DEFRA, the Environment Agency and CIWM will be taking part in this year’s WASTE’ 15 “Panel Session” – you need to be there on 2nd July 2015 to take part in the debate and have your say on your future!
We believe that if the proposals set out in the DEFRA and Welsh Government consultation to enhance enforcement powers for regulators (EA & NRW) at regulated facilities, come in to force in their existing format, the impact will be far-reaching for the waste sector.
- Suspending a permit where an operator has failed to meet the conditions of an enforcement notice
It is our view that existing powers which require the regulator to demonstrate that there is a “serious risk of pollution” before a permit can be suspended, should remain as the requisite criteria, as otherwise it could lead to a site being closed for minor breaches of permit conditions. The problem is consistency across the board in officers’ opinions when regulating sites. We call for more training of regulators so they can fully understand the law and apply it fairly to all operators.
- Enable regulators to issue notices that include steps an operator must take to prevent the breach of a permit getting worse
We believe that there are already sufficient powers available to regulators to prevent waste being accepted at sites that are over the permitted tonnage; and that to amend the regulations would be over burdensome and add an additional level of red tape. It is proposed that regulators can force operators to erect signs to notify “no waste” allowed because a suspension notice is in place. We do not agree with this, as it could impact on commercial relationships and cause irreversible damage to reputation.
- Enable regulators to take physical steps to prevent an operator from committing further breaches of the permit
We do see merit in this power when all avenues have been exhausted to try and get an operator to comply, especially if there are mountains of waste on site. However, concerns would be an abuse of the power by overzealous officers waiving a padlock and chain in operators faces threatening to shut down the business!
- Enable regulators to take steps to remove a risk of serious pollution, whether or not a facility is under a permit
This is to allow regulators to require the removal of a serious risk of pollution after a permit has been revoked, or if a site was not permitted in the first place. If this power is used for cowboys who fill up sites with waste, then do a “runner”, then we agree it could be effective. However, revocation of permits should be a very last resort.
- Enforcement by the High Court
In rare cases when a regulator can go straight to the High Court to secure an injunction(s), it is proposed that this option should be generally available to officers. We are very concerned that this power would not be reserved for exceptional cases and would be widely used as an easy option, rather than taking appropriate steps through the criminal court and affording an operator the opportunity to prove his innocence. We do not consider this change complies with the Justice Impact Test.
- Power to serve a notice to remove waste
A notice to remove waste can be used if a regulator is satisfied the deposit was unlawful. We consider that if this power is used for regulated facilities, when a number of options already exist, then it could be abused by allowing a notice to state that all waste on site needs to be removed – not just reduce levels that are taking the volume of waste on site over the permitted limit.
Regulators are not always right. It is essential that enforcement mechanisms are used proportionately to ensure that operators have a fair and just system in which they can defend or appeal notices served, which can often, in our experience, be defective. We do not support the general principle to enhance powers, as we consider, by in large, that existing powers are already sufficient.
We feel that regulatory effort should be focused on real waste crime and preventing illegal activity that undermines legitimate business.
Industry needs to play its part in promoting professionalism and sharing its views in relation to a call for evidence for reintroducing financial provision to cover operator’s liability and increasing the technically competent manager’s time on site!