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European Commission Directorate-General Environment

Impact assessment study into possible options for revising Recommendation 2001/331/EC providing for minimum criteria for environmental inspections (RMCEI)

Final reportENV.G.1/FRA/2006/0073

June 2011

Impact assessment study into possible options for revising Recommendation 2001/331/EC providing for

minimum criteria for environmental inspections (RMCEI) 3

ECORYS Nederland BV

P.O. Box 4175

3006 AD Rotterdam

Watermanweg 44

3067 GG Rotterdam

The Netherlands

T +31 (0)10 453 88 00

F +31 (0)10 453 07 68

E [email protected]

W www.ecorys.com

Registration no. 24316726

ECORYS Macro & Sector Policies

T +31 (0)10 453 87 53

F +31 (0)10 452 36 60

Initials Date

Author(s) EK/SR/KR

OW/CS/EBZ

MM/DSH/MSMSJ

18/02/11

Counter-reading KR 18/02/11

Lay-out / editing YJ 3/05/11



Table of contents

Preface 9

Executive summary 9

1 Introduction 23 1.1 Objective and scope of the study 23 1.2 Information Sources and data collection 25 1.3 Structure of the report 28

2 Setting the scene 29 2.1 History of EU inspections legislation 32 2.2 Introducing the RMCEI 33 2.3 The RMCEI and other environmental legislation 35 2.4 The current situation 40

2.4.1 Resources spent on environmental inspections 40 2.4.2 Current inspection regimes 44 2.4.3 Culture and other drivers of regional variation 45 2.4.4 Contributions of RMCEI to improved inspections 47 2.4.5 Implementation challenges 49

2.5 Important trends 52 2.6 Views of main stakeholders 54

3 Problems and drivers 58 3.1 The problems 58 3.2 The drivers 60

3.2.1 Interpreting definitions, scope and reporting requirements 60 3.2.2 Resource constraints 62

3.3 Justification for EU action 62

4 Objectives 64 4.1 Introduction 64 4.2 Policy objectives 64 4.3 Measuring progress towards the objectives 65 4.4 Policy coherence 66

5 Description of policy options 69 5.1 Option 0: Business-as-Usual 69 5.2 Option 1: Revision of the RMCEI 69

5.2.1 Sub-option 1A: inclusion of all activities covered by EU environmental law into the scope of the revised RMCEI 70



5.2.2 Sub-option 1B: Further development of criteria for inspection plans and programmes 71

5.2.3 Sub-option 1C: Establishing a regular reporting system based on the ten potential indicators identified in the IMPEL Brainstorming project 72

5.3 Option 2: Transformation of Recommendation 2001/331 into a Directive 73 5.4 Option 3: Introduction of inspection obligations into sectoral legislation 74 5.5 Link between options and problems/objectives 75

6 Impact analysis 77 6.1 Introduction 77 6.2 Definition of key impacts 77 6.3 Baseline scenario 81

6.3.1 Current situation 82 6.3.2 The resulting baseline scenario 84

6.4 Option 1: Revision of the RMCEI 85 6.4.1 Sub-option 1A: extending the scope of the RMCEI 85 6.4.2 Sub-option 1B: further development of criteria for inspection plans

and programmes 92 6.4.3 Sub-option 1C: establishing a regular reporting system based on the

ten potential indicators identified in the IMPEL Brainstorming project 96

6.5 Option 2: transformation of the RMCEI into a horizontal directive 102 6.5.1 Economic impact 102 6.5.2 Social Impact 105 6.5.3 Environmental Impact 105

6.6 Option 3: The introduction of inspection obligations into Sectoral Legislation 108 6.6.1 Economic impact 109 6.6.2 Social impact 111 6.6.3 Environmental impact 111

7 Comparing the options 115 7.1 How do the options compare 115

7.1.1 Comparing the BAU scenario to all the options 115 7.1.2 Comparing the options 116

7.2 The way forward 120

Annex 1 Bibliography 123

Annex 2 Stakeholders, Questionnaires and Interview Guidelines 132

Annex 3 Case Studies 163

Annex 4 Sectoral Environmental Legislation and Relevant Non-legislative

Acts 215



List of tables

Table 1.1 Stakeholders contacted 27 Table 2.1 Number of inspector, site visits and installation inspected, 2003-2009,

Poland 41 Table 2.2 Overview of Inspection activities in Belgium, 2001-2009 41 Table 2.3 Overview of Inspectors (FTEs) and budget for 2005-2008 in Denmark 42 Table 2.4 Overview of Inspection activities in Sofia, Bulgaria, 2001-2009 43 Table 2.5 Levels of implementation of Environmental legislation 50 Table 5.1 Connecting the options with the problems and objectives 75 Table 6.1 Defining the impacts 78 Table 6.2 Scoring of Option 1A 88 Table 6.3 Scoring of Option 1B 94 Table 6.4 Scoring of Option 1C 97 Table 6.5 Scoring of Option 2 105 Table 6.6 Scores for Option 3 112 Table 6.7 Scores for Option 3 113 Table 7.1 Summary conclusions for Sub-Option 1A: Inclusion of all activities

covered by EU environmental law into the scope of the revised RMCEI 117

Table 7.2 Summary of conclusions for Sub-Option 1B: Further development of criteria for inspection plans and programmes 118

Table 7.3 Summary of conclusions for Sub-Option 1C: Establishment of a regular reporting system based on the ten potential indicators identified in the IMEL Brainstorming Project 118

Table 7.4 Summary of conclusions: Option 2: Transformation of Recommendation 2001/331 into a Directive 119

Table 7.5 Summary of conclusions: Option 3: Introduction of inspection obligations into sectoral legislation 119



Abbreviations

BAU Business-as-Usual CA Competent Authority CITES Convention on International Trade in Endangered Species CLP Classification, Labelling and Packaging DALYs deaths and lost life EAP Environment Action Programme ECHA European Chemicals Agency EEA European Environmental Agency EEB European Environmental Bureau EMAS Eco-Management and Audit System EP European Parliament FTE Full time equivalent IA impact assessment IMPEL European Union Network for the Implementation and Enforcement of

Environmental Law IPPC Integrated Pollution Prevention and Control IRI IMPEL Review Initiative MS Member States REACH Regulation (EC) No 1907/2006 concerning the Registration,

Evaluation, Authorisation and Restriction of Chemicals RMCEI Recommendation 2001/331/EC providing for minimum criteria for

environmental inspections SME Small and Medium Enterprises SPA Special Protection Area TEU Treaty on European Union TFEU Treaty on the functioning of the European Union WHO World Health Organisation WEEE Waste Electrical and Electronic Equipment WSR Waste Shipment Regulation



Preface

This study was conducted by ECORYS in co-operation with COWI A/S, Dr. Rousseau of the Catholic University of Leuven and the University/College of Brussels. The assignment was carried out under the Framework Contract for Directorate-General Environment (ENV.G1/FRA/2006/0073) and implemented in the period December 2009 to March 2011. During the assessment we received direct feedback of people from different organisations. We also received reactions from some people on the subject in writing. We would like to express our gratitude to all people who have shared their valuable insight with us on the matter. The evaluation was carried out by an independent evaluation team. The report represents the views of the consultant, which do not necessarily coincide with those of the Commission.



Executive summary

This is the final report of the study: Impact assessment study into possible options for

revising Recommendation 2001/331/EC providing for minimum criteria for

environmental inspections 1. The study was carried out from December 2009 to March

2011. The purpose is to support the Commission in its impact assessment of possible options for revising the Recommendation 2001/331/EC providing for minimum criteria for environmental inspections (hereafter the RMCEI)2. The approach guiding the impact assessment (IA) conforms to the European Commission’s Impact Assessment Guidelines3 in terms of methodologies and structures. The study relies on a wealth of academic literature, relevant EC documents and data gathered from a wide range of stakeholders by means of interviews and questionnaire surveys. The study team did its utmost to identify relevant quantifiable data and methods, however, this proved exceptionally difficult (which is confirmed by the European Commission’s 2007 Review of the RMCEI4). The end result is therefore highly qualitative.

The RMCEI - background and content

Environmental inspections are part of the policy tool-box which policy makers can use to monitor and enforce environmental legislation. It is a time consuming and often technically complex process which involves a large number of authorities and companies. It is a key part in the regulatory cycle and the scope and ways of conducting inspections in EU Member States (MS) differs widely. The differences in inspections regimes are a result of local context and political culture. It has lead to some countries to establish innovative and efficient system but also an uneven enforcement landscape.

1 EC, Recommendation of the European Parliament and of the Council of 4 April 2001 providing for minimum criteria for

environment al inspections in the Member States (2001/331/EC). 2 In one of the final paragraphs of the RMCEI (no: IX), the review and development of the recommendation is addressed. It

stipulates that the European Commission – with contributions from IMPEL and the EEA – should review the RMCEI in order to improve it further in light of the experiences from MS. The EC is urged to submit a report accompanied by a proposal or directive, if appropriate. The RMCEI is currently going through a revision phase, following the 2007 Review and better

insight into the workings of the legislation. With this in mind, the objective of this report is explained in the next coming sections.

3 EC (2009) Impact Assessment Guidelines. SEC(2009)92. 4 Communication from the Commission to the Council, the European Parliament, the European Economic and Social

Committee and the Committee of the Regions on the review of Recommendation 2001/331/EC providing for minimum criteria for environmental inspections in the Member States, COM(2007) 707 final. From hereon called “The 2007

Review”.



The objective of the RMCEI is to improve and contribute to even compliance with EU environmental legislation within MS. The RMCEI includes guidelines and minimum criteria for organising, performing, following-up and publishing the results of inspections. It covers all industrial installations, companies and facilities that are subjected to authorisation, permit or licensing requirements under EU law. These installations are also called “controlled installations”.5 Long discussions regarding the legal status preceded the birth of the RMCEI. In 1997, the Council invited the European Commission to establish guidelines at Community level to assist MS with relevant inspections tasks. The key goal was to reduce the disparity in performance between MS inspections. The European Parliament (EP) argued for a Directive. This was rejected, however, by the Commission and Council. Nevertheless, in 2000, the Council acknowledged the possible need for a Directive in case MS’ performance did not improve. The Council emphasised that MS should be allowed flexibility in shaping their national inspections regimes. To foster improvements in inspections, Community guidelines for minimum standards were suggested. This formed the foundation of the RMCEI, which was adopted by the EP and the Council in 2001.

Fire in chemical plant in Moerdijk, the Netherlands 2011

A recent event in the Moerdijk, the Netherlands, shows the relevance of planning, conducting and

implementing inspections and their recommendations. After a fire destroyed the ‘Chemie-Pack’ plant in

Moerdijk (NL) on the 5th of January 2011, citizens are concerned about their health and the wellbeing of

their close environment. The chemical substances freed by the accident negatively affected the local

economy by contaminating agricultural products, evacuation of business in the area and material

damage. Environmental impacts include excessive lead levels in the soil, excavation of sites as well as

potential long-term damages. Increasingly, media and local stakeholders raise their concern about the

inappropriate preventive measures which failed to protect human and environmental health and caused

temporary unemployment in the community of Moerdijk.

Inspections in 2008 and 2010 concluded that ‘Chemie-Pack’ lacked essential measures to prevent

major accidents, still the plant continuously received its operation permits. Furthermore, it was known

to the local authorities that the company’s fire-fighting capacity was insufficient.

Source: various news agencies

The implementation of the RMCEI has in general been credited for improving inspections in Europe.6 IMPEL reports7 and interview respondents8 high-light three aspects where the RMCEI has been particularly successful: 1. the impetus given to knowledge exchange and sharing of best practices;

5 2001/331/EC 6 See e.g.: IMPEL (2007) IMPEL input for the further development of the Recommendation on minimum criteria for

environmental inspections (RMCEI). Draft final report October 2007. 7 See e.g.: IMPEL (2007) IMPEL input for the further development of the Recommendation on minimum criteria for

environmental inspections (RMCEI). Draft final report October 2007. 8 For a complete list if interviews see Annex II.



2. the value of RMCEI as a tool for structuring and planning inspections, and; 3. the non-binding character, allowing flexibility to implement the legislations

according to local context and external circumstances.

Answers to the question: ‘Has the RMCEI improved [the implementation of] environmental law

in Europe?’

• Yes, it has. Especially, I believe, in the new MS where it has introduced some standards not so

widely used before (regarding for instance planning and reporting). ( EPA Estonia)

• In Finland, the minimum criteria have helped us mainly in the aspect of organising inspections. I

can say that it is a useful tool in structuring and planning. (EPA Finland)

• In my opinion, the greatest value of the RMCEI is its standardised nature for reporting,

communication and level of inspections. This approach eases the dialogue with other European

countries and thereby provides the basis for communication. (EPA France)

• Yes, in some countries RMCEI is said to have improved the environmental standards a lot. Also in

Portugal I can say that it was very successful in implementing regular and efficient inspections.

(EPA Portugal)

• The existing Recommendations are already quite good but Czech Republic believes that a

Directive would be even better. The RMCEI has helped us to be comparable to other countries.

(EPA Czech Republic)

• Yes. On a national level the RMCEIs have helped a lot in planning and especially in introducing

procedures for day by day activities. Besides the RMCEI were very useful in developing other kind

of mechanisms using the same reason-based approach. (EPA Romania)

Source: Interviews conducted by ECORYS

Background for a possible revision

Even though our study found general satisfaction with how the RMCEI functions thus far in MS, there is clearly room for improvement. In the 2007 Review the Commission concluded that: "In the opinion of the Commission the lack of full implementation of the Recommendation

makes it necessary to consider establishing legally binding requirements for

environmental inspections. In addition, there is a need to clarify the general criteria for

environmental inspections and to provide further guidance and exchange of information

on their implementation".9

Moreover, in 2008, an EP resolution on the 2007 Review, noted that the uneven and partial application of the RMCEI is not conducive to fair competition in the single market. It is also unsuccessful in ensuring implementation of EU environmental

9 The 2007 Review also put forward proposals for further actions which have been accommodated when designing this

study.



legislation. The rationale of these aspects are supported by the 2010 Internal Market Scoreboards10 report which states that: ”Whenever one or more MS fail to transpose directives on time, they leave a void in the

EU legal framework. Hence, instead of an Internal Market covering all MS it remains

much smaller and fragmented. Consequently, the economic interests of all MS suffer if

already one Member State does not deliver”. It continues: "…the failure to transpose a directive, that has been transposed in all the other MS holds

the Internal Market hostage to one Member State’s inability to transpose directives. This

penalises all MS, their citizens and businesses. Among the sectors most fragmented are

the areas of [transport and] environment. In these sectors, the Internal Market is not yet

a reality. More efforts are needed to reduce this fragmentation further”. The areas of environment [and employment] are in particular affected by non-conformity cases.11 In this context, the EP urged the Commission to come with a proposal for a Directive on environmental inspections by 2009. The Council also recently underlined the importance of clearer rules and definitions, along with improved harmonization of inspections performance in MS.12 The sub-par performance of the RMCEI noted by the EU institutions evokes the need to assess various policy options for revision, including the introduction of a Directive. In case further EU policy initiatives are not taken, uneven and partial implementation of the RMCEI is likely to continue. Furthermore, the following aspects are noteworthy in a Business-as-Usual scenario: Some improvements are likely to take place. Based on current trends, gradual efficiency gains may occur. In particular more digitalisation; increased self-reporting and self-policing, and more frequent use of risk based approaches. Two factors are expected to limit the speed of improvement: 1. significant resource constraints in some MS (in terms of skills and manpower, see

text box below); 2. lack of a clear political momentum behind the inspections issue.

10 These observations and quotations are put forward here although the Recommendation is not legally binding as the

implications of the fragmented and uneven implementation remain the same. 11 EC (2010) Internal Market Scoreboard. 2010 No.21 http://ec.europa.eu/internal_market/score/index_en.htm 12 EC (2010) Improving environmental policy instruments - Council conclusions -, 3061st ENVIRONMENT Council meeting

Brussels, 20 December 2010.



Commentary

Cyprus……"improvements that are considered necessary are more qualified staff….."

Hungary draws the conclusion that to improve the efficiency of the control more staff should be

employed….

Portugal…."The efficiency of inspection activities could be improved with more inspection staff and

material resources"

Greece also concluded that the inspection authorities are not adequately staffed and equipped to aim

and respond to controls for the observance of environmental legislation and permit conditions

Source: Interviews conducted by ECORYS

Moreover, in our study an interviewee in Estonia, for instance, mentions that budgets for inspections have been cut by 50% due to the financial crisis. Continued different modes of implementation (e.g. different scopes, interpretation of plans, approaches to ensuring access to information and types of installations covered). Differences in implementing inspections and the RMCEI across MS could result in different treatment of similar installations.

The Commission’s 2007 Review reports on differences in implementation levels across MS, which are presented in the table below:

High Partial Limited Unclear*

Belgium

Germany

Ireland

Netherlands

Sweden

UK

Austria

Luxembourg

Portugal

Czech Republic

Estonia

Hungary

Latvia

Poland

Slovakia

Bulgaria

Romania

Cyprus

Malta

Denmark

Finland

France

Greece

Italy

Spain

Source: EC (2007) Report on the implementation of Recommendation 2001/331/EC providing for minimum criteria for

environmental inspections. Annex to the Communication from the Commission to the Council, European Parliament,

Committee of the Regions and Economic and Social Committee on the review of Recommendation 2001/331/EC

providing fro minimum criteria for environmental inspections.

* Unclear indicates that the information gathered in the 2007 review was inconclusive to establish the level of

implementation among these countries. It was not possible to establish whether the countries are in non-compliance or if

it only concerns gaps in information. On the other hand, in our research, Finland, Denmark and France, have came out

as very effective in their implementation of the RMCEI.

Continuation of experience sharing and knowledge building. This is expected to continue mainly in the context of IMPEL and on a voluntary basis. This implies that



participation, contributions and benefits will not be distributed evenly across MS since those with fewer resources and skills will be less able to contribute and benefit from knowledge sharing.

The 2007 Review specifically points to IMPEL as the main means of experience sharing and knowledge building. However also noting that some bilateral collaboration and expert exchanges have also taken place.

Continued insufficiencies in the ability to link the RMCEI to the environmental

acquis and continued insufficiencies in comparable evaluations and reporting -

resulting in continued difficulties in evaluating performances (within some MS and)

across MS. The 2007 Review and our results, point at the difficulties in relating inspection activities to EU environmental law. The main reason is that inspections focus on and define their responsibilities in the context of national legislation (in which EU legislation is also transposed, but which may also include additional or different requirements). The main drivers for this uneven and partial implementation are: • Differences among MS in interpreting definitions, scope and reporting requirements; • Resource constraints that may or may not be related to a lack of sufficient political

priority. Objectives for a possible revision

In light of the problems described regarding inspections, the table below illustrates the objectives on which possible revisions should focus:

The general objectives are in line with the Impact Assessment Guidelines and capture the Treaty-based goals that provide the link with existing policy. The specific objectives set out the aims of the policy interventions under consideration. Finally, the operational objectives define the desired outcomes of the interventions.

1. General objectives

• Improve environmental quality

• Promote the Internal Market

2. Specific objectives

• Contribute to full and even implementation of environmental regulations in all EU MS

3. Operational objectives

• Improve the effectiveness (quality) of inspections in all EU MS;

• Improve efficiency of inspections in all EU MS; and,

• Promote co-ordination, knowledge exchange and sharing of best practices between inspecting authorities

in and between MS.



Options for a possible revision

To investigate different paths to revising the RMCEI, three options are analysed. The first option include an additional three sub-options: 1) Option 1: Revision of the RMCEI

a) Option 1A: Inclusion of all activities covered by the environmental law into the scope of the revised RMCEI

b) Option 1B: Further development of criteria for inspection plans and programmes c) Option 1C: Establishing a regular reporting system based on the ten potential

indicators identified in the IMPEL Brainstorming Project 2) Option 2: Transformation of the RMCEI into a Directive

3) Option 3: Introduction of inspection obligations into sectoral legislation

A short background to each option is provided in the following sections. Option 1A

Option 1A was identified in the proposed Way Forward section of the 2007 Review, in which it is stated that one should consider to: "Broaden its scope so that it covers as far

as possible all environmentally significant activities". The analysis of option 1 investigates the implications of extending the scope of the RMCEI with the following pieces of legislation: • Regulation (EC) No 1013/2006 on Shipments of Waste is analysed due to already

observed synergies between the legislation and the RMCEI. A recent study on inspection requirement for waste shipments13 stressed that the inclusion of the WSR in RMCEI would provide an opportunity for MS to improve the efficiency of their inspection services.

• CITES was included because it would harmonise inspection regimes across MS and

improve country standards. However, the research performed for this report found little support for such a step. The transposition of the CITES into national law would be a more appropriate way to improve standards and harmonise MS regulatory efforts.

• The Nature Directives (Birds Directives 2009/147/EC and Habitats Directive

1992/43/EC) have been included acknowledging the role of inspections in nature protection.

• REACH (2006/1907(EC) has been analysed since the Recital 121 of REACH states

that MS should: (1) put in place effective monitoring and control measures, and (2) that inspections should be planned carried out and their results reported. Moreover, in

13 IEEP, Biointelligence and Ecologic (2009) Study on inspections requirements for waste shipments. Final report to the

European Commission.



December 2009, the Forum for Exchange of Information on Enforcement adopted “minimum criteria for REACH inspections” building on the foundations of RMCEI.

Option 1B

Option 1B follows a proposal from the 2007 Review, which states that "further

development of criteria for the planning of inspections should be considered". The 2007 Review highlights the need to improve efficiency through better targeting of inspections. It requires clear definitions of “inspection plans" and “inspection programmes” and highlights the following issues as important: • clearer description of the scope and linked definitions; • the inclusion of criteria for RMCEI training for inspectors; • add short summaries in English to annual, nation wide reports; and, • improved planning of inspections. Which in turn should (i) distinguish more clearly

between the strategic (setting priorities) and operational (planning the actual work) levels; (ii) describe more clearly how priorities should be assigned; (iii) give more attention to the setting of inspection targets and performance indicators; and (iv) consider strategic issues, such as linking the risk of an operation with inspection frequency.

Option 1C

Option 1C relies on a comment in the 2007 Review according to which: "A reporting

system that is as simple and clear as possible should be established to provide

comparable information on how inspection systems are working and whether they

achieve the objective of improving compliance with environmental legislation.” According to the 2007 Review this option would "provide comparable information on

how inspection systems are working and whether they achieve the objective of improving

compliance with environmental legislation". Indicators, such as those used in the IMPEL work on performance indicators for environmental inspection systems, would assist the individual MS to facilitate and professionalise the work of local inspectors. Option 2

Option 2 examines the option of transforming the RMCEI into a Directive. To augment the legal status of the RMCEI from a recommendation to a directive has been suggested by both EU institutions as well as MS. A legally binding instrument is expected to provide a strong legal push for some MS to improve inspection standards. This is likely to promote better or even full compliance with environmental legislation.



Option 3

Option 3 suggests the introduction of legally binding inspection requirements in sectoral Directives. The suitability of specific sectors is assessed on a case-by-case basis. The assumption is that the efficiency and effectiveness of the inspections will improve in cases where legally binding inspection requirements have been introduced (e.g. the proposal for the new SEVESO Directive, the Directive on Carbon Capture Storage (CCS) and the Industrial Emissions Directive (IED)). Issues which are addressed under option 3 include: • Determining the conditions for successful implementation of the inspection

requirements, and hence the impact on compliance; • The costs and administrative burden with the introduction of inspection obligations

into sectoral legislation. The table below summarises the options, the problems/objectives that they address, and how they are expected to deliver

Options

consider..

The problem/objective… Through…

1A: Extend scope Issues of ineffectiveness,

non-compliance and/or

uneven inspections within

the areas of legislation

currently not in the scope of

the RMCEI.

Applying the RMCEIs to currently non-covered

environmental legislation would:

• Improve effectiveness and evenness of inspection

• Improve efficiency by having the RMCEI covering

more (all) environmental legislation

1B: Criteria for

inspection plans

Lack of effectiveness

Lack of efficiency

Uneven inspections

Improve quality of inspection plans, improve definitions

of key concepts, promote more quality across MS

1C: Reporting of

performance


Lack of efficiency

Uneven inspections

Better monitoring of effectiveness and efficiency of

inspections (identify weaknesses leading to

improvement)

Incentive to improve inspections by benchmarking

across MS

2: Transform the

RMCEI into a

Directive


Lack of efficiency

Uneven inspections

Legal push/requirements:

• Improve planning, execution and reporting on

inspections

• Higher priority to inspection s(both quality and

quantity)

• More even effectiveness of inspections across EU

3: Inspection

obligation into

sector legislation

Specific inspection issues in

sector legislation

(effectiveness and

unevenness)

Improve effectiveness (and evenness) for specific sector

legislation



Impact assessment and comparing the options

The specific objective of the policy options is to contribute to full and even compliance with the environmental legislation across MS. The impacts of the options are therefore assessed to determine how they address these objectives. A baseline scenario was set to create a point of reference. The baseline scenario

The baseline scenario shows an ongoing tendency toward uneven and partial implementation, resulting in different levels of compliance levels among MS and impacting negatively on the internal market. The one-off costs of significant effectiveness and efficiency improvements amount to some 25 to100 million EUR, based on an illustrative case. Considering also the net-benefits lost as a result of non-compliance with air quality legislation alone, leads to total net benefits of several billion EUR. Comparing environmental and health improvements - which are in the billions of Euros - with possible additional administrative costs, a clear case can be made for other options compared to the baseline. Option 1

Extending the scope of the RMCEI (Sub-Option 1A) could generate synergies between different national authorities and improve inspections in some areas presently not covered. However, differences in the subject matter and content of laws continue to limit effectiveness. Hence, the conclusion is: it depends. Including the Waste Shipments could improve the effectiveness of inspections. However, the benefits of including REACH (only in the early stages of implementation) and the Nature Directive (requiring a specific methodological and institutional approach) are unclear. In general, a joint reference document for all EU legislation promotes "economies of scale". However, such an all-encompassing document would have to remain fairly general or very specific to accommodate the particularities of the various sectors. For example, the definition of “installation” differs vastly between the Nature Directives and the IPPC. Moreover, a general RMCEI must allow for positive results already achieved in some areas to be harnessed. The up-front costs of wider implementation of the RMCEI will depend on the existing situation at country and EU level. Under sub-option 1B, improved definitions and criteria for inspection planning, and more focussed training, would increase the effectiveness and efficiency of inspectorates. It would also improve efficiency, leading to lower inspection costs in the long-term. However, improvements would be modest and the effort would face the same obstacles as the present RMCEI in terms of even implementation across the EU. The one-off administrative costs of implementation and adaptation is expected be limited. Sub-Option 1C could increase inspection effectiveness and efficiency. Using the IMPEL 10 indicators would help to identify areas where inspectorates can improve their



performance. However, considerable efforts will be involved to define and agree on appropriate indicators. If these indicators are not presently measured, their introduction into a revised RMCEI will bring one-off costs of setting up the systems. Data-collection and compilation of the indicators would also require additional recurrent costs. These additional administrative costs are not significant and if the inspections become more efficient this is likely to outweigh the start-up costs. Option 2

The legal impetus created by Option 2 would address the uneven implementation of the RMCEI. It is likely to enhance the effectiveness of inspectorates and harmonise inspection levels across the EU. This would help to reduce market distortions created by uneven implementation of the environmental legislation. The main costs will be the one-off costs of implementing the RMCEI related to planning, execution and reporting. Option 3

Option 3 involves the introduction of legally binding inspection criteria into sectoral legislation. This allows for a more precise and targeted approach, which would enhance inspection effectiveness, leading to better allocation of resources and better (environmental) results. However, there are also administrative costs for government and business associated with option 3. The long process needed in the event of amending all relevant EU law being taken, instead of selecting only a small number of laws, could reduce the net benefits to zero. Comparing the options

The study compares the options and looks at the possible merits of combining two or more options for better regulation and compliance. Sub-option 1A and option 3 seek to expand the application of the RMCEI by integrating its principles into sectoral legislation or by increasing the RMCEI‘s scope. The challenge here is to ensure an appropriate level of relevance for each of the "new" sectors while at the same time maintaining sufficient concreteness of the contents of the RMCEI. Expanding the scope further does not significantly enhance or harmonise implementation and most benefits are achieved in the "new" sectors. Option 2 and option 3 seek to change the legal status of the RMCEI by making it legally binding, or by integrating its principles into other relevant EU legislation. Legislative processes are complex, resource-intensive and time consuming. Once such initiatives are launched, they could also slow down national initiatives, as there is a general tendency of waiting for EU legislation and trying to contribute to that process. Once achieved, though, these options are likely to provide the largest benefits, contributing to even and full implementation of the RMCEI. These options will therefore generate long term benefits across all the objectives. However, these improvements will be costly, especially for the least-best aligned MS. The preparatory process must consider progress made in the more advanced countries. The risk is that a legislative initiative slows down ongoing progress and/or introduces unnecessary complications. The benefits from legislative action will probably be felt more clearly in the less affluent parts of Europe, where less progress has been made with



the implementation of the RMCEI. However, the costs to administrations, industries and especially SMEs are likely to be high. Option 1B and option 1C improve the contents of the current RMCEI. The associated benefits and costs will depend on the extent to which MS take the improvements on board. The improvements would provide incentives for the development of measures to enhance efficiency and effectiveness. MS whose systems are already more or less in line with the RMCEI will incur little costs and benefits. On the other hand, poorly aligned MS may incur substantial up-front administrative costs. These costs are likely to be outweighed by future benefits and cost savings as a result of improved efficiency and effectiveness. The voluntary nature of the RMCEI represents a major challenge for these options. The options may therefore not directly contribute to improvements in all countries. The way forward

If the RMCEI remains unchanged, it is unlikely that the current pattern of compliance will change substantially in the future and the EU will continue to have a low level of compliance with key environmental Directives. Improvements may take place over time, the pace of which may be threatened by a possible lack of sufficient political priority, skills and resources. The impact assessment of the options suggests that a wide range of potentially effective options are available. What separates them is various levels of ambition and resources available. In conclusion, the options work differently and contribute to an improvement of the current situation. The options that will provide the most benefits are simultaneously the most costly ones. If however, the objective is to dramatically improve inspections in EU and enhance the implementation of the RMCEI, a more legally binding set-up should be aimed at, as this would promote even and full implementation more effectively than additional or improved voluntary measures. A legally binding status will impose the largest costs and at the same time imply the largest environmental benefits onto the MS that today are less aligned with the RMCEI. And if a higher level of implementation means more intense inspection this may in turn in particular affect the SMEs in these countries. Option 1B can assist MS to meet those challenges, namely through carefully framed inspection strategies (plans) and related operational programmes. These could, to a larger extent than today, build on knowledge and analyses of how to reap benefits from recent trends, e.g. risk-based/targeted inspections, digitalisation and self-auditing. To fully reap these benefits, it may be relevant to accompany the implementation of option 1B with training, workshops and more institutionalised means of experience sharing. To support the EU’s goals, a legally binding status can be accompanied by an integration of indicators into the RMCEI (option 1C). This will assist MS in setting up evaluation procedures and systems and it will further facilitate experience sharing and best-practice identification.



As regards a legally binding status, this is the key contents of option 2 and of option 3. Option 2 would enable the revision to move in its own pace. It would require substantial stakeholder dialogues and analytical work to arrive at a proposal for a Directive. It further needs to be concrete enough to be of value to the individual Member State, while being flexible enough to avoid unnecessary costs. Different MS will, furthermore, incur unequal costs, depending on their current situation. In general, the relationship between resource input (budget and staff) and improved environmental quality with related economic benefits is positive. The EU benefits also from a more level playing field with respect to the internal market and cross-border environmental issues. Option 3 would most likely be pursued in combination with the scheduled reviews of relevant Directives. Such an approach includes a longer time horizon before the benefits of better compliance materialise. Inspection issues will have to continue to be integrated into each Directive in a manner appropriate to the case at hand. A combination of option 3 and sub-option 1B may be effective. It would provide the legal push needed, while allowing for accommodation of the different legislative contexts. The efficiency and effectiveness of inspections would improve as a result of better planning and management, as described in sub-option 1B. Ultimately this would contribute to full implementation of environmental legislation and a more even playing field in Europe.



1 Introduction

This is the final report of the study: Impact assessment study into possible options for revising The RMCEI providing for minimum criteria for environmental inspections (hereafter the RMCEI). The report has been prepared in the period March 2010 to February 2011. 1.1 Objective and scope of the study

The purpose of the study is to support the Commission’s impact assessment of possible options for revising the RMCEI14. The study conforms to the requirements and recommendations of the Impact Assessment Guidelines in that it analyses the problems and objectives, puts forward the options identified by DG ENV, explains how these could address the objectives, and identifies and assesses the main impacts. The options identified are shown and described briefly below:

14 In one of the final paragraphs of the RMCEI (no: IX), the review and development of the recommendation is addressed. It

stipulates that the European Commission – with contributions from IMPEL and the EEA – should review the RMCEI in order

to improve it further in light of the experiences from MS. The EC is urged to submit a report accompanied by a proposal or directive, if appropriate. The RMCEI is currently going through a revision phase, following the 2007 Review and better insight into the workings of the legislation. With this in mind, the objective of this report is explained in the next coming

sections.



Figure 1 Overview of review process

Option 1 is a revision of the RMCEI with three possible sub-options: • Sub-option 1: Inclusion of all activities covered by EU environmental law into the

scope of the revised RMCEI; • Sub-option 2: Further development of criteria for inspection plans and programmes; • Sub-option 3: Gathering information on the performance of environmental

inspection systems in the MS15. Option 1 precludes the need for binding legislation and addresses the scope of the RMCEI (inclusion of more environment-related legislation into the RMCEI scope), and the further development of the criteria. The types of environmental legislation that will be examined here in accordance with the Terms of References include the Waste Shipment Regulation, the Habitats and Birds Directives, CITES and REACH. Option 2 is to transform the RMCEI into a horizontal Directive. Augmenting the RMCEI into a Directive would add weight to the legislation and make implementation compulsory. Option 3 is to introduce inspection obligations to sectoral legislation. This would establish legally-binding inspection requirements on sectors that are covered by the current form of the RMCEI. This option covers the establishment of binding inspection requirements in sectors already covered by the RMCEI. Inspection criteria should also be considered in areas not currently covered by the RMCEI, e.g. waste shipments. 15 As described in the terms of reference to this study, the IMPEL network has contributed to the input into the development of

the Recommendation. Included in this process is the IMPEL brainstorming project (IMPEL (2008) Brainstorming on an

IMPEL Project to develop performance indicators for environmental inspectorates. IMPEL report number: 2008/03) that

aimed to develop performance indicators related to the RMCEI.



1.2 Information Sources and data collection

A wide range of stakeholders were consulted for this study to obtain data and perspectives for the impact assessment. The stakeholder consultations were focused (semi-structured) and kept informal The semi-structured interviews allowed researchers to explore subjects in more depth where the respondents expressed opinions or demonstrated knowledge and insights. An effort was made to obtain as much primary data as possible. However, data collection was difficult and time consuming. That this related in part to the incoherency of MS reporting on inspections, which is one of the key problems affecting implementation of the RMCEI. Furthermore, the lack of quantitative targets in the RMCEI makes the impact of the legislation inherently difficult to assess. MS further often lack disaggregated budget posts for inspections. Often several competent authorities are responsible for inspections. They tend to use different methods which complicates the comparison of from different MS. Further, inspection plans and records are often not readily available to the public. MS information is often not available or insufficiently detailed to assess whether site visits comply with RMCEI criteria. Government agencies rarely consider the economic aspects of enforcement and non-compliance: why firms do or do not comply with environmental laws, what the most effective (environmental benefits) and efficient (regulation costs) enforcement strategies and tools are, and what the potential and limits of regulatory instruments are in deterring non-compliance. Finally, the research team encountered unwillingness on the part of some ministries to provide information, some considering inspections to be a national rather than EU competency.16 As a result of these difficulties the analysis relies largely on qualitative data and proxies to assess costs and benefits of different options. The impact assessment further builds on the (limited) information that has been obtained through primary data collection and by consulting other sources. These include a literature review, focused (semi-structured) stakeholder consultations (surveys and telephone interviews) and six case studies (country reports) of RMCEI implementation in MS. Where relevant, information gathered by various IMPEL studies and consultations was used. This is described further below. Literature review

The literature review focused on the following questions: • How did environmental inspection systems evolve in the MS? What are the main

trends regarding resource availability, methods and outputs? How did these affect compliance with legislation in the MS?

• What are the costs related to inspections and of non-compliance with the RMCEI?

16 This response came from the Ministry of Agriculture, Environment and Rural Areas of Schleswig-Holstein, Germany.

Whether the region possesses the data was unclear. In any case, the respondent did not believe that our data collection

would be met with positive reactions in other MS.



• What does the literature say about inspection strategies and how has this shaped the RMCEI?

Interviews and questionnaire surveys

Sending out questionnaires and telephone interviews with relevant stakeholders were key ways in which data was obtained. Stakeholders approached included national and regional regulatory/ inspection authorities, environmental organisations and NGOs, business branch organisations and individual firms. In total, nearly 200 stakeholders were approached of whom less than 40 responded to the questionnaire. None of the private companies responded to questionnaires, which was compensated for in part through telephone interviews (more than 100 phone calls leading to 17 interviews). Although limited in number and geographical scope, these provided more in-depth information. Table 1.1 shows the number of questionnaires completed and returned (Q), and the number of interviews held (I) per country. Not included in this overview, are IMPEL interviews conducted in the course of the Better Regulation project, which were also used for this study.17 The response from Inspectorates was better, but many of those who returned the questionnaire, answered only a small number of questions, undermining the relevance of the information. Inspectorates in a number of MS were approached telephonically to verify a number of issues, an exercise that generated good information about northern MS. However, the response rate from southern countries was again disappointing. The questionnaires and interviews focused on stakeholder perceptions about the current functioning of the RMCEI, the need for its further development, and the possible impacts of suggested revisions. The Questionnaire and Interview guides are included in Annex 2. An effort was also made to collect baseline information. Unfortunately, none of the respondents was able to share information on (relative) cost issues. The only exception was that in many countries, the number of people employed by Inspectorates had been stable over the last 10 years.

17 See: http://impel.eu/cluster-3/key-projects



Table 1.1 Stakeholders contacted

Organisation

Country

Industry

Industry

organisation

Environmental

agency or

inspectorate

Austria I (1) Q (1)

Belgium Q (2) I (3) Q (1)

Bulgaria I (1) I (1)

Cyprus Q (1)

Czech republic Q (1)

Denmark I (2) Q (1) I (1)

Estonia Q (1)

EU-wide Q (1)

Finland I (1)

France Q (1) I (1)

Germany I (2) I (1) Q (1), I (1)

Greece I (1) Q (1)

Hungary Q (1)

Ireland Q (1)

Italy Q (1) Q (1)

Latvia Q (1)

Lithuania Q (1)

Netherlands I (3) Q (1)

Poland I (2) Q (1), I (1)

Portugal I (1) Q (1)

Romania Q (1)

Slovakia Q (1)

Spain Q (3x)

Sweden I (1) Q (2) I (1)

United Kingdom Q (1) Q (2x)

Questionnaires:

Interviews:

Q: 4

I : 11

Q: 4

I: 6

Q: 23

I :7

Q = questionnaire I = telephone interview

Case studies

Six case studies were conducted to obtain information about the level of RCMEI implementation in selected MS. Countries covered include Belgium, Bulgaria, Denmark, Poland, Spain and the United Kingdom. The case studies are presented in Annex 3 of this study. Inspectorates were also approached for case studies. These contacts are not included in the table above. The case studies allowed us to improve our understanding of the institutional framework and appreciate the different approaches to the inspection systems in the different MS.



1.3 Structure of the report

This report is structured as follows: Chapter 2 on "setting the scene" explains the role of inspections in the EU environmental legislation and the relevant developments leading to the adoption of the RMCEI for minimum criteria for environmental inspections. Thereafter, the chapter summarises key elements of the RMCEI and explains the context in which the RMCEI works. The chapter describes the current situation and identifies important development trends. This chapter is fairly elaborated as it provides the foundation for the chapters that follow. Chapter 3 analyses the problems that could be addressed through further policy options. Based on current situation - "setting the scene" - the problems are identified as well as the causes for these problems - thus identifying the main drivers of the problems. Chapter 4 sets out the objectives to be addressed through possible further policy interventions. This is based on the identified problems and drivers and it explains how these objectives relate to the problems. This chapter elaborates also the justification of EU action, i.e. the principles of subsidiarity and of proportionality. Chapter 5 identifies possible policy options that could help to address these objectives, and hence to solving the problems. The chapter explains how each of the identified policy options relates to the objectives and problems identified. The issue of policy coherence is also discussed here. Chapter 6 identifies the main impacts that must be analysed and categorised according to the impact type: social, economic and environmental. The introductory part explains the selection of the main impacts and provides an overview of the methods that were used to assess these (quantitative data, indicators, qualitative assessments, anecdotal evidence, stakeholder statements, other COM documents etc). Thereafter, the economic, social and environmental impacts of each option are assessed. This is followed by an identification of additional factors that should be taken into consideration, followed by a conclusion for each option. The last chapter, chapter 7, compares the options, considering the main merits and costs of each, and considering the possible relevance and advantages of a possible combination of two or more options. Annexes 1 and 2 provide information of the sources used for this study (literature, questionnaires and interviews). Annex 3 gives insight in the institutional set-up of inspection services in 6 EU MS. Annex 4 finally, provides a list of sectoral environmental legislation including provisions on inspections as well as non-legislative acts.



2 Setting the scene

The Treaty on European Union (TEU) and the Treaty on the functioning of the European Union (TFEU) entered into force on 1 December 2009. Article 4 of the TEU establishes the primary obligation of MS to ensure the correct application of EU law. Article 17 of the TEU further makes it the responsibility of the Commission to ensure the application of EU law inter alia through infringement proceedings (Art 258 and 260 TFEU). Environmental law is central to government efforts to protect air, water, natural resources, wildlife and public health. It addresses problems such as the discharge of pollutants into the environment, the protection of flora and fauna, the handling, storage and disposal of solid and hazardous wastes, the application of pesticides, preventing air contamination, and protecting the quality and availability of clean water.18 However, having regulations is not enough to tackle environmental problems and governments must ensure that the regulated community actually adhere to environmental law. Successful strategies will both encourage and compel the required behavioural changes within the regulated community. Although the Treaty leaves MS to choose the ways and means of ensuring that a directive is implemented, that freedom does not affect the obligation put on MS to adopt in their national systems all the measures necessary to ensure that a given environmental directive is fully effective. Instruments to enforce environmental compliance, such as inspections, involve a broad array of government and non-government actors. It is time and resource-intensive and the main challenge has always been to design an effective and efficient package of tools in support of policy objectives. Assuring environmental compliance depends on three mutually supportive sets of instruments, namely implementation, monitoring and enforcement. Inspections conducted by government authorities (or third parties contracted by the government) are part of the second category and remain the backbone of any compliance assurance programme. The most recent annual report on the application of EU law shows that the infringement process continues to play an essential role in ensuring the correct application of the EU law in the field of environment. High volumes of cases on late transposition, insufficient implementation or lack of proper enforcement continue to be a challenge affecting the EU

18 International Network for Environmental Compliance and Enforcement (INECE ), Principles of Environmental Compliance

and Enforcement Handbook, Second edition, April 2009



industry, EU policies and individual citizens in the EU. The Commission thus confirmed in its report the need to focus on effective instruments for the enforcement of EU law19. Each of the various environmental sectors within the EU environmental law20 faces general and specific implementation and enforcement. Nature conservation legislation accounts for between a fifth and a quarter of environmental infringements and the highest number of open environmental cases. Waste legislation constitutes a large proportion of the EU environmental acquis; however, there are serious implementation gaps in a large part of the EU. Enforcement of EU waste legislation remains poor, particularly with regard to the waste framework directive, the landfill directive and the waste shipment regulation. There are large disparities between MS regarding the implementation of EU waste legislation requirements and MS which continue to breach EU waste management rules. Joint enforcement actions have shown that illegal waste shipments remain a serious problem in the EU with an IMPEL-TFS project rendering a rough 19% of all checked waste transports illegal.21 Despite progress regarding the implementation of EU water law and EU water quality standards, more efforts are needed to ensure full compliance with EU water Directives. There is also a widespread non-compliance with air quality limit values, particularly those for PM10 (particles of 10 micrometers or less)22 and nitrogen dioxide. Given the negative impacts on health, this is cause of concern. A large number of MS are behind with the implementation of the air directives and their capacity to tackle air pollution at the source should be increased. The link between these issues and health are documented in different studies. An EEA study of 200523 stipulates that ‘Poor indoor air quality is the source of a number of health problems, including cancer, allergic symptoms, distress, sleeping and concentration problems, and coughing, wheezing and asthma-like symptoms in children’. The same study makes a reference to a WHO evaluation 2004 indicating that ‘air pollution was responsible for approximately 100 000 deaths and 725 000 years of lost life (DALYs) each year in a selection of European cities within the WHO European region’. The more recent estimates of the impact of air pollution made in the European Commission 'Clean air for Europe' (CAFE) programme found that in the EU about 350 000 people died prematurely in 2000 due to the outdoor air pollution caused by fine particulate matter (PM2.5) alone.24 This corresponds to an average loss of life expectancy

19 COM (2010) 538 final Report from the Commission, 27th annual report on monitoring the application of EU law (2009). 20 The approach in implementing EU legislation in general is set out in the Commission Communication "A Europe of results –

Applying Community law" (COM(2007)502 final. The approach to be taken in the implementation of EC environmental law

in particular is laid down in the Commission Communication on implementing European Community Environmental Law (COM(2008)773 final.

