Just when you thought it was safe to pick up that skip, along comes yet another change in the legislation which is badged as an additional effort to tackle waste crime. Yes, more red tape, which at first reading will not have much effect on illegal activities, which continue in spite of all current systems of licensing and registration. Fly tippers and operators involved in serious offences do not normally follow the paperwork trail that reputable operators are burdened with.
There is mounting evidence that the landfill tax is a contributing factor as our legislative drive to reduce waste going to landfill conflicts with its aims and objectives. Prohibiting waste from landfill is a sensible aim but we need somewhere for the segregated wastes that cannot be recycled, especially inert wastes and fines, to be deposited. This problem is significant for all waste operations and is regularly reported in the numerous journals, including The Skip. The ENDS Report May 2008 edition again noted several landfill avoidance prosecutions, such as depositing non-inert fines from a transfer operation to inert only exempt sites, fly tipping construction and demolition wastes and operating ‘exempt’ sites illegally.
One operation reported on the Environment Agency’s web site on 11 June 2008 was successfully prosecuted with the two defendants receiving custodial sentences of 14 and 22 months. The case is worth noting (http:www.environment-agency.gov.uk/news/2062931) as the defendants went to great lengths to appear legitimate, which has implications for carriers using such sites. How do you know the site you are using has a valid exemption? Traditionally, obtaining a copy of someone’s licence or exemption is sufficient proof that they have an approved operation. Not so anymore! Even if a site does have a licence or exemption the Agency are now chasing carriers that have legitimately used sites that have later been found to be non-compliant. How far should duty of care checks go? Should we be doing the Agency’s job for them? The simple answer is a resounding NO! Most waste operators are not qualified to audit waste sites and it is the job of the regulator that charges for the issue of permits and exemptions to do that job. Come on Defra, if you want to reduce so called environmental crime put some more resources into tackling it where it is most needed – i.e. on the ground.
The current system of using landfill or increasingly rare Paragraph 9 and 19 exemptions has to be addressed before any serious review of carrier registration or the duty of care takes place. The exemption review is well underway and I hope that Defra take on board the industry’s comments and also take a proportionate approach on inert landfill which would reduce the over reliance on exemptions that often stretch the boundaries of the legislation.
Now that rant is out of the way I shall concentrate on the title subject at hand. On 13 June 2008 Defra announced its second consultation on the controls on the handling, transfer and transport of waste, in the form of The Waste Controls (England and Wales) Regulations 2009 which if all goes according to plan will come into force in April 2009. The previous consultation closed on 6 march 2007 and the current one concentrates and consolidates the responses from the first one. The proposed regulations are the first major review of the Duty of Care and Carrier Registration since it came in to force over 16 years ago. Precisely what effect it will have on the legitimate waste industry is debatable as the main focus is on illegal operators, thereby increasing costs for the legitimate ones.
I shall concentrate on the effect on carriers this month and look at the duty of care in detail next month. The new regulations themselves are not very detailed and much will be left to guidance, which can be revised more easily than the legislation. The main proposals discussed are as follows:
1. Revoke existing regulations for carrier registration and the duty of care.
2. Impose a new duty for the Agency to make periodic inspections of all registered carriers of, and dealers and brokers in controlled waste.
3. Registration will be for one year rather than three, with various options proposed for renewal, such as a ‘tax disc’ based system which could be renewed easily and displayed on each vehicle. This will be an additional burden for larger waste operators with many vehicles or service companies with hundreds of vans but would enable carrier registrations to be checked instantly. The discs will be non-transferable i.e. new vehicle = new disc (at a cost of <£5 each).
4 Splitting carriers into lower and upper tiers, with the cost of registration for lower tier carriers (charities, farmers, waste producers etc.) at a one off £30 charge. Most waste carriers will face a £60 application fee and annual renewal of £45, which is not significantly greater but the process must be robust enough to ensure registrations do not accidentally lapse, which is addressed in the consultation document.
5. Waste producers may also have to register if they carry their own waste normally and regularly, although no detailed definitions of ‘normally and regularly’ have been proposed.
6. Change to revocation powers to enable more prosecutions to be taken into account when revoking a carrier’s registration. The increase in the list of prescribed offences could be done via guidance rather than legislation.
7. Proof of non-corporate carrier identity may be required i.e. copy of passport, driving licence, utility bill, bank statement etc. before a registration certificate or disc can be issued.
8. Possibility of new offence of failing to display proof of registration and issue of fixed penalty notices for more offences.
9. Raising the maximum level of fines for carrier offences to reflect the maximum for other offences (£50,000 in the magistrates court and unlimited in the Crown Court).
10. New proposals for seizure and disposal of vehicles.
In summary, the carrier registration changes will probably make the system more manageable for the industry as long as the Agency’s IT system can cope and enforcers take a proportionate approach to offences. Responses to the consultation should be sent by 8 September 2008 and I will be making a response on behalf of many colleagues in the industry, so if you have any comments to add please feel free to e-mail me or respond directly. The consultation can be viewed at: http://www.defra.gov.uk/corporate/consult/waste controls/index.htm.
Marco Muia BSc (Hons) MSc MCIWM is the Director of Oaktree Environmental Limited. He specialises in all aspects of waste planning and regulation consultancy. He also holds the level 4 COTCs for Hazardous Waste Treatment and Transfer. You can contact Marco on 01606 558833 if you have any questions about this article or e-mail him at enviroman@theskip.net