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Enforcement sees north/south divide

Laura Tainsh

Earlier this year, the Scottish Environment Protection Agency (Sepa) published its annual compliance report covering the period from 1 April 2016 to 31 March 2017.

As reported in MRW last month, Sepa is generally encouraged by the results but noted the continued poor per­formance of the waste sector. Indeed, where formal enforce­ment action was taken, nearly 70% of the resulting fines were imposed on individuals or companies in our sector.

formal enforcement

Sepa appears to have stepped up its enforcement action, as evidenced by the fact that 13 out of 14 fixed monetary penalties rendered and two out of five voluntary undertakings agreed to date relate to waste offences.

Sepa’s ‘zero tolerance to non-compliance’ position sup­ports its action in response to incidents of major and minor non-compliance by waste companies which are, in the main, genuinely striving to be/become compliant with regulation.

But the view of many of those legitimate operators is that Sepa is not taking robust enough action against the worst criminals in the sector – namely those operating illegal sites. Is it tackling the low-hanging fruit first?

In comparison with the prosecution action taken and the fines levied in England and Wales, Scotland is still a long way behind. There are some justifiable reasons for that – such as the fact that the Envi­ronment Agency (EA) can prosecute directly and, more often, recover its costs.

“Where formal enforcement action was taken by SEPA, nearly 70% of the resulting fines were imposed on individuals or companies in our sector.”

There is also a very clear message against waste crime south of the border. Last month, EA chair Emma How­ard Boyd declared: “I still don’t think the deterrent is strong enough…I am calling for higher fines and custodial sen­tences for waste criminals. No-one should have to live next door to [such] criminality.”

That message has led to some £30m in increased fund­ing from the UK Government and tangible action such as:

  • The scope of landfill tax has been extended to include dis­posals made at illegal sites. This measure is already avail­able in Scotland but has not yet been used;
  • New powers have just been afforded to the EA and Natural Resources Wales to use body cameras to collect evidence, lock up illegal sites and block access to them, and force rogue operators to clean up all waste on a problem site; and
  • A further consultation on tackling waste crime at source has just closed.

In relation to many issues on the management of waste materials, Scotland is ahead of the game. It is now time to crack down on those who are operating outside the legislative framework and create the level playing field sought by operators and regulators alike.

Laura Tainsh is Partner at Davidson Chalmers

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