21 IMPEL-TFS (2009) Enforcement of EU Waste Shipment Regulation. IMPEL-TFS Enforcement Action II, Interim Project

Report, 12 October 2009. 22 A Dutch study (Knol en Staatsen, 2005), showed that due to more severe regulation and follow up, PM10 decreased in the

Netherlands by circa 40% between 1980 and 2000 - from +-/ 15000 DALY (Disability-Adjusted-Life-Years) to +/- 11000

DALY. 23 EEA Report No 10/2005, Environment and health. 24 EC (2007) Together for Health: A Strategic Approach for the EU 2008-2013. Commission Staff Working Paper, COM(2007)

630 Final.



of about 9 months for every EU citizen. Finally, a study in the Netherlands indicated that PM10, noise and materials like radon contributed to 2 to 5% of total illness.25 The implementation of the legislation relating to industrial installations and diffuse sources similarly lags behind in some countries and calls for enhanced monitoring and compliance checks. Effective implementation of REACH and CLP Regulations are the main priority in the chemical sector. This sector is characterized by large developments and doubts as to whether sufficient implementation and compliance will take place. Experience with cross-cutting directives, such as the Directive on access to environmental information, indicates that public authorities of all levels, in particular lower ones, need to make greater efforts to inform and respect the right of the public under the Directive. Lack of implementation and weak inspection and enforcement measures continue to pose a challenge in the MS. This is the case despite many Commission initiatives aimed at raising awareness, exchanging information, guidance and participation in joint enforcement actions. Poor implementation of EU legislation is a missed economic, social and environmental opportunity which the EU and its MS cannot afford26 and which needs to be addressed by all appropriate means. The role of inspection as part of enforcement in ensuring compliance with EU environmental legislation should not be underestimated. Inspection not only strengthens compliance on the part of controlled installations, but also achieves a high level of environmental protection. Recognition is growing that strong inspection and enforcement is needed in many of the environmental sectors. Other regulatory sectors are testing other ways of strengthening inspection and enforcement, for example through self-monitoring, and risk based assessment methods.27 Better implementation and enforcement also helps to prevent damage to property and makes the stakeholders more resilient to risks. Inspection should thus not be seen in isolation but as a major component of enforcement. An important role can also be assigned to administrative and criminal environmental sanctions, licensing policies, voluntary initiatives such as the Eco-Management and Audit System (EMAS) and ISO 1400128 together with dialogue and interaction with stakeholders. Improved synergies between these systems can still add value to inspection planning, execution, reporting and evaluation. This depends on adequate information sharing and transparency. The Commission is already pursuing a number of initiatives, among others to promote synergies between administrative and criminal regimes. Increasing the role of the public in decision making processes and inspection and enforcement may also improve implementation. The IMPEL Review Initiative (IRI) and the IMPEL work on transfrontier shipments of waste (e.g. on joint inspections activities) are good examples of targeted approaches which should lead to more informed decision making by the Commission and the MS.

25 Bouwstenen voor gezondheid & milieubeleid, RIVM Briefrapport 630789001/2007, bijlage bij briefnummer 200/2007 26 Press Release (IP/09/1795) Waste management: Commission calls for better implementation of EU waste law by Member

States, 20 November 2009 27 OECD 2004 28 ISO 14001 is generally more popular among operators than EMAS as it does not require for operators to regularly report on

environmental aspects as part of their operations. In contrast, regular reporting is a requirement of EMAS.



2.1 History of EU inspections legislation

This chapter provides an overview of the history of EU inspection legislation, a summary of the key contents of the RMCEI, and an analysis of the links between the RMCEI and other sectoral environmental legislation. The current situation is described and important trends in environmental inspection in Europe identified. An overview of the views of the main stakeholders is also provided. We inserted explanatory text boxes where relevant throughout the text. Legislation for environmental protection was omitted from the original Treaty of Rome (1958), and introduced only in 1972 with a series of European Environmental Action Programmes (EAP). The Single European Act (1986) introduced the principle that all new Community legislation should consider environmental protection while the broader concept of sustainable development was introduced in the Treaties of Maastricht (1992) and Amsterdam (1997) as key EU objectives. Sustainable development for MS became a central part of the Europe 2020 Strategy and underpins all EU policy regarding the single market. The Lisbon Treaty (2007) made sustainable development a key EU objective and, in 2010, the EU renewed a number of environmental Directives to ensure their compliance with the Lisbon Treaty. EU environmental legislation covers a wide range of topics, organisations and activities; however, implementation has been uneven. The Fifth EAP (adopted in 1993) emphasised the long-term management of natural resources; the fight against pollution and waste; reduced use of non-renewable energy; improvements in the location of industries, people and their transport infrastructure; and improvements in health and safety. Also, the Sixth EAP (adopted in 2001) recognised that the environment would continue to deteriorate unless progress was made with the implementation of environmental legislation in MS. MS use environmental inspections to promote and control compliance with domestic and EU legislation. In 1996 a Commission Communication proposed the formulation of guidelines at Community level to assist MS with inspection tasks and to reduce the disparity between Member State inspections. The Council subsequently (in October 1997) invited the European Commission to take this forward based on inputs from the IMPEL (see text-box) network and on earlier call by the European Parliament for Community legislation on environmental inspections.

IMPEL

In line with the RMCEI, the Commission keeps the operation and effectiveness under review. It is

assisted in this task by the European Union Network for the Implementation and Enforcement of

Environmental Law (IMPEL). IMPEL is a non-profit association of the environmental authorities of the

MS, accession and candidate countries of the European Union and the European Economic Area (EEA)

countries. It was established to serve as a forum for cooperation between MS inspection authorities, to

promote compliance with the RMCEI and create a platform for exchanging information and sharing best

practices.

Gradually, IMPEL has broadened the scope of its activities from installation-related environmental

legislation to other environmental sectors (notably waste, air, climate) and covers nowadays nearly all



important environmental sectors with the exception of nature conservation. IMPEL played a particularly

important role in the development and adoption of the RMCEI providing for minimum criteria for

environmental inspections (RMCEI).

With the gradual increase of IMPEL's scope of activities, came also a trend to extend its core activities

relating to exchange of information, training of inspectors and development of best practice in relation to

permitting and inspection to cover also feed-back to the Commission on legislation (examination of

legislative drafts, commenting from the point of view of enforceability and practicability).

Source: www.impel.eu

In 1997 IMPEL produced a report on the Minimum Criteria for Environmental Inspections which examined the nature of different types of inspections that regulators in the MS undertake and set out basic criteria for how these inspections should be conducted. During the adoption process, the European Parliament pleaded for a Directive, which was rejected by the Commission and Council. The Council nonetheless acknowledged that a Directive could be needed later, if Member State inspections did not improve. The Council also stated that though the different systems for inspections in the MS should not be replaced, Community guidelines for minimum standards could be adopted in order to improve performance. This approach formed the foundation of the RMCEI. In 2001 the European Parliament and the Council adopted the landmark RMCEI 29 in recognition of the importance of environmental inspections and the disparity between inspection systems and practices in MS. The objective of this (non-binding) Recommendation was to improve MS compliance with EU environmental legislation and more consistent implementation and enforcement throughout the EU 2.2 Introducing the RMCEI

The RMCEI establishes guidelines for environmental inspections in MS and is designed to strengthen compliance with Community environmental law. It provides minimum criteria for organising, performing, following-up and publishing the results of environmental inspections in all MS. The RMCEI covers all industrial installations, companies and facilities that need authorisation, permit or licensing requirements under EU law. Such installations are also called “controlled installations” in the RMCEI.30 Besides providing general obligations for MS, such as aiming for high environmental protection and cross-border cooperation, the RMCEI deals with four areas as discussed below.

29 EC, Recommendation of the European Parliament and of the Council of 4 April 2001 providing for minimum criteria for

environment al inspections in the Member States (2001/331/EC). 30 2001/331/EC.



1. Establishing plans for environmental inspections of installations

Plans for environmental inspections are supposed to take into account the risks and environmental impacts of installations and any available relevant information on the controlled installations, such as reports of operators, self-monitoring data, environmental audit information and environmental statements and results of previous inspections. Each inspection plan should as a minimum:3132 • define the geographical area which it covers, which may be for all or part of the

territory of a Member State; • cover a defined time period, for example one year; • include specific provisions for its revision; • identify the specific sites or types of controlled installations covered; • prescribe the programmes for routine inspections, taking into account environmental

risks; these programmes should include, where appropriate, the frequency of site visits for different types of specified controlled installations;

• provide for coordination between the different inspecting authorities, where relevant. In addition, inspection plans should be available to the public according to the “Aarhus” directive (directive on public access to environmental information). 2. Performing inspection

The second part covered by the RMCEI is the site visits, dealing with what and how the actual inspection should take place. It emphasises the importance of knowledge sharing, capacity building and dialogue with site managers to promote and reinforce knowledge among operators. Site visits must also comply with local laws, ensure that information is exchanged among authorities performing the inspections, and assess the need for improvements in the operation of the installation. Finally, the RMCEI stipulates when “non-routine” inspections should take place. Such an inspection is necessary when there are complaints about a facility, in cases of serious accidents, first time of authorisation, and timely renewal of permits. Regarding the frequency of inspections, the RMCEI states only that site visits should be done regularly and as part of routine work of inspection authorities. 3. Reporting on inspection

The third aspect of the RMCEI deals with the disclosure of findings from site visits. Reporting should be done in a timely and transparent manner, and stored in easily accessible data-bases. 4. Investigating serious accidents, incidents and occurrences of non-compliance

Finally, the RMCEI provides guidance on how to report on serious events such as accidents. It stipulates that the cause, responsibility, and liability of an event should be investigated. Furthermore, serious events should be prevented from happening on a future stage by adopting appropriate measures and follow-up procedures.

31 http://www.infomil.nl/english/subjects/inspection-and/doing-the-right/2_minimum_criteria/2_1_content_of_the/ 32 Ibid.



As further described in Chapter 2.4. (on current situation and implementation challenges), the review of RMCEI in 2007 pointed out inter alia the need for clarification and in some cases even enhancement of the scope, further clarification of definitions, more elaborated criteria for planning, carrying out, reporting and access to information on inspection. 2.3 The RMCEI and other environmental legislation

The need for clarification and harmonisation of existing inspection regulations may be approached through several options or a combination of these. The RMCEI can therefore be developed further as a horizontal instrument, while using the RMCEI criteria in parallel applications with specific inspection requirements in areas covered by RMCEI, or through further strengthening of sector legislation in areas not covered by RMCEI. In each instance the relationship between the RMCEI and the sectoral inspection requirements needs to be assessed. A number of examples of binding inspection criteria in sectoral environmental legislation already exist. These include:

Seveso II Directive - Article 18

The current proposal for revision of the Seveso II Directive clarifies and updates the inspection and

enforcement provisions in Articles 17,18,19 and 27 with the aim of ensuring more effective

implementation and enforcement while maintaining or increasing the level of protection for health and

environment. Article 19 strengthens the existing requirements in relation to inspections, largely based

on Recommendation 2001/331/EEC and the Industrial Emissions Directive. The provisions underline

the importance of making available sufficient resources for inspections, and the need to encourage

exchange of information, for example at Union level through the current Mutual Joint Visits Programme

for inspections. New provisions also strengthen the measures to be taken in the event of non-

compliance, including prohibitions of use and other penalties.

Source: European Commission (2010 c)

The CCS Directive 2009/31EC on Carbon Capture and Storage Article 15

MS shall set a system of routine and non-routine inspections of all storage complexes within the scope

of the Directive. Following the inspection, a report is prepared on the results of the inspection evaluating

compliance with the requirements of the Directive. Reports are made publicly available within two

months of the inspection. The Directive is to be transposed by 25th of June 2011.

Source: http://europa.eu/legislation_summaries/environment/index_en.htm

Regulation 1005/2009 on ozone depleting substances - Article 28

MS should carry out inspections, taking a risk-based approach in order to ensure compliance with all

provisions of the Regulation targeting those activities, including inspections on imports and exports of

controlled substances as well as of products and equipment containing or relying on those substances.

The RMCEI should provide guidance for the carrying out of inspections by MS.

The competent authorities of the MS shall carry out the investigations which the Commission considers

necessary under this Regulation. Subject to the agreement of the Commission and of the competent



authority of the Member State within the territory of which the investigations are to be made, the officials

of the Commission shall assist the officials of that authority in the performance of their duties. In

carrying out the tasks assigned to it by this Regulation, the Commission may obtain all necessary

information from the governments and competent authorities of the MS and from undertakings. When

requesting information from an undertaking the Commission shall at the same time forward a copy of

the request to the competent authority of the Member State within the territory of which the

undertaking’s seat is situated. [….]The Commission shall take appropriate action to promote an

adequate exchange of information and cooperation between national authorities and between national

authorities and the Commission. […] Reporting shall be made in cases of illegal trade, in particular

those detected during the inspections carried out pursuant to Article 28.


Directive 2010/63/EU on protection of laboratory animals for scientific purposes, Article 34-35

The aim of the new Directive (updating the previous Directive 86/609/EEC) is to strengthen legislation,

provide more stringent and transparent measures in the area of animal experimentation, improve the

welfare of those animals still needed for this purpose and avoid disparities in implementation liable to

constitute barriers to trade in products and substances.

To monitor compliance with the Directive, Member States should carry out regular inspections […] on a

risk basis. To ensure public confidence and promote transparency, an appropriate proportion of the

inspections should be carried out without prior warning.

In addition to Member State inspections, the Commission shall undertake controls of the infrastructure

and operation of national inspections in Member States, when there is reason for concern. Member

States shall give all necessary assistance to the experts of the Commission in carrying out this task,

and Member States shall address any weaknesses identified in the findings of these controls. The

possibility for such EU control of national inspections systems (Article 35) further strengthens the risk

based inspection provision.


The Industrial Emissions Directive (recast of the IPPC Directive and six sectoral directives)

Article 23.

Member States shall set up a system of environmental inspections of installations addressing the

examination of the full range of relevant environmental effects from the installations concerned, and

ensure inter alia that all installations are covered by an environmental inspection plan at national,

regional or local level and that this plan is regularly reviewed and updated.

Each environmental inspection plan shall include a general assessment of relevant significant

environmental issues; the geographical area covered by the inspection plan; a register of the

installations covered by the plan; procedures for drawing up programmes for routine environmental

inspections; procedures for non-routine environmental inspections; and where necessary, provisions on

the cooperation between different inspection authorities.

Based on the inspection plans, the competent authority shall regularly draw up programmes for routine

environmental inspections, including the frequency of site visits for different types of installations. The

period between two site visits shall be based on a systematic appraisal of the environmental risks of the



installations concerned and shall not exceed 1 year for installations posing the highest risks and 3 years

for installations posing the lowest risks.

Additional site visit shall be carried out within 6 months of that inspection, if non-compliance is detected.

The systematic appraisal of the environmental risks shall be based on the potential and actual impacts

of the installations concerned on human health and the environment taking into account the levels and

types of emissions, the sensitivity of the local environment and the risk of accidents including the record

of compliance with permit conditions and the participation of the operator in the Union eco-management

and audit scheme (EMAS), pursuant to Regulation (EC) No 1221/2009. The Commission may adopt

guidance on the criteria for the appraisal of environmental risks.

Non-routine environmental inspections shall be carried out to investigate serious environmental

complaints, serious environmental accidents, incidents and occurrences of non-compliance as soon as

possible and, where appropriate, before the granting, reconsideration or update of a permit. Following

each site visit, the competent authority shall prepare a report describing the relevant findings regarding

compliance of the installation with the permit conditions and conclusions on whether any further action

is necessary. The report shall be notified to the operator concerned within 2 months of the site visit

taking place and shall be made publicly available by the competent authority in accordance with

Directive 2003/4/EC on public access to environmental information within 4 months of the site visit

taking place. […]


Certain environmental sectors areas struggle to comply with the relevant EU requirements. These include waste shipment, the Habitat and Birds directives, CITES and REACH. The characteristics of these areas of legislation are further elaborated below. Chapter 5 elaborates further why it may be beneficial to include these and other pieces of legislation under the RMCEI. Waste Shipments EU regulations governing cross-border transfers of waste were passed in 1993. Implementation is uneven and in October 2009 a study revealed that almost one fifth of waste shipments inspected as part of recent enforcement actions in MS was illegal.33 The study identified insufficient inspections and on-the-spot checks as contributory factors and recommended the setting up of a dedicated EU-level agency to tackle the enforcement waste legislation. In 2009 the EEA stated that “illegal shipments of waste clearly are a matter of concern for the environment as well as for the economy” and problems therefore seem to continue.34 The Waste Shipment Regulation 1013/2006/EC (WSR) aimed at improving the monitoring of waste shipments35 is specifically aimed at managing environment and health hazards associated with waste shipments within the EU and between the EU and third countries. This Regulation states that "any competent authority of transit and the

33 IMPEL-TFS (2009) Enforcement of EU Waste Shipment Regulation. IMPEL-TFS Enforcement Action II, Interim Project

Report, 12 October 2009. 34 EEA 2009. Waste without borders in the EU Transboundary shipments of waste, EEA. 35 Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste



competent authority of destination in the Community shall be informed in advance concerning a waste shipment and its destination in case of imports into the Community of waste generated by armed forces or relief organisations in certain situations” (Article 1(3)9). However, the Regulation does not give clear guidelines as to what information is to be provided. Many of the waste shipments problems stem from illegal activities and one interview respondent for this study pointed out that the inclusion of waste shipments within the scope of the RMCEI could hamper intelligence-led approaches to combat this. These target illegal waste streams and activities rather than authorised sites and movements. Some respondents even thought that broad inspection plans that do not necessarily provide detailed information on who will be inspected when and where (which sector, which geographical area), may already be enough to frustrate criminal investigators. Habitats and Birds Directives The Habitats Directive requires MS to implement conservation measures for habitats and species of Community interest (as listed in Annex I and II of the Directive respectively). The aim is to improve the protection of habitats and endangered, vulnerable, rare or endemic species; also to protect outstanding examples of bio-geographical regions in the EU. Directive 2009/147/EC on the conservation of wild birds (codified version of Directive 79/409/EEC as amended) aims at ensuring protection for all of Europe's wild birds, identifying 194 species and sub-species among them as particularly threatened and in need of special conservation measures. Member States are required to designate Special Protection Areas (SPAs) for 194 particularly threatened species and all migratory bird species. SPAs are part of the Natura 2000 ecological network set up under the Habitats Directive 92/43/EEC. A second component bans activities that directly threaten birds, such as the deliberate killing or capture of birds. A third component limits the number of bird species that can be hunted (82 species and sub-species) and the periods during which they may be hunted and permitted hunting methods.

In 2009 the Commission published a Communication on the conservation status of Species and Habitats protected under the Habitats Directive following reports submitted by the MS under Article 17 of the Habitats Directive. It concluded that only 17 % of species and habitat types of Community interest have favourable conservation status EU wide and that substantial efforts are still needed to achieve the objectives of the Habitats Directive.36 Natura 2000 sites are protected areas that require legally-binding management plans to safeguard biodiversity. The European Union network GreEnForce is a key player in this:

36 COM (2009)358 final



CITES

The EU’s CITES Regulations derive from the CITES Convention and restrict the trading of endangered animal and plant species37. This is achieved mainly through strict import and export conditions, including for the transportation of such species within the EU. The Regulation does not specify minimum inspection criteria. However, all MS have well-developed legislation regulating the trading of protected species and have detailed requirements for border inspections and registration. As in the case of the Waste Shipment Regulation, the CITES Regulation does not focus on industrial sites, making it difficult to extend the scope of the RMCEI into this domain. A further complication is the fact that endangered species protection and industrial environmental compliance are traditionally separated regulatory domains: RMCEI has an established reputation within the industrial domain, whereas CITES is well-recognized within the biodiversity conservation domain. Including CITES into the scope of the RMCEI would require substantial changes to the inspection process, a revision of the 37 http://ec.europa.eu/environment/cites/legislation_en.htm

An introduction to GreEnForce

The European Union network GreEnForce brings together nature conservation and forestry

practitioners from all MS. In 2006, they published a report on the “Practical implementation of Natura

2000” based on a survey in 14 MS.

On inspection planning, there seems to be a similar approach in all respondents’ countries: the

responsible body prepares annual plans based on former experience and current priorities. The

coordination between different bodies are based on legislative provisions and/or written procedures.

However, reporting is kept confidential and only released in special reports targeting the public or

decision-makers.

Key problem of implementing Natura 2000 (including monitoring) is insufficient human and financial

resources. Least problems are found in the level of competency in the inspecting authority and unclear

legislation. Finally, the report concluded that:

• Inspecting authorities should prepare plans for inspection programmes including resources

availability, time available to perform inspections, frequency of routine inspections, frequency of

reactive inspections and prioritisation.

• Inspection reports should be made for the public and/or the legislator.

Furthermore, a GreEnForce expert meeting on 15 October 2008 dealt explicitly with the effective

enforcement of nature legislation. Judging from the presentations, there seems to be an explicit demand

for sharing expert knowledge, expertise and information on practices used in MS on a regular basis in

an EU-wide network such as GreEnForce. In general, RMCEI and IMPEL reports were used as a

reference for planning and reporting on inspection activities. However, due to the specialist knowledge

needed and the specific characteristics of nature conservation policy, there was no broad support for a

more binding approach to monitoring activities.

See: www.ec.europa.eu/environment/greenforce



terminology to include fauna and flora, and extensive organisational changes on the regional, national and EU-level. Doing so would be a time-consuming and costly process.

REACH

REACH is a new EU Regulation on chemicals and their safe use (EC 1907/2006).38 It deals with the Registration, Evaluation, Authorisation and Restriction of Chemical substances. The new regulation entered into force on 1 June 2007. The aim of REACH is to improve the protection of human health and the environment through better and earlier identification of the properties of chemical substances. It simultaneously aims at enhancing the innovation and competitiveness of the EU chemicals industry. The benefits of the REACH system will come gradually, as more and more substances are phased into the system. The REACH Regulation increases the responsibility of chemical industry to manage the risks and to provide safety information about substances. Manufacturers and importers have to provide the information needed for the safe handling of chemical substances. The information has to be registered in a central database run by the European Chemicals Agency (ECHA) in Helsinki. 2.4 The current situation

Eight out of 17 countries39 surveyed in this study indicated that they have an evaluation system (with performance indicators) for the monitoring and assessment of environmental inspection work at a national level. A large number of MS therefore use country specific approaches which have developed over time to fit the specific conditions.

2.4.1 Resources spent on environmental inspections

Assessing resources spent on environmental inspections creates large methodological issues. The data is incomplete, disorganized and conditional, which result from differences in national inspections systems and large gaps in aggregate data. These problems were recognised in the EC’s 2007 Review, where the Commission noted that “[t]he information is, however, not always comparable and does not always allow clear conclusions on the efficiency of the inspection systems in the MS”.40 The interviews revealed that funding for inspections are often incorporated into the large budgets of environmental agencies in such a manner that the spending cannot be distinguished from other activities. This could serve as a partial explanation of the lack of aggregate data.

38 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the

Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency,

amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC

39 According to country specifications the following possess a national monitoring and assessment system: Ireland, Latvia, Lithuania, Poland, Portugal, Romania and the UK.

40 European Commission (2007), Communication on the review of Recommendation 2001/331/EC providing for minimum

criteria for environmental inspections in the Member States, SEC(2007) 1493.



The problem of finding comparable data can also be blamed on differences in interpretation of concepts discussed earlier in section 1.2 of this report. The administrational burden and costs for inspectorates count among key reasons given for the current uneven and partial implementation of the RMCEI. Budgets for inspectorates have also stagnated in especially old MS over the last decennia. The trend is towards a reduction of national budgets due to government cutbacks in face of the financial crisis. In 2002 the total number of FTEs working with inspections in Sweden was an estimated 1240 with a support staff of 208.41 They performed about 3700 inspections of a total of 5500 installations. The Swedish EPA argued in interviews that this number has not changed significantly, which implies a stagnation in resources spent on inspections over a 8 year period. In Poland, a rather new EU MS, the numbers are less stable and the number of FTEs and installations subject to environmental inspections increased slightly, but the number of site visit has remained stable over time.

Table 2.1 Number of inspector, site visits and installation inspected, 2003-2009, Poland

Year 2003 2004 2005 2006 2007 2008 2009

Number of site visits 17.101 16.419 17.490 17.325 16.876 16.528 17.180

Number of installations subject to environmental

inspections

50.693 53.425 54.762 57.621 59.575 62.354 65.576

Number of inspectors (in fte) 668 663 621 624 610 662 686

Source: Polish EPA, 14 October 2010

In Belgium (Flanders) the focus is on sector-specific reporting and clearly distinguishes between the work groups; water, soil, noise, safety, GM organisms, waste and air pollution. Inspectors, inspections carried out and installations requiring inspections increased slightly. However, as in other cases, the budget does not increase consistently, supporting the notion that increased reporting demands do not equal increase resources for inspectorates. The data below has been merged to summarise the data provided.42

Table 2.2 Overview of Inspection activities in Belgium, 2001-2009

Year 2001 2002 2003 2004 2005 2006 2007 2008 2009

FTEs 106 108 110 113 109 115 115 115 116

Costs (€)43 437 095 545 785 391 547 462 015 542 879 473 993 141 596 447 038 396 323

No. of inspected

installations

1130 1203 1338 1325 1328 1340 1364 1430 1383

41 Naturvardsverket (2003) Svensk Miljötillsyn 2002. Rapport 5274. 42 The total number of inspections is constituted only of the four categories mentioned: water, waste, air and safety since

those areas constitute the biggest share of inspected installations and could be traced to venues whereas e.g. inspections on soil or noise were mostly reported as number of samples taken annually.

43 Only cost of inspections. Laboratory costs were not included.



Year 2001 2002 2003 2004 2005 2006 2007 2008 2009

Water 869 783 806 785 813 814 852 846 842

Safety (SEVESO

I & II)

140 146 188 170 184 215 224 296 284

Waste 60 203 209 234 257 198 196 193 148

Air 61 71 135 136 74 113 92 95 109

Source: Milieuhandhavingsrapport (http://www.lne.be/themas/handhaving/afdeling-milieu-

inspectie/milieuhandhavingsrapport/de-rapporten)

The Danish data is of a somewhat “treacherous” quality. For example, the following table shows the trends for budgets and national employee levels. The structure of municipalities change significantly which could explain the sudden bumps in both rows of number.44

Table 2.3 Overview of Inspectors (FTEs) and budget for 2005-2008 in Denmark

Year 2005 2006 2007 2008

Budget (Mln of DKK) 215,4 242,5 249,6 234,4

FTEs 242 294 306 260

Source: Service of visionsregenskap 2008

Denmark: a case of efficiency gains?

In 2008 Danish municipalities were responsible for 146.361 companies within their jurisdiction. In 2009

this number was reduced to 128.679. The local inspectorates carried out 13.423 and 13.652 inspections

respectively in 2008 and 2009. Of these, respectively 7.911 and 8.428 were full inspections. In 2008,

the municipalities needed 324 FTE to conduct the inspections, and bought DKK 19.084.366 of external

assistance. In 2009, the municipalities required 314 FTE and DKK 17.461.498 of external assistance.

These trends could be driven by tightening budgets as a result of the crisis, but it could also be a

continuing efficiency effect of the reorganisation in 2007. In favour of the first argument is the higher

company contribution payment of the companies for permits and inspections. In 2008 companies had to

pay in total DKK 16.341.444, while in 2009 the amount was DKK 17.597.674.

For more information, see case studies in Annex III

A more extensive table within a limited geographical area can be constructed for the Regional Inspectorate for Environment and Water in Sofia, Bulgaria.

44 Source: Interview with Danish EPA.



Table 2.4 Overview of Inspection activities in Sofia, Bulgaria, 2001-2009

Year 2001 2002 2003 2004 2005 2006 2007 2008 2009

FTEs 48 48 58 60 70 62 31 30 28

Budget (€) 484.397 433.409 453.031 437.280 407.528 533.724 508.261 407.704 308.765

No. of installations 1480 2130 2799 2900 2981 3118 3234 1690 1897

No. of inspected

installations

938 1944 2106 2449 2201 2643 2874 1315 1233

Source: EPA Bulgaria It is difficult to extract specific conclusions about trends in the quality of the inspection systems from this data. Implementation of the RMCEI may well have influenced requirements and workloads; however it is also possible that initiatives may have been taken over the same period to enhance efficiency of the inspection system in the different MS. The data nonetheless suggests that resources allocated (FTE) have remained fairly stable over the last decade or so. This could be a consequence of the reorganisation of responsibilities and workloads. Alternatively it could be the result of being harvested from some of the recent developments and trends (cf. the next section). Our data shows a slight increase of number of people working on environmental issues in installations as a result of intensified legislative requirements. According to one company, the ETS and IPPC, have increased their internal allocations to environmental issues by 10-15%. Disaggregated numbers and causal links are difficult to establish, due to the allocation of responsibility for inspections-related work to Health, Safety and Environment units (HSE) within companies. The number of staff working on environmental resources may therefore increase for other reasons, for example, when companies apply for voluntary certifications (such as ISO). Moreover, some companies mentioned mergers and national legislation as reasons for increased costs. Notwithstanding the above, our research shows that most companies have not experienced a substantial increase in the number of inspection over the last six years. 35 percent of the respondents experienced some increase, while 57 percent described the situation as stable. Most (64%) did not think that things would change in the near future. Companies tended not to see inspections as a significant cost or burden to their operations, but rather the internal monitoring, reporting and the related correspondence with inspection authorities. When asked about changes in the number of inspections over the last six years, only 14 percent reported an increase, whereas 86 percent reported the number of inspections as stationary or actually decreasing.



Figure 2 Change in the number of environmental inspections received over the 6 last years

Increase

Stationary

Decrease

Source: calculations by Ecorys

The cost implications of inspections for companies vary depending on company size and location. Large companies generally do not consider cost incurred as a result of inspections as a major problem, while small and medium sized companies (SMEs) are more sensitive. This was also noted in implementation of the Seveso II Directive, the requirements of which were thought to be unfavourable to SMEs.45 Generally, the smaller the companies, the harder it is to comply with environmental legislation.46 This is cause for concern since SMEs account for about 64% of industrial pollution in Europe. Key challenges for SMEs often include insufficient competency and resources to comply and report on environmental regulations. In Sweden self-audits in SMEs cost an estimated 2.15 billion SEK (about €250 million), representing 60% of the total environmental compliance budgets47 This means that less money is spent on improving environmental quality and more on administrative procedures.48 Other issues raised during interviews with companies include the lack of knowledge and public information about inspections, reports and inspection criteria; also the quality of inspections which –according to the view of a number of respondents -depends too much on the individual local inspector.

2.4.2 Current inspection regimes

Inspections regimes in the EU differ vastly in regard to their frequency, timing, approach, cover, resource levels, political clout and quality. This is the result of different political

45 EU-VRi (2008) F-Seveso: Study of the effectiveness of the Seveso II Directive. Final report. 46 Planet and DIT (2010) SMEs and the environment in the European Union. Report prepared in 2010 for the European

Commission, DG Enterprise and Industry under the competitiveness and innovation programme 2007-2013. 47http://www.ivl.se/nyheter/startsidenyheter/minskadkostnadforegenkontrollochokadmiljonytta.5.15c2317a1266994794c8000390

8.html 48 Axelson, U (2008) Miljömålstyrd tillsyn: Miljökvalitetsmal, miljölagstitning, och företagens frivilliga miljoarbete i samverkan.

Svenska Miljöinstitutet. IVL Rapport B1765-C.



contexts and traditions in MS. For example, new MS are still going through the process of implementing the environmental acquis, whereas older MS may have decades of experience with environmental policy and legislation. Examples of such differences are provided below: • The institutional design of inspections systems differ. Some countries have the

implementing authority on national level (such as Hungary and Portugal), while others have decentralised (such as Sweden and Finland) systems, where municipalities and regions bear the primary responsibility for conducting inspections.

• Second, the number and frequency of inspections conducted varies substantially from

one country to the next. In France, site inspections have increased substantially between 2001 and 2006, along with the employment in inspectorates49. In the UK and the Netherlands the number of inspections is decreasing, a trend that has stabilised in Finland. In countries like France, programmatic compliance assurance targets are usually defined in terms of an increased number of site inspections. Yet statistics show that an increased number of inspections do not necessarily lead to better detection of offences. For instance, in England and Wales the number of multimedia inspections dropped by 39% and medium-specific inspections by 20% between 2002 and 2006. At the same time the detection of violations actually grew by 16%. In the UK the answer undoubtedly lies with the better targeting of inspections and the diversification of compliance monitoring tools.

• Third, there are two broadly different approaches to scheduling site inspections. In

some countries within the EU50 site inspections are predominantly unannounced. However, there may be specific reasons for pre-arranging an inspection to discuss specific operations or to check progress in correcting previously identified problems. Inspections in France, Finland and the Netherlands are usually announced to the operator in advance to ensure the presence of relevant enterprise staff. Unannounced inspections in these countries are triggered by accidents, complaints (reactive inspections), or the need to take pollution samples.

According to the 2007 Review, these differences are among the key factors impeding comparison between MS inspection system. The six case studies in the annex of this report provide a description of national inspections regimes.

2.4.3 Culture and other drivers of regional variation

The influence of culture and organisation as a possible driver behind uneven implementation of environmental legislation across the EU has been a topic of much debate and featured in various stakeholder interviews. These considered unequal implementation of the law and environmental inspections as factors that distorted competition between countries.

49 A similar trend is evident in the US and China.

50 A trend that can also be observed in the US, Japan, Russia, and China.



Already in 1999, an EC Committee of Independent Experts report recognised that the multinational and multilingual culture of the EC was something that could “lead to differences in the interpretation of procedures, practices, rules and laws within the Commission” 51. Such differences, it was argued, also made it “difficult simply to ‘transplant’ national management practices and regulatory frameworks, however successful they may be ‘at home’”. Many authors have referred to the clientilistic and patronistic norms of southern European administrative culture versus the “northern” Weberian view of the state as a provider of welfare and promoter of development52, some further distinguishing between an “Anglo group” and a North and Middle European group53. More recent tri-sections of the cultural landscape also included Eastern European states. The notion of regional cultural differences as driving unequal implementation of legislation and environmental inspections is therefore worth considering further54. The “north-south” transmission and enforcement of “proven verities”, i.e. the models of regulation and regulatory culture developed by the northern Europeans are among the solutions that flow from this analytical backdrop55. Some stakeholders56 argued that the differences in the permitting system should be eliminated and that European countries should be “forced” by regulation to adopt the same legislation and inspection methods to

level the playing field and prevent unfair competition as only then could the inspection

system be more equal. There is general consensus in the literature that such variation exists. However, there is also scepticism about the real value of such dichotomies, some arguing that the existence and characteristics of institutions and rules are more important than social norms as driving forces57. Yet others prefer to focus on the other factors, such as the three successive waves of democratization in Europe over the last 50 years. They emphasize also the importance of the pre-democratic context, the dynamics of transition and ‘elite bargains’ and ‘elite pacting’ as factors that can be related to both similarities and differences between different clusters of states58.

51 Committee of Independent Experts. http://www.europarl.europa.eu/experts/9_en.htm 52 Goldsmith, M. 1990. Local autonomy: theory and practice. In King, D and Pierre, J. ,eds. 1990. Challenges to Local

Government. London: Sage; Goldsmith, M. 1992. Local Government. Urban Studies. 29, 393-410; Eugenie Samier 2005.

Toward a Weberian Public Administration: The Infinite Web of History, Values, and Authority in Administrative Mentalities. Halduskultuur Administrative Culture), issue: 06 / 2005, pages: 6094, (www.ceeol.com).

53 Hesse, J.J. and Sharpe, L.J. 1991. Local government in International Perspective: Some Comparative Observations. In

Hesse, J.J. ,ed.1991. Local Government and Urban Affairs in International Perspective. Baden-Baden: Normos: Verlagsgesellschaft.

54 Veronique Pujas & Martin Rhodes 1999. A Clash of Cultures? Corruption and the Ethics of Administration in Western

Europe (pa.oxfordjournals.org/content/52/4/688.full.pdf) 55 Whitehead 2009. 56 For example representatives from Estonia and Romania preferred a compulsory legislative act. The key reason given was

that it would generate the legislatory “clout” of a Directive. It must be noted that some of these respondents emphasised that they expressed their personal opinion and not the official line of the countyr in question.

57 Pujas & Rhodes 1999. See also Stoker, G. 2006. The Comparative Study of Local Governance: the need to go global.

University of Manchester, Hallsworth Conference. 17-18 March. (www.japancentre.manchester.ac.uk/documents/comp_study_local_gov.pdf)

58 Whitehead, L. 2009. Europe’s Democratization: Three “Clusters” Compared. Taiwan Journal of Democracy, Volume 5, No.

2: 1-19 (www.tfd.org.tw).



An interesting angle on this issue is offered by authors such as Borzel, who conclude that low levels of domestic mobilisation, where the environmental organisations are weak will more likely contribute to low levels of implementation in MS59. There is little consensus, therefore, about the criteria that could be used to meaningfully categorise European countries and the criteria used seem to depend largely on the specific purpose of the analytical exercise. What is clear, though, is that the cultural dichotomies between “north” and “south” or “west” and “east” or even “clusters” are too simplistic and have fairly limited analytical value in explaining national administrative and regulatory behaviour. One is in reality dealing with a complex mosaic of national and transnational practices that are driven variably by a range of internal and external factors. Culture in isolation fails to account for and capture the complexity on a national level and differences within various “clusters” of states60. Policy responses therefore need to take into consideration a wider range of factors, such as the social, economic, political, institutional, legal and regulatory. More rigorous analysis will lead to a more nuanced understanding of national and regional variations and likely lead to consideration of different policy options. For instance, policy options that aim at rapid enforcement of a common regulations across these divisions (the “transmission of proven verities” 61) , will probably be difficult to implement. The alternative, policies that are more permissive of “adaptive variation” of regulations and implementation, may be met with more success. Useful in this regard is the notion of three distinct levels or steps towards democratization and the rule of law, namely: rule adoption, implementation and internalization. The various members of the EU are at different stages of this process and the “anchoring” of the relevant policy can realistically only be achieved over time and with persistent external support.62.

2.4.4 Contributions of RMCEI to improved inspections

The RMCEI has generally been well received as a way to improve inspections in Europe.63 Three aspects are mentioned: (1) The impetus given to knowledge exchange and sharing of best practices, (2) the value of RMCEI as a tool for structuring and planning inspections, and (3) the non-binding character, which grant MS the flexibility to implement the legislations according to local context and external circumstances. The RMCEI stimulates cooperation, communication and exchange of information and best practice between MS, mainly via the IMPEL network. 64 IMPEL organises workshops, produce guidance documents and created a reference book on environmental

59 Borzel 2000. 60 Stoker 2006. 61 Whitehead 2009. 62 Magen, A., & Morlino, L. (Eds.) 2008. International Actors, Democratization and the Rule of Law: Anchoring Democracy?

New York: Routledge. 63 See e.g.: IMPEL (2007) IMPEL input for the further development of the Recommendation on minimum criteria for

environmental inspections (RMCEI). Draft final report October 2007. 64 Communication from the Commission of 14 November 2007 on the review of Recommendation 2001/331/EC providing for

minimum criteria for environmental inspections in the Member States (COM(2007) 707 final).



inspections. This has stimulated discussions, exchange of know-how and past experiences among IMPEL members. Finally, IMPEL has been heavily involved in trying to find a consensus on environmental inspection practices and performance indicators. RMCEI has improved inspection systems within MS. The most commonly mentioned advantage is its value as a tool for structuring and planning environmental inspections. It provides MS with a reference tool and benchmark for the organisation of inspection activities.

Answers to the question: ‘Has the RMCEI improved the implementation of environmental law in

Europe?’

• Yes, it has. Especially, I believe, in the new MS where it has introduced some standards not so

widely used before (regarding for instance planning and reporting). ( EPA Estonia)

• In Finland, the minimum criteria have helped us mainly in the aspect of organising inspections. I

can say that it is a useful tool in structuring and planning. (EPA Finland)

• In my opinion, the greatest value of the RMCEI is its standardised nature for reporting,

communication and level of inspections. This approach eases the dialogue with other European

countries and thereby provides the basis for communication. (EPA France)

• Yes, in some countries RMCEI is said to have improved the environmental standards a lot. Also in

Portugal I can say that it was very successful in implementing regular and efficient inspections.

(EPA Portugal)

• The existing RMCEIs are already quite good but Czech republic believes that a Directive would be

even better. The RMCEI has helped us to be comparable to other countries. (EPA Czech

Republic)

• Yes. On a national level the RMCEI have helped a lot in planning and especially in introducing

procedures for day by day activities. Besides the RMCEI were very useful in developing other kind

of mechanisms using the same reason-based approach. (EPA Romania)

Source: Ecorys interviews

Finally, the non-binding character of RMCEI has allowed MS more freedom in reacting to changing circumstances such as the economic crisis. For example, in Latvia the EPA is currently working at 50% of its capacity due to budget cuts.65

65 Interview with M.Avotins, State Environmental Service Latvia.



Flexibility and RMCEI as a “soft law” instrument

RMCEI can be described as a soft law instrument. While soft law instruments are usually considered as

non-binding agreements, they nevertheless hold the potential for evolving into hard - binding - law in the

future. Soft law instruments such as RMCEI can be intended to have a direct influence on the practices

of MS and may lead to the creation of customary law. It is a useful option in the field of international

environmental law where states have been reluctant to commit to many environmental initiatives when

trying to balance environmental against economic and social goals. Thus a soft law instrument is often

reached as a compromise between states who wish to have a binding law instruments and others which

would preferably have no instrument at all, but will accept it in a soft law form. The uneven

implementation of RMCEI across the EU can be viewed as a consequence of the soft law status.

Source; Ecorys interview with M.Avotins, State Environmental Service Latvia

2.4.5 Implementation challenges

The key challenge for inspections regimes from an EU perspective is to equalise levels of inspection and compliance in all countries, while considering local contexts and tradition in the legislation. Inspection regimes in the EU have a plethora of systems, levels and approaches. The 2007 Review provides an overview of RMCEI implementation. The main findings are: 66 • All MS submitted implementation reports. Most reports were based on IMPEL

guidelines, except those of Germany, Greece, Luxembourg and Spain. However, there were information gaps in almost all reports.

• All MS describe how their inspection systems are organized67. MS note that linking

individual directives to compliance is not possible. Not all types of inspection activities listed in the RMCEI are reported by all MS. Cyprus, France, Latvia, Italy, Bulgaria, Lithuania, Belgium (Wallonia) and Finland, for instance, do not report on some types of inspection activities. Furthermore, RMCEI stimulates cooperation between MS. This cooperation is most visible in the activities of the IMPEL network.

• The information provided by the MS was insufficient to evaluate the degree to which

inspection plans meet RMCEI criteria. Inspection plans are not always available to the public. Also, the information received by MS often did not contain enough detail to assess the compliance of site visits to RMCEI criteria. However, all countries carry out routine and non-routine site visits.

• In most countries inspections results are systematically documented and

communicated to the operators, Estonia and Malta being the exceptions. Reports on site visits should also be available publicly. Only Germany, Ireland, The Netherlands

66 Communication from the Commission to the Council, the European Parliament, the European Economic and Social

Committee and the Committee of the Regions on the review of Recommendation 2001/331/EC providing for minimum criteria for environmental inspections in the Member States, COM(2007) 707 final.

67 An overview can be found on http://ec.europa.eu/environment/impel/pdf/06shortoverview.pdf.



and the United Kingdom comply fully or to a high degree with all the criteria for inspection reports regarding the information provided.

• Very few details were provided on the investigation of serious accidents and

incidents. The review concludes that only some MS have implemented all requirements of the RMCE, although implementation has begun in all of them. It categorises countries into three levels of implementation as indicated in the table below68.

Table 2.5 Levels of implementation of Environmental legislation

High Partial Limited Unclear*

Belgium

Germany

Ireland

Netherlands

Sweden

UK

Austria

Luxembourg

Portugal

Czech Republic

Estonia

Hungary

Latvia

Poland

Slovakia

Bulgaria

Romania

Cyprus

Malta

Denmark

Finland

France

Greece

Italy

Spain

Source: EC (2007) Report on the implementation of Recommendation 2001/331/EC providing for minimum criteria for

environmental inspections. Annex to the Communication from the Commission to the Council, European Parliament,

Committee of the Regions and Economic and Social Committee on the review of Recommendation 2001/331/EC providing for

minimum criteria for environmental inspections.SEC(2007) 1493

* Unclear indicates that the information gathered in the 2007 review was inconclusive to establish the level of implementation

among these countries. It was not possible to establish whether the countries are in non-compliance or if it only concerns gaps

in information. On the other hand, in our research, Finland, Denmark and France, have came out as very effective in their

implementation of the RMCEI.

Further details from this study are as follows: • About 2/3 of MS carry out all types of inspection activities listed in the RMCEI

(building on replies from 18 MS). • The inspection plans of four out of 25 MS comply almost fully with the RMCEI.

Nine countries have annual inspection plans that partly fulfil the criteria and five have only fragmented plans in some sectors and provinces. It was not possible to assess compliance to RMCEI criteria for these five countries and an additional six. These observations indicate partial and uneven implementation.

• Information about the extent to which MS comply with RMCEI requirements is scarce. A total of six MS comply largely or fully. As many as nine MS provided no information on this matter. Only six MS confirmed that inspection visits considered the full impact of installations on the environment.

68 The six case studies carried out for this study (i.e. Belgium, Bulgaria, Denmark, Poland, Spain and the UK - see Annex 3)

confirm these results and demonstrate substantial variation in the way that inspections are organized and executed.



• Five out of 13 MS do not make the inspection plans available to the public. • Also relevant are differences in the interpretation of the RMCEI, for example:

"Concerning the number of controlled installations inspected comparability of the

data is made difficult as the types of installations considered vary greatly between

MS". The Annex to the 2007 Review further mentions that the "concept of inspections

is interpreted in different ways" in MS. • Four MS mentioned limited resources as an important factor affecting the planning of

inspections. This may apply to other MS, though none of these mentioned this explicitly (see commentary below).

