Environmental regulators to target waste offenders through tougher enforcement powers

The proposals would allow the regulators to suspend a permit if an operator has failed to meet the conditions of an enforcement notice even if the current 'risk of serious pollution' test is not met; and give the regulator broader powers to prevent or remedy pollution even where an environmental permit is not in place. Regulators would also be able to take proceedings in the High Court to secure compliance with enforcement, suspension or other notices, whether or not the regulator has taken other enforcement steps. Currently, a regulator needs to demonstrate it has given due consideration to the use of criminal proceedings before taking proceedings to the High Court.

While the focus of the consultation is on providing enhanced powers to the regulators to tackle waste crime, some of the powers will also enable enforcement action to be taken in respect of any activities carried out at a 'regulated facility' under the environmental permitting regime e.g. from chemical plants to sewage treatment plants. Environmental law expert Eluned Watson of Pinsent Masons, the law firm behind Out-Law.com said that the consultation would therefore be of interest to all businesses across England and Wales that hold an environmental permit.

"If the proposals in the consultation are implemented, operators can expect their technical competence, management systems and financial resources to be under greater scrutiny by the regulators," she said. "The changes would also make it easier for regulators to refuse permit applications and to suspend or revoke permits."

"In light of the wide-ranging proposals and the risk of increased enforcement action by the regulators going forward, is important that operators across all business sectors, not just the waste sector, engage with the regulators and the governments. Responses to the consultation will inform policy options and specific proposals that may follow the call for evidence," she said.

The governments are also seeking views on further measures to tackle "entrenched poor performance" in the waste management industry, which could include possible site management plan legislation or the introduction of fixed penalty notices for fly-tipping. "The waste management industry ... has a vital role to play in this government's work to secure a strong, growing economy that flourishes alongside a healthy natural environment," Defra said in its foreword to the consultation.

"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. These criminals are polluting the environment, endangering human health and showing contempt for local residents," Defra said.

Waste offences range from small-scale and organised fly-tipping to serious illegal dumping of waste and the illegal operation of waste management sites. They also include the deliberate mis-description of waste to evade landfill tax liability or to provide cover for the illegal export of waste. According to Defra, these activities cost the UK around £568 million annually. The rules are enforced by the Environment Agency (EA) in England and Natural Resources Wales (NRW) in Wales.

The first part of the consultation sets out six proposed changes designed to strengthen the regulators' existing enforcement powers. These include powers to suspend and revoke permits if conditions set out in an enforcement notice are not met and powers to issue notices to prevent breaches worsening. The governments would also allow the regulators to begin compliance proceedings in the High Court regardless of whether all other enforcement steps have already been taken; a change which the consultation estimates could double the number of orders issued each year.

The changes would also allow regulators to take physical steps to prevent further breaches of the regulators, for example by physically stopping waste coming onto sites; and to remove a risk of serious pollution at a facility, regardless of circumstances. The existing power to require operators to remove waste from land in situations where they have acted illegally would also be extended to cover situations where the initial dumping was lawful but subsequently became unlawful.

According to the consultation, these changes could result in higher costs to regulators from issuing and enforcing notices and ensuring sites are supervised. However, the governments have not provided an estimate of these additional costs. The changes would "ensure the current powers are more effective and will add clarity", according to the consultation.

The second part of the consultation is seeking views on some of the policy proposals set out in the UK government's Waste Crime Action Plan for England, published at the end of last year. These include tightening up on the technical competence and performance of operators, as well as the possible introduction of some form of upfront financial provision from waste operators throughout the lifetime of a site. According to the consultation, this could take the form of bonds or bank guarantees, escrow accounts or insurance. The governments are also seeking views on whether exemption requirements should be tightened.

The consultation closes on 6 May.