Optic Compliance: Enforcement and Compliance in the Dutch Chemical Industry

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(1)M.H.A. Kluin.

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(3) Marieke Kluin.

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(5) Optic Compliance Enforcement and Compliance in the Dutch Chemical Industry Proefschrift. ter verkrijging van de graad van doctor aan de Technische Universiteit Delft, op gezag van de Rector Magnificus prof.ir. K.C.A.M. Luyben, voorzitter van het College voor Promoties, in het openbaar te verdedigen op dinsdag 11 november 2014 om 14.30 door Marieke Hendrika Antonia KLUIN Master of Science in de Criminologie, Geboren te Delft.

(6) Dit proefschrift is goedgekeurd door de promotoren: Prof. Dr. B.J.M. Ale, promotor, Technische Universiteit Delft Prof. Mr. Dr. W. Huisman, promotor, Vrije Universiteit Amsterdam. Samenstelling promotiecommissie:. Rector Magnificus, voorzitter Prof. Dr. B.J.M. Ale, promotor, Technische Universiteit Delft Prof. Dr. Mr. W. Huisman, promotor, Vrije Universiteit Amsterdam Prof. Dr. Mr. G.A. Biezeveld, Rijksuniversiteit Groningen Dr. J.G. van Erp, Erasmus Universiteit Rotterdam Prof. Dr. Mr. E.F. ten Heuvelhof, Technische Universiteit Delft Dr. Ir. H.M. Jagtman, Inspectie van het Onderwijs Prof. Dr. V.L. Nielsen, Aarhus Universitet Prof. Dr. A.C.M. Spapens, Universiteit Tilburg Prof. Dr. G.L.L.M.E. Reniers, Technische Universiteit Delft, reservelid Dr. Ir. H.M. Jagtman heeft als begeleider in belangrijke mate aan de totstandkoming van het proefschrift bijgedragen.. This research was financially supported by the National Institute for Public Health and the Environment (RIVM). ISBN 978-94-6186-380-5 Cover & Lay-out designed by Kimmo de Reuver Copyright 2014 by Marieke Kluin Printing by Ridderprint B.V., Ridderkerk, the Netherlands All rights reserved. No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the author..

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(9) T Table of Contents List of Tables. 10. List of Figures. 10. 1. Setting the scene. 13. 1.1. Field-level inspectors. 14. 1.2. Research area: Dutch Seveso inspections. 15. 1.3. The Dutch chemical industry. 16. 1.4 Corporate crime in the Netherlands and regulation. 17. 1.5. 19. Research approach and objectives. 1.6 The structure of the book. 22. 2. The Seveso directive, its implementation and practice in the Netherlands. 25. 2.1. Introduction. 25. 2.2 The Seveso Directive. 25. 2.3 The implementation of the Seveso directive in the Netherlands. 28. 2.4 Inspection agencies. 33. 2.5 Seveso II directive inspectorate practice. 40. 2.6 Enforcement of the Seveso II directive in the Netherlands. 44. 2.7 Conclusion. 48. 3. Theoretical background. 49. 3.1. Introduction. 49. 3.2 Regulation. 50. 3.3 Corporations. 60. 3.4 Field-level inspectors. 72. 3.5 Conclusion. 81. 4. 85. Research design. 4.1 Introduction. 85. 4.2 Research questions. 85. 4.3 Methods of research. 86. 4.4 Selection of the corporations. 97. 4.5 Confidentiality. 99. 4.6 Conclusion. 99.

(10) 5. A decade of violations and enforcement actions in the Dutch chemical industry. 101. 5.1. Introduction. 101. 5.2 Background. 102. 5.3 Overall picture of violations and enforcement actions. 107. 5.4 Categorization. 113. 5.5 Corporation C01. 114. 5.6 Corporation C02. 117. 5.7 Corporation C03. 121. 5.8 Corporation C04. 126. 5.9 Corporation C05. 130. 5.10 Corporation C06. 133. 5.11 Corporation C07. 136. 5.12 Corporation C08. 141. 5.13 Corporation C09. 145. 5.14 Corporation C10. 149. 5.15 Corporation C11. 152. 5.16 Corporation C12. 155. 5.17 Corporation C13. 161. 5.18 Corporation C14. 166. 5.19 Corporation C15. 168. 5.20 Discussion and conclusions. 173. 6. 177. Enforcement practices: Seveso inspections. 6.1 Introduction. 177. 6.2 People involved in Seveso inspections. 178. 6.3 The working environment. 184. 6.4 Seveso inspections in the Netherlands. 186. 6.5 The influence of incidents in the Netherlands on enforcement practice. 218. 6.6 Risk and uncertainty. 220. 6.7 Discussion and conclusions. 221.

(11) 7. The perceptions that chemical corporation employees have of Seveso regulations and inspections 227. 7.1. Introduction. 227. 7.2. The implementation of the Seveso II directive in the Netherlands. 229. 7.3. Theoretical background topics questionnaire. 231. 7.4 Questionnaire. 237. 7.5. 239. Response. 7.6 The views of the regulated. 240. 7.7. 252. Results questionnaire and classification corporations. 7.8 Discussion and conclusions. 253. 8. Conclusions and recommendations. 257. 8.1. Introduction. 257. 8.2 Summary of the main results. 258. 8.3 Dutch Seveso participants in the regulatory enforcement process. 265. 8.4 Regulatory enforcement dilemmas. 274. 8.5 The research methods reconsidered. 276. 8.6 Recommendations for the Dutch Seveso regulatory framework. 279. 8.7 Conclusions. 282. References. 287. Appendix A: Points of interest. 299. Appendix B: Overview inspection subjects C01- C15. 300. Appendix C: Questionnaire. 315. Nederlandse samenvatting. 323. Acknowledgements. 345. Curriculum Vitae. 347.

(12) List of Tables Table 2.1. Overview of the administrative sanctions. 45. Table 4.1. Overview of the Seveso corporations. 98. Table 6.1. Overview of the participant observations. 179. Table 7.1. Layout of the Seveso questionnaire. 239. List of Figures Figure 2.1. Organizational chart of the Regional Environmental Protection Agency, DCMR. 36. Figure 2.2. Organizational chart of the Inspectorate SZW. 38. Figure 2.3. Organizational chart of the VRR. 40. Figure 3.1. Striving for safety at three levels. 53. Figure 4.1. Flow chart of research approach. 92. Figure 5.1. Overview of EPA violations of all 15 corporations. 107. Figure 5.2. Overview of OSHA violations of all 15 corporations. 109. Figure 5.3. Enforcement actions as proportion of violations per corporation. 110. Figure 5.4. Overview of the CO1 violations. 114. Figure 5.5. Classification of the CO1 environmental violations. 115. Figure 5.6. Overview of the CO2 violations. 118. Figure 5.7. Classification of the CO2 environmental violations. 119. Figure 5.8. Overview of the CO3 violations. 122. Figure 5.9. Classification of the CO3 environmental violations. 123. Figure 5.10 Overview of the CO4 violations. 127. Figure 5.11 Classification of the CO4 environmental violations. 128. Figure 5.12 Overview of the CO5 violations. 130. Figure 5.13 Classification of the C05 environmental violations. 131. Figure 5.14 Overview of the CO6 violations. 133. Figure 5.15 Classification of the CO6 environmental violations. 134. Figure 5.16 Overview of the CO7 violations. 137. Figure 5.17 Classification of the CO7 environmental violations. 138. Figure 5.18 Overview of the CO8 violations. 141. Figure 5.19 Classification of the CO8 environmental violations. 143. Figure 5.20 Overview of the CO9 violations. 145. Figure 5.21 Classification of the CO9 environmental violations. 147. Figure 5.22 Overview of the CO10 violations. 149. Figure 5.23 Classification of the C10 environmental violations. 150. Figure 5.24 Overview of the C11 violations. 152. Figure 5.25 Classification of the C11 environmental violations. 153. Figure 5.26 Overview of the C12 violations. 156. 10 | List of tables/figures.