This leads the Communication to point to differences in the political priority given to inspections.

Commentary


Hungary draws the conclusion that to improve the efficiency of the control more staff should be employed….

Portugal…."The efficiency of inspection activities could be improved with more inspection staff and material

resources"

Greece also concluded that the inspection authorities are not adequately staffed and equipped to aim and

respond to controls for the observance of environmental legislation and permit conditions


It is not clear whether the above reflects the situation in all MS. However, it does indicate that efficiency gains can be achieved through more extensive use of these options. This is true especially when more structured and targeted evaluations of the inspections feed into strategically framed inspection plans. The research conducted for this report pointed at key differences between the countries. Countries with a high level of implementation give much attention to systems design and minimising environmental damage, while reducing the administrative burden on the private sector. This is achieved through intensive dialogue between the stakeholders. The Finnish EPA, for example, noted that stakeholder dialogue often allowed installation managers to “pre-empt” environmental legislation, reduce uncertainties regarding future legislative changes, and to adjust costs and investments accordingly. The Swedish inspection system, for instance, was already compliant with RMCEI criteria when the recommendation was adopted69. Larger companies in these regions often undertook voluntary measures, such as ISO 14001 certification, improving their environmental performance and making it easier to comply with relevant legislation.

69 In the Flemish region of Belgium, however, inspection activities have been influenced by the adoption of RMCEI. This is

demonstrated by the new categories of inspections and inspection plans that have been introduced.



In southern MS70 environmental inspections focus mainly on preventing the most damaging environmental incidents. Only minor improvements of inspection system are evident and where changes occurred they are rarely based on the RMCEI. Finally, new, mainly eastern MS had build up their inspection systems over the last decade to comply with the acquis.71 For example, countries such as Bulgaria and Poland re-organized their system in recent years to close the gap with the other MS. EU legislation and recommendations such as RMCEI are considered to have a major effect on these changes. The reasons for these differences in the allocation of sufficient resources to inspections and the establishment of a legislative framework for inspections may also relate to prioritisation and cultural differences. Such “drivers” of partial implementation are discussed further in this report. 2.5 Important trends

Improved efficiency could explain the general trend toward increased demands on companies to report and improved inspections regimes. Digitalisation, self-auditing, and risk-based approaches are also mentioned as possible causes for improved inspections.

Digitalisation

Digital reporting and the entering of inspection and installation data directly into a common data-base is an important trend with several best-practice cases. In Finland a written record of the inspection is entered into VAHTI, the electronic compliance monitoring system. It includes records of non-compliance and agreed corrective actions. VAHTI is linked with a database of all regulated entities and a document management system containing all documents used by the environmental authorities. It is an effective environmental administration tool. Since 2005 the joint website of the state environmental authorities contained information about the number of inspections for each Regional Environmental Centre in a given year, reasons for each inspection and key results. Inspection reports are not available online, but the public can request access, though confidential data may be excluded. Such systems make inspection authorities more transparent and accountable to the public. They also help to improve the quality of compliance monitoring. Sweden also introduced a digital system to improve quality and reduce costs. The initial investment costs were significant, but reduced personnel cost and time spent on inspections compensated for this in the long run. According to the Swedish Environment Agency the digital inspection system yields better quality and more detailed information. Nevertheless, such a system is not immune to fraud and the traditions, culture and compliance issues of the country in which it is implemented is important.

70 Case study on Spain (see annex) 71 Case Study on “Providing for Minimum Criteria for Environmental Inspections in Hungarian Environmental Inspectorates” by

the Hungarian Ministry of Environment and Water (MoEW) in 2004



Self-auditing and self-policing

MS increasingly rely on self-policing by firms, who audit themselves and report their own environmental violations, often benefiting from a range of regulatory rewards. This could include “immunity” from penalties and “privileges” related to information contained in self-audits.72 According to critics self-policing allows firms to hide environmental crimes, in the case of privileges, and decreases incentives to prevent pollution incidents, in the case of immunity. These policies therefore lead to more pollution and more government monitoring is needed to reduce pollution. Proponents of self-auditing programmes argue that it is costly, but leads to the identification, correction and even prevention of pollution that would otherwise remain undiscovered. Fifty percent of branch organisations participating in this study thought that the RMCEI would promote self-auditing, with the remainder disagreeing or neutral. Those that were positive about self auditing further believed that it would reduce the need for external inspections, thereby reducing compliance costs and improving the ease of compliance; also that it would lead to improved coordination and multiple sources of information. However, they also believed that operators would be exposed to an increased administrative burden. Those who were negative about self auditing felt that the costs would outstrip the benefits. A main policy objective of the Dutch government is to reduce the administrative burden for companies. Instead of monitoring and visiting individual facilities of a single company, Dutch environmental inspectorates now give companies the option to receive permits for their individual facilities in one package. Through this procedure, the authorities prevent unequal treatment of the different facilities in different areas and reduce the administrative load considerably. Companies now go to a single institution for all their permits. Also, the lead inspection authority represents all other relevant inspectorates at an inspection. Environment Agencies in the UK increasingly encourage operators that have a robust management system in place to self-monitor and self-report. Work is under way to create a single, more user-friendly and modern permitting and compliance system. The system simplifies permit applications for industry and regulator and aims to improve regulatory activity, cut administrative costs and focus on better service delivery.

Targeting and risk-based approaches

Risk-based regulation means that the environmental agency will focus on business activities that pose a higher risk to human health or the environment. Risk assessment makes use of a number of factors and varies depending on the activity. Risk-based targeting of environmental inspections is rapidly gaining ground, though random

72 See e.g.: Pfaff, A. and C. Sanchirico (2000). “Environmental Self-Auditing: Setting the Proper Incentives for Discovery and

Correction of Environmental Harm.” Journal of Law, Economics & Organization 16: 189-208; Kaplow L. and S. Shavell (1994). Optimal Law Enforcement with Self-Reporting of Behaviour.” The Journal of Political Economy 102, 583-606;

Stafford, S. (2002). The effect of punishment on firm compliance with hazardous waste regulations. Journal of Environmental Economics and Management 44: 290-308; and, Guerrero, S. and R. Innes (2008). Statutory rewards to environmental self-auditing: Do they reduce pollution and save regulatory costs? Evidence from a cross-state panel.

Presented at the American Agricultural Economics Association Annual Meeting, Orlando, Florida.



inspections are still conducted in all countries. The principal reasons for this are as follows: • The growing number and variety of statutory environmental requirements enhances

the field of compliance monitoring and makes prioritisation necessary. • The diminishing resources of environmental authorities make it necessary to “do

more with less” by increasing the efficiency of compliance assurance. As the regulatory framework becomes more complex, pressure to reduce the administrative burden on the regulated community also grows, part of which is imposed by compliance monitoring requirements. Finland for example has moved to a more risk-based approach over the last decade, resulting in non-compliance increasing from 26% (2009) to 31% (2010).73 The increase does not indicate that more installations are breaching the law, but reflects more efficient targeting of inspections and improved inspection quality. 2.6 Views of main stakeholders

The preceding sections were based on the observations, views and analysis of various stakeholders, including those approached for the purpose of this study. An overview of the positions of these stakeholders regarding the RMCEI follows below.

The Commission

In its Communication of 200774 the Commission concluded that, although the RMCEI has not been fully implemented in all MS, though it has led to improvements of the inspection systems in some MS. The Commission proposed the following way forward: • Modify the RMCEI to make it stronger and clearer with a better reporting mechanism

and to generate simpler and more comparable data; • Where necessary, complement the RMCEI with legally binding inspection

requirements in individual directives; and • Continue supporting the exchange of information and best practice between

inspectorates through IMPEL. The Commission therefore prefers a combined approach of RMCEI revision, including the introduction of binding inspection criteria into sectoral legislation where a strong need for this has been identified.

73 Interview with Finnish EPA. 74 Communication from the Commission of 14 November 2007 on the review of Recommendation 2001/331/EC providing for

minimum criteria for environmental inspections in the Member States (COM(2007) 707 final).



The Council of the European Union (the Council)

The Council has been in favour of a non-binding recommendation and/or clarification of inspections tasks. It has furthermore been reluctant about binding criteria and emphasised the importance of flexibility for MS to adapt inspections regimes to national contexts.75 In a recent environmental council meeting attention was drawn to the importance of harmonizing and clarifying rules to improve environmental inspections. The Council also invited the Commission to further work on support coordination projects, noting the importance of IMPEL.76 The European Economic and Social Committee (EESC)

The Economic and Social Committee endorsed the Commission's approach in an Opinion (NAT/383) of 22 April 2008.77 In the Opinion the EESC expressed its preference for the RMCEI to remain a recommendation and to amend it to strengthen effectiveness and improve implementation. Harmonised data collection, clearer definitions, and further standardisation of access to information should be addressed to create more even implementation in MS. The EESC clearly states its preference for the inclusion of inspection requirements in sectoral legislation.

IMPEL

IMPEL recommends that “EU law makers should ensure that sufficient flexibility is retained in new or revised legislation, including the revision of the EU RMCEI, to take account of the variety of approaches to inspection being developed by regulators”.78 However, the network has no formal position about the type of regulatory changes that would be needed to accomplish this flexibility.

The European Parliament

Already in 1999 the European Parliament (EP) indicated its preference for the transformation of the RMCEI into a directive. The Explanatory Statement issued at the time79 reads: “The advantage of transforming the RMCEI into a directive is therefore two-fold: first it creates the momentum for changes to take place under the eventual sanction of financial penalties. Secondly, by taking the text of the proposed recommendation as its base, it avoids creating a directive which is too heavily prescriptive in detail. This means that the directive on inspection would preserve the original characteristics of a directive, and not be so highly prescriptive -as some directives have become - that it would more properly be a regulation.” This position has remained essentially unchanged over the last ten years. In 2008 the Parliament asked the Commission “why it does not propose to take up the reference in the

Recommendation to the possibility of it submitting a proposal for a directive on

environmental inspections”.80 The EP rejected the Commission’s proposal for binding

75 Personal communication with the European Commission. 76 EC (2010) Improving environmental policy instruments - Council conclusions -, 3061st ENVIRONMENT Council meeting

Brussels, 20 December 2010. 77 EESC (2008) Opinion on COM(2007) 707). NAT/383 Minimum criteria for inspections. Brussels, 9 April 2008. . 78 IMPEL (2009) 79 Accessed at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A4-1999-

0251+0+DOC+XML+V0//EN&language=EN 80 Accessed at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+OQ+O-2008-

0085+0+DOC+XML+V0//EN&language=EN



sectoral requirements only in a non-legislative resolution81, and called for a Directive on environmental inspections to be prepared by the Commission before the end of 2009. Putting the discussion in a larger framework, the EP added that “enforcement of

Community environmental law is essential and that anything less falls short of public

expectations and undermines the reputation of the Community as an effective guardian of

the environment”. Member States

It was not possible to determine the position of MS on the RMCEI. However, the literature and interviews with several stakeholders indicate that more compliant countries with better implementation of environmental legislation, see more merit in EU-wide binding legislation. Countries that ‘lag behind’ in this regard generally prefer less binding legislation at the EU level.

NGOs

Several umbrella organisations represent EU civil society organizations in Brussels. This study focused on the European Environmental Bureau (EEB) as it is active in environmental inspections and the process of European acquis. The EEB positions have been corroborated by individual (environmental) NGOs throughout the EU. The EEB is concerned about the irregular application of European environmental law in the MS and recognises that MS autonomy and discretion in the enforcement of European environmental law, stands in the way of consistent implementation of the legislation. Accordingly it supports initiatives to improve compliance with and enforcement and considers environmental inspections as an appropriate mechanism with which to improve the situation. Yet, it considers the RMCEI to have failed, largely due to its nonbinding character. They therefore support the introduction of specific and legally-binding inspection requirements within sectoral legislation, such as the Seveso II Directive, RoHS, Waste Shipments Regulation, etc. The new Framework should set minimal and general requirements in the field of inspections in addition to any specific requirements set out in sectoral legislation. The EEB further believes that minimum requirements could be introduced more quickly through a directive, than what could be achieved with the revision of sectoral Directives. The EEB would like the RMCEI to be used as the foundation for a binding instrument of a general character on environmental inspections. Its scope should be broader, covering all environmental directives and regulations in force.

Businesses

The business community is well represented in Brussels and regularly consulted on proposed changes in European law; yet, they do not have a formal position regarding possible changes in RMCEI. The views expressed in interviews diverge substantially 81 Accessed at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=‐//EP//TEXT+MOTION+B6‐ 2008‐0580+0+DOC+XML+V0//EN&language=EN



across the EU and the only common ground seems to be the minimisation of administrative burden.



3 Problems and drivers

This chapter provides a short formulation of the problems that a revised RMCEI should address. This is followed by a discussion of the main drivers behind these challenges. The problems and drivers can be summarised as:

Problems

• Partial and uneven implementation of EU environmental legislation and the RMCEI leads to:

o Increased likelihood of non-compliance

o Distortion of the Internal Market

Drivers

• Terms definitions and scope of the RMCEI are unclear

• Cases of lack of sufficient priority and resource constraints in MS

• Differences in cultures and institutional arrangements

They are explained in more detail below. 3.1 The problems

In the 2008 European Parliament resolution on the 2007 Review, the Parliament noted that the uneven and partial application of the RMCEI is not conducive to fair competition in the single market. The Parliament urged the Commission to produce a proposal for a Directive on environmental inspections by 2009. Finally, the Council recently underlined the importance of clearer rules and definitions, and harmonisation of inspections across MS.82 This created a need to assess the options for the review of the RMCEI, including a Directive on environmental inspections. Partial and uneven implementation of the RMCEI impedes: • Compliance with EU environmental legislation: Compliance depends on three

mutually supportive sets of instruments: namely promotion, monitoring and enforcement. Inspections play a crucial role here as they control compliance and detect non-compliance. The link between inspections and increased compliance is

82 EC (2010) Improving environmental policy instruments - Council conclusions -, 3061st ENVIRONMENT Council meeting

Brussels, 20 December 2010.



well established in research.83 However, some analysts argue84 that the scope of these case-studies are necessarily limited, making it hard to derive hard policy recommendations from the literature. Nevertheless, frequency, quality, and effectiveness of inspections all influence environmental compliance levels. It is further clear that uneven and partial implementation of RMCEI and large differences between inspections regimes in EU MS, impede enforcement of environmental law.

• The Internal Market and the need for a level playing field is another concern.85 Companies in any given market within the EU must follow the same rules, leading to fair competition. A well functioning internal market does not depend only on timely transposition of directives, but also on correct transposition and proper and even implementation.

The Internal Market Scoreboard (2010, No. 21) of the EU reveals the fragmentation of particularly the transport and environment sectors. These observations and quotations are put forward here although the RMCEI is not legally binding as the implications of the fragmented and uneven implementation remain the same. The scoreboard report states that: “Whenever one or more Member States fail to transpose directives on time, they leave a void in the EU legal framework. Hence, instead of an Internal Market covering all Member States, it remains much smaller and fragmented. Consequently, the economic interests of all Member States suffer if already one Member State does not deliver”.86 And from the same source again: “The failure to transpose a directive that has been transposed in all the other Member States holds the Internal Market hostage to one Member State’s inability to transpose directives. This penalises all Member States, their citizens and businesses. Among the sectors most fragmented are the areas of [transport and] environment. In these sectors, the Internal Market is not yet a reality. More efforts are needed to reduce this fragmentation further”. The areas of environment and employment are also affected by non-conformity.87 The evidence for the link between inspections and market distortions is largely anecdotal. For example, both the Danish and the Finnish EPA recognized that distorted competition is an issue, but stopped short of quantifying it. Statements by companies support the claim, e.g: “There are a lot of different inspections that

increase the administrative burden. However, this is not so much a problem as long

as direct foreign competitors are facing the same administrative load. In our

83 Rousseau, S. (2010a). Empirical analysis of sanctions for environmental violations. International Review of Environmental

and Resource Economics 84 Cohen, M.A. (1999). Monitoring and enforcement of environmental policy. In: Tietenberg, T. and Folmer, H. (eds.),

International yearbook of environmental and resource economics 1999-2000, volume III. Edward Elgar Publishers. And Cohen, M.A. (2000). Empirical Research on the deterrence effect of environmental monitoring and enforcement. The

Environmental Law Reporter 30: 10245-10252 85 The importance of ensuring a level playing field is mentioned in several key policy documents and conclusions, e.g: EC

(2010) Improving environmental policy instruments - Council conclusions. 3061st ENVIRONMENT Council meeting

Brussels, 20 December 2010; EP (2008) Resolution on the review of Recommendation 2001/331/EC providing for minimum

criteria for environmental inspections in the Member States. B6‑0580/2008; EC (2007) Commission staff Working

Document Accompanying document to the Proposal for a Directive on industrial emissions (integrated pollution prevention and control) (recast): Impact assessment: SEC(2007) 1679

86 EC (2010) Internal Market Scoreboard 2010, No: 21 http://ec.europa.eu/internal_market/score/index_en.htm . 87 ibid



perception, this is not the case. There should be a regulation that forces all the

European countries to adopt the same legislation and inspection methods to level the

playing field and prevent unfair competition.”88 A representative from a German branch organisation argued that more even inspections regimes “would reduce competition in favour of German companies.

Some other European countries may have to strengthen their inspection system, while

Germany already meets the requirements”. This refers indirectly to the impact of different inspections regimes on competition. This perspective is echoed in a survey made for the IA for a possible recast of the Seveso II Directive with statements such as: “it is not the Seveso Directive that create the market distortions but the

implementation in Member States. The same rules in Europe will certainly contribute

to have a single market.”89 However, the picture is not clear-cut. The evidence is based mainly on statements and opinions, and there are gaps in our knowledge. A representative from a Danish business association argued that the problem was more internal then international. The decentralised structure of Danish inspectorates has led to uneven domestic inspections practice, which impact negatively on competition on the national market, he argued. A Belgian industry association argued that permitting regimes, rather than inspections, was the problem.

3.2 The drivers

Partial implementation of the RMCEI is associated with a number of drivers such as varying interpretations of the text, incoherent data collection, institutional set-up and the administrative capacity of inspectorates. These problems affect environmental compliance and, possibly, competition in the internal market and are elaborated upon below.

3.2.1 Interpreting definitions, scope and reporting requirements

Definitions

The 2007 Review concludes that the definition of inspections is “very broad and should cover any activity that aims to promote compliance with environmental requirements by installations”.90 This leads to misunderstandings and misinterpretations about the planning, inspection and reporting procedures. Some MS apply a narrower interpretation covering, for instance, only direct controls at installations. Others have a broader approach. Differences in interpretation affect implementation of the RMCEI, especially the inspection planning. This makes it difficult to compare the information provided by

88 Interview with a Belgian chemical branch organisation. 89 Bolving, C. C. Dupuis, and O. Salvi (2008) F-Seveso: Study on the effectiveness of the Seveso II Directive. Annex B:

analysis interviews. EU-VRI. Vers 18/08/2008. 90 COM(2007)707 final.



MS, especially information relating to the proportion of controlled installations that have been inspected. Ambiguity in the wording of the RMCEI also emerges as an issue in the literature and feedback from IMPEL and the stakeholder consultations. The majority of inspectorates (>60%) responded that the definitions used in the RMCEI should place more emphasis on planning, programming and reporting activities. There is also considerable confusion as to what RMCEI considers as the responsible

agency. The RMCEI refers to any public authority established or designated by the MS that is responsible for matters covered by the RMCEI, and any legal person to whom these tasks have been delegated by these authorities. However, many MS have several different authorities that are directly or indirectly involved in inspection activities. This makes it difficult to determine which authorities should be regarded as inspection authorities. This lack of clarity also has implications for the implementation of the RMCEI, especially the planning of inspections. The terms inspection plan and inspection programme are not defined in the RMCEI. The 2007 Review found that ‘a number of MS seem to have different interpretations of what the term 'inspection plan' means’. It also found that “there was some confusion with the term 'inspection programme' which indicates the installations that are to be inspected in a certain period and which according to the Recommendation should be a part of the inspection plan”. It concluded that “the distinction between plans and programmes could be useful in order to separate the policy aspect (plan) from the operational aspect (programme)”. Scope

Second, the scope of the RMCEI is not defined clearly enough. This leads to a range of interpretations among MS as to whether, for instance, the Seveso II Directive is already included in the RMCEI or not.91 Issues of scope is clearly spelled out in the 2007 Review where different interpretations as to what to include had a significant impact on the percentage of installations inspected, and non-compliance cases, in addition to placing an administrative burden on inspectorates. Reporting requirements

Existing RMCEI reporting formats require a wide range of information. This has been described as unclear, impractical and too extensive. Time and cost-intensive methods are needed to gather, structure, combine and compile the required data. Countries with strong federal control over inspections, such as Germany and Spain, struggle to produce national reports with comparable and consistent measures and results. Accordingly, the reporting specifications do not improve environment protection or compliance. Most MS further stated that the various European legal instruments had significantly different reporting requirements, regarding dates, reporting frequency, type of enforcement checks, etc. They argued that EU reporting requirements in the environmental sector as a whole should be reduced and streamlined to increase effectiveness and reduce the waste of resources.

91 See also IMPEL report by Kramers (2007) “IMPEL input for the further development of the Recommendation on minimum

criteria for environmental inspections (RMCEI)”.



3.2.2 Resource constraints

The limited governmental budgets for environmental inspection were a recurring theme in our interviews and surveys. The recruitment needed to cover the growing demand to report, is hampered by insufficient budgets. As a result more time is spent on administrative tasks and less on site visits, training and dialogue.

Commentary


Hungary draws the conclusion that to improve the efficiency of the control more staff should be employed….

Portugal…."The efficiency of inspection activities could be improved with more inspection staff and material

resources"

Greece also concluded that the inspection authorities are not adequately staffed and equipped to aim and

respond to controls for the observance of environmental legislation and permit conditions


Data on the administrative costs and resources spent on inspections is scarce, often incomparable, and based mainly on estimations. In the2007 Review the Commission noted that “[t]he information is, however, not always comparable and does not always

allow clear conclusions on the efficiency of the inspection systems in the Member

States”.92 The problem can be blamed on differences in interpretation of concepts, mentioned earlier in this report. 3.3 Justification for EU action

The legal basis for this initiative can be found in Article 4(2)e of the Treaty on the EU (TEU) and in Article 192 TFEU. Action is needed at EU level to deal with the divergent MS inspection systems, low MS levels of compliance with environmental regulations such as the RMCEI, and resultant distortions of the market. One has to draw on a common set of methodologies, instruments and tools, based on experience gained and best practices from MS. This will help to reduce implementation disparities within the EU. Compliance with EU legislation is a Community-wide issue. Based on the experiences gained with RMCEI over the last ten years, action at EU level would give added value compared to actions by each MS. Setting up a more effective framework and a more comprehensive Community approach for inspection, would support and complement the actions of the MS in a flexible manner. Lack of action would damage the interests of the MS and does not help to protect human health or improving the quality of the

92 COM(2007)707 final.



environment. A lack of enforcement does not only have a local dimension, but may have direct and indirect transnational aspects, depending on the given directive, and affect economic growth in the MS and the EU as a whole. Environment is having a direct influence on many EU citizens' daily lives, and EU citizens expect the EU to act on bad application in practice. In parallel with EU-level steps on a coordinated approach to inspections, MS will retain their flexibility in planning for and deciding on the inspections on the ground. They will continue to determine at which level (national, regional or local) action should be taken, and will continue to determine which authorities will carry out the inspections in the MS. As regards proportionality, the identified options do not go beyond what is necessary to achieve the objectives, taking into account that the existing horizontal measures on inspection and enforcement have not proven sufficiently successful and due to serious gaps in the use of the existing RMCEI recommendations, the current level of enforcement is very uneven among MS, leading to a high number of infringement cases. Sector measures are gradually being introduced in more recent EU legislation as a consequence of this need for increased effectiveness of environmental inspections. Improvement of the national inspections systems supplemented by closer coordination between the EU and the Member States are needed as further documented by this report. Improvements would bring about significant environmental benefits as well as better protection of citizens' health and quality of life and increased citizens' confidence in national inspection authorities. Weighting the pressing need for improvements and the benefits of better inspection and enforcement against the implications of introducing new measures, the options proposed do not go further beyond what is needed. It is important also to address the need for better compliance mechanisms along with targeted EU action on inspection and enforcement to reach a better implementation in the environment sector as a whole.



4 Objectives

4.1 Introduction

In accordance with the European Commission’s IA Guidelines, the subsequent step is to identify objectives for the revised RMCEI to achieve. The objectives are based on the problems defined in chapter 3. Objectives are considered crucial in determining possible actions and for assessing progress of the policy intervention. 4.2 Policy objectives

Full and even implementation of environmental regulations in the EU will likely lead to improved environmental quality and a level playing field on the internal market. This is in line with other policy initiatives which acknowledge the need for improved implementation of environmental legislation.93 Environmental compliance should also improve the well-being of EU citizens and would support strategic EU policies such as the Europe 2020 strategy and its flagship initiative on sustainable growth. The operational objectives of the RMCEI are geared toward the improvement of inspections. The rationale is that improved environmental inspections in the EU, will contribute to the general and specific objectives. The objectives include the following:

1. General objectives

• Improve environmental quality

• Promote the Internal Market

2. Specific objectives

• Contribute to full and even implementation of environmental regulations in all EU MS

3. Operational objectives

• Improve the effectiveness (quality) inspections in all EU MS;

• Improve efficiency of inspections in all EU MS; and,

• Promote co-ordination, knowledge exchange and sharing of best practices between inspecting

authorities in and between MS.

93 COM(2008) 773



4.3 Measuring progress towards the objectives

Defining indicators for these objectives is a key challenge. It is useful to clearly identify aspects such as inputs (resources), outputs (activities), intermediate outcome (measuring knowledge and behaviour of a regulated community) and final outcomes (interventions in environmental results).94 Questions arising include whether one should, for example, measure budgets, number of inspections, improvements in knowledge or the actual impact on the environment? Intermediate outcome indicators95, such as improved environmental management by installations or reduced environmental impacts, are widely regarded as practical performance management tools. Two reasons for this are96 as follows: first, most intermediate outcomes can be attributed directly to the activities of the compliance assurance program; and second, intermediate outcomes generally become visible more quickly than final outcomes, as the latter focuses on large-scale, longer-term environmental changes. In principle, input and output indicators could be used to identify trends in the monitoring practices of MS over time. However, comparisons between MS are less meaningful due to differing demographic, institutional and economic characteristics. It is all but impossible to isolate the effects of the RMCEI on the general and specific objectives. Several other instruments could play an equally important role. These include administrative and criminal environmental sanctions, licensing policies, voluntary initiatives such as the Eco-Management and Audit System (EMAS) and ISO 1400197, interaction with stakeholders. Lengthy discussions have already taken place in the IMPEL network about the EU-wide introduction of better, more meaningful and comparable indicators for the operational objectives.98 In the course of a brain storming session IMPEL concluded that: “Throughout the project, due to the many political and operational difficulties between

Member States, defining EU-wide comparable indicators proved to be of utmost

difficulty. The pilot demonstrated that the comparability is often low, the availability of

data variable and the range of answers high.”99 Qualitative indicators for inspections were deemed particularly challenging. If one tried to determine the quality and efficiency of an inspectorate over a 10 year period, for

94 Mazur, E. (2010) Outcome Performance Measures of Environmental Compliance Assurance: Current Practices,

Constraints and Ways Forward, OECD Environment Working Papers, No. 18, OECD Publishing. 95 For a detailed and recent discussion of final and intermediate outcome indicators for environmental compliance see E.

Mazur (2010). 96 Mazur, E. (2010) Outcome Performance Measures of Environmental Compliance Assurance: Current Practices,

Constraints and Ways Forward, OECD Environment Working Papers, No. 18, OECD Publishing. 97 ISO 14001 is generally more popular among operators than EMAS as it does not require for operators to regularly report on

environmental aspects as part of their operations. In contrast, regular reporting is a requirement of EMAS. 98 IMPEL (2005) Benchmarking on quality parameters for environmental inspectorates: IMPEL workshop in Copenhagen 8 - 9

September 2005; IMPEL (2011) Exploring qualitative and quantitative assessment tools to evaluate the performance of environmental inspectorates across the EU; IMPEL (2010) Developing performance indicators for environmental inspection systems. Project Report, 2009/03.

99 IMPEL (2010) Developing performance indicators for environmental inspection systems. Project Report, 2009/03.



instance, then intuitive indicators such FTEs, installations checked and injunctions would be useful. However, where a country has taken a more risk-based approach the number of installations checked is reduced, while the percentage of complaints increases. This surely translates into improved inspection quality, something which would not be reflected by an indicator such as the number of installation checked and FTE. Differences such as these may not always be due to the implementation of RMCEI. Factors such as administrative reform, changes in government coalitions and the economic crisis could also come into play. For example, in some of our interviews100, we observed a dramatic increase or decrease in FTEs in some inspectorates due to changes in organisational structure. Other observations include: • Input and output indicators can be used to show trends in the monitoring practices of

MS. However, comparisons between MS are less meaningful due to differing demographic, institutional and economic characteristics;

• The definitions of indicators vary among MS. Indeed, IMPEL reports have demonstrated substantial differences in the interpretation of indicators by inspectorates and MS.

Progress towards implementing the RMCEI is difficult to capture by means of generic indicators. We have therefore used qualitative data and proxies to assess the impact of the different options. Indicators such as FTEs and the number of inspections are useful to a degree, but only when viewed in context. Indicators and methods for assessing the policy options are discussed further in Chapter 5. 4.4 Policy coherence

This assessment and potential further EU action on inspections and enforcement at MS-level flow from the Commission's current focus on correct application of EU law. In its Communication, 'A Europe of Results - Applying Community law101', the Commission states that EU legislation does not fulfil its purpose, unless properly applied and enforced; further that the EU and its MS should continue to strive towards achieving this. Effective implementation is also part of the Better Regulation and the simplification agendas. The Mid-Term Review of the 6th EAP102 stressed the need for better implementation so as to avoid distortion of competition and ensure proper functioning of the internal market. Most recently the Commission reinforced its activities in areas closely related to the environmental sector, such as disaster prevention. The objective is to increase EU MS resilience to disasters, thereby to prevent damage and negative impacts on sustainable

100 Most notable example is the Danish case where are large municipal reform in 2007 showed remarkable changes in trends,

however, beyond RMCEI’s scope. 101 COM (2007)502 final. 102 EC (2007) Mid-term review of the Sixth Community Environment Action Programme. COM(2007) 225



growth. Increased focus on prevention obliges MS to achieve full compliance with related environmental requirements. The recent 2020 Strategy sets the directions for a revitalised, competitive, inclusive and green European economy and emphasises compliance and resource efficiency as the foundation of sustainability. Compliance and green development, in other words, go hand in hand.



5 Description of policy options

Three different options for addressing the described problems were pre-defined by the Terms of Reference (ToR) for this study103. These are: 1. Revision of the RMCEI, including the following sub-options:

a. Inclusion of all activities covered by the environmental law into the scope of the revised RMCEI

b. Further development of criteria for inspection plans and programmes c. Establishing a regular reporting system based on the ten potential indicators

identified in the IMPEL Brainstorming Project 2. Transformation of the RMCEI into a Directive

3. Introduction of inspection obligations into sectoral legislation

The impact assessment also includes: 0. No further policy option (business-as-usual) 5.1 Option 0: Business-as-Usual

A Business-as-Usual (BaU) scenario with no policy interventions is needed as a base-line for this study. The BaU scenario assesses the current situation and possible developments in the absence of any further EU legislation. 5.2 Option 1: Revision of the RMCEI

Option 1 suggests a revision of the RMCEI and is divided into three sub-options: (1A) the inclusion of all activities covered by EU environmental law into the scope of the RMCEI; (1B) the further development of criteria for inspection plans and programmes; (1C) the establishment of a regular reporting system based on the ten potential indicators identified in the IMPEL Brainstorming project104. The sub-options are further described below.

103 Hence, not derived from a problem-driver analysis, leading to a set of alternatives to deal with the situation. 104 As described in the terms of reference to this study, the IMPEL network has contributed to the input into the development of

the Recommendation. Included in this process is the IMPEL brainstorming project that aimed to develop performance

indicators related to the RMCEI.



5.2.1 Sub-option 1A: inclusion of all activities covered by EU environmental law into the scope of the revised RMCEI

Section II of the RMCEI explains the scope of the recommendation and is the source of much confusion. Sub-option 1A involves the inclusion of all activities covered by EU environmental law into the scope of a revised RMCEI. 105 MS often use the RMCEI as a management tool in other sectors. Formalising this would expand RMCEI principles, such as proportionality, transparency and consistency, to planning, organising and reporting activities in other sectors.106 The following pieces of environmental legislation will be examined in accordance with the ToR and the legislation covered in the IMPEL input for the RMCEI revision: • Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14

June 2006 on shipments of waste • Directive 2009/147/EC of the European Parliament and of the Council of 30

November 2009 on the conservation of wild birds and Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.107

• Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC.

• Council Regulation (EC) no 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (CITES Regulation)

The sub-option would help to clarify some misleading terms that have undermined inspection efficiency, increased administrative burden and hampered MS harmonisation efforts. The reasoning behind selecting these four sets of legislation is discussed further below. The study on Inspection Requirement for Waste Shipments108 (WSR) recognised RMCEI as an appropriate starting point for the development of criteria for this sector and highlighted differences between the inspection criteria for industrial installations and waste shipments. The study concluded that the characteristics of waste shipment inspections warranted a separate and binding legal instrument, but only in relation to the more general criteria. It stressed that the inclusion of the WSR in RMCEI would provide an opportunity for MS to improve the efficiency of their inspection services.

105 See also IMPEL report by Kramers (2007) “IMPEL input for the further development of the Recommendation on minimum

criteria for environmental inspections (RMCEI)”. 106 It should be noted that this sub-option does not preclude binding inspection criteria in sectoral legislation (see option 3). 107 the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is treated within the realm

of the Nature Directives. 108 IEEP, Biointelligence and Ecologic (2008)) Study on inspections requirements for waste shipments.



The RMCEI would have to be partly reviewed if it were to be applied to Waste Shipments. An IMPEL study109 suggested that a modular approach, adapted to different areas of application such as installations and waste shipments, could be considered. Natural conservation is affected by industrial activity, an aspect that could be covered by the RMCEI. However, a different approach is required to measure sustainable improvements in biodiversity and habitats. Natura 2000 sites, for instance, are protected areas with legally-binding management plans. It is difficult to apply the traditional inspection regime advocated by RMCEI in this sector as ecological results and outcomes can only be measured over longer periods of time. Stakeholders consulted for this study thought that “green issues” were dealt with sufficiently in the sessions and actions of GreEnforce (described in chapter 2). This is in line with IMPEL recommendations that GreEnforce should deal with green inspections.110 In 2006 the GreEnforce Network published a report with methodological recommendations for the inspection of Natura 2000 sites.111 These include: • Transparency in all discussions and actions • Participation / engagement of all stakeholders • Partnership working • Shared ownership by public and non-public stakeholders • Reliability / consistency in all dealings • Clarity and common understanding of all proposals and measures As regards REACH, Recital 121 of REACH further states that MS should put effective monitoring and control measures in place and that inspections should be planned, carried out and their results reported. In December 2009, the Forum for Exchange of Information

on Enforcement adopted “minimum criteria for REACH inspections”, building on the RMCEI foundations. As regards CITES, extending the scope of RMCEI may lead to an improved uniformity of inspection regimes across Member States and bring MS' inspection systems up to a higher level.

5.2.2 Sub-option 1B: Further development of criteria for inspection plans and programmes

There is an expressed need for the improvement of inspection plans and programmes, in spite of considerable progress made over the last eight years. The primary objective of this sub-option is to improve the targeting of inspections, thereby enhancing the efficiency of inspection agencies. The definitions of “inspection plans and “inspection programme” have to be clarified to achieve this.

109 According to this view, "Scope and definitions” (Chapter II 1.a) of RMCEI can be applied to all "industrial installations and

other enterprises and facilities…." thus including waste shipment, Natura 2000 sites, REACH etc 110 Impel (2007) “IMPEL input for the further development of the Recommendation on minimum criteria for environmental

inspections (RMCEI)”. 111 GreEnforce (2006) Practical implementation of Natura 2000. Management – control – enforcement



Many interviewees identified the RMCEI as important in guiding the development of inspection plans and programmes. Interviewees generally thought that a strengthening of the RMCEI in this regard would lead to more effective and efficient inspections. Standardisation is likely to enhance the relevance of the minimum criteria and help to safeguard the environment. These are benefits that could be achieved within generally fixed inspection budgets. However, maintaining the flexibility of the RMCEI for easy adaptation to different regulatory regimes is also thought important. The following issues are relevant: • The description of the scope and linked definitions is confusing and should be

clarified. IMPEL provides a more extensive list in its report “input further

development RMCEI”112, going beyond the concepts mentioned in chapter 2. These

include, among others, principles, environmental monitoring, self monitoring and inspection plans/programmes.

• Criteria for the training of inspectors should be included into the RMCEI in a separate

article. IMPEL proposed the following: “Member States should ensure that inspectors have appropriate qualifications and that they are given any necessary training. Each inspecting authority should: (i) list the appropriate competences required to fulfil their inspection activities; (ii) define the entry level requirements for the recruitment of inspectors; (iii) identify for each inspector the individual training needs in a training programme; (iv) assess the listed competences for the inspecting authority and the training programmes for each inspector through follow up and review. 113 This would enhance their capacity for integrated planning and reporting.

• Annual, nation wide reports could incorporate short summaries in English for wider

communication. • Specific improvements in planning of inspections. Planning should: (i) more clearly

distinguish between the (strategic) level of setting priorities and the (operational) level of planning the actual work; (ii) describe more clearly how priorities should be assigned; (iii) give more attention to setting targets for inspections and defining performance indicators; (iv) use strategic considerations such as linking the risk of an operation with the frequency of inspection.

5.2.3 Sub-option 1C: Establishing a regular reporting system based on the ten potential indicators identified in the IMPEL Brainstorming project

The IMPEL report (April 2010)114 on performance indicators for environmental inspection systems presented ten performance measures for inspections. These were classified as input, output and outcome indicators and could become the basis of an obligatory framework for inspections and reporting for all MS. The definitions of these

112 Kramers (2007) “IMPEL input for the further development of the Recommendation on minimum criteria for environmental

inspections (RMCEI)”. 113 ibid. 114 IMPEL (2010) Developing performance indicators for environmental inspection systems. Project report 2009/03



criteria aim to reduce ambiguity and should facilitate and professionalize the work of local inspectors. The indicators cover inspection and enforcement, but exclude environmental quality.115 Environmental quality indicators could provide authorities with useful information on compliance with/violation of environmental regulations. However, monitoring the ambient quality of receiving bodies is generally excluded from the definition of environmental inspections. Moreover, the statistics currently mobilised under RMCEI cannot easily be used to make comparisons between MS. This is due to differences in legal systems, administrative traditions and the average levels of environmental protection. The following indicators were proposed for inputs, outputs and outcome as measures of the capacity and effectiveness of inspectorates:

Input indicators Output indicators Outcome indicators

- Number of installations

- Number of installations covered

by the plan/year

- Number of inspectors

- Number of complaints received

relating to installations

- Staff time per installation

inspected

- Number of planned inspections

carried out versus total planned

inspections

- Number of site visits

- Number of non routine inspections

- Number of complaints dealt with

- Number of compliant / non

compliant installations

Source: IMPEL (2010) Developing performance indicators for environmental inspection systems . Project

report 2009/03

5.3 Option 2: Transformation of Recommendation 2001/331 into a

Directive

This option involves replacing the RMCEI with a Directive on environmental inspections, thereby making implementation compulsory. Important aspects of this option include: • Consensus on the terminology used: This is a prerequisite for the general adoption

of such a wide and legally binding instrument; • Flexibility in the face of different MS sanctioning processes: A Directive should

entail the obligation of results, rather than the means, as the overall aim is compliance and not inspections as such.

• Aiming at similar planning procedures and reporting obligations: This is probably the most that can be expected from a Directive as since sanctioning procedures differ between MS. The Directive should therefore provide the same range of inspection instruments and possibilities to all MS.

115 Please see chapter 4 for further elaboration on indicators and measurement.



• Monitoring and enforcement of implementation by MS: If it is a Directive, the its implementation by MS should also be monitored and enforced. The timing of implementation and the setting target dates would also be important.

Turning the RMCEI into a directive would oblige countries with low inspection standards to establish and improve national and regional inspecting regimes so as to match the standards of other MS. 5.4 Option 3: Introduction of inspection obligations into sectoral

legislation

This option involves the introduction of legally-binding inspection requirements in sectoral Directives. Several environmental Directives already incorporate core principles of the RMCEI, including concrete criteria for environmental inspections. Examples include the proposal for the new SEVESO Directive, the Directive on Carbon Capture Storage and the Industrial Emissions Directive. Important aspects of this option include the following: • It is assumed that legally binding inspection requirements will lead to an

improvement of inspection effectiveness, following the experience with the Seveso II Directive;

• The conditions for the success of such inspection requirements, and their impact on compliance;

• The costs and administrative burden associated with the introduction of inspection obligations into sectoral legislation.

In the discussion on option 1A, the inclusion of all activities covered by EU environmental law into the scope of the revised RMCEI, it was argued that it would be difficult to capture all the specificities of sectoral legislation within a more generic RMCEI. It is therefore logical to look at the alternative option: namely the inclusion of obligatory inspection requirements in sectoral legislation. Experience with the inclusion of binding criteria into sectoral legislation116, suggest that insufficiently systematic and targeted approaches to inspection hindered efficient and effective compliance monitoring and enforcement. It further shows that the RMCEI was useful for the inspection processes, but insufficient due to its non-binding character. For example, the study on Inspection Requirement for Waste Shipments117 concluded that the characteristics of waste shipment inspections warranted a separate and binding legal instrument, but only for the more generic inspection criteria. Criteria that are more specific to Waste Shipments, such as specific minimum requirements for inspections, had to be captured under dedicated legislation. This objection could also be applied to Natura

116 This happened mainly in directives dealing with risk management approaches related to security of installations and safety of

operations, or the illegal trade of products. 117 IEEP, Biointelligence and Ecologic (2008) Study on inspections requirements for waste shipments. Final report to the

European Commission.



2000 and REACH. However, the appropriateness of including binding instruments into such legislation should be treated on a case-by-case basis. 5.5 Link between options and problems/objectives

This section assesses the ways in which each option deals with the problems, drivers and objectives as the starting point for assessing their impacts and costs. The table below describes how operational objectives are met and problems addressed for each of the options:

Table 5.1 Connecting the options with the problems and objectives

Options consider.. The problem/objective… Through…

1A: Extend scope Ineffectiveness, non-compliance and/or

uneven inspections within the areas of

legislation currently not in the scope of the

RMCEI.

Applying the RMCEI to other

environmental legislation would:

• Improve effectiveness and evenness

of inspection

• Improve efficiency by harmonising

between legislative sectors

1B: Criteria for

inspection plans


Lack of efficiency

Uneven inspections

Improve quality of inspection plans,

improve definitions of key concepts,

Enhance quality across MS

1C: Reporting of

performance


Lack of efficiency

Uneven inspections

Better monitoring of effectiveness and

efficiency of inspections (identify

weaknesses leading to improvement)

Incentive to improve inspections by

benchmarking across MS

2: Transform the

RMCEI into a

Directive


Lack of efficiency

Uneven inspections

Legal push/requirements:

• Improve planning, execution and

reporting on inspections

• Higher priority to inspection s(both

quality and quantity)

• More even effectiveness of

inspections across EU

3: Inspection

obligation into

sector legislation

Specific inspection issues in sector

legislation (effectiveness and unevenness)

Improve effectiveness and evenness of

specific sector legislation

The table shows that all the options are alternatives as they aim to address different problems. Option 1A aims to improve the implementation of environmental legislation currently not within the scope of the RMCEI. Option 1B and 1C focus on the legislation covered by the RMCEI and aim to improve the overall effectiveness, efficiency and evenness of the related inspections.



Option 2 aims to enhance the effectiveness, efficiency and evenness of inspections included in the scope of a directive. Option 3 addresses specific sectoral legislation, the contribution of which will depend on the specific legislation amended and how inspection recommendations are to be included. The impact assessment in the next chapter looks at the degree to which each option will help to achieve the operational objectives. Further, the options are not mutually exclusive and could be combined in option packages. This is discussed in Chapter 7.



6 Impact analysis

6.1 Introduction

Chapter 6 assesses possible impacts generated by each of the policy options defined in Chapter 5. The economic, environmental and social impacts of each policy option are assessed in accordance with the IA Guidelines, including those of ‘a business as usual scenario’ or ‘no change policy’. The impact assessment is largely qualitative as quantitative information was generally not available, a problem also encountered during the 2007 Review of the RMCEI. The project team did its utmost to gather relevant data: nearly 100 stakeholders (inspectorates, companies and NGOs) have been contacted by phone, leading to 17 in-depth interviews. Nearly up to 200 stakeholders received questionnaires. Most people approached returned the questionnaires, though generally without providing quantitative information. Environmental agencies frequently responded that the quantitative information asked for did not exist or that they were not willing to provide these, stating that inspections were a national competence. The study is therefore highly qualitative. It relies on academic literature, relevant EC documents and some data gathered from a wide range of stakeholders. The impacts are assessed according to a set of criteria (see section 6.2) and scored with plusses and minuses. These scores are relative and reflect a value judgement of the criteria’s position relative to the baseline scenario. Finally, there is a discussion and summary of the pros and cons of each option. 6.2 Definition of key impacts

The specific objective of the policy options is to achieve full and even compliance with environmental legislation across MS by improving the quality and efficiency of inspections (see Chapter 4). It is therefore important to consider the impact of each policy option on the effectiveness of inspections. This should include the overall level of effectiveness of inspections and the evenness of inspection effectiveness across all MSs. The following table contain thoughts on the impacts, the assessment method, types of data and comments on data quality.



