DEVELOPING AN EFFECTIVE COMPLIANCE MONITORING CAPABILITY

MARBETH E. BIERMAN-BEUKEMA TOE WATER

 

Regional Inspector, Regionale Inspectie Zuid-Holland, Huis te Landelaan 492, 2280 HH Rijswijk

P.O. box 5312, the Netherlands

 

 

 

SUMMARY

 

          This paper deals with the developing of an effective compliance monitoring capability in

the Netherlands.

 

1          BETWEEN DREAM AND ACTION

 

When we are talking about enforcement in the Netherlands, it's in the context of a small, crowded and polluted country. Fifteen million people are living and working on 37.000 square kilometers.  Quite aside from a high population density we are dealing with a concentration of activities which burden and pollute the environment like extensive chemical industry and equally extensive arable and livestock farming.  The environmental impact of our polluting and polluted delta makes itself felt in all parts of the world.

The Netherlands has a clear interest in comprehensive environmental measures at a European, if not mondial level.

It's high level of environmental "stress", however, obliges it to aim at a high level of protection, nationally, regionally and locally.

 

2          ENVIRONMENTAL POLICY

 

            In May 1989 the government presented its Environmental Policy Plan "To choose or to loose" setting out reduction targets of polluting emissions up to 80-90 per cent from existing levels, for the mid-term.  In order to achieve the ambitious objectives of this National Environmental Policy Plan, regulations need to be strengthened and expanded and certainly better implemented.  This means an extra challenge in enforcing those regulations. In connection with the Plan substantial financial means were given by the Government to the municipalities, the provinces, the Public Prosecutors and the Police.

In the NEPP the following instruments are formulated:

·         legislation;

·         voluntary agreements formally laid down;

·         financial incentives;

·         public information, education, communication; and

·         enforcement, including sanctions.

 

Although the emphasis of this paper lies on enforcement it is important to stress the merits of having such an overall policy plan.  It clarifies the roles and expected actions of all parties concerned and it facilitates the setting of priorities for enforcement.

 

3          ENFORCEMENT; WHO DOES WHAT?

 

            In the Netherlands the implementation of environmental policy is highly decentralized.  The authority responsible for implementing a given statute or other legal requirement, including the granting of permits, is entitled to enforce - administratively or civilly - that law.  The levels of Government are as follows:

14        ministries

9          regions for the Inspectorate for the Environment

12        provinces

27        water(quality)managements boards

643      municipalities

59        intermunicipal regions

26        police districts

 

The municipalities are, roughly speaking, responsible for enforcing the regulations and permits of nearly all of the 400.000 businesses and plants in the country. The 12 provinces are entitled to enforce the permits for approximately 3000 bigger plants, including landfills.  Only a comparatively minor part of the enforcement activities is carried out by the national government (Inspectorate for the Environment): the Pesticides Act, the Toxic Substances Act, the Nuclear Energy Act and parts of the Hazardous Waste Act, Clean Air Act and Water Pollution Act. The police, the Public Prosecutors, and a number of compliance monitoring officers of various authori­ties are appointed by the Minister of Justice as special detectives for environmental crimes.  They are entitled to enforce all standards, regulations and permits, where criminal enforcement is appropriate.

At this moment the environmental monitoring and enforcement is executed by a taskforce of around 1500 fulltime equivalents:

Municipalities and intermunicipal groups: 800

Provinces:    250

Public Prosecutors: 40

Police (regional coordination): ±100

Environmental Inspectorate (first line): 50

Waterboards: 100, etc.

 

Although the numbers of municipal and provincial officers are expected to grow substantially in the coming years, due to the financial boost mentioned before, the most spectacular increase is planned for the police.  Up to 2000 police-officers will get additional training in the near future to enable the police to play an adequate role in environmental enforce­ment.

 

3.1       Inspectorate for the Environment

 

Organized in a central office and 9 regional offices the 300 employees of the Inspectorate

for the Environment carry out the enforcement activities (first line), that are the responsibility of the Ministry.  They also monitor and promote the execution of licensing and enforcement activities by other authorities (second line).  The Ministry is advised by the Inspectorate on matters concerning enforceability and feasibility of proposed laws and regulations.

