The Department for Environment, Food & Rural Affairs ("Defra") and the Welsh Government are currently consulting on strengthening the powers of the regulators in respect of those facilities which operate under environmental permits. As part of the same document they are also calling for evidence on measures to tackle waste crime and poor performance in the waste management industry. Views and comments are sought by 6 May 2015. What impact could this have, and is it important for you?
Focus and Impact
Although the document places a lot of focus on the waste management industry and waste crime, the majority of the proposed changes to enforcement powers would bite on all holders of environmental permits. In addition, it should be noted that changes in the regulation of the waste industry not only impact on waste operators, but also on those who own land on which waste operations are carried out, those who utilise the services of waste operators, and on insolvency practitioners dealing with waste operators.
In brief, the proposals on enhancing regulators' enforcement powers are aimed at enabling regulators to:
- Suspend permits where an operator has failed to meet the conditions of an enforcement notice. Such power is currently restricted to situations where it is considered that there is a risk of serious pollution from operation of the facility.
- Issue notices which include steps to be taken to prevent the breach of a permit getting worse. Arguably the current regime already allows this, and the proposal is intended to provide clarity.
- Take physical steps to prevent further breaches by an operator of their permit. The consultation envisages that such amendments would only apply to waste management sites.
- Take steps to remove a risk of serious pollution, whether or not a facility is under a permit. This would, therefore, cover situations where a facility is being operated without a permit and also where a permit has been revoked.
- Require the removal of waste from land (as a widening of current powers).
Call for Evidence
In addition to the specific proposals contained in the consultation paper, Defra and the Welsh Government are also seeking information on current problems encountered by the waste industry, the public and the regulators, and possible solutions. This includes consideration of the following:
- Widening enforcement options to allow the use of fixed penalty notices for fly-tipping (the situation at the current time is that local authorities can only issue fixed penalty notices for very small scale fly-tipping incidents).
- The best ways to increase awareness among landowners of their liabilities in relation to waste management operations on that land or premises. This includes seeking views on whether liquidators should be able to disclaim environmental permits as "onerous property".
- Regulation of operator competence, including: more directly reflecting operator competence requirements in the environmental permitting regulations; requiring companies to notify the regulator of a change of director, company secretary or similar manager which could then trigger a reassessment of operator competence; and potentially including operator competence as a condition of a permit.
- Possible reintroduction of financial provision for all types of waste management facility which can be accessed by the regulators or a third party to pay for the cost of pollution control and/or site clearance. Currently financial provision is only required for landfill and some extractive waste permits.
- Expansion of the regulators' powers to undertake anti-pollution works and recover the costs of the same, so as to cover works to prevent/remedy pollution associated with the deposit of waste on land.