Table 6.1 Defining the impacts

Impact Assessment method Type of data Comments

Economic impact

Changes in

administrative costs for

CAs

Changes in


CAs

Some quantitative data

• Data on FTE for

inspections

• Examples of effect

of risk based

inspection or other

targeted

approaches,

• Illustrative

calculations to show

order of magnitude

Data on FTEs and admin

costs are available for

some MS.

Incommensurability is a

problem due to methods

of measuring. We have

tried to mitigate this by

transparency and the use

of examples, to illustrate

arguments.

Changes to


industry

Changes to


larger companies and

SMEs.

Some quantitative data

• Examples of self-

auditing etc

• Illustrative

calculations

Data are extremely

scarce. We have some

qualitative statements

from interviews,118 and

some data on costs for

SMEs exists.

Competitive distortions Differences in

compliance and

administrative costs due

to differences in level of

inspection across MS

Mostly qualitative

• Maybe estimates for

admin cost changes

from economic

impacts, differences

in compliance levels

only descriptive

This point is made by

inspectorates,

companies, industry

groups and NGOs.

However, hard evidence

beyond anecdotal data is

scarce.

Social impacts

Changes in human

health

Changes to quality of

inspections through

• More targeted

inspections through

better programmes

or risk based

inspection

• Training activities

• Experience sharing

• Benchmarking

Mostly qualitative

• examples of

differences in

"quality"

• examples of effect

of risk based

inspection

• examples of

experience sharing

etc

Several examples can be

found on environmental

impacts on human

health, such as waste

and air pollution. These

will be described in the

text.

Employment Changes in costs to

industry

Mostly qualitative

• Maybe estimates for

admin cost changes

from economic

impacts, differences

Employment will be

treated under ‘economic

impacts’ since actual

increase or decrease in

FTEs is expected to have

118 For studies with similar problems see: IMPEL (2009) IMPEL Project “Comparison programme on the tariffs for

environmental permits and environmental inspections”.



Impact Assessment method Type of data Comments

in compliance levels

only descriptive

minimal effects on

society as a whole.

Environmental impacts

Changes in

environmental quality

Changes to quality of

inspections through more

• More targeted

inspections through

better programmes

or risk based

inspection

• Training activities

• Experience sharing

• Benchmarking

Mostly qualitative

• Examples of

differences in

"quality"

• examples of effect

of risk based

inspection

• examples of

experience sharing

etc

The direct link between

inspections and

improved environmental

quality is not available.

Examples of disasters

and illustrative cases will

be provided to show

costs/results of non-

compliance.

Enhancing the

implementation and

enforcement of

environmental acquis

Examine evidence from

environmental impacts

from failure in

inspections regimes.

Qualitative examples

based on reports from

accidents and disasters

with environmental

impacts.

This category assumes a

link between type and

quality of inspections and

the implementation of the

environmental acquis in

MS. Aggregate data is

scarce and the analysis

will focus on examples

from MS.

MS could achieve the key operational objective of increasing the effectiveness of inspections by increasing the number or quality of inspections. The choice depends on the specific inspection issues. The decision whether any given policy option would increase the effectiveness of inspections was based on qualitative judgements. In this attention was given to the specific requirements of options and data and examples from different MS. Economic impact

All options do have an important administrative impact at EU-, MS- and company-levels. The change will require a one-off investment to improve effectiveness, or an increase in the recurrent costs to cover the demand of factors like an increased number of inspections. The "estimated" increase in administrative costs for CAs might not actually be realised if MS were to increase the efficiency of their inspections. This could be achieved, for instance, by shifting to a risk based approach to inspections. In Finland this approach decreased non-compliance from 26% in 2009 to 31% in 2010.119 The frequency of inspections did not increase over the same period, meaning that their efficiency had

119 Interview with Finnish EPA.



improved. However, it is possible to enhance efficiency independently of the policy options under consideration, Administrative costs incurred by industry will differ between MS depending on the level of reporting already being enforced. Also relevant could be cultural differences, the introduction of voluntary schemes and the degree to which MS and companies are willing to prioritise the issue. Besides these differences, will the implementation of each piece of legislation also involve some administrative costs and they should be included in the impact assessment of that particular piece of legislation. In countries that already comply with the RMCEI, administrative costs will only increase when an option specifically requires new efforts from industry. For countries where companies don’t comply yet, these costs will be higher! The impact on competitive distortions thus relates to varying levels of MS compliance. It can be assumed that the option will lead to more even compliance and reduce market distortions, but it is not possible to quantify this. Social impact

Health improvements count among the main benefits of increased inspection efficiency and effectiveness. This would be due to reduced air and water pollution. The potential costs of non-action are large, though it is difficult to express this in quantitative terms. The EEA report “Environment and Health”120 explains some of the links between environmental pollution and diseases such as asthma, heat strokes and cancer. More information on this topic is given in chapter 2. The impact on jobs in industry would be minor, according to companies interviewed, as existing staff would be used for reporting and compliance. In the case of smaller companies some hiring of staff may take place, though retraining is also possible. This item is relevant to the issue of administrative costs on the part of the Commission, inspectorates and companies, which already focuses on an increase or decrease in FTEs. The impact on employment is assessed as part of the economic impacts to avoid unnecessary repetition. Environmental impact

The environmental impacts of improved inspections will derive mainly from increased efficiency and quality of inspections. A casual link could also be made between improved inspections, leading to increased compliance, and specific changes in the state of the environment. Examples and cases will be used to illustrate these points. The implementation of the environmental acquis is lagging behind in many MS. In 2005, environmental issues constituted one fourth of total the number of non-compliance cases being investigated by the EC. This problem was acknowledged in a Communication on “implementing European Community environmental law”121, which mentioned inter alia shortcomings in administrative capacities, and weak national and regional enforcement policies and practices as important challenges.

120 EEA (2005) Environment ant health. No. 10/2005 121 COM(2008) 773/4



The Communication further argued that a significant number of industries still did not comply with EC permitting and related requirements. The RMCEI’s scope is limited to parts of the environmental acquis, making it a tool to help ensuring the compliance of industrial installations and economic activities with significant environmental impacts with the environmental acquis. Hence, inspections are not the only tool that MS can use to detect and report infringements of the environmental acquis. Better inspections would generally enhance the implementation and enforcement of the environmental acquis, though the specific impacts will differ from option to option. The next section explains the impacts of the options identified in Chapter 5. 6.3 Baseline scenario

The Business as Usual (BaU) scenario serves as the baseline against which the impacts of different policy options can be compared and describes what is likely to happen, should the RMCEI remain unchanged. Important current characteristics and trends were defined and explored in Chapter 2 and are here presented in summary format. The European Parliament’s resolution in 2008 regarding the 2007 Review stated that the uneven and partial application of the RMCEI undermined implementation of Community environmental legislation and was not conducive to fair competition in the single market. The Council recently underlined the importance of clear rules and definitions, and better harmonization among MS about inspections.122 Quoting from the 2007 Review itself: "The available information indicates that there are

still large disparities in the way environmental inspections are being carried out within

the Community. Such disparities mean that the full implementation of environmental

legislation in the Community cannot be ensured. This also leads to distortions of

competition for businesses.” This is an important argument in favour of a revision of the RMCEI. However, it is difficult, if not impossible, to provide a quantitative and/or comprehensive baseline picture with respect to (1) distortion of competition and (2) full implementation of environmental legislation. The implications of non-compliance were illustrated by the fireworks accident in Enschede, the Netherlands. In May 2000, the facilities of SE fireworks, which imported Chinese fireworks to the Netherlands, exploded. Twenty-two people were killed, 950 injured and approximately 1.500 houses were damaged.123 Total material damage was estimated to €450 million. The final report of the ensuing investigation determined that the responsibility for the incident was spread out between a range of parties. Over 90% of the fireworks in the warehouse were heavier than permitted and was stored outside the

122 EC (2010) Improving environmental policy instruments - Council conclusions -, 3061st ENVIRONMENT Council meeting

Brussels, 20 December 2010. 123 COV (2001) De vuurwerkramp: Eindrapport. Commissie Onderzoek Vuurwerkramp. Enschede/Den Haag 2001



permitted premises, thereby contributing to the severity of the accident. Both company Directors were convicted for negligence and breach of environmental regulations. However, the final report also criticized the public authorities for several shortcomings. 124 Legal and illegal shipping of hazardous and non-hazardous waste, as another example, is expected to increase over the next years.125 The use of unqualified workers for waste shipment and treatment is associated with a range of health and environmental risks. According to a report to the Commission the treatment of WEEE without proper protection frequently lead to exposure to heavy metals like lead, cadmium, mercury, or inhalation of toxic fumes. This leads to intoxication, cardiac diseases, respiratory troubles, kidney damages and other ailments.126 A hypothetical case was used in a study supporting the IA of the IPPC Directive127. A medium-sized installation with a permit to release 1000 tonnes of sulphur dioxide was used as the basis for calculations. In the scenario used the installation failed to comply with regulations and increased its emissions with 10% above permitted levels. The breach was left undetected for a year resulting in 100 tonnes being released over a period of a year. The scenario refers to a cost benefit analysis for the CAFÉ programme, according to which the external cost of sulphur dioxide emissions range between €5,600 and 16,000 per tonne. Accordingly the external cost of the undetected breach amounted to between €560,000 and €1,600,000.

6.3.1 Current situation

Table 2.5 in Chapter 2, provides a summary of the conclusions of the Annex to the 2007 Review, and demonstrates the uneven implementation rate in the EU. Some MS have implemented almost all of the actions of the Directive, whereas others only move slowly in this direction. In the Conclusions of the Annex it is mentioned that: • The highest degree of implementation was reached for the carrying out of site visits

and the reporting on site visits.

• The level of implementation was lowest regarding investigations of accidents,

incidents and occurrences of non-compliance (the conclusions however also point to it that there appears to be insufficient information on this topic).

• The weak points of the inspection plans were the definition of relevant requirements

in the plan and the availability of the plans to the public. In most countries the plans.

124 COV (2001) De vuurwerkramp: Eindrapport. Commissie Onderzoek Vuurwerkramp. Enschede/Den Haag 2001 125 BIO Intelligence Service (2010) Environmental, social and economic impact assessment of possible requirements and

criteria for waste shipment inspections, controls and on-the-spot checks. Report for the European Commission. 126 BIO Intelligence Service (2010) Environmental, social and economic impact assessment of possible requirements and

criteria for waste shipment inspections, controls and on-the-spot checks. Report for the European Commission. 127 IEEP, VITO and BIO (2007) Data gathering and IA for a possible review of the IPPC Directive: Fact sheet A4: Inspections

requirements.



• focus only on defining periodic visit programmes. The main purpose of inspections is to ensure that installations comply with legislation. However, the 2007 Review states that all MS consider it "difficult to distinguish between

EC requirements and national requirements".

Partial and uneven implementation can therefore be observed in the sense that only a few countries comply with all the recommendations and that interpretations vary. Noteworthy in this regard is the following: • A careful estimate would indicate that 1/3 of EU MS have fully implemented the

RMCEI. However, in these countries: - the investigation of accidents, incidents and occurrences of non-compliance

showed the lowest level of compliance, though it should be stated that information on this topic seems to be limited;

- Inspection plans often did not define the requirements of the plan properly and the plans were often not available to the public. In most countries the plans focussed only on defining visiting schedules.

- 1/3 of MS did not carry out all of the inspection activities listed in the RMCEI.

• There are differences in the interpretations of the RMCEI leading to: - Inspection plans that diverge from the intended strategy/policy nature to

become annual work programmes. - Differences in the types of installations covered. - Differences in the interpretation of the terms “routine” and “non-routine”

inspections, leading to variable categorisations of inspections. - Differences in approaches to reporting, such as whether plans are made publicly

available, done so on request or not, or the extent to which reports are made publicly available.

• The main lesson learned from the present exercise and the 2007 Review is that one

should focus more the link between RMCEI implementation and the environmental acquis. Today the inspection systems concentrate on the national legislation into which the environmental acquis has been transposed. The review process further showed that information gathered did not lend itself to comparison or for drawing clear conclusions. This pointed at a need for a simplified reporting system.

• National conditions and structures impact upon the implementation of the RMCEI:

- Data suggests that inspection resources have remained fairly stable over the last 5-10 years.

- Statements from MS indicate that resources and capabilities in some countries constitute a barrier to the development of an efficient inspection system that complies with the RMCEI.

- A careful interpretation of available evidence suggests a regional pattern where Northern European MS have progressed the furthest with the implementation of the RMCEI. Southern Europe and the new MS have made less progress.



- The national structures differ, as a result of which inspection authorities could be regional or national entities. Often responsibilities are divided between different sectoral authorities across different administrative levels.

- Digitalisation, self-auditing and risk-based approaches could help to enhance the effectiveness of environmental inspections and have been used in MS like Finland and Sweden. There is much scope for expansion, though barriers remain in the form of the capabilities of inspectorates and in start-up costs involved.

The positive contributions of the RMCEI (ref. chapter 2) include: (1) The impetus given to knowledge exchange and sharing of best practices, (2) the value of RMCEI as a tool for structuring and planning inspections, and (3) the non-binding character, allowing flexibility to implement the legislations according to local context and external circumstances.

6.3.2 The resulting baseline scenario

Assuming that no further EU action is taken, the trend toward uneven and partial implementation is likely to continue:

• There will be ongoing improvements as a result of new technologies and recognised benefits from targeted/risk-based approaches. However, these benefits are unlikely to arise quickly and resource and skills shortages in some MS will remain if these issues are not prioritised politically within MS.

• Continued different modes of implementation as a result of divergent scopes and installations covered, different interpretation of plans, and different approaches to ensuring access to information, could lead to dissimilar treatment of identical installations in different MS.

• Experience sharing and knowledge building is likely to continue, but mainly in the context of IMPEL and on a voluntary basis. This implies that participation, contribution and benefits will take place at a lower pace and will not be distributed evenly across MS. MS with smaller resource- and skills-base are less likely to contribute to and benefit from these exercises.

• Continued inability to link the RMCEI to the environmental acquis and difficulty in conducting evaluations within some MS. Also ongoing difficulty in comparing evaluations and reports across MS.

• The financial crisis has lead to severe public budget cuts in several EU MS, leading to a higher likelihood also that the resources available for inspections may also decline. Estonia, for instance, has made a cut of 50%. Austerity measures are likely to further drive the pattern of uneven implementation. It may also undermine efforts to improve inspection efficiency and effectiveness, as this would require short term investments and an upgrading of skills.



6.4 Option 1: Revision of the RMCEI

6.4.1 Sub-option 1A: extending the scope of the RMCEI

The idea to extend the scope of the RMCEI is based on the observation that MS often use the RMCEI as a management tool rather than a framework limited to a specific domain.128 It suggests that the RMCEI principles of proportionality, transparency and consistency, could be expanded to planning, organising and reporting activities in other sectors. The implications of expanding the scope of the RMCEI into four areas of legislation are discussed below. The areas discussed include the Waste Shipment Regulation, the Habitats and Bird Directives (Natura 2000), CITES and REACH. Economic impacts

Costs implications for inspectorates could theoretically be kept within limits, especially when considering that REACH, CITES, WSR, and the Nature Directives all have assessment regimes in place. In an optimal scenario these assessments would all use the RMCEI to guide inspections and reporting. In that case the main cost would be a one-off investment to adapt reporting and planning. However, the methods for assessing REACH and the Nature Directive, for example, differ in terms of object to be inspected, measurement methodologies, frequency and resources. The Nature Directives are still struggling with methods, indicators and large gaps in knowledge.129 Sanctioning systems for Natura 2000 sites also range from non-existent to very rigid, depending on the Member State.130 In the case of REACH the target of the inspections is clear, making it easier to develop appropriate indicators and methodologies. REACH further establishes a clear division of responsibility and requires an official system of controls and penalties for non-compliance.131 These differences make it uncertain whether inspections of a Natura 2000 sites and REACH can be covered by the same legislation. Doing so may increase the once-off investment in adapting reporting and planning systems to comply with the RMCEI. Costs are also going to be unevenly distributed across MS depending on the sectors and areas to which they are currently applying the RMCEI. For example, some MS apply the RMCEI to the Seveso II Directive, whereas others do not.132 In Romania the RMCEI already applies to waste management, IPPC installations and Seveso. Member States already in compliance with the RMCEI would not incur additional costs.

128 For example: RO, DE, and UK. 129 EEA (2009) Progress towards the European 2010 biodiversity target. EEA Report No. 4/2009. 130 Miko, L (2008) Towards guidelines on green inspections. Presentation at GreenForce Network Meeting Oct 2008. 131 Milieu (2010) Report on penalties applicable for infringements on the provisions of the REACH Regulation in Member

States. 132 Various interpretations exist among MS as to whether e.g. the Seveso II Directive is already included in the RMCEI or not

See also IMPEL report by Kramers (2007) “IMPEL input for the further development of the Recommendation on minimum

criteria for environmental inspections (RMCEI)”.



Ultimately, the economic impacts resulting from an extension of RMCEI’s scope, will depend on the legislation that is included in the new definition: • The Nature Directives and CITES are the most difficult to assess. On general level,

the GreEnForce network concludes that there would be an added value in creating common guidelines to ensure effective implementation of Natura 2000. However, GreEnForce also notes that “There are big differences between nature and

environmental inspections, including in relation to subject matter and target

groups”.133 Generally, the administrative structure of CAs does not allow for obvious synergies. Rigid bureaucratic structures and splits between local, regional and national CAs are not easily changed. Moreover, it is unclear how monitoring and inspections of Natura 2000 sites would be captured in a RMCEI which targets installations. Compliance control is differs substantially between MS: from non-existent to overly restrictive.134 High gains in environmental quality could be expected, if RMCEI is used to guide compliance with the Nature Directives, though there are problems. Including the Nature Directives and CITES into the scope of the normal inspectorates is therefore likely to result in considerable administrative costs. However, if the relevant CA is able to incorporate the RMCEI into its current monitoring regime, then these may be avoided. Nevertheless, additional staff with the appropriate may be needed.

• REACH and the chemical sector are more inline with current inspection regimes,

though CAs argue that this type of legislation demands other kinds of specialisation and expertise. REACH also requires the MS to maintain a control system and to set up a framework for penalties for effective, proportionate and dissuasive penalties for non-compliance.135 In that context, minimum requirements for inspection are already being discussed within separate forums and it is important to avoid duplication.136 Even if REACH is more inline with the current RMCEI, it would therefore still demand very specific knowledge of inspections carried out in separate departments within national CAs. We argue that extending the scope of the RMCEI covering REACH, would incur considerable costs on inspectorates.

• Inspectorates and IMPEL are in favour of including ‘Waste Shipments’ into the

RMCEI.137 However, the scope of the RMCEI would have to be clarified and its criteria adapted where necessary. This would be the least expensive option for national inspectorates of all the options assessed, though a related study on the regulatory framework for inspections of the transport of radioactive material (TRAM) suggests that a recommendation on TRAM, which includes monitoring and inspections, would result in a 5% cost increase for CA and industry. These transport companies are rather small (< 100 staff), and new legislation, even a

133 GreenForce (2008) Summary Conclusion: Towards common guidelines for GreenForce. 134 Miko, L (2008) Towards guidlines on green inspections. Presentation at GreenForce Network Meeting Oct 2008. 135 CLEEN (2008) Enforcement of REACH: Final report from the EU REACH Enforcement project. February 2008. 136 According to a representative from the Portugese EPA. 137 Kramers (2007) “IMPEL input for the further development of the Recommendation on minimum criteria for environmental

inspections (RMCEI)”.



recommendation, would have a substantial, direct impact on their cost structure. In the case of bigger companies the impact would be less than 5%.138

The once-off administrative costs incurred by CAs will increase in proportion to every set of legislation included in the scope of the RMCEI. The exact quantum depends completely on context, though some rough estimates are possible. In the IA for extending the energy labelling directive, an estimated 200 man-hours per MS was needed to implement changes in the Directive on domestic practice. Another source suggested a cost of 75.000 euros for just negotiating changes and an additional 150.000 euros if national legislation demanded transposition following the changes made in the Directive.139 It is not clear what the cost implications of an extended scope are for industry. Industry plays a small role in the nature Directives and a larger one in REACH. However, inspections and legislation are already being discussed in other fora. Extending the scope of the RMCEI may lead to improved implementation across MS, thereby levelling the playing field for businesses in the affected sectors. However, one of the major objections to this option is the long and costly process that will be needed to agree on definitions, indicators and eligibility, thereby increasing the administrative burden. Social impact

The impacts on health of broadening the scope of the RMCEI depend on the environmental quality gains. Since these gains are considered minor, the impact from sub-option 1A on health is expected to be minor. Environmental impact

Option 1A may result in a small increase of compliance across MS, especially in relation to Waste, thereby improving the environment. The legislation investigated here (nature, waste and chemicals) already have inspections regimes. The impact of extending the RMCEI to these sectors are expected to be minor; so too the improvement of environmental quality. Extending the scope may positively affect compliance, or at least monitoring and reporting, of the environmental acquis. If successful, inspection tools could be applied to sectors of the environmental acquis that are not currently included in the RMCEI. A summary of the ‘scores’ for each of the impacts is found in the table below.

138 Ecorys (2008) Impact Assessment of the Proposal for a Council Regulation on the Revision of the Regulatory Framework

for TRAM Activities. Ecorys in cooperation with NRG 139 Europe Economic and Fraunhofer (2007) Impact assessment study on a possible extension, tightening or simplification of

the framework directive 92/75 EEC on energy labelling of household appliances. A report by Europe Economics and

Fraunhofer-ISI with BSR Sustainability and FfE.



Table 6.2 Scoring of Option 1A

Potential impacts Score

Economic impacts

Changes in administrative costs for CA (low costs = positive) -

Changes in administrative costs for companies

(reduced costs = positive)

-

Competitive distortions (high = positive) 0

Social impacts

Changes in human health (low = positive) +


Changes in environmental quality (high = positive) +

Enhancing the implementation and enforcement of environmental acquis (high = positive) +

Description of symbols: ++ = positive; + = slightly positive; 0 = neutral; - = slightly negative; -- = negative

The potential impacts are scored with plusses and minuses relative to the BAU (see Section 6.3), the rationale of which is explained below:

First, costs to national CAs and the Commission are expected to increase. The main investment will be a once-off investment to adapt current legislation and practice. The level of the investment depends on the legislation included into the scope the RMCEI and the current status of inspections and assessments in the MS concerned. For example, if REACH is included and the level of implementation in the respective Member State is low, then costs may be relatively high. Once an adapted inspections regime is in place, then operational cost could be limited. Moreover, inspectorates could make efficiency gains in, thereby setting off the initial cost. A possibility here is for CAs to place more emphasis on risk-based systems or digitalisation of their operations. Second, the costs for companies are expected to increase, depending on what legislation that is included and the size of the company. Adjusting to a new inspections regime clearly imposes administrative costs onto a company. However, large companies with staff and competences in place, may suffer less than SMEs with limited resources and know-how. Third, the impact on competitive distortion is unclear. It depends entirely on the formulation of the revision provisions and their implementation by MS. Moreover, expanding the scope to other sectors does not imply that inspections regimes in currently covered sectors will improve. Fourth, environmental and social impacts are interlinked. Improving inspections regimes in any sector currently not covered by the RMCEI may ameliorate environmental quality thereby having positive impacts on health. Fifth, including other sectors in the RMCEI may enhance compliance and implementation of the environmental acquis, as more areas would be covered than is currently the case.



However, if more inspections take place and cover more areas, then the number of infringement cases could increase. Other considerations

The research results vary depending on the legislation in question. Key problems relate to the administrative burden for CAs and that inspectorates would have to undergo costly reorganisations. Another problem relates to methodology and workings of different sets of legislation, leading to duplications, confusion and redundancies. Several respondents were unsure, for instance, if and how inspections could cover the Nature Directives. The following picture emerged from our stakeholder consultations: • Regarding the Nature Directives and CITES, stakeholders gave clear responses. A

respondent from the German authority implied that: “The recommendation is tailored

for the inspection of industrial plants and does not fit the requirements for nature

conservation.“ Moreover, methodology and institutional set-up make these areas unsuitable for inclusion in the RMCEI at this point. An interviewee from the Czech Republic argued that GreEnForce already covered nature inspections issues, and that it should definitely not be covered by the RMCEI as well. Only 17% of the respondents wanted to include CITES in the RMCEI, and 28% the Nature Directives. Even if there were theoretical arguments for extending the scope of the RMCEI by covering these pieces of legislation, there is little buy-in from inspectorates. This is a major drawback.

• Regarding the inclusion of REACH in the RMCEI there were some positive

comments about inspection synergies and cost reductions. However, the scope expansion posed difficulties in that the broad nature of the legislation. Inspectorates did not have enough time to map out the principles for inspections following the recent adoption of REACH and there is some concern that it is too early to include it into a revised RMCEI. This connects with concerns about the difficulty of adapting the RMCEI to REACH. The fears of additional administrative costs that could be incurred by inspectorates, therefore, are realistic.

REACH further contains a number of articles relating to inspections. Recital 121 of REACH states that MS should put in place effective monitoring and control measures and that inspections should be planned, carried out and their results reported. Article 125 of REACH requires MS to maintain a official system of controls adapted to the circumstances; Article 126 requires MS to lay determine penalties for infringement of REACH, which must be effective, proportionate and dissuasive. Articles 117(1) and 127, further determine that the results of inspections, monitoring, penalties and other measures are to be reported to the European Commission by 1 June 2010, and after that every five years.140

140 ECHA (2009) Minimum criteria for REACH inspections. FORUM FOR EXCHANGE OF INFORMATION ON

ENFORCEMENT



• The Commission presented its review of RMCEI at The Forum of the European Chemical Agency (The Forum, see footnote) in 2007.141 It was thought desirable for both systems to use similar minimum criteria, as there were possible overlaps, especially regarding chemicals regulated under REACH. Not all Forum members (one from each MS) were 'convinced that including REACH under the scope of the RMCEI is feasible as there are many differences between the enforcement of REACH and enforcement of environmental legislation and separate criteria should be developed’142. A majority of the members at another Forum meeting143 opposed the inclusion of REACH under the RMCEI. The wider scope of REACH inspections, which includes health and workplace issues, was cited as a reason. In the meantime minimum requirements have also been established for REACH inspections. In our interviews, a representative from a Danish chemical company even called the RMCEI obsolete, arguing that the specific demands should be developed in the sectoral legislation. However, eleven of the eighteen stakeholders approached for the present study were in favour of including REACH under RMCEI. The difference in outcome between the Forum’s voting and the position expressed by industry in this study may be due to the more formal setting of the former and. possibly, the non-representative group interviewed for this study. The scope of REACH is extremely broad which makes it difficult to adapt the RMCEI to it. It would place a high regulatory burden on smaller operators in the absence of economies of scale, with slower learning effects, and without specialised staff available. It therefore seems too early to broaden the scope of the RMCEI to cover REACH, as the implementation of the latter is in its initial phases. However, it might be desirable to use similar minimum criteria to deal with possible overlapping relevance to the inspection of installations and activities regulated under REACH.

• Finally, there is an ongoing process in the Forum for Exchange of Information on

Exchange (ECHA) on minimum criteria for REACH.144 ECHA notes that the RMCEI: “Although not directly applicable to REACH, the RMCEI provides a useful

foundation upon which a structured system for REACH inspection can be created.”145 The Commission has given a high priority to the lack of inspection criteria in the waste

shipment sector.146 Survey responses in this sector were uneven, but more positive than in the other two categories.147 An Estonian EPA representative argued that most waste inspections are already carried out in accordance with the RMCEI and that a revision

141 Founded in 2007 as an EU body, the European Chemical Agency (ECHA) dedicates its work towards safety and innovation

in the use of chemicals. The Forum’s role is twofold; first, it fosters and coordinates the relationships, communication and exchange between different MS authorities as well as stakeholders and second, it acts as an platform to provide technical

support aimed at continuously improving the quality of the agency’s work. The composition of the forum consists of one elected representative of each MS (familiarity in chemical’s legislation enforcement is required) with a three-year tenure. Meetings are hold in Helsinki on a fairly regular bi-annual basis since 2007.

142 Forum of the European Chemicals Agency. Minutes of the 1st Meeting of the Forum for Exchange of Information on Enforcement. 11-12 December 2007 as quoted in IEEP, Bio and Ecologic (2008) Study on Inspection Requirements for

Waste Shipment Inspections 143 Forum of the European Chemicals Agency. Minutes of the 2nd meeting of the Forum for Exchange of Information on

Enforcement, 14-15 May 2008 as quoted in IEEP, Bio and Ecologic (2008). 144 http://echa.europa.eu/about/organisation/forum_en.asp 145 ECHA (2009) Minimum criteria for REACH inspections. FORUM FOR EXCHANGE OF INFORMATION ON

ENFORCEMENT 146 COM/2007/707. 147 For example IT, LV.



would require minimal changes. However, some raised concerns about illegal dumping (UK), with some thinking that an inclusion would actually incentivise illegal waste disposal by increasing costs for legal handling. Others expressed the fear that inclusion in the RMCEI and the publication of advance information on planned inspections might hamper the intelligence-led approaches employed by many MS. This is probably a misunderstanding as the RMCEI does not require a publication of information about who will be when and where inspected, though many countries provide annual inspection plans. Also, intelligence-lead approaches target illegal waste streams and activities rather than authorised sites and movements. Notwithstanding, some respondents insisted that even broad plans that did not contain detailed information about who would be inspected when and where, might be enough to frustrate criminal investigators. Other respondents thought that the costs were miniscule compared to the benefits.

Pros and Cons for Option 1A: Broadened scope

Pros

1. For compliant firms, the increase in enforcement activities would have no effect

2. Helps to raise standards in those countries with no national regulations which meet RMCEI standards.

3. For Waste Shipment Regulation, there is some political buy-in from MS

4. Could yield substantial environmental quality if the Nature Directives are included successfully.

Cons

1. Risk for increased administrative costs for CA and Companies

2. Difference in requirements and needs for the different legislations which are hard to capture in one

recommendation.

3. On-going initiatives such as CLEEN and GreENForce, and discussions on recommendations creates

grounds for double-work.

4. Nature directives (Habitats and Bird) and CITES are not suitable for inclusion due to complexities in

methodology and the institutional set-up within ministries.

5. Minimum criteria not congruent between REACH and RMCEI. Merger might be inefficient and be an

irritation to inspectorates.

Summary

The extension of the scope of the RMCEI (sub-option 1A), could generate synergies between different national authorities and improve inspections in areas presently not covered. However, specific MS legislative characteristics determine how effective the RMCEI could be. The benefits of expanding the scope to the Nature Directives and REACH, for instance, are not obvious at this point. It could lead to gains in environmental quality and level the playing field, but also to unnecessary administrative costs. The Nature Directive and REACH further have their own distinct approaches to inspections thereby creating the risk of overlaps and redundancies. There is little certainty that inclusion would benefit REACH and the Nature Directive. Waste Shipments, however, are more amenable to inclusion in the RMCEI, and some MS have already turned this into a reality. It is further clear that the administrative burden on inspectorates will increase, while the level of efficiency and quality remain the same.



Feasibility per policy area Score Comment

Nature Directives and CITES

�

The Nature Directives and CITES could on a conceptual level

benefit from an inclusion in the scope of the RMCEI. However,

both IMPEL and national inspectorates are uncertain about the

practical feasibility of adjusting criteria and make the sufficiently

legislation effective. Of the three policy areas investigated, the

current policy structure of the Nature Directives and Cites makes

it the least favourable to include in RMCEI.

REACH

-

REACH would to some extent favour being included in the

RMCEI. The activities of chemical companies are much closer to

core activities already covered. Still, considering the ongoing

work of ECHA to establish minimum criteria for inspection and

the somewhat sceptical attitude from some stakeholders,

REACH would at this point not favour from an inclusion in the

RMCEI. However, depending on future developments, might

come in question.

Waste Shipments

Waste Shipment is the most favourable for inclusion in the

RMCEI. There is political buy-in from both inspectorates and

IMPEL. Some MS even include Waste Shipments in the RMCEI.

The criteria is going to need adaptation however the political

feasibility and current examples of Waste Shipments being

covered by the RMCEI increases the chances of a successful

inclusion.

6.4.2 Sub-option 1B: further development of criteria for inspection plans and programmes

Improved definitions and criteria for inspection plans and programmes are expected to increase the quality and efficiency of MS inspectorates. Approaches such as risk-based assessments can improve the efficiency and quality of inspections. Economic impact

The current state of implementation of MS inspections plans and programmes, determines what costs would be incurred for further development and implementation. Countries such as France, Sweden and the Netherlands already use inspection plans and will not incur significant additional costs.148 In the case of MS with under-developed or recently started plans, the costs will be higher. Even so the economic benefits of more targeted approaches could be substantial. The number of multimedia inspections in England and Wales, for instance, dropped by 39% and medium-specific inspections by 20% between 2002 and 2006, while the detection of

148 See also: BIO Intelligence Service (2010) Environmental, social and economic impact assessment of possible requirements

and criteria for waste shipment inspections, controls and on-the-spot checks. Report for the European Commission. For a

similar discussion and conclusion on Waste Shipment.



violations actually grew by 16%. This represents a large cut in resources spent on these types of inspections. The implementation of a risk-based approach in Finland similarly increased the number of injunctions, while maintaining the number of FTEs on a state level. In 2010, the number of injunction in Finland rose from 26% to 31%. Companies expect improved plans and programmes to lead to better coordination and management, thereby reducing the administrative burden. The current patchwork of inspections regimes in which different authorities ask for the same data, doubles the work for companies. This is countered by the trend towards digitalisation and self-reporting, which enhances the effectiveness and efficiency of inspections in companies. Starting in 2003, Belgian waste water authorities checked up on 44 self-controlling entities in Flanders, and found that only 61% were performing the self-audit as required. An improvement in compliance to the self- measurement could be identified, resulting in 79% of good self-controlling in 2009. Sub-option 1B does not require large changes of the RMCEI’s scope. Administrative tasks and the way that staff perform their duties would change, which may lead to a need for specific skills sets and expertise. Despite this it is unlikely that Sub-option 1B would lead to an increases in FTEs. Sub-option 1B includes will create training needs. The IA of the Seveso II Directive also mentioned training as particularly important for SMEs, as they generally have less capacity to deal with compliance issues than big companies.149 Nonetheless, as sub-option 1B targets inspectorates and not operators, this option would have to be extended. Training will likely impact on inspection quality and efficiency. The results could also be scaled up with methods like “train-the-trainer”. Finally, Sub-option 1B would improve coordination between MS, leading to more consistent implementation of the RMCEI. Social impact

The impact on human health should be positive as a result of improved environmental quality. Environmental impact

This option could improve the effectiveness of MS inspectorates and contribute to better implementation of environmental regulations, while leaving scope to address local issues and adapt to local needs and circumstances. The increased compliance would lead to improved environmental quality. However, the mere implementation of sub-option 1B would not in itself lead to improved environmental compliance and quality. It is still in the hands of CA to implement the legislation. A summary of the ‘scores’ for each of the impacts are presented in the table below.

149 EU-VRi (2008) F-Seveso: Study of the effectiveness of the Seveso II Directive. Final report.



Table 6.3 Scoring of Option 1B


Economic impacts

Changes in administrative costs for CA (low costs = positive) -



0

Competitive distortions (high = positive) +

Social impacts






The potential impacts are scored with plusses and minuses relative to the BAU defined in Section 6.3. The rationale is as follows:

First, CAs are likely to incur only once-off costs for implementing an improved RMCEI such as Option 1A. However, option 1B will cause inspectorates to incur more costs, though their costs may be reduced as a result of improved efficiency and reduced operational costs.

Second, companies are unlikely to incur additional costs, unless provisions for self-auditing are included.

Third, improved inspectorate effectiveness will improve compliance and level the playing field. It depends of course on, if and how, the MS chose to implement option 1B and on their current level of implementation. Fourth, as with Option 1A, the environmental and social impacts are interlinked. Improving inspections regimes in any sector currently not covered by the RMCEI may improve environmental quality with positive impacts on health. Finally, the implementation of and compliance with the environmental acquis may improve as cases of non-compliance are detected more effectively. Infringements may increase if a risk-based approach is taken. Other considerations

Improving management plans and programmes was a key aim of IMPEL’s Do the right

thing (DTRT) projects I, II and III. DTRT I developed a practical guidance book on the planning of environmental inspections. These were to be flexible enough to accommodate the needs of the inspection authorities in the IMPEL member countries, while enabling them to comply with the RMCEI. The guidelines are based on the Environmental Inspections Cycle, which consists of seven steps:



1. Describing the context 2. Setting priorities 3. Defining objectives and strategies 4. Planning and review 5. Execution framework 6. Execution and reporting 7. Performance monitoring. The intention was that all inspecting authorities in the MS should apply the guidelines. The IMPEL network also suggested changes in the RMCEI to strengthen the paragraphs on plans for environmental inspections.150 The majority of our respondents, mainly from inspectorates, argued that improvement of these issues will reduce confusion and improve inspection efficiency within MS and coordination between them. An Estonian EPA Representative said: “I support revising

the RMCEI by complementing it with clarification of some definitions (inspection plan, i.

programme), criteria for inspection plan and programme and developed reporting system

to EU”. This attitude was echoed in many interviews and clearer definitions and criteria in a potentially revised RMCEI would definitely be welcomed. This is a major advantage of this option. The overall assessment of this option is positive as it enhances the ability of the RMCEI to address these to industries or pollution specific issues. Improved criteria would increase the efficiency of inspection agencies within MS and improve coordination between them. Furthermore, the required training of inspectors would enhance their capacity for integrated planning and reporting. Even so, these improvements will probably be small compared to the ‘no change’ scenario. Improved criteria and definitions are unlikely to bring about substantial changes and the performance of an inspections regime depends on many other aspects such as resources and legal status. Furthermore, the option will bring about additional administrative costs for inspectorates, although these may be partially offset by reduced costs for industry. Finally, the low likelihood of agreeing on definitions on a European level was mentioned as an issue by some stakeholder with insight into the IMPEL work. In theory clear definitions and common standards may well be the optimal solution, but in practice the heterogeneous policy landscape in MS is unlikely to permit rigid definitions. Despite this improved definitions and criteria would provide a better base for communication and comparison across MS.151

150 Kramers (2007) “IMPEL input for the further development of the Recommendation on minimum criteria for environmental

inspections (RMCEI)”. Annex I. 151 Emphasised in interviews with among others the French EPA.



Pros and Cons for Option 1B: Further development of criteria for inspection plans and programmes

Pros

1. Develop inspection plans for specific industries or pollution problems

2. Improving on these criteria should increase the efficiency of inspection agencies within MS and improve

coordination between them

3. Reducing redundancies due to coordination issues

4. Political buy-in from agencies

5. Criteria for the training of inspectors would enhance their capacity for integrated planning and reporting.

Cons

1. Less possibilities to adapt to local circumstances

2. Questions regarding feasibility

3. More initial administrative costs for inspectorates

Summary

Improved definitions and criteria would increase the effectiveness and efficiency of Member State inspectorates. One of the problems with the current definitions is that inspection plans are not strategic in nature, as was intended, and do not help in focusing the inspections. More focused training, as per Sub-option 1B, would increase both effectiveness and efficiency. The improvement of the current criteria would likely bring about a modest enhancement of effectiveness and efficiency. Improving the criteria is not necessarily leading to better implementation of the RMCEIs in MS where they currently are not fully applied. Implementing the option would incur once-off administrative costs, while the overall costs would be limited. If it leads to better inspection plans, this could lead to improved efficiency and lower inspection costs in the future.

6.4.3 Sub-option 1C: establishing a regular reporting system based on the ten potential indicators identified in the IMPEL Brainstorming project

IMPEL’s brainstorming project152 identified 10 potential indicators which could be used to streamline reporting on inspections into a common system. The problem of incomparable data due to differences in accounting, institutional set-up of inspectorates, and level of self-reporting is considerable. More streamlined data would certainly improve comparability across MS, however, achieving this focus on achieving environmental compliance and not become an end in itself. Economic impact

A small set of mutually agreed of indicators would make it easier to compare performance data between MS. This could help to reduce inefficiencies, and increase the

152 IMPEL (2008) Brainstorming on an IMPEL Project to develop performance indicators for environmental inspectorates.

IMPEL report number: 2008/03.



exchange of knowledge and best-practice, thereby promoting more even implementation of environmental inspections. The key cost is relates to the increased administrative burden on inspectorates. When IMPEL developed the set of indicators it noted that “due to the many political and

operational difficulties between Member States, defining EU-wide comparable indicators

proved to be of utmost difficulty. The pilot demonstrated that the comparability is often

low, the availability of data variable and the range of answers high”.153 This statement, in combination with this report, indicate that the implementation of a common set of indicators would impose substantial costs on CAs. Current reporting systems and possibly the collection of data would have to change significantly. Option 1C does not involve the introduction of more binding legislation or the extention of other Directive into the scope of the RMCEI. Changing reporting systems and data collection may require particular expertise, but administrative responsibilities are likely to be reallocated rather than this translating into additional FTE Social impact

This option would compel MS to adapt their reporting systems to comply with the minimum criteria. This would reduce confusion about reporting and the upgrading of systems where needed. The option would likely improve the effectiveness of inspections, thus reducing non-compliance and achieving certain health benefits. Environmental impact

This option would, as stated immediately above, lead to more effective inspections and concomitant environmental improvements. A summary of the valuations of each of the impacts is presented in the table below.

Table 6.4 Scoring of Option 1C


Economic impacts

Changes in administrative costs for CA (low costs = positive) --



0

Competitive distortions (high = positive) +

Social impacts




Enhancing the implementation and enforcement of environmental acquis (high = positive) 0


153 IMPEL (2010) Developing performance indicators for environmental inspection systems. Project report 2009/03.



Potential impacts are scored with plusses and minuses relative the BAU established in the Section 6.3. The rational behind each assessment is explained below.

First, implementing a streamlined set of indicators may affect data collection, IT systems, training and information dissemination. This will likely lead to considerable costs for CAs in the short term and impose adaptation costs on MS with non-compliant systems and procedures. The negotiation of the indicators may in itself consume MS and Commission resources. The key benefit is mainstreamed reporting and possibly improved efficiency. However, these are of long-term benefits. Knowledge exchange, capacity building and sharing of best practices across MS may benefit considerably, improving efficiency and effectiveness over time.

Second, companies are unlikely to face more costs as the indicators mainly deal with output to be generated by inspectorates.

Third, introducing common indicators may help to improve inspection quality and the evenness of inspections across MS, thus levelling the playing field for companies.

Fourth, as with option 1A and 1B, the environmental and social impacts are interlinked. Improving inspections regimes in any sector currently not covered by the RMCEI may improve environmental quality leading to positive health impacts. Finally, it is unclear how indicators would enhance MS compliance with the environmental acquis. Option 1C mainly addresses reporting guidelines and not the enforcement of legislations per se. Hence, the potential impact on compliance is thought to be minor. Other Considerations

Common indicators for reporting would make it easier to measure progress across MS. However, the indicators described in the Chapter “policy options” rely on quantitative data only. Much work still has to be done to develop an effective set of indicators. In 2009, IMPEL conducted a pilot test of the selected indicators with the following results:154

154 Note that the data collection was limited to IPPC installations. Moreover, some of the indicators are slightly different from

the explanation in Chapter 5 due to changes in IMPEL output from 2009.


99

Input indicators Definitions Evaluation

Number of installations The number of permits issued, as defined by the directive. Not meaningful due to differences in permitting systems.

Number of installations

covered by the plan/year

An IPPC installation is considered covered by the plan if within one

year at least one site visit where one or more permit conditions are

inspected is planned.

Good indicators in terms of measurability. It needs to be expanded to cover quality of the plan.

Especially whether the plans are risk-based which in that case influence the number of cases of non-

compliance.

Number of complaints

received relating to

installations

Number of complaints concerning IPPC installations registered within

one year by the inspectorate. The media used by the plaintiff (phone

cal, letter, email) does not matter provided it has been separately

registered by the inspectorate.

Measurability is good however the indicators provide a good example of the difficulty in drawing

conclusions from mere figures without understanding the context. Trends may be interesting to

distinguish for further investigation.

Number of inspectors Total number of people who each year visits one or more IPPC site

where one or more permit condition(s) are inspected.

Number of staff was considered difficult to measure for countries which don’t have dedicated IPPC

inspectors. It does promote discussion of the notion of critical mass of the inspectorates.

Staff time per installation

inspected

Number of man hours dedicated to IPPC inspection. Support staff

and management staff are not included. Preparation and follow up

time is to be counted. Training is not included.

This is a better indicator than only number of staff. However, uncertainty remains on whether much

time is good/bad, what is actually performed, and what explains differences between countries?

Output indicators Definitions Evaluation

Number of site visits To be based on site visits where one or more permit condition(s)

inspected. Routine as defined by the RMCEI.

Due to differences in institutional set-ups measurability between countries is not considered good.

Effectiveness is also difficult to evaluate with this indicator. Finally, sampling methodology creates

difficulties in comparability across countries.

Number of non routine

inspections

To be based on site visits where one or more permit condition(s)

inspected. Non-routine as defined by the RMCEI. This includes follow

up inspections.

See above.

Number of complaints

dealt with

Number of complaints where the substance of the complaint has

been addressed by action taken by the inspectorate (not just a simple

acknowledgement to the complainant).

