Introduction

Earlier this month the government published its response to a consultation on proposals to enhance regulators’ enforcement powers to deal with environmental permitting breaches. Simultaneously, the government has published legislation implementing many of the proposed changes with effect from the end of this month.

The stated aim of the proposals was to tackle waste crime and “entrenched poor performance in the waste sector”. However, the proposed new powers will in many cases apply to operators of any kind of permitted sites, not just those in the waste sector. Therefore, it is not just waste operators who need to take note of these developments.

Background

The consultation, which ran from February to May 2015, set out a suite of proposed amendments to the Environmental Permitting Regulations (EPR) to beef up the existing enforcement powers available to regulators. The consultation also included a call for evidence on a range of other measures to improve the performance of the waste sector, e.g. the introduction of fixed penalty notices for fly-tipping offences. The government’s response confirms that it intends to get tougher, not just on waste crime, but on all types of permitting breaches.

Some key changes

The government has confirmed that, among other changes, it will introduce six new powers to supplement the existing enforcement powers under the EPR:

1. Power to suspend permits where an operator has breached its permit and caused a risk of pollution.

The EPR already provide the regulator with a power to suspend a permitted operation if it considers that the activities give rise to a risk of serious pollution. This power will be extended so that a suspension notice can be issued where there has been a breach of permit condition and there is a resulting risk of pollution. In other words, there will be a lesser enforcement trigger, meaning the power will be more readily exercisable. The change will apply to all activities regulated under the EPR and not just waste operations.

2. Power to issue suspension notices which specify the steps that must be taken by the operator to remedy a breach of permit and remove the risk of pollution; Power to require an operator to erect signage which informs the public about what waste cannot be brought onto the site.

The proposal was to enable regulators to serve suspension notices that include practical steps an operator must take to prevent a permit breach getting worse. It is principally targeted at permitted waste operations that continue to bring waste onto their sites despite being in breach of their permit conditions. The steps might, for example, require a site to stop accepting certain waste. Again, however, this power will apply across all permitted activities, not just those in the waste sector (with the exception of the power to require signage to be erected stating what waste can be accepted onsite).

3. Power to take steps to remove a risk of serious pollution, regardless of whether the facility affected is regulated under a permit.

The regulators already have a power under the EPR to take steps to remove a risk of serious pollution from all permitted sites (not just waste sites). This power will be extended to enable such steps to be taken not only at permitted sites, but also at sites operating without a permit (e.g. illegal sites) and sites that operate under a permitting exemption.

4. Make it easier for the regulators to apply for a civil injunction to enforce compliance with an enforcement notice.

Regulators have existing powers to apply to the High Court for an injunction against an operator to secure compliance with an enforcement notice. However, this power can only currently be exercised where the regulator considers that bringing criminal proceedings to secure compliance would be ineffective. In practice this means that time will tick by whilst criminal enforcement methods are tried, without success, after which the whole purpose of the speedy remedy of injunctive relief may have been thwarted. The government intends to remove this precondition, so that the regulator can exercise this power more readily.

5. Power to take steps to restrict access to waste facilities.

This proposal is aimed at preventing waste from being taken onto sites where, for example, a suspension notice has not been complied with. The power will enable the regulator to take steps to physically secure a facility, e.g. by locking the gates, and will cover both permitted and unpermitted (e.g. exempt) sites. The government is considering whether the power should also apply to operations outside of the waste sector.

6. Widen the regulators’ ability to require the removal of waste from land in circumstances where the waste is being unlawfully kept.

This change will extend the existing power of regulators to serve a ‘clean-up’ notice at a permitted site (i.e. to remove waste deposited unlawfully). That power will also now be exercisable where waste may have been lawfully deposited originally, but keeping it onsite subsequently becomes unlawful (e.g. because it is leaching).

Regulations have already been made to give effect to the new powers numbered 1 to 4 above, and these will come into force on 30 October 2015. The remaining changes will be implemented later this year and/or in 2016.

It remains to be seen in which cases the regulators will exercise these extended powers; the government expects that some of the powers will only be used in extreme cases where greater enforcement action is justified. For example, the government anticipates that the simplified ability to apply for a High Court injunction to enforce compliance will only be used in “exceptional cases where there is a risk of serious pollution and the regulator is dealing with an intransigent operator”. However, it is not presently known what guidance (if any) will be given to the regulators when these new powers come into force. What is clear is that in line with the trend in sentencing of environmental offences discussed in our separate alert of 14 October, permitting offences are now also being taken more seriously and are likely to result in more severe enforcement action in the future.

Client Alert 2015-294