RESULTS OF THREE YEARS OF ENFORCEMENT OF REGULATIONS ON TRANSBOUNDARY SHIPMENTS OF HAZARDOUS WASTE IN THE NETHERLANDS
MARION FOKKÉ-BAGGEN
Ministry of Housing, Physical Planning and Environment Environmental Inspectorate
SUMMARY
The EC-Directive on transboundary shipments of hazardous waste was implemented in Netherlands legislation on October, 15th 1988. At the same time, a special bureau was established, in order to enforce the Regulation on import, export and transit of hazardous waste.
This paper provides an overview of the experiences of this bureau, after three years of practical enforcement. The method of working and the Enforcement Strategy of the bureau are discussed. Finally some cases illustrate practical problems of enforcement of regulations on transboundary shipments.
The conclusion is that co-operation between authorities, the fast ratification of relevant treaties and, within the E.C., the effectuation of the Regulation on transboundary shipments of hazardous waste are of crucial importance.
Besides, it seems to be necessary to continue active, physical monitoring next to the inspection of documents, on the basis of an enforcement strategy including transboundary shipments of recyclable hazardous waste.
1 INTRODUCTION
The European Directive, pertaining to the import, export and transit of hazardous waste was implemented in Netherlands legislation on October 15th, 1988, when the Regulation on import, export and transit of hazardous waste entered into force.
This Regulation is a part of the Chemical Waste Act. In principle, import, export and transit of hazardous waste are not allowed, without permission of the competent authorities. The Regulation implies procedures for notification beforehand of the intended shipment and accompanying documents with the transport, proving the permission of the competent authorities.
The responsibility for execution of the legislation concerned rests with the central Government. Therefore, the Minister of Housing, Physical Planning and Environment is responsible for execution and enforcement of the legislation concerned.
Simultaneously with the decision to implement the E.C.-Directive, it was decided to start enforcement of the legislation seriously by creating a special bureau for the control of transboundary transports within the Environmental Inspectorate.
This bureau started at the end of 1989 with real enforcement of relevant legislation. At this moment the bureau has 19 staff members.
After almost three years of practical experience, some interesting aspects concerning enforcement of the legislation on transboundary shipments of hazardous waste can be mentioned. First of all the Netherlands policy concerning transboundary shipments of hazardous waste will be discussed briefly.
The amount of transboundary shipments of hazardous waste is illustrated in some figures.
Next, the working method of the bureau, responsible for enforcement of the legislation concerned and the Enforcement Strategy to be followed, are discussed.
Finally, it will be useful to present some characteristic practical examples as well as some connected conclusions in general.
2 POLICY AND SOME FIGURES
2.1 Policy
The policy upon which the examination of applications for permission to import or export hazardous waste is based, is mainly described in plans and programs of the government. At the end of 1991 it was decided to create a new plan, the Multi-year Plan for Chemical Waste, in which the intended disposal system of chemical waste will be described in detail.
Like each country within the European Community, the basis of the Netherlands policy is that waste should be processed or disposed in the country of origin. However, a multinational approach is necessary for some specific waste substances. The special conditions of the soil and the high density of population in the Netherlands play a role as well.
In 1991, the Netherlands had insufficient combustion- and dumping capacity for high toxic chemical- and some bulk chemical waste.
In short, the lack of sufficient capacity as well as the lack of disposal structures were, in general, reasons to allow the export of waste. Permission to import waste in order to process into the Netherlands will only be given if the disposal or processing of Dutch waste will not be jeopardized. At the same time, a criteria for allowing import is the fact that the country of origin have no or not enough possibilities to dispose of the waste.
2.2 Figures
Figure A shows the amount of imported waste in 1989, 1990 and 1991. The fluctuation in the amount of imported hazardous waste is caused by the import of contaminated soil to cleaning facilities.
Figure B shows that the amount of exported hazardous waste in recent years has been stable, although there are significant changes in the way the waste has been disposed of. The amount of waste, which is landfilled, has decreased from 106,5 kiloton in 1989 to 63,5 kiloton in 1991. On the other hand, the amount of waste, which is incinerated, has increased from 55,5 kiloton in 1989 to 81,5 kiloton in 1991. The amount of hazardous waste which was transported in transit via the Netherlands was 29,5 kiloton, excluding non-ferrous metals destined for recycling. In 1990, this was 38,5 kiloton.
