A CLEAR APPROACH GIVES FULL COMPLIANCE

A CLEAR APPROACH GIVES FULL COMPLIANCE

HUGO A.M.A. DE VRIES

Regional Inspector for the Environment in the Province North-Brabant, the Netherlands.

SUMMARY

The lnspectorate gives attention to the enforcement of environmental legislation. In this paper extra attention is given to:

· the compliance monitoring visits to the industries, to inform these industries, and to stimulate the authorities to take action in order to comply with the regulations;

· the development in licensing and enforcement in the Netherlands, especially in the Province North-Brabant.

The intensive contacts of the Inspectorate with the authorities and the industries vary from

diplomatic to straight from the shoulder. These different styles are found in this paper.

1 INTRODUCTION

Many reports are published on Environmental Policy in the Netherlands. I refer for example to the National Environmental Policy Plan and Plan Plus (ref. 1, 1989, 1990; references at the end of this paper) and the Annual Reports of the Inspectorate for the Environment (ref. 2, 1990). The environmental policy is developing all over the world (note the United Nations Conference on Environment and Development in Rio de Janeiro, June 1992). Much attention was given to policy planning and legislation, less attention for enforcement. However for "enforcement" we now have this second International Conference.

The everlasting work of P. Winsemius is worth mentioning here (ref. 3, 1986). He has shown two diagrams, which present a clear view of the environmental policy, namely the "Policy Life Cycle" of environmental problems and the "Regulatory Chain". This chain consists of four links: legislation & standard setting, licensing, implementation and enforcement. All the links are indispensable and are influencing one another (ref. 4, 1990, with the two diagrams, ref. 5, 1990).

For about 10 years enforcement had been one of the "missing links", but for the last few years more attention has been given to the enforcement and also to the implementation. With sufficient facilities, an honest and dedicated implementation of the legislation can and must be demanded from the businesses (see for the used nouns ref. 6) and the citizens. Enforcement is monitoring this implementation, is stressing the rules and - if necessary - is amending the rules. Enforcement can cause adjustments to the Acts (ref. 7, 1991).

The Inspectorate (for the Environment) is, together with the Governments, the Public Prosecutors, the Police and the businesses, working intensively on implementing and enforcing (ref. 2,5; ref 8, 1991). Some experiences of the Regional Inspectorate (i.e. for North-Brabant) are mentioned in this paper. The second chapter refers to "Licensing, Implementation and Enforcement in a broad sense", the third refers to "Enforcement in a more narrow sense", the fourth one refers to the incentives for the legislation and standard-setting, caused by enforcement practices and experience.

The Inspectorate of the Ministry for the Environment is an Organisation with a Chief Inspectorate and nine Regional Inspectorates. A Regional Inspectorate is mainly involved in the so called "second line" enforcement but also involved in the "first line" enforcement. "Second line" enforcement refers to provincial and municipal government. The main tasks of the Inspectorate are the testing and promoting of the quality of (the execution of) the environmental policy. The Inspectorate makes products i.e. reports on major activity aimed at passing judgment on the quality of the environmental policy and its execution (ref. 2).

2 LICENSING, IMPLEMENTATION AND ENFORCEMENT.

At this moment the Inspectorate is working together with the relevant local governments to attain permits for all the concerning industries by 1994 and provincial governments by 1995. That is to say that all the industries must be granted clear cut understandable permits which can be checked. The present situation is summarised as follows. Industries under control of the Municipal Government i.e. mostly less offending industries are listed under paragraph BUGM and FUN.

Bigger, more polluting, industries which are under the control of the Provincial Government are listed under paragraph BUPM (i.e. Industries which come not only under the Nuisance Act, but also under e.g. the Noise Nuisance Act, the Air Pollution Act, the Solid Waste Management Act).

