental laws and their execu­tion in the Federal Republic of Germany". Mr. Übing outlined the relation be­tween the federal authority and the Bundes­lander and their different tasks in the field of enforcement as well as the role of TÜV considering enforcement.

 

Lee DeHihns, Deputy Regional Administrator, U.S. Environmental Protection Agen­cy, Region IV, presented: "Defining and Implementing Effective Federal/-State Local Relati­onships: the U.S. experience". Mr. DeHihns sketched the legal basis of both the role of the states and the Federal Authority and the history of this relationship, which forms the basis for the "Policy Framework for State/EPA Enforcement Agreements". A strategic plan has been developed to enhance envi­ronmental enforcement in the nineties; this plan involves strengthening the Federal/State cooperation in enforcement and enhancing the Federal role.

 

Ken Alkema, Director of Environmental Health, State of Utah, presented "State Perspec­tive in U.S. Enforcement Relationship". Mr. Alkema emphasized the fact that the States consider themselves primarily responsible for enforcement of environmental legislation. EPA should be responsi­ble for research, drawing up general rules, giving technical assistance etc. National priorities should be made subordinated to priorities which have been established by the State. His presenta­tion highlighted the difference between those arguing for substantial deference to individual State authority and those desiring to enhance direct Federal enforce­ment.

 

Rolf Wägenbauer, European Economic Community, presented "European Commu­ni­­ty's prospects for Enforcements of Directives". On the basis of the single European Act, the Member States are bound to adapt national legislation to EC Directives; however, the Act provides limited compul­sion to the EC.

 

Adaptation within deadlines is supervised by the European Commission. In case of negligence, the Court of Justice can condemn a member state. However, this is never accompanied by sanctions. The Commission has no competencies to take action regarding imple­mentation and enforcement of a member state. In order to improve this situation, some suggestions were made: Regulations instead of Directives, the foundation of an E.C.-Environmental Fund and an international environmental control authority.

 

 

3.0       Plenary and Open Discussion Sessions

 

Following is a summary of the major points raised during discussion sessions.

 

3.1       Strategy is required for adequate enforcement

Environmental problems are national problems, however, enforcement of environ­mental legislation should take place as much as possible at the local level. In order to come to an adequate enforcement at the local level, it is necessary to formulate a strategy in the long term. This strategy should be the basis of a clear policy, including common aims.

 

3.2       Division of tasks should be clear

The different authorities should decide which role should be given to which autho­­rity in order to achieve the aims.

 

3.3       Mutual exchange of information is necessary

Some instruments are essential for the implementation of policy and the achieve­ment of aims like a common data bank, which should be supplied continuously with actual data, reporting on results, financial and personal sources, specialistic technical assistance etc.

 

3.4       It is necessary to supervise implementation of policy

There was general agreement that is necessary to supervise the implementation of policy and tasks. Supervision should not be reduced to evaluation of reportings on results. A rather independent control authority would be necessary. Referen­ces were made to Mr. Donkers' suggestion to grant competencies to the European Commission, like the competencies described in the Euratom-Treaty. Such an autho­rity can have inspection tasks and contribute to:

-     a more consistent implementation of policy by local authorities;

-     the approach of "transfrontier" problems;

-      specialized technical assistance;

-     feedback to policymakers.

It was emphasized that the aim is a supporting relation between such an inspecti­on and local authorities that provides training, analytic insight and enforcement support.

 

THEME 3:     INTERNATIONAL TRANSBOUNDARY POLLUTION PROBLEMS

 

Reporter: Rob Bouma

 

 

1.0       Goals

 

The Workshop has focused on particular examples of enforcement problems that cut across national borders: hazardous waste, and toxic chemicals and pesticide product import and export without sound environmental safeguards. Various atti­tudes and approaches will be explored to address these issues, inclu­ding trends in the international co-operation and sharing of data and the need for innovative techniques for detecting violations.

 

 

2.0       Presentations

 

Paul R. Thomson, Jr., Deputy Assistant Administrator for Criminal Enforcement within the Office of Enforcement of the EPA. The Import/Export of Hazardous Waste and Toxic Substances: the U.S. Enforce­ment Experience. Paul Thomson gave an overview of:

-     the magnitude and scope of the problem and the specific challenge to domes­tic and international enforcement;

-     the application of criminal and civil enforcement for ensuring compliance;

-     the U.S. experience;

-     upcoming amendments related to the Basel Convention; proposed legislation;

-     bilateral and regional agreements, enforcement strategy, and statistical pro­files.

He explained roles and responsibilities within and among levels of government including relationships among: the U.S. EPA, States, Customs, FBI, Department of Justice, etc.

 

Jo Gerardu, Head of Enforcement Program Office, Enforcement Division, Minis­try VROM the Netherlands. Netherlands Case Study in Enforcement of Hazardous Waste Import/Export. Information was given on the:

-     extent of export of hazardous waste from the Netherlands, and policies to increase treatment capacity and decrease export, enforcement of the Chemi­cal Waste Act which implements the EC directives of hazardous waste trans­port and enforcement strategies for hazardous waste transport now and fol­lowing the opening of the European Market.