The following table (figure C) shows the relationship between the Netherlands and 7 countries playing an important part in the import into, export out of and transit of hazardous waste via the Netherlands. The table gives the number of companies involved with transboundary shipments of hazardous waste. It is found that our direct neighboring countries are the most important partners. There is a clear connection concerning transboundary shipments of hazardous waste with particularly Germany and Belgium, but also with the United Kingdom. More over, waste is exported to France, while Ireland and Italy are important countries of import and transit.
Country Type of company
Producer Holder Consignee The Netherlands 185 100 29 Germany 100 58 34 Belgium 20 30 18 United Kingdom 3 4 20 France 1 1 8 Ireland 13 14 - Italy 14 7 - figure C
It is found that 95% of the Netherlands waste to be exported is shipped to Belgium, Germany and France. More than 70% of the transit of waste through the Netherlands originates from Germany. The United Kingdom is an important country of destination. Particularly Germany and Belgium export waste into the Netherlands.
3 METHODS OF WORKING
3.1 The organization
Concerning the enforcement philosophy to be followed, the choice was made to set up a centrally organized and managed enforcement unit with a partly regionally located staff. The arguments for choosing such a centrally organized and managed enforcement unit are the following:
transport and transboundary shipments are no local/regional, but nationwide affairs;
it is important that the number of authorities with final responsibility in this field will be limited;
enforcement of an international Regulation requires a central information- and co-ordination unit at central government level;
politically, the creation of a recognizable enforcement unit was considered important;
value was set on national consistent action, meaning clear and unambiguous actions, in case of violations of the Regulation;
reasons of effectiveness and efficiency.
In order to respond quickly to signals from the network, field inspectors, who mainly perform the executive activities and live and work in their own, attend the central unit
region. Therefore, the bureau divided the Netherlands into three regions.
A clear distinction between the tasks and responsibilities of the central and regional units should optimize effectiveness of enforcement.
Management, co-ordination, information, planning and (judicial) support are the principal tasks of the central unit, as the field inspectors are mainly occupied with, as already said, executive activities like monitoring compliance and taking action against violations.
Next to the way in which the enforcement unit has been organized, a second important principle is the co-operation with several other authorities. These authorities are, because of their own responsibilities, able to do activities in the field of enforcement of legislation on transboundary shipments of hazardous waste.
These authorities, the network, are mostly involved in enforcement, like the customs, police, port authorities, foreign colleagues, etc.
The network is of crucial importance because these authorities can fulfil an "eye and ear function" and/or do activities concerning transboundary shipments of hazardous waste.
3.2 Experiences with this method of working
At the end of 1991, the effectiveness and efficiency of this way of working has been evaluated.
This evaluation made clear, that the activities of the enforcement bureau contribute highly to the prevention of illegal transboundary shipments of hazardous waste. For example, the number of notifications of non-ferrous transports increased from 100 to about 600 monthly.
Furthermore, the evaluation made clear that it would be worthwhile to emphasize co-operation with the network, in order to improve effectiveness and efficiency of enforcement.
The intention is to start a process of change in the coming years by which next to the "eye and ear function", also less complicated activities could be done by the network, with the central bureau within the Environmental Inspectorate as the co-ordination and information center.
The central bureau, as the national working enforcement unit will specialize in complex large-scale enforcement activities.
In short, an adequate level of enforcement concerning international legislation is achieved by:
the creation of a central enforcement unit and the use of enforcement officials who are specialized in the enforcement of the regulation involved;
the organization of one central information and co-ordination center;
the realization of an optimal co-operation with the network, including international authorities.
4 PHILOSOPHY OF ENFORCEMENT
4.1 The Enforcement Strategy
In order to realize planned and systematic action against offenders of legislation concerning transboundary shipments of hazardous waste, a so-called Enforcement Strategy (a concrete enforcement policy) has been developed. This Enforcement Strategy has been created as follows.
First of all the violations have been classified in relation to the impact of the violation on the basis of uniform judgement criteria.
Violations have been divided into two categories:
Category 1: procedural or administrative violations;
Category 2: transboundary transports without transport- or receipt notification.Further, relevant policy decisions and interpretations of legislation have been examined and included in the Enforcement Strategy.