 

3.2       Police

 

            What is the role of the police in environmental enforcement?  The administrative authorities have first responsibility in compliance monitoring and administrative and civil enforcement.  Generally speaking the police has a supportive role when, and in sofar, the need for "stronger measures" arises.  Being on the streets around the clock, the police however do a competent job of detecting environmental violations.  They are supposed to look for such violations, whether they concern national law, provincial law, or a municipal bylaw, or violations of the legal requirements of an environmental permit.

In addition to the efforts of the central government the police have developed a number of initiatives in recent years at both regional and local levels, with the intention of giving greater substance to their environmental duties.  These include the establishment of environmental departments in a number of municipal police forces and appointing district coordinators in the National Police Force.

 

3.3       Public Prosecutor

 

            In most districts one or more Public Prosecutors are involved in the enforcement of environmental legislation, at least for part of the time.  In order to allow the high priority being given to a cleaner environment to be manifested in an effective criminal policy, a new consultation structure has been created within the Public Prosecutions Department to coordinate policy relating to the enforcement of environmental legislation.  In 1990 19 additional personnel positions were created to reinforce the staff at the district offices.  Public prosecutors have the exclusive authority to bring cases to court where there is a criminal code violation, which is the case for violations of most of the environmental regulations.

They participate in a tripartite system of consultation involving the police and the mayor, that is set up in three-quarters of the municipalities.  While maintaining their own responsibility in relation to criminal code violations, public prosecutors appear willing to adjust their actions as far as possible to the enforcement activities/priorities of the administrative authorities.  Exchange of information between these parties develops rapidly.

 

4          THE ROAD TO ADEQUATE COMPLIANCE MONITORING AND ENFORCEMENT

 

            In the Netherlands enforcement became effective from the mid-1980s onwards; especially after a number of scandals concerning the illegal dumping and discharging of hazardous waste.  Politically it became obvious that something had to be done about the existing backlog in the enforcement area.  A program was set up by the Ministry to intensify the enforcement of hazardous waste regulations.  This was the Multi-Year Intensification Program for the Enforcement of the Regulations on Hazardous Waste (1984-1990).  The program intensified enforcement where the Ministry itself was responsible, and stimulated and financially supported enforcement activities to be carried out by other authorities.

Hazardous waste was given priority under the program because of its great risks to the environment.

The Multi-Year program was also used to encourage the local police and the Public Prosecutors to take a greater interest in the enforcement of environmental legislation.  A conscious decision was made not to set up a separate environmental police force in the "Netherlands: The government was convinced from the outset that the local police, being on patrol "4 hours a day and well-versed in criminal law, could play an extremely important role in the enforcement of environmental legislation.

In retrospect the approach of the Multi-Year Program made sense in more then one way:

·         Local authorities reacted positively to the financial incentives in the so-called "dime­projects"

·         Proposals to participate in and benefit from the program had to be specific on parties to be monitored, and method of monitoring and enforcement in a step by step approach.

·         It also improved the cooperation between all parties involved in these projects: Officials from municipalities, Inspectorate, police etc. learned to work together in a way that was systematic and lead to visible result.

·         Due to this program, the setting up of a network has been partially achieved.  The involvement of the police and the Public Prosecutors Department increased considerably.

 

Particular attention has been paid to the training of officials responsible for enforcing environmental regulations.  Courses have been arranged not only for the staff of the Inspectorate for the Environment, but also for local government officials.

Network-building and distribution of essential knowledge and information have benefited from the magazine "Handhaving" (Enforcement), that appears monthly and has a circulation of 13,000 copies.  It is attractive and appeals to enforcers because they can report themselves about their field-experiences.

            Brochures have been drawn up in recent years for the benefit of companies which, together with informative visits, have resulted in a improved compliance with the Chemical Waste Act and other environmental legislation.

When the Multi-Year Intensification Program was about halfway to its term(1987) a need was felt to extend the attention to enforcement in other sectors and a project was started that contained an extended and multimedia approach.  The main elements of this program (VHIP) are:

1.       Improvement of enforcement through

·    structuring:      Enforcement must become an ordinary, acknowledged, non-negotiable duty for the authorities concerned.

