COMPLIANCE MONITORING IN POLAND: CURRENT STATE AND DEVELOPMENT
JERZY JENDROSKA
Research Group on Environmental Law, Institute of Law, Polish Academy of Sciences, Wroclaw
1 INTRODUCTION
Communist governments were notorious for their fallacious development policies and poor environmental records. It is less known however, that - at least in Poland - environmental problems were not caused by the absence of environmental laws, but first of all by the fact that these laws were not enforced.
When the communist government collapsed in 1989, there were no doubts that a new environmental policy was badly needed, and that this new policy, in order to be implemented, required not only new laws, but first of all an effective enforcement, based on a comprehensive system of monitoring compliance. A significant progress in this area was made in 1991, the reform however is still far from being completed.(1)
Bearing in mind that sufficient organizational arrangements are a prerequisite for an effective regulatory scheme, before describing more in detail the current state and perspectives of monitoring compliance, it will be useful to present an overview of the organizational arrangements, emphasizing their shortcomings and the attempt to remedy these shortcomings made in 1991.
2 ORGANIZATIONAL ARRANGEMENTS
2.1 The overall structure and its shortcomings before 1991
Responsibilities for monitoring compliance with environmental laws are divided between public health and environmental authorities. As a public health authority acts the State Sanitary Inspectorate.
The Inspectorate is a central agency, with the Chief Sanitary Inspector at the top, and regional inspectors (at the voivodship level) as well as district inspectors (at the municipal or local commune level). The number of the Inspectorate's employees totals several thousands. The Inspectorate has a well established system of area monitoring and inspectors have broad inspection and enforcement powers. In carrying out its activities, however, the Sanitary Inspectorate is interested in compliance with environmental standards only insofar as the public health or occupational safety and health issues are involved. Therefore, despite the fact that its area monitoring data provide a valuable input to monitoring compliance, the role of the Sanitary Inspectorate in environmental law enforcement is of secondary importance, as compared with the role of environmental authorities. And here, the division of powers between environmental authorities was a very controversial issue for years.
In the communist government's environmental regulatory program, the most significant authority and responsibility for administering environmental laws resided with a governor (the chief of the governmental administration in a voivodship). Governors were made responsible not only for issuing permits, setting individual allowable emission and discharge levels, and collecting fees for use of natural resources but also for monitoring compliance and enforcement. Governors, in carrying out their functions as environmental authorities, were assisted by their environmental officers, and their Environmental Survey and Monitoring Centers (commonly referred to as OBiKS). Altogether, in 49 voivodships, the number of environmental officers in 1989 totaled 1325, whereas the number of OBiKSs' employees totaled 2422.
The Environmental Protection Act of 1980 (EPA 1980) supplemented the framework of environmental authorities with a central government's monitoring compliance agency: the State Environmental Protection Inspectorate (commonly referred to as PIOS). The organizational structure of PIOS, as provided by the EPA 1980, consisted of the Headquarters and 6 Regional Offices. PIOS was a relatively small agency (about 400 employees) reporting directly to the Environment Minister. PIOS did not have any enforcement powers. The major shortcomings of the above described organizational arrangements were: lack of clarity as to the roles and responsibilities of various agencies involved in monitoring compliance and enforcement, and lack of coordination of their efforts. They used an assortment of methods and procedures, which prevented any comparison of results. There was no system of checking the calibration of instruments, and no certification of laboratories. The agencies were understaffed and equipped with absolute, manually operated measurement devices(2). Bearing in mind the size of regulated community (more than 40.000 registered stationary sources of air pollution, about 3.000 industrial plants discharging effluents directly to watercourses) , there is nothing surprising that inspections were to no avail.
PIOS was meant to be an "environmental watchdog", that was however a watchdog without teeth: it had neither sufficient tools to coordinate monitoring efforts nor any enforcement powers. Polish law provided that only individuals could be held criminally liable, but prosecutions against directors of polluting companies were rarely brought to courts by public prosecutors(3). As an equivalent of criminal liability of legal persons, the EPA 1980 established special administrative sanctions. Governors were empowered to halt activity endangering the environment and to impose non-compliance fines. Governors however, being primarily responsible for the economic development of their voivodship, were extremely reluctant to halt any economic activity and limited themselves to imposing fines. Bearing in mind that non-compliance fines were very low and offered a cheaper option than compliance, there is nothing surprising that environmental laws were in practice unforceable.(4)
2.2 Improvements: the State Environmental Protection Act of 1991
The 1991 Act is an attempt to remedy the above described shortcomings by strengthening the role of PIOS. The Act gives PIOS enforcement powers previously carried out by governors and provides it with the sufficient status and resources to cope with its new responsibilities.
