by Peter Jones
6 minute read
Plenty of legislation is poorly written. Some is badly thought out, or pursues objectionable goals. But I’m only aware of one instance of legislation that is untrue.
For the most part, legislation:
- directs or forbids actions;
- grants or limits powers; or
- defines offences and imposes penalties for them.
However, the Waste (England and Wales) Regulations 2011, which includes examples of all of these typical features of legislation, also contains the very odd regulation 37:
“The Environment Agency enforces Part 5 and regulation 25.”
This appears to be a statement of fact, not a direction. And to all practical purposes, it simply isn’t correct.
A man of letters…
It seems that, on occasion, the Environment Agency takes some action on regulation 25, which requires waste carriers and brokers to be registered – at least, when the police catch someone operating without a licence. However, Eunomia has previously demonstrated that for the most part enforcement is pretty lax, and the recent Tip of the Binberg report suggests that unregistered waste carriers are operating with near impunity. There were just 12 prosecutions for breaches of duty of care requirements in 2017, which seems low in proportion to the scale of the issue.
But when it comes to enforcement of Part 5 of the Regulations, covering regulations 12-15, there’s even less evidence of action. Regulation 12 contains the waste hierarchy. It has now been obligatory for more than seven years for anyone that “imports, produces, collects, transports, recovers or disposes of waste, or which as a dealer or broker has control of waste” to follow the priority order it establishes. And in all that time, the Environment Agency has taken no action of any kind to even check that anyone is following it – let alone to require them to do so.
I know this because the Agency has recently responded to two environmental information requests I made. In the first, I asked how many potential breaches of the waste hierarchy the Agency has investigated, and what the outcome had been. Their response wasn’t very helpful – but confirmed that no civil sanctions (compliance notices or stop notices) had been issued in respect of people who had failed to follow the waste hierarchy, and so no investigations or prosecutions had taken place for breaches of these notices.
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The environmental vanguard? The Environment Agency has done very little to enforce the Waste Regulations. Photo: Ian S (CC BY-SA 2.0), via Wikimedia Commons.
This was not a surprise; but my real interest was whether the Agency had ever investigated whether a breach of the duty to apply the waste hierarchy had occurred. The answer was straightforward: no.
I also asked about enforcement of regulation 13, which concerns the requirement to source separate waste. Here the Agency hasn’t been totally inactive – it has surveyed local authorities, met with some waste companies, and undertaken a site visit to a shopping centre to do a trial audit. But, three and a half years after the deadline for all waste carriers to comply with the separate collection rules, the Agency is still only “in the process of following up” with the 38 authorities that didn’t respond to its survey, and a further 84 authorities whose responses they appear to believe require further examination. No real audits of commercial premises have been carried out.
Law inaction
The Agency also says that it has not assessed whether any organisation has changed its practices as a result of the waste hierarchy (or, indeed, the separate collection requirements). With no real prospect of enforcement, the likelihood that substantial changes have occurred is low. It seems that the regulations have had a negligible effect.
We can’t assume that no change was necessary in order to achieve compliance. One prominent example of apparent failure to apply the waste hierarchy, amongst many that could be cited, is Burberry’s decision to burn surplus stock that could have been sold at a discount, donated or recycled. I asked the Agency to investigate whether Burberry’s actions breach the law – which would apparently be the first such assessment! It took almost six weeks to get a response; again, it was “no”:
“We don’t think it would be the best use of our limited resources to undertake a formal investigation at this time, as we are confident that companies such as Burberry will review their practices to avoid having their good name damaged by such allegations.”
It’s an odd position for a regulator to take: if clear breaches of the waste hierarchy come to light, they don’t need investigating; if they don’t come to light, they can’t be investigated. It seems that Regulation 37 would be more accurate if it said “The Environment Agency does not enforce Part 5 and regulation 25”.