(13) Figure 5.27 Classification environmental violations C12. 157. Figure 5.28 Overview of the C13 violations. 162. Figure 5.29 Classification of the C13 environmental violations. 163. Figure 5.30 Overview of the C14 violations. 166. Figure 5.31 Classification of the C14 environmental violations. 167. Figure 5.32 Overview of the C15 violations. 168. Figure 5.33 Classification of the C15 environmental violations. 170. Figure 6.1. Flow chart of the general inspection method. 192. Figure 7.1. Presence of inspection agencies. 240. Figure 7.2. Attitude of occupational health and safety inspector. 242. Figure 7.3. Attitude of environmental inspector. 242. Figure 7.4. Enforcement style as perceived. 244. Figure 7.5. Ability and capability to comply. 246. Figure 7.6. Perception of safety and regulations. 248. Figure 7.7. Impact of visits. 250. List of tables/figures | 11.

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(15) 1 Setting the scene Incidents related to dangerous substances do still occur, some examples being: the Deepwater Horizon oil spill (April 20, 2010), the explosion and fire at the West Fertilizer chemical plant (April 17, 2013), and, in the Netherlands, a fire at the ChemiePack chemical plant (January 5, 2011) and finally, the serious incidents which led to the temporary shutdown at Odfjell (July, 2012). These incidents are all examples of events in which safety and non-compliance behaviour had become issues. Even though the chemical industry as a whole is highly regulated, accidents nevertheless happen. Chemical accidents range from small releases to full-scale disasters. The majority of these incidents will never receive the kind of attention that the abovementioned accidents attracted (Brisman and South, 2013: 9-10) and some cases will never even come to light or be reported. For example, this study involves 15 corporations and at least 90 incidents were reported during the period 1999-2011, but only a few of them received media attention. These incidents show us that the work done by inspectors of chemical corporations is of extreme importance and that it really does affect daily life and safety. The day-today decisions made by these inspectors concerning, for instance, the air we breathe, safety and health matters in the workplace, the correct processing of hazardous substances and the assessment of internal emergency plans are just some of the numerous aspects that are monitored and regulated by field-level inspectors. It is in the public’s interest to get more insight into how these field-level inspectors arrive at their conclusions. Despite these inspections there are still many mistakes that are made, accidents and even deliberate incidents that continue to occur in the chemical industry. Ponsaers and Hoogenboom (2004) concluded that there is a lack of empirical knowledge on the functioning of inspecting authorities and special law enforcement agencies in the Netherlands. Field-level inspectors play a crucial part in occupational, safety, health and environmental policy but the relevant studies are limited, dated or devote only minimal attention to how the interaction between inspectors and regulatees is performed (Hawkins, 1984; Hutter, 1988; 1989; Lipsky, 2010; Mascini and van Wijk, 2009b, May and Burby, 1998; May and Winter, 2000; May and Wood, 2003; Nielsen, 2007; Pautz, 2008). The present research begins to. Setting the scene | 13.

(16) respond to this gap by focusing on field-level inspectors involved in occupational, health, safety and environmental policy in the Netherlands. It is important to note that this study is broader than the activities of an isolated group of inspectors; it examines a complex social interactive process in which occupational, safety, health and environmental legislation is implemented. It provides detailed case study research into how the Netherlands enforces specific European legislation, the focus being on its implementation by field-level inspectors, rule violation and compliance on the part of regulatees. This introduction starts by setting the scene for this dissertation. It starts by providing the theoretical background to the main actors behind this dissertation: the field-level inspectors. After that, in Section 1.2, the research area is introduced. That area comprises Dutch Seveso inspections. Section 1.3 provides insight into the Dutch chemical industry. This is followed by the context of this research: regulatory enforcement and corporate crime. The introduction then moves on to describe the research approach adopted and the main objectives in Section 1.5. Finally an overview is presented of the structure of this book.. 1.1 Field-level inspectors. Inspectors and people who are regulated, work on a daily basis to translate regulations into action. Exploring the interaction between inspectors and corporations provides insight into the broader discussion on regulation. What is known about the actual behaviour of inspectors and regulatees? Hutter calls fieldlevel inspectors the gatekeepers of the regulatory process, since they are in the front line and they are the ones who determine how regulation is translated into action (1988). These individuals are responsible for the execution of policy and, according to Pautz (2010), for its successes and failures. Research on regulatory actors tends to be focused on the regulatory style adopted by an inspector but such studies focus on the actors in isolation and are therefore less able to describe how inspectors and corporations interact. Three decades ago Bardach and Kagan (1982) were among the first to explain the different aspects of regulatory enforcement between field-level inspectors and regulated corporations. They conducted interviews with regulators and the regulated in different areas (for example in building code enforcement). Their discussion on ‘regulatory unreasonableness’ dealt with the nature of the regulations and the approaches taken by inspectors; just one chapter was specifically devoted to inspectors. In that chapter they addressed the characteristics of ‘good inspectors’ and took ‘good cops’ as the parallel. Interaction between inspectors and regulated corporations was not, however, their main concern. According to Nielsen (2007) interaction between inspectors and regulatees is inclined to be viewed as a black box.. 14 | Setting the scene.

(17) She writes about how regulatory interaction between inspectors and corporations is performed and about how it is not usually seen as a specific discussion so that most of the time it is perceived as a part of the measuring the regulatory style of an inspector. Her study showed that interaction between inspectors and the regulated corporation leads to different treatment across corporations. The analysis provided in her paper showed that increased negotiation and cooperation led to increased chances of regulatees being able to influence the behaviour of the regulator, thus resulting in the likelihood of different treatment. She furthermore demonstrated that before one can understand variations in regulatory behaviour it is important to include variables measuring the characteristics of the interaction between the regulator and the regulatee (p.275), since the behaviour of an inspector can be influenced by the behaviour of the regulatee. Pautz (2008; 2009a, 2009b, 2010) also noticed that there has been little discussion on the role of field-level inspectors and regulatees in the implementation phase of regulation, with a few exceptions (Bardach and Kagan, 1982; Hawkins, 1984; Hutter, 1997; Nielsen, 2007). Her dissertation (Pautz, 2008) showed that relationships between environmental inspectors and the regulated community were more positive than expected which demonstrated significant degrees of trust. She clearly demonstrates that in the interests of future research on regulatory enforcement it is important to include inspectors (and facility personnel) as a part of the focus, since they are responsible for policy implementation. If one bears in mind all the above-mentioned research, this dissertation may therefore be said to mainly focus on Seveso inspectors in the Netherlands in order to expand our knowledge of the regulatory processes that take place.. 1.2 Research area: Dutch Seveso inspections. Seveso inspections in the Netherlands are performed under the auspices of the Seveso II directive on major hazards within the European Union. The main purpose of the Seveso directive is twofold. Firstly, it aims to prevent major accident hazards involving dangerous substances. Secondly, since accidents do unfortunately continue to occur, the directive is simultaneously aimed at limiting the consequences of such accidents, not only for humans (health and safety) but also for the environment (environmental and external aspects). It requires that the operators of major hazard facilities show the regulator that they have identified, assessed and controlled the hazards present in their facilities. The Seveso II directive is enforced in the Netherlands by three different agencies in combination: the ‘Environmental Authority’ (in Dutch: Bevoegd Gezag Wabo)1, the ‘Occupational Safety and Health Agency’ (in Dutch: Inspectie SZW) and the ‘Safety Region’ (in Dutch: Veiligheidsregio). Inspections at Dutch Seveso corporations In the Netherlands the structure of the Seveso enforcement rulings is based on three different acts and the environmental authorities that are responsible vary from region to region (at least that was the case up until 2012). 1. Setting the scene | 15.