Same problems as with the indicators on “number of complaints received”

Outcome indicators Definitions Evaluation

Number of compliant / non

compliant installations

Number of installations where in one year at least one site visit report

mentions at least one significant non-compliance. Member states

should give their own definition of significance.

This is a useful indicator for internal targeting and monitoring. However, at the international level there

are problems with comparability and analytical soundness. Also, it does not measure effectiveness.

Source: IMPEL (2010) Developing performance indicators for environmental inspection systems. Report number 03/2009



The IMPEL pilot test-run revealed common challenges for the first set of indicators. First, it is difficult to measure and compare seemingly straightforward indicators such as “number of inspectors” and “number of site-visits” across countries. Inspectors often work on more than just inspections and the number of site visits depends very much on various institutional characteristics. Second, some indicators are meaningless once divorced from their context. For example, do high numbers of non-compliant installations translate into badly performing operators, or does it mean that a well targeted risk-based compliance scheme is in place? Are incidents of non-compliances serious or minor? Finally, effectiveness remains difficult to measure. The approach followed by an inspectorate often determines the number of staff-hours, cases of non-compliance and number of site visits. An effective risk-based approach, for example, may reduce the number of staff-hours needed, increase cases of non-compliance and reduce number of site-visits, making it a more effective system. Stakeholders preferred a list of indicators, but were concerned about how feasible it was to reach agreement about its contents, particularly in relation to the outcome indicators. The majority of respondents accordingly spoke of a need for advice and guidance on implementation of the Recommendation; also for indicators that focused on the link between compliance activity and environmental outcomes. Outcomes-based indicators, such as the number of compliant or non-compliant installations, make meaningful measures of the effectiveness of regulatory activity possible and provide a better basis for the comparison of results between countries. They allow regulators to demonstrate effectiveness rather than just activity, which is important in the current economic climate. At the same time they represent a cost effective way to develop approaches that are tailored to sectoral and/or national/regional needs. Over 70% of the respondents to this study agreed that a new reporting system based on the IMPEL indicators had to be established. Almost 60% of the respondents considered the IMPEL indicators to be SMART. However 40% of the respondents indicated that they use indicators other than those listed by IMPEL. Over 70% of the respondents disagree or have no opinion as to whether such a new system would be cost effective when compared to the current system under the RMCEI. Respondents that are satisfied with the RMCEI also suggested that more project-based qualitative indicators be used and that they would appreciate a more suitable reporting format. Other respondents felt that the RMCEI coverage was incomplete, that implementation was not always up to standard, and that the effectiveness of implementation was not covered by RMCEI. Most stakeholders agreed that this would represent an improvement as it would increase report quality and comparability across MS.

Pros and Cons for Option 1C: Reporting system based on IMPEL-indicators

Pros

1. Reduction of reporting costs in the long-term

2. Increased communication between MS and inspectorates

3. A new reporting system based on IMPEL indicators would improve the quality of reporting and make



comparison between MS more meaningful

4. Better reporting would also create a more informed public

Cons

1. No consensus on which indicators should be used. Agreeing over the ‘right’ indicators will also be a

lengthy process.

2. Indicators are not the right means to evaluate the effectiveness of inspectorates

Summary

This option could increase the effectiveness and efficiency of inspections. The inspectorates will have to monitor their activities and the outcome of the activities in a systematic way. The indicators and benchmarking exercises would make it possible for inspectorates to compare themselves with others and identify areas where improvements were needed. However, existing indicators are good for measuring frequency and efficiency, and it remains difficult to define indicators that could measure the quality of inspections. Regardless of this any improvements based on the IMPEL indicators would provide information and incentives to identify areas that could be improved. There will be once-off costs of setting up the systems to collect the necessary data, if inspectorates do not measure their activity and therefore do not have the data to compile the indicators. Compiling the indicators would impose additional recurrent costs. These would however not be significant and would be outweighed by the benefits, should inspections become more efficient. 6.5 Option 2: transformation of the RMCEI into a horizontal

directive

A Directive on inspections may help to streamline implementation and level the playing field in MS. This would yield improvements in environmental quality. Whether the objectives are met, relies on the extent to which a Directive could help to clarify obligations, while accommodating functioning sanction systems in MS. Moreover, monitoring and reporting will be needed to be able to assess implementation in MS, as a Directive includes legally binding requirements.

6.5.1 Economic impact

A Directive would generally require preparation and negotiation at EU level followed by transposition into national laws. This could last anything between six months and two years, and has significant cost implications. The estimation of the administrative costs to the Commission assumes that at least 10 people at different levels will be affected (six months full time). Implementing new



directives would be administratively more costly than amending existing legislation. The suggested indicative cost for the Commission and the associated negotiating process with MS amounts to some €720,000155. Keeping in mind that the amendment of a Directive would cost some €150,000, its transposition into national legislation would cost around €200,000 in addition to some €75,000 for negotiations per MS, adding up to around €1 million. The costs of transposing a directive into MS national legislation, would depend on its current level of compliance with the RMCEI. MS with low or partial implementation of the RMCEI could be expected to have a larger administrative burden than more compliant countries. It would require a largely once-off investment, though the labour requirements in the inspectorates of some countries may increase by as much as 10 percent. Assuming a hypothetical MS with no present inspections system, an initial set-up would require:156 • costs of organisational change, set-up costs for inspection units; • improvements to procedures for data collection, storage and retrieval; • provision of, or improvements to, databases, including computer systems and PCs; • training of inspectors in communications and information dissemination methods; • information technology for running relevant databases, information networks and

websites. Whereas operational costs would include: • providing the inspections unit (staffing, office space, etc); • reporting to the public and to the Commission; and, • information technology maintenance and updating, as necessary. Some example of costs related to the set up: • The impact assessment for inspections on transport of radioactive material suggests

that the introduction of a Recommendation would incur a 30% cost increase for CA.157

• In the Netherlands only, the hiring of an inspector covering Waste Shipments is estimated to €100.000 a year. 158

• In the IA for a revision of the IPPC Directive in 2007, researchers assumed an inspections regime with more inspections, averaging an extra day per inspections. Including overhead costs and expenses, it was assumed that an extra day would cost €800. With these assumption, only for the EU15, increased inspections demands on installations covered by the IPPC, would amount to €27,200,200. 159

155 Impact assessment study on a possible extension, tightening or simplification of the framework directive 92/75 EEC on

energy labelling of household appliances’, 2007, Europe Economics and Fraunhofer-ISI 156 See: EC (2007) Handbook on the implementation of EC environmental legislation. Edited by Regional Environmental

Center and Umweltbundesamt GmbH. 157 However, this is estimated for countries with currently very low level of compliance. 158 BIO Intelligence Service (2010) Environmental, social and economic impact assessment of possible requirements and

criteria for waste shipment inspections, controls and on-the-spot checks. Report for the European Commission. 159 IEEP, VITO and BIO (2007) Data gathering and IA for a possible review of the IPPC Directive: Fact sheet A4: Inspections

requirements.



All estimations are uncertain. Some of the EU15 Member States already comply with the RMCEI and have installed functioning inspections regimes. Others have set up the systems, though these are not yet fully functioning for budgetary or institutional reasons. Hence, costs will be lower in most cases. In the longer term, though, efficiency is clearly expected to increase on an EU level, thus reducing inspection costs. However, the improvement of inspections efficiency and quality depends on how the Directive is formulated. A directive that is inflexible and does not permit for the continuation of currently efficient methods, could be counter-productive in some MSs. The playing field for companies is likely to become more level. As in the case with CAs, companies already implementing environmental policies and monitoring procedures in line with the RMCEI, are expected to suffer less than companies currently lagging behind. The impact assessment for inspections of transport of radioactive material160, for instance, suggests that the introduction of a RMCEI would increase the costs of companies in the supply chain by 30%. However, this is the estimation for companies with low current levels of compliance. The administrative burden associated with the implementation of this option could be substantial, as it would require a careful process of design and regular monitoring. The greatest cost impact, for this as for most other options, will be born by the public authorities (inspectorates). SMEs in particular could suffer increases in administrative costs. The smaller the company is, the harder it generally is to comply with environmental legislation.161 It is often difficult for SMEs to find the competencies and resources needed for environmental reporting. In Sweden, SME costs for self-auditing amounted to some 2.15 billion SEK (about €250 million), which represents 60% of their total budgets for complying with environmental laws.162 It means that less money is spent on improving environmental quality and more on administrative procedures.163 The inclusions of guidance, criteria and training in a directive, is therefore an important element in ensuring a smooth transition for companies. It will be especially important to ensure that the inspection requirements of a directive should take into consideration the situation of SMEs. SMEs account for about 64% of the environmental impact from industrial pollution in Europe. 164 The effectiveness of inspections would improve in many countries where implementation is presently not a priority.

160 Including monitoring, inspections, etc 161 Planet and DIT (2010) SMEs and the environment in the European Union. Report prepared in 2010 for the European

Commission, DG Enterprise and Industry under the competitiveness and innovation programme 2007-2013. 162

http://www.ivl.se/nyheter/startsidenyheter/minskadkostnadforegenkontrollochokadmiljonytta.5.15c2317a1266994794c80003908.html

163 Axelson, U (2008) Miljömålstyrd tillsyn: Miljökvalitetsmal, miljölagstitning, och företagens frivilliga miljoarbete i samverkan.

Svenska Miljöinstitutet. IVL Rapport B1765-C 164http://www.ivl.se/nyheter/startsidenyheter/minskadkostnadforegenkontrollochokadmiljonytta.5.15c2317a1266994794c800039

08.html



6.5.2 Social Impact

Improvement of environmental quality will likely translate into health benefits, though the specifics are difficult to assess.

6.5.3 Environmental Impact

A Directive which ensures more equal inspection standards across MS would improve compliance and environmental quality, especially in countries with less advanced implementation records. A Directive could also substantially enhance the reporting and monitoring of the implementation of environmental acquis. It could also provide inspectorates with the leverage needed to demand resources and capacities, which not possible under the RMCEI. A summary of the ‘scores’ for each of the impacts is presented in the table below.

Table 6.5 Scoring of Option 2


Economic impacts




-

Competitive distortions (high = positive) ++

Social impacts

Changes in human health (low = positive) ++


Changes in environmental quality (high = positive) ++



The potential impacts are scored with plusses and minuses relative the BAU established in the Section 6.3. The next paragraphs explain the rational behind each assessment. First, the costs to CAs and the Commission for the negotiation and implementation of a Directive are high. Also relevant are the costs of transposing a directive into national law and restructuring inspectorate regimes. MS with inspections regimes that diverge substantially from the RMCEI, are expected to be affected the most. Second, improved inspection effectiveness would affect companies with currently low inspection costs. Companies in MS with insufficient inspection regimes would experience increased compliance costs. SMEs, furthermore, are generally more vulnerable to such changes.



Third, a Directive which forces MS to implement inspections systems, could have a significant impact on the playing field between MS. Countries with a low level of RMCEI implementation, would have to enforce inspections legislation and increase company costs. Fourth, the positive effects of a Directive, improved inspections and compliance, on environmental quality could be significant. These effects translate directly to health benefits. Finally, because its implementation is compulsory, a Directive may give inspectorates the leverage to demand the resources and capacities needed. However, somewhat paradoxically, this impact will depend on the implementation of such a Directive. Other considerations

Respondents to this study were almost equally divided (50/50) about whether the RMCEI should be replaced with a legally-binding horizontal directive on environmental inspections. The identity of the respondent’s country seemed to play a role in the position held by the respondents. Those who responded positively felt that enough time has lapsed since the implementation of the RMCEI, and that the additional cost of making the RMCEI legally binding would be limited.165 Also that it would help raise the importance of the inspections. According to this group, a legally binding instrument would increase effectiveness and clarify the requirements for companies; also that it would increase harmonization of environmental inspections across the EU. Those who responded negatively felt that it would be pointless to make the RMCEI legally binding and that it would serve only increase the administrative burden. The problem, according to them, lies not with the RMCEI in itself, but with its implementation. A Finnish EPA representative even argued that a Directive would be a reactionary move, forcing progressive inspection systems to take a step backward as a result of inflexible requirements. Finally, over 60% of the respondents believed that the effect of a directive would be not important or of minor importance for the competitiveness of the various industry sectors. According to some, a directive would have a major effect on the level of compliance with environmental legislation (85%) and the effectiveness of the inspections (70%). Respondents that were critical of the present environmental inspection system, suggested that the RMCEI should be made legally binding and that the legal sanctions for non-compliance should be toughened. The survey sample is relatively small (n = 21). Nonetheless, over 60% of the respondents of environmental and industrial branch organisations agreed that the RMCEI should be transformed into a directive.

165 At least from a eastern MS perspective.



Adhering strictly to legally-binding minimum criteria for environmental inspections may not necessarily improve the effectiveness of inspection programmes. Eight out of 17 countries166 indicated that they have performance indicators for the monitoring and evaluation of environmental inspection work at a national level. A large number of MS therefore use country specific approaches which have developed over time to fit the specific conditions. Strict adherence might lead to an emphasis on quantitative approaches, undermining the use of outcomes-based measures. It may also hamper more innovative approaches such as risk-management, sectoral approaches, and electronic information handling to improve the effectiveness of inspections. Countries with high minimum inspection standards did not expect effectiveness to increase with a Directive. It may further increase the costs of operators and inspecting authorities without corresponding improvements on environmental quality. For example, mandatory obligations could replace voluntary initiatives, leading to worse performance due to a motivational shift from internal to external factors (i.e. crowding-out effect). Finally, increased costs for regulators and business are a big issue for when compared with expected benefits. Over 60% of the respondents judged access to adequate human and financial resources to be important to very important in the event of a directive being issued. Almost 70% of the inspectorates surveyed, viewed the costs associated with option 2 as important (60% considered this to be very important). However, the level of increased costs would likely differ among MS. The administrative load of MS that already have effective inspection systems in place and a high compliance rate, would not be affected as much.

Pros and Cons for Option 2: Change the RMCEI into Directive

Pros

1. Increased compliance by MS when binding legislation

2. Same standards, regardless of the environmental sector concerned

3. Possible cost savings by integrating different inspection systems and functions

4. Improved communication since every authority in regional and national levels would use the same planning

and structure of inspection activities

5. Feeling of fairness

6. Clear and uniform

7. No consequences for MS that are already implementing RMCEI

8. For compliant firms the increase in enforcement activities would have no effect

9. Creating a level playing field concerning environmental inspection activities

10. Increase effectiveness of inspectors (and potential to increase compliance)

Cons

1. Potential additional administrative costs due to additional staff and growth of administrative burden (minor)

2. Interaction with other environmental directives would be not immediately clear ad could be confusing (e.g.

Seveso, IPPC)

3. Decrease in flexibility in the reaction of MS to changing and to local circumstances

4. The risk of lost flexibility and context based inspections regime

166 According to country specifications the following possess a national monitoring and assessment system: Ireland, Latvia,

Lithuania, Poland, Portugal, Romania and the UK.



Summary

The main effect of Option 2 is to give add legal impetus to the implementation of the RMCEI. It therefore addresses the problem that not all MS, and regions within individual MS, have implemented the RMCEI. The option would probably to lead to improved effectiveness of inspections, affecting especially those MS that are "behind" in the implementation of RMCEI. The option would therefore lead to more even levels of inspection across the EU and thereby reduce the market distortions.

The main costs would be the one-off costs of implementing the recommendations related to planning, execution and reporting. As for the other options, better planning might lead to improved efficiency, which means that the effectiveness of the inspections (quality and frequencies) could be increased without additional resources. 6.6 Option 3: The introduction of inspection obligations into Sectoral

Legislation

Introducing inspection obligations into sectoral legislation could improve the effectiveness and evenness of the specific sector legislation. Strengthening the inspections standards through sector legislation may further even out the inspection and enforcement of EU environmental legislation and help to achieve EU policy and legal commitments. A sector approach would help to adapt the inspection criteria to the specific nature and risks of the installations and activities covered. Other possible advantages of the sector approach include regular and more frequent inspections. The sectoral approach could also strengthen provisions for additional cooperation between the Commission and the MS. This would be useful in areas where more information is needed to close the gap between current and required levels of inspection. In addition, sector provisions may become more stringent and specify legal requirements for transparency and public access to inspection reports. A sector approach should not be viewed as a stand-alone action, but seen in parallel with other Commission measures. The sector approach helps to address specific inspection needs and conditions in a targeted way, and is most likely to be pursued and inspection and control provisions of the Directives to be revised when the Directives are due to be reviewed. This approach may thus have a longer time horizon compared to the other options. Some directives are at a stage of development or have longer review horizons. However the urgency or the range of the environmental problem could make it inappropriate to wait for revision of the inspection provisions to become part of the general review process. One has to be certain that reporting under RMCEI does not overlap with that of the relevant directives and ensure that proper and appropriate reporting is still submitted to the Commission for evaluation of performance and monitoring impact of EU environmental legislation.



6.6.1 Economic impact

It would be difficult to make an assessment of the economic impact of the inclusion of inspection in sectoral legislation. However, there could be some efficiency gains if it were to lead to better planning and coordination of inspection activities and if the criteria to be used for the organisation of inspections could be improved. The initial burden associated with amending the existing legislation would be substantial, as most EU legislation does not contain specific references to inspections167. Amending the legislation could cost as much as €1 million. There would also be costs associated with Council meetings about the amendments and other changes168. Five such meetings with around 50 participants (including interpreters and delegates from 27 MS) with a salary range of €5,500 per month or €275 per working day, would cost up to €68,750. Parliament Meetings of a similar size would also take place, leading to a total cost of approximately €150,000. A small amendment would cost a fraction of what new legislation, but a large number of sectoral regulation texts that would have to be revised and the total administrative cost at EU level could be as high as €5 million. To this should be added the costs of transposing these new texts into national law for those countries that do not have these minimum inspection requirement in their law. In addition, the review and adaptation of the various pieces of legislation would be a lengthy process, thus reducing the positive impact of the option. The administrative burden associated with this option could be substantial, as it would require careful design and regular monitoring. The greatest cost impact of this and most other options, will be born by the public authorities (inspectorates). The IA for a revision of the IPPC Directive in 2007, for instance, calculated the costs for inspectorates. The study assumed an average duration of 3 days of inspections time per installation per year.

This would result in costs of approximately €80 million per year for inspectorates.169 Inspection authorities would thereby face a 10 percent increase in compliance costs, leading to an annual amount of €8 million. Few countries have integrated their inspections. The 2009 EC Seveso Effectiveness Report170 suggests that the integration of inspections may result in a more consistent assessment and may reduce administrative burdens to the operator. At the same time, however, there are significant disadvantages. These included inspections being more time consuming, risk of diluting the inspections and making them less effective. These costs may be mitigated by expanding best practices of coordination of inspections. In another example from 2008, the Commission released a proposal for recasting the Directive on Waste Electrical and Electronic Equipment (WEEE).171 The accompanying IA recognised the absence of minimum requirements for inspections as one of the drivers

167 See Annex on sectoral legislation 168 Impact assessment study on a possible extension, tightening or simplification of the framework directive 92/75 EEC on

energy labelling of household appliances’ 169 EC (2007) Impact assessment for the Directive of the European Parliament and of the council on industrial emissions

(integrated pollution prevention and control) (recast). SEC (2007) 1697 170 The EC Seveso Effectiveness Report prepared by ERM for the EU Commission, 12 October 2009 171 EC (2008) IA for WEEE. SEC(2008)2933



of ineffective implementation of Waste Shipment legislation and estimated the cost of additional burden on business as around €168 000172 per year or a cost of € 84 per site. Costs would increase, in particular for countries with low inspections standards. Enforcement actions were considered to be effective and the level of compliance to have improved significantly in comparison to the BAU situation. The Seveso Directive is an example of where specific inspection criteria have been included in the directive itself. The first version of the Seveso Directive (82/501/EEC) did not include any specific requirements on inspections. As part of a comprehensive review of the directive, specific requirements on inspections were included in next version of the Directive (96/82/EC). The Seveso II Directive specifies in Article 18 that MS shall "insure that competent authorities organize a system of inspections, or other measures of

control appropriate to the type of establishment concerned". The system of inspections is then defined including a minimum inspection frequency for the installations with the highest accident hazard potential, though it allows deviating from that if the CA has undertaken a systematic appraisal of the accident hazards.

There is no impact assessment or similar documented analysis to support an assessment of the background for and impacts of introducing the inspection requirement. It could be reasoned that experiences from the first version of the Directive had revealed the need for clarification about the necessary level of inspection. For example the specific issues and requirements in the Directive might have motivated a clarification of the inspection requirements.

There are several issues that are somewhat specific for this Directive. First, the Seveso Directive does not specifically require a permit or licence to be issued. MS shall prohibit the use of an installation where the necessary measures to prevent major accidents had not been taken. These necessary measures are not defined in detail. Physical measures taken at the installation as well as organisational and management procedures have to be inspected to ensure that the measures needed to prevent major accidents were in place. Furthermore, in many MS several authorities deal with industrial safety. It might include specific health and safety inspectors, environmental inspectors, emergency services and the police. The Directive also includes requirement about information to the public. All these aspects point at a need for more specific inspection requirements to be defined, which is what happened with the adoption of the Seveso II Directive. A review of the Seveso II Directive revealed that MS generally consider the inspection requirements to work well173. No major issues were identified as needing improvements. There is no data that could be used to compare the situation before and after the introduction of the inspection requirements in Seveso II. The reporting on the implementation of Seveso II could support the finding of the 2007 Review that the provisions seem to lead to a high level of compliance. From 2002 to 2008, which is covered by MS reporting, compliance in terms of operator performance has increased slightly. The proportion of inspected installations remained unchanged and the number of

172 EU 27 average, source: Statistics Austria: labour cost survey.

http://www.statistik.at/web_en/statistics/social_statistics/labour_costs/labour_cost_survey/index.html 173 ERM (2009) Seveso II Directive - Study of the Effectiveness of the Requirements Imposed on Public Authorities



reported accidents decreased, while the total number of installations has increased174. This points at a high degree of compliance and that the Directive was having a positive impact on protection. It is difficult to determine how much of this, however, can be attributed to the introduction of the inspection requirements. There is no data on the resource use by CAs on inspection before and after the introduction of the inspection requirements, as a result of which the resource implications can also not be assessed. The new provisions proposed under the revised Seveso II are based largely on RMCEI and the Industrial Emissions Directive. It underlines the importance of making available sufficient resources for inspections, and to encourage information exchange. An example of this at Union level is the current Mutual Joint Visits Programme for inspections. According to the proposal, MS should ensure that competent authorities act in the event of non-compliance with this Directive. A system of inspections, including a programme of routine inspections at regular intervals and non-routine inspections, should ensure effective implementation and enforcement. Where appropriate, inspections should be coordinated with those under other Union legislation. The introduction of minimum requirements into sectoral legislation will also have a levelling effect on the compliance by industry. However, most of the evidence around this issue is based on anecdotal evidence rather than on facts, and it is not possible to quantify this effect.

6.6.2 Social impact

The social impact of this option is difficult to establish, since it involves several pieces of legislation and a complicated process of establishing the new option. It is likely that this option would involve some increases in staff at the level of the regulator. In terms of health, its effect are likely to be positive as more targeted inspections through better programmes or risk based inspections can be carried out.

6.6.3 Environmental impact

The environmental impact of this option will be generally positive. This is subject to the condition that implementation is regularly monitored and that a regular assessment takes placeto verify its effectiveness. A summary of the ‘scores’ for each of the impacts is found in the table below.

174 COM reporting summaries C(2010) 5422 final



Table 6.6 Scores for Option 3


Economic impacts




-


Social impacts




Enhancing the implementation and enforcement of environmental acquis (high = positive) ++

Description of symbols: ++ = positive; + = slightly positive; 0 = neutral; - = slightly negative; -- = negative The potential impacts are scored with plusses and minuses relative the BAU established in the Section 6.3. The next paragraphs explain the rational behind each assessment. First, the administrative costs involved with option 3 are significant both for CAs and the Commission. During negotiation, transposition and implementation, the accumulated costs are expected to the considerable. Also, once implemented, monitoring and reporting demand resources will mainly be done/followed up by national CAs. Second, the costs for companies in the affected sectors may increase. Sectors where inspections have been weak, and/or in MS where inspections regimes have been weak, may suffer more than sectors and countries where inspections are more advanced. Third, option 3 allows for legislation to accommodate sector specific particularities to a large extent. This is expected to lead to increased effectiveness EU-wide and should generate positive effects regarding the uneven implementation (and thus should lead to a more even level playing field). In particular, a sector which falls under option 3 is expected to see a considerable change in the market configuration. Fourth, in the short-term, not many gains in environmental quality can be expected due to the lengthy process expected to negotiation, transpose and implement of new legislation. However, over the long-term, environmental quality could make considerable gains depending on when, what and where the legislation will be included. Similarly to the options already mentioned, gains in environmental quality will lead to health benefits. Finally, due to reasons mentioned above, Option 3 is over the long-term expected to improve compliance considerably in the fields where compulsory inspections are required. Other considerations

Almost 70% of the inspectorates interviewed stated that the costs involved to implement option 3 would be important and linked with increasing administrative burdens (60%



stated this as being very important). Environmental performance was expected to improve but only when proper targeting had taken place. In a survey of inspectorates the majority of respondents (75%) are against sectoral legislation and it is also reflected in the outcome of the survey of environmental and industrial branch organisations where over 50% are against the idea (with some 20% with no opinion). More critical remarks were made about the impractical nature of the option, as the same requirements would be expressed through different legal acts. It would also be more difficult to harmonise, and unnecessarily increase the legislative burden. Environmental and industrial branch organisations interviewed had mixed views about Option 3. Those who reacted positively felt that it would increase effectiveness and compliance, especially in the case of SMEs. Those who reacted more critically, felt that it would further complicate environmental inspections. Increased reporting requirements and regulatory burdens would make it expensive and ineffective.

Table 6.7 Scores for Option 3


Economic impacts




-


Social impacts




Enhancing the implementation and enforcement of environmental acquis (high = positive) ++

Description of symbols: ++ = positive; + = slightly positive; 0 = neutral; - = slightly negative; -- = negative The potential impacts are scored with plusses and minuses relative the BAU established in the Section 6.3. The next paragraphs explain the rational behind each assessment. First, the administrative costs involved with option 3 are significant both for CAs and the Commission. During negotiation, transposition and implementation, the accumulated costs are expected to the considerable. Monitoring and reporting would also demand additional resources. Second, the costs for companies in the affected sectors may increase. Sectors where inspections have been weak, and/or in MS where inspections regimes have been weak, may suffer more than sectors and countries where inspections are more advanced.



Third, option 3 allows for legislation to accommodate sector specific particularities to a large extent. This is expected to lead to increased effectiveness of inspections EU-wide and should generate positive effects regarding the uneven implementation (and thus should lead to a more even level playing field). In particular, a sector which falls under option 3 is expected to see a considerable change in the market configuration. Fourth, in the short-term, not many gains in environmental quality can be expected due to the lengthy process expected to negotiation, transpose and implement of new legislation. However, over the long-term, environmental quality could make considerable gains depending on when, what and where the legislation will be included. Similarly to the options already mentioned, gains in environmental quality will lead to health benefits. Finally, due to reasons mentioned above, Option 3 is over the long-term expected to improve compliance considerably in the fields where compulsory inspections are required.

Pros and Cons for Option 3: Obligations in sectoral legislation

Pros

1. Increased compliance by MS when binding obligation

2. Feeling of fairness

3. Allows to take the differences in requirements and needs in different sectors into account (tailor made legislation)

4. For compliant companies the increase in enforcement activities would have no effects

5. Creating a level playing field concerning environmental inspection activities

Cons

1. Different standards for different environmental sectors concerned (unequal treatment)

2. Potential to lead to increased costs for both regulators and business and poor outcomes

3. Difficulties to implement the multiple pieces of legislation in a consistent, coordinated and logical manner. Further

complications for inspection services

Summary

The introduction of legally binding inspection criteria into sectoral legislation allows for a more precise and targeted approach and would foster the effectiveness of inspections, leading to better allocation of resources and better environmental results. However, transcribing the criteria into different sets of sectoral legislation would be fairly expensive. Also the administrative costs to government and business would be increased. These costs outweigh the benefits that would be generated.



7 Comparing the options

This chapter compares the options analysed in chapter 6. Further, the chapter discusses the possible merits of combining two or more options and in doing so relate the possible options to the process of better regulation and improved compliance. 7.1 How do the options compare

The five tables below summarise the key conclusions from the impact assessment. The table shows how the different options perform in relation to the objectives of the revision and summarises other likely costs and benefits. Lastly, the table identifies important factors that must be taken into account. A key consideration is to avoid double accounting of the benefits and costs considered in each of original sets of environmental legislation. Legislation like the Industrial Emissions Directive or the Waste Framework Directive, considered the benefits and the costs of full compliance. In principle the cost of the inspections needed for full compliance should have been included. The problem is that full compliance has not been achieved and shortcomings in environmental inspections are part of the reason. In that sense the ex-post assessment shows that the original assessments of each piece of legislation have to be adjusted. Additional measures aiming at full compliance should be considered. This study considered the benefit of additional compliance and the additional costs related to each option and shows that an improvement in inspection effectiveness is a prerequisite for increasing compliance levels. The benefit of the additional compliance is the environmental benefits minus the direct (physical) compliance costs.

7.1.1 Comparing the BAU scenario to all the options

One option is not to revise the RMCEI, i.e. the baseline scenario. In that case, the uneven and partial implementation will continue, with some MS complying well with the RMCEI and others less so. Compliance levels will continue to differ among MS and the functioning of the internal market will remain compromised damaged.



There is no consolidated EU27 data about total CA expenditure on inspections. The available data shows many inconsistencies about the number of FTE in each MS. On the basis of a rough calculation it seems that total inspection costs are probably in the region of 500 million to 1 billion EUR per year175. Assuming the once-off costs related to significant effectiveness and efficiency improvements to be 5-10% of the total expenditure, then the amount would be 25 to 100 million EUR176. There is no overview of the missed net-benefits from non-compliance with environmental legislation. Examples from the areas which have been subject to monetised assessments - for example air quality - indicates total net benefits of several billion EUR177. Comparing environmental and health improvements, amounting to billions of Euros, with possible additional administrative costs, amounting to maximally millions of Euros, makes a good case for considering the options identified.

7.1.2 Comparing the options

The operational objectives were: 1. To improve the effectiveness (quality) of the inspections in all EU MS 2. To improve the efficiency of inspections in all EU MS, and 3. To promote co-ordination and knowledge exchange These operational objectives all relate to the specific objective: • To contribute to full and even implementation of environmental regulations in all EU

MS

175 It could be assumed that there are 50 (FTE) inspectors per 1 million inhabitants. Using an annual cost per FTE of around

30000 EUR (annual gross earnings based on Eurostat data is about 22,000EUR and assuming overhead costs etc 30,000

is used) the total costs would be about 750 million EUR per year. 176 There is no estimates of the costs of the applying the recommendations but illustrative considerations about the likely

impact can be made. Improving on the inspection planning and execution regarding plans and procedures are likely to

firstly involve management in the inspectorates etc. If it is assumed that management comprise 10% of the FTE and that they would spend 25% of their time in one year to apply the recommendations then it would amount to 2-3% of the FTEs. To introduce in principles in the daily operations, all employees would need some training. That could be one week per FTE

equivalent to about 2% of total FTE. Though this is speculative, it indicates that reasonable estimate for an organisation change of this kind would be in the order of 5-10%.

177 For example the CBAs of the air quality legislation (e.g. AEA (2010), Cost Benefit Analysis for the Revision of the National

Emission Ceilings Directive).



Table 7.1 Summary conclusions for Sub-Option 1A: Inclusion of all activities covered by EU environmental law into the

scope of the revised RMCEI178

Contribution to

objectives

Other costs and benefits Critical factors

Positive albeit small

contribution through the

positive effects from the

RMCEI into other areas

which can increase

effectiveness and

efficiency in those areas

No contribution to a more

even and full

implementation of the

RMCEI per se

A joint reference document for all EU

legislation enables "economies of scale", the

risk being that a more all-encompassing

document would need to be fairly general or

very specific in order to accommodate the

specifics of the wider spectrum of sectors and

to allow for inclusion of the positive results

already achieved in some areas

The up-front costs of a wider implementing

the RMCEI will depend on the existing

situation in the country and at the EU level

(existence/requirements of inspection

frameworks and their operations)

The definition of terms like

"installation", "inspection",

"inspection authority", etc.

needs to be reworked

Allowance must be made for

considering the wider spectrum

of sector-specific characteristics

Attitude among stakeholders

most positive as regards waste

shipments and less positive as

regards the other directives

Much work has been done

already in other sectors - and

the merits of that must be taken

into account

178 Analysis of four different areas: REACH, Waste Shipments, Nature Portection (Habitats and Birds Directives), and CITES.



Table 7.2 Summary of conclusions for Sub-Option 1B: Further development of criteria for inspection plans and

programmes

Contribution to objectives Other costs and benefits Critical factors

Contributes to more effective and

efficient inspections through a clearer

and common approach with a

strategically framed plan and an

operational programme which incites MS

to seek options to improve efficiency and

effectiveness

More uncertain whether this will

contribute to the move towards more

even and full implementation as it

depends on the ability and willingness in

the MS to act accordingly, and this may

be a more critical challenge to some of

those MS that today are in less

alignment with the RMCEI

More comparable plans and

programmes can contribute to better

experience sharing in particular if they

are combined with evaluations

Up-front costs can occur in MS - the

less aligned they are with the criteria

beforehand, the higher the costs

In the long term, the more strategic

approach will lead to higher efficiency

and effectiveness thus involving cost

reductions.

Still, in some MS where budgets and

skills are particularly critical, the

implementation rate of the revised

recommendation can be low and

long.

Up-take of RMCEI in

inspections regimes is key.

Any Member State may

decide not to take a

revised RMCEI into

consideration.

Table 7.3 Summary of conclusions for Sub-Option 1C: Establishment of a regular reporting system based on the ten

potential indicators identified in the IMEL Brainstorming Project

Contribution to objectives Other costs and

benefits

Critical factors

Will contribute to more effective and

efficient inspections to the extent that

lessons learned are used and built

upon in the individual MS. Also if efforts

are made to gather and compile

indicators across countries that can

support experience sharing and hence

stimulate sharing of best practices

These effects are however quite

indirect and their materialisation

depend on the buy-in and competences

within individual MS

Thus, this option may not in itself lead

to significant contributions to a more full

and even implementation of the RMCEI

Having defined the

indicators, MS may

have to invest in

systems for gathering

and compiling the

necessary data. MS

that have such systems

may need to adapt their

systems

To stimulate the harvesting of benefits

from this revision in may be beneficial to

generate a stimulus through e.g.

organising regular joint compilation of

results and consequent experience

sharing events - e.g. through IMPEL or

through COM

The IMPEL study suggested indicators

and pointed to the difficulties inherent in

identifying good indicators. Efforts are

needed to develop relevant indicators -

where a stronger focus on these

indicators can assist to enhance

efficiency and effectiveness and stimulate

experience sharing



Table 7.4 Summary of conclusions: Option 2: Transformation of Recommendation 2001/331 into a Directive

Contribution to

objectives

Other costs and benefits Critical factors

Contribute to the specific

objectives of more even

and full implementation

through the legal push

which would invoke on MS

to increase effectiveness

of inspections.

If the legal push is

responded to, this will

necessitate a focus on

efficiency of inspections in

order to control cost

implications

By the same argument, it

will stimulate the demand

for experience sharing and

best practices to be

inspired by

Will have the largest cost implications that will

be unevenly distributed:

Less advanced MS will experience the highest

initial costs of implementation. May be argued

that cost saving potential is also larger in these

MS if the low implementation reflects a current

lack of resources and low priority.

The more advanced countries may experience

smaller costs per se, however, if their current

systems and advances are not properly taken

into account they may experience cost

increases due to the need to implement

changes that are solely motivated in the

Directive and does not provide any additional

gains - and in the worse case: loss of current

benefits if they as a result of the Directive go

back from the current level of ambition.

Lastly, this study indicates that costs to industry

of inspections are not excessive, but in this

regard, the possible impacts on SMEs can be

significant

Most be framed in a flexible

manner that accommodates

all the major steps forward

that the more advanced MS

have taken

Views on this among

stakeholders vary - some

argue for a Directive (exactly

because the legal push is

expected to generate higher

political and financial

momentum for the issue)

whereas others appreciate

the flexibility and voluntary

nature that the RMCEI has

today

The move towards a Directive

will be a long and

complicated process that

necessitates inter-service

consultations and stakeholder

dialogues.

Table 7.5 Summary of conclusions: Option 3: Introduction of inspection obligations into sectoral legislation

Contribution to objectives Other costs and benefits Critical factors

Will contribute to more even and

full implementation through the

legal push it provides in relation

to each sector legislation being

amended.

If the specific content within

each sector is aligned along the

same principles (those of the

RMCEI) there may be some

efficiency gains. In areas where

current legislation is fairly weak

as regards inspections it can

enhance the effectiveness of

inspections

Costs will be significant for CA,

the Commission and

companies

Will be a complex and lengthy process as

it will most likely come to constitute part

of an "overall" revision of the Directives in

question.

It will be a challenge to ensure that the

contents of the RMCEI and the

specifications of each relevant piece of

legislation are properly aligned and are

relevant and appropriate within each

piece of legislation while still maintaining

those common aspects that would deliver

on the cost-effectiveness ambition



The three options work on different dimensions of a possible change: • Option 1A and option 3 seek to expand the application of the RMCEI by integrating

the principles of the RMCEI into sectoral legislation or by increasing the scope of the RMCEI. In both cases the challenge is to ensure the relevance of RMCEI for each of the "new" sectors and existing criteria, if any, while simultaneously maintaining the concreteness of the RMCEI’s provisions. However, expanding the scope does not in itself contribute significantly to fuller and more even implementation. The results will come indirectly and from the effects on the "new" sectors.

• Option 2 and option 3 both seek to change the legal status of the contents of the

RMCEI; by making the RMCEI legally binding, or by integrating its principles into relevant other EU legislation. A legislative process is complex, resource demanding and time consuming and may have the unintended consequence of slowing down national initiatives, as there will be a tendency to wait for the EU legislation and seeking to contribute to this process. However, these options are likely to provide the largest benefits in relation to even and full implementation of the RMCEI. Thus, they will in the longer term deliver on all the objectives. They will also result in substantial costs, especially for less-aligned MS. Further, in developing this option care must be taken not to complicate or slow down legislative developments in more advanced countries. Less affluent and generally less compliant parts of Europe will probably benefit more from legislative action, but will also incur more costs. Administrations and industries will be affected, particularly the SMEs.

• Option 1B and option 1C delivers results through improvements of the contents of the

current RMCEI. The benefits and costs of this will depend on the extent to which MS take the improvements on board. The improvements will implicitly provide incentives to detect and use measures to improve on efficiency and effectiveness. MS whose systems already more or less align with the suggested improvements will incur little costs and benefits, whereas MS that are only in little compliance with the suggested improvements may need to undertake substantial up-front costs at the administrative level. These costs can however be expected to be (more than) outweighed by future benefits and cost savings from better efficiency and effectiveness. A major challenge inherent in these options is the voluntary nature of the RMCEI. The options may thus not in themselves contribute to improvements in all countries and hence to a fuller and more even implementation.

7.2 The way forward

This analysis has explored the potential impacts of a series of plausible options that cover the three key areas and sub-areas for action, most of which may be combined. It suggests that a wide range of potentially effective options are available corresponding to various levels of ambition. There are important arguments in favour of revising the RMCEI. If the RMCEI remains unchanged, it is not likely that the current pattern will change substantially in the future, and the EU will continue to have a low level of compliance with key environmental



directives contrary to the purpose of the legislations and the wider EU policies. Some improvements might take place over time supported in particular by the activities of IMPEL, the pace of which may however be threatened by a possible lack of sufficient political priority, skills and resources. Having identified, analysed and compared different options for taking action, it can be concluded that the options work differently, and hence contribute in different ways to an improvement of this situation. It could be assumed that the options that will provide the largest benefits are also those that will involve the largest costs. If however, the aspiration is to take a big leap forward in improving inspections in EU and in enhancing the implementation of the RMCEI, a move towards a more legally binding set-up should be aimed at. The legally binding nature will generate a push towards more even and full implementation; a push that is stronger than additional or improved voluntary measures. Considering the need for a legal push in MS to prioritise inspections – while maintaining flexibility in implementation – a combination of options may be favourable. Option 2 and 3 both hold the potential to provide this necessary legislative push. Option 2, to adopt a new Directive, would have positive implications in terms of timing and costs incurred on CAs and the Commission. However, a key question regarding feasibility remains. The current implementation of inspections in MS constitutes a patch-work of methodology including frequency, reporting, targeting-approaches and indicators. Furthermore, our report has shown how different legislation has specific demands depending on type of activity to be inspected. To cover these specificities and accommodate regional difference in history of inspections and cultural aspects, may be difficult in an one all-encompassing Directive as suggested in option 2. Instead, option 3, which allows for more targeted and sector specific aspects to be included, may hold more potential to better target the different sectors. Moreover, inspections regimes in several MS should benefit from increased effectiveness and efficiency by improving strategic planning, digitalisation, target-based approaches and training. These aspects are covered in sub-option 1B. A combination of option 3 and sub-option 1B may be effective. It would provide the legal push needed, while allowing for specific contexts of different legislation to be accommodated. By improving planning and management, as described in sub-option 1B, inspections once implemented would benefit from efficiency and effectiveness gains. Ultimately this would contribute to full implementation of environmental legislation and a more even playing field in Europe.



Annexes

• Annex 1 Bibliography • Annex 2 Results from Interviews and Surveys • Annex 3 Case Studies • Annex 4 Sectoral Environmental Legislation and Relevant Non-legislative acts



Annex 1 Bibliography



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Report No. 2007/7, Lisbon, Portugal. IMPEL (2009). Practical Application of Better Regulation Principles in Improving the

Efficiency and Effectiveness of Environmental Inspection Authorities IMPEL (2010). Better Regulation Checklist (Checklist to assess practicability and

enforceability of legislation



IMPEL (2010) Developing performance indicators for environmental inspection systems. Project Report, 2009/03.

IMPEL (2011) Exploring qualitative and quantitative assessment tools to evaluate the

performance of environmental inspectorates across the EU INECE (2009) Principles of Environmental Compliance and Enforcement Handbook,

Second edition

Karamat, A. (2008), Brainstorming on an IMPEL Project to develop performance

indicators for environmental inspectorates, Final Report No. 2008/03, IMPEL Clermont Ferrand, France.

OECD (2004). Case study on the reform of environmental self-monitoring in Estonia. EAP task force. OECD (2005) Funding Environmental Compliance Assurance. Lessons Learned from

International Experience OECD (2007). Technical guide on environmental self-monitoring in countries of Eastern

Europe, Caucasus, and Central Asia

Websites

http://www.bbc.co.uk/news/world-europe-11481740 http://www.bndestem.nl/algemeen/brabant/7957716/Chemie-Pack-en-Moerdijk-onder-

druk.ece www.ec.europa.eu/environment/greenforce http://ec.europa.eu/environment/cites/legislation_en.htm http://ec.europa.eu/environment/impel/pdf/06shortoverview.pdf http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A4-

1999-0251+0+DOC+XML+V0//EN&language=EN http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+OQ+O-2008-

0085+0+DOC+XML+V0//EN&language=EN http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-

//EP//TEXT+MOTION+B62008-0580+0+DOC+XML+V0//EN&language=EN www.impel.eu http://impel.eu/cluster-3/key-projects



http://www.inece.org/conference/7/vol2/56_Klein.pdf. http://www.infomil.nl/english/subjects/inspection-and/doing-the-

right/2_minimum_criteria/2_1_content_of_the/ http://www.ivl.se/nyheter/startsidenyheter/minskadkostnadforegenkontrollochokadmiljon

ytta.5.15c2317a1266994794c80003908.html http://redsludge.bm.hu/ http://www.statistik.at/web_en/statistics/social_statistics/labour_costs/labour_cost_survey

/index.html



Annex 2 Stakeholders, Questionnaires and Interview Guidelines



Stakeholders approached for this study

Type of organisation Organisation Country Type of contact

Government department,

agency or inspectorate

Umweltbundesamt - Environment

Agency Austria

Austria Questionnaire



Umweltbundesamt - Environment

Agency Austria

Austria Interview



Department Env. Inspections LNE

Flemish gov’t

Belgium Questionnaire



Ministry of Agriculture, Natural

Resources and Environment

Cyprus Questionnaire



Ministry of Agriculture, Natural

Resources and Environment

Cyprus Interview



Department for International

Cooperation

Czech Republic Questionnaire



Department for International

Cooperation

Czech Republic Interview



Danish Environmental protection

Agency, Industry & Agriculture

Denmark Questionnaire



Danish Environmental protection

Agency, Industry & Agriculture

Denmark Interview



Estonian Environmental Inspectorate Estonia Questionnaire



Estonian Environmental Inspectorate Estonia Interview



Ministry of the Environment/

Environmental Protection Department

Finland Interview



Ministry of ecology, energy,

sustainable development

France Interview



Federal Ministry of the Environment Germany Questionnaire



Ministry of Environment, Physical

Planning and Public Works

Greece Questionnaire



National Inspectorate for

Environment and Water, Ministry for

Environment and Water

Hungary Questionnaire



Environmental Protection Agency Ireland Questionnaire



Agenzia per la Protezione

dellÁmbiente e per i Servizi Tecnici

(APAT)

Italy Questionnaire



Istituto Superiore per la Protezione e

la Ricerca Ambientale

Italy Questionnaire



Ministry of Environment (and ISPRA

(Gasparrini national IMPEL

coordinator, head of division))

Italy Interview






Ministry of Environment Latvia Questionnaire



State Environment Service Latvia Interview



Lithuanian State Environmental

Inspectorate

Lithuania Questionnaire



Environmental Protection Directorate

Malta Questionnaire



Inspectorate of the Netherlands

Ministry of Housing, Spatial Planning

and the Environment

Netherlands Questionnaire



Inspectorate for Environmental

Protection

Poland Questionnaire



Environmental and Spatial Planning

General Inspectorate, Ministry of

Environment and Territorial Planning

Portugal Questionnaire



Ministry of Environment and

Territorial Planning Environmental

Inspectorate

Portugal Interview



National Environmental Protection

Agency

Romania Questionnaire



National Environmental Guard Romania Interview



Slovak Inspection of the Environment Slovak Republic Questionnaire



Conselleria de Medio Ambiente e

Desenvolvemento Sostible

Spain Questionnaire



Comunidad Autónoma de la Región

de Murcia Dirección General de

Planificación, Evaluación y Control

Ambiental

Spain Questionnaire



n.a. Spain Castilla y Leon Questionnaire



Directorate of Environment Protection UK Questionnaire



Environment Agency UK Questionnaire

Industry Name is known Belgium Questionnaire

Industry Name is known EU-wide Interview

Industry Name is known Austria Questionnaire

Industry Name is known France Questionnaire

Industry Name is known Poland Interview

Industry Name is known Germany Interview

Industry Name is known Poland Interview

Industry Name is known Sweden Interview

Industry Name is known Germany Interview

Industry Name is known Netherlands Interview




Industry Name is known Portugal Interview

Industry Name is known Greece Interview

Industry Name is known Belgium Interview

Industry Name is known Belgium Interview

Industry Name is known Netherlands Questionnaire

Industry Name is known Bulgaria Questionnaire

Industry organisation Austrian Federal Economic Chamber Austria Questionnaire

Industry organisation Essencia, branch organization for

chemical companies

Belgium Interview

Industry organisation Agoria Belgium Interview

Industry organisation SteelBel, branch organization for

steel companies

Belgium Interview

Industry organisation UNIZO Belgium Questionnaire

Industry organisation Danish Chambers of commerce Denmark Interview

Industry organisation Procesindustriens, branch

organization for chemical companies

Denmark Interview

Industry organisation Eurometaux EU-wide Questionnaire

Industry organisation Wirtschaftsvereinigung Stahl, branch

organization for steel companies

Germany Interview

Industry organisation ASSOELETTRICA Italy Questionnaire

Industry organisation Chamber of Craft and Small

Business of Slovenia

Slovenia Questionnaire

Industry organisation Pimec, Employers Association of

Small and Medium Sized Enterprises

Spain Questionnaire

Industry organisation Företagarna Sweden Questionnaire

Industry organisation Association of Electricity Producers UK Questionnaire

Industry organisation CBI / University of Edinburgh UK Questionnaire

(E)NGO Vitosha Nature park Bulgaria Questionnaire

(E)NGO Federation of Environmental and

Ecological Organisations of Cyprus

Cyprus Questionnaire

(E)NGO ClientEarth EU-wide Questionnaire

(E)NGO Ellet Greece Questionnaire

(E)NGO EMLA Hungary Questionnaire

(E)NGO PRO Hedge Laying Association Ireland Questionnaire

(E)NGO The FIG Ireland Questionnaire



Questionnaires and Interview Guides

Questionnaire for Government Authorities (February 2010)

Section I: Current RMCEI implementation & practical challenges on the ground

1) Does the environmental inspections system in your country work well?

