The waste industry is a complex and heavily regulated one but there are significant numbers of individuals and companies operating outside the law in a range of ways, some through lack of knowledge of their obligations and others through pre-meditated, organised criminal activity.
Fly-tipping: Many would consider this to be the obvious example of waste crime – waste dumped in an unauthorised location with little or no regard for the environment or, indeed, the law.
There are some good examples of this type of waste crime (which, for a variety of reasons (