DRAFT REGULATIONS: The Waste Enforcement (England and Wales) Regulations 2018

In its recent publication: A Green Future: Our 25 Year Plan to Improve the Environment, the UK Government has made a commitment to crack down on waste crime. For further information on the 25 Year Plan, please read my earlier article here.

Specifically, its published actions are to include:

1. Seeking to eliminate waste crime and illegal waste sites over the lifetime of this Plan, prioritising those of highest risk.
2. Working with industry to explore options to introduce electronic tracking of waste.
3. As part of our Resources and Waste Strategy, to be published in 2018, developing a new strategic approach to prevent, detect and deter waste crime.
4. Taking a partnership approach to deal with the issue with industry, regulators and local authorities.

The Department for the Environment, Food and Rural Affairs (Defra) is considering further measures to address waste crime and fly-tipping as part of the proposed Resources and Waste Strategy as foreseen in numbered-bullet point 3 above, with aims of prevention, detection and tougher enforcement.

In addition, Defra and the Welsh Government are consulting on proposals to tackle crime and poor performance in the waste sector exploring opportunities for strengthening the regulators’ assessment and enforcement abilities.

As part of these initiatives, the draft Waste Enforcement (England and Wales) Regulations 2018 have recently been laid before Parliament and will come into force within the next 4 – 6 weeks.

The main purpose of the Regulations is to enhance the regulators’ enforcement powers in order to address illegal activity. However, their implementation could have costly repercussions for land owners, who even now bear the brunt of the costs for waste clearance where the occupier can not be identified or found.

The Regulations will provide the Environmental Regulators (Environment Agency for England and Natural Resources Wales) with the following highlighted new powers:

Waste removal:
The Environmental Regulator can serve a notice on an occupier (or, in certain circumstances, the owner of land), requiring them to remove the waste within a specified period of not less than 21 days & take steps to eliminate or reduce the consequences of the unlawful keeping/disposal of the waste.

Restrict access to waste sites:
The Environmental Regulator can prohibit access to and the importation of waste into, a site where there is, or was, a regulated facility or an exempt facility (or a part of it) for a specified period, in circumstances where there is a risk of serious pollution to the environment or serious harm to human health & the intervention is required to prevent continuation of the risk.

A new form of notice, a “restriction notice” can be served by the Environmental Regulator, which is effective for up to 72 hours or apply to the court for a “restriction order”, which can have effect for up to 6 months and can be extended, varied or discharged.

Prior to issuing a restriction notice, the regulator is required to make reasonable efforts to inform the occupier (or owner) that the notice will be issued and to consult with them on the arrangements for any access, which is required to the premises for purposes such as maintaining machinery or securing the site. It should be noted that the restriction notice will not prevent the occupier or land owner itself from accessing the waste site.

Non-compliance with waste removal or restriction notices:
Non-compliance issues, such as a failure to comply with the requirements of a waste removal notice issued under the Regulations (without reasonable excuse) is a criminal offence, punishable, on summary conviction, to a fine.

Additionally, the Environmental Regulator may take its own action to remove the waste and then recover its costs from the occupier or land owner or from any other person who knowingly caused or permitted the keeping or disposal of the waste.

Appeals:
Appeals can be brought against the requirements of a notice or the court’s decision to make or extend a restriction order (subject to compliance with strict time limits for bringing appeals). It is also possible to apply to the court for compensation for financial losses sustained as a result of being prohibited from accessing a site by a restriction notice or order. The court may order the payment of compensation where it considers it appropriate to do so.

In many respects, the Regulations are formalising the current responsibility that land owners have and their exposure to the risk of their tenant either becoming insolvent or abandoning the site leaving waste deposits. Nonetheless, land owners will need to be aware of the implications of the Regulations on their current and potential operations by enhancing their due diligence and financial scrutiny of prospective tenants prior to committing to lease their land.

A copy of the draft Waste Enforcement (England and Wales) Regulations 2018 can be freely downloaded here.