Laura Tainsh: Waste criminals are still getting away with it

Earlier this year the Scottish Environment Protection Agency (SEPA) published its annual compliance report covering the 12 months to 31 March 2017. While the results were broadly positive, it noted the continued poor performance of the waste sector, on which 70 per cent of all fines resulting from formal enforcement action were imposed.

Laura Tainsh, Partner and waste management specialist at law firm Davidson Chalmers
Laura Tainsh, Partner and waste management specialist at law firm Davidson Chalmers

While this may suggest that SEPA is taking a hard line on the sector, some of its established and compliance-focused businesses think otherwise. Many feel they have become a soft target, being fined for what are often minor breaches of complex regulations, while rogue operators acting entirely outwith the regulatory regime in dealing with waste materials are less likely to be prosecuted.

SEPA’s ‘zero tolerance to non-
compliance’ mantra certainly doesn’t yet appear to be in use across the board, given that the powers at its disposal are not being fully utilised to crack down on waste criminals.

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In England, where the Environment Agency, as regulator, has direct powers to do so, there are more prosecutions and higher fines being imposed. This included a fine of more than £400,000 levied against Severn Trent Water when a leakage from its treatment works killed an estimated 30,000 fish and caused ecological damage along a stretch of a Derbyshire river.

Severn Trent have been fined after sewage leaked into Bramley Pond killing dozens of fish. Picture: Andrew Roe

While this was an example of a 
usually compliant business being rightly prosecuted for breaching standards, there were also many fines of several thousand pounds against illegitimate operators for running illegal waste sites, a trend likely to increase further with the implementation of the new powers for the regulator.

While the Environment Agency in England can prosecute directly and recover costs in such cases, SEPA must refer any offences to the Procurator Fiscal in Scotland and rely on one of three specialist fiscals dealing with environmental and wildlife offences to bring forward a prosecution. In addition, SEPA cannot recover costs in the same fashion for enforcement action.

There is a very clear message against waste crime coming from south of the border. Last month Emma Howard Boyd, Chair of the Environment Agency, stated her intention to further deter potential waste criminals, calling for higher fines and custodial sentences to be imposed on offenders. That led to around £30m in increased funding from the UK government and a range of other tangible actions including an extension to the scope of landfill to cover disposals made at illegal sites, a measure already available in Scotland but one which doesn’t yet appear to have been used in relation to non-permitted sites. Other new powers, afforded to the Environment Agency and Welsh counterpart Natural Resources Wales, enable the use of body cameras to collect evidence and the locking up of illegal sites, blocking access to them and forcing rogue operators to clean up all waste on a problem site.

Scotland is ahead of the game regarding many issues around waste management. What bona fide waste companies now want to see is a greater crackdown on those who operate outside the legislative framework to create a level playing field within the sector and restrict the ability for criminals to undercut legitimate businesses.

SEPA could perhaps address some of these perceptions by better engaging with waste operators and professionals within the sector and working with them to encourage reporting of criminal activity, something which would become more prevalent if operators felt the agency was taking more robust action against such criminals.

Many legitimate operators will want to see this change in approach from SEPA, putting more emphasis on tackling the still high level of criminality within the sector. In the meantime, Scottish waste management companies concerned about compliance will need to review existing permits and exemptions to ensure they are up to date and adequately cover current operations.

They must also be mindful of ever-changing environmental and waste regulation as well as the obligations these impose and the potential consequences of breaches. It is equally important to make sure others in the sector they are dealing with, including clients, sub-contractors and all within their supply chain are legitimate and compliant. Having good management practices in place and close communications with SEPA to prevent permit breaches or quickly deal with them if they should occur is also essential.

Laura Tainsh, partner and waste management specialist at law firm Davidson Chalmers