VIGOROUS ENFORCEMENT: A NEW APPROACH
Israel, as a rapidly developing country, was primarily involved with intensive development programs during the first few decades of its existence. Environmental protection figured low on the list of national priorities. In the flurry of development, environmental sins were easily forgiven. But no more. Recent years have witnessed a revolutionary change in conceptions and norms in the realm of environmental legislation and enforcement.
Toward More Stringent Enforcement
As a follow-up to the successful implementation of the Year of the Environment (in 1994), which witnessed a dramatic increase in environmental awareness, the Ministry of the Environment decided to designate 1995 as The Year of Enforcement. Detailed enforcement programs were prepared and implemented, and national, regional and local enforcement campaigns were organized. The abundance of information campaigns, administrative measures, and criminal proceedings has made a mark, but the effort is by no means over. The Year of Enforcement has ushered in what promises to be an Era of Enforcement.
Since the establishment of the Ministry of the Environment, Israel’s body of environmental legislation has grown significantly and now covers nearly every aspect of the environment. Today, vigorous enforcement is on the agenda, and efforts are focusing both on enforcement in the field and on amending existing laws in order to provide them with more muscle. The Ministry of the Environment, in conjunction with the Ministry of Justice, has drafted a comprehensive law revising punitive measures for environmental violations.
The Amendment of Environmental Legislation (Punitive Measures) Bill includes a number of new provisions: significantly higher fine levels for nearly all environmental laws (today’s penalty for most environmental offenses $2350 is much too low); wide-ranging investigation and monitoring authority for inspectors authorized by the Ministry of the Environment; additional administrative enforcement measures; responsibility of the State for environmental pollution caused by State-owned facilities; personal responsibility of corporate managers; incremental fines for each day of continuing violations; doubling of fine levels in case of recurrence of the offense within two or three years; and authorization to the courts or the Minister of the Environment to issue injunctions ordering violators to refrain or desist from acts causing or likely to cause environmental nuisances, to repair damages or to restore conditions to the state existing prior to the environmental nuisance. While some of Israel’s legislation already contains these provisions, the intention is to apply these new measures to existing legislation in the realms of cleanliness, abatement of nuisances, billboards on interurban highways, hazardous substances and public health.
The Public’s Role in Enforcing the Cleanliness Law
High on the Environment Ministry’s priority list is a clean country. According to Israel’s Maintenance of Cleanliness Law (1984), anyone who throws waste, building debris or vehicle scrap into the public domain, is liable to a fine or prison sentence. Fines today range from $30 for discarding a cigarette butt from a car window to a maximum of $2500 for more serious littering offenses which are handled by the courts. These fine levels will be raised significantly eight-fold or more with the entrance into force of Israel’s new legislation on environmental penalties.
However, even today, a real shift is noticeable in the scale of penalties imposed on violators of the Cleanliness Law. Violators who opt for a judicial ruling, instead of paying the cleanliness fine under the ‘finable offense’ procedure, are finding out that fine levels imposed by the courts today are significantly higher than those imposed just a few years ago. For example, while in the not too distant past, convictions in court for allowing waste to drop from a truck resulted in a $150 fine, a quadrupling of this sum is now the norm. In addition, courts are increasingly calling for affidavits carrying sizable financial penalties in which violators commit themselves not to repeat the offense.
An innovative and effective enforcement feature of the Cleanliness Law enables the appointment of cleanliness inspectors from government and public agencies and cleanliness trustees from the general public, empowered to report on littering violations. Over the past decade, the number of volunteers who have joined the ranks of Israel’s cleanliness trustees has risen from several hundred to 130,000. Enforcement efforts, both by police and volunteers, have increased littering reports from hundreds per year to a thousand per month. Of the 10,000 reports which were submitted in 1995, the lion’s share were presented by ordinary citizens and by the Environmental Patrol.
The 65 littering cases which were heard in the courts in 1995 attest to the growing importance accorded to environmental enforcement. For example, testimony by one cleanliness trustee, who reported on litter blown off an uncovered truck, led to a court conviction bearing a $2000 fine or 90 day imprisonment. In another case, throwing bottles out of a car window resulted in a sentence of $700 or 45 days imprisonment. The Environmental Patrol has also played a key role in court proceedings. The testimony of one inspector, who witnessed the discharge of sewage from a sewage transport vehicle into the public domain, resulted in a $700 fine or three month imprisonment, along with a $1700 affidavit not to repeat the offense for a three-year period. In another case, the illegal pasting of announcements and billboards by a pub which operated without a business license resulted in a $1700 fine and a commitment, in the sum of $7000, not to repeat the offense.
