Legislative update: Spring 2015

Consultation on proposals to enhance enforcement powers at regulated facilities

On 26 February 2015, Defra and the Welsh Government launched a consultation on proposals to enhance enforcement powers at regulated facilities, including waste management facilities. The consultation addresses concerns raised by the waste management industry about the extent of waste crime and poor performance, and their impact on local communities and legitimate businesses. Defra Minister Dan Rogerson MP responded to these concerns in September 2014 in a ministerial letter setting out a joint Defra/Environment Agency Waste Crime Action Plan for England.

The proposals would introduce six new measures to enhance regulators’ enforcement powers:

allowing regulators to suspend an operator’s permit where the operator has failed to comply with an enforcement notice;

enabling regulators to issue notices that include steps an operator must take to prevent the breach of a permit getting worse, such as actions to stop more waste coming onto poorly-managed sites;

making it clear that regulators can take physical measures such as locking the gates or barring access to a site to prevent more waste coming onto the site, in order to prevent an operator from committing further breaches of its permit;

empowering regulators to take steps to remove a risk of serious pollution, whether or not a facility has a permit;

enabling regulators to take proceedings in the High Court to obtain an injunction to secure compliance, whether or not the regulator has taken other enforcement action such as prosecution; and

extending regulators’ powers to serve notices on owners and occupiers of premises where waste has been deposited lawfully but the continued presence or storage of the waste has subsequently become unlawful.

Defra and the Welsh Government believe that the proposed changes would have no impact on legitimate businesses, as they would only affect operators of waste management facilities who breach their environmental permits.

Call for evidence on other measures to tackle waste crime and entrenched poor performance

The second part of the consultation contains a call for evidence on various other measures to tackle waste crime and entrenched poor performance in the waste management industry. These include:

fixed penalty notices for fly-tipping (these penalties would be likely to be used for small-scale local fly-tipping only, with prosecution remaining the likely enforcement response to more serious cases of fly-tipping);

actions to improve landowner awareness of potential liabilities for waste. These include measures to increase awareness amongst landowners of their potential liabilities in relation to waste management operations on their land or their premises;

proposals to strengthen the operator competence requirements that were previously contained in legislation, but are now contained in guidance. Defra would like to see the components of the operator competence test being more directly reflected in legislation. There are also proposals that an operator would have to be reassessed on any change of director, company secretary or other senior manager;

extending technical competence requirements to all waste operations carried out under an environmental permit. This might include a requirement to notify the regulator of any change in the technically competent manager of a waste management facility;

extending the requirement for financial provision (which currently applies only to landfill sites and extractive waste sites) to all types of waste management facility. Such financial provision could include bonds, bank guarantees, escrow accounts and insurance;

options for addressing abandoned or orphaned waste management sites, including establishing a scheme to meet the costs associated with the clearance and remediation of such sites;