2.1 BUGM (Contribution Decree Implementation of Municipal Environmental Policy)

By the end of the 70s only 25% of the industries operated on an adequate permit (ref. 9,

1991). For that reason a program was introduced in 1982 to implement the Nuisance Act. There were no funds for personnel at that time. In 1 984 a second program was introduced with funds for personnel: the so called MIP, a long-range intensification program for the enforcement of the chemical waste legislation, that supported enforcement activities (ret. 5). In 1990 a third program was started, the so called BUGM program with substantial funds for civil service personnel. The directive is an "adequate" and 100% licensing level, attained 1-1-1994. In the same year the Inspectorate set up a study to look at the quality of the municipal environmental policy (ref. 10, 1991). This study takes place in a yearly basis. The 1990 report on the BUGM program (a product) has led to the following important conclusions:

· the permits must be stricter i.e. the requirements must be stricter;

· the observations were reasonably good;

· the compliance monitoring is insufficient.

The reasons given for the report were:

insufficient number of experienced civil servants (municipal inspectors);
municipalities did not liaise adequately with one another (intermunicipal cooperation has begun, but municipal cooperatives not in sight); and
the municipalities show a lack of interest in enforcing the regulations.

2.1.1 Improvements in Licensing

On 1^st January 1990 in North-Brabant (ref. 11) the percentage of adequate permits had (due to the exertion of the Regional Inspectorate) risen to 55% and the intensity of the monitoring compliance had trebled to 13%. The manpower (technical personnel) had doubled. By the end of 1991 the number of adequate licenses had risen to 70-75% (in the Netherlands as a whole 5060%) (ref 12, 1990-1991) (fig. 1). The allocation of annual permits in North-Brabant has grown from about 2800 in 1985 to about 4000 in 1991. At this rate we will have a 90% total by 1995. This is not good enough. A huge effort is still necessary to ensure that we achieve our goal of 100% by 1995. Two further studies of 250 permits of complex industries in 1990 and 1991 by the Regional Inspectorate in North-Brabant (Inspectorate N.Br.) have been completed. The only criticisms to be found were that the stipulations within the permits were not clearly defined especially regarding the measurement of emissions.

2.1.2 Compliance Monitoring

It is the goal of the lnspectorate that the number of industries under control will be 25% by 1995. This means 15.000 controls per year in North-Brabant alone. The figure was 8% in 1985, 15% in 1990 and 21% in 1991 (18% in the whole of the Netherlands). Therefore a goal of 25% in 1995 is in sight (fig. 1).

During 1990 and 1991 the Inspectorate N.Br. inspected 500 industries together with municipal inspectors. The results were:

· the technical execution was conform the Inspectorate N.Br.;

· the findings, however, should have been briefed more rapidly to the industries;

· from the 250 locations visited in 1991, 23% does not act in compliance with the requirements, 65% shows small shortcomings and 12% meets the requirements.

2.1.3 Organization and Personnel

Owing to the BUGM-program the manpower attributed to licensing and enforcement has been increasing considerably in the Netherlands. In the province of North-Brabant this amounted to 210 in 1990 and to 325 person-years in 1991. The intermunicipal cooperation with respect to environmental activities has also been intensified. Though each municipality remains responsible for the implementation of the national environmental regulation and policy, this cooperation has caused a development towards "Governmental Regions" according to the Common Municipal Regulations Act (Wgr), but they are not governments yet. The officials of each municipality are working together and the public service organization of the mostly central-town is rendering assistance. This organization has the possibility to tackle complex industries and regional items. Experts can be employed, which was not possible for the individual municipality. In time this organization will have to work for the future regional government. In the Netherlands a few of these organizations are operational as yet. In North-Brabant the expectation is that in each of the 7 regions (with about 20 municipalities and about 300.000 inhabitants) such a public service organization will be in effect, since all municipalities agreed upon structural cooperation in their application for BUGM-funding. A different type of advantage of having such efficiently working regional environmental centers, is that the province administration will be delegate part of its tasks to these well organized and well equipped organizations. Indeed, this promotes an integral and regional uniform approach.

2.2 FUN (Financing municipal implementation of the national environmental plan)

The National Environmental Policy Plan contains about 80 points of action that require activities from the municipalities. The subjects differ widely. They might have connection with: industries, soil and groundwater protection, disposal of waste, land-use planning, housing, traffic and transport, energy, communication, education and enforcement. In contrast to the BUGM program, the adequate level of implementation of these points of action is less well defined in the FUN program. Compliance with the BUGM program, however, is a prerequisite for FUN financing. In North-Brabant 90% of all municipalities meet the FUN standards. The amounts involved in BUGM and FUN together, will nation-wide gradually increase to about DFL. 100 million in the year 1994 (fig. 2).