On the basis of this information, an Enforcement Strategy has been made. This strategy describes the enforcement action, which should be taken in case of a particular category of violations. It is described as well at which moment action should be taken and who is responsible.
The Enforcement Strategy mainly consists of the following;
In case a "category 1 violation" is established for the first time, a warning letter is sent to the company involved, eventually combined with an inspection visit. The offender should take measures in order to comply with legislation.
In case of recidivism, criminal action is taken by making an official report to the public prosecutor.
In case a "category 2 violation" is established, in principle, criminal action will always be taken and an official report will be made. In certain cases, the Public Prosecutor is advised to impose a so-called preliminary measure, in order to freeze the situation so that no further environmental damage can be caused. Complementary administrative enforcement measures can be taken.
The administrative approach includes two possibilities of taking action. In the first place, hazardous waste, which has been imported or exported illegally, can be returned to the country of origin at the expense of the offender by using an administrative compliance order. It is possible as well to impose a "dwangsom", meaning an administrative compliance order, which includes an economic compliance incentive of significant sums for each day of continuing violation.
4.2 Experiences with the Enforcement Strategy
It was found that the Enforcement Strategy creates clarity, which is appreciated by both the Public Prosecutor and the network.
In cases of non-compliance with the Regulation on import, export and transit of hazardous waste, there is always an international component. Foreign companies act contrary to the law as well, which makes efficient and effective enforcement more complicated.
Therefore, the following practical solutions are used in relation to companies:
Compliance with the Regulation could be achieved via the Netherlands companies, by advising them to urge their partners to comply with Dutch legislation.
Dutch companies, like agents, transporters, storage or transshipment companies etc. are responsible for a proper course of affairs.
This implies that they are responsible as well for compliance with the Regulation. In case of no compliance, criminal action and/or administrative action can be taken.A warning letter is sent in case a foreign company acts contrary to the Regulation. Official reports are made as well and compliance order or a dwangsom can be used.
Apart from the specific Netherlands legislation, the following complicating factors play an important role in general:
Different countries use different definitions of waste. Waste in one country is considered as commodity in the other country.
The definition of hazardous waste is not uniform in each country.
The ways in which the E.C.-Directives have been implemented in national legislation differ from one another.
For non-E.C.-countries, the differences in definitions and legislation concerning transboundary shipments of hazardous waste are even larger.
By reason of the above-mentioned factors, there is often a lack of knowledge of legislation in other countries. Sometimes this results in a lack of co-operation between foreign countries. Other countries do not or can not always respect violations of regulations, because the situation is not contrary to law in the own country, or because they do not know the legislation in other countries. In the following part, examples of the above mentioned will be given.
This kind of problems can be solved by:
5 CASES to further a fast ratification of treaties on international level, like the Treaty of Basel;
to effect as soon as possible the Regulation on transboundary shipments of hazardous waste within the E.C.; and
finally, to promote the bilateral exchange of information on legislation and enforcement and to make formal and informal appointments and covenants between the authorities in the different countries.
5.1 Case 1: transit of zinc waste
Below, the transit of zinc waste via the port of Rotterdam is described, on the basis of 2 separate (but related) cases.
January, 18th. 1991:
The river police of Rotterdam found a shipment of zinc waste in the Port of Rotterdam, stored in a warehouse, in order to be transported to Poland for recycling.
This material is a non-ferrous waste and contains high amounts of hazardous "heavy metals" such as cadmium and zinc.
For transit via the Netherlands compliance with the Regulation on import, export and transit of hazardous waste is obligatory.
In case waste is considered as non-ferrous waste, from which the non-ferrous metals will be recycled, it is possible to use a simplified procedure. This means that it is not necessary to ask permission for the transport beforehand. However, the transport should be notified and should be accompanied by documents, proving recycling of the waste.
Because the company involved did not comply with the procedures, the bureau responsible for the enforcement made an investigation in order to find the origin of the waste. It was found that the waste origins from several companies in a nearby country and was collected by an other company in that country. The latter transported the waste to Rotterdam in order to export it to Poland. The Polish authorities were asked whether they agreed with the import of this material to Poland or not.