 

Mr Carel de Villeneuve, Commission European Community. Chemical Waste Trans­­port: European Community and Outside. Mr. de Villeneuve gave a presenta­ti­on about:

-     enforcing EC-directives through member states, including the extent to which the EC can influence member states which may be slow or reluctant to imple­ment those directives for economic or other reasons;

-     enforcing EC-directives concerning hazardous waste transport, in particular, and fine tuning of EC and OECD hazardous waste regulations;

-     challenge of differing definitions of hazardous waste, terminology, require­ments and analytical methods and the potential need for standardization to control wastes and for enforcement purposes;

-     degree of co-operation now and in the future among supranational organiza-tions such as the EC, UNEP, OECD, etc. and

-     the challenge of enforcing country and EC regulations for large scale hazar­dous waste facilities handling wastes of multiple countries given reduced restrictions across European borders.

 

Mr. M.B. Kante, Senegal. Other Perspectives on Hazardous and Solid Waste Enforce­­ment. Mr. Kante presented an overview of the nature and extent of cur­rent bilateral and multilateral agreements to control the export and import of hazardous wastes and the challenge of ensuring compliance with these agree­ments: capabili­ty of developing countries to track and control importation of hazardous wastes, respond to notifications, etc.

 

Ms. Connie Musgrove, Chief Executive Officer, Office of Compliance Monitoring Office of Pesticides and toxic Substances, EPA. Pesticides Import and Export. Co­nnie Musgrove gave an comprehensive review of the U.S. pesticide export pro­gram, review of:

-     EPA's current export enforcement program;

-     results of an inspection program during the summer of 1989 to evaluate com­pliance with the Section 17(a) export requirements;

-     review of the effectiveness of the existing notification scheme for FIFRA Section 17(b) and several options under consideration for its improvement.

Connie explained that the United Nations Food and Agriculture Organization (FAO) and the United Nations Environment Programme (UNEP) have (with United States assistance) adopted a system to provide increased controls on exports of banned and restricted chemicals and gave information about ongoing issues in developing and implementing more effective enforcement programs; including exploration of industry compliance with the PIC systems through self-policing.

 

 

3.0       Plenary and open discussion sessions

 

The participants discussed the transboundary shipment of hazardous waste and toxic substances in great detail. Regarding hazardous waste, ratification of the Convention of Basel and quick implementa­tion of the principles of this Conventi­on were emphasized. Great importance was attached to effective enforcement. In order to realize the above-mentioned, international co-operation and a quick ex­change of information between enforcement bodies is needed. Perhaps this could be realized by co-operation with Interpol. This organization should pay attenti­on to environmental criminality. A secretariat, like proposed in the Con­ven­tion of Basel was generally considered as very important.

 

It should be mentioned that in general the formal channels for contacts between authori­ties (ministries of external relations, embassies) do not work quickly enough to play an important role in the exchange of information for the purpose of enforcement. We need to consider direct contacts between enforcement bo­dies. Some participants underlined the importance of the "old boy"-network, in which customs officials are playing an important part.

 

The developing countries (Indonesia, Senegal) called to attention for their pro­blems.

 

The Convention of Basel is a good basis for these countries as well, in order to protect them against the import of hazardous waste. However, it was emphasized that the developed countries should not only protect the developing countries, the last-mentioned should be enabled to protect them­selves as well. Possibilities should be given to the developing countries in order to gain know-how and expe­riences, it is very important both to inform them in order to evaluate the aspects of danger of hazardous waste and to supply equip­ment and materials for research.

The developing countries also urgently requested assistance in developing a sys­tem to collect and to process hazardous waste in the own country without nega­tive effects. It was emphasized that the developing countries could not indulge in the luxury of polluting by irresponsible processing methods, followed by very expensi­ve restoration.

 

In summary, the Workshop recommends:

-     eliminate international differences in definitions;

-     create possibilities for short communication lines in order to take action against illegal transports;

-     create possibilities in order to com to an adequate and timely exchange of informa­tion about transports, using the customs and Interpol;

-     create a legal basis to stop suspicious transports;

-     prevent sham recycling operations.

 

The Workshop recommends:

-     support of the self-development and the creation of the infrastructure for envi­ron­mental policy and enforcement in developing countries based on inter­national agreements like the Convention of Basel.

-     supply of information about products, processing and waste streams polluting the environment and endangering the public health in the developing coun­tries;

-      supporting the developing countries with information and technical support in order to prevent the mistakes which have been made in the industrialized countries. Developing countries do not have funds for environmental regu­lations.

 

The Workshop asks a fast ratification and implementation of the Convention of Basel and the secretariat will serve as a main point for information exchange.

THEME 4:           ENFORCEMENT OF INTERNATIONAL AGREEMENTS

 

Reporter: Bill Frank

 

 

1.0       Goals

 

The growing number of international accords addressing environmental concerns on a global scale require a continued enforcement commitment to stimulate com­pliance and ensure obligations are effectively and equit­ably met.