legislation: Europeans Get Tough on Environmental Enforcement

Barry Shanoff

January 1, 1998

4 Min Read
legislation: Europeans Get Tough on Environmental Enforcement

Environmental enforcement now is a concern for companies with European facilities due to pollution control measures becoming increasingly detailed and demanding over the past ten years. For good measure, national officials nowadays take their own regulations more seriously, basking in the political afterglow when environmental criminals are punished.

A 1992 international treaty created the European Union, which consists of a foreign policy wing; a legal and internal affairs cooperative; and, most important, the European Community (EC). Existing since 1957, the EC passes legislation on environmental, health and safety matters, but has no power to enforce these laws against private parties. Thus, enforcement falls to individual member states, where vast differences in economic and political priorities have produced disparities in environmental enforcement across the continent.

To promote uniformity, the EC and national governments have created an information exchange network for environmental inspectors, including sharing views on enforcement techniques and the interpretation of EC legislation.

Environmental officials in Europe pursue violators through administrative and, often, criminal sanctions. Civil penalties do not exist. A party who injures another may have tort liability under a civil law compensation system, which is not part of environmental enforcement.

Administrative sanctions include orders to cease persistent violations, to clean up contaminated property, and to close facilities. Criminal penalties include fines and imprisonment. In some countries - the Netherlands, for example - prosecutors calculate fines on a daily basis. Elsewhere - Belgium, for instance - ongoing violations are handled as a single criminal act with a lump-sum penalty.

Fines range from relatively insignificant (equivalent to $1,000) for delinquent status reports in France to millions of dollars for serious contamination problems. Belgian, Danish and Dutch courts increasingly have imposed prison terms in waste-related cases. Some national laws permit extraordinary measures, such as prohibiting a convicted individual from engaging in certain business activities or an outright governmental take-over of an enterprise.

The laws of some countries do not make it possible for companies to be held criminally liable. For example, in Austria, Belgium and Germany only individuals can be criminally punished. To circumvent this limitation, courts and lawmakers have become creative in trapping companies in the enforcement net.

Under Belgian law, for example, a company may be haled into the criminal court as a "civilly liable party" and made jointly and severally liable for the fines assessed against one of its employees. By contrast, an individual convicted in a German court must sue his employer in civil court to recover the fine. Unfortunately, even when a company ends up paying the fine, the employee himself still is left with a criminal record.

Continental courts often focus as much on whether a manager had authority to prevent an environmental violation as whether the manager actually committed or contributed to the offense. Thus, courts may hold a company's officers and directors liable even where they delegated pollution control to an environmental coordinator.

Belgian law, for example, addresses "environmentally responsible persons." When a judge in a Belgian court hears evidence about delegated management, witnesses may be asked about whether the company selected a competent person, whether the designated employee received proper training, staffing, authority and funding, and whether senior management adequately supervised the coordinators. Belgian courts have ruled that some obligations - say, the duty to apply for a permit - are so fundamental that senior managers always will be held liable.

When conducting routine inspections, environmental inspectors may freely enter sites, inspect records and question employees. A company's full cooperation is required. However, when inspectors uncover a violation, the rules suddenly change. Dutch and Belgian inspectors, for example, lose much of their investigative powers when the likelihood of criminal prosecution emerges. Thereupon, any evidence that an inspector gathers without approval from the public prosecutor cannot be used in criminal proceedings.

As a result, officials typically conduct extended routine visits, even to the extent of a full-blown criminal investigation, particularly when defendants don't know and don't assert their rights. Many companies end up sacrificing their rights and interests in a misguided attempt to maintain good relations with government agencies.

If inspectors find a violation, they prepare a report for a public prosecutor. Before continuing an investigation, however, the prosecutor first must seek the appointment of an "instruction judge" - an officer of the court responsible for collecting both exculpatory and incriminating evidence. The judge has broad powers to detain suspects, to question witness under oath, and to order the preparation of expert analyses.

The political sensitivity and legal complexity of continental environmental regulation now are forcing companies and managers into sophisticated management and compliance programs, redefining what Europeans view as "sound business practices."

New Organization The boards of the North Carolina Recycling Association and the South Carolina Recycling Association have voted to consolidate into one group by July 1, 1998, pending approval of the membership of both groups.

New Facility A leachate pretreatment facility has opened at the Waste Management Inc.-owned Iris Glen Environmental Center in Johnson City, Tenn. Designed by Rust Environmental & Infrastructure, Grennville, S.C., the facility is a sequencing batch reactor that treats 10,000-25,000 gallons per day of landfill leachate. It features semi-continuous biological processes that use aerobic and anoxic operating conditions to treat organic constituents and ammonia.

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