(18) are joint activities and an inspection team usually consists of three inspectors drawn from different agencies (see Chapter 2 of this dissertation). Research on enforcement agencies usually involves only one enforcement agency (Hawkins, 1984; Hutter, 1988, Hutter and Manning, 1990; Pautz, 2008) or the comparing of multiple agencies (Hutter, 1997). This research gives unique insight into the actual activities of field-level inspectors drawn from different inspection agencies who work together while conducting the various statutory inspections. The study was conducted in the most densely populated area of the Netherlands, an area known as Rotterdam-Rijnmond. There were four primary reasons for selecting this region. Firstly, it is a heavily industrialised area with extensive chemical plants, refineries, waste disposal corporations and residential areas and is the largest concentration of Seveso corporations in the Netherlands. It has within its perimeters a wide range of different industries and corporations of different sizes. The second reason was the fact that in this region the different inspection agencies involved were working together on major accident investigations (starting already in 1991) long before the Seveso I directive came into force in the Netherlands. Furthermore, this region was involved in the first pilot project on the implementation of joint activities in relation to the Seveso II directive in the Netherlands (van Steen, et al. 2001). The third reason relates to the feasibility of the research project. Travelling time had to be taken into consideration since visiting corporations in the whole area was also a part of the research methodology. The fourth and final reason for selecting this area was the wide enough range of corporations located in this vicinity for a broad enough sample of situations to conduct case study research.. 1.3 The Dutch chemical industry. Corporations that work with dangerous substances in the European Union need to adhere to the Seveso II directive when the permitted quantities of hazardous substances rise above a certain level (as defined in the Seveso II directive) and in the Netherlands there are 413 corporations, 140 of which are situated in the RotterdamRijnmond area that fall under the auspices of the Seveso II directive (reference date September 1, 2013, Latrb). They produce, store or transport dangerous goods ranging from those linked to complex chemical process industries, to refineries and simple storage facilities. In the Netherlands, the Seveso corporations are considered to be those that present the highest risk potential. They work with dangerous substances on a daily basis. Traditionally, the Netherlands has a strong position in base chemicals. The Dutch chemical industry is the second largest industrial sector in the country after the food and beverages sector. The annual turnover is approximately 60 billion Euros and it generates 2.5% of the Gross Domestic Product. 16 | Setting the scene.

(19) (VNCI, 2013a). The Netherlands has an attractive climate for the chemical industry since all the essential raw materials are either readily available or can easily be supplied. Furthermore, the geographically strategically favourable location of the Port of Rotterdam, the excellent infrastructure, the country’s extensive integrated network providing access to the European sales market and, not least, the expertise in the field of chemistry dating back to 1114 (Snelders, 1993: 14) makes it an ideal country for such industrial enterprise. The Dutch chemical industry employed approximately 64,000 people in 2012 and the export level which was around the 77 billion euros, represented 19 per cent of all Dutch goods exports. Three-quarters of the chemical products manufactured in the Netherlands are mostly exported within Europe (VNCI, 2013b). The role of the chemical industry becomes even clearer when one realises that chemical knowledge and products are essential to other sectors too, for example in agriculture where pesticides have a vital role or in the metal industry where lubricants are indispensable. The petroleum industry has a unique position as the principal supplier of base chemical materials. It has therefore become the main segment of the chemical industry in the last century. The downside of producing chemical substances on such a big scale is that such manufacturing can lead to chemical injury, pollution, hazardous waste, emissions, the threat of accidents and other environmental concerns. Although much effort has been put into the researching and assessing of chemicals, there are still gaps in our knowledge when it comes to all the characteristics, effects and various patterns of use, and therefore, the impact that all of this can have on human health and the environment. There have been a few attempts to focus upon non-compliance behaviour in specific industries. In the opinion of Pearce and Tombs (1998) such work is especially useful for understanding the contours of corporate crime.. 1.4 Corporate crime in the Netherlands and regulation. The normality of law breaking within the chemical industry was investigated by Pearce and Tombs (1998) in a study that focused on chemical corporations and the exploration of the Bhopal disaster. Their view is that accidents arise because of criminogenic organizational structures. They are not therefore solely attributable to human error or to technologically complex processes. Accidents can be organisationally or systematically created and could be viewed as crimes from the point of view of criminology. This is seen slightly differently in the field of safety science. Overall, it may not be claimed that each and every industrial accident is the result of corporate crime (Tombs and Pearce, 1998: 152). Ruggiero and South (2013: 17) conclude that research into violations in the chemical industry is obscured by views that perceive violations as ‘accidents’, ‘failures’, ‘administrative errors’ and other such deficiencies. This research therefore portrays an overview of the whole. Setting the scene | 17.

(20) compliance spectrum in relation to all violations of occupational safety, health and the environmental regulations of 15 chemical corporations during the 1999-2011 period. In this way an understanding can be gained of the full regulatory interaction between field-level inspectors and regulatees rather than simply focusing on isolated violations. Van de Bunt and Huisman (2007) report that it was not until the 1990’s that criminological research in the Netherlands into corporations and the regulation of corporate behaviour really started. Committees of inquiry were conducted on the shipbuilding history (Enquêtecommissie RSV, 1984), organised crime (Enquêtecommissie Opsporingsmethoden, 1996) and antitrust practices in the construction industry (Enquêtecommissie Bouwnijverheid, 2003) which provided valuable insight into the nature of violations committed by corporations. Not only parliamentary inquiries were relevant but committees investigating incidents presented interesting information on violations within corporations. The disaster in Enschede where an explosion at a fireworks factory killed 22 people (Commissie Oosting, 2001) and the New Year’s Day fire in a café in Volendam that killed 14 people (Commissie Alders, 2001) provided significant information on corporations, legislation and enforcement. Recent events in the Netherlands at the corporations Chemie-Pack (OVV report, 2012) and Odfjell (OVV report, 2013) are described in some detail in Chapter 6 of this dissertation, since both events influenced the enforcement practice adhered to in this particular study. Other interesting data on corporate crime, mentioned by van de Bunt and Huisman, may be obtained from police files and court decisions, interviews and inspection agency databases. Several studies on different industries have taken place in the Netherlands (sometimes within the wider context of regulation) including, to mention just some examples: the waste disposal industry (Huisman, 2001; van Wingerde, 2012), the construction industry (van den Heuvel, 2003; van de Bunt, 2010), the shipping fuel market (Spapens, et al., 2013) and small corporations that deal with food (Mascini and van Wijk, 2009a, 2009b). In 2007 van de Bunt and Huisman concluded that they had noted the following recurrent criminogenic characteristics in the different industries which still apply to recent studies: poor regulation and poor enforcement, prevailing standards that deviate from legal standards and certain markets being dominated by large players (structure of the market). Responses to corporate crime in the Netherlands involve: criminal law (corporate criminal liability is part of the Dutch Criminal Code) and administrative law (administrative sanctions such as penalty payments and administrative fines). In summary, research into corporations and regulatory enforcement has been performed in the Netherlands, but more in industrial sectors other than the chemical branch and on the basis of different. 18 | Setting the scene.

