Chartered Waste Manager and independent waste regulation specialist John Galvin MBE assesses the Government’s recent response to the consultation on waste crime and poor performance…
This week the Government published its much heralded Our Waste, Our Resources: A Strategy for England that will set the direction of travel on a myriad of waste policy areas. Chapter 4 sets out the strategic prevent, detect and deter approach to tackling waste crime and builds on many positive steps taken over the last five years.
It confirms there will be reforms to the regulation of waste carriers, brokers and dealers, including their competence that was called for by the CIWM, ESA and UROC, as well as mechanisms to ensure waste is properly and consistently described.
The Strategy also delivers on many of the other recommendations of the Independent review into serious and organised crime in the waste sector including the setting up of a Joint Unit for Waste Crime that will site within the Environment Agency. The Strategy will potentially most importantly consider how the Environment Agency is funded to fulfil its duties and enforcement role. There is a lot to digest over Christmas.
But while we carve into the turkey, we have digested below some of the trimmings in the form of the Government and the Welsh Government response to the consultation on Proposals to tackle waste crime and poor performance in the waste sector and introduce a new fixed penalty for the waste duty of care. The response was published on 26 November 2018 alongside the Environmental Permitting (Miscellaneous Amendments) (England and Wales) Regulations 2018 (SI 2018 No.1227), giving effect to some of the changes in the Government response.
In its November response the Government has confirmed it will introduce fixed penalties for householders in breach of their Duty of Care if they pass their waste to an unauthorised person. In England the 2018 Regulations introduce the power to serve a Fixed Penalty Notice to discharge the liability arising from an offence, with effect from 7 January 2019.
A consultation was carried out between January and March 2018 to take forward a commitment given in October 2015 to better enshrine the requirement for operator competencein legislation. The consultation also proposed the introduction of fixed penalties for householder Duty of Care offences and changes to the system of permit exemptions. A summary of the responses to the consultation was published in July 2018. The comments below relate primarily to England.
In its November response the Government has confirmed it will introduce fixed penalties for householders in breach of their Duty of Care if they pass their waste to an unauthorised person. In England the 2018 Regulations introduce the power to serve a Fixed Penalty Notice to discharge the liability arising from an offence, with effect from 7 January 2019.
Once an FPN has been served, no proceedings may be instigated against a person for the original offence if the FPN is paid within 14 days. Local authorities may set the level of the penalty on a scale between £150- £400, while the default penalty (where a local authority has not specifically adopted an alternative) will be £200. Revisions to the Duty of Care Code of Practice and guidance to local authorities on exercising the power have been publishedat the same time.
While the proportionate use of FPNs is to be welcomed to raise awareness of the Duty of Care and to limit the transfer of waste to unauthorised persons and small scale fly-tipping, their use does not extend to transfers of other types of waste and the 2018 Regulations specifically refer to the use of FPNs for offences relating to the transfer of household waste.
This may preclude the use of FPNs against householders in respect of any construction or demolition waste removed from domestic premises as this type of waste is considered industrial not household? If that is the case it may limit the use of FPNs against householders?
The Government re-emphasised its commitment to reform permitting exemptions to prevent their use to mask illegal activity. However, the response does not set out changes to the exemptions regime. The Government has said it wants to further consider the breadth of impacts of any changes and will decide upon revised limits for any amended exemptions. A supplementary government response setting out the approach to exemptions will be published in due course.
Operator Competence
The Government response sets out its intention for the reform of the four arms of the operator competence assessment (the modern-day equivalent of the fit and proper person test)for operators of permitted sites, namely past operator performance, management systems, technical competence and financial competence.
Written Management Systems
Subject to qualifying criteria, the 2018 Regulations introduce conditions to permits with effect from 7 April 2019. Firstly, operators must manage and operate the waste operation in accordance with a written management system which identifies and minimises the risk of pollution and measures to address complaints and accidents. Secondly, the system must be reviewed from time to and kept up to date.
The qualifying criteria are that the condition applies; if the permit was granted before 6 April 2008; the permit does not authorise a waste operation carried out at an installation or by means of a Part B mobile plant; and the permit does not already contain a condition requiring a management system.
The government says three months should be sufficient time for competent operators to prepare a written management system in accordance with the law and so operators should submit their management systems by 7 April 2019. However, failure to provide a written management system by the due date will not be a criminal offence, at least initially. The response says this is part of a phased approach to encourage operator compliance without immediate criminal consequences.
There is no explicit requirement for an operator to review the management system when seeking a variation and making some other change to the activities. It is assumed that failure to do so may leave the operator in breach of the condition and therefore open to enforcement action.
This is in contrast to operators of permits that already contain a condition to operate the facility in accordance with an agreed management system, where a breach of the condition is an offence.
There is no explicit requirement for an operator to review the management system when seeking a variation and making some other change to the activities. It is assumed that failure to do so may leave the operator in breach of the condition and therefore open to enforcement action.
It is not immediately apparent whether applications for new permits made after 7 April 2019, will need to include a written management system to be agreed as part of the decision to grant a permit, or whether the management system may be submitted after the grant of a permit but before operations commence. It might help dissuade less scrupulous operators from applying if the management system were to be assessed during the application process.
It is estimated this change will affect over 2,000 sites with permits granted before 6 April 2008 and bring waste management operations up to a level playing field. It is not clear whether those sites currently without written management plans are those that perform poorly and therefore how much difference the change will make?
