In order to respond to public demand for greater transparency on the part of the authorities, environmental services in the Province of Noord-Holland will be proactively publishing sanction orders that have been imposed. This follows from a policy rule adopted by the Provincial Executive that was published on 24 July 2019. All orders will be published in which an administrative sanction has been imposed for an environmental contravention by operators of a “Brzo” and/or an “RI&E” installation.
Brzo and RI&E installations are often large enterprises that work, for example, with hazardous substances or chemical products. They fall within the scope of the Major Accident (Hazards) Decree (“Brzo”) or operate an installation for an industrial activity as referred to in category 4 of Annex I to EU Directive 2010/75/EU on industrial emissions.
Sanction orders imposed for environmental contraventions by operators of Brzo installations (under the Environmental Law (General Provisions) Act (“Wabo”), the Environmental Management Act [Wet milieubeheer], and the Brzo) have already been published since 2018, but the inclusion of RI&E installations is a new feature. As of today, 92 more companies will therefore fall within the scope of the policy rule. A total of 143 companies in Noord-Holland will now have to bear in mind that any sanction orders imposed will be published.
Depending on where the contravention took place, publication will be on the website of the North Sea Canal Area Environmental Service [Omgevingsdienst Noordzeekanaalgebied] or the IJmond Environmental Service [Omgevingsdienst IJmond]. The following information will in any case by published:
- the name and place of registration of the legal entity concerned;
- the contravention detected;
- the date when the contravention was detected;
- the location where the contravention was detected;
- the administrative sanction(s) imposed.
The policy rule also stipulates when imposition of a sanction will be accompanied by a press release, namely when the Provincial Executive imposes an administrative coercion order [last onder bestuursdwang] or an order with a penalty for non-compliance [last onder dwangsom] for EUR 250,000 or more. However, a press release will also be issued in cases when local residents have been subjected to a great deal of nuisance, or when third-party reports justify active communication by the Provincial Executive about the sanctions imposed. This does not necessarily mean only cases of a serious nature but also ones involving, for example, stench, noise or dust nuisance, or extensive attention in the media.
Finally, in exceptional cases, all relevant inspection and enforcement information will be published regarding installations responsible for an excessive number of (serious) contraventions or for long-term contravention situations that cause a great deal of nuisance for local residents.
What is striking about the policy rule is that it stipulates that the information will be made public, implying that the environmental services will have no choice as to whether to publish. However (fortunately), it will be possible to take action against disclosure. Before the information is published, the operator of the installation can submit a “presentation of views” [zienswijze] on the proposed publication order. Normally, those views will be submitted simultaneously with those presented regarding the intention to impose an administrative sanction. If the information is nevertheless made public, it will be possible to apply to the administrative court for a preliminary relief within two weeks. In that case, publication will be suspended until the preliminary relief judge has issued a ruling. This enables the company concerned to attempt to prevent harm to its reputation. For more information, don’t hesitate to contact us or go to the webpage of our multidisciplinary Safety, Environment & Brzo team.