(21) research approaches (Huisman, 2001; Mascini and van Wijk, 2008; van Wingerde, 2012) or, alternatively, the studies were conducted rather a long time ago (Koolhaas, 1990; Versluis, 2003).. 1.5 Research approach and objectives. This section describes the approach that was adopted when it came to answering the main research question. It starts with a description of the main research approaches to empirically explaining compliance of corporations. According to Parker and Nielsen (2011: 3) there are two main approaches when doing research angled towards empirically explaining compliance among corporations. These are the objectivist research approach and the interpretive and social constructionist research approach. The objectivist research approach is aimed at “building and testing theories identifying internal organizational characteristics (motives, capacities, resources) and external factors (the nature of the regulatory policy area, enforcement strategy and style, the level of attention by third party activities and stakeholders and so on) that are associated with compliance and non-compliance” (Parker and Nielsen, 2011: 3). The main aim in this kind of research is to explain what causes compliance or the effect that compliance has. In this type of research compliance or noncompliance tends most of the time to be a fixed variable. It is predefined and used as a dependent or independent variable to discover possible causal relations between compliance and other variables. It includes mapping and measuring compliance and noncompliance and building and testing exploratory theories of compliance. Objectivist research contributes to explanatory theories of compliance and is appealing to those who wish to evaluate the implementation of regulatory policy and evidence-based research for regulatory design (Parker and Nielsen, 2011: 5). The challenge with this type of research lies in the operationalisation of compliance (Parker and Nielsen, 2009: 50). Interpretive and social constructionist research is aimed at the “understanding of organizational response to regulation, and of the processes by which compliance is socially constructed” (Parker and Nielsen, 2011: 3). How is compliance understood and conceptualized? The main objective with this kind of research is to understand the meanings, motives and intentions of key actors in the regulatory field. Regulatory compliance is seen as a dynamic and changeable interactive process in interpretative and social constructionist research and not as a fixed variable (as in the case of the objectivist research approach) (Hutter, 1997; Edelman and Talesh, 2011). Much empirical research that adheres to this approach engages. Setting the scene | 19.

(22) in understanding what different enforcement agencies, corporations or other actors classify as compliance; the motives, attitudes and perceptions they have towards regulations and precisely how they interact with regulators (or fieldlevel inspectors) and the regulation process. This type of research tends to make use of the qualitative research approach of interviews, participant observation or the interpretive reading of texts in order to investigate how different actors (organizations and individuals) respond to compliance and noncompliance. Parker and Nielsen (2009: 50) note that the challenge with this kind of research lies in seeking to achieve a balanced, non-biased discovery of the relevant understandings and social construction processes. As has already been mentioned in this chapter, little attention has been given to the actual behaviour of inspectors and regulatees. The work of inspectors often goes unnoticed and usually remains hidden from the public eye. However, they are dealing with situations that may well have an influence on our general wellbeing and which form part of our legal system. Therefore, the aim of this research is to explain compliance and rule violation within the framework of the interaction between field-level inspectors and regulatees. The focus throughout will be on the enforcement practices of regulation by field-level inspectors from three different inspectorates: the Regional Environmental Protection Agency (in Dutch: DCMR Milieudienst Rijnmond), the Occupational Safety and Health Agency (in Dutch: Inspectie Sociale Zaken en Werkgelegenheid) and The Rotterdam-Rijnmond Safety Region (in Dutch: Veiligheidsregio Rotterdam-Rijnmond). The Netherlands is the only country in the European Union that combines three different inspection agencies representing three different areas of policy during inspections. Attention is devoted to the way in which field-level officials make decisions on how to interpret the law and how to apply it to the wide variety of circumstances they encounter (Hutter, 1988). This study “presents a snapshot of regulatory compliance and its interpretation and construction at a particular moment in time and within a specific jurisdiction” (Hutter, 1988: ix). Understanding interaction will provide insight into how regulators approach their interaction with regulatees and how they ensure compliance. McCaffrey, Smith and Martinez-Moyano (2007: 308) state that “understanding how relationships between regulatory organizations and firms affect compliance is thus essential to understanding regulatory implementation”. The empirical focus of this study is on the implementation stage of regulation and more precisely on the inspectors and regulatees since they are the ones who play a vital role in the enforcement of the Seveso regulations. Both are responsible for the implementation of Seveso regulations in the Netherlands and work with Seveso legislation on a daily basis to convert it into action. As more often seen. 20 | Setting the scene.

(23) in the field of compliance research, this dissertation could well be classified as a creative dialogue between interpretive and social constructionist research that incorporates some aspects of objectivist research. It not only seeks to explain what causes compliance (for example, the attitudes and motivation, the organizational capacity and other social factors), but it also discusses how compliance is understood and conceptualised. This leads to the following main research question of this dissertation: To what extent, how, and why do processes of law enforcement have an influence on regulatory compliance on the part of the Dutch chemical industry corporations that are required to comply with Seveso regulations? The main research question is divided into three sub-questions, that will be answered and described in the empirical part (Chapters 5 – 7) of this study: What is the sanctioning practice of Seveso in the Netherlands for a number of corporations? The sanctioning practice is part of a law enforcement process. It relates to the frequency and severity of sanctioning, to the form of sanctioning and to the types of sanctioning instruments used. Therefore, a document analysis was carried out in relation to the databases of the Regional Environmental Protection Agency and the Occupational Safety and Health Agency in order to investigate the sanctioning practice of 15 different Seveso corporations in connection with every registered occupational health and safety violations as well as the environmental regulation violations detected in the 1999 - 2011 period in each of the chemical corporations. Chapter 5 provides insight into violations, enforcement actions, participant observations of inspections on violations and additional information. All the mentioned different aspects of the sanctioning practice give insight into the kind of interaction seen between inspectors and corporations. What are the enforcement practices in the Netherlands with regard to corporations that are subject to Seveso regulations and how do inspectors and chemical corporation employees interact with each other? As mentioned in the beginning of this chapter, we still know very little about the actual behaviour of inspectors and regulatees. To discover, analyse and understand compliance and rule violation and the related interaction between inspectors and corporations within the law enforcement process, participant observations in relation to the Seveso inspections of 15 chemical corporations were conducted to discover how people perform their everyday work in accordance with the rules and. Setting the scene | 21.

(24) regulations of the Seveso II directive. Since the objective of this research is to find out how inspectors make decisions, interpret the law and apply the various rules and regulations, the research role of observer-as-participant was chosen. Chapter 4 describes the empirical aspect of the research design of this dissertation in more detail. The results emanating from the field study concerning the participant observations of 19 inspections and how the regulatory interaction between Seveso inspectors and chemical corporation employees is performed are described in Chapter 6. What is the perception that chemical corporation employees have of Seveso regulations and inspections? The chemical corporation employees of the 15 chemical corporations who form part of the law enforcement process studied here are the individuals at various Seveso corporations who are responsible for ensuring that their respective corporations comply with the regulations or at least make sure to implement those regulations most of the time on a daily basis. It is therefore important to explore how chemical corporation employees perceive Seveso regulations, Seveso inspectors and the inspections. The analysis given in Chapter 7 focuses on the perception that chemical corporation employees have of the inspector’s behaviour, how the corporation reacts to the inspector’s visit and the respondent’s general views concerning the rules and regulations attached to the Seveso II directive. In other words, the main purpose of this dissertation is to increase our knowledge on how regulatory interaction between field-inspectors and chemical corporations is performed. This thesis is based on a case-study design that provides an in-depth analysis of 15 Seveso corporations. The empirical data was collected by studying a large number of documents of the 15 chemical corporations that are kept in the databases of the Regional Environmental Protection Agency and the Occupational Safety and Health Agency, by carrying out participant observations during 19 Seveso inspections and circulating a questionnaire among chemical corporation employees.. 1.6 The structure of the book. In order to answer this main research question, several steps have to be taken. First the legal context of this research is described which pertains to the regulation of chemical corporations in the Netherlands. This background is crucial to understanding the research in its wider context, to learning about the relationships between inspectors and regulatees, the evolution of industrial risk regulations and the implementation of the Seveso directive in the Netherlands, both in the past and in the present. All of this is described in Chapter 2.The next step relates to the theoretical background of the different academic fields relevant. 22 | Setting the scene.