The authorities made clear that they did not want to import this kind of waste. Recycling of this kind of waste in an environmentally safe way was not possible in Poland.
The Netherlands tried to get help from the country of origin and the company concerned, in order to return the waste to the country of origin. Up till now it has not been possible to return this waste. The waste still remains in Rotterdam, waiting for reshipment to the country of origin.
May, 28th. 1991:
Another shipment of zinc waste was found in a warehouse in Rotterdam, the same where the above mentioned zinc waste has been stored.
The composition of this waste is almost the same as the composition of the above mentioned zinc waste.
This waste was also collected in the same nearby country by a company that turned out to be the neighbor of the company collecting the other shipment of zinc waste!
This shipment was not bound for Poland, but for the former USSR. We found out that the Soviet company involved was a production factory of injection-needles, which has nothing to do with zinc waste.
We formally asked the Soviet authorities to agree with the import of this waste. They answered that it was not allowed to import this kind of waste to this company. The waste still is stored in the Port of Rotterdam as well.
5.2 What can we learn from these examples?
5.2.1 Non-ferrous recycling
These two examples, that are closely related, illustrate the problem with "recyclable" non-ferrous waste. The Netherlands of course stimulates the recycling of non-ferrous waste. Recycling does not only prevent that these hazardous waste pollutes the environment, but enables the re-use of these substances as well.
However, our practical experience with enforcement shows that large quantities of hazardous waste are shipped round the world, wearing false colors.
Next to it, it is possible that the trader really intends to offer a shipment non-ferrous waste for recycling, although there is no client at that moment. After the transport, it is found that efficient economical recycling is not possible. However, the transboundary shipment of hazardous waste already took place illegally.
Finally the simplified non-ferrous procedure is used by people who are not very particular with the environment, shipping unrecyclable hazardous waste, without permission of the competent authorities.
In short: it is important to continue the regular inspection of non-ferrous transports, even if transports of non-ferrous waste will be shipped like transports of "general cargo" in the future (OECD-decision). It is important as well to find an international standard definition of recycling (can we speak about recycling if only 5% of a waste shipment can be recycled and 95% is dumped).
5.2.2 Waste or commodity
In 1991 when it became clear that there was no destination for the above mentioned waste, the Netherlands tried to co-operate with the country of origin, in order to return the waste to the sender by using administrative compliance order. However, in the opinion of the country of origin the material was no waste but commodity. Therefore this country refused co-operation. Therefore, the procedure of administrative compliance order could not be used.
It is very important to come to one definition of waste with regard to commodity and one list of hazardous waste and non-ferrous metals.
Till that time the countries concerned should respect legislation in other countries. There should be compliance with legislation in all countries concerned.
At this moment a dwangsom-procedure has been started against the companies in the country of origin. However, due to the problem of borders, up till now it has not been possible to force the companies to pay.
5.3 Case 2: export of hazardous waste via an agent
In July 1991 the enforcement bureau was called by a customs office at the border between the Netherlands and Belgium.
The customs found a tank-container with - according to the forms - an oil/water mixture, which is considered as hazardous waste, coming from France, via Belgium to the Netherlands. Such a shipment should be accompanied by a special form, indicating that approval for this shipment has been given by the competent authorities.
In case of the above mentioned tank-container, the information on the notification form did not fully comply with the shipment:
the date of transport on the form did not correspond with the actual date of transport;
according to the forms, the shipment should be transported from the Netherlands to France, instead of the opposite.
The enforcement bureau detained this transport. It was found that a Netherlands producer exported this waste to a processing company in France. The driver declared that he left the Netherlands two days before, the date mentioned at the form. The transport had not been inspected then. The processing company in France took samples, in order to analyze the material. The waste was refused on the basis of this analysis and returned to the original producer. The French company refused the waste, because of no compliance with the acceptation norm. The samples of this waste showed a percentage of 3% organic chlorines, more than allowed in the environmental license of the processing company, for which no logical explanation could be given. The maximum percentage which could be processed by the French company is 2% organic chlorines.
Samples were taken and it was found that the accompanying forms did not correspond with the contents of the tank-container. False colors were worn.
As a result, an investigation was started in order to find out if waste substances were frequently exported to France in this way. Therefore, the customs were asked to "signalize" the agent concerned, which means that the computerized customs-system automatically gives a signal in case transports from this agent are im- or ex- ported.
