Defra and Welsh Government consult on waste crime enforcement

By Annie Kane | 27 February 2015 | Add a Comment

The Welsh Government and the Department for Environment, Food & Rural Affairs (Defra) have released a joint consultation on enhancing the Environment Agency (EA) and Natural Resources Wales’s (NRW) enforcement powers when it comes to waste crime.

Comprising two parts – a consultation on proposals to enhance enforcement powers at regulated facilities, and a call for evidence on other measures to tackle waste crime and ‘entrenched poor performance’ in the waste management industry – the consultation aims to ‘inform future proposals to bring about a level playing field for the legitimate waste industry’ and encourage ‘growth through investment’.

Waste crime background

The consultation document highlights that at the end of March 2014 the EA was aware of 556 operational illegal waste management waste sites and 50 abandoned sites, while NRW was aware of 87 illegal waste sites in Wales (for reporting period April-November 2014) and nine abandoned sites.

It goes on to reference 2014 research from the Environmental Services Association Education Trust (ESAET) that estimates the cost of waste crime to be around £568 million (though the figure could be as high as £808 million), caused by factors including loss of revenue for legal waste sites, tax evasion, and the clean-up costs of fly-tipping.

The two governments also state that negligent waste management can impact human health as well as air, water and land quality.

They go on to outline that both governments want to see businesses ‘leading the way to help and grow the economy while improving the environment’, but recognise that government has ‘a role to play to facilitate and ensure the right framework is in place so that businesses have the tools and the freedom to realise the benefits’.

This, the document states, includes ensuring that the regulatory framework is ‘effective and properly enforced’ to provide a level playing field for responsible businesses. However, for this to happen, criminal activity and ‘entrenched and persistent poor performance’ must be tackled.

As such, the two governments are now calling on stakeholders to comment on further enforcement powers for the EA and NRW that provide ‘clarity’ to the current powers (thus making them ‘more effective’), and provide evidence on any other action that could be taken to tackle waste crime.

‘Taking effective action against the small minority undermining and undercutting the law-abiding majority’

In a joint foreword to the consultation, Secretary of State for the Environment Elizabeth Truss and Resource Minister Dan Rogerson said: ‘We all depend on the services the waste management industry provides. It has a vital role to play in this government’s work to secure a strong, growing economy that flourishes alongside a healthy natural environment. We want to support the great companies in this industry that operate to the highest standards. That is why it is essential we take effective action against the small minority of rogue operators who are undermining and undercutting the law-abiding majority…

‘We want to strengthen the Environment Agency’s powers to enforce effectively and provide it with more flexibility to take the most appropriate action. All businesses should operate within the rules, be technically and financially competent and not expect the taxpayer to pick up the bill for poor behaviour. This consultation sets out our proposals to enhance those powers… We invite all in the industry to consider these proposals and send in views and evidence so that we can make an informed decision.’

Wales’s Minister for Natural Resources, Carl Sargeant, added: ‘We are working with our regulator, Natural Resources Wales, to take stronger and tougher enforcement action using existing powers where appropriate and necessary to ensure that operations do not result in harm to human health and pollution to the environment… But we need to do more. We have listened to our regulator and identified several areas where changes are needed to existing powers to make their process of enforcement action more flexible and more effective in tackling waste crime and poor performing sites… This will reduce the pollution and misery caused to local residents by badly managed sites and enable legitimate waste businesses to flourish.’

Part 1 details: proposals

The proposals for consultation include giving the EA/NRW powers to:

suspend permits where an operator has failed to meet the conditions of an enforcement notice (currently, regulation 38(3) of the Environmental Permitting Regulations (EPRs) means that an operator of a regulated facility on whom an enforcement notice is served and who then commits an offence by breaching that notice, can still continue to operate);
issue notices that include steps an operator must take to prevent the breach of a permit getting worse, for example, key actions to stop more waste coming onto poorly managed sites (as the wording of the existing legislation is not ‘sufficiently clear’ that regulators can use enforcement notices to prevent more waste being accepted at a site while the existing excess quantities are being dealt with);
take physical steps to prevent further breaches by an operator of their permit, for example, physically stop waste coming onto sites that are not complying with their permits (as existing powers are not ‘sufficiently explicit’ to specify that the regulators can take steps to prevent waste from entering a site without resulting in claims for trespass or criminal damage);
take steps to remove a risk of serious pollution, whether or not a facility is under a permit (as current regulations do not allow regulators to remove a risk of serious pollution at a waste site after a permit has been revoked or where there is no permit in existence);
remove pre-conditions to bring High Court proceedings (as High Court proceedings are currently predicated on the regulator demonstrating that it has given due consideration to the use of criminal proceedings for failure to comply with a notice and concluded that such proceedings would be ineffectual); and
widen the regulators’ ability to require the removal of waste from land so that it covers situations where the initial deposit was lawful but the continued presence or storage of that waste subsequently became unlawful.

The consultation document suggests that the ‘most notable benefit’ of these proposals for the regulators would be the reduction in costs associated with ‘emergency preventative action to avoid pollution and amenity loss and any associated clearance costs’ (although this has to be balanced against any additional enforcement costs) and the enabling of ‘swift enforcement action’ before a situation has developed that poses a significant risk to the environment.

Benefits would also reportedly be felt by the general public and local businesses in areas near poor-performing waste sites, from a reduction in harm to local communities and disruption to their lives.

Part 2 details: Options for change

The second part of the consultation calls for evidence on further enforcement actions that could be taken to crack down on waste crime. These include:

introducing fixed penalty notices in England and Wales for fly-tipping (as these are currently only applicable to smaller-scale incidents, i.e. littering) to ‘act as a deterrent, while not being so high that offenders would not pay it or would rather go to court in the hope of receiving a lower penalty’;
introducing new mechanisms to increase awareness amongst landowners of their liabilities in relation to waste management operations on their land or their premises;
requiring applicants for environmental permits (and the registration of exempt waste operations) to provide evidence that they have notified their landowner of their intention to carry out a waste management activity and/or evidence from the landowner that they consent to such activity;
amending the EPRs to formally require operators of regulated waste management facilities to be competent in respect of: technical competence; financial provision; and operator performance;
applying technical competence to all types of permitted waste management facility, through the CIWM/WAMITAB scheme of individual operator competence and the ESA/EU Skills scheme of corporate competence (and ensuring that the regulators are told the name(s) of the technically competent manager(s) at permitted sites);
requiring operators of some or all waste operations to make specific financial provision to demonstrate their ability to fulfil the obligations arising from an environmental permit;
considering particular aspects of waste operators’ past performance, including spent convictions, when assessing an application for an environmental permit;
introducing legislation for waste operators to have site waste management plans;
introducing a scheme to meet the costs associated with the clearance and remediation of abandoned or orphaned waste management sites;
enabling regulators to recover costs for investigations and remedial work undertaken to prevent or remedy pollution associated with the deposit of waste on land; and
tightening access to waste exemptions by requiring those registering an exemption to: submit operating procedures on registration; confirm consent from a landowner; pay charges to increase assessment prior to registration compliance, assessment and inspection; and be subject to an assessment in the form of operator competence.