The Cleanliness Law provides clear proof that the public’s role in enforcement is both important and effective. Throughout the country, Israel’s volunteer cleanliness trustees are helping to ensure that littering does not go unpunished. Their vigilance and perseverance in tracking down violators of the Cleanliness Law and in reporting violations are bearing fruit.
Another grave problem in a country with meager land resources, on the one hand, and an ever-increasing population, on the other hand, is solid waste disposal. Until recently, some 400 illegal garbage dumps operated in Israel. They were poorly designed and managed and many were about to reach full capacity with no alternative in sight. Today, the outlook is no longer grim. A landmark decision by the government has dictated the closure of all illegal landfill sites and the transfer of the waste to a few state-of-the-art central landfills, slated to serve the majority of the country’s population within a few years. As an incentive, the government devised a formula for compensating local authorities for transporting their wastes over greater distances due to the closure of local landfills. These compensatory fees have helped prevent the opening of new illegal landfills in place of shut-down sites. In addition, the State is financially involved in closing the landfill and in paying for transfer stations part of the scheme for transporting wastes to more distant landfills.
In line with government policy, the Ministry of the Environment has redoubled its efforts to enforce the Abatement of Nuisance Regulations
(Prevention of Unreasonable Air and Smell Pollution from Solid Waste Sites). The Environmental Patrol is especially active in this area and conducts hundreds of monthly inspections in disposal sites throughout the country. If a site operates in contravention to business licensing conditions and relevant laws, a criminal investigation is opened. In some cases, the mayor or head of the local authority is also investigated under oath along with the site’s managers and the manager of the sanitation department in the local authority. These investigations, on their own, at times expedite the implementation of remedial measures, because of the adverse publicity involved and the threat and stigma of criminal proceedings. If the situation is not remedied, the investigation file is reviewed by the Legal Division of the Ministry of the Environment which decides whether criminal charges should be pressed against the violators.
A case in point was the indictment against the local council of Beit She’an and its head for improper maintenance and management of the waste disposal site in the council. A plea bargaining agreement resulted in a fine of $8700 and an accompanying undertaking, bearing a fine of $16,700, not to repeat the offense for three years. While the head of the local council was not convicted criminally, he was required to sign a similar affidavit, carrying a $11,700 guarantee. The landfill was shut down.
In another case, charges were pressed against the managers of a landfill in Hadera, which is located on private land and run by a private company on the basis of a commercial contract. The Hadera municipality although invested with effective legal and administrative authority to enforce the required environmental criteria and regulations relating to licensing of businesses refused to make use of the powers at its disposal. On three occasions, the Ministry of the Environment submitted lawsuits against the operating company and its directors for management of the site contrary to the applicable regulations. Following the amendments to the Licensing of Businesses Law which stipulate that the operation of landfills requires a business license and that the Minister of the Environment has the authority to close a site through an administrative procedure or through an appeal to the courts for a judicial injunction, the Ministry of the Environment issued an administrative order closing down the site, and ordered the Hadera municipality to evacuate its waste to an alternative site. The court upheld the administrative closure, and later approved a settlement between the Ministry of the Environment and the managers. The price a $15,000 fine (or in the case of non-payment, 120 days imprisonment against the directors) and a signed commitment to desist from any similar offense for a period of three years, accompanied by a fine of $7,000 in case of further violation.
Stepped-up enforcement has led to numerous more indictments of site operators and to the shut-down of improperly-managed landfills and dumps. Enforcement efforts, using both voluntary and judicial enforcement measures, have resulted in the closure of 61 illegal sites in 1993, 83 sites in 1994, and 54 in 1995. Greater environmental awareness, stiffer fines and the possibility to indict under both the Licensing of Businesses Law and the Abatement of Nuisances Regulations have made it quite clear that violations do not pay.