Yes No No opinion

If not, what do you see as the main problems? (open answer)

2) In your opinion, what kind of measures should be taken at national and EU level

to improve the effectiveness of environmental inspections? (open answer)

3) Does your country have a national co-ordination of the environmental inspection work?

Yes No

If YES, please provide the name of the organisation and briefly describe its work.

(open answer)

4) Are the obligations to give access to information to the public on inspection plans and inspection reports well implemented in your country?

Yes No I don’t know

If NO, what are the main problems in this area? (open answer)



5) What kind of legally binding requirements regarding the professional qualification and training of inspectors are currently included in the legislation of your country? (open answer)

6) Are you satisfied with the Recommendation 2001/331/EC as it is formulated now?

Yes No No opinion

Or should it be modified, completed or extended?

Agree Disagree No opinion

Please provide comments, reasons, etc. (open answer)

7) If the RMCEI should be extended/completed/modified, which points should be added? (please tick boxes and explain / multiple responses possible)

Definitions should be clarified. (Please explain / elaborate)

More emphasis on planning activities.

(Please explain / elaborate)

Currently fine as a management tool, no points need to be added.

(Please explain / elaborate)

Other, please specify.

(open answer)

8) Are the investigation powers of inspectors under your national legislation enough to enable them to carry out effective inspections?

Yes No No opinion



What kind of other investigation powers could be useful and necessary?

(open answer)

9) Are the RMCEI criteria for organizing, carrying out, and following up adequate to ensure effective environmental inspections?

Yes No No opinion

If NO, which additional criteria should be added?

(open answer)

10) Should criteria for proactive non-routine site visits be developed and included in the legal framework on environmental inspections?

Yes No No opinion

(open answer)

Section II: Scope and Definitions of the RMCEI

11) Should definitions used in the RMCEI be clarified? Yes No No opinion

If YES, which definitions?

(open answer)

12) The RMCEI should cover all environmental monitoring activities aimed at the promotion of compliance of installations (e.g. self-audit requirements by installations) instead of only covering inspections.

Agree



Disagree No opinion

What is the value-added?

(open answer)

What are the (cost) implications in your opinion?

(open answer)

Other remarks (open answer)

13) With this question we would like to ask you whether the Directives and

Regulations listed in the table below should be included in the scope of the RMCEI. (please tick boxes for each row and provide reasons)

Directive /

Regulation

Please tick

the

appropriate

box

Please provide reasons WHY you agree/disagree. This could include

reflections on the following: What is the value-added? What are the

(cost) implications? Etc.

Waste

Shipment

Directive

Agree

Disagree

No opinion

Habitats

and Birds

Directive

Agree

Disagree

No opinion

CITES

Regulation

Agree

Disagree

No opinion

REACH

Regulation

Agree

Disagree

No opinion

SEVESO

II

Directive179

Agree

Disagree

No opinion

VOC

solvents

Directive

Agree

Disagree

No opinion

IPPC Agree 179 Please note that an inclusion of the SEVESO II Directive in the RMCEI would not negate the provisions on monitoring

already provided under Article 18 of the SEVESO II Directive. Requirements would be additional/complementary to the

already existing ones.



Directive180 Disagree

No opinion

Please list any other remarks here.

(open answer)

14) Should the specific criteria describing how to elaborate inspection plans and

programmes be further developed/modified/simplified?


Please provide reasons or suggestions.

(open answer)

15) What would be the added value of a possible inclusion of an additional paragraph regarding the criteria for inspection plans as proposed by IMPEL? Are there other appropriate criteria to be included?

(open answer)

Section III: National evaluation systems and reporting system to the EC

16) Does your country have an evaluation system (with performance indicators) for

the monitoring and assessment of environmental inspection work at national level?


If YES, please briefly describe the main features of this evaluation system and what works well / doesn’t work well. (open answer)

180 Please note that an inclusion of the IPPC Directive in the RMCEI would not negate the specific binding criteria for inspections

already made under the proposal for a new IPPC Directive. Requirements would be additional/complementary to the




17) Does your country use a systematic approach (for example with reliable performance indicators) for reporting inspection work to the European Commission?


If YES, please briefly describe the main features of this reporting system and what works well / doesn’t work well. (open answer)

18) Do you consider the RMCEI to be a satisfactory mechanism for assessing the effectiveness of inspection systems in Member States?

Yes No No opinion

Please provide reasons or suggestions. (open answer)

19) Is it necessary to establish a new reporting system based on indicators identified in the IMPEL 2008 report on ‘Brainstorming on an IMPEL project to develop performance indicators’? These indicators are:

INPUT INDICATORS OUTPUT INDICATORS OUTCOME

INDICATORS � Number of installations

� Number of installations covered

by the plan/year

� Number of inspectors

� Number of complaints received

relating to installations

� Staff time per installation

inspected

� Number of planned

inspections carried out versus

total planned inspections

� Number of site visits

� Number of non routine

inspections

� Number of complaints dealt

with

� Number of

compliant / non

compliant

installations





20) Are these IMPEL indicators SMART181?



21) In practice, are other indicators than those listed by IMPEL used in your country? Yes No I don’t know

If YES, please briefly describe these additional indicators and their advantages. (open answer)

22) Would the specific reporting requirement (i.e. a new system based on the

indicators identified in the Brainstorming projects) be cost-effective when compared to the current system under RMCEI?



Section IV: Legal form of the RMCEI

23) Should the EU replace the Recommendation with a legally-binding horizontal

Directive on environmental inspections? Yes No No opinion


181 The indicator has a Specific purpose, it is Measurable, the defined norms have to be Achievable, Relevant to measure

(and thereby to manage) and it must be Time phased, which means the value or outcomes are shown for a predefined and

relevant period



(open answer)

24) What in your opinion would be the major benefits, costs and changes in terms of cost-effectiveness of such a horizontal Directive?

Benefits (open answer) Costs (open answer) Cost-effectiveness (open

answer)

25) What will be the most important effects of such a transformation of the Recommendation into a horizontal Directive in terms of employment, investments needed, administrative burden, competitiveness of various industry sectors, etc.?

How important do you consider the effects in terms of:

Employment very important important

of minor importance not

important

(additional

clarification/comments)

Types of investments

needed (and costs

involved)

very important important


important

(additional


Administrative burden very important important


important

(additional


Level of compliance with

environmental legislation



important

(additional


Effectiveness of inspections very important important


important

(additional


Competitiveness of various

industry sectors



important

(additional


What other socio-economic consequences do you see as likely to occur?

(open answer)

Describe in more detail which effects would be the most important in your opinion and why? (open answer)



26) Should the EC replace the Recommendation with legally-binding inspection requirements in sectoral legislation?

Yes No No opinion


27) What in your opinion would be the major benefits, costs and changes in terms of cost-effectiveness of such a replacement of the Recommendation with legally binding inspection requirements in sectoral legislation?


answer)

28) What will be the most important effects of such a replacement with legally-

binding inspections requirements in sectoral legislation in terms of employment, investments needed, administrative burden, competitiveness of various industry sectors, etc.?




important

(additional



needed (and costs

involved)



important

(additional




important

(additional






important

(additional




important

(additional



industry sectors



important

(additional




What other socio-economic consequences do you see as likely to occur? (open answer)


29) Should the Recommendation be complemented by legally binding requirements

in sectoral directives? Yes No No opinion


If YES, what are the most relevant sectors to include such complementary legally binding requirements? (open answer)

30) What in your opinion would be the major benefits, costs and changes in terms of cost-effectiveness of complementing a revised Recommendation with legally binding inspection requirements in sectoral legislation?


answer)

31) What will be the most important effects of such a revised Recommendation complemented by legally binding requirements in sectoral directives in terms of employment, investments needed, administrative burden, competitiveness of various industry sectors, etc.?




important

(additional



needed (and costs



(additional




involved) important



important

(additional






important

(additional




important

(additional



industry sectors



important

(additional


32 What other socio-economic consequences do you see as likely to occur?

(open answer)




Questionnaire for Private Sector and NGOs (February 2010)

Organisation information

1) What type of organization do you represent?

(E)NGO Industry subject to environmental inspections Branch organisation for industry subject to environmental inspections Environmental inspectorate Non-inspecting environmental government agency Other, namely

2) What country/region is your organization active?

Section I: Current RMCEI implementation & practical challenges on the ground

Please answer all the questions below only for the country/region your organization is active in.

3) Does the environmental inspections system in your country/region work

well?

Yes No No opinion

If YES, what do you see as the main strengths?

If NO, what do you see as the main problems?

4) Which factors currently restrict the effectiveness or efficiency of the

environmental inspections system in your country/region?

Budget

Personnel



Administration Requirements

Reporting Requirements

Unclear Definitions in RMCEI

Lack of enforcement/sanctioning mechanism

Other areas where you face challenges, please specify.

5) In your opinion, what kind of measures should be taken at national and EU

level to improve the effectiveness of environmental inspections?

6) In your opinion, are you satisfied with the cooperation between local,

national and EU level authorities?

Yes No

If NO, please specify what went wrong in the past, what should be improved and how?

7) Are the obligations to give access to information to the public on inspection

plans and inspection reports well implemented in your country?


If NO, what are the main problems in this area?

8) Is the level of professionalism of the environmental inspectors sufficient, or

is more training required?




If NO, what are the main problems in this area?

Section II: Scope and Definitions of the RMCEI

9) Should definitions used in the RMCEI be clarified?

Yes No No opinion

If YES, which definitions?

10) With this question we would like to ask you whether the Directives and

Regulations listed in the table below should be included in the scope of the

RMCEI. (please tick boxes for each row and provide reasons)

Directive /

Regulation

Please tick

the

appropriate

box

Please provide reasons WHY you agree/disagree. This could include

reflections on the following: What is the value-added? What are the

(cost) implications? Etc.

Waste

Shipment

Directive

Agree

Disagree

No opinion

• Value-added:

• Cost Implication:

Habitats

and Birds

Directive

Agree

Disagree

No opinion

• Value-added:


CITES

Regulation

Agree

Disagree

No opinion

• Value-added:


REACH

Regulation

Agree

Disagree

No opinion

• Value-added:


SEVESO

II

Directive182

Agree

Disagree

No opinion

• Value-added:


VOC

solvents

Agree

Disagree

• Value-added:


182 Please note that an inclusion of the SEVESO II Directive in the RMCEI would not negate the provisions on monitoring

already provided under Article 18 of the SEVESO II Directive. Requirements would be additional/complementary to the




Directive No opinion

IPPC

Directive183

Agree

Disagree

No opinion

• Value-added:


Please list any other remarks here.

11) The RMCEI should cover all environmental monitoring activities aimed at

the promotion of compliance of installations (e.g. self-audit requirements by

installations) instead of only covering inspections.


What is the value-added?

What are the (cost) implications in your opinion?

Other remarks

12) Should the specific inspection plans and programmes be further

developed/modified/simplified?



13) What would be the added value of a possible inclusion of an additional

paragraph regarding the criteria for inspection plans as proposed by

IMPEL? Are there other appropriate criteria to be included?

183 Please note that an inclusion of the IPPC Directive in the RMCEI would not negate the specific binding criteria for inspections

already made under the proposal for a new IPPC Directive. Requirements would be additional/complementary to the




Section III: National evaluation systems and reporting system to the EC

14) What do you (or your members) notice in terms of administrative load of the

reports inspectorates have to write for their internal evaluation?

15) How could the administrative load be lowered, without increasing the risk

for environmental damage?

16) Do you have any indication that these evaluations effect the inspections, or

resulted in different inspection policy? Please describe.

Section IV: Legal form of the RMCEI 17) Should the EU replace the Recommendation with a legally-binding

horizontal Directive on environmental inspections? (This would imply standardized inspection procedures and sanctions while taking into consideration the subsidiarity principle.)

Yes No No opinion

Please provide reasons or suggestions WHY you think so.

18) What would be the effect of transforming the recommendation into a

horizontal directive in terms of: a) effectiveness of inspections Effect?

b) compliance with environmental legislation Effect?

c) administrative burden Effect?

d) competitiveness of various industries Effect?




Describe in more detail which effects would be the most important in your opinion and why?

19) Should the EC replace the Recommendation with legally-binding inspection

requirements in sectoral legislation? (This implies separate legislation for various sectors of inspection.)

Yes No No opinion


20) What would be the effect of replacing the Recommendation by a sectoral

legislation in terms of: a) effectiveness of inspections Effect?






21) Should the Recommendation be complemented by legally binding

requirements in sectoral directives?

Yes No No opinion




If YES, what are the most relevant sectors to include such complementary legally binding requirements?

22) What would be the effect of complementing the Recommendation by a

sectoral legislation in terms of: a) effectiveness of inspections Effect?








Interview Guideline for Private Sector (August 2010)

Q1. Can you give an estimate of the number of people in the company dealing specifically with environmental issues? Either in numbers, in % or in relative changes (e.g. substantially more/less, small

increase/reduction, the same)

2004 2005 2006 2007 2008 2009 2010

•

•

•

• • • • • •

Trends by type of activity

Q2. What is your explanation for the changes?

(e.g. more stringent national regulation/laws, more pressure from public opinion, marketing issue)

Q3. How do you see this developing in the near future?

In terms of personnel, training, inspection visits, etc.

Q4. How do these changes (both in the past and in the future) translate in terms of costs?

e.g. in % of total turnover, and/or by type of activity (training of personnel, setting up new procedures, working



with inspection agencies, monitoring, etc.)

Q6. Has the number of environmental inspections your company has received changed over the last years? Either in numbers, in % or in relative changes

2004 2005 2006 2007 2008 2009 2010

•

•

•

• • • • • •

Additional comments

Q5. An inspection regime has a direct impact on your business in terms of time and efforts. However, the regime also has an indirect impact on your organisation in terms of training, additional monitoring and reporting, changing procedures, etc. Can you put figures on both these aspects?

Trends from 2004 to now and into the future

Q7. Do you have an explanation for the changes?



Q8. Have you seen changes in the organisation and the quality of the inspections of the last 6 years? (e.g. more collaboration, self monitoring and submission of reports, better quality of inspectors, less lengthy inspection procedures/visits)

There is usually more than one agency authorised to carry out environmental inspections. Q9: Is it your impression that these agencies coordinate their work? And how has this developed over the last 6 years?



Additional questionnaire for Government Authorities (December 2010)

1) Are you satisfied with the Recommendation 2001/331/EC as it is formulated now?

Choose a score between 1 and 5

1. the Recommendation is not effective and needs complete overhaul/revision

2 the Recommendation is not very effective and needs major changes

3. the Recommendation works reasonably well, but some changes needed

4. the Recommendation works well, only minor changes needed

5. the Recommendation works well, is very useful and no changes needed

Please provide comments on what problems you see with the Recommendation and how it could be improved

2) Please provide some information on the inputs and outputs of inspection services?

Inspection

staff (fte)

Total

budget

(€)

•

Number of

controlled

installations

Number of

inspected

installations

Number of

installations

Total

inspection

time in

years

Complaints Complaints

dealt with

Number

of

sanctions

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010



3) What will be the most important effects of such a transformation of the Recommendation into a horizontal Directive in terms of manpower requirements, investments needed, administrative burden on companies, etc.?

Employment

(number of fte)

very important

important

of minor importance

not important

Types of

investments

needed

(costs involved)

very important

important

of minor importance

not important

Administrative

burden

very important

important

of minor importance

not important

Level of compliance

with environmental

legislation

very important

important

of minor importance

not important

Better coverage very important

important

of minor importance

not important

Increased compliance very important

important

of minor importance

not important

4) What other socio-economic consequences do you see as likely to occur?

5) Describe in more detail which effects would be the most important in your opinion

and why?

6) What will be the most important effects when RMCEI will be revised and the scope would be enlarged to include other environmental legislation (like the waste-shipment, habitats and birds, CITES, and REACH)?

Employment very important



(number of fte) important

of minor importance

not important

Types of

investments

needed

(costs involved)

very important

important

of minor importance

not important

Administrative

burden

very important

important

of minor importance

not important

Level of compliance

with environmental

legislation

very important

important

of minor importance

not important


important

of minor importance

not important


important

of minor importance

not important


8) Describe in more detail which effects would be the most important in your opinion

and why?



9) What would be the impacts of a possible introduction of specific binding inspection criteria into sectoral environmental legislation in terms of effectiveness of inspections and compliance with environmental legislation as well as regarding costs and administrative burden? Under this option we analyse whether the introduction of more concrete legally

binding inspection criteria (in general supplementary to the RMCEI) could help to

improve the effectiveness of inspections (taking into account previous experience, e.g.

with the Seveso Directive which includes such requirements since 1996). The

introduction of specific inspection requirements could be done through amendment of

already existing legislation but also through adoption of new legislative acts.

Employment

(number of fte)

very important

important

of minor importance

not important

Types of

investments

needed

(costs involved)

very important

important

of minor importance

not important

Administrative

burden

very important

important

of minor importance

not important

Level of compliance

with environmental

legislation

very important

important

of minor importance

not important


important

of minor importance

not important


important

of minor importance

not important




11) Describe in more detail which effects would be the most important in your opinion and why?

12) What would be the conditions for the success of this sectoral approach



Annex 3 Case Studies



Case Studies

Summary

Each case study is structured around three main topics:

1. Institutional context: This section describes the institutions responsible for environmental inspections in the member state as well as the division of competences concerning environmental inspections.

2. Inspections: This section describes the type of inspections executed by the environmental inspectorate, the presence and structure of inspection plans, the results of site visits, and a selection of performance indicators when available.

3. RMCEI implementation: This section describes the impact of RMCEI on the member state and discusses, if possible, the level of implementation.

The following six member states are studied in the case studies:

- Belgium: Federal government, Flemish Region and Walloon Region, - Bulgaria, - Denmark, - Poland, - Spain: National level, Basque Autonomous Community and Autonomous

Community of Navarra, and - United Kingdom.

To allow for better comparison of the best practices and specific problems in these member states, we briefly describe per topic our most salient findings. Institutional context

In each investigated member state, environmental inspections were at the national or regional level in the area of responsibility of the ministry of environment (or a comparable ministry). Sometimes the ministry has set up a separate entity to plan and execute environmental inspections, and sometimes it keeps the environmental inspectorate under its own roof. Furthermore, inspections can also fall under the responsibility of the ministry of agriculture and/or the ministry of health when inspections involve consumer safety.



Institutions involved in environmental inspection activities

In each member state inspection activities are implemented by a variety of institutions at national, regional and local level. However, the division of competences and responsibilities can be more or less decentralized. Level of decentralisation

The main difference between member states regarding the institutional context is the level of decentralisation. On the one hand, Denmark knows a high level of decentralisation since individual municipalities are responsible for environmental inspections. On the other hand, the inspection system in Poland and Bulgaria is essentially the responsibility of the national government. Also the constitutional set-up of a country has its influence on the inspection system. Countries with a federal system have devolved the inspection to the regions; see, for instance, Belgium, Spain and the UK. A high level of decentralisation can result in substantial differences between regions, depending on the level of federal coordination. The inspection systems in the regions of Spain are completely different, as Spain lacks a strong federal coordinating body. Belgium also lacks national coordination of regional inspection strategies, which can lead to marked regional differences in inspection practices. The governance structure in the UK has resulted in a very complicated system, with a lot of institutions responsible for minor parts of the inspection activities. However, a stronger UK government has ensured a large degree of coherency in terms of policy (implementation) across the regional entities. The main advantage of a decentralised approach is that it allows for more effective inspection practices. The short lines of communication between companies and inspectorates allow for high levels of trust, which could minimize the inspection burden by making the inspections more effective. On the other hand, besides the coordination problems described above, a big disadvantage of decentralisation is that environmental inspections might be more easily subject to budget cuts. Every inspectorate we investigated stated that it was unable to deliver optimal results due to resource constraints. As local governments have a much lower incentive to provide adequate environmental inspections than national authorities, the danger of insufficient monitoring is more likely in a decentralized inspection system. Denmark has solved this by authorizing the DEPA to take the role of coordinating authority. The DEPA sets minimum standards and issues guidelines to the local inspectorates. It is unknown if the increased effectiveness of inspection practices weights against the increased coordination costs. Key message

Environmental inspections are typically executed, coordinated and managed by multiple institutions at various levels. Several member states show a substantial level of decentralisation concerning the division of competences and/or the execution of inspections. Thus, the implementation of minimum criteria for environmental inspections is likely to be affected by coordination and communication problems between institutions and authorities.



Inspections

In all member states studied, environmental inspectorates have basically the same competences. They can carry out planned, routine inspections as well as ad-hoc, non-routine inspections, have full access to facilities, and have the right to take samples. Member states, however, differ on the level of communication directed to companies and the general public. Inspection plans and inspection reports

According to the RMCEI, the inspection cycle should start with an inspection plan. Most member states seem to have an inspection plan, but not all authorities publish it online. Bulgaria is an exception since it publishes every annual plan for every authority online. Other countries are less consistent: for instance, the Flemish Region in Belgium publishes its inspection plan, but the Walloon Region does not. However, inspection plans always available upon request. The same holds for inspection reports: they are rarely available on the internet, but are usually available upon request. Especially north and east Europe have a good track record on the availability of inspection plans and reports. For certain regions in Spain and the Walloon region in Belgium it is unclear whether they (still) make plans and reports. Indicators

The use of performance indicators is common practice with the inspectorates in every member state. However, states differ on what indicators they use and on the level of public availability of these indicators. Availability is often fragmented or even non-existent. Denmark, for instance, publishes a regular questionnaire on how the stakeholders perceive the efforts of the Environmental Protection Agency. It also publishes input indicators, like budget and FTE’s used in the DEPA. However, performance indicators of the local governments and the regional centres, who are largely responsible for the inspections are hard to come by. This problem was encountered for every country that was investigated, and makes the comparison virtually impossible. Also of interest is that countries mainly used input and output indicators to measure their performance. In some countries a debate has started on the use of outcome indicators, but these are in full development and not (yet) operational. Key message

While most environmental inspectorates seem to use inspection plans to develop their inspection activities, these plans are not always publicly available. Member states use a diverse array of input and output indicators as performance indicators. However, these indicators are communicated in a fragmentary and irregular manner. Thus, it seems that several tools included in RMCEI such as inspection plans are indeed used in practice. Moreover, the poor quality of performance indicators makes consistent



follow-up of policies such as RMCEI as well as comparisons between member states extremely difficult, if not impossible. RMCEI policy

The way environmental inspections are organized and executed is very diverse throughout the member states. However, three very loose categories can be distinguished. In the north-west of the EU, the environmental inspection systems are very professional. A lot of attention is dedicated to design a system so as to minimize environmental damage, while at the same time minimizing the burden on the companies. To this end, there is an extensive dialogue with the different stakeholders. Most, if not all, guidelines stated in the RMCEI are implemented in these countries, and are often surpassed. This high quality level was often implemented even before the recommendation was adopted by the EC. The influence of the RMCEI on policy has consequently been rather limited. However, for instance, in the Flemish Region the inspection activities have clearly been influenced by the adoption of RMCEI with the implementation of a new categorisation of inspections and the introduction of inspection plans as a useful policy tool. The southern member states, on the other hand, do not seem to place much emphasis on environmental inspections. Environmental inspections mainly focus on preventing the most damaging environmental incidents. Only very few minor developments to improve the inspection system are recorded and these changes are only rarely based on RMCEI. As a consequence, the quality of the inspections in these countries is lagging compared to the north-west of the EU. The newest EU member states in the East are currently building up their inspection system. Countries like Bulgaria and Poland reorganized their system in the recent years to close the gap with the other member states. EU legislation and recommendations such as RMCEI are very influential in guiding and structuring these changes. Key message

The implementation of RMCEI varies a lot of the different member states. Thus the starting point for the revision of RMCEI is also quite different for those states. In general, inspection practices in all studied member states have to a smaller or larger extent been influenced by RMCEI. Especially, the crucial role of RMCEI in helping new member states to comply with EU regulation is noteworthy.



Belgium

Institutional context

Belgium as a federal state is divided into three regions: the Flemish region, the Walloon region and the Brussels Capital region. There is no national coordinating authority specifically dealing with environmental inspections. However, the Coordination Committee for International Environmental Policy (CCIEP) was set up in 1995 to ensure that Belgium as a country speaks with a single voice in the international arena despite the division of powers among different authorities in the environmental field. It is the result of a cooperation agreement on international environmental policy between the Federal State, the Flemish Region, the Walloon Region and the Brussels-Capital Region. On a day-to-day basis it is steered by DG Environment at FPS of Public Health, Food Chain Safety and Environment.

Division of competences regarding environmental policy

In Belgium, environmental competences are shared between federal government and regions. The federal government is responsible for: • drafting product standards and encouraging sustainable production and consumption; • waste in transit; • protecting the environment and the population against non-ionising and ionising

radiation, including radioactive waste; • preventing environmental damage, poisoning, and health hazards due to chemicals,

including pesticides; • protecting the environment and biological diversity in territorial waters and on the

continental shelf; • internal police measures concerning labour protection on premises that are hazardous,

insalubrious or used for noisy or noxious trades; • import, export and transit of non-native plant and animal species, including their

remains; • manufacture, trade and possession of hunting weapons; • coordinating international environmental policy. The regions have jurisdiction for land-use planning, nature protection and conservation, and the protection of the environment. They are responsible for the following issues: • protection of the soil, sub-soil, water and air, combating noise; • waste policy; • policing hazardous premises;



• water policy; • nature conservation and hunting. For this case study, we will focus on the federal authorities, and the largest regions Flanders and Wallonia. Federal Government

Federal Environmental Inspectorate

The Federal Environmental Inspectorate is part of the federal Directorate-General for Environment within the FPS Public Health, Food-Chain Safety and Environment and its tasks involve monitoring compliance with existing laws and detecting infringements. More specifically, the agency has the responsibility for checking the conformity with legislation of shipments or the release on the market of dangerous products at the federal level. The inspections carried out by the Federal Environmental Inspectorate relate mainly to the following: • monitoring the access to market of products such as biocides, dangerous substances

and preparations; • inspecting waste in transit, i.e. international shipments of waste which are not

produced, treated or disposed of in Belgium; • checking compliance with the standards laid down under the integrated product

policy. Cell Environment of the Federal Judicial Police

The Federal Judicial Police focuses on supra-local and organised crime which has a destabilising effect on society as well as on offences that require a specialised approach. The federal investigations are conducted mainly at decentralised level in the 27 “Decentralised Judicial Directorates”. The investigators are assisted by the administrative and logistic staff and receive support from the Federal Judicial Police’s central directorates and specialised services. The six central directorates are all based in Brussels. Three of them are directly in charge of fighting priority criminal phenomena including The Directorate of Crime against Goods part of which is the Cell Environment. In the National Safety Plan 2008-2011 the federal government established several enforcement priorities, especially if they present an organised character: including serious environmental crime. This term ‘serious environmental crime’ is translated by the Cell Environment into five projects dealing with waste fraud, fraud concerning biodiversity (protected fauna and flora), nuclear materials, fireworks and AUGIAS. The investigation duties executed by the Cell Environment include support to police services by delivering specialized expertise and operational support organization of specific training to police services and other intervention services initiating pro-active and reactive investigations representation of Belgian police service on the international level e.g. Interpol, Europol and EU.



Environmental Network

This specific consultation platform from the Cell Environment includes members from the Federal Judicial Police, Local Police services, Arrondissementele informatie-

kruispunten, Road Police, Shipping Police and Railroad police. Its aim is to exchange information concerning environmental offenses, to provide mutual support, to develop best practices and to effectively and efficiently execute large-scale investigations. Federal policy

The federal actors are responsible for the coordination of environmental inspection and investigation efforts between the different regions. Moreover, these actors are responsible for environmental crime that require a nation-wide approach such as organized crime. The nature of the checks performed by the Federal Environmental Inspectorate evolves in line with the laws in force. The implementation of the REACH regulation on the European chemicals strategy and the Regulation on the National Environmental Health Plan will have a profound impact on the activities of the Federal Inspectorate. Future inspections performed by the service will have to account of the necessary changes in the laws involved. Flemish region

To reinforce the effectiveness of the Flemish environmental enforcement policy not only regional enforcing authorities are appointed, but also provincial authorities, municipalities, and local police services are appointed to execute monitoring activities. Flemish High Council for Environmental Enforcement

The Flemish High Council for Environmental Enforcement was recently created and plays a crucial role in the formulation and selection of priorities and directions of policy. The Council formulates an annual environmental enforcement program and an environmental enforcement report for the Flemish Region. These documents are published on the website www.vhrm.be. Flemish Environmental Inspectorate

The Flemish Environmental Inspectorate is part of the Department Environment, Nature and Energy (LNE) and is the main enforcing authority in the Flemish Region. The inspectorate has its headquarters in Brussels and branch offices in the five Flemish provinces. The environmental inspectorate is responsible for monitoring the Air Pollution Law, Surface Water Law, Noise Law, Waste Decree, Environmental Permit Decree, VLAREM, Law on non-ionising radiation, Collaboration Decree between federal state and regions on serious accidents, Nitrate Decree, EU legislation on ozone-depleting substances, health regulations of animal by-products not meant for human consumption, and waste transports. Environmental Permitting Unit AMV

The monitoring competences were only recently awarded to this unit and involve monitoring the appointment and training of environmental coordinators as well as monitoring of the Air Pollution Law, Noise Law, Groundwater Decree, Environmental



Permit Decree and EU regulations on ozone-depleting substances and fluorated greenhouse gasses. No inspection program is published. Flemish Environmental Agency VMM / Waterways and Sea Channel NV / Provinces

The monitoring competences are only recently awarded to these authorities (12 December 2008) and involve monitoring of the Surface Water Decree (art.2, illegal discharges in water) and the Waste Decree (art.12, illegal waste disposal). No inspection programs are published. Land and soil protection, Natural Resources ALBON

This unit has monitoring competences within the framework of the Environmental Permit Decree concerning the danger of soil movements or caving-ins and the Surface Mineral Decree. No inspection program is published. Nature and Forest Agency

This unit has monitoring and enforcement competences for all Flemish legislation dealing with natural areas, fauna, flora and natural resources. No inspection program is published. Public Flemish Waste Agency OVAM

This unit is involved in monitoring the reporting duty w.r.t. industrial waste, routine inspections of environmental levies, monitoring shipping waste, monitoring the requirement to draw up soil prevention and management plans. Waste program is published. Flemish Land Agency VLM

The VLM is responsible for monitoring the manure and fertilizer legislation. The unit aims at a minimal monitoring pressure (using both routine and reactive inspections) of 1% for the most important legal aspects. Moreover it has several EU obligations dealing with control of agricultural activities and fertilizer use and transport. No inspection program is published. Flemish Care and Health Agency

This unit is involved in the inspection of compost installations of organic substances and of swimming pools. No inspection program is published. Local Police

The local police is responsible for the basic police services including local environmental incidents. No inspection program is published. Municipalities

The monitoring municipal agents are responsible for routine and reactive inspections of class 2 and 3 installations (VLAREM) and solving local problems such as noise. Municipalities participating in the Cooperation Agreement have to formulate an yearly environmental program including plans for the next year. Some of these programs are published.



Coordination with other MS

Through the coordinating Department of Environment, Nature and Energy (LNE), the Flemish Environmental Inspectorate is member of the IMPEL network. Walloon region

The Walloon Environmental Inspectorate (Division de la police de l’environnement – DPE) plays an important role in the implementation of environmental monitoring in the Walloon Region. Next to the agents of the DPE, also agents of the Department for Nature and Forests, the local police, the municipalities and the state police are responsible for environmental enforcement. Walloon Environmental Inspectorate (DPE – Division de la Police de l’environnement)

The inspectorate DPE consists of the Inspection Unit (Direction des Contrôles), the Anti-Poaching and Pollution Prevention Unit (Direction de l’Anti-braconnage et de la Répression des pollutions) and the four branch offices in the different provinces. The DPE, through its branch offices, controls emissions of firms either at its own initiative or after a complaint was raised. The inspectorate inspects and records violations of several environmental legislations such as waste, water and soil protection, air pollution and noise. The Inspection Unit coordinates and harmonises the preventive environmental controls in the agriculture sector, in the NATURA 2000 framework and in the industrial sector. On their website they specifically mention that they harmonise controls according to EU regulations. The Anti-Poaching unit enforces anti-poaching rules and investigates complex cases that involve damage to natural resources. The Pollution Prevention Unit focuses on serious environmental crime such as sectors and installations with hazardous activities, gross offences with serious air or water pollution, illegal waste disposal or incineration and controls of cross border waste shipments. Municipalities (mayor)

The mayor has the task to conserve the cleanliness, public safety and order as well as to implement the legislation in place. This is specifically the case for the Environmental Permit Decree and its execution decisions. The mayor has the same monitoring rights as the DPE agents when dealing with classified installations. The Judicial Police (La police judiciaire et la gendarmerie)

The judicial police act based on individual complaints or on requests by the mayor or the public prosecutor. Department of nature and forests (La Division de la nature et des forêts - DNF)

The DNF is involved in the ecological management of the natural environmental. The department implements and enforces regulations dealing with nature conservation, forest management, hunting and fishing. Moreover the DNF agents are also responsible for monitoring and recording breaches of the regulation dealing with water bodies and the protection of surface water from pollution. Annual reports from 1995 to 2006 are published on the website www.environnement.wallonie.be.



The local police

The local police is responsible for the basic police services including local environmental incidents. No inspection program is published. Coordination with other MS

Through the coordinating Department of Environment and Agriculture, the Walloon Environmental Inspectorate is member of the IMPEL network. Inspections

Federal government

The federal authorities is very much embedded into the regional governments. Their legal rights are largely determined by the regional laws. Most investigations are also carried out in cooperation with the regional authorities. The federal government does not publish any information on the inspections, or its capacity. Flemish region

In the Flemish Region environmental monitoring and enforcement is regulated and harmonized by the Environmental Enforcement Decree of 21 December 2007, revised on 30 April 2009. The aims of this Decree are to harmonize monitoring, sanctions and safety measures, to implement a coordinated environmental enforcement policy and to realize uniform administrative enforcement by implementing administrative measures and fines. In order to fulfil these objectives three new institutions where created: the Department Environmental Enforcement, Damage and Crisis Management, the Environmental Enforcement College and the Flemish High Council of Environmental Enforcement. The Environmental Inspectorate still plays a dominant role in environmental monitoring. It formulates yearly inspection plans (MIP) in order to structure its inspection activities and to estimate its budgetary needs and personnel requirements. A first aim of the inspection planning is to implement inspection activities in an effective, uniform, professional, integrated and guiding way. A second important aim is the promotion of the effectiveness of inspections. Thorough and integrated inspections are planned for class 1 installations (VLAREM) that are (potentially) seriously polluting or that involve substantial risks for the environment. The selection of installations or industrial sectors for enforcement actions is driven by past and present environmental performance. Finally, the inspection plans have to identify priorities in order to maximize the results obtained from limited budgetary resources and available personnel. Type of inspection activities

In Flanders, the activities are carried out by the Flemish Environmental Inspectorate (FEI) include the following: site visits, monitoring of environmental quality standards, consideration of environmental audit reports, consideration and verification of self



monitoring by operators, assessing activities and operation carried out at the controlled installations, checking the premises, relevant equipment and adequacy of environmental management and checking relevant records kept by the operators of controlled installations. This is consistent with RMCEI. Site visits

The recommendation sets the following guidelines for site visits: • “Site visits should be regularly carried out as part of the routine environmental

inspections and in case of serious complaints, accidents, incidents or occurrences of non-compliance and where appropriate before and after issuing a first authorisation, permit or license.” These different types of site visits are executed by FEI and discussed in the annual reports;

• “During site visits the full range of impacts of the installation and its compliance with EC requirements should be examined and the impact of the installation on the environment should be considered in order to evaluate the effectiveness of the existing authorisation, permit or licensing requirements.” FEI plans yearly enforcement campaigns in order to perform thorough and integrated controls of specific installations or industrial sectors;

• “Inspectors or other officials entitled to carry out inspections should have a legal right of access to sites and information for the purposes of environmental inspections and that, if site visits are carried out by more than one authority, they should exchange information as far as possible.” This requirements are fulfilled by the implementation of the Environmental Enforcement Decree which provides a legal basis for the different right available to monitoring agents;

• “The findings of site visits should be contained in reports and exchanged as necessary between the relevant authorities.” The yearly reports by FEI provide extensive information on the findings of site visits. After each site visit a report is written and a summary is stored in an electronic database.

Results of site visits

The FEI writes yearly reports on its activities, means, plans and results. These reports were available on paper from 1994 onwards (and could be received by the public on simple request). The reports are published online184 from 2001 onwards (most recent is the report of 2009 activities). The reports provide indicators on personnel, means, number of routine, reactive and project-related inspections, reactions to detected violations, answers to parliamentary questions, results of specific enforcement campaigns, etc. Moreover, the Inspectorate has developed codes of good practice concerning the procedures for site visits, for sampling and for administrative and criminal sanctioning. On 2 June 2009 two ministerial decisions determine on the one hand the structure of the detection report and on the other hand the structure of the notice of violation. Since 1998 the inspectorate has a database where data on installations and information on inspections is collected. A system is set up to add data from laboratory analyses and information on complaints and their handling into the database. 184 http://www.lne.be/themas/handhaving/afdeling-milieu-inspectie/milieuhandhavingsrapport/de-rapporten



After each site visit, a report is written and stored in the database. Serious accidents

From 2001 onwards the FEI reports the number of reports of serious incidents and on the actions taken. Appropriate actions for the prevention of future such occurrences are taken by specifically targeting installations in future inspection plans. Training of inspectors

The Environmental Enforcement Decree (art.16.3.2) states that “Only persons who have the necessary qualifications and characteristics to adequately fulfil their monitoring tasks can be nominated. The Flemish Government can determine specific conditions, including among other thing educational requirements”. Moreover, the yearly reports of FEI provide detailed lists of training and schooling following by inspectors. Implementation indicators

1995 2000 2001 2008

Number of staff (FTE) 112 98.1 106.6 115.9

Number of installations to be controlled n.a. n.a. n.a. n.a.

Number of inspections carried out 15007 10584 11351 12430

Number of installations visited n.a. n.a. 4505 4599

Number of complaints: - received 2186 2173 2078 1918

- dealt with 2230 2025 1956 1918

Number of samples (water) 2048 2109 1967 2151

Number of measurements (air) 1099 81 111 95

Number of incidents reported n.a. n.a. 343 1195

Number of audits of self-controls n.a. n.a. n.a. 306

Actions taken as a result of detected non-compliance:

• Advices and warnings 1382 1739 974 1598

• Notices of violations (original) 1301* 794 805 605

• Administrative sanctions 31 63 30 19

• Compulsory measures 6 22 12 12

• • • • •

* This figure includes both original NOV and subsequent NOVs.

N.a. Not available in yearly report.



Walloon region

Type of inspection activities

Wallonia (Walloon Environmental Inspectorate) lists site visits, monitoring and control of self-monitoring. This is not completely consistent with RMCEI. Inspection plans

Inspection plans are published in annual activity report starting from 2002 (most recent: report 2006, plan 2007). These plans are structured around four pillars: • Pubic authority: relations with political power, public tasks to be fulfilled, developing

public influence, etc.; • Internal process: activities and processes leading to the realisation of a product, a

service or the implementation of legislation; • Competences: training and responsibilities of inspectors; • Users: all individuals or entities that are connected with the DPE. It is unclear whether these inspection plans meet the requirements stated in RMCEI. Site visits

The recommendation sets the following guidelines for site visits: • “Site visits should be regularly carried out as part of the routine environmental

inspections and in case of serious complaints, accidents, incidents or occurrences of non-compliance and where appropriate before and after issuing a first authorisation, permit or license.” These different types of site visits are assigned to the DPE. However, the discussion in the annual reports is fragmented and incomplete;

• “During site visits the full range of impacts of the installation and its compliance with EC requirements should be examined and the impact of the installation on the environment should be considered in order to evaluate the effectiveness of the existing authorisation, permit or licensing requirements.” The DPE plans yearly enforcement campaigns in order to perform thorough and integrated controls of specific installations or industrial sectors;

• “Inspectors or other officials entitled to carry out inspections should have a legal right of access to sites and information for the purposes of environmental inspections and that, if site visits are carried out by more than one authority, they should exchange information as far as possible.” These requirements are fulfilled by the implementation of the Walloon Environmental Enforcement Decree and Decision which provide a legal basis for the different right available to monitoring agents;

• “The findings of site visits should be contained in reports and exchanged as necessary between the relevant authorities.” The annual reports by DPE provide fragmentary information on the findings of site visits.

Results of site visits

The full reports and, wherever this is not practicable, the conclusions of the reports should be communicated to the operator of the controlled installation according to Directive 90/313/EEC on the access to environmental information.



The Walloon Environmental Inspectorate writes annual reports on its activities, means, plans and results. These reports are published (in French) online www.environnement.wallonie.be from 1995 onwards (most recent report is that of 2006 activities). The reports provide, inter alia, indicators on personnel, number of routine, inspections, answers to parliamentary questions, and results of specific enforcement campaigns. Serious accidents

In the event of serious accidents, incidents and occurrences of non-compliance the causes of the event, the impact on the environment, the responsibilities and liabilities should be clarified and the conclusions forwarded to the inspection authorities. Appropriate actions for the mitigation or remediation of the impacts and for the prevention of future such occurrences should be taken. It should be ensured that operators take the appropriate follow-up actions and that enforcement action or sanctions can proceed. It is unclear whether DPE fulfils the requirements of RMCEI. Training of inspectors

Walloon Environmental Enforcement Decree (art.R94) states that personnel at the DPE should receive training of minimum 30 hours, with at least the following topics: • General principles of criminal law; • Judicial organization; • Recording of offenses and issuing of notices of violation; • Environmental legislation; • Conflict management. Implementation indicators

2000 2001 2002 2006

Number of staff (FTE) n.a. n.a. 115 n.a.

Number of installations to be controlled n.a. n.a. n.a. n.a.

Number of routine inspections carried out 3219 3923 2404 n.a.

Number of IPPC inspections carried out n.a. n.a. n.a. 120

Number of IPPC installations visited n.a. n.a. n.a. 59

Number of SEVESO inspections carried out n.a. 35 66 40

Number of SEVESO installations to be controlled n.a. 87 81 84

Number of SEVESO installations visited n.a. 23 n.a. n.a.

Number of complaints received 2682 3187 2089 2344

Actions taken as a result of detected non-compliance:

• Advices and warnings 1489 1293 1795 355

• Notices of violations (original) 249 294 271 270

• Administrative sanctions 12 6 10 25

• Compulsory measures 91 40 35 30



• • • • •

N.a. Not available in yearly report.