2.3 BUPM (Financing province implementation of the national environmental plan)

For provinces an analogous program to the BUGM ruling has been drafted. The only difference with the municipal directive is that the "adequate" level has to be attained one year later (1-1-1995). The reason is that provinces have to deal specifically with large and complex industries, as well with municipal industries. Nation-wide valid criteria to test the environmental soundness of industry activities, are in preparation. It can be concluded from partial tests by several Regional Inspectorates that much has to be accomplished yet in this respect (ref. 13, 1 991).

2.4 Industry

In 1991 a large number of industries were checked in a uniform way by all Regional

Inspectorates. The effectivity of the environmental policy and regulation with respect to the important target group "Industry" has been investigated. This year the findings on the quality of licensing, emissions and waste volumes will be reported.

The first result ("product") on the specific branch of LPG-stations has been published (ref. 14, 1992). Later on this subject will be worked out in detail.

The Inspectorate N.Br. was the initiator of the idea to have industries checked thoroughly with respect to their environmental behavior and side-effects. This has provided insight in the environmental acting of the business community in the province. Only in the last two years, in 1990 about 1000 and in 1991 about 800 industries were visited. With the BUGM checks as a basis, specific categories were added such as, extensive air-emissions, big noise sources, ecotoxic substances (including radio-active ones), intensive farmings and chemical wastes. As a consequence of 65% of the 1990 visits, more than 1000 actions had to be taken, the majority of which in the form of advices to the authorities and the company managers. In the year 1991 50% of the checks gave rise to more than 700 actions. Whenever action was taken in 1991, apart from the relevant authorities the involved industries were always informed about our findings, as well in 1990 the authorities were informed, but the companies not in all cases.

The specification of the requirements, as laid down in the permit, often turns out to be of low quality, especially when small and medium-sized industries are involved. Primarily the items concerning:

· the registration of the original situation with respect to soil conditions;

· leak proof checking of industrial waste water sewage systems;

· noise level checks; and

· the regulation of air-emissions with the connected monitoring obligations.

The latter are of importance to enforcement and thus need the attention in the near future. In fact, right at the beginning, the very early phase of application for a permit, emission dates and the environmental activities have to be submitted unambiguously. Only in that case the competent authority is able to draw up a license tailored to the specific situation. In the Dutch legal system the application for a permit constitutes an integral part of the permit itself.

To enable medium-sized and small industries to obtain more insight in their emissions (self-regulation), so called "Corporate company environmental centers" are being set-up, initiated by and connected to the Chambers of Commerce. The first one was established in Tilburg in North-Brabant. Nowadays almost all regions of this province have such oriented advising centers. If the proper insight is present with the industries they will be able to apply correctly for a permit. Furthermore, they will be able to economize their energy and raw material use. This will decrease their costs as well as their emissions. Very convincing examples thereupon can be presented. Large emitters, on the other hand, are stimulated to publicly present a yearly overview of their emissions, based on mass balances. This idea originated in the U.S.A. To further the development of the so called "in-company environmental care systems", the industry has to show the competent authority that the registered data are reliable and verifiable (environmental accountancy?). This is of special interest since the new Environmental Management Act puts prevalence to target-oriented requirements specified in the permit instead of means-oriented ones.

As stated before, these visits taught us a lot about the implementation of environmental regulation by the industries and the enforcement of it by the local authorities (ref. 11). Moreover, insight has been gained on how the developments in reality evolve in the business community, with respect to their environmental care and the attention for clean technologies (ref. 15). However, I prefer to conclude this paragraph with two characteristic activities in North-Brabant.