Passage of the Hazardous Substances Law in 1993 constituted an important breakthrough in the safe management of hazardous substances. The administrative means for enforcement established by the law include a licensing requirement, in accordance with the Licensing of Businesses Law, for any premise engaged in the sale of hazardous substances, and a poisons permit requirement for any person dealing in toxic substances. Authority is also granted to the Customs Bureau to stop the delivery of imported toxic substances to anyone not holding the proper permit, and restrictions are placed on the sale of toxic substances by manufacturers, wholesalers and retailers. The law enables an authorized representative of the Minister of the Environment to enter any premise dealing with hazardous substances, with the exception of pharmacies, for purposes of inspection, investigation, and collection of samples.
Licensing of Businesses Regulations on hazardous industrial plants were promulgated in 1993 and require owners of industrial plants in which hazardous substances are stored, sold, processed or produced to take all necessary measures to treat these materials according to the best available technology and to manufacturer instructions. Owners of industrial plants handling large amounts of hazardous materials are required to prepare files on hazardous substance treatment during accidents and emergencies. They are also required to present an annual report to the licensing authority which includes, inter alia, up-to-date information on types, quantities and uses of the hazardous substances in their possession. In addition, regulations were promulgated on the disposal of hazardous wastes to the central storage and treatment site in Ramat Hovav. Any disposal elsewhere, for purposes of recycling, reuse or other treatment, must be approved in advance by the Ministry of the Environment.
In recent years, the Ministry of the Environment has invested major efforts in preparing the infrastructure for enforcement of the-above laws and regulations: establishment of a permit system, identification of facilities requiring permits, computerization of data, and contacts with customs officials and chemical suppliers to ensure that hazardous waste is not delivered to industries which do not maintain the requisite permit. The Information Center for Hazardous Substances plays an important part in the enforcement effort by collecting both quantitative and qualitative data on hazardous materials in every sector. Information is received from importers, suppliers, users, producers and transporters of hazardous substances as well as from the agricultural sector, government ministries, the hazardous waste site at Ramat Hovav, customs officials, local authorities and licensing authorities.
The Hazardous Substances Division of the Ministry of the Environment considers administrative enforcement to be its most effective tool. In recent months, special attention has been granted to identifying the suppliers of hazardous materials. These suppliers are advised and warned not to sell hazardous materials to anyone who does not hold a poisons permit. First priority has been granted to suppliers of chlorine for swimming pools and wastewater treatment plants and of anhydrous ammonia to industrial cooling facilities. While poison permits for these substances were few and far between only a few years ago, today nearly all consumers are covered. Enforcement is now being extended to additional substances, with methyl bromide in first priority.
To facilitate enforcement, enforcement campaigns have been launched in the district offices of the Ministry of the Environment, with the aid of the Hazardous Substances Division, the Environmental Patrol and the Legal Division. In one campaign alone, which concentrated on Netanya and Petach Tikva in the central region, 45 plants were inspected. Depending on the response of the plant to the findings of the investigation, remedial steps were taken whether establishing a timetable for correcting the shortcomings or opening an investigation with a view toward criminal proceedings.
Air Pollution Enforcement
Because of the lack of statutory regulations dealing with emission standards, personal decrees, issued in accordance with the 1963 Abatement of Nuisances Law, have constituted one of the most important legal instruments in Israel for controlling air pollution from existing stationary sources. These administrative directives, which include specific stipulations to polluters on how to prevent air, noise or odor pollution, have been issued to 32 industrial plants including some of Israel’s older power plants, crude oil refineries, cement plants, phosphate loading terminals, chemical and petrochemical plants, quarries, and other factories.
Similar environmental limits on air pollution are also introduced into the business licenses of problematic plants, under the Licensing of Businesses Law. As statutory regulations fixing emission standards come into force in 1996, replete with targets for the minimization of air pollutants and based on best available technologies, enforcement should be much improved.
An interesting illustration of the personal decree enforcement process is presented by the power plant in Haifa long-regarded as one of the most problematic areas in Israel in terms of air pollution.. As part of an emergency plan for pollution abatement in this area, a personal decree for the prevention of air pollution nuisances from the Haifa power plant was first signed in May 1984. The order defined unreasonable air pollution in terms of the emission of particulates and sulfur dioxide, set up an intermittent control system which mandated a switch to low-sulfur fuel under certain atmospheric conditions, required the installation of equipment, and called for monitoring, recordkeeping and reporting measures.