(25) to this research. They are: criminology, regulatory enforcement and safety science and this is addressed in Chapter 3. Chapter 3 describes the key concepts that are considered to be highly relevant in the context of this study. It is necessary to understand what was studied in the past to discover the knowledge gaps that still exist. This dissertation is based upon a literature study and empirical research conducted within the Dutch chemical industry. Chapter 4, which is concerned with the methodology used for this study, provides details of the empirical part of this study. It starts by explaining which research methods are used, what kind of data gathering has taken place, which data sources have been used and exactly how the different research methods provide answers to the research questions posed in this dissertation. Chapter 5 describes the first empirical part of this research and presents the document analysis linked to occupational, health and safety violations as well as the environmental violations recorded in the 1999-2011 period in each of the chemical corporations. In addition to this, the sanctioning practices of the Occupational Safety and Health Agency and the Regional Environmental Protection Agency of the 15 corporations involved in this study are revealed. Chapter 6 presents the results of the participant observation fieldwork carried out at chemical corporations while they are undergoing inspections. Special attention is given in this chapter to the general organisation of Seveso enforcement, the inspections and the sanctioning practice. Chapter 7 reports on the results of a questionnaire that was conducted among chemical corporation employees. The analysis focuses on the perception that chemical corporation employees have of inspectors’ behaviour, how corporations reacts to inspectors’ visits and the general views of respondents concerning the rules and regulations attached to the Seveso II directive. Finally, Chapter 8, provides a general discussion on the main findings by integrating the results drawn from the previous chapters and addressing the practical implications, recommendations, and ideas for future research.. Setting the scene | 23.

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(27) 2 The Seveso directive, its implementation and practice in the Netherlands 2.1 Introduction. The legal context of this research is the regulation of chemical corporations in the Netherlands; it is known as the Major Accident Hazards Decree (in Dutch: Besluit Risico Zware Ongevallen, BRZO, 1999) and it amounts to the Dutch implementation of the Seveso II directive. It integrates legislation in the field of occupational safety, external safety and disaster management within a legal framework and it is an example of a combination of laws. It represents the policy areas ‘environment’, ‘occupational health and safety’ and ‘emergency planning’. This chapter starts with an overview of the European Union regulations concerning the control of major-accident hazards involving dangerous substances, in other words the ‘Seveso directive’. After that the implementation of the Seveso directive in the Netherlands will be described. Since Seveso inspections in the Netherlands are joint activities, the different authorities will be outlined in the next section before moving into the topic of the enforcement of the Seveso directive. This chapter will end with a conclusion on the regulation of chemical corporations in the Netherlands.. 2.2 The Seveso Directive. In 1982 the European Union issued chemical industrial safety regulations in reaction to chemical disasters that had taken place in England (Flixborough, 1974) and Italy (Seveso, 1976). In Flixborough an explosion and a fire led to 28 fatalities and to the destruction of a plant and in the case of Seveso a vapour cloud containing dioxins had escaped from a chemical plant. The Member States of the European Union negotiated for three years before Seveso directive I was finally adopted (Versluis, 2003). It imposed stringent regulations on industry. The main aim of the Seveso regulations is to prevent and mitigate the effects of major accidents involving dangerous substances (Article 1, Seveso II directive). On the one hand it regulates the consequences of major accidents for the environment while on the other hand it also regulates the protection of corporation employees and people outside. The Seveso directive, its implementation and practice in the Netherlands | 25.

(28) such establishments. The Directive on Major Hazards [European Union Directives 82/5OIIEEG (Pb EG 1982, L 230) and 87/2I6IEEG (Pb EG 1987, L85)] compelled all members of the European Union to explicitly take into account the hazards linked to industrial activities, to collect information and to subsequently report to the European Union. In the beginning the focus of the Seveso directive was on the technical aspect of safety at corporations, for example the requirement that any notification has to contain the following information: the maximum number of persons working on site at the establishment in question, but particularly those exposed to the hazard. Later on it became clear that many industrial accidents were more closely linked to the organizational aspects of safety, such as procedures and communication. What became especially clear was that this directive did not prevent all accidents with dangerous substances such as the Bhopal (1984) and Basel (1986) disasters. These accidents, which occurred outside the European Union, led to two amendments of the directive in 1987 and 1988. The first amendment was especially designed to prevent differing interpretations and to clarify various entries and threshold levels. After the Basel accident, which led to major environmental pollution of the Rhine, the second amendment focused on the inclusion of the isolated storage of dangerous substances. The European Commission and the European Parliament decided to completely revise the directive after the occurrence of the above-mentioned accidents and to focus more on general management systems. Porter and Wettig stated that this was “due to the recognition that approximately 85% of more than 300 accidents reported under Seveso I have shown some deficiencies in the management system” (1999: 3). A change of focus on more general management systems was one of the main reasons but according to Versluis (2003) this change was too essential to regulate in an amendment. The Seveso II directive still concerns the control of major accident hazards involving dangerous substances. As stated in Article 1, the “directive is aimed at the prevention of major accidents which involve dangerous substances, and the limitation of their consequences for man and the environment, with a view to ensuring high levels of protection throughout” the European Union (Article 1 of the Seveso directive). It was introduced in 1996, entered into force in 1997, was updated in 1999, amended again in 2005 and is referred as the Seveso II directive. The Seveso II directive contains several different elements in comparison to the first Seveso directive:. 26 | The Seveso directive, its implementation and practice in the Netherlands.

(29) • The emphasis is on entire corporations rather than on installations; • The corporations are assessed on the basis of modified qualifying criteria in which the emphasis lies on the harmful properties of chemicals with, in addition, a limited list of named substances; • A Seveso corporation needs to have a major accident prevention policy and a safety management system; • The inspection system falls under the control of the authorities; • The addition of land use planning around Seveso corporations (Bottelberghs, 2000). Apart from the focus on management systems, the requirements for inspections is strongly reinforced in the Seveso II directive. This last-mentioned requirement is considered to represent a major difference between the first and second directives and it is stated that the Member States of the European Union need to enforce it in a consistent and clear way. The directive contains general and specific obligations both for the operators of major hazard establishments and for the relevant authorities. The Seveso II directive consists of 26 Articles and 6 Annexes. The compliance aspect is described in more detail in Section 2.5 of this chapter. This European Union directive is the most commonly used instrument in the area of safety, health and environmental regulatory action. What is important to note here is that according to Versluis (2003: 330) the Seveso II directive is a minimum directive that does not precisely note down all the requirements. With the introduction of the second directive came also a change of approach towards industry. Instead of taking the attitude ‘explain what you are doing’ it became a matter of ‘prove to us that the existing situation is safe’. This placed regulators in a different position. The former Seveso directive had placed the burden on regulators to assess the safety situation but the Seveso II directive changed this approach because it then became necessary for regulators to check whether the corporation demonstrated that they were operating safely. It extended the role of regulators concerning the supervising of corporations since regulators needed to decide whether the existing situation corresponded with the safety report and the safety level determined by the corporation (Oh, 2002). Various European Commission reviews of the Seveso II directive determined that the fundamental approach adopted by the directive was adequate and correct (2008, 2009, 2010). A new Seveso directive was required because the hazard-based categorization system for chemicals, which forms the Seveso foundation, needed to be replaced. The European Commission took this opportunity to modernise the directive by introducing other relevant environmental directives. The other main. The Seveso directive, its implementation and practice in the Netherlands | 27.