2.4.1 Liquefied Petroleum Gas (LPG)-Stations

During the years 1990 and 1991 nearly all petrol stations (including LPG) in the Netherlands were inspected. At 30% of the stations serious offences were discovered. This figure was decreased to 11 % by October 1992. Some 400 out of the total number in the whole country of 2460 are located in North-Brabant (before 1990 there were 560 stations, but 160 stations closed down during the last two years. This was due to various reasons, including environmental ones). At the first inspection 45 installations had to be closed down immediately as leakage of LPG was discovered. Of all stations 30 were inspected for the second time in 1991. In 10 of these cases, official reports had to be made by the Inspectorate N.Br. and the local police.

2.4.2 Intensive Farming of a Variety of Livestock

In the Netherlands 90.000 pig-, chicken-, turkey- and cattle farmers exist who have to obey the rules of the Act of Registration on organic fertilizers (manure). In 1992 60.000 rabbit-, duck-, fur-bearing animal-, sheep- and goat farmers were added to the range of this Act. We also have some ten thousand users of organic fertilizers (e.g. agricultural farmers). For about 70% of the area of the Netherlands this Act is relevant. The responsibility for the enforcement of this Act depends largely upon the farmers themselves. Enforcement of this Act (administrative enforcement not possible) is mainly by criminal law (with satisfactory results). However the legislation is becoming stricter (1995!), so it is now becoming more important for the Inspectorate (ref. 14, in preparation). Therefore, we started an investigation of 250 farms in North-Brabant in 1992, mainly to get an idea about the production of the organic fertilizers and the way they get rid of the manure (checking of the books and collecting information about their license from the Nuisance Act); all participants have been helpful up till now. We expect to report on these investigations next October.

3 ENFORCEMENT

Since 1989 enforcement is not only compliance monitoring and legal action. It usually includes the informational visit preceding a compliance monitoring visit (also inspections in general), negotiations and compliance promotion: a set of actions with all the instruments, used to achieve compliance. As to this enforcement - definition (enforcement in a broad sense) this subject has already been discussed in the former chapter.

In the more narrowly sensed enforcement area the three levels of government (national, provincial, municipal) strengthen their joined cooperation. In the province the national representatives are working together with the provincial and municipal authorities, the water-boards, the Public Prosecutor and the local police. The compliance monitoring will be integrated. The core of the enforcement implementation is provided on the "regional" scale. In North-Brabant there are 7 regions (paragraph 2.1.3). Before ending this paragraph with the present situation, some examples of enforcement:

in 1990 close attention was paid to an industry of the waste branch. Because the permitting authority had forgotten to give a definition of the different types of waste the permit seemed not to be enforceable. Much time and effort was lost;
a hydrocarbons-emitting industry had a permit from 1985, with the stipulation that the emission had to be cut down in half. Each year the progress in this reduction should be reported on. During 1990 it was obvious that the industry would not be able to reach the goal. Because of the interference of the Inspectorate the industry was forced by the local authority for a periodic penalty payment. This procedure had to be stopped because of juridical reasons. A good report was sent to the Public Prosecutor by the authority. He asked for an official report. The Inspectorate had made a calculation of the economic benefit of this firm omitting cleaning-technology. The Public Prosecutor is now at work on the follow-up of this case. Meanwhile the local authority has made an even stricter permit;
a second calculation of the economic benefit in another situation did not have any effect because the Prosecutor stopped the case. In this situation as well, a new permit has been granted to the industry. In this permit the air-emission must be cut down step by step. On condition that the requirements are enforceable in the future. The problem is dealt with well;
to transport some transformers, containing toxic PCB (polychlorinated biphenyls) from one firm to another (that can break up these machineries under good environmental conditions) a periodic penalty payment, imposed by the Minister for the Environment, came into force. The payment did not become operative, because the transformers were removed;
in a similar situation at another place in the province legal transport was possible without intervention of the Minister. N.B. The transformers were imported as aluminum-scrap!.

These examples make evident that sometimes the administrative, then the criminal law is usable (or both).

3.1 Public Prosecutors and the Police

To encourage the Public Prosecutions Department and the Police to take more interest in the enforcement of the environmental Acts they nowadays received substantial funds from the Department of the Environment. With these funds more personnel, specially trained in environmental affairs, must be appointed.