In light of continued violations of air quality standards, a more stringent version of the order was signed by the Minister of the Environment in October 1989. It called upon the Electric Corporation to use low sulfur fuel exclusively throughout the year and to further reduce the emission rates of sulfur dioxide and particulate matter. However, the amended decree was never implemented. It met with staunch opposition from the Ministry of Energy which claimed that implementation would bring economic ruin to the Corporation. Following years of arbitration and petitions to the High Court of Justice, a new version of the personal order was published in April 1992, which required the use of low-sulfur fuel in the spring and autumn seasons and the adoption of a new intermittent control system procedure based on the recommendations of the arbitrator. The new procedure called for the use of three types of fuel ranging from regular to very low sulfur depending on the results of the alert system. However, violations still did not stop. By February 1995, the Ministry of the Environment’s original requirements were finally met with the publication of yet another amendment. In accordance with the terms of this version, low sulfur fuel is being burned continuously in the Haifa power plant, as of January 1996.
As in the case of the Haifa power plant, all industrial plants which have been served with personal decrees are now undergoing compliance monitoring. In cases of inadequate compliance, indictments are being prepared. Enforcement is the order of the day in this realm as well.
The Water Law
The Water Law of 1959 establishes the framework for the control and protection of Israel’s water resources. Although the law was amended in 1971 to include prohibitions against direct or indirect water pollution, it was not fully enforced until a 1991 amendment provided for significantly harsher fines, obligatory cleanup by polluters, and personal liability for directors of corporations. Today, the maximal penalty for water pollution offenses is one-year imprisonment or a $50,000 fine, and in case of a continuing offense, seven days imprisonment or an additional $3300 fine for each day in which the offense continues following receipt of a written warning from the Ministry of the Environment. If a suspicion arises that an offense has been committed, the court may, in response to a request by the prosecutor, issue a temporary court order to prevent, stop or reduce water pollution, even before an indictment has been served. In addition, where the Water Commissioner is satisfied that water pollution has been caused, he may order the person who caused it to do everything necessary to stop it, to restore conditions to those which existed prior to the offense, and to prevent its recurrence. In case of conviction, the court may require, in addition to the penalty imposed, that the offender pay for cleanup expenses.
Passage of the amendment has greatly facilitated enforcement, and in recent years, the Ministry of the Environment has targeted the most serious offenders for criminal investigation and prosecution. Several court cases have revolved around the problem of inadequate sewage systems in new or existing settlements. In one case, a temporary injunction was obtained against Zur Hadassah (a settlement perched on a hilltop in the regional council of Mateh Yehuda in the Jerusalem area) prohibiting it from continuing to populate new houses until such time that a facility for sewage treatment is established. In another case, the local council of Bnei Ayish and its head were indicted on grounds of breaching the Water Law and allowing the contamination of water sources in the area, including the Lachish River. In this case, water pollution resulted from the spurt in population growth in this local council which was unaccompanied by expansion of the sewage system. In response to a petition by the Ministry of the Environment, the court ruled that the council must desist from populating new neighborhoods until such time that the council is connected to a regional or local waste treatment plant which will receive the approval of the Ministry of the Environment.
In a totally different area, major priority has been accorded to the serious problems generated by the discharge of wastes from pig-farms in the northern part of Israel. Pig-farms are notorious for the quantity and quality of waste they generate, especially their organic load, but the Ministry of the Environment’s repeated attempts to compel the establishment of treatment facilities to serve these farms fell on deaf ears. Following years of effort, indictments were prepared against pig-farm owners in the Zippori River region in 1993. Although the indictments resulted in convictions (a $2500 fine or 75-day imprisonment and an order to stop the discharge of sewage into the Zippori River within ten days), the contamination continued. An appeal by the Ministry of the Environment, on grounds of both the lightness of the sentence and the violation of the court order, led to tougher penalties. The Nazareth District Court ordered the immediate cessation of the pollution and imposed a fine of $8350 or six months imprisonment on each of the pig-farm owners. Furthermore, the court called for an additional fine of $170 per day for each day in which the sewage continued to flow into the river.
The legal framework for water protection in Israel is constantly being expanded. Regulations pursuant to the Water Law include prohibitions on the rinsing of containers used for spraying of chemical and biological substances into water sources; prohibitions on aerial spraying of chemical and biological agents for agricultural purposes near surface water sources; and severe restrictions on the use of cesspools and septic tanks. The Ministry of the Environment is using every available tool including the administrative enforcement measures provided by the Licensing of Businesses Law to tackle water pollution and to protect Israel’s precious water sources. The consequences of noncompliance are becoming increasingly clear: pollution no longer pays.