Waste regulation under the spotlight again

The Environment Agency told a parliamentary hearing in January that it needs a 50% increase in waste regulation staff to cope with new duties. The demand followed on the heels of a National Audit Office report which found some serious faults in the Agency's approach to waste regulation and its effectiveness.1

The Agency's waste regulation function has had more of a battering, from both internal and external critics, than any other over the past few years.

In its early years, its efforts were driven largely by activity targets - minimum inspection frequencies set by the Environment Department for different types of waste site. At their peak, inspections totalled almost 150,000 in a year - half the level set by the targets. But they slumped to just over 100,000 last year, and may come in even lower this year (ENDS Report 333, pp 3-4 ) - and this when its waste regulation staff have increased by some 13% to bring the total to around 1,800.

Meanwhile, questions about the effectiveness of its regulatory efforts have bedevilled the Agency. There was no more striking example than the run-up to the major fire at Cleansing Service Group's waste treatment site in Gloucestershire in October 2000. Revision of the site's licence and working plan had run on for over four years, and in the 16 months before the incident officers had logged 56 breaches of the licence - but took no enforcement action (ENDS Report 312, pp 22-23 ).

The Agency has lately been making efforts to change - notably through risk-based inspections based on assessments of sites using its OPRA methodology. In December it published OPRA scores for landfill sites for the first time (see pp 29-31 ), while scores for other sites, such as treatment plants and transfer stations, will be released this year.

However, this is taking place against a background of increasing new duties, especially implementation of the EU landfill Directive. New legislation to bring some agricultural wastes under control will extend the Agency's ambit to some 180,000 farms, up to 10,000 of which may need licensing - more than the 7,700 sites which are currently licensed.

At a hearing before the House of Commons Public Accounts Committee in January, chief executive Baroness Young said that the Agency will need 900 extra waste staff to handle its increased workload within three years. These would cost £30 million - increasing the current budget by 40%.

The Committee had convened to review the NAO's report on the Agency's performance in regulating waste. Baroness Young will have been cheered by the comment of one MP that "both on the provision of resources and the supply of guidance...the [Environment] Department has been singularly delinquent."

The statutory guidance on inspection frequencies is at the root of some of the Agency's difficulties. It was issued in 1994, and Baroness Young described it as "an historical document, quite frankly. In the interests of good use of public money, we've ignored quite a lot of it."

The NAO accepted that DEFRA and its predecessor have been at fault on this issue. The Department has been considering amendments to the guidance and other matters, including changes to activities exempted from waste management licensing, since 1998, and the NAO observes understatedly that it has been "quite slow". An initial consultation paper is expected shortly.

However, the NAO report was by no means all good news for the Agency:

  • Quality of inspections: Almost all inspections of waste sites last less than two hours. NAO personnel who accompanied inspectors on some visits were told by "many" site managers that inspectors were "mainly passive observers who check on the storage of waste on site but do not examine the main processes by which waste is made safe." The NAO saw few checks being made on operators' records, and no environmental samples being taken.

    The Agency also carries out in-depth audits of waste sites, but the number dropped from 120 in 1999/2000 to 62 in 2000/01. However, it intends to increase this to 600 per year.

    This plan chimes with one of the NAO's main recommendations: that there should be fewer but more comprehensive inspections, with greater reliance placed on auditing operators' management systems where these are of a "suitable" standard. Staff training will need to be strengthened to enable this to happen, the report adds.

  • Enforcement: The NAO heard from residents near some waste sites that the Agency had been slow to take action against operators. The report concurs that the Agency "did not always escalate the action it could take where there were multiple, but individually, minor licence breaches at a site."

    The review found numerous deficiencies in the Agency's performance in this area. Changes in the recording of pollution incidents meant that no clear trend could be discerned. The problem is likely to continue for a while longer as a new compliance classification scheme is phased in.

    Another problem has been the lack of central monitoring of prosecutions for major incidents or licence breaches. An internal review in 2000 found widespread non-compliance with its enforcement policy in such cases (ENDS Report 315, pp 3-4 ). Again, this shortcoming should be corrected this year.

    The report also criticises the Agency for being too slow to take action against some unlicensed sites, taking too long to bring cases to court, and tardiness over dealing with sites with persistent problems. It also fell short of its response times for 21% urgent pollution incidents in 2000/01 where these were logged.

    Another issue raised by the report concerns the Agency's power to bar people who have been convicted of environmental offences from running waste sites. The power was provided by the Environmental Protection Act 1990 - but the NAO "saw no file evidence" that its use has ever been considered. The Agency plans to go out to consultation on the issue _shortly.

    The report urges the Agency to "articulate more clearly" its enforcement policy, and to take "prompt and appropriate" action in response to compliance failures.

  • Exemptions: The Agency polices some 54,000 sites which are exempt from waste licensing. In 2000/01 it conducted just 4,000 inspections of these sites and registered waste brokers and carriers - half the number three years _earlier.

    The NAO notes that the Agency has limited funds earmarked specifically for this purpose, and has no agreement with DEFRA on inspection frequencies for exempt sites. It omits to mention that this is inconsistent with the EU waste framework Directive, which requires "appropriate periodic inspections" of all sites, exempt or not.

    As noted above, the Agency has wanted for some time to bring some sites that are currently exempt, such as those where construction and demolition waste is used for "landscaping", within the scope of licensing, and exempt some that are currently licensed. It is dependent on DEFRA for action.

  • Licensing: The NAO heard the customary complaints from the waste industry about lengthy decision times for some licence applications. However, it was unable to attribute responsibility for delays between the Agency and applicants because most licensing files had been weeded and were of "poor" quality.

    One way of speeding things up, suggests the NAO, would be to increase the use of standard licences for low-risk sites. However, Agency inspectors have raised concerns about plans to introduce "centralised permitting" for sites under the integrated pollution prevention and control regime (ENDS Report 334, p 10 ).

    Meanwhile, the Agency acknowledged that some of the licences it inherited have not been revised but are of poor quality - though it was unable to say precisely how many. It told the NAO that work on upgrading them has been put on hold until 2007 for lack of resources.

    The report recommends that there should be "a formal periodic review of licences for fitness for purpose and compliance with current standards of waste management. The Agency should collate the results of such licence reviews centrally to monitor the quality of the population of licences."

  • Financial provision: The report warns that the taxpayer may end up paying for the clean-up of abandoned waste sites because operators' financial provisions are inadequate. In six of the 15 cases in which these have been called upon since 1996, they have proved inadequate to the tune of £2.7 million.

    Of this, £2.4 million arose at a chemical waste treatment site operated by Premiere Environmental. The company had deposited two-thirds of an agreed £90,000 in an escrow account when it became insolvent - but cleaning up its site cost £2.4 million, most of which is being funded by the landowner.

    The Agency recently decided to scrap the financial provision requirement for operators of waste sites other than landfills because the administrative costs outweigh the benefits, and wants the Government to change legislation to ensure that responsibility for managing and restoring landfills is clarified (ENDS Report 333, p 39 ).

    The NAO also recommends changes in the law to "achieve a more secure system" - and to deal with clean-up liabilities in cases where liquidators of insolvent companies disclaim waste licences.

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