In the past the cooperation between the police and the lnspectorate was ad hoc. Because of the MIP (see paragraph 2.1) the cooperation became structural. In North-Brabant 3 police districts have been formed, linked up with the regions. The environmental enforcement of the police is still growing. For technical assistance and insight into the Acts the police cooperates with the Inspectorate. That will continue in the future because of many reasons, e.g. the Inspectorate looks after the environmental regulations, the above mentioned funds, and the Inspectorate can fulfill the function as a court-expert.

3.2. The Structuring of the Enforcement Organization

In addition to the development of the organization focused on licensing and compliance monitoring in the region (see paragraph 2.1.3) a structure should also be given to the enforcement cooperation and an enforcement team will be formed. In the cooperation all licensing and enforcement authorities are participating, i.e. Province, Municipalities, Water-Boards, Departments for the environment, Public Prosecutors and the Police. These cooperations are being formed now and will make the first planning program for enforcement this year. In this program priority will be given to the more complex categories of industries and to projects on waste and manure for example. These projects are suggested by the provincial enforcement committee (PROM). In this committee the same participants are represented, under the chairmanship of the provincial governor. The National Coordinative Enforcement Committee (LCCH), which was founded at the beginning of this year, is a board for cooperation between Departments, involved in environmental affairs, Department of Justice, representatives of the provinces and the municipalities, under the chairmanship of the Chief Inspector for the Environment. The regional program is the working map for the regional enforcement team. This team is made up of civil servants and works intensively together with the local police. It is being run by the regional enforcement coordinator, an employee of the region. An information center is located near this coordinator. The teams are being built up now and the programs are being formed. It is expected that by the end of 1992 the structure of the enforcement organization in North-Brabant will be as follows.

AUTHORITY	ENFORCEMENT ORGANIZATION	CHARACTER
National Government	LCCH (National Coordination for Enforcement)	national policy and annual programming
Province	PROM (Provincial Coordination for Enforcement)	Policy, Programming and coordination of the actions
Region	RCCH (Regional Coordination for Enforcement) Executing the enforcement by the enforcement-team	regional Policy, programming and coordination of the actions
Municipality	Triangular consultation with the Mayor, the Public Prosecutor and the local police

4 INCENTIVES FOR THE LEGISLATION, STANDARD-SETTING AND THE POLICY
PLANNING

One point of Action (Al 03) of the National Environmental Policy Plan (NMP) means that there should be a selective study made of the existing and forthcoming legislation standards and requirements, regarding enforceability. Regarding enforceability of rules it is of interest to find the combination of exact legal instruments working alongside a practical law. Some examples are: carrying capacity of the target group available and enforcement capacity of the government, promoting mechanisms for self regulation, internal company environmental management, environmental responsibilities of industries. One can say that the experiences of the Inspectorate are given to the main section of the enforcement of the Chief Inspectorate. This body will report on this by the end of 1992 in the 2nd Chamber. You can think of a better liaison between the different laws, better definitions, enforceable rules in the licenses, the insufficient administrative and penal take-actions, the insufficient instruments of civil law. There is often insufficient evidence to penalize the industries concerned but there is also a discrepancy in the administrative regulations regarding enforcement of the law. The final consequence should be that the legislation that is not enforceable c.q. executable must be withdrawn (ref. 16).

The recommendations of the above mentioned experiences of the Inspectorate N.Br. are:

· all the industries must be granted clear-cut understandable licenses which can be checked in 1994 and in 1995 for the big plants;

· the municipalities will liaise adequately with one another to form municipal cooperatives. A cooperative has a well-trained and experienced apparatus at its permission;

· parallel with that apparatus an enforcement-team is available in the municipal cooperative. In this team all the enforcement personnel of all the authorities will act together;

· permitting" and "enforcement" functions should be put in separate divisions. In the municipal cooperatives there are consequently to be two teams;

· there must be one -coordinated- government for environmental licensing and enforcement;

for the industries and the citizens the rules must be clear in order to be able to get full compliance;

a systematic enforcement method must be used and annual programs made. Social support is a precondition. For that reason publicity is wanted. The public must be implicated in enforcement, because "with honey you will catch more flees than with vinegar".