In this instance, it appears that the Environment Agency’s confidence was well founded – Burberry has announced that it will change its practices. But this doesn’t give other companies much reason to act. Burberry’s adverse publicity arose because it voluntarily disclosed that it was burning unsold products; and the company acted because it was keen to protect its environmental credentials. Other companies, who place less emphasis on being green, may be less likely to make such disclosures, and more willing to ride out bad publicity.
Sense of directive
The apparent ineffectiveness of the waste regulations led me to wonder whether the UK is compliant with the EU Waste Framework Directive, from which their requirements derive. I asked Defra whether any compliance assessment had been made. After many weeks, the department responded by sending me their 2013 and 2016 implementation reports to the EU regarding the Waste Framework Directive, confirming that there had been no other assessment.
Both of the implementation reports contain very similar language, suggesting that not much changed in the years between them. They explain how the requirements of the Directive have been written into law and guidance in the UK – but say nothing about how that law has been enforced, or the extent to which any change has resulted.
Since it seems the waste hierarchy is routinely being ignored, it’s questionable whether the UK is currently compliant with Article 4 of the Waste Framework Directive. Of course, with Brexit looming, one might consider this something of a moot point. From April 2019, even if the UK continues to apply EU waste laws – and it seems likely that the waste hierarchy will remain part of UK law – the Commission is unlikely to retain powers to bring infringement proceedings where they are breached.
However, the Government has decided that a new environmental watchdog will take over the monitoring and enforcement role the EU plays. Once it is created, the waste regulations pose an interesting test of how this new body’s role is defined. Will it merely check that the right legislation is on the books? Or will it also hold the government to account over whether the legislation is proving effective? Whether it is willing to act in cases of this kind will be a good indicator of whether it has any teeth. In the meantime, though, I will continue to try to spur the Environment Agency into action. Wish me luck…
Good article and some great discussion points. The waste hierarchy is and always has been massively ignored by the EA. Even now, they are advising people to dispose of surplus soils to landfill rather than use them in a recovery operation.
Thanks so much for this Peter. I wonder if the EA will step in to prevent this blatant violation of the Waste Hierarchy: https://www.letsrecycle.com/news/latest-news/swindon-drop-plastics-collections/ “…Swindon borough council is proposing to temporarily stop collecting plastics for recycling and will instead encourage residents to dispose of their plastic in their black residual waste bins. If approved, the proposal means that the material will be converted into solid recovered fuel (SRF) at a facility on Cheney Manor and sent for energy from waste on the continent…”
The waste & recycling industry are not being regulated in line with current legislation, never have been. They are a law unto themselves, but in the process are causing problems that impact on many of the public & on entire communities by way of dust emissions, odours, noise, potential ill health and loss of amenity to local areas. Someone needs to investigate the waste recycling industry. One example of huge concern is the ‘recycling’ of waste such as wood and plastic. Waste contaminated old wood (consisting of old natural wood but mostly old, often laminated, wood composite boards) extracted from construction & demolition wastes from the demolition of old buildings mostly, therefore containing many toxic/carcinogenic contaminants many previously banned from use in new products because they were proven scientifically to cause cancers or other diseases, Birth defects, etc., are being put back in, ‘recycled’, without any testing or monitoring, back into new building products by stealth under the guise of ‘recycling’. No contaminants are ever removed or tested for, apart from larger chunks of metal that have a financial gain for doing so. Everything goes back in without question. No mention on any MSDS sheet to warn those using it to protect themselves. We are leaving behind a hidden toxic legacy for future generations to be harmed by. Only when it is too late will questions be asked. We know the answers now but the waste recycling industry don’t want anyone to look too closely at what they’re doing or to ask too many questions. We must ask why asbestos has bern foubd in new house bricks. Many building products are made from ‘recycled’ content but the onus to sort is left to those usually wanting rid of waste material. So easy I should think, to push asbestos through, for example, to avoid the more strict regulation, legislation, and high costs of removal to specialist sites which are few in numbers. Waste is not always sorted before reuse. Often old contaminated waste wood is collected and