It is quite clear though that currently-poorly-performing operators are not operating in accordance with their existing management systems, so one questions the extent to which having management systems at the remaining waste sites will make a difference, unless compliance is adequately policed and enforced.
Technical Competence
By contrast the Government response states clearly that the best way to tackle poor operator performance is by intervention at the application stage and that appropriate competence is demonstrated before a permit can be granted. However, the 2018 Regulations fall some way short of supporting the statement.
As with management system the 2018 Regulations introduce conditions in qualifying permits that the operator must periodically give the regulator information demonstrating the operator’s compliance with one of the existing two approved schemes of technical competence (CIWM/WAMITAB or the Competence Management System from EU Skills) including any failure to meet either scheme.
The qualifying criteria that apply the conditions are that the permit; authorises a waste operation which is not carried out at an installation or by means of a Part B mobile plant; or authorises a specified waste management operation. The 2018 Regulations go on to specify what constitutes a specified waste management operation.
Where an operator must notify the technical competence arrangements, this must be done on the first occasion beginning 7 April 2019 and ending with the end of the period to which the first return relates and thereafter by way of the submission of quarterly or annual returns.
The failure to apply technical competence to some waste facilities that are classed as installations seems a retrograde step. It would appear to be against the principle of proportionate regulation, if the operator competence requirement is not applied to those types of waste operation that pose the highest environmental risk!
As with management systems, the 2018 Regulations mean that failure to notify technical competence may be subject to enforcement action but would not constitute an offence, at least initially. This will be a difficult pill to swallow for the majority of operators who have provided technically competent management, in some cases continuously since technical competence became a requirement in 1994.
However, the Government response says that it will subsequently implement proposals to clarify the legal requirement for technical competence and introduce a de-registration system for technical competence. Criminal sanctions will be introduced that that time.
There is a distinct lack of detail of what de-registration of technical competence will look like. De-registration also begs the question what is meant by registration in the first place. Will it mean registration with one of the two approved schemes of technical competence as is the case now, or does it mean registration with the regulator, once technical competence has been awarded?
In either case one must assume any decision to de-register will be made by the regulator based on the commission of an offence or other misdemeanour, notwithstanding the fact the person may have been assessed as competent under either of the schemes? There are numerous questions about the mechanism for operation the register that will need clarification.
The failure to apply technical competence to some waste facilities that are classed as installations seems a retrograde step. It would appear to be against the principle of proportionate regulation, if the operator competence requirement is not applied to those types of waste operation that pose the highest environmental risk!
Furthermore the reluctance to scrutinise and enforce the current technical competence provisions is a major factor in some rogue operators getting permits and poor compliance in a small proportion of the waste industry and the changes may simply mean that operators provide names of individuals without any clarity over the extent of their role and responsibility. So, sadly there will continue to be question marks over the enforceability of the technical competence requirements for some time yet.
None of this currently addresses two key issues that currently undermine the technical competence provisions. These are (a) the need for the regulator to carry out checks on technical competence as part of routine inspection, and (b) making the technically competent managers more accountable for failure in the operation of a site.
It would seem necessary to ensure that the cost of fully scrutinising technical competence arrangements and written management systems and monitoring subsequent compliance would be reflected in increases in application fees and annual subsistence charges? So again the impact of these changes will depend on how well they are policed and enforced.
Past Performance
The Government says will amend its core guidance on environmental permitting in respect of operator competence, to allow the regulator to take account of a wider range of relevant personsand relevant offences, the treatment of corporate bodies and other poor behaviour towards the regulator and the permitting process. The government hopes that adding to the regulators’ powers in these areas will act as a deterrent and reduce non-compliance and waste crime.
The Government says that the revised core guidance will contain a wider list of legislation under which permit applicants must disclose non-spent convictions. These include tax, fraud and theft legislation amongst others, with the possibility of further legislation being added from the long list of suggestions submitted by respondents to the consultation.
This all sounds good providing the environmental permitting guidance is flexible enough to be updated and to allow the regulator to take account of other matters as they emerge. However, convictions by way of a fine are considered spent after 12 months under the rehabilitation of offenders legislation and do not need to be declared. This coupled with an operator’s ability to become insolvent and have the permit disclaimed means that rogue operators may continue to return to operating sites.
There is nothing to suggestthe scope of who is considered a relevant personwill also be widened so that those who have committed gross breaches of permits at one site, can be prevented from being a competent manager or operator at another site.
Financial provision
The Government response indicates it will strengthen the regulators’ assessment of financial competence through a phased approach. In the first instance it will amend the Environmental Permitting Core guidance to clarify that financial competence checks can be carried out at any time, not just after the applicant has declared they have been subject to insolvency proceedings in the past.
It goes on to say that Defra is committed to bringing in financial competence and will consult on specific financial provision options in 2019 with the aim of bringing in legislation in due course, as well as strengthening the financial provision arrangements at landfill sites.
It is already explicit in the Core guidance that operator competence, including financial competence can be reviewed at any time, so it is unclear what further changes to the guidance alone will make?
However, the fact that the Government has announced it will consider introducing a tax registration check linked to the renewal of carrier, broker and dealers is a potentially positive step. There might be benefits on considering something similar for site operators along with assurances about their finance and insurance arrangements? It will be necessary though to be absolutely clear what any financial provision is for and in doing so learning from previous experience of applying financial competence at all permitted sites.