In conclusion: Enforcement is the first and the last link because experience and practice with enforcement gives incentives for the legislation & standard setting, the licensing and the implementation. If the requirements turn out to be unrealistic or impossible to enforce, then compliance will be impossible. A clear approach as an effort to establish popular and business relations for the benefit of the environment gives full compliance for that reason.

ACKNOWLEDGEMENTS

The author wishes to gratefully acknowledge the stimulus and discussion received from all the coworkers of the Regional Inspectorate for the Environment of North-Brabant, in particular Mrs. M. Kooijman, Mrs. J. van Dijk and Mr. J. Smits, and extends thanks to Mrs. H. Buyze, Mr. A. Hutten Mansfeld for helping partly with the translation, Mrs. M. Nijweide-Boeije for correcting the text all over, and to Mrs. C. van Rooij-van Onselen for preparing the manuscript.

REFERENCES

1. National Environmental Policy Plan (NMP),May 25, 1989, the Netherlands. In 1990 NMP-plus.

Inspectorate for the Environment, 1990 Annual Report, Ministry of Housing, Physical Planning and the Environment (VROM).

P. Winsemius, Gast in eigen huis (beschouwingen over milieu-management), Samson Tj. Willink, Alphen aan de Rijn, 1986.

H.J.A. Schaap, Small business Compliance, the role of local Communities; Proceedings Intern. Enforcement Workshop, May 8-10, 1990,Utrecht, the Netherlands. In this paper also the diagrams of the "Policy Life Cycle" and "Regulatory Chain" are shown.

H.E.C. Lefbvre, Enforcement of environmental regulations in the Netherlands, International Environment Reporter, 26-9-1990.

Business, company, firm, factory and industry are often used synonymes. I use mostly the word business in a common sense for all sorts of workshops, and industry/company in a sense of a manufactory, a technical workshop, that makes or manipulates material products. The lnspectorate mainly pays attention to these industries. Facility is - in my opinion - more an action. When you say that legal requirement must be met by individuals and facilities that cause or may cause pollution then it is not important if it is indoors or outdoors (including workshops).

Kleijs-Wijnnobel & M. Kooijman, Uitvoering en handhaving van milieuwet- en regelgeving, Openbaar Bestuur, 1, nr 5, Mei 1991.

Fourth Progress report on Environmental Law Enforcement, October 1991, Ministry of VROM.

J. Smits en L. van Eijsden, Het gemeentelijk milieubeleid in historisch perspectief, Openbaar Bestuur, 1, nr. 5, Mei 1991.

10. Landelijk handhavingsproject gemeentelijk milieubeleid 1990, Ministerie van VROM, 1991/52, Staatsuitgeverij/DOP, Leiden.

11. North-Brabant is a province in southern Holland (the Netherlands), borders on Belgium in the South. This province with 15% of the inhabitants, 20% of the municipalities and 15% of the industries, is reasonably representative. The province has 7 regions (municipal cooperatives) according to the Common Municipal Regulations Act (Wgr). The municipalities enforce the Nuisance Act and the permits of nearly all of the 400.000 businesses in the country (in North-Brabant: 60.000). The provinces have the permitting authority for the big plants and the municipal-businesses (in North-Brabant: 1700).

12. Jaarverslagen inspectie milieuhygi6ne Noord-Brabant 1990 en 1991.

13. J. Blenkers, De gebreken in de milieuvergunning, RIMH Noord-Brabant, 1991 (mei), voordracht studiedag Actuele ontwikkelingen in de milieuvergunningverlening te Utrecht (Euroforum).

14. Landelijk Handhavingsproject LPG-tankstations, Ministerie van VROM 1992/53

B. Schilleman en J. Vreugdenhil, Het milieu, gesprek met een hoogleraar milieukunde en een regionals milieu-inspecteur, Interface, tijdschrift voor bedrijfskunde, 5e jaargang, nr. 4, 4-9-1989.

H.J.H. May, Handhaafbaarheidstoets milieuregelgeving - actiepunt A103, tussenrapportage, eind 1992 naar 2e kamer; in preparation.