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4.4 IMPLEMENTATION AND ENFORCEMENT
The enactment of appropriate laws and regulations, such as those discussed in Section 4.3 above, is just the beginning – not the end – of creating an effective legal system on waste management. For laws and regulations to be of value and actually benefit society, they need to be implemented and enforced. Promptly acting, and then following through on the implementation once the legislation is enacted, not only highlights the importance of waste issues but also shows government competence and increases its credibility. The implementation process requires several distinct but interrelated steps:
• Translation of laws and regulations into so-called ‘interpretative’ and ‘decisional’ documents.
As laws and regulations may need clarifications and detailing in order to be properly implemented by those to whom they are addressed, interpretative documents are prepared to support and facilitate their application in practice. Supporting documents offer guidance on the interpretation of definitions; operating procedures; standards for waste handling and controls in place during waste collection, transfer and transport; acceptance criteria for waste destined for treatment or disposal at a facility with a certain level of environmental protection; procedures and standards for recovery and recycling, treatment and final disposal; and reporting requirements. If well devised, such documents can be very helpful in bringing about the envisaged changes laid out in the law. In turn, the input of waste practitioners and other stakeholders during the preparation of these documents can greatly contribute to their practical usefulness and relevance. These documents may take diverse forms, including technical and other guidelines, protocols, codes of practice, communications on best practices, memoranda of professional bodies and trade associations to their members, declarations, and the like. Professional federations such as ISWA also provide valuable input and guidance.
• Allocation of authority through the creation or adaptation of institutions. Legislation also establishes duties and authorities of appropriate government agencies and organizations. This includes the regulatory agency in charge of implementing strategies and enforcing pertinent legislation through licensing (permitting) and inspecting waste handling activities as well as controlling financial arrangements with service users.
The independence of the regulatory agency is of paramount importance. If this governmental institution also takes on other roles in the system, particularly that of waste operator, then the potential for conflicts of interests and partiality arises due to self-regulation of the inspection and control of its own waste handling activities and financial arrangements. Therefore, it is highly preferable to avoid such a situation.90
The institutional arrangements for such a regulatory agency may be organized via national or lower, regional91 governments, according to the subsidiarity principle – the level is not the critical factor in its effectiveness, provided that the agency has adequate capacity to perform its duties and the system works across the whole country.92 Either a separate regulatory agency may be established, or regulatory duties may be assigned to an existing institution. In either case, information about the new authority needs to be communicated well to both the stakeholders affected by the new legislation and the institutions that are to collaborate with it, to enhance its visibility and status.
• Developing/improving waste collection services, supported by appropriate operator models and financing structures.
• Developing waste facilities.93 While possibly not that obvious to the legislator – as mistakes made in the early days in European countries testify – this is an essential step for the waste system to function. Ideally, adequate facilities are developed in parallel to the development of legislation and the documents derived from it. This is because if the facilities are not there, waste generators and other handlers will not be able to fulfil their legal obligations. If facilities are built first, before the legislation takes effect, they are likely to remain unused (and fail to generate revenue) until there is some legal pressure on the waste generators to take their waste to the new facilities, rather than to existing facilities operating at (much) lower environmental standards and therefore able to offer a lower price or cost nothing at all. As developing facilities usually requires large or very large investments, this can pose a serious ‘implementation conundrum’, and various
90 Different roles that governmental institutions can have in a SWM system are addressed in Section 4.8, which discusses government as a stakeholder.
91 Here ‘regional’ means province (as it is called in e.g. Argentina, Canada, PRC), state (India, U.S.), federal state (Brazil, Germany), region (France, Italy) and other, at a similar level of administrative organization.
92 The issue of institutional coherence among agencies is discussed in Section 4.8.2, on institutional coherence.
93 An interesting background paper on this issue is from SLR Consulting (2005). Delivering key waste management infrastructure: Lessons learned from Europe, available at http://www.twinning-waste-bacau.ro/twinning-3/activities/pollution-prevention/ste-outputs/3-3-2-b-materials/document-britains-waste-the-lessons-we-can-learn-from- europe
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financing approaches have been used to resolve it under specific local circumstances, as discussed in Section 5.8. On the same note, as the development of waste facilities as a response to changes in legislation is likely to be costly, legislation should establish a clear path and create ‘regulatory certainty’ – as opposed to ever-changing strategies and laws with each change in government – for operators to be able to adjust and invest.94 Paying due attention to the management of the transition period is therefore critical; it is important to allow time for new instruments to be implemented, and for change to take hold;
a phased approach to implementation often works best; but equally, all stakeholders need to know when existing, non-compliant facilities will finally be closed down by the regulator.
• Data collection and reporting, consisting of developing supporting services, compulsory record keeping and declarations of waste generated by industries and municipalities, and monitoring and reporting on facilities performance. This category includes rules and guidance on how to comply with legal obligations concerning licensing of operations and facilities as well as reporting about operations of a running facility, such as (a) requirements regarding registration and reporting, such as declarations of waste generation and consignments of waste transport including export and import, (b) details of the licensing (permitting) procedures for new operators and facilities, (c) protocols for emission monitoring, sampling, testing and reporting, and (d) reporting of incidents involving hazardous substances.