(30) changes concerned: strengthening public access to information, introducing more effective rules on the participation of the members of the public concerned and putting in place stricter standards for the inspection of corporations so as to ensure a more effective enforcement of the rules. The new Seveso directive, the ‘Seveso III directive’, was adopted in July 2012 and entered into force in August 2012. European Union Member States have to see that it is transposed and implemented by June 2015. In view of the future nature of its implementation, the Seveso III directive is inevitably beyond the scope of this research. The Member States of the European Union have complete control when it comes to enforcing EU legislation and it is up to each country to decide how to execute the enforcement of such legislation. The Seveso II directive is known to corporations who store, produce and transport dangerous goods and it generates explicit enforcement tasks for regulators to regulate requirements that are perfectly understandable even for non-chemists. Versluis (2007) concludes that there is relatively little insight into how European legislation is applied in practice, how regulators enforce it and how those who are regulated comply with it. The following section will describe the implementation of the Seveso directive in the Netherlands.. 2.3 The implementation of the Seveso directive in the Netherlands. Prior to the introduction of the Seveso I directives the Netherlands had some experience in dealing with external safety issues, for example through studies into LPG (1983, 1984) and quantitative risk assessment (COVO report, 1981). Both studies followed a risk-based approach and effectively came to form the basis for external safety policy in the Netherlands. Even before that time safety measures had been obligatory for all the corporations involved in this study, since they were obliged to hold permits in line with the Dutch Environmental Management act. The above-mentioned experience with qualitative risk assessment turned out to be advantageous to Dutch corporations because the implementation of the Seveso directive made it compulsory to submit a report on external safety (part of which must consist of quantitative risk analysis) together with an internal safety report (occupational safety) (Bottelberghs, 2000; Ale, 2002). The Seveso I directive requirements were first implemented in the Netherlands in 1989. The directive was implemented by the Ministry of Social Affairs and Employment (under the existing safety report regulations), the Ministry of the Environment (responsible for the new external safety report regulations) and the Ministry of the Interior (which dealt with the new emergency planning regulations). Oh (2002) reported that it exceeded the European directive with respect to demands concerning safety management systems and quantified risk assessment.. 28 | The Seveso directive, its implementation and practice in the Netherlands.

(31) The Netherlands decided to draw up a new decree instead of amending the first one and to transpose the new Seveso II directive. The new decree was based on four acts: the ‘Environmental Management Act’, the ‘Working Conditions Act’, the ‘Disasters and Major Accidents Act’ and the 1985 ‘Fire Brigade Act’. Three of these acts needed to be amended. All of this resulted in one integrated piece of legislation, based upon four laws and signed by three ministers. The 1999 Major Accident Hazards Decree (In Dutch: Besluit risico’s zware ongevallen 1999, BRZO) is totally focused on the matter of major accident prevention involving dangerous substances. Upper tier corporations need to be inspected at least once a year in line with stipulations laid down in the Major Accident Hazards Decree of 1999. The Seveso directive includes a system of threshold values for dangerous substances. Corporations automatically fall under the Seveso II directive when the volume of permitted quantities of hazardous substances rises above a certain level. There are two thresholds known as the lower and upper tier thresholds and for each one there is an upper limit concerning the permissible amount of dangerous substances as defined by the European Union in Annex 1 of the Seveso directive. The lower tier corporations are required to define their major accident prevention policy and to adhere to a safety management system while the upper tier corporations also need to compile a safety report. The safety report includes safety measures and forms an integral part of the licence (Major Accident Hazards Decree, 1988). The Environmental Management Act lays down broad demands for any corporations wishing to apply for a licence. A safety report basically describes all the processes and safety systems operational and in place within a corporation in connection with its dangerous substances and furthermore outlines the measures that need to be taken to prevent and mitigate major accidents. Another element that changed with the first directive (already mentioned above), had to do with the addition of land use planning. Land use planning and safety distances are applicable to the situation in the vicinity of any given establishment. All of this is based on generic risk modelling in relation to the type of installation, in combination with risk acceptability criteria. The risk parameters for large Dutch chemical corporations are calculated very specifically because the complexity of such plants makes it impossible to determine a generic safety distance. It is on the bases of these calculated risks that the licensing and planning around the corporations then takes place. Here it is important to bear in mind that risk acceptance and judgement concerning hazardous activities always remains a contextual exercise depending on the country, time, activity, risks and benefits (Piers and Ale, 2000; Ale, 2002). In any research into external safety and risk parameters comparisons are made between various European countries. It turns. The Seveso directive, its implementation and practice in the Netherlands | 29.

(32) out that the Netherlands is less strict than other European countries when it comes to the risk parameters of its Seveso corporations (DHV, 2002) as could be predicted from the size of the country and the density of the population (Ale, 2005). This means that one could argue that Dutch regulatory norms accept higher levels of risk than other European countries in the case of land use planning in relation to Seveso corporations. As mentioned in the introduction, the Dutch implementation of the Seveso II directive integrates legislation in the field of occupational safety, external safety and disaster management within a legal framework. It represents three policy areas linked to the ‘environment’, ‘occupational safety and health’ and ‘emergency planning’ and therefore jurisdiction is divided between different ministries and inspection agencies. This is explained in more detail in Section 2.4 of the present chapter. The following sub-sections will provide an overview of the different developments concerning the Seveso directive as implemented in the Netherlands between the years 2000 and 2011. 2.3.1 The Seveso II directive in the Netherlands 2000 – 2003 The introduction of the Seveso II directive in the Netherlands was completed in 1999, after two years (Bottelberghs, 2000). Corporations submitted their first safety reports and assessments and Seveso inspections soon caused capacity problems at inspection agencies. 2.3.2 The Seveso II directive in the Netherlands 2004 – 2007 VROM Inspectie - Uitvoering Besluit risico’s zware ongevallen 2003 To gain an understanding of the way in which the competent authority and corporations implemented the requirements demanded under the Major Accident Hazards Decree, the Environment and the Transport and Public Works Inspectorate (In Dutch: the VROM-Inspectie) performed an evaluation in 2003. It constituted a random sample within upper tier corporations. The main critical outcomes were these: several municipalities and provinces had insufficiently implemented Seveso enforcement, several Seveso corporations were found to be lacking regarding numerous aspects of the Seveso regulations and there was no generally accepted country-wide monitoring and inspection method. Cap Gemini report – Werk aan uitvoering February 2004 This research was aimed at all the authorities involved (at both central and local level: such as the policy management of ministries, municipalities and fire departments) as well as numerous Seveso corporations and umbrella organisations (VNG and IPO). The main purpose of this evaluation was to review the implementation and enforcement of the Seveso directive which was carried out between November. 30 | The Seveso directive, its implementation and practice in the Netherlands.

