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Increased enforcement actions by Environment Agency after the National Audit Offices r – Clyde & Co

Increased enforcement actions by Environment Agency after the National Audit Offices r – Clyde & Co

Prospect for increased Environment Agency enforcement action following the National Audit Offices recent report?

The National Audit Office (NAO), published a report detailing its investigation into government actions to combat crime related to waste.

Prospect for increased Environment Agency enforcement action following the National Audit Offices recent report?

Introduction

It is clear from the report that despite Defra and the Environment Agency’s (EA) attempts to eliminate waste crime, it continues to be a serious problem comprising of a range of illegal activities at a staggering £900 million per year cost to the English economy.

While the report highlights the scale and nature of waste crimes, it also clearly recognizes that the EA has used guidance and advice extensively in recent years to combat the problem. This includes permit violations. The NAO report shows that this approach has not been successful. It is only a matter time before the EA deploys its full arsenal of enforcement powers, including prosecutions.   

Despite government efforts at curbing waste crime, this report rather harshly highlights that waste crimes are on the rise despite formal enforcement actions being decreasing. Regulators will likely respond strongly to the findings of this report and expect that the EA will continue to be as robust in its enforcement powers.  

The report covers three main areas. Each of these are discussed below.

The scale and nature waste crime

The report reveals the grave national deficit in data on waste crimes.  

The following are key findings

  • Between 2004-05 & 2014-15, landfill tax grew faster than inflation. As intended, the tax has increased recycling. However, it has increased the potential financial returns from illegal actions such as misdescription of trash and illegal waste sites. This has also made the market more attractive to organized crime. HMRC estimates that GBP200 million of landfill tax owed was not collected in 2019-20. Contact us using the email below for more information about HMRC landfill tax.
  • The EA had 470 active illegal waste sites at the end of 2020-21, compared to 685 in 2018-19. The EA warns that this number may not be representative as COVID-19 has restricted the officers’ ability to travel and identify these sites.
  • The EA believes permit exemptions are often misused. An exemption can be considered a route to the waste industry as they can easily be registered at no cost with limited verification checks. It is not uncommon for exemptions to be broken, but there is little regulatory oversight. The EA found that 30% were potentially violating exemptions in 2015 after a review of sites.
  • The number of serious breaches of conditions of environmental permits by waste operators investigated by the EA has been on the rise since 2017 – yet only seven out of 287 actions taken by the EA into breaches of permit conditions for 2020/21 resulted in prosecutions, (and the majority dealt with by advice and guidance). Arguably, the EA is presently taking a “light touch” approach to permit breaches – the report comments the EA’s stance at the moment means that permit breaches are not risk-assessed as a “crime type” due to difficulties in distinguishing between poor performance and criminality. It is clear from the NAO’s figures that over the last few years, the EA has been relying heavily on advice and guidance, as well as formal warning letters, to deal with breaches of this nature, with the number of prosecutions plummeting since 2007.
  • A 2019 investigation showed that the UK was the worst European country for illegal ewaste exports to developing nations. The EA intercepts around 200-450 containers a year that contain waste that is not in compliance with waste export regulations. However, it is not known how much waste is being illegally exported.
  • Local authorities report more fly-tipping incidents than ever before 2012-13. This number will reach 1.13 million in 2020-21.

Sanctions are used against offenders

In line with government policy for regulators to take a risk-based and proportionate approach to enforcing compliance, the EA’s policy is to give advice and guidance or issue warnings where feasible, only moving to more formal sanctions in more serious cases or where informal approaches have not worked.

The report examined the EA’s response to waste crimes.  Between 2014-15 and 2020-21, 52% and 53% of all investigations into illegal sites and violations of permit conditions were conducted by the EA. The second most common action was to send warning letters for both types (27%) and 26%, respectively. 2020-21 saw only 7% of illegal waste sites being discovered, and 5% of permit violations were identified. 

These are reserved for the most serious offenses due to the time-consuming and resource-intensive nature of prosecutions. The number of EA investigations that have led companies to be prosecuted has fallen from 800 to 60 per a year in 2017-18, while the time it takes to complete investigations is increasing. In 2020-21, the average length of investigations that resulted in prosecution was more than 1,500 days. This was due to the COVID-19 pandemic.

How effective is progress in fighting waste crime?

In 2020, the Joint Unit for Waste Crime was created. It is composed of nine strategic partner organisations (e.g. the EA, HMRC, and the National Crime Agency) who coordinate to combat waste crime. It took part in 24 days of coordinated action with partners in order to prevent and disrupt organised crime groups in waste sector. 35 arrests were made.

Defra has updated its policy on the progress made against actions in Resources and Waste Strategy relating waste crime for 2021-22. Some commitments have been made, including the strengthening of the EA’s powers through the Environment Act. Defra started consulting on proposals to shift from a registration-based system to a permit-based system that requires waste to be transferred or traded. The proposal mandates the digital recording of waste movements. It plans to introduce statutory instruments between 2022 and 23 to reform the existing system for environmental permits in order to prevent illegal activities being hidden through waste exemptions.

See Also

What should you expect next?

Ultimately, the government’s progress with implementing actions to tackle waste crime has been slower than hoped. Although the government intends to regularly review progress and determine what additional actions are required, the report points out that it doesn’t have sufficient performance indicators to support this.

It is evident that organised criminals have identified financial incentives for waste crimes. However, barriers to operators entering this sector are low and it is possible that sanctions and prosecutions are not effective deterrents. The following recommendations are made in the report:

  • To improve data collection and understanding of waste crime, so that resources are targeted more effectively, it is important to increase data.
  • It is important to understand the relationship between landfill tax rates, and the incentives for waste crime.
  • As soon as possible, put in place progress indicators for the Waste and Resources Strategy’s waste crime components.
  • Use data from police databases to improve intelligence gathering and collaboration with partners.
  • Establish a more stable footing for the Joint Unit for Waste Crime’s funding.

Given the lack of formal enforcement action and slow progress, we expect the EA to want to be seen taking proactive steps to tackle waste crime. It would be not surprising for the EA to adopt a more aggressive approach, shifting the emphasis from guidance and advice towards formal sanctions (including prosecutions) when necessary. This is especially true for permit abuse and illegal sites. As we recover from the COVID-19 pandemic, the EA officers can travel to and visit sites again.  

After seeing the lack of enforcement action so clearly highlighted, it seems obvious that the EA will increase the formal enforcement actions they take, especially for more serious and repeat offenders. Businesses would be wise to make sure they have all the necessary arrangements in place to ensure compliance.  

You can find a link to the report here: Investigation into the government’s actions in England to combat waste crime – National Audit Office (NAO Report)

 

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