Review recommendations could shake up approach to waste crime

Out-Law News | 22 Nov 2018 | 12:50 pm | 3 min. read

An independent review of the way waste crime in England is investigated, policed and enforced has recommended substantial reform of the current regime.

The review, which was commissioned by environment secretary Michael Gove, has as its primary recommendation the setting up of a new 'Joint Unit for Waste Crime' (JUWC) to coordinate enforcement. Other recommendations include consolidation and changes to waste legislation, reformed registration and duty of care requirements for carriers, brokers and dealers; and better use of data and technology, including a new database of registered UK waste operators and compulsory electronic tracking of waste to ensure producers are held responsible for the illegal deposit of their waste.

Of potential concern to industry, however, are the proposals to reform the way in which waste sector enforcement is funded, through increased permit fees and a new industry levy, said environmental expert James Niernick of Pinsent Masons, the law firm behind Out-Law.com.

The government will publish its response to the recommendations as part of its upcoming resources and waste strategy.

"The scale and impact of organised waste crime should not be underestimated," Nierinck said.

"This timely review flags a number of notable deficiencies in the current system and makes a variety of potentially far-reaching recommendations as to how to address waste crime. What is apparent from this detailed review is that there is no 'silver bullet': rather, a variety of different waste crime prevention, investigation and enforcement measures are required to address this growing problem. The primary recommendation of this review – the establishment of the JUWC – seeks to strategically enhance relationships between the Environment Agency, police and HMRC to deliver a joined-up approach to tackling organised waste crime," he said.

"The sourcing of future funding to tackle waste crime will be a particular concern for industry. Two of the three recommendations to generate increased funding – namely to increase permit fees or introduce a voluntary levy – will be of concern to compliant waste operators. The third option, of diverting a percentage of funds from landfill tax, which has generated on average £1 billion per year for the past 10 years, would no doubt appear a more acceptable measure for industry," he said.

The review was commissioned by Gove in June amid concerns about the steady rise in organised, large-scale waste crime. Waste crime, which includes fly-dipping and illegal dumping, deliberate mis-description of waste, illegal waste site operation and illegal waste exports, cost an estimated £600 million in England in 2015, although some estimates put the figure even higher, at £1 billion.

The intention behind the recommendations was "to give the criminals responsible real cause to fear the consequences of their actions", according to Lizzie Noel, a non-executive director at the Department for Environment, Food and Rural Affairs (Defra), who chaired the review. According to the report, the Environment Agency (EA) does not currently have "the necessary authority, powers nor business model to counter this criminal scourge effectively".

In March, the EA was given new powers to tackle waste crime in England. It can now lock up sites and block access to problem sites to prevent waste illegally building up, and can force operators to clear all the waste on problem sites. The government has also extended the scope of landfill tax so that it now applies to material disposed of at illegal waste sites.

The review recommends that the EA's powers be expanded further, allowing it to lock the gates to problem waste sites to prevent waste illegally building up and powers to force operators to clear all the waste at problem sites. The powers also extend to full access to relevant police databases and the right to acquire mobile phone records and other communications data for the purposes of tackling serious and organised waste crime. It has also proposed the introduction of a new low-level financial penalty for the clear and deliberate mis-description of waste, "set at a level that enables it to be used easily and quickly to disrupt criminality".

Legislative interventions recommended by the review include consolidating the rules applicable to carriers, brokers and dealers, and removing the requirement for the EA to demonstrate a "significant risk of serious environmental harm" before it can intervene. The review also proposes a stricter duty of care for waste producers, under which they would be held accountable for their waste until it arrives at its final destination. Currently, waste operators can discharge their duty of care by ensuring that the next waste holder - often a carrier - is appropriately authorised and providing an accurate description of the waste on transfer.

Michael Gove welcomed the review, and said that the government was "committed to clamping down" on organised crime in the waste sector.