(33) 2002 and October 2003. All the knowledge, available information, standards and guidelines for administrations and corporations was far from sufficient. This resulted in confusion and it led to ambiguity, different interpretations and regional differences concerning the implementation and enforcement of the Major Accident Hazards Decree. Differences were found in the expertise levels and cultures as well as between the different actors. In one recommendation it was stated that it is important to investigate how the difference between OSHA inspectors and other inspecting agencies can be reduced. The capabilities and capacities both of authorities and corporations was found to be inadequate. An important recommendation in the evaluation of the Major Accident Hazards Decree of 2004 (Communiqué Keizerskroonconferentie, 2004) had to do with the quality of the enforcement agencies. The relevant conference resulted in an improvement program known as BeteRZO (2005 – 2007). A new national inspection method was developed, designed for Seveso II inspections (Nieuwe Inspectie Methodiek, NIM). This national inspection method contained main features of the inspection process and content. For more detailed information on the national inspection method refer to Werkwijzer BRZO II (LATrb, 2007). To stimulate and maintain a high standard of inspecting expertise and professional ability, the national advisory team on the Major Accident Hazards Decree developed criteria which had to be met by every enforcement agency. This included minimum knowledge and expertise requirements for each inspector and the assurance that all knowledge, development and training of this process within an enforcement agency would be up-to-date. External factors were considered as well concerning the number and different levels of Seveso corporations in the enforcement agency’s working environment. If the responsible authority does not meet the standards, then things have to be outsourced. In 2006 a new enforcement programme was set up, the ‘Eenduidig Toezicht’ (i.e. Unequivocal Supervision) programme that was aimed at reducing the numbers of inspections in various sectors and the accompanying administrative burden by 25% while at the same time making inspections more effective. This program was followed by several changes in policy management, all of which were aimed at reducing the pressure of rules, regulations and the regulatory burden and which culminated in the ‘Vernieuwend Toezicht’ (i.e. Innovative Supervision) programme. 2.3.3 Seveso directive II in the Netherlands 2008 – 2011 Vernieuwing Toezicht Chemie, November 2008 This sectorial programme that was directed towards the chemical industry was set up in 2008 and came as a result of the ‘Eenduidig Toezicht’ programme.. The Seveso directive, its implementation and practice in the Netherlands | 31.

(34) It needed to ensure the following matters: • That inspectors will trust corporations to comply with rules and regulations; • That lower risk corporations will be inspected less thoroughly while major risk corporations will be inspected more often; • That inspectors will limit themselves to only inspecting according to a systemfocused approach; • That inspection agencies will work together which should result in fewer separate visits to corporations by inspectors; • Fewer and more simple rules; • Corporations that intentionally break the rules will receive severe enforcement action. Several notable statements are made in this program concerning, for instance, the trust that inspectors have in corporations, the fact that some corporations will be inspected less thoroughly than others and the point to the effect that inspectors will limit themselves to system-focused monitoring. VROM Inspectie – Handhaving Brzo, February 2009 The Environment and the Transport and Public Works Inspectorate (In Dutch: VROM-Inspectie) investigated to what extent enforcement is performed on time, unequivocally, accurately and uniformly. Attention was devoted to the enforcement activities of the three inspection agencies. A total of 29 inspections were studied but especially those linked to the follow up in relation to different violations. The inspectorate concluded that similar findings did not result in the same violation or in identical enforcement procedures. The results of inspections that were classified as ‘poor’ or ‘moderate’ were not consistently rated as a violation and the use of different enforcement strategies and tools contributed to differences in enforcement approach. Implementation of the Safety Regions Act, October 2010 (in Dutch: Wet veiligheidsregio’s) The Safety Regions Act came into force on October 1st, 2010 and replaced existing regulations and legislation connected with the Fire Services Act (in Dutch: Brandweerwet 1985), the Disasters and Major Accidents Act (in Dutch: Wet rampen en zware ongevallen) and the Medical Assistance Act for Accidents and Disasters (in Dutch: Wet geneeskundige hulpverlening bij ongevallen en rampen). The management board of any safety region has the power to stipulate that certain corporations must have corporate fire services. This act obliges corporations that fall under the Major Accident Hazards Decree to prepare and put in place disaster management plans.. 32 | The Seveso directive, its implementation and practice in the Netherlands.

(35) As stated at the beginning of this chapter, the legal context to this research is the regulation of chemical corporations in the Netherlands; this is known as the Major Accident Hazards Decree (in Dutch: Besluit Risico Zware Ongevallen, BRZO, 1999) and it is the Dutch implementation of the Seveso II directive. It integrates legislation in the field of occupational safety, external safety and disaster management within a legal framework and is an example of legislative coordination. It represents the policy areas ‘environment’, ‘occupational safety and health’ and ‘emergency planning’. Since the legal context of the Major Accident Hazards Decree is based on three different Dutch laws, jurisdiction is also divided into different organisations. This inevitably leads to a fragmented situation in which numerous organizations monitor process safety and the need to share responsibility and have overlapping tasks and jurisdiction is placed with different inspection agencies. The Dutch Safety Board concludes that this situation can form a bottleneck (OVV, 2013: 125). The different inspection agencies involved are described in the following section.. 2.4 Inspection agencies. The Environment and the Transport and Public Works Inspectorate was formed in 2012 and (In Dutch: Inspectie Leefomgeving en Transport) monitors the way in which European legislation is implemented.The Inspectorate oversees the implementation of the Seveso II directive (secondary monitoring, in Dutch: tweedelijns toezicht) by municipalities and provinces. The Seveso II directive is enforced by a combination of three different agencies: the ‘Environmental Authority’ (in Dutch: Bevoegd Gezag Wabo), the ‘Occupational Safety and Health Agency’ (in Dutch: Inspectie SZW) and the ‘Safety Region’ (in Dutch: Veiligheidsregio). The environmental authority is appointed as the ‘competent authority’ as described in Article 16 of the Seveso II directive. The task of ‘competent authority’ is executed by a province or municipality and its environmental departments. Generally the actor responsible for the granting of an environmental licence is the competent authority for the enforcement of Seveso rules and regulations at a corporation. Most of the time larger and municipality-exceeding corporations are placed under the authority of provinces and smaller ones under the authority of the municipalities. The second inspection agency involved is the Occupational Safety and Health Agency (OSHA). It has 7 different departments (organogram OSHA, 2013) and one department that is solely responsible for the enforcement of the Seveso II directive. This is described in more detail in Section 2.4.2 of this chapter. Officially until 2010 it was the ‘courts of mayor and alderman’ and the mayors of the municipalities that formed the third Dutch enforcement authority in conjunction with emergency planning. However, in reality the responsibility is delegated to the Fire Departments. In connection with the Seveso II directive all municipal fire brigades are divided into five clusters and. The Seveso directive, its implementation and practice in the Netherlands | 33.

(36) with the implementation of the new decree, 12 new full-time jobs have been created within the clusters to execute Seveso enforcement. With the implementation, in 2010, of the Safety Regions Act it was the management board of any safety region that became the enforcement actor in relation to emergency planning. The following situation applies to Rotterdam-Rijnmond, the research area explored in this dissertation. The province of South-Holland is responsible for granting licences. The province of South-Holland, the Occupational Safety and Health Agency and the Rotterdam-Rijnmond Safety Region are responsible for Seveso enforcement in that area. The province has delegated its responsibility to the Regional Environmental Protection Agency, the DCMR. The DCMR and the Rotterdam-Rijnmond Safety Region (VRR) are the executive agencies of local authorities. The following sections will provide more information on the three different inspection agencies involved in Seveso inspections in the Rotterdam-Rijnmond area. 2.4.1 Regional Environmental Protection Agency, DCMR (in Dutch: DCMR Milieudienst Rijnmond) The growing business activities of the sixties started to affect the environment more and more. One of the direct consequences of this was that people could no longer open their windows because of the acidification. At that time different institutions dealt with the problem of pollution. In 1967 the central command and control room was installed to mount a more effective fight against air pollution. Residents in the Rotterdam-Rijnmond area could call them up (CMRK) and lodge complaints 24 hours a day, 365 days a year. Once the environmental responsibilities had been transferred, they decided to establish a central service for environmental issues and so the central command and control room became part of this new agency. The DCMR Environmental Protection Agency is the regional environmental protection agency of the local and regional authorities operating in Rotterdam-Rijnmond. The DCMR was founded in 1972 in order to improve environmental protection in the Rotterdam-Rijnmond region. It is an industrialized area with refineries, waste incinerators, several waste dumping sites, many large chemical plants, metallurgy, food processing plants and about 19,500 smaller companies (DCMR, 2012). Koolhaas (1990: 96) conducted research into five different Dutch inspection agencies including the DCMR. He noted differences between the sanctioning practice of these inspection agencies. Environmental inspectors from the DCMR demanded, usually on the basis of enforcement notices, that violators comply within six months. In addition to this Koolhaas concluded that concrete technical advice was rarely given and that – unlike other inspection agencies – they did not act as mediators.. 34 | The Seveso directive, its implementation and practice in the Netherlands.