 

·    Intensification: The compliance monitoring must be increased; businesses must be visited at a certain frequency and in a systematic way.  Violations must be dealt with using standard methods that lead to timely and appropriate action.

 

·    Integration:      Measures that are aimed at sources of pollution are as much as possible drawn up as multimedia measures aimed at one industrial branche and applicable to all individual firms of that branches Multi-media approach seems preferable to an approach targeting each environmental sector separately.  It makes compliance monitoring more efficient and effective.

 

2.      Setting of priorities:

Everyday practice and the limited staff and means necessitate the setting of priorities for enforcement in the Netherlands.  Enforcement priority should be given to businesses and bran­ches of industries where compliance monitoring and enforcement activities yield the greatest environmental benefit.  In this manner the major environmental violators will receive the greatest attention.

Comprehensive documentation has also been produced for most relevant areas for the benefit of provincial and municipal officials.  To allow a uniform and, more important, represen­tative method to be employed in sampling and analysis for instance, the lnspectorate for the Environment has drawn up a guideline "Sampling and the Chemical Waste Act".

 

5          STRUCTURING THE ENFORCEMENT

 

            Due to the substantial financial means given by the government to the municipalities, provinces, police and Public Prosecutors to achieve the ambitious objectives of the NEPP there is a growing capacity in the enforcement area.  Connected with this growing capacity the need for more cohesiveness also grows.

At the initiative of the Inspectorate for the Environment, a model was designed in 1990 together with representatives of all agencies and ministries, including the police and the Public Prosecutors.  The main elements of this model are as follows:

·         annual planning of enforcement activities by all agencies, including the police, on the three levels of government national, provincial and regional;

·         use of municipal cooperatives as the core of the enforcement implementation; five to fifteen municipalities working together on the regional level;

·         financing the cost of enforcement on the basis of performance commitments (business-like partnerships);

·         establishment of structural deliberative bodies (groups concerned with enforcement matters) at the three levels of government (civil servant platforms as well as platforms for elected administrators).

·         in dealing with common environmental offences, the Public Prosecutor should, as far as possible and without prejudice to his own responsibility, work with the priorities set by the administrative authorities;

 

            The "elected administrators" platform on the national level is formed by the National Coordinating Committee for Environmental Law Enforcement (LCCM).  The main target of the LCCM is monitoring and stimulating the implementation of the enforcement structure as described above, at all three levels of government.  The LCCM also seeks to detect bottlenecks and to provide solutions (e.g. making an Enforcement Structure Manual).

            The main targets of this enforcement structure, which should be implemented and working before 1995, are:

·     all participants marching together in planning and executing compliance monitoring and enforcement;

·     realization of an integrated multi-media approach;

·     the administrative authorities on the one hand and the police and the Public Prosecutors on the other marching together (not two separate circuits!)

 

* Note that in the Netherlands, in or rather after compliance monitoring by civil servants, in most cases a decision can be made either to choose the administrative, the civil, or the criminal option of enforcement.  It is important to note that in the Netherlands most compliance monitoring and enforcement activities do not result in lawsuits.  People in the Netherlands, generally speaking, are not particularly fond of suing people and/or businesses and most cases are solved before they would have been taken to court.

Administrative tools for enforcement are: administrative penalty, (partial) closure, administrative coercion and revoking of permit.

Civil tools, based on tort law, are: damage recovery claims (soil-cleanup), cases against companies to prohibit or demand certain activities.

Criminal tools (mostly based on the Economic Offences Act): imprisonment, fine, payment of financial equivalent to the economic advantage derived from illegal conduct, obligation of resto­ration/preservation, closedown for a maximum of one year.  Moreover certain provisional and coercive measures can be taken immediately.

With respect to the place of Criminal Law in the enforcement of environmental law, the

following distinction is made in the Netherlands:

·         serious ( sometimes organized) environmental crime;

·         frequently occurring, less serious environmental crime;

Obviously the police and Public Prosecutors are predominantly involved in cases of the first kind.  In cases of the second kind primary responsibility rests with the administrative authorities.  If administrative possibilities are non-existent, inadequate and/or exhausted , prosecution is to be considered; the penal provision functions as the "gorilla in the closet".