• Enforcement. The law specifies what constitutes illegal activities, accompanied by the specification of penalties for them. Unfortunately, the list of failures to comply with regulations over the years around the world is a long one indeed, and it includes deliberate unauthorized waste dumping, acceptance of non- permitted waste streams at treatment or disposal facilities, inadvertent spills, illegal discharges, falsification of information, illegal waste shipments and acceptance thereof, and other criminal activities. Experience shows that credibility and transparency of enforcement is essential to promote compliance among waste handlers.95 This entails not only the prosecution of offenders but also application of a significant enough punishment that will have impact and provide effective deterrence to other potential offenders. In some countries, the message that the authorities are taking waste crime seriously is reinforced by broad publicity given to the court cases in the media, as was the case in the Czech Republic after it joined the EU and was in the process of adjusting legislation. The message the Czech authorities sent to the public at the time was unmistakably clear: new rules and regulations (in this case, on environmental protection) are here to stay and we will make sure that they do. An important aspect of enforcement is the institutional capacity to actually monitor and inspect compliance in order to enforce the law. This is often lacking, as further discussed in Section 4.8.3.
© Ainhoa Carpintero
No segregation. No collection, Philippines
• Monitoring and evaluation. While the implementation stage is important to bring about the envisaged changes in practice, it can also be seen as a test of the suitability, robustness and practicality of the piece of legislation being implemented. This is particularly true for the derived documents. Therefore, after some time passes and experiences accrue with the implementation, taking stock and consulting practitioners and other stakeholders for their feedback is a valuable learning moment for the legislator, after which an update of these documents, and perhaps the basic legislation, may be warranted. This implies that it is important that provisions for review and update are made within the original regulation.
94 The linkage between this need for ‘regulatory certainty’ and investor confidence is discussed in Section 5.5.2 on raising investment finance and Section 5.8.5 on private sector participation in investment.
95 For example, in some places even street littering cannot be fined due to the problem of corruption, as apprehending offenders may affect the political careers of those in power or the perpetrators may have ‘friends in high places’.
BOX 4.15 NATIONAL GUIDANCE DOCUMENT ON WASTE MANAGEMENT PLANNING IN COSTA RICA
In Costa Rica, the Law on Integrated Waste Management No. 8839 (Ley para la Gestión Integral de Residuos No. 8839 – Ley GIR) was promulgated as the national framework law by the Ministry of Health in 2010. Among other stipulations, the Law places responsibility on the municipalities for the integrated management of the waste generated in their counties (cantons), including preparation of SWM plans that will then guide their actions.
In addition, a more elaborated manual, the ‘Guide for the Development of Municipal Plans on Integrated SWM’, has been developed as a reference tool to assist municipalities and other local stakeholders in this process and strengthen the capacities needed to implement the Law.96
BOX 4.16 ELABORATION OF NATIONAL LAWS INTO MORE DETAILED REGULATIONS – THE EXAMPLE OF HAZARDOUS WASTE IN ARGENTINA
97Argentina is a federal republic of twenty-three provinces and one autonomous city, Buenos Aires. While each province has its own environmental legislation with National Laws as the framework, implementation arrangements are different for non-hazardous and hazardous waste. Non-hazardous waste facilities and operations are regulated and authorized by provincial and municipal authorities, in accordance with National Law No. 25.916 on the management of household waste. Hazardous waste, however, is addressed at the national level to ensure traceability from its generation to its final destination, with the Secretariat of Environment and Sustainable Development of Argentina (Secretaría de Ambiente y Desarrollo Sustentable, SAyDS) as the national agency in charge. This is based on National Law No. 24.051, promulgated in 1992, which regulates management (generation, handling, transportation, treatment and disposal) of hazardous waste generated by industrial activities and services, concerning especially:
1) hazardous waste that is generated in one province but transported to another for treatment and/or disposal; 2) export of waste (hazardous and non-hazardous) or import of non-hazardous waste. (The import of hazardous waste is prohibited in Article 41 of the National Constitution.98)
As some hazardous waste is generated by households, and it is necessary to control its destiny once discarded, this waste is addressed by specific additional regulations. For example, Resolución (Decision) No. 1729/2007 and its amended form Res.
204/201099 address operations of businesses for repair and maintenance of toner cartridges (waste stream Y12 Annex I of the Basel Convention; Annex I of Law No. 24.051). The Resolución requires that these businesses, once the cartridges cannot be refilled, repaired and reused any more, must dispose of this waste (the cartridges and the waste resulting from operations) according to the same Law No. 24.051 that applies to industries. In order to implement this Resolución, every subject that performs such activities is registered as a Generator in the National Register of Hazardous Wastes,100 which was established under the same Law. Furthermore, the SAyDS may inspect their premises at least once a year. Municipal and provincial authorities have the right to control the management of this waste as well, under their own norms and jurisdiction.
96 http://ley8839.go.cr/blog/seleccion-documentos/guia-elaboracion-planes-municipales-girs/; http://www.ifam.go.cr 97 Text is provided by Alberto Santos Capra and Irina Talamoni of the Autonomous City of Buenos Aires, Argentina.
98 Ley 24.051 de Residuos Peligrosos, http://www.ambiente.gob.ar/?aplicacion=normativa&IdNorma=147&IdSeccion=22 99 Manejo de Residuos de Cartuchos de Tonner, http://www.ambiente.gob.ar/?aplicacion=normativa&IdNorma=933&IdSeccion=22
100 Resolución Nº 204/2010 Registro Nacional de Generadores y Operadores de Residuos Peligrosos, http://www.ambiente.gob.ar/?aplicacion=normativa&IdNorma=1217&Id Seccion=22