RMCEI policy

Federal government

The specialist environmental enforcement authorities at the federal level do not publish any inspection plans nor do they mention the RMCEI on their websites, in their yearly reports. Thus no information is available on the current and future influence of RMCEI on these authorities. The Federal Judicial Policy, however, formulates ‘Action plans’ a short summary of which can be found on the website of the Flemish High Council of Environmental Enforcement (www.vhrm.be) but which are not published. None of the federal environmental agencies are members of IMPEL. As the policy of the federal government largely depends on the policy of the regions, the main part of the RMCEI implementation should come from regional laws and policy. Flemish Region

In the Flemish region, there is a notable effect of the RMCEI on the environmental inspection policy. To a very large extent, the inspection system complies with the recommendation, as stated above. The Flemish authorities publish inspection plans, conduct the inspection types that are recommended, conduct site visits according to the guidelines, and publish the result of it via a electronic database. Furthermore, in the annual report of 2001, the RMCEI guidelines are explicitly mentioned and discussed. From 2001 onward, the FEI further developed the “plan preventive controls”, to a MIP, a full fledged inspection plan, as recommended by the RMCEI. In 2001, the reporting system is also changed to comply with the RMCEI standards. This resulted for instance in the development of the electronic database.



Walloon region

The Walloon environmental inspectorate does indeed focus on the RMCEI. In the annual report of DPE in 2001 we find the objective for 2002 of “starting to implement” RMCEI and also the observation that ‘without doubt the future of DPE will be determined by the principles included in the recommendation’. In 2002, the first inspection plan was published, as a result of the RMCEI. There seems to be a tendency however of lower interest in the RMCEI, as the last inspection plan has been published in 2006, for the year 2007. Also in the other areas, the DPE are lagging with adjustments in the inspection policy to comply with the recommendation. It is not clear for instance to what extent the site visits, and inspection plans are in concordance with the RMCEI.



Bulgaria


The institutional set-up is regulated in the Law on the environment protection (SG 91/25.09.2002). This is a framework legislative document which among others regulates: • The control system on the status of the environment and sources of pollution; • Collection of information; • Monitoring; • Rights and obligations of various actors. The main institution responsible for environmental inspections in Bulgaria is the Ministry of Environment and Water (MOEW). The department “Coordination of Control Activities” coordinates and supervises the control activities at national level. At operational level the inspections are carried out by 16 Regional Inspectorates on Environment and Water (RIEW). The tasks of the RIEW include carrying out preventive, on-going and ex-post control to check the compliance with the legislative acts concerning the components of the environment and the pollution factors (including polluters). These functions are implemented according to the legislation and include among others issue of permits (including environmental permits), registration documents, statements, opinions, etc. in all environmental sectors – chemicals, waste, water, air, soil, biodiversity. In carrying out on-going and ex-post control, the RIEW execute inspections and monitoring and can commission analysis of samples in the laboratories of the Executive Environmental Agency (EEA). The RIEW are also authorized to issue fines if breaches of the legislation have been observed. With regard to environmental inspections the EEA has supportive role which includes laboratory analyses commissioned by RIEW, taking part in issuing environmental permits and development of methodologies and secondary legislation for monitoring of the components of the environment and the pollution factors. With regard to control on water quality and quantity the 4 River Basin Management Directorates (RBMD) are responsible for: • Issuing permits for use of a water body; • Control over the withdrawal of inert materials from river beds;



• Control on the operation of hydro-technical facilities, waste water treatment plants, sewerage systems and systems for water monitoring of the operators;

• Control over the water pollution including accident discharges and disasters. The RBMD can also issue fines in case of breaches of the legislation. With regard to nature protection and biodiversity the control activities are implemented by the management authorities of the national and nature parks and nature reserves. The nature reserves are within the responsibilities of the RIEW. Another institution that is involved in inspections related to environment is the Ministry of Health (MoH) represented by its regional structures - the Regional Inspectorates on Prevention and Control on Public Health (RIPCPH). However, the RIPCH carry out inspections related to food and chemicals and dangerous substances with regard to their labelling, package and notification. These are inspections on products and not with the producers/polluters. Representatives of the RIPCPH could be included in inspection commissions of the MoEW in special cases according to the requirements of the legislation. These commissions could also include State Agency “Civil Protection”, National Service “Fire safety and protection of the population”, State Agency on Metrology and Technical Surveillance and representatives of the local authorities. The cooperation among the various authorities that have a role in the environmental inspections is good. This especially applies to inter-institutional cooperation between MoEW, MoH and State Agency “Civil Protection”. Joint inspections are usual practices when it comes to threats that can affect population. This is also true when it comes to sharing information. The institutions are obliged (according to the law) to share information and they have information channels working for quite a time, although in and old-fashioned way – official mail. There is no country-wide software or database system. The information is collected at the MoEW, but also in the Ministry of Health and their regional inspectorates (the part that concerns public health issues) or some other institutions, depending on their responsibilities. Municipalities in general have a supportive role. In some cases however, they could be in the position of the offender and can be issued fines and administrative orders.

Coordination with other MS

The MoEW is an official member of IMPEL. Its staff participates in IMPEL’s projects and initiatives (e.g. the IMPEL TFS Annual Conference 2008). Inspections

The RIEW inspection activities consist of: • On-site inspections; • Monitoring for compliance with environmental standards; • Debates on ecological reports and opinions; • Control over the self-monitoring activities of the operators; • Inspections and check of installations;



• Check of documentation; • Inspection in case of complaints; • Investigations in case of disasters. The control could be preventive, ongoing, or ex-post. The preventive control includes Strategic EIA, Evaluation of plans and programs, EIA, issuing of environmental and other permits, stipulated in the legislation. The ongoing control includes planned inspections, ad-hoc inspections (in case of complains or decision of the control authorities) and special inspections (commissioned by an administrative body, prosecutors office or other institution or in case of seasonal production process). The number of the ad-hoc inspections is yet limited. However, these inspections have been reported to be very efficient and important part of the inspection system. The low number of the ad-hoc inspections is related to the lack of human resources. The ex-post control includes inspections to check the results achieved in implementing recommended measures during the ex-ante and ongoing inspections or an inspection to check the implementation of the measures prescribed in the decision on EIA and in the permits. The inspections are implemented in the following stages: • Planning of the inspection; • On the spot check; • Next steps (additional control activities in case there are doubts or additional

information is needed or follow up inspection to verify the implementation of prescribed measures);

• Preparation of documentation; • Reporting on the inspection; • Implementation of administrative penalties or issuing of recommendations. The control activities of the RBMD are related to the water resources that are located on the territory of the river basin district. In this regard the control functions of the RBMD are supportive to the inspections implemented by the RIEW. The RBMD implement their inspections on the basis of the obligations stipulated in the legislative acts. The inspections are documented with protocols. On the web-pages of the RBMD information can be found on the inspections carried out on a monthly basis. Inspection plans

The planning of the inspections is included into a Plan on the Control Functions of the RIEW (according to a template). The plan provides a list/register of all objects that are subject of control located on the territory of the respective RIEW as well as the number of responsible persons (inspectors). The annual Plans on the Control Functions of the RIEW are comprehensive documents (about 100 pages) that describe the main objectives and tasks of the control activities as well as the policies that should be applied. The plans also present an overview of the



control priorities and the reasons behind the priorities. The plans on the control functions of RIEW are available at the internet sites of the respective RIEW. Inspection reports

Each inspection is documented with a protocol (according to the requirements of art. 155 of the Law on Environment Protection) which includes recommendations, measures to be undertaken as well as responsible persons in charge that will control the implementation of the measures. All protocols are collected into a dossier of the objects for each object included in the inspection plan. In case of industries/installations that are classified as industries/installations with low risk potential or high risk potential according to art. 103 of the Law on Protection of the Environment, the Regulation on prevention of big accidents with hazardous substances and the consequences from them (SG 39 12.05.2006) regulates that the inspections should be carried out by inspection commissions that include representatives of the regional structures of the Ministry of Environment and Water, Ministry of Health, State Agency “Civil Protection”, National Service “Fire safety and protection of the population”, State Agency on Metrology and Technical Surveillance and representatives of the local authorities. These inspections are carried out according to the annual inspection plan approved by the Minister of Environment and Water. Indicators

The control on the environmental inspections is implemented by the MOEW (“Coordination of Control Activities” department) where monthly data is collected on the control activities carried out by the 16 RIEW. The MoEW experts also have their own annual control plan. This plan includes visits at the RIEW and control on their activities. The data collected at MoEW includes many of the indicators identified in the IMPEL 2008 report on “Brainstorming on an IMPEL project to develop performance indicators” as: number of installations, number of installations covered in the annual inspection plan, number of site visits, number of non-routine inspections, number of compliant/non compliant installations. No data is collected on the staff time per installation inspected as this is difficult to measure. The environmental inspection system operates well with about an average1300 inspections being carried out yearly by each of the 16 RIEW. The inspectors and laboratories are well equipped. The problems are related to the lack of sufficient human capacity – limited number of inspectors. Amendment in the Regulation on issuing fines for causing harm to the environment (Council of Ministers Decision 169/29.07.2003) is expected which envisages significant increase (in some cases about 100 times) of the fines for actions that lead to harmful effects on the environment. This amendment is also expected to increase the effectiveness of the environmental inspection system. The effectiveness of the system is being challenged by the significant number of claims by the operators on whom penalties were imposed. More than 90% of the decisions and fines issued by the control authorities are being appealed although limited number of appeals is accepted in court. A positive step to limit the number of appeals being won by the sanctioned operators was the separation of the inspections activities and the laboratory



tests. Currently the laboratory tests are carried out by the EEA and not by the RIEW as was in the past when the results of the laboratory analyses were often questioned because were made by the same institution that implemented the inspection and issued the fine. The separation of the inspections and laboratory tests, however, led to increase in time needed to complete the inspection process. Public access to information

With regard to public access to information on the control activities, the annual inspection plans and reports of the RIEW are publicly available on the internet. There are also monthly bulletins on some environmental indicators, inspections being carried out and the decisions taken. More specific data can be obtained through the procedure for access to environmental information that is regulated in chapter 2 of the Environmental Protection Law. RMCEI policy

The RIEW implement their control activities based on a re-entry adopted “Instruction of the Minister of Environment and Water on Planning and Reporting of the Control Activities of the RIEW” (March, 2010). This instruction brings at national level the EU guidelines and minimum criteria for environmental inspections (RMCEI 2001/331/EC). It regulates planning, carrying out inspections and reporting. Templates of an annual plan of the control activities and of an annual report are provided. The aim of the instruction was to harmonize the environmental inspection activities carried out by the RIEW and provide a common planning and reporting tools. Before the instruction there were some differences in the planning and reporting of the control activities depending on the organization in the respective RIEW. The new reporting requirements were implemented at the end of 2009 (before issuing of the instruction) when all RIEW reported in the new report template. The RMCEI 2001/331/EC and IMPEL provided useful guidance in the direction of improvement of the national environmental inspection system. The understanding is that there should be a common data collection and reporting system at EU level that should enable control on the inspection activities and comparison between the performances of the inspection in the EU countries. Extended recommendations on environmental inspections are welcomed as well as a more general directive which to regulate common planning and reporting requirements, but not the administrative and organizational arrangements as these will lead to organizational and administrative changes and will be cost ineffective.



Denmark

The information for this country study was collected via the website of the Danish Environmental Agency, and interviews with representatives from the Danish private sector and the Danish Environmental Agency. Institutional context

The law that regulates the environmental inspections in Denmark is the Environmental Protection Act, lov om miljøbeskyttelse, has been in effect since January 2007. This law gives Denmark a decentralized environmental inspection system. In principle the individual municipalities are responsible for issuing the permits and inspecting the installations. They make their own considerations and policy, which differ (to some extent) across municipalities. As is recognized by the Danish government however, municipalities sometimes lack the expertise to inspect the more complicated installations. In these cases the Regional Environmental Centres (REC’s) take over the inspections. The type of facility that is inspected by municipalities, and the type that is inspected by regional centres is determined by legislation. For instance the larger steel producers, all chemical companies and all oil refineries are subject to the REC’s. There are seven Regional Environmental Centres, in Århus, Odense/Fåborg, Roskilde, Ålborg, Ringkøbing, Ribe and Nykøbing Falster. Only Odense, Roskilde, and Århus inspect industrial facilities. The others have tasks related to civilian behaviour or protecting the quality of (recreational) environmental sites. They carry out, for example, the habitats and birds directive. The national coordinator is the Danish Environmental Protection Agency (DEPA). This agency is part of the ministry of environment and as such responsible for environmental inspections that concern the national or international interest, like international waste shipment and air pollution control. Its goals are to: • advice the government on environmental issues; • monitoring and developing rules and initiatives aimed at protecting the environment; • Working in dialogue with citizens, businesses and other authorities; • Collect and disseminate knowledge about the environment.



This means in practice that the main role of the agency is to issue guidelines on how to implement national and international laws and recommendations. Another important task is to provide training for the local inspectors. The DEPA is also responsible for settling disputes between municipalities and REC’s on territory issues.

Table 1 Operational budget and number of employees

Year 2005 2006 2007 2008

Budget (Mln of

DKK)

215,4 242.5 249,6 234,4

Number of

employees

242 294 306 260

• • • • •

Source: Service og visionregnskab 2008.

Sanctions

To curb non-compliance, inspectorates have several instruments. Inspectorates can only interfere on the operational side, through prohibiting further activities, or ordering changes in the production process. Inspectorates do not have the authority to issue fines, or imprison. These actions can only be undertaken by the police and local courts. The barrier to pursue fines and other legal punishments is also reflected in the actions of the local inspectorates. In 2008 and 2009 they only pursued legal actions in 73 and 74 cases respectively. As comparison, in 2008 and 2009 respectively, inspectorates made recommendations in 4.050 and 3.775 cases, and 3.851 and 4.025 injunctions, corrections etc. Cooperation

The municipalities are all responsible for their own environmental policy. Each city has its own database, cooperation with other municipalities is very limited. There is however good cooperation between the REC’s and the municipalities in case the latter is responsible for the permit, while the first is responsible for the inspections. Each facility is also treated as an independent site, and not as part of a larger company. Compliance or non-compliance in one facility does not influence the inspection regime in other facilities of the same company if this is situated in another municipality. That is not the case for the regional centres as they do have one common database.



Inspections

To assure some minimum standards across the municipalities, the minister and representatives from the municipalities have agreed in 2005 on some minimum requirements for the inspections. This agreement specifies how often a certain facility should be inspected and what type of inspections should be conducted. In general, the higher the risk that an installation poses to the environment, the more often it should be inspected. These inspections are full-inspections whereby everything is checked. Furthermore, the agreement also specifies that if a facility often violates the environmental laws, it can be subject to more (full or limited) inspections. In practise however, due to budget constraints, municipalities only carry out the minimum. Municipalities have to provide reports to the minister regarding to what extent they comply with the agreement. If local authorities consistently do not comply, the minister can transform the agreement into a law which cities can no longer ignore. Municipalities were in 2008 responsible for 146.361 companies within their jurisdiction. In 2009 this number was reduced to 128.679. The local inspectorates carried out 13.423 and 13.652 inspections respectively in 2008 and 2009. Of these, respectively 7.911 and 8.428 were full inspections. This increase in productivity seems to be the result in efficiency gains. In 2008, the municipalities needed 324 FTE to conduct the inspections, and bought DKK 19.084.366 of external assistance. In 2009, the municipalities required 314 FTE and DKK 17.461.498 of external assistance. This effect could be driven by the tightening budgets as a result of the crisis, but it could also be a continuing efficiency effect of the reorganisation in 2007. In favour of the first argument is the higher company contribution payment of the companies for permits and inspections. In 2008 companies had to pay in total DKK 16.341.444, while in 2009 the amount was DKK 17.597.674. Inspection plans

Every municipality is obliged to publish an inspection plan annually. The DEPA has issued guidelines that recommend using the requirements as specified in the RMCEI. That is, to specify provisions for its revision, indentify the installations that are covered by the inspections, outline procedure for non-routine environmental inspections and provide for coordination between the different inspecting authorities where relevant. These plans should be available publically. It is however not evaluated to what extend these guidelines are followed. What most municipalities do is the minimum as they are obliged to do according to the agreement with the minister, and simply put this in the inspection plan. Even then, municipalities do not always carry out the planned inspection due to time and money constraints. Due to resource constraints, not all municipalities publish the inspection plans on the web. However, the inspection plans are always available on request. Reporting

The reporting system has not been changed over the last 25 years, apart from some minor details. The reporting system however is largely based on input variables, like number of



inspectors and other available recourses. There is however, currently a workgroup that is re-evaluating the indicators. Their aim is to find more output based indicators. The Danish inspectorates are very much client based. Annually the agency set goals on topics they feel need improvement. As of 2006, the goals were mainly oriented towards improving the service to, and strengthening the dialogue with the stakeholders. This target group includes the private sector, and the general public. This effort is recognized by the Danish companies, which applaud the strong dialogue on what regulation is best to adopt, to minimize the administrative burden, while at the same time enhancing the environmental quality and preventing environmental damage. This ensures not only that most policy has a large support with the private sector, but also increases the trust between inspectorates and companies. This has contributed to relatively few inspections and a strong sense of responsibility within the companies. Companies do face now so few inspections, that it paradoxically disturbs the competition. The facilities that are subject to inspection in one year, face a considerable disadvantage in the competition with other companies that are not inspected. Another facet of this dialogue is a continued effort of the government to reduce the administrative burden for companies. The ministry for environment annually measures the administrative load that it imposes on the companies, and aims to reduce it by 25% from 2001 onward. In 2001 the load was €915 mln each year. So far 11,3% reduction has been realized. To judge the success of the efforts to become more client based, the DEPA has conducted in 2000, 2003, 2005 and 2008 a study after the satisfaction of the stakeholders with the DEPA. This includes the opinion of the environmentally engaged citizens, consultants and researchers, Companies, journalists, other ministries and agencies, regions and municipalities, and DEPA employees. Results indicate that overall client satisfaction is rising slightly from an adequate level (3 points, on a scale from 1 to 5, with 1 the lowest results). Besides the points that were already mentioned above, the report further concludes that the DEPA, compared to 2005, has become more reliable and trustworthy. Also the internal structure has been improved since the reorganization in 2007. Employees feel less stress, and more capable to deal with the problems at work. The DEPA however lacks a pro-active attitude and a creative and visionary approach, according to the stakeholders. Together with some other identified points for improvement, the DEPA established an action plan to improve the ratings and will evaluate the results in a few years. RMCEI policy

Denmark has a long history of environmental protection and consequently environmental inspections. The extended experiences with environmental inspections have given the Danish government the opportunity to fine-tune the inspection system. The RMCEI has therefore not had a great impact on the environmental inspection policy, as the system already meets or surpasses the minimum criteria.



The RMCEI is also not mentioned on the website. The content of the criteria, however, are implicitly mentioned in the guidelines of the DEPA to the subordinate authorities. It is not precisely known to what extent the guidelines are followed by the local authorities. The DEPA does recognize the importance of international cooperation. For example, to limit the diffusion of dangerous chemicals and toxic waste, the Danish government actively seeks cooperation with other Scandinavian countries and with the European Union. Also in the establishment of other regulation, the Danish government and the DEPA seek an active role. The DEPA is also a member of IMPEL, and was the lead country for in several studies for the IMPEL. A complicating factor for further implementing the (improvement of the) RMCEI is that since the reorganisation in 2007, the municipalities are responsible for adopting new inspection policy. Environmental inspections are, however, not a main area of focus to the local government. Therefore, the inspection system is often and easily subject to budget cuts. The implication for further implementation of the RMCEI is that new recommendations will only be implemented if it makes the inspection system more efficient or less costly.



Poland


Environmental inspections in Poland are carried out mostly by Voivodship Environmental Protection Inspectorates (VEPI) and Chief Environmental Protection Inspectorate (CEPI). The tasks and the scope of responsibilities of environmental inspectorates are defined in the Act on Environmental Inspection (of 20 July 1991)185. There are sixteen VEPIs in Poland (one in each voivodship

186). In 2008 VEPIs employed 2,315 people (683 in inspection departments, 259 in monitoring departments, 823 in laboratories and 550 in administration). CEPI staff amounted to 140 (56 in inspection, 29 in monitoring, 55 in administration/management). With the recent reforms, the government aims at a more decentralized inspection system. This resulted in some ambiguities in the law regarding the division of responsibilities between the CEPI and the VEPIs. In practice however, CEPI does act as supervisor, as it validates the inspection plans of the VEPIs, and set the topics of the special campaigns, to be carried out by the VEPIs. Also new inspection systems or new policy by the VEPI has to be confirmed by the CEPI. Some environmental issues, like interventions in case of illegal dumping or burning of household wastes or illegal cutting of the trees are not handled in by environmental inspection authorities (CEPI, VEPI). These issues should be handled by local authorities. Similarly environmental inspection authorities are not involved in inspections of Natura 2000 sites. Coordination with other MS

CEPI is an official member of IMPEL. Its staff participates in IMPEL’s projects and initiatives (e.g. project “Doing the right things III). Both, CEPI and VEPIs take part in various international inspection initiatives (e.g. Impel-TFS Enforcement Actions II).

185 Official Journal of Law 2002.112.982. 186 Voivodship (province) is an administrative unit in Poland where administrative powers are shared between Voivod

(governor appointed by central government), Sejmik (assembly elected in local elections) and Marshall (an executive appointed by the assembly). The population of the voivodships ranges between 1 million to over 5 million inhabitants. A

chief of VEPI is appointed by the Voivod (from the candidates indicated by the Chief Environmental Protection Inspector).



Inspections

In 2005 the Chief Environmental Protection Inspector published the Guidelines for inspection and post-inspection activities carried out by environmental inspection authorities (GIA). These guidelines contained the reference to the RMCEI. They set, inter alia, provisions on annual and quarterly inspection plans and procedures for organising and carrying out inspections by a VEPI. Furthermore, recently, the Polish inspection system has been reviewed within the scope of the project financed within the Norwegian Financial Mechanisms (“Improving the efficiency of Polish Environmental Inspection, based on Norwegian experiences”). The project has been carried out between 2007 and 2010, and it has been intended to achieve the following results: • implementation of an effective system for handling data on inspections; • methodological inspection strengthening; • providing equipment for inspectors; • developing the system for dissemination of information to the general public. The project resulted in the introduction of a new inspection system (NIS), which will replace the instructions included in the GIA. Procedures described in the NIS refer to: • inspection planning; • inspection preparation; • inspection implementation; • preparation of reports on inspection activities; • preparation of controls; • follow up activities. NIS is assisted by a computerised system supporting inspection activities (CSSIA). NIS comprises a number of documents and procedures for inspections. It includes supplementary materials such as forms, checklists etc. All the data are stored in electronic format. On a pilot scale the system was tested in two VEPIs (Warsaw and Rzeszów). Since 2010, it is implemented by all 16 VEPIs in Poland.

Type of inspection activities

The GIA provides for a distinction between routine and non-routine inspections. Routine inspections are carried out in accordance to annual and quarterly plans of VEPIs. For the purpose of national statistics, additional criteria for inspection classification have been adopted. The following types of inspections are reported to Main Statistical Office: • Inspection that resulted in identification of a violation of the environmental protection

requirements; • Inspection with measurements; • Ad-hoc inspection – carried out in response to complaints submitted to a VEPI by a

citizen, an NGOs, or a public authority or upon request of the Customer Protection and Competition Office or other authorities;

• Inspection reinforcing knowledge of the controlled entity – this takes place when one of the objectives of the inspection is to provide information and instructions related to implementation of new regulations on environmental protection;

• Inspection of market operations.



NIS introduced additional division of the inspections: • Usual inspections are carried out in presence of the controlled entity, they include site

visits and drafting inspection protocols. This type of inspections may be further divided into routine and non-routine inspections. Routine ones are either comprehensive or subject specific. Non-routine inspections are done in response to complaints, or upon request of other bodies;

• Non-usual inspections are carried out without presence of the controlled entity (e.g. river contamination by unknown perpetrator).

A description and the procedures related to different types of inspections are included in the instructions to the NIS. Inspection plans

In Poland, environmental inspections are planned by VEPIs on the basis of annual and quarterly plans. Annual plans are submitted to CEPI for approval. The scope of these plans was described in the GIA. They take into account, inter alia:

• Inspection priorities defined by CEPI (including yearly priorities); • Specific environmental problems in a voivodship and degree of compliance with

environmental requirements by the controlled entities, e.g.: o Identification of the areas where environmental standards have been violated; o Outcome of monitoring,; o Results of previous inspections; o Requests submitted by a voivodship, local authority, or environmental NGOs; o Complaints; o Inventory of the controlled entities within last five years; o Review of the installations with high risk of major accidents (inspection at least

once a year) or increased risk of major accidents (inspection at least once every two years);

o Environmental programmes and plans. Quarterly plans are drafted by VEPIs in compliance with provisions of annual plans. These plans comprise (as defined in GIA): • A number of inspections to be carried out; • A list of the controlled entities and character of the controls; • An indication of the control type and objectives; • An indication of the time reserve for non-routine inspections. NIS introduced a new approach to inspection planning. In NIS the planning process is assisted by CSSIA, which includes a module for multi-criteria risk assessment. It indicates the areas and facilities that should be subject to inspection in the first place. Facilities to be controlled are categorised in four risk groups. CSSIA takes into account various criteria for generating the lists of the entities to be controlled (e.g. risk group, frequency of inspections, scale of environmental impact, history of inspections etc.). Inspection planning procedures introduced under NIS comply with RMCEI. It should be noted, however, that the publishing of annual plans on VEPIs’ websites is not a common practice. Information made available on VEPIs’ annual plans is usually limited to the list



of inspection priorities. Only three VEPI has published the full version of the plan for 2010. The lists of the entities to be controlled are not made publicly available. Site visits

NIS developed a set of principles and procedures for carrying out inspections (including inspections with site visits). Instructions for NIS contain also recommendations on inspection programme preparation. These recommendations match the recommendations in the RMCEI. Under NIS the findings of site visits (inspection reports) are stored in electronic format. Templates for inspection reports have been developed for different types of the inspections. Inspection reports are available to the public upon request (commonly they are not published by the VEPIs). According to the legislation only information that is classified as confidential may not be disclosed. With introduction of CISSIA the inspection reports will be publicized on VEPI’s web-pages (according to information provided by VEPI’s the internet system should be fully operational by the end of 2010). Some VEPIs publish on their web-sites information about inspections that were carried out. This includes: CEPI and VEPIs produce annual reports on the activities undertaken. These reports contain general information on the type of inspections carried out and their results. Annual reports are available to the public.

Major accidents

The tasks carried out by Polish environmental inspection authorities (CEPI and VEPIs) with regard to prevention of major accidents comprise: • Identification of the entities that deal with hazardous substances; • Maintenance of the database of the entities where major accidence may occur; • Conducting inspections in cases where risk of major accident occurs; • Cooperating in emergency actions and supervising the process of removing the

consequences of major accidents; • Maintaining database of major accidents; • Carrying out analyses and providing expertise on causes of major accidents, as well

as providing recommendations to prevent such accidents in the future; • Providing training and instructions to public authorities and companies in relation to

major accidents; • Cooperating with public authorities in order to prevent major accidents. As stated in annual report of CEPI, in 2008 there were 1173 entities where major accidents may occur (161 high-risk entities, 195 increased-risk entities, 817 other entities where major accidents may occur). In 2008 all the entities (high and increased risk entities) timely submitted the documents containing policy on major accident prevention. Inspections were carried out in 612 entities included in the register (including 319 inspections in the installations covered by SEVESO directive). Environmental inspectors participated also in 33 controls of road transportation of hazardous substances (these



controls were organised by other institutions - police, Road Transport Inspectorate, Border Guard). More information on the results of the controls, major accidents and inspection activities are included in the annual report presented on CEPI web site (www.gios.gov.pl). Implementation indicators

A broad number of performance indicators is applied by CEPI and VEPIs. Collecting some indicators is obligatory under legislation on national statistics. The following information on inspection activities is reported to Main Statistical Office (under statistical form OŚ-2b): • Total number of inspections (including planned and un-planned); • Number of inspections that resulted in identification of the violation of environmental

protection requirements; • Number of inspections with measurements; • Number of intervention-type (ad-hoc) inspections – carried out in response to

complaints; • Number of inspections reinforcing knowledge of the controlled entity; • Number of transport related inspections (goods or wastes); • Number inspection of a market operations’; • Number of inspections without site visits. The table below presents selected information on the controls carried out in 2008. I II III IV V VI VII VIII

No Voivodship Total

number of

inspections

Planned

inspections

Intervention-

type

inspections

Inspections

with

measurements

Inspections

that resulted

in

identification

of the

violations of

environmental

protection

requirements

Ratio

VII/III

[%]

1 Dolnoslaskie 966 755 123 156 635 66

2 Kujawsko-pomorskie 1 041 652 206 132 572 55

3 Lubelskie 1 230 900 156 239 801 65

4 Lubuskie 539 410 34 53 322 60

5 Lodzkie 1 185 804 287 169 920 78

6 Malopolskie 1 295 910 191 220 853 66

7 Mazowieckie 2 245 1 386 450 396 1 853 82

8 Opolskie 570 470 25 23 333 58

9 Podkarpackie 1 646 844 120 56 606 37

10 Podlaskie 881 651 157 117 495 56

11 Pomorskie 637 475 120 97 362 57

12 Slaskie 1 156 934 288 219 757 65

13 Swietokrzyskie 459 295 31 76 331 72

14 Warminsko- 642 399 161 60 404 63



mazurskie

15 Wielkopolskie 1 396 919 216 234 1 064 76

16 Zachodniopomorskie 640 322 154 158 319 50

Total 16 528 11 126 2 719 2 405 10 627 64

Source: www.gios.gov.pl.

CISSIA allows collecting and analysing wide range of data gathered during inspections. It also includes modules for generating the reports. For instance it can be used in order to fill-in OŚ-2b forms required by the Main Statistical Office. CSSIA includes module for comparisons and analysis of the indicators relating to work performance of inspectors and the whole VEPI. Such analysis is done based on187: • Time spent on inspection preparation; • Time spent on drawing up inspection report; • Time spent on site visits (depending on the type of inspection); • Number of inspections carried out; • Number of full-time jobs; • Number of inspectors authorised to carry out inspections; • Number of all employees in VEPI; • Number of authorised inspectors etc. RMCEI policy

The Polish government has used the RMCEI in its reforms of the environmental inspection system. This resulted in the fact the Poland is meeting almost all the criteria that are stated in the recommendation. This is also recognized by the EC as it stated in the EC Staff Working Paper from 2007, that Poland was a country that had partially implemented RMCEI188. In the opinion of the Polish government, two fields required further improvements, namely: • planning and reporting on inspection activities; • public access to reports (protocols) from the control. Since that time, significant progress has been made with regard to RMCEI implementation in Poland. In adopting the NIS, the Polish authorities have further embraced the RMCEI as basis of their environmental inspection policy. The inspections through site visits are now in concordance with the recommendation. But also the reporting system is now capable of exchanging information with other countries, to find the best practices. The most important improvement however is in the preparation and dissemination of inspection plans. The quality has significantly been improved and is in full compliance with the RMCEI. There is however still some work to do on the communication with the stakeholders. Inspection plans are often not available on the internet, and citizens cannot always access information on inspection results.

187 New Control System; Document No: 1, Version (0.01); 5 November 2008; Project PL0100; p. 16. 188 Report on the implementation of Recommendation 2001/331/EC providing for minimum criteria for environmental

inspections. Commission Staff Working Paper. SEC(2007) 1493. Brussels 14.11.2007.



In 2007, the Polish government adopted an official position stating the absence of needs for introducing significant changes in the form and scope of RMCEI. It emphasised, however, the necessity to define the scope and form of RMCEI reports to the European Commission189.

189 Polish government position on Communication from the Commission to the Council, the European Parliament, the

European Economic and Social Committee and the Committee of the Regions on the review of Recommendation

2001/331/EC providing for minimum criteria for environmental inspections in the member states. December 2007.



Spain


Environmental policy in Spain is codified in Article 45 of the Spanish Constitution of 1978, which states the right to enjoy an appropriate environment and the obligation to preserve this environment. In addition, Article 45 regulates the appropriate use of natural resources and establishes the administrative and criminal sanctions that are due in case of violations of environmental regulation. According to the Spanish Constitution, a substantial degree of autonomy is devolved to the 17 regions and 2 African Enclaves of Melilla and Ceuta. As a result, the Autonomous Regions (Communidades Autónomos, in following CAs) each have their own governments, regional authorities and legal structures. Environmental legislation and enforcement also largely falls under the competences devolved to the CAs. Thereafter, the State, in particular through the Ministry of Environment, Rural and Marine Affairs (MARM), is responsible for preparation of basic legislation that establishes the minimum conditions to be fulfilled at the regional level, including the transposition of EU law, as well as the coordination of such issues that have an impact broader than at the regional level. On their part, the CAs implement, adapt and enforce environmental legislation. Division of competencies between national and regional authorities

The competencies of MARM include following: • General competencies, mainly related to the external relations and external action,

coordination, participation and monitoring as regards international organizations, forums and conventions;

• Territorial competencies and such related to biodiversity: Promotion of increased use of sustainable natural resources and appropriate preservation and restoration, the conservation of fauna, flora, habitats and natural ecosystems, the integration of territorial, environmental and ecological actions within its jurisdiction, the definition of objectives and programs derived from the Water Framework Directive; Advisory activities and developing guidelines, tools and programs to promote balanced and sustainable territorial development;

• Competences related to climate change and pollution prevention: Formulation of policies on environmental quality for the prevention of pollution and climate change and implementation activities and provision of meteorological services of the state competition, promoting the use of technology and consumer areas that lead to decreased pollution, monitoring of meteorological services to support air navigation; and

• issuing of weather service providers.



The competencies of the Autonomous Communities comprise following areas: • Environmental preservation: Protection, preservation, restoration, enhancement,

retrieval and dissemination of natural resources, hunting and fishing, regulation and management of habitats, natural flora and fauna, landscape and regional landmarks, conservation and management of specific spaces in connection with Natura 2000;

• Environmental quality and evaluation: Control, monitoring and evaluation of the impact on the environment caused by human activity, building systems to correct incidence of damaging human activity; technological development and its implementation for the achievement of adequate environmental protection;

• Sustainable development: Information and education policies; promotion of environmental research, proposal and processing of agreements or pacts with public or private entities for the achievement of sustainable development objectives, participation in national and international forums in order to facilitate the flow of current knowledge among different stakeholders, development of studies and reports on environment and sustainability management representative bodies and attached social participation.

As evident, responsibility for environmental inspections falls within the competences of the CAs. This leads to the fact that environmental inspections are implemented in a very diverse way across the Spanish regions, with different policies developed and different institutional actors involved in the implementation. We will therefore examine in detail the organization of environmental monitoring and inspection on the national level (nivel estatal), as well as in the regions of Basque Country and Navarra. Federal government

REDIA

On the national level, in 2008 a coordinating body for the issues connected with environmental inspection was created, the Network of Environmental Inspection (Red de Inspección Ambiental REDIA). REDIA is an instrument for cooperation and exchange of experience between those responsible for environmental inspections of the CAs through the establishment of a permanent forum for participation and exchange of knowledge and experience in environmental inspection, as well as the implementation of projects of common interest. Its objectives are: • Promote the exchange of information and experience between the environmental

authorities of the Autonomous Communities in environmental inspection; • Develop joint technical projects in this area; • Contribute to the achievement of greater consistency and coherence in all territories

in the interpretation and proper application of environmental law; • Produce guidance documents to best practices, guides, tools and standards to actively

contribute to the substantial improvement of the environmental inspection; • Promote and facilitate specific training and training of inspectors and enforcement

officials to executors of environmental inspection; • Provide technical support to the Ministry of Environment, Rural and Marine Affairs

in this matter;



• Channel the participation of the CAs in the European Network IMPEL, in matters relating to the environmental inspection.

As REDIA is a very young organisation, it stands at the basis of its existence. For now, REDIA has only coordinating and advisory functions. Among the projects that REDIA envisages are the elaboration of guides and manuals for the conduct of environmental inspections, as well as the introduction of national indicators for measuring the effectiveness of the inspection system. REDIA does not have an office or website. REDIA is planning to assist the CAs in their international representation, for instance at IMPEL. It also planning to become a member of IMPEL itself. SEPRONA

The Service for Nature Protection of the Guardia Civil (SEPRONA) was established in 1988. It performs surveillance functions in relation to the conservation of nature and the environment. In the premises of the Guardia Civil in each region there is a SEPRONA unit, where citizens can query for information or report suspected activities in connection with the environmental law, which represent administrative violations or violations of the Penal Code. The objectives of SEPRONA are the following: • Collaborate with relevant authorities and agencies to plan and implement an effective

policy in this area; • Check the status of conservation of maritime (inland and sea), geological and forest

resources in order to prevent any contamination, assault or abusive use; • Assist in the prevention of forest fires; • Protect the environment by monitoring atmospheric pollution degree and level of

radioactivity; • Perform action intended to promote the normal development of the flora and fauna

(continental and marine) and particularly of protected species; • Contribute to the proper utilization of forest resources, hunting and fishing. SEPRONA is seen as an important actor for the environmental control and protection, and its collaboration with the MARM is codified through different agreements that establish SEPRONA as a main actor in enforcing environmental regulation. Basque Autonomous Community

The organization of the environmental inspection being done so far in the Basque Autonomous Community (BAC) can be divided into three groups. The first is associated with operating licenses, whereas the second is based on sectors (air, water, waste, noise, etc.), and thirdly, based on complaints or notices received by the Immediate Action Service. The sectoral expertise was previously scattered in different departments of the Basque Government, yet as of 2001 with the establishment the organizational structure of the Department of Planning and Environment, the expertise has been assembled within the Deputy Ministry of Environment. The Deputy Ministry is also member of IMPEL.



Being an operational unit within the Deputy Ministry, the Service for Inspection and Control carries out the actual inspections. Despite the mentioning of relevant documents that give further insights in its structure and functioning, such as service guidelines and work procedures, no further information on this unit is publically available. Within the Deputy Ministry of Environment, inspection competencies have been divided so that some services perform administrative procedures for authorization, license checks and initial inspection visit, whereas the Inspection Service is the unit to monitor compliance with conditions imposed in the permit or license and compliance with current regulations. Moreover, from an operational point of view, the activity of environmental control and inspection can be differentiated into two parts: the verification of compliance with environmental regulations and discipline and enforcement. Therefore, the Strategic Plan 2003-2007 had foreseen as a first step to establish a first communication line with the municipalities and local authorities in order to, first, gather information from the inspection activities (reports, files), and second, to inform the result of the inspection, so they can see further the environmental situation of the activities located in the municipality. Other relevant authorities

Other authorities that execute environmental monitoring activities and which play an active role in providing information that might contribute to the conduct of an inspection by the Deputy Ministry of Environment are the following: • Air: The Network for Air Monitoring and Quality Control has about 52 fixed stations

and three mobile units to monitor the emission levels of different pollutants and meteorological parameters;

• Water: The Deputy Ministry of Environment of the Basque Government is managing a network of state monitoring of the quality of water bodies in the BAC;

• Soil: In the area of soil, an inventory is carried out of land on which potentially polluting activities have been registered. Moreover, some of these locations are studies to characterize the level of soil contamination.

The local municipalities, in particular through their city and county councils, play an active role in issuing permits and authorizations. Municipalities are also responsible for imposing sanctions. The local unit of SEPRONA is also a part of the monitoring and enforcement system with regard to environment and work closely together with the local authorities. Autonomous Community of Navarra

The Section for Environmental Inspection, Air Quality and Climate Change is a unit within the Ministry of Rural Development and Environment of Navarra. It was created in 2003. According to the Provincial Decree 124/2007 its functions are following: • Development and implementation of environmental inspection plans of industrial

activities; • The control and inspection of industrial activities for the purposes of air emissions,

including greenhouse gases, liquid effluent discharge, production and waste management and emission of noise and vibration.



At the same time, it has to be noted that there is no personnel specifically dedicated to the activities of environmental inspection- staff carries out tasks related to authorizations of IPPC activities, to regulations about air quality and noise control and others. Other relevant authorities

Further entities involved in the monitoring and inspection of environmental activities are the Assessment and Restoration Section and the Section for Integrated Environmental Pollution Control, accredited control entities, the local police and the local SEPRONA sections. The inspections carried out in connection with air emissions and wastewater discharges are conducted by authorized public companies with an accreditation ISO 17020. Inspections

Federal Government

REDIA

REDIA does not have inspection responsibilities. SEPRONA

On the website of the Ministry of Interior an overview of SEPRONA’s activities in the CAs for 2006 can be found. During 2006 SEPRONA has carried out 153 852 actions, has made a total of 150 151 complaints of violations connected to the environment (both criminal and administrative) and has arrested 930 people. Most of the complaints have been studied for violating the laws regulating hunting, fishing and possession of protected species (35 584), for violations of municipal waste, hazardous, radioactive devices (33 072), the animal health laws, vegetable and food quality (25 381). All these concepts accounted for about 65% of total offences. Basque Autonomous Community

Inspection plan

Environmental inspection in BAC is based on the Strategic Plan for Environmental Inspection and Control, which has to be elaborated every four years. The aim of this plan is to establish an effective coordinating mechanism for environmental monitoring and control for the prevention and fight of environmental violations, both in relation to integrated control activities as necessary sectoral actions. In addition, it establishes the basis for its organization and implementation, based on the minimum criteria laid down in RMCEI. In accordance with the Strategic Plan, Annual Plans for environmental inspection are to be prepared every year. Only the plan for 2003-2007 is publicly available. Selection of sites to be inspected takes into account such factors as the potential for contamination of the different activities and their importance in the BAC, considering both the type of sector and the geographical location. Prioritization is given to



interventions in areas with a higher incidence of water, soil or pollution, soil or air, as detected by the monitoring network. The criteria to be taken into account when making a prioritization of activities to monitor / inspect are: • Objectives of water quality, air and soil in the Basque Environmental Strategy for

Sustainable Development; • Pollution potential of each activity, as estimated by the amount of waste, emissions or

discharges that have occurred; • Lists of the activities affected by the Law 16/2002 on Prevention and Control of

Pollution and/or regulations of serious accidents; • Issues of specific contaminants in food, water, air or soil as reported by the

monitoring network; • Protection of areas of environmental interest; • Active search for activities that do not have the relevant authorizations or permits in

the environmental area; • Notices received through the Immediate Action Service; • Environmental voluntary agreements between management and activities; • Socio-economic sectors of activity. As a general criterion, inspection focuses on industrial activity that disposes of corresponding environmental authorization by the certifying organs of BAC. In addition, an overall analysis of industrial activity based on information from the statistical service, the industrial registry and catalogue, registers of the Deputy Ministry for Environment, is conducted. It takes into account: • The initial database of inspection activities, which is outlined in the Inspection

Strategy 2003-2007, shall consist of those with authorizations or environmental permit;

• Database of activity licenses; • Registration of activities affected by the IPPC Directive; • Records of hazardous and non-hazardous waste operators; • Register of permits for hazardous and non-hazardous waste producers; • Register of authorizations for atmosphere emissions; • Registration of discharge authorizations. The Plans for Environmental Inspection do not go into further detail as regards identification of specific sites or types of installations covered, the specific procedural steps connected to the inspections. Type of inspection activities

The activities carried out by the relevant sub-bodies of the Deputy Ministry of Environment are classified twofold: • Routine inspections: conducted as part of a structured programme. They can have

different objectives, such as (1) Potential pollutant analysis of environmental problems, (2) Protection of areas of environmental interest areas and (3) Random breach of law;

• Ad-hoc inspections: those made in response to complaints or allegations, those in connection with the issuance, renewal or amendment of an authorization, and those associated with the investigation of accidents, incidents or cases of non-compliance.



However, neither the 2003-2007 Strategic Plan, nor the Annual Plan for 2004 specify in detail the type of inspection activities with regard to site visits, monitoring of achievement of environmental quality standards, control of premises and relevant equipment, control of the records kept etc. Autonomous Community of Navarra

Inspection plan

Environmental inspection and control is based on the General Plans for Environmental Inspection of Industrial Activity in Navarra. The Plans have an explicit aim of transferring the minimum standards set down in RMCEI into practice. They are elaborated on an annual basis and have as further main objectives to: • Check and verify that prior to the commencement of its operation or to its execution; • industrial activities, facilities and projects meet the environmental conditions and

requirements set in environmental permits or licenses; • Periodically check compliance with legal requirements through environmental

review, or where appropriate through modification of permits or environmental permits;

• Promote and ensure implementation of environmental self-monitoring; • by the owner of the facilities or activities and/or by the project sponsor; • Promote compliance with specific environmental legislation. Facilities that have been considered relevant for conducting an inspection and/or a risk analysis are among those whose air emissions, wastewater discharges or activities or waste management are subject to the granting of a permit. The annual plans identify following types of installation that are visited every year: • IPPC-installations, except livestock activities; • Operators of hazardous waste; • Operators of non-hazardous waste, as long as they dispose of only plants with a

production process and landfills. Transfer centres are not taken into account; • Facilities that produce hazardous waste in excess of 100 tons per year; • Food sector facilities at a rate of discharge above 300 m³ / day; • Urban-WWTP. Type of inspection activities

The plans distinguish between routine and non-routine inspections. The routine inspections are planned in advance and have following objectives: • Check after commencement of the activity if it satisfies the marked environmental

requirements in the permit, license or environmental permits; • Verification of compliance of the Environmental Self-Monitoring Program; • Environment; • Verification of compliance with environmental legal requirements any activity in

operation; • Observation of the development of the production processes and systems over time,

assuring its compliance with the original environmental requirements and the adaptation that is required given obsolescence or substantial changes in the legislation.