It should be mentioned the gorilla on occasion leaves the closet when administrative authorities are lax or unwilling to insure compliance by adequate measures.

 

6          WHAT HAS BEEN DONE?

 

            The approach used by the Ministry of Housing, Physical Planning and Environment and its Inspectorate for the Environment to define and implement environmental policy can be characteri­zed as THINK BIG, ACT SMALL.

The Ministry produced its environmental policy plan (shortly followed by NEPP+) and initiated the designing of an organizational model for the enforcement structure in the Netherlands.  While" thinking big" it visualized a large and ambitious concept for the short and mid-term.  Given the fact that traditionally the implementation of environmental policy (like most other policies) is highly decentralized, there is an obvious need for the government to:

·         insure that both the central and local levels of government build the necessary capacity to assess compliance;

·         provide financial incentives;

·         support with training, information and every facility needed;

·         promote the sharing of successful experiences; and

·         introduce a practice of business-like relationships between the government and other authorities;

·         to monitor the quantity and quality of progress made towards the goals set in the NEPP+ and enforcement model;

·         to increase the efficiency in permitting and inspection work by developing standard regulations for many standard types of small industries;

 

            In short: there is a need for many different small actions and initiatives to pave the way

towards the envisioned targets.

 

7          1992: WHERE DO WE STAND?

 

            As a result of a tremendous effort during the last decade to shape conditions for an adequate compliance monitoring and enforcement capability a respectable forwards momentum has been achieved;

·         among the steadily growing ranks of officials involved a sense of "common professionalism" prevails;

·         two-way communication has been set up, resulting in positive feedback and open criticism;

·         working in a systematic way with uniform enforcement methods is becoming the rule rather then the exception; at least in theory;

·         with the achievement of clear results there is a growing sense of enforcement being exciting, which in itself is culture-building.

 

However, a lot still remains to be done.  In many cases enforcement activities are frustrated by one or more of the following causes:

·         There is a backlog in licensing: About half of the plants/industries in the Netherlands is still functioning without a permit, without an adequate permit or has not even applied for a permit.

·         Laws and regulations change constantly and some badly needed regulations are produced at snails-pace on account of heavy lobbying and pressure: In one province alone about 7000 plant- and fruit growing greenhouse-industries function without the necessary permits.  Integrated regulations for this branch have been on the agenda for years, but final decisions are put of time and again.

·         In some cases permits can only be issued on the basis of an approved (by the Minister) Provincial Plan; for instance a waste Disposal Plan.  Individual plants can not be blamed for the fact that a Provincial Plan is lacking!

·         About 30 environmental laws exist in the Netherlands, with a multitude of provincial and municipal regulations based on these laws.  This makes compliance monitoring and especially using a multi-media approach extremely complicated at times: Six formal procedures are prescribed for instance to monitor the handling of chemical waste; ..standard", "shipping", "small", "EEC", "residual oil" and "low-risk export".  They are all based on the Hazardous Waste Act and have their own forms and procedures.

 

A clear choice has been made to concentrate the programming and execution of enforcement of environmental laws on the regional level.  The appears to be a viable choice IF and IN SOFAR the officials responsible for the regional enforcement task will have enough mandate to steer clear of the daily hassle caused by conflicting economic interests.

 

8          EPILOGUE

 

            From practically nothing a great deal has been achieved in one decade.  Compliance monitoring and enforcement are firmly on the political agenda as necessary instruments for implementing the strategy.  A start has been made on building up enforcement structures; more actual enforcement is occurring and money and manpower have been made available.  A tremendous amount of work remains to be done to develop solid standards for compliance monitoring work and enforcement.  What constitutes an adequate monitoring visit?  How frequently should certain categories of plants be visited?  The guidelines in use leave a lot to be desired.  Practical tools should be developed to enable the setting of essential priorities: less "bean counting" and greater benefit for the environment.  A target has been set for the realization of an adequate level of performance for licensing, monitoring of compliance and enforcement, for January 1995.  A terrific effort is still to be made to meet this target.  This is a challenge, but a challenge that has to be met, since the environment cannot afford failing experiments.