chipped without any sorting whatsoever by mobile chippers on site. This waste wood us then used as wood stock for use in new wood composite boards such as MDF, chipboard, particleboard, etc., or the same wood stock is used as fuel for Biomass Incinetators. Hence why the big players in the manufacture of wood composite board, reliant on waste wood, are now campaigning against the Biomass Incinerator industry, but not out of concern for public health as most are, but because it’s hitting them in their pockets financially. Biomass is subsidised heavily, although that is about to change, so waste wood for WCB manufacture is actually costing that industry far more and they’re finding it harder to get. Biomass industry can afford to pay more for their wood stock so suppliers more likely to send it there. So all the toxic, carcinogenic elements are being burnt for Biomass that causes particulate emissions that affect communities. You only need to look at the stats for infant mortality down wind of these heavily polluting waste incinerators with massive stacks to see the problem being caused. If this isn’t done correctly initially at source then the whole of the waste and recycling chain is contaminated and burning it does not make them less harmful. With burning waste, if not burnt at sufficiently high enough temperatures, then such as dioxins, furans, etc., are formed. Dioxins are carcinogens in their own right but are the worst of the worst, as they also act as an accelerant to other carcinogens, meaning that the carcinogemic affects are seen much quicker, the cancers grow much sooner than their usual longer latency periods normally allow. So many more reasons why the waste and recycling industries must be better regulated, with more enforcement, a zero tolerance required to ensure safety to employees and communities. The problem is we have regulatory authorities that are weak, and protect no one and are no longer fit for purpose. The Environment Agency for example, only concentrates on flood work. Waste is the bottom of their heap and public health no longer a consideration it seems. They turn a blind eye in certain cases despite often entire communitues at risk. If their officers do not see evidence themselves they do not have to and will not act, despite others having very strong evidence such as those affected and living nearby, and seem trained on how not to look for it. Recently had that happen myself with them. Took 6 months to come out initially after 800 tonnes of now proven asbestos contaminated waste soil was moved past homes by JCB over months and left there, some spread around on Council owned designated Public Open Space land used daily by public including children. No warnings, all still there more than 3 years later. Council told EA vast amounts removed, but they never were. So EA believed them over residents overlooking entire site 24/7 who saw no removal by 60-100 skips. Impossible for residents to have not seen or heard it, had it happened. Now Council recently admitted it ‘suspects’ it never was but they knew that, but bizarrely EA still insist it’s ‘all gone’. None has. When trying to show EA Officers the evidence they refused to look at photos. Why? Because it proves they and others too have been negligent. After they were held up so not able to ignore any longer, one admitted that if the EA had seen anything like that they would have acted. So why didn’t they? Why take 6 months to attend? Why did it take 18 months to test despite warnings re asbestos? 3 types now found. Council who ate also the land owners, and the EA failed. A community still at rislk, surrounded by 800 tonnes of asbestos contaminated waste soil. It’s been ongoing for 3 years now, including the setting up of an illegal waste transfer station at one point. But still no EA action and nor do the Council do anything either. The Council purposely and knowingly allowed their land, publuc open space land, to be contaminated, as did not stop the perpetrator, never served a Stop Order as residents requested. They blatantly refused to. What they did is illegal but who will enforce that? The Council will mot taje thrmselves to court. HSE say not within their remit as perp has no permissions or licences. EA should but blatantly refuse to. The guy dealing in waste, who has no licences, permits, exemptions from any one and no insurances either, continues, boasts how they let him do what he likes, and they do. Waste brought in in skips. Clearly not from that site but officers persuaded it was. Why? How ? How many old wooden doors of varying sizes, shapes, etc., could one site have where there are no buildings ? Crazy! There is a huge problem but waste always is. We already have strict regulation & and legislation but what we don’t have is adequate, if any, enforcement. Instead we have an Evading Agency that is fit for nothing. Watch their tweets onTwitter. See how they fail, unless there’s a flood of course or fish dying from poison what does human health matter? It should be paramount a priority, but it’s not and is nowhere near. If a flood or a fish at risk only then might you be in with a chance. Pollution and waste issues causing public health problems and putting health and lives at risk…. and you’re screwed!