(37) Seveso inspections are applicable to about 140 corporations in the RotterdamRijnmond area. The mission statement of the DCMR is this: “The DCMR contributes to reducing the environmental impact of corporations by using legislative measures and specific expertise in order to increase environmental quality and safety in the Rotterdam-Rijnmond area. This is done on behalf of the province of South Holland and fifteen municipalities in this region. The DCMR needs to actively integrate environmental concerns into other policies together with environmental and safetyrelated social issues and new developments” (DCMR, 2012). The tasks of the DCMR include regulating industries, monitoring and assisting authorities in the developing of environmental policy. Approximately 500 people work at the DCMR. The Environmental Licensing Act (in Dutch: Wet algemene bepalingen omgevingsrecht, Wabo), the Environmental Management Act (in Dutch: Wet milieubeheer) and the Soil Protection Act (in Dutch: Wet bodembescherming) stipulate the tasks of the Environmental Protection Agency, together with the Collective Regulation for the preservation and management of the DCMR (in Dutch: Gemeenschappelijke Regeling tot instandhouding en beheer van de DCMR Milieudienst Rijnmond). The DCMR divides its tasks between four different divisions: the municipalities and SME, the Port of Rotterdam and the industry there, the expertise centre and business management. These divisions have subdivisions such as ‘monitoring and enforcement’ or ‘port permits and waste’. The present study was limited to the two subdivisions that deal with Seveso inspections, because they predominantly inspect chemical corporations that fall within the scope of Seveso. These subdivisions inspect roughly 140 Seveso corporations every year and 45 employees in total work at both divisions (including administrative support). A small proportion of the DCMR environmental inspectors are working exclusively on this subject. Most of them have other duties as well, like for example a specific area of focus such as programmed inspections. EPA inspectors have 4 up to 13 corporations under their responsibility all depending on the size and the complexity of the corporation in question (personal communication, February 2012).. The Seveso directive, its implementation and practice in the Netherlands | 35.

(38) Director. Managerial administration. Operational management. Documentation Communication Information Fascilicate management Information and communication technology Human recourses Planning, control and finances. Municipalities and SME. Port of Rotterdam and industry. Expertise centre. Staff and policy. Staff and policy. Air. Operational tasks. Sound. Spatial development SME Region North SME Region South SME Region Rotterdam North SME Region Rotterdam South. Figure 2.1 Organizational chart of the Regional Environmental Protection Agency, DCMR. 2.4.2 Occupational Safety and Health Agency, Inspectie SZW (in Dutch: Inspectie Sociale Zaken en Werkgelegenheid) The Occupational Safety and Health Agency was established on March 1, 1890 when inspectors Struve, Kuijper and van Loben Sels started their activities in the three districts of Breda, Zwolle and Haarlem. Nowadays the Occupational Safety and Health Agency is part of the Ministry of Social Affairs and Employment. It supervises compliance with regulations in the area of working conditions and the prevention of major hazards involving dangerous substances. The agency detects fraud, exploitation and organised crime within the work and income chain (labour exploitation, human trafficking and large scale social security fraud). They supervise compliance with regulations in relation to illegal employment and minimum wages and offer insight into the effectiveness of the work and income system. In addition they have investigative tasks linked to complaints, tips, reports and industrial accidents. Employers are obliged to immediately report any industrial accidents that result in hospital admission, permanent injury or death. OSHA started in April. 36 | The Seveso directive, its implementation and practice in the Netherlands.

(39) 2003 with a specific department for Seveso rules and regulations, the Major Hazard Control department. The Occupational Safety and Health Agency underwent reorganization on January 1st, 2012 when it became the SZW Inspectorate consisting of a combination of organisations and activities of the former Labour Inspectorate, the Work and Income Inspectorate and the Social and Intelligence Investigation Service of the Ministry of Social Affairs and Employment. The reorganization did not affect this research. The Major Hazard Control department supervises the Dutch Implementation of the Seveso II Directive, the Major Accident Hazards Decree 1999 and the Additional Risk Assessment and Evaluation (ARIE) to limit the risks for employees and the environment deriving from corporations that work with large quantities of hazardous substances. Major Hazard Control has the statutory obligation to supervise compliance with these regulations at corporations with respect to the perspective of the protection of employees (internal safety). This department is divided into four regional offices known as the North, South, West and Rijnmond. All the offices consist of inspectors responsible for major hazard facilities, most of whom, as opposed to the environmental inspectors, work full-time on this single area of expertise. Although occupational safety and health inspectors have some other duties alongside Seveso inspections, which are more related to accidents, they investigate accidents, major and otherwise, and draw up reports, notifications/reports for the European Union’s Major Accident Reporting System (MARS), investigate complaints and do technical assessments connected with Seveso II notices. Alongside the above-mentioned tasks, the department of Major Hazard Control conducts a nationwide project every year, for example on regular maintenance. In these projects numerous SZW Inspectorate offices work together, for example the Labour Market Fraud section, the Working Conditions people and the Major Hazard Control directorate on multiple aspects (nationwide for 15% of their time, Inspectie SZW, 2012). In total there are 10 OSHA inspectors working in the Rotterdam-Rijnmond area under the supervision of a single team leader. Two inspectors are senior inspectors who also have, in addition to their Seveso activities, duties such as project-based tasks, a specific area of focus and training work. OSHA inspectors have 10 to 14 corporations in their work portfolios. The exact number depends on the size and complexity of the corporation (personal communication, April 2012).. The Seveso directive, its implementation and practice in the Netherlands | 37.

(40) Inspector General team. Analysis, Programming and Monitoring directorate. Labour Market Fraud directorate. Working Conditions directorate. Research and Analysis A department. Inspectorate A department. Inspectorate A department. Research and Analysis B department. Inspection team 1 to 6. Inspectorate team 1 to 9. Policy Support department. Team Specialists & Operational Project Managers. Communication department. Inspectorate B department. Programming and Projects A department. Inspection team 7 to 13. Programming and Projects B department. Inspection B department. Inspectorate Support and Information Management directorate Services, Personnel, Organisation and Quality department Personnel Development. Centre of Expertise department. Investigations directorate. Work and Income Directorate. Inspection A department. Investigation department. Programme A department. Inspection team 1 to 4. Investigation team 1 to 10. Programme B department. Investigation Information department. Programme C department. Personnel, Organisation & Quality. Inspection team 10 to 18. Inspectorate C department. Major Hazard Control directorate. Services. Front Office, Inspectorate and Management Support department. Front Office Team 1 to 4. Project Preparation Information Desk. Programme D department. Digital Centre of Expertise. Criminal Intelligence Unit. Inspectorate Support Investigation Expertise Management Support. 23 Figure 2.2 Organizational chart of the Inspectorate SZW. 38 | The Seveso directive, its implementation and practice in the Netherlands.