Non-routine inspections can be either carried out prior to the commencement of industrial activity, or as a result of a specific signal, which could be a complaint or an incident. The first type of non-routine inspections aims at the initial research or consideration of a project, activity or installation for the establishment of the environmental conditions for issuing an authorization, permit or license prior to commencement or within an initial period of 3-6 months. Non-routine routine inspections on the other hand aim at checking and investigating complaints or reports that may constitute an administrative infringement or failure to comply with legal requirement. In addition, non-routine inspections perform action in response to accidents or emergency situations that may have an environmental impact. Frequency and number of planned inspections are identified for every type of installation whose inspection is foreseen in the Plan. RMCEI policy

The current case study aimed at examining the implementation of the RMCEI Recommendation and its implications for the organization of the system of environmental monitoring and inspection in Spain. The administrative structure is very complex and diverse. The Basque Country and Navarra were taken as examples, but are very limited representative for the rest of Spain. Also the information to us was limited. Nonetheless, we have also assessed the information that was publicly available on the organization of environmental inspections in other CAs, most notably Galicia, Madrid, Catalonia and Murcia, for which some information was published on the respective government websites. With regard to the main areas for which RMCEI identifies minimum standards, the following issues could be observed: Establishing plans for environmental inspections of installations: All investigated CAs have published or are at least mentioning a plan or a programme for environmental inspections. However, those are often not available, or outdated. Moreover, it is often difficult to identify the operating structure and responsible authorities for environmental inspection, in particular as every CAs has substantial freedom also in delegating inspecting powers to municipalities or to authorize public or private entities with regard to specific areas. The most visible influence of RMCEI could be identified with regard to performing inspections. In the two Regions that were examined in detail, criteria to comply with the RMCEI have been established for determining the inspection sites, the types and the objectives of the inspections. In general, reporting on inspections can be classified as irregular. Navarra, Madrid and Murcia publish regular information on the actually carried out inspections and also conduct performance monitoring with regard to the ratio between planned and conducted inspections, as well as staff and resources. Moreover, Navarra does include requirements on the content and the procedures for reporting. No similar results were found for Basque country and Catalonia.



Investigations of serious accidents, incidents or occurrences of non-compliance are foreseen in connection with non-routine inspections. Only in Navarra there was a link made to the possibility of conducting such visits. The federal government is largely absent in the implementation of the RMCEI. The most suited organisation, REDIA, is still in the middle of its establishment, and has so far not issued any communication in that direction.



United Kingdom


The United Kingdom (UK) has a complex but clear division of responsibilities for the different government entities. In the UK the main responsibility for inspections is divided between the Environment Agency (EA) and Local Authorities for higher and lower risk activities respectively. In Scotland the responsibility for inspections is devolved and with the Scottish Environmental Protection Agency (SEPA) responsible for delivery. In Northern Ireland the responsibility is with the Northern Ireland Environment Agency for the higher risk activities and with the District Councils for the lower risk activities.

Who is responsible for what?

Environmental

inspection

Example: England & Wales Scotland Northern Ireland

Policy formulation Translation of EU

policy into national

context,

formulation of new

national policy

DEFRA, DECC

supported by

Welsh Assembly

Government

The Scottish

Government

supported by

DEFRA, DECC

Department of

Environment

Northern Ireland

supported by

DEFRA, DECC

Higher risk activities IPPC installations,

Seveso II and

consent to

discharge etc.

The Environment

Agency

The Scottish

Environment

Protection Agency

The Northern

Ireland

Environment

Agency

Lower risk activities Air pollution

control, Solvents

Directive

Local Authorities

(152 in England

and 22 in Wales)

The Scottish

Environment

Protection Agency

District Councils

(26)

The responsibility for negotiating Directives and for devising UK environmental legislation is with Central Government/Devolved Administrations (supported by the regulators). Defra (Department for Environment, Food and Rural Affairs) and DECC (Department for Energy and Climate Change) are the primary leads for the development and implementation of environmental policies. It is, however, noted that some major pieces of environmental legislation have been introduced by both the Department for Business, Innovation and Skills, BIS (formally Department for Business, Enterprise and Regulatory Reform; BERR and prior to that the Department for Trade and Industry; DTI) and CLG (Department for Communities and Local Government).



In general the Lead Department is responsible for policy making including consultation, impact assessment and review. The environmental regulators (for example the Environment Agency) are responsible for the implementation of policy. The Environment Agency was established by the Environment Act 1995, becoming fully operational in April 1996. It is a non-departmental Public body of Defra and an Assembly sponsored Public Body of the National Assembly for Wales. SEPA is Scotland’s environmental regulator and is a non-departmental public body, accountable through Scottish Ministers to the Scottish Parliament. The Northern Ireland Environment Agency (NIEA) is an agency within the Department of Environment. The NIEA was formed to replace the role fulfilled by the Environment and Heritage Service. Generally speaking each of the environmental agencies performs a similar role as the regulator managing the protection of water, land and air from potential environmental impacts. As the regulator, the environment agencies have responsibility for the setting of permits, including relevant levels of emissions and requirements, monitoring and enforcement – particularly in relation to the higher risk activities. The regulator and the respective governments interact to set the optimal design, setting and interpretation of policy and policy requirements. In relation to the current responsibilities in areas subject to potential scope extension of the RMCEI, the majority are managed via the respective country environmental regulator or local authorities (divisions are based on risk as set out in the table above). The most complicated arrangements exist in relation to the protection of habitats, birds and wildlife. Organisations such as Natural England, the Countryside Council for Wales and Scottish Natural Heritage along with the RSPB/RSPCA and the Partnership for Action against Wildlife Crime (PAW) are all involved in the implementation of this directive. From an enforcement perspective the UK has two independent Scientific Authorities: the Joint Nature Conservation Committee (JNCC) for animals, and the Royal Botanic Gardens, Kew for plants. That support the UK Border Agency and the Police (and PAW) to enforce CITES controls within the UK. In addition to DEFRA-sponsored bodies such as the Environment Agency and Natural England, there are twelve bodies that form part of the core Department with inspection and enforcement duties. These are: • Agricultural Wages Team; • Drinking Water Inspectorate; • Egg Marketing Inspectorate; • Fish Health Inspectorate; • Global Wildlife Division – Wildlife Inspectorate, and Licensing and Bird

Registration; • Horticultural Marketing Inspectorate; • Plant Health and Seeds Inspectorate; • Plant Varieties and Seeds Division; • Rural Development Service – Dairy Hygiene Inspectorate, and National Wildlife

Management Team; • Sea Fisheries Inspectorate; and



• State Veterinary Service (SVS). Inspections

In general Central Government takes the lead on the development of policy with the Devolved Administrations drawing on this work and typically developing comparable policies and regulations. The respective country regulators implement these policies often following comparable practices. The following section focuses on the Environment Agency as a representative example for the UK. The UK has completed extensive work considering the inspection and enforcement of regulations; most notably through the work completed for the Hampton Report in 2004 and published in 2005. This review considered the UK regulators, including the Environment Agency and Local Authorities, and formulated recommendations for improvements to be made to regulation formulation, inspection and enforcement. The regulators within the Hampton review's scope carry out more than 3 million inspections each year, of which about one-third are undertaken by national regulators, and about two thirds by local authorities. Each regulator has autonomy in deciding its own inspection policy, although this is sometimes subject to statutory or other guidance – the Environment Agency for example have drawn on The RMCEI in the development of its risk based approach to inspection. At the time of the Hampton report there was no central coordination of inspection policy, and no Government position on how inspections should be planned, other than the broad principles of enforcement set out in the Enforcement Concordat. The Hampton Report recommendations became the government position on planning and enforcement supported by the Better Regulation Executive and the National Audit Office. The majority of regulators in the Hampton review remit carry out some inspection, although regimes differ from regulator to regulator. Most of the Environment Agency's inspections are based on permits although it also carries out inspections at sites that may be operating without a permit and responds to incidents or information from the public. It issues permits allowing certain activities to be carried out, and then inspects the permitted activity to ensure conditions set for the operation are being met. The Environment Agency is responsible for regulating every business on environmental issues in England and Wales, but the majority of its inspection programme covers only those which are required in legislation to obtain permits. The Hampton Report notes that in fulfilment of the requirements of The RMCEI, the Environment Agency's inspection regime now includes the following activities: • site visits (planned and reactive, pre-arranged and unannounced); • monitoring environmental quality standards; • consideration of environmental audit reports and statements; • consideration and verification of any self-monitoring carried out by or on behalf of

operators; • assessing the activities and operations carried out at controlled installations;



• checking premises, including any relevant equipment and the adequacy of environmental management at the site; and

• checking records kept by the operators of controlled installations. The Environment Agency's published model of modern regulation (set out in 2005) is based around four components which are: 190 • Defining outcomes and risks – based on environmental need, national and

international legislation and policy objectives, and adopting best practice; • Choice of instruments – e.g. direct regulation, permits, environmental taxes, trading

schemes, voluntary agreements, education and advice. In some situations the best way of achieving the desired outcome is to use a combination of instruments;

• Compliance assessment and enforcement – including assessing the effectiveness of Environmental Management Systems, and using tools to assess risk e.g. Compliance Assessment Plans (CAPs);

• Evaluation and information – the Environment Agency encourages businesses to make information on their environmental performance available to stakeholders.

The 'delivering for the environment report' cited above highlights that the principles of regulation adopted by the Agency are aligned with the five principles set out by the Better Regulation Taskforce. It is recognised that applying the right approach is essential to achieving environmental objectives efficiently and effectively, and that there is scope for the use of alternative regulatory instruments which have potential to deliver the same outcomes as direct regulation, which are more cost effective and offer greater flexibility191. The frequency and type of inspection activity is primarily based on consideration of environmental risk and operator performance, as discussed below, though full risk-based activity is constrained by the need to meet legislative or statutory requirements. Where an operator has a suitably robust management system, the EA are increasingly encouraging operators to self-monitor and self-report. This already happens in Integrated Pollution Control (IPC), Pollution Prevention and Control (PPC) and Radioactive Substances regimes. As well as having some general responsibilities for environmental oversight, the Environment Agency issues precisely drafted permits and licences to business. There are approximately 270.000 environmental permits (including 37.000 water abstraction licences), 7.000 consents for land drainage, and 8.000 consents for fish movements. In order to ensure that those licences are being complied with, a fairly intensive inspection regime has historically been judged to be necessary. Research by the NAO (National Audit Office) highlighted that in 2006/07 the Agency regulated approximately 750.000 businesses, employed around 3.500 regulatory staff (approximately 1.000 fte front-line inspectors) and had a budget of £311 million for this regulation. Inspections are undertaken by the Agency's own staff although local authorities have complementary responsibility for some local environmental issues. In

190 Delivering for the environment: a 21st century approach to regulation, Environment Agency, February 2005. 191 http://www.environment-agency.gov.uk/static/documents/Business/delivering_1906007.pdf.



2006/07 the NAO estimated that 140.000 inspections were completed and noted that there was some evidence of a reduction in the number of inspections from 2001 where over 200.000 inspections and 100 in-depth audits were completed. In terms of enforcement action, in 2006/07 the Environment Agency issued 24.651 written warnings, 546 statutory notices and 1.475 prosecutions/fines/licence revocations/injunctions (including 731 formal cautions in lieu of prosecution), giving a total of 26.672 formal actions. Approaching 20% of the Agency's inspections in 2006/07 led to some enforcement action, of the stock of regulated firms approximately 1 in 1.000 were served notices, and 2 in 1.000 were prosecuted. The work completed by the NAO was published in 2008 in its report looking at how the Hampton recommendations were being implemented. 192 The report largely commended the Agency's efforts in this respect but highlighted a number of continuing deficiencies regarding inspection, particularly with regard to the underpinning logic for the current level of inspection activity. It identified a belief within the Agency that inspection helped to achieve its desired environmental outcomes, the problem being that there was no actual evidence for this perceived causal link. Therefore the NAO recommended that the Agency clarify this issue, as, given the relatively high levels of inspection being undertaken, this type of evidence would help the Agency to justify its current policy and levels of expenditure. The Environment Agency's approach to inspections is based on a number of tools, including: • Assessment methodology – providing guidance for the front-line inspection staff on

how to undertake a compliance assessment; • Compliance Classification Scheme (CCS) – classifies non-compliance according to

potential severity; • EP OPRA – tool applied to environmental permitting regimes to support risk

appraisal; • Compliance Assessment Plans (CAP) – setting out national, sector and site specific

objectives with Environment Agency resource assigned to each. Sector CAPs contain objectives relevant to a specific sector and set out the proportion of effort that should be directed to each compliance activities (including inspections). Some sites will have a bespoke CAP, incorporating locally specific considerations. Lower risk sites are less likely to have a specific CAP.

The Environment Agency Operator Performance and Risk Appraisal (OPRA) screening methodology noted above is used to profile businesses based on risk. The OPRA methodology takes into account the potential hazard (location, emissions and operational complexity) and an operator's management performance, to provide an environmental risk profile. OPRA was introduced for the Pollution Prevention and Control (PPC) regime in 2003 and for Waste Management Licensing in 2005. There are five elements to OPRA each of which is graded from A (low risk) to E (high risk). The five elements are: complexity, location, emissions, operator performance and

192 Regulatory quality: How regulators are implementing the Hampton Vision, National Audit Office, July 2008.



compliance rating. The resulting banded profile allows the Environment Agency to target operators that present the highest risk. The Environment Agency is planning to use EP OPRA as the basis of the majority of its regulatory systems in the future to ensure that business sees, and understands, a consistent approach to the regulation of its environmental impacts. Case Study: Environmental Permitting Regime

The first phase of the Environmental Permitting Programme has been in force since April 2008 and combines

Waste Management Licensing (WML) and Pollution Prevention and Control (PPC) legislation. The intention is to

create a single, more user-friendly and modern permitting and compliance system for WML and PPC and work

is now underway to extend it to include further permitting and compliance regimes. This implements 11

European Directives and provides the means to implement new ones. The regulations also provide the means

to transfer regulatory responsibility between the Local Authority and the Environment Agency to give a single

regulator for a site. The system simplifies permit applications, amendments and variations for both industry and

regulator, allowing regulators to focus on medium-to-high risk operations while maintaining environmental

protection standards. It is regarded as one of DEFRA's better regulation initiatives, designed to improve

regulatory activity, cut admin burdens and focus on better service delivery. The Environment Agency estimates

that implementing this regime has taken 400 documents out of use193.

Permits are required for the following activities and operators must demonstrate compliance with the permit

conditions:

• Installations carrying out ‘schedule 1’ activities (covering sites within energy, metals, minerals, chemicals,

waste management and a range of other sectors);

• A waste operation (handling materials that have been or will be 'discarded');

• A mobile plant (carrying out either a schedule 1 activity or waste operation).

The following table shows a breakdown of regulated activities at the time that EPR was introduced.

System To tal num ber -

Eng land Tota l number -

W ales Total num ber

Po llution Prevention and Cont ro l A (1 ) 3,2 00 356 3 ,556

Po llution Prevention and Cont ro l A (2 ) 480 20 50 0

Po llution Prevention and Cont ro l B – A ir Pollut ion

Contro l 22,080 920 23 ,000

W aste Management licensing 8,1 10 901 9 ,011

Registered waste e xem ption from L icensing 64,400 5,600 70 ,000

W aste Management Licences at farms 110 40 15 0

Registered waste e xem ption s a t farm s 480 ,300 7 9,700 56 0,000

Source: Regulatory Impact Assessment, DEFRA

The Agency's Central Operations Team collate information on inputs, outputs and associated outcomes for all

inspection regimes.

At a regime level, the Agency's Compliance Classification Scheme (CCS) is used to assess non-compliance at

permitted sites. The principle of the scheme is to evaluate non-compliance in accordance with the potential

193 Regulatory quality: How regulators are implementing the Hampton Vision, National Audit Office, July 2008.



environmental effect:

• A non-compliance which has a potentially major environmental effect will be assessed as a Compliance

Classification Scheme (CCS) Category 1;

• A non-compliance which has a potentially significant environmental effect will be assessed as a CCS

Category 2;

• A non-compliance which has a potentially minor environmental effect will be assessed as a CCS Category

3; and

• A non-compliance which has no potential environmental effect will be assessed as a CCS Category 4.

There categorisations are linked to an enforcement response:

• For CCS Category 1 the normal enforcement response is a Prosecution;

• For CCS Category 2 the normal enforcement response is a Formal Caution or Prosecution;

• For CCS Category 3 and 4 the normal response is a Warning.

For any of the Categories above an enforcement notice may also be served. It is thought that interrogation of

the CCS database could provide an overview of non-compliance levels for the regime as a whole.

The Environmental Permitting Regulations (2007) places a duty on the Agency to periodically review permits

and undertake appropriate periodic inspections, using a risk-based approach which prioritises sites with OPRA

bands D, E and F. The Agency also intends to take a role in challenging the larger companies to go beyond

regulation e.g. by reducing their overall carbon footprint and environmental legacy/product lifecycle (in particular

end of life provisions).

For 2009/10 (the second year of EPR) the target is for at least 25% of effort to be spent on audits for industrial

activities, major landfills and large waste treatment operations, measured at a national level. Site visits are to be

undertaken to result in a minimum of 2 inspections per year, except for WEEE storage, burial of dead pets and

intensive livestock covered by the pig and poultry assurance scheme. Inspections in excess of 2 per year are to

be carried out on the basis of risk.

The purpose of inspection is to focus on the root causes of non-compliances that are related to the operator’s

management of the site, not the symptoms.

Information on resource inputs by the Environment Agency was not readily available for this regime at the time

of writing.

The inspection activity undertaken as part of this regime is expected to link to the following measurable

outcomes:

• Reduction in the number of businesses with higher risk OPRA scores – measured through % of sites in

bands D and E;

• Reduction in the number of significant permit breaches – measured by a reduction in CCS Cat 1 and 2.

The existence of the regime would also be expected to have a deterrent effect, although it is thought that

inspection activity will exert more influence on waste sites which are likely to be smaller companies which would

be expected to gain more from non-compliance. PPC covers mostly larger companies and it would seem

reasonable to assume that it is not within their interest to not comply as there is likely to be a greater number of

checks in place which could potentially uncover any non-compliance (e.g. external systems audits).



RMCEI policy

RMCEI has been influential in shaping the direction of inspection activities in the UK. As noted above, the Hampton Report (2005) stated that the Environment Agency had fulfilled the requirements of this Recommendation by implementing a number of activities. Feedback collected for this work identifies that the Environment Agency considers the UK to have an effective risk-based and outcome focused inspection regime. The Agency note that The RMCEI provides a flexible framework (supported by IPEL) within which appropriate risk-based and outcome focused approaches to developing inspection programmes can be accommodated. It includes the main elements for inspection programmes without restricting the approach to implementation and provides guidance and good practice examples. The Environment Agency considers that the RMCEI criteria adequately cover the main principles for organising, carrying out and following up inspections and, while not explicitly cited, it is considered by the author that the Environment Agency's approach to and guidance for inspectors has been positively influenced by the RMCEI criteria. The Environment Agency considers that inspection planning needs to be carefully conceived taking account of the potential for non-geographic approaches based on sectors or companies (particularly where there are high numbers of installations to consider). It has developed its CAPs approach to help define and support such planning in the context of all compliance activities. As with the guidance for inspectors the RMCEI criteria are not specifically cited but are believed to have influenced the development of this process. Feedback obtained for this study suggests that the Environment Agency do not believe the RMCEI is a suitable mechanism for the assessment of inspection effectiveness as it comprises a recommendation on providing a framework on how to carry out environmental inspections. They recommend that any measure of effectiveness of a compliance regime (of which a key part is inspections) must be based on achievement of outcomes rather than simple outputs such as inspection numbers. Emphasising activity rather than results would produce metrics that are not a reliable translation of performance. The context of any indicator is vital and needs to link clearly to the desired outcomes. In the UK indicators other than IMPEL are used. In England and Wales the Environment Agency use outcome based targets and success measures linked to the corporate strategy. For example: the number of sites with poorer performance, the number of serious pollution incidents and the emissions of primary pollutants. The UK provides information in respect of inspections to the Commission when this is requested. The RMCEI criteria have influenced the development of the inspection approach in the UK, however. The flexibility for the regulator provided through the framework approach is emphasised by the regulator as one of its strengths. Given the extent of the changes that have occurred (and continue to) in the UK in relation to environmental regulation and inspection it is unclear at the current time whether a stronger focus on RMCEI and improving the recommendation would result in any additional policy changes.



Annex 4 Sectoral Environmental Legislation and Relevant Non-legislative Acts

Env inspections final report_edited 216

Sectoral environmental legislation and relevant non-legislative acts

Sectoral legislation

Relevant text relating to inspections

Air & Climate Change

Directive 2009/31/EC of the European Parliament and of the

Council of 23 April 2009 on the geological storage of carbon

dioxide - ( CCS Directive)

Article 15: Inspections.

1. MS shall ensure that the competent authorities organise a system of routine and non-routine inspections of all storage complexes within the scope of

this Directive for the purposes of checking and promoting compliance with the requirements of the Directive and of monitoring the effects on the

environment and on human health.

2. Inspections should include activities such as visits of the surface installations, including the injection facilities, assessing the injection and monitoring

operations carried out by the operator, and checking all relevant records kept by the operator.

3. Routine inspections shall be carried out at least once a year until three years after closure and every five years until transfer of responsibility to the

competent authority has occurred. They shall examine the relevant injection and monitoring facilities as well as the full range of relevant effects from

the storage complex on the environment and on human health.

4. Non-routine inspections shall be carried out:

(a) if the competent authority has been notified or made aware of leakages or significant irregularities pursuant to Article 16(1);

(b) if the reports pursuant to Article 14 have shown insufficient compliance with the permit conditions;(c) to investigate serious complaints related to the

environment or human health;

(d) in other situations where the competent authority considers this appropriate.

5. Following each inspection, the competent authority shall prepare a report on the results of the inspection. The report shall evaluate compliance with

the requirements of this Directive and indicate whether or not further action is necessary. The report shall be communicated to the operator concerned

and shall be publicly available in accordance with relevant Community legislation within two months of the inspection.


Council of 21 October 2009 on Stage II petrol vapour

recovery during refuelling of motor vehicles at service

stations

(12) Periodic checks of all installed Stage II petrol vapour recovery equipment should be performed in order to ensure that petrol vapour recovery

equipment produces real reductions in emissions. MS may decide that checks are to be performed by one or more of the following: official inspection

services, the operator itself or a third party. In the case of official inspections, MS should have regard to the RMCEI of the European Parliament and of

the Council of 4 April 2001 providing for minimum criteria for environmental inspections in the MS.


217


Council of 21 May 2008 on ambient air quality and cleaner air

for Europe

Article 3: Responsibilities

MS shall designate at the appropriate levels the competent authorities and bodies responsible for the following:

(a) assessment of ambient air quality;

(b) approval of measurement systems (methods, equipment, networks and laboratories);

(c) ensuring the accuracy of measurements;

• (d) analysis of assessment methods;

• (e) coordination on their territory if Community-wide quality assurance programmes are being organised by the Commission;

• (f) cooperation with the other MS and the Commission;

• Where relevant, the competent authorities and bodies shall comply with Section C of Annex I.

Waste Management


Council of 15 March 2006 on the management of waste from

extractive industries and amending Directive 2004/35/EC

(27) It is necessary for MS to ensure that competent authorities organise an effective system of inspections or equivalent control measures in respect of

waste facilities servicing the extractive industries. […] In addition, MS should ensure that operators and their successors maintain up-to-date records

relating to such waste facilities and that operators transfer to their successors information concerning the state of the waste facility and its operations.

Article 17

Inspections by the competent authority

1. Prior to the commencement of deposit operations and at

regular intervals thereafter, including the after-closure phase,

to be decided by the Member State concerned, the competent

authority shall inspect any waste facility covered by Article 7

in order to ensure that it complies with the relevant conditions

of the permit. An affirmative finding shall in no way reduce

the responsibility of the operator under the conditions of the

permit.

2. MS shall require the operator to keep up-to date

records of all waste management operations and make

them available for inspection by the competent authority and


to ensure that, in the event of a change of operator during the

management of a waste facility, there is an appropriate transfer

of relevant up-to-date information and records relating to the waste facility. Article 22 Implementing and amending measures 1. By 1 May 2008, the Commission shall adopt, in accordance with the procedure referred to in Article 23(2), the provisions necessary for the following, prioritising (e), (f) and (g): … (d) technical guidelines for inspections in accordance with Article 17;


Council of 19 November 2008 on waste and repealing certain

Directives

Article 34: Inspections

1. Establishments or undertakings which carry out waste treatment operations, establishments or undertakings which collect or transport waste on a

professional basis, brokers and dealers, and establishments or undertakings which produce hazardous waste shall be subject to appropriate periodic

inspections by the competent authorities.

2. Inspections concerning collection and transport operations shall cover the origin, nature, quantity and destination of the waste collected and

transported.

3. MS may take account of registrations obtained under the Community Eco-Management and Audit Scheme (EMAS), in particular regarding the

frequency and intensity of inspections.

Directive 1999/31/EC of 26 of April 1999 on the landfill of

waste

Article 11: Waste acceptance procedures

1. MS shall take measures in order that prior to accepting the waste at the landfill site:

(a) before or at the time of delivery, or of the first in a series of deliveries, provided the type of waste remains unchanged, the holder or the

operator can show, by means of the appropriate documentation, that the waste in question can be accepted at that site according to the

conditions set in the permit, and that it fulfils the acceptance criteria set out in Annex II;

(b) the following reception procedures are respected by the operator:

- checking of the waste documentation, including those documents required by Article 5(3) of Directive 91/689/EEC and, where they apply,

those required by Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into

and out of the European Community(10);

- visual inspection of the waste at the entrance and at the point of deposit and, as appropriate, verification of conformity with the description

provided in the documentation submitted by the holder. If representative samples have to be taken in order to implement Annex II, point 3,


219

level 3, the results of the analyses shall be kept and the sampling shall be made in conformity with Annex II, point 5. These samples shall be

kept at least one month;

- keeping a register of the quantities and characteristics of the waste deposited, indicating origin, date of delivery, identity of the producer or

collector in the case of municipal waste, and, in the case of hazardous waste, the precise location on the site. This information shall be made

available to the competent national and Community statistical authorities when requested for statistical purposes;

(c) the operator of the landfill shall always provide written acknowledgement of receipt of each delivery accepted on the site;

(d) without prejudice to the provisions of Regulation (EEC) No 259/93, if waste is not accepted at a landfill the operator shall notify without

delay the competent authority of the non-acceptance of the waste.

2. For landfill sites which have been exempted from provisions of this Directive by virtue of Article 3(4) and (5), MS shall take the necessary

measures to provide for:

- regular visual inspection of the waste at the point of deposit in order to ensure that only non-hazardous waste from the island or the isolated

settlement is accepted at the site; and

- a register on the quantities of waste that are deposited at the site be kept.

MS shall ensure that information on the quantities and, where possible, the type of waste going to such exempted sites forms part of the

regular reports to the Commission on the implementation of the Directive.

Article 12

Control and monitoring procedures in the operational phase MS shall take measures in order that control and monitoring procedures in the

operational phase meet at least the following requirements:

(a) the operator of a landfill shall carry out during the operational phase a control and monitoring programme as specified in Annex III;

(b) the operator shall notify the competent authority of any significant adverse environmental effects revealed by the control and monitoring

procedures and follow the decision of the competent authority on the nature and timing of the corrective measures to be taken. These

measures shall be undertaken at the expense of the operator.

At a frequency to be determined by the competent authority, and in any event at least once a year, the operator shall report, on the basis of

aggregated data, all monitoring results to the competent authorities for the purpose of demonstrating compliance with permit conditions and

increasing the knowledge on waste behaviour in the landfills;

(c) the quality control of the analytical operations of the control and monitoring procedures and/or of the analyses referred to in Article 11(1)(b)

are carried out by competent laboratories.


Article 13: Closure and after-care procedures

MS shall take measures in order that, in accordance, where appropriate, with the permit:

(a) a landfill or part of it shall start the closure procedure:

(i) when the relevant conditions stated in the permit are met; or

(ii) under the authorisation of the competent authority, at the request of the operator; or

(iii) by reasoned decision of the competent authority;

(b) a landfill or part of it may only be considered as definitely closed after the competent authority has carried out a final on-site inspection,

has assessed all the reports submitted by the operator and has communicated to the operator its approval for the closure. This shall not in

any way reduce the responsibility of the operator under the conditions of the permit;

(c) after a landfill has been definitely closed, the operator shall be responsible for its maintenance, monitoring and control in the after-care

phase for as long as may be required by the competent authority, taking into account the time during which the landfill could present hazards.

The operator shall notify the competent authority of any significant adverse environmental effects revealed by the control procedures and shall

follow the decision of the competent authority on the nature and timing of the corrective measures to be taken;

(d) for as long as the competent authority considers that a landfill is likely to cause a hazard to the environment and without prejudice to any

Community or national legislation as regards liability of the waste holder, the operator of the site shall be responsible for monitoring and

analysing landfill gas and leachate from the site and the groundwater regime in the vicinity of the site in accordance with Annex III.

Water Quality


Council of 23 October 2000 establishing a framework for

Community action in the field of water policy

Annex V

1.4. Classification and presentation of ecological status

1.4.1. Comparability of biological monitoring results. As part of this exercise the Commission shall facilitate an exchange of information between

Members States leading to the identification of a range of sites in each ecoregion in the Community; these sites will form an intercalibration network.

The network shall consist of sites selected from a range of surface water body types present within each eco-region. For each surface water body type

selected, the network shall consist of at least two sites corresponding to the boundary between the normative definitions of high and good status, and at

least two sites corresponding to the boundary between the normative definitions of good and moderate status. The sites shall be selected by expert

judgement based on joint inspections and all other available information.

Industrial Pollution Control


221

Directive 2010/75/EU of the European Parliament and of the

Council

of 24 November 2010 on industrial emissions (integrated

pollution prevention and control) (Recast)

Article 3 (22) ‘environmental inspection’ means all actions, including site visits, monitoring of emissions and checks of internal reports and follow-up

documents, verification of self-monitoring, checking of the techniques used and adequacy of the environment management of the installation,

undertaken by or on behalf of the competent authority to check and promote compliance of installations with their permit conditions and, where

necessary, to monitor their environmental impact;

Article 23 : Environmental inspections

1. MS shall set up a system of environmental inspections of installations addressing the examination of the full range of relevant environmental effects

from the installations concerned. MS shall ensure that operators afford the competent authorities all necessary assistance to enable those authorities to

carry out any site visits, to take samples and to gather any information necessary for the performance of their duties for the purposes of this Directive.

2. MS shall ensure that all installations are covered by an environmental inspection plan at national, regional or local level and shall ensure that this

plan is regularly reviewed and, where appropriate, updated.

3. Each environmental inspection plan shall include the following:

(a) a general assessment of relevant significant environmental issues;

(b) the geographical area covered by the inspection plan;

(c) a register of the installations covered by the plan;

(d) procedures for drawing up programmes for routine environmental inspections pursuant to paragraph 4;

(e) procedures for non-routine environmental inspections pursuant to paragraph 5;

(f) where necessary, provisions on the cooperation between different inspection authorities.

4.Based on the inspection plans, the competent authority shall regularly draw up programmes for routine environmental inspections, including the

frequency of site visits for different types of installations.

The period between two site visits shall be based on a systematic appraisal of the environmental risks of the installations concerned and shall not

exceed 1 year for installations posing the highest risks and 3 years for installations posing the lowest risks.

If an inspection has identified an important case of non-compliance with the permit conditions, an additional site visit shall be carried out within 6

months of that inspection.

The systematic appraisal of the environmental risks shall be based on at least the following criteria:

(a) the potential and actual impacts of the installations concerned on human health and the environment taking into account the levels and types of

emissions, the sensitivity of the local environment and the risk of accidents;

(b) the record of compliance with permit conditions;


(c) the participation of the operator in the Union eco-management and audit scheme (EMAS), pursuant to Regulation (EC) No 1221/2009

The Commission may adopt guidance on the criteria for the appraisal of environmental risks.

5. Non-routine environmental inspections shall be carried out to investigate serious environmental complaints, serious environmental accidents,

incidents and occurrences of non-compliance as soon as possible and, where appropriate, before the granting, reconsideration or update of a permit.

6. Following each site visit, the competent authority shall prepare a report describing the relevant findings regarding compliance of the installation with

the permit conditions and conclusions on whether any further action is necessary.

The report shall be notified to the operator concerned within 2 months of the site visit taking place. The report shall be made publicly available by the

competent authority in accordance with Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to

environmental information within 4 months of the site visit taking place.

Without prejudice to Article 8(2), the competent authority shall ensure that the operator takes all the necessary actions identified in the report within a

reasonable period.

Chemicals & GMOs

Regulation (EC) No 1005/2009 of the European Parliament

and of the Council of 16 September 2009 on substances that

deplete the ozone layer (recast).

(23)

MS should carry out inspections, taking a risk-based approach in order to ensure compliance with all provisions of this Regulation and thus targeting

those activities representing the highest risk of illegal trade or emission of controlled substances. The Recommendation of the European Parliament

and of the Council of 4 April 2001 providing for minimum criteria for environmental inspections in the MS(OJ L 118, 27.4.2001, p. 41) should provide

guidance for the carrying out of inspections by MS.

Article 28

Inspection

1.

MS shall conduct inspections on the compliance of undertakings with this Regulation, following a risk-based approach, including inspections on imports

and exports of controlled substances as well as of products and equipment containing or relying on those substances. The competent authorities ofthe

MS shall carry out the investigations which the Commission considers necessary under this Regulation.

2.


223

Subject to the agreement of the Commission and of the competent authority of the Member State within the territory of which the investigations are to

be made, the officials of the Commission shall assist the officials of that authority in the performance of their duties.

3.

In carrying out the tasks assigned to it by this Regulation, the Commission may obtain all necessary information from the governments and competent

authorities of the MS and from undertakings. When requesting information from an undertaking the Commission shall at the same time forward a copy

of the request to the competent authority of the Member State within the territory of which the undertaking’s seat is situated.

4.

The Commission shall take appropriate action to promote an adequate exchange of information and cooperation between national authorities and

between national authorities and the Commission.

The Commission shall take appropriate steps to protect the confidentiality of information obtained under this Article.

5.

At the request of another Member State, a Member State may conduct inspections of undertakings or investigations of undertakings suspected of being

engaged in the illegal movement of controlled substances and which are operating on the territory of that Member State.

Directive 2010/63/EU of the European Parliament and of the

Council of 22 September 2010 on the protection of animals

used for scientific purposes

Article 34

Inspections by the Member States

1. MS shall ensure that the competent authorities carry out regular inspections of all breeders, suppliers and users, including their establishments, to

verify compliance with the requirements of this Directive.

2. The competent authority shall adapt the frequency of inspections on the basis of a risk analysis for each establishment, taking account of:

(a) the number and species of animals housed;

(b) the record of the breeder, supplier or user in complying with the requirements of this Directive;

(c) the number and types of projects carried out by the user in question; and

(d) any information that might indicate non-compliance.

3. Inspections shall be carried out on at least one third of the users each year in accordance with the risk analysis referred to in paragraph 2. However,

breeders, suppliers and users of non- human primates shall be inspected at least once a year.

4. An appropriate proportion of the inspections shall be carried out without prior warning.

5. Records of all inspections shall be kept for at least 5 years.

Article 35

Ecorys page 224 224

Controls of Member State inspections

1. The Commission shall, when there is due reason for concern, taking into account, inter alia, the proportion of inspections carried out without prior

warning, undertake controls of the infrastructure and operation of national inspections in MS.

2. The Member State in the territory of which the control referred to in paragraph 1 is being carried out shall give all necessary assistance to the experts

of the Commission in carrying out their duties. The Commission shall inform the competent authority of the Member State concerned of the results of

the control.

3. The competent authority of the Member State concerned shall take measures to take account of the results of the control referred to in paragraph 1.

Council Directive 96/82/EC of 9 December 1996 on the

control of major-accident hazards involving dangerous

substances

Seveso II Directive (consolidated version)

Article 18

Inspections

1. MS shall ensure that the competent authorities organize a system of inspections, or other measures of control appropriate to the type of

establishment concerned. Those inspections or control measures shall not be dependent upon receipt of the safety report or any other report

submitted. Such inspections or other control measures shall be sufficient for a planned and systematic examination of the systems being employed at

the establishment, whether of a technical, organizational or managerial nature, so as to ensure in particular:

— that the operator can demonstrate that he has taken appropriate measures, in connection with the various activities involved in the establishment, to

prevent major accidents,

— that the operator can demonstrate that he has provided appropriate means for limiting the consequences of major accidents, on site and off site,

— that the data and information contained in the safety report, or any other report submitted, adequately reflects the conditions in the establishment,

— that information has been supplied to the public pursuant to Article 13 (1).

2. The system of inspection specified in paragraph 1 shall comply with the following conditions:

(a) there shall be a programme of inspections for all establishments. Unless the competent authority has established a programme of inspections based

upon a systematic appraisal of major-accident hazards of the particular establishment concerned, the programme shall entail at least one on-site

inspection made by the competent authority every twelve months of each establishment covered by Article 9;

(b) following each inspection, a report shall be prepared by the competent authority;

(c) where necessary, every inspection carried out by the competent authority shall be followed up with the management of the establishment, within a

reasonable period following the inspection.

3. The competent authority may require the operator to provide any additional information necessary to allow the authority fully to assess the possibility

of a major accident and to determine the scope of possible increased probability and/or aggravation of major accidents, to permit the preparation of an

external emergency plan, and to take substances into account which, due to their physical form, particular conditions or location, may require additional


225

consideration.

Proposal for a Directive of the European parliament and of

the Council on control of major-accident hazards involving

dangerous substances COM/2010/0781 final - COD

2010/0377 (proposal for a new Seveso II Directive)

Article 19

Inspections

1. MS shall ensure that the competent authorities organise a system of inspections.

2. Inspections shall be appropriate to the type of establishment concerned. They shall not be dependent upon receipt of the safety report or any

other report submitted. They shall be sufficient for a planned and systematic examination of the systems being employed at the establishment,

whether of a technical, organisational or managerial nature, so as to ensure in particular that:

(a) the operator can demonstrate that he has taken appropriate measures, in connection with the various activities involved in the

establishment, to prevent major accidents;

(b) the operator can demonstrate that he has provided appropriate means for limiting the consequences of major accidents, on site and off site;

(c) the data and information contained in the safety report, or any other report submitted, adequately reflects the conditions in the

establishment;

(d) information has been supplied to the public pursuant to Article 13(1).

3. MS shall ensure that all establishments are covered by an inspection plan at national, regional or local level and shall ensure that this plan is

regularly reviewed and, where appropriate, updated.

Each inspection plan shall include the following:

(a) a general assessment of relevant safety issues;

(b) the geographical area covered by the inspection plan;

(c) a list of the establishments and installations covered by the plan;

(d) a list of groups of establishments with possible domino-effects pursuant to Article 8, taking into account neighbouring establishments

outside the scope of this Directive;

(e) a list of establishments where particular external risks or hazard sources could increase the risk or consequences of a major accident;

(f) procedures for routine inspections, including the programmes for such inspections pursuant to paragraph 4;

(g) procedures for non-routine inspections pursuant to paragraph 6;

(h) provisions on the co-operation between different inspection authorities.

4. Based on the inspections plans referred to in paragraph 3, the competent authority shall regularly draw up programmes for routine inspections for

all establishments including the frequency of site visits for different types of establishments.

The period between two site visits shall be based on a systematic appraisal of the major-accident hazards of the establishments concerned and shall


not exceed one year for upper-tier establishments and three years for lower-tier establishments. If an inspection has identified an important case

of non-compliance with this Directive, an additional site visit shall be carried out within six months.

5. The systematic appraisal of the hazards shall be based on at least the following criteria:

(a) the potential and actual impacts of the establishments concerned on human health and the environment taking into account the major-

accident hazards, the sensitivity of the local environment and the risk of accidents;

(b) the record of compliance with the requirements of this Directive;

(c) participation of the operator in the Union eco-management and audit scheme (EMAS), pursuant to Regulation (EC) No 1221/2009 of the

European Parliament and of the Council194.

Where appropriate, relevant findings of inspections under other Union legislation shall also be taken into account.

6. Non-routine inspections shall be carried out to investigate serious complaints, serious accidents and near-misses, incidents and occurrences of

non-compliance as soon as possible.

7. Within two months after each site visit, the competent authority shall communicate the conclusions of the visit and all the necessary actions

identified to the operator. The competent authority shall ensure that the operator takes all these necessary actions within a reasonable period

after receipt of the communication.

8. Inspections shall whenever possible be coordinated with inspections under other Union legislation and combined, where appropriate.

9. MS shall ensure that sufficient staff are available with the skills and qualifications needed to carry out inspections effectively. MS shall encourage

the competent authorities to provide mechanisms and tools for exchanging experience and consolidating knowledge, and to participate in such

mechanisms at Union level where appropriate.

10. MS shall ensure that operators provide the competent authorities with all necessary assistance to enable those authorities to carry out any site

visits and to gather any information necessary for the performance of their duties for the purposes of this Directive, in particular to allow the

authority to fully assess the possibility of a major accident and to determine the scope of possible increased probability or aggravation of major

accidents, to prepare an external emergency plan and to take into account substances which, due to their physical form, particular conditions or

location, may require additional consideration.


Council of 6 May 2009 on the contained use of genetically

Article 16 MS shall ensure that the competent authority organises inspections and other control measures to ensure that users comply with this

Directive.


227

modified micro-organisms

Nature Protection

Council Regulation (EC) No 1698/2005

of 20 September 2005 on support for rural development by

the European Agricultural Fund for Rural Development

(EAFRD)

(Protection of Nature and Biodiversity)

Article 74

4. MS shall undertake controls in accordance with detailed implementing rules fixed in accordance with the procedure referred to in Article 90(2),

notably regarding the type and intensity of controls, adapted to the nature of the different rural development measures.

Noise


Council of 25 June 2002 relating to the assessment and

management of environmental noise

It is also necessary to establish common assessment methods for ‘environmental noise’ and a definition for ‘limit values’, in terms of harmonised

indicators for the determination of noise levels. The concrete figures of any limit values are to be determined by the MS, taking into account, inter alia,

the need to apply the principle of prevention in order to preserve quiet areas in agglomerations.

Relevant non-legislative acts Relevant text relating to inspections

Communication from the Commission to the Council and the

European Parliament 2008 Environment Policy Review

{SEC(2009)842}

(Sustainable Development)

In December final agreement was reached on the Framework Directive on the sustainable use of pesticides. MS must enforce regular inspection of

pesticide application equipment and ban aerial spraying. In 2009, the Commission will revise the Biocides Directive, partly to adapt it to REACH. […] In

2008 the adoption procedure continued on the Commission proposal for new legislation on industrial emissions. It tightens emission limits in industrial

sectors, introduces standards for environmental inspections and extends the scope of controls to medium-sized combustion plants.

Communication from the Commission to the Council, the

European Parliament, the Economic and Social Committee

and the Committee of the Regions - Directions towards

sustainable agriculture /* COM/99/0022 final */ (soil)

I 2. FARMING AND THE ENVIRONMENT

2.1. General trends in European agriculture

2.1.3. Developments in organic farming

In addition to measures to encourage extensification, the Commission has also proposed rules covering production standards, inspection and labelling

for organic livestock production and is considering the introduction of an organic logo.

Communication from the Commission

A Sustainable Europe for a Better World: A European Union

Strategy for Sustainable Development

Improve capacity to monitor and control health impacts of certain substances (for example dioxins, toxins, pesticides) in food and the environment,

especially their effects on children.


European Parliament, the Economic and Social Committee

Actions

- Continued support for the IMPEL network of exchanging best practice on implementation between MS, and extending IMPEL to the Candidate


and the Committee of the Regions On the sixth environment

action programme of the European Community 'Environment

2010: Our future, Our choice' - The Sixth Environment Action

Programme /* COM/2001/0031 final */

(General provision)

Countries.

- Reporting on implementation by way of both the annual Commission report on monitoring the application of EC law and the annual survey on

implementing EC environmental law, and presentation of this information in the form of an implementation scoreboard.

- 'Name, shame and fame' strategy organised by the Commission on individual directives.

- Promotion of improved standards of inspection by MS.

- Initiatives to combat environmental crime.

- As necessary, pursuing action in the European Court to ensure implementation.


European Parliament, the European Economic and Social

Committee and the Committee of the Regions "Taking

sustainable use of resources forward: A Thematic strategy on

the prevention and recycling of waste"

COM (2005)666 final

The most important initiatives taken at international level are the Convention on the control of trans-boundary movements of hazardous wastes and

their disposal (the Basel Convention) and the OECD work on controlling shipments of waste and developing internationally agreed benchmarks for

environmentally sound management of waste. This aims inter alia at reinforcing institutional and non-institutional capacities in waste management in

developing countries. The EU is contributing to the creation of a control system at international level through its policies an in particular by its waste

shipment regulation that aims at ensuring a high level of environmental protection.


European Parliament

Civil protection - State of preventive alert against possible

emergencies

COM(2001)707 final

Safety in the chemical field

Chemical plants and storage facilities could become possible targets of terrorism, in particular the ones located close to towns and cities. The operators

of such installations must already consider how they react to the possibility of major accidents. Now, they are expected to reinforce safety measures, in

particular measures to control access, as far as practicable.


European Parliament

Climate Change in the Context of Development Cooperation

COM(2003)85 final

Within the framework of CSPs and NIPs, particular attention is given to support where possible the identification and implementation of no regrets

measures such as expansion of mass transit systems (road to rail), vehicle efficiency improvement through maintenance and inspection programmes,

improved traffic management, paving of roads, fuel pipeline installation, infrastructure provision for non-motorised transport, increased use of biomass

ethanol and natural gas (MS-COM-partner countries)

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