Simon Colvin warns that proposals to tackle illegal waste sites will have implications far beyond the waste sector
There have been a number of examples recently of waste sites being abandoned, leaving thousands of tonnes of discarded material. According to the government, waste crime costs the UK economy about £568 million a year.
In February, Defra and the Welsh government jointly published a consultation and call for evidence on tackling waste crime in England and Wales. The deadline for responses was 6 May 2015.
The issue is of wider importance than just the waste sector since many of the powers proposed in the consultation would be available to the Environment Agency and Natural Resources Wales in the chemicals, manufacturing and food production sectors, among others. So what are some of the more radical proposals being considered?
Impacts on landowners
When waste sites are abandoned, owners are often left to clear up after their tenants in accordance with s59 of the Environmental Protection Act 1990 (EPA). This covers the powers to require the removal of waste that has been unlawfully deposited.
Critics suggest this approach is unfair because owners are made responsible for situations they often have no knowledge or awareness of. In some circumstances, owners have also been prosecuted for "knowingly permitting" the activities of their tenants.
Policymakers want the system to be fairer for landowners to ensure they fully understand the potential implications when entering into agreements with tenants. They also want landowners to be made aware by regulators at the first available opportunity of any non-compliance by tenants. One option being considered is the requirement for consent from a landlord before a tenant can start operating a waste activity.
Alongside this is the need for regulators to notify owners of any non-compliance so they can take action directly to protect their own interests.
Financial provisions
One of the biggest problems when dealing with illegal waste activity is the cost of clearing sites, which can run to several millions of pounds.
The call for evidence issued by Defra and the Welsh government looked at whether bank bonds or insurance could offer potential solutions. The downside with both options is they can be expensive to obtain and could make it difficult for smaller, legitimate operators to enter the market.
Another option is the introduction of a waste superfund. This would operate much like the US superfund established by the Comprehensive Environmental Response, Compensation and Liability Act of 1980 to deal with historic pollution problems at orphaned or abandoned sites. The US fund is supported by the chemicals and petrochemicals sectors.
The intention in England and Wales is that waste operators pay a levy into a central pot to finance the clearance of abandoned waste sites.
The duty of care
A topic not touched in the call for evidence is the use of the waste duty of care, which is covered in s34 of the EPA. It is my belief that the duty of care could help to place more responsibility on waste producers for any of their discarded material found at an abandoned site. When asked about using this route to share responsibility between landowners and producers of waste found at such sites, regulators often shy away from tackling what is a difficult issue. Successfully identifying the origin of an item of waste is often hard.
However, there is clearly a role for proportionate responsibility whereby the waste transfer note system can be used to allocate responsibility to waste producers for material that has entered but not left an illegal or abandoned site.
This is the approach adopted in the US when dealing with historic landfilling operations and would partly reflect the approach under the contaminated land regime in England and Wales.
Forward thinking
It is generally accepted that the Environment Agency and Natural Resources Wales need to be given the powers to properly deal with operators of illegal waste sites. However, there need to be controls established to ensure the proper use of these powers.
The proposals set out in the consultation issued by Defra and the Welsh government (see below) include some fundamental and radical proposals, which will have impacts beyond the waste sector.
Tackling waste crime
The consultation issued on 26 February by Defra and the Welsh government sought views on further strengthening the regulators' powers in respect of all types of facilities that operate under an environmental permit. The measures proposed included: suspending and revoking permits if certain conditions are not met; issuing notices to prevent breaches worsening; taking physical steps to prevent further breaches - for example, by physically stopping waste coming on to sites; allowing the regulators to remove a risk of serious pollution at a facility, regardless of the circumstances; removing pre-conditions for regulators to bring High Court proceedings; and requiring the removal of waste from land.
The consultation document is available at lexisurl.com/iema89672.
Simon Colvin is partner and head of the environment team at Weightmans LLP. Follow him on twitter @envlawyer