In October 1991, 8 transports were signalized within one week. These transports came from different producers, but were shipped by the same agent. After inspecting, samples were taken from 6 containers. One of this containers has been refused in France as well.
As a result of the above-mentioned and due to other signals, it was suspected that this waste agent illegally organized transboundary shipments of hazardous waste for other companies. Furthermore, it was found that this agent made his clients believe, that he had a Chemical Waste Act license, which turned out to be untrue.
In consultation with the Public Prosecutor, it was decided to do a judicial investigation, which has been started by the local police with the assistance of a specialized division of the Environmental Inspectorate, the Environmental Assistance Team. At this moment this investigation has been completed successfully. We are waiting for this case to appear before the court of law.
5.4 What can we learn from this example?
First of all, it is important to inspect regularly, in order to check if the transport corresponds with the forms. The experiences with enforcement show that shipments with hazardous or non-ferrous waste sometimes did not correspond with the notification.
Secondly, this example shows the importance of international co-operation between both monitoring and criminal investigation authorities. Offenders of legislation cross frontiers and take advantage of bad co-operation and, as a result, ignorance of authorities.
In the third place, close co-operation between monitoring and criminal investigation authorities is of crucial importance.
In the Netherlands, the infrastructure has been created in such a way, that for criminal investigation relevant monitoring findings and information found by inspection activities within the Environmental Inspectorate, are joined at one central information point, the Central National Information point Environmental Crime (CLIM).
Furthermore, a specialized unit at the Environmental Inspectorate can support judicial authorities in case of a criminal investigation. This unit has well trained specialists who can assist in case of the necessity of a criminal investigation. Information is available at the Central National Information point Environmental Crime.
Finally, this case shows that monitoring compliance and enforcement are necessary for the whole waste chain, from the original producer till the final processing company and all connected links. Decentralization of enforcement competencies often takes place at the same time with decentralization of licensing competencies. This is defensible from the point of view of efficiency, provided that the central authority remains responsible for enforcement of legislation for the whole chain.
6 CONCLUSIONS
In general, on the basis of three years of practical experiences in enforcement, the following conclusions can be drawn.
Co-operation with other authorities (on national and international level) is of crucial importance for the approach of enforcement of legislation concerning transboundary shipments of waste.
Making appointments, in order to realize an adequate exchange of information and the respecting of responsibilities and possibilities of each other, will result in an effective approach.Next to the "inspection of documents", active physical inspection is necessary. The total waste chain deserves particular attention (from the cradle to the grave).
Furthermore, there should be consistency between monitoring activities and actions as a result of violations.Monitoring compliance should take place on the basis of the Enforcement Strategy. Prompt action is necessary, in order to maximize the deterrence of enforcement activities.
Practical experiences with enforcement show that all sorts of hazardous waste are shipped all over the world, pretending recycling, without adequate inspection of the environmental consequences. Therefore, it is very important to continue the inspection of this waste shipments, particularly in case regulations will be relaxed.
Within the E.C., the quick effectuation of the Regulation on transboundary shipments of hazardous waste and the related standardization of legislation concerned is essential. Worldwide, a fast ratification of treaties like the Treaty of Basel is necessary.
7 REFERENCES
Netherlands case study in enforcement of hazardous waste import/export, by J.R. Bouma and J.J.A. Gerardu, Proceedings International Enforcement Workshop, May 1990, Utrecht (the Netherlands).
Jaaroverzicht in-, uit- en doorvoer van gevaarlijke afvalstoffen 1991, Bureau Meldingen Wet chemische afvalstoffen, Directoraat-Generaal Milieubeheer, mei 1992 Leidschendam.
Handhavingsuitvoeringsmethode voor de Regeling in-, uit en doorvoer van gevaarlijke afvalstoffen (Wca), Inspectie Milieuhygiëne, hoofdafdeling Handhaving Milieuwetgeving, oktober 1991.
Regulation on import, export and transit of hazardous waste, Ministry of Housing, Physical planning and Environment, 1988, The Hague.
Fourth Progress report on Environmental law enforcement, Ministry of Housing, Physical planning and Environment, October 1991, The Hague.