In an update to the article published in the November issue of the CIWM Journal, following some new regulations coming into force last week, Paul Sheridan and Olivia Jamison of CMS Cameron McKenna LLP revisit their analysis of the regulatory powers given the green light in England and Wales.
In May’s edition of the Journal we reported on the consultation by Defra and the Welsh Government on enhanced enforcement powers and other measures to tackle crime and poor performance in the waste management industry and the associated call for evidence. On 9 October the response to the consultation (the “Response”) endorsed all proposals. The Response signals further consultations or scrutiny on other aspects raised by the call for evidence. A copy of the Response is available here.
The Major Changes Already Progressed
Swiftly following the Response, on 30 October, regulations were brought into effect in England and Wales to introduce wider powers, These included the extension of environmental permit suspension powers where the regulator considers that there is a breach of environmental permit and a risk of pollution. “Pollution” is a very broadly defined term and despite some concerns that such a draconian power should be accompanied with additional guidance, at this stage no new guidance will be issued. Comments on the case for changes to the appeal process against suspension notices are to be considered further.
Regulators now have the ability to (ii) specify in a suspension notice steps that must be taken to remedy an alleged permit contravention; (ii) require the display of a sign that waste cannot be accepted where the suspension notice prevents specific waste being accepted; (iii) arrange for steps to remove the risk of serious pollution and (iv) bring High Court proceedings (such as an application for an injunction requiring cessation of activities) whether or not any other enforcement steps have been taken. The Response notes that once introduced, the use of this latter power will be kept under review to ensure that it is used only in exceptional cases.
The Call For Evidence
The Response sets out those ideas in or generated by the call for evidence which are to be pursued, those dismissed and those subject to further review.
The Insolvency Service will be considering more use of existing disqualification provisions to those directors who flout the law. In tandem regulators will be consulted on how the permitting application process can best ensure that landlords and landowners are aware of waste management activities on sites. The industry is encouraged to proactively consider other measures.
Consultations Due In 2016
Enshrining the principle of technical competence and operator competence in law with guidance issued to ensure the assessment and maintenance of operator competency.
The introduction of financial provision legislation for waste management operations (other than landfill).
Whether to implement law on the requirement for site management plans and their content.
Widening powers to recharge for pollution works caused by the deposit of waste (akin to existing powers regarding controlled waters).
Defra is to consult on proposals to improve and streamline the exemptions regime. Natural Resources Wales will work with the Environment Agency in order to inform the issue in Wales.
The ability to issue fixed penalty notices for fly tipping is to be introduced in England applying a default penalty with issuing authorities choosing a penalty amount from a prescribed range. The Response states that there is an argument that issuing authorities should be able to retain monies from fixed penalty notices. The Welsh Government will review similar proposals.
A number of issues will be progressed by consultations in 2016 as follows:
- consultations due in 2016
- enshrining the principle of technical competence and operator competence in law to ensure the assessment and maintenance of operator competency.
- financial provision legislation for waste management operations (other than landfill).
- whether site management plans and their content should be a legal requirement.
- widening powers to recharge for pollution works caused by the deposit of waste
- on proposals to improve the exemptions regime.
Any suggestions of an industry wide scheme to fund the clean-up of abandoned or orphaned waste management sites have been shelved. Instead more work will be conducted around targeting the broader use of financial provision to ensure that adequate resources are available for clean up and more work with landowners and landlords to reduce the risk of abandoned waste.