The 1991 Act incorporated OBiKSs to the structure of PIOS, which now consists of the Headquarters and 49 branches at the voivodship level. The number of its employees totals 2.500. Inspectors have the power to impose non-compliance fines, to halt activity endangering the environment, and to ban the sale and import of raw materials, fuels, machinery and other technical appliances and goods which fail to meet environmental requirements. No new facility or activity which may cause harm to the environment, may start operation, until PIOS is notified and satisfied with the application of mitigation measures (this powerful new tool has proved itself recently, when the new Warsaw Airport, an investment worth US$ 2 billion, having been formally opened by the Prime Minister, was prevented from starting operation by a PIOS inspector). Apart from enforcement powers and inspections, PIOS is responsible also for assessing the risk of, preventing and combating the accidents (ecological disasters), as well as for management of the nationwide environmental data system. To this end it has some coordination powers, as for example: to certify that laboratories apply good laboratory practice or to provide guidelines as to the methods of measuring, sampling etc. All agencies involved in monitoring compliance are bound to cooperate with PIOS by coordinating plans of inspections and exchanging information. PIOS cooperates also with the police, customs officers and border officers.
3 FORMS OF COMPLIANCE MONITORING
3.1 Inspections
Inspections are conducted only by government inspectors. They may notify the facility prior to inspection or arrive unannounced. Inspectors plan inspections, gather data in and/or around a particular facility, record and report on their observations, and - if there is a direct danger to human health or life, or direct and significant danger to the environment - have the right to issue decisions as to preventing the risk, which are to be realized immediately.
Inspections may be routine (those usually planned on the monthly base) or "for cause" (usually as a result of citizens' complaints, police reports or the request of a governor). Inspections may also be either complex ones or single-media oriented. In case of the first ones, usually there are 10-12 inspectors involved, and their task is to examine entire environmental performance of a plant. In case of the latter ones, there are only 1-3 inspectors involved, focusing on a single issue (for example: water management within a plant). The average capacity of a PIOS's voivodship branch is 3-4 complex inspections or 20-30 single-media inspections.The recent PIOS's policy favors complex inspections.
The inspector has the right to enter facilities (with experts or whoever else he needs), to interview facilities' personnel, to have access to all files, documents and records, to observe operations, and to take samples for analysis. The inspector has to provide the manager of inspected facilities with his report. The manager has the right to introduce to the report his comments or reservations.
The report is a basis either for issuing a decision as to applying some new mitigation measures or for enforcement measures (non-compliance fines or halting harmful activity) to be imposed by the chief of the respective voivodship branch of PIOS. It is worth mentioning that PIOS is entitled to recover the costs of inspecting facilities if the inspection resulted in findings of non-compliance.
3.2 Self-monitoring, recordkeeping and reporting by the regulated community
Self-monitoring, recordkeeping and reporting are required by regulations in relation to water pollution, air pollution and storage of waste.
In case of self-monitoring and recordkeeping, the general regulatory requirements are usually being translated to facility-specific requirements via permits. Only air pollution regulations provide for specific requirements in certain cases (for example, a plant in which a stationary source emits within an hour more than 12000 kg of SO2 or 800 kg of dust, is bound to monitor emission from each emitter permanently). In case of reporting, the detailed requirements are provided by the regulations themselves. Reporting is not related to permits but to a scheme providing special fees for the use of natural resources (for use of water, for discharge effluents to water, for air emission and for storage of waste) (5). The regulations provide for detailed requirements as to reports and set 31 of January as a deadline for producing an annual report. If a plant fails to meet the deadline or requirements as to the report, the fee is charged upon discretion and applied are fee rates of the day (this provision is very important because fee rates are being increased usually every year).
3.3 Environmental auditing
The EPA 1980 authorizes governors to require from managers of existing facilities to provide an environmental impact assessment concerning their facilities. The assessment is to be prepared by the expert indicated by the governor, but costs are to be borne by the manager of facilities. In case of not providing the assessment within the fixed time, the governor may commission an expert to prepare it on the expense of the manager of facilities at question. Experts can be drawn only from the list of verified EIA experts, which is carried out by the Environment Minister. The 1990 regulations on the EIA provides for detailed requirements as to the content of EIAs concerning existing facilities.(6) Besides the requirements established for project-related EIAs, EIAs concerning existing facilities should: 1) refer to information about the state of the environment gathered prior to construction, and during operation of a given plant or facilities, 2) take into account the quantitative data as to the water consumption and all kinds of pollution, gathered during operation of a given plant or facilities, 3) estimate the present and anticipated impacts on particular elements of the environment and on human health. In 1990 the Environment Minister prepared a list of the top 80 industrial polluters in Poland, and requested respective governors to require EIAs from their managers. These EIAs were not meant to serve primarily as enforcement tools, but to serve as foundations for establishing special pollution reduction programs, to implementing which they were obliged over the next three to five years. The same scheme is being applied currently at the voivodship level, where the top polluters for given areas have been recognized (there are about 800 those locally significant polluters).
3.4 Citizen complaints
There are no special programs that encourage citizen involvement in monitoring compliance or help educate and train citizens to detect and report problems. Nevertheless, citizen complaints are estimated to be a significant source of detecting violations (PIOS's inspections resulting from citizen complaints are estimated about 100 a year). Very important role play here members of non-professional guards (Nature Protection Guard and Angling Guard) which are the "mailed fists" of nature conservation NGOs (7). Though they are trained to assist governmental agencies only in enforcing nature conservation laws, they often reports also on non-compliance with pollution standards.
3.5 Area monitoring
Area monitoring does not use as yet sophisticated methods and is based on stationary stations of ambient monitoring. Well established networks of such monitoring stations are maintained by the State Sanitary Inspectorate and hydrological and meteorological services. PIOS only recently is trying to supplement these network with some more sophisticated monitoring techniques. The above mentioned national environmental data base system (commonly refereed to as Monitoring System) is being created now by PIOS with a significant foreign financial assistance.
4 PERSPECTIVES
The improvement in monitoring compliance, though significant, does not seem to be sufficient. First of all, the existing regulatory scheme has to be redesigned in relation to environmental auditing. Under the existing scheme, companies may reasonably argue that monitoring compliance is that what they are paying taxes for, and as long as their non-compliance has been proved, they should not be made responsible for the costs of performing audits. Moreover, governors designate auditors, but that is a company which pays additional costs if an EIA has to be corrected.
The new law must choose between two options: either environmental auditing treated as an element of building credibility of companies or treated as an element of enforcement. In the first case new environmental auditing scheme in Poland would be similar to the eco-auditing scheme currently being considered by the EC. There is still to be decided whether this kind of scheme should be voluntarily or obligatory, but there are no doubts that companies should be free to choose auditors (perhaps from the list of verified auditors) and that should be some incentives for building credibility in this form (perhaps an eco-label).
If, however, auditing is to serve as an element of enforcement, there is no doubt that companies should not be made paid for audits and be responsible for the mistakes done by auditors.
It must be mentioned,that in course of law-drafting works, two new forms of monitoring compliance are being considered.
The first form is aiming to get the public involved in monitoring compliance by redesigning the institution of public environmental wardens provided by the EPA 1980. In the new design, wardens, being nominated from the well-qualified and responsible citizens, would have almost the same rights to inspect facilities as PIOS inspectors have. Wardens would be assisting PIOS in monitoring compliance and have the right to institute enforcement proceedings similar to public prosecutor powers.
The second form being considered is reforming decision structures within corporations. The aim is to link (following German (8) and Japanese (9) experiences) corporate's environmental control with governmental control and to have a kind of publicized environmental control within corporations. To this end, the top polluters (listed by the Environment Minister) would be obliged to establish a separate "environmental service" with an environmental director at board of directors level. The environmental director would have some statutory duties and powers within the company. There should be also defined qualifications of those legally charged with environmental responsibilities (for example: with self-monitoring, recordkeeping or reporting) in the companies listed as top polluters, and a special procedure in which their nomination or dismissal would need to be consulted with PIOS.
REFERENCES
Jendroska, J., Environmental Law in Poland in a Transition Period: Recent Development of Legislation, Tijdschrift voor Millieu & Recht, in press.
Nowicki, M., Environment in Poland. Issues and Solutions, Ministry of Environmental Protection, Natural Resources and Forestry, Warsaw, 1992.
Radecki, W. and Rotko, J., Entwicklung des Natur- und Umweltschutzrechts in Mittel- und Osteuropa, Nomos Verlag, Baden-Baden, 1991.
Jendroska, J., Integrated Pollution Prevention Through Licensing Procedures in Poland, submitted for publication.
Jendroska, J. and Radecki, W., in: Z. Bochniarz and R. Bolan (Eds.), Designing Institutions for Sustainable Development: A New Challenge for Poland, Hubert H. Humphrey Institute, Minneapolis, 1991, pp. 57-76.
Jendroska, J., State of Environmental Law: Poland, submitted for publication.
Jendroska, J. and Nowacki, K. in: M. Fuhr and G. Roller (Eds.), Participation and Litigation Rights of Environmental Associations in Europe, Peter Lang, Frankfurt am Main-Bern-New York-Paris, 1991, pp. 39-56.
Rehbinder, E., Jahrbuch fur Rechtssoziologie und Rechtstheorie, 12(1988)
Bothe, M., Auslandisches Umweltrecht IV. Umweltschutz in Japan, Erich Schmidt Verlag, Berlin, 1975, pp. 184-189.