Back in September 2014, Dan Rogerson, the MP for Resource and Environment Management, wrote to David Palmer-Jones, then chairman of Environmental Services Association (ESA), regarding the tackling of environmental waste crime and poorly performing waste sites.
A meeting in March followed, in which members of UROC, ESA and the Environment Agency (EA) all gathered in Westminster to hear more about the Government’s proposals. A consultation was set out for May, which invited suggestions for the industry on how to deal with issues that form the Waste Crime Action Plan.
The EA has calculated that out of the 11,000 waste sites currently in operation, 300 of those are judged to be poor performing. Relatively speaking, this isn’t a large amount, but the cost to the tax payer is huge.
The EA are setting out on this project to determine which sites can be classed as poor performing by using their Operational Risk Appraisal (Opra) Score. Opra looks at what activity is being done, where it is done and how it is done. This allows the Environment Agency to target resources at those facilities that pose the greatest risk to the environment. According to the EA, they aim to work with good performers, so they can continue to protect the environment effectively and improve their performance. However, the EA take action against unacceptable performance. Sites who get scored in compliance bands D, E, F are deemed to be poorly performing
There is a fear that this Opra Score could not be the best facility in to marking problem sites. The problem of subjectivity is key here – whereby an EA inspector could class a potential problem as more severe than the next inspector. Sites that get scored negatively will face more visits, and could result in higher subsistence fees.
Scoring and Fines
Sites classed as poorly performing are referred to as serial D, E and F Opra sites. These sites face a very real danger of closure if nothing is done to improve practices. These sites are considered such if the EA considers them guilty under the following terms:
- There is a lack of understanding of how the site should operate
- An operator is deliberately flouting permit conditions
- An operator has “drifted” in to the poor performing categories
Those that are repeatedly scored in band D for two years or longer will be charged 200% of the compliance charges. This is an increase from 125%. Furthermore, those constantly scored in the Band E bracket will be charged 300% – doubling from its current 150%. Those falling in to Band F will see charges go up from 300% to 500%. Those in this bracket will have their mid-year performance review removed.
The EA have declared that the revenue received from these charges will contribute towards their regulatory work on these sites and also help recover the money spent on ‘resources and expertise’.
These charges will continue to be applied until the sites are either shut down or move up to compliance bands A, B or C.
As part of this, the government have given the EA greater authority and more powers in terms of regulating waste sites. They have also handed them a further £5m to tackle this project. On this, the Environment Agency released a statement announcing the problems they currently face controlling the amount of sites that fall under the standards required – and the costs that befall them.
‘We are facing significantly increased levels of activity resulting from environmental incidents from a range of regulated and unregulated sites. We are exploring options for introducing a funding mechanism that would enable us to respond effectively and pay for this work. The aim will be to provide financial security to cover the costs of our interventions across a range of incident, compliance and enforcement situations.
‘We are considering options for this and how any mechanism would work in practice, the level of funding required and whether any restrictions would be necessary. We are also looking at how we could work in partnership with independent industry representatives on this.
‘An assessment of EPR Waste facilities and Installations in Bands D, E or F for compliance has shown that the level of effort required to improve their performance can outstrip the income collected for that purpose. This occurs where we have operators, who are remaining in Band D, E or F for a number of years, and we have to apply further measures and interventions and utilise national resources and expertise to ensure improvement occurs.
‘A significant number of these operators are remaining in these compliance bands for periods exceeding two years. For these persistent poor performers we are proposing [to introduce] a second tier of compliance charge multipliers. This change will provide the additional income required to fund our further regulatory effort at these consistently poor performing sites. Poor performing sites are often bad neighbours to the surrounding community.’
The Agency have proposed that all new waste sites will be given full instructions on what is required of them in operation. They will be provided with more scrutiny and help in the initial stages in order that they are up-to-date with the requirements. This will ensure a good standard of operation practiced from day one, and the management are given the support needed to drive this working method on sustainably and successfully. This will hopefully improve standards over the course of a few years, whereby the Agency are seeing less ‘problem’ and ‘poorly performing’ sites.
The new permit commencement charge will apply to all newly issued EPR Waste facility and Installation permits. The proposed charge, which will be applied once following the issue of the permit, will be calculated at 40% of the full annual subsistence charge for that permit and will be payable in addition to the subsistence charge.
Some feedback from the consultation is published online here, http://tinyurl.com/peese3c. It makes some interesting reading, not least because of the (rather unsurprising) amount of protestation from the waste industry.
Many of the people who filled out the consultation document have queried the handling and management of fines and the news of their significant increase. One anonymous poster wrote:
“I cannot support the application of what is essentially an arbitrarily assigned multiplier, which I do not see the legal basis for. The application of the 500% multiplier amounts to a ‘penalty’ which the EA does NOT have the legal authority to assign and which represents a significant over-recovery of costs. One could also argue that a site straying into band D, E or F will most likely be a highly complex site with many emission points in which the probability of attracting CCS points is statistically higher than a simple site with 1 or 2 emission points and lower frequency of monitoring and regulation. The proposal suggests that the costs of regulating sites with more CCS points are as much as 5 times higher than of sites with few CCs points but does not take into account the severity or significance of the compliance events leading to the assignation of the CCS score in the first place.
“Whilst I agree that the EA needs to be more ‘present’ on poorly performing sites, I disagree that the actual costs of regulation match the potentially huge additional costs incurred. Wouldn’t it be more appropriate to ask the company to spend that money on dealing with its compliance issues?
“This again seems to be just a way of looking for more money. If the agency wants to encourage businesses to be fully legally complaint, it needs to work with them and stop putting higher barriers in place such as this extortionate 40% hike in permit application fees.”
The feedback also highlighted the problems that could be caused by accidental breaches. While the majority of sites will go out of their way to court attention of the Agency, there are occasions where incidents could happen out of the control of the site and its operators. In this situation, issuing a fine is not only seen as unfair, but could damage a company that could not afford the hit. Appealing the fine and CCS scores would in turn cost the Agency more.
Many reported back the glaring problem of the lack of consistency and room for human error that could occur from a site visit – particularly if the relationship between site operator and Agency inspector wasn’t particularly good to begin with.
Other complaints included the overly wrought complexity of the Opra point scoring system, the inefficiency of the original Environment Agency website and total inefficiency of the GOV.UK website – something that everyone at Skip Hire Mag Heights (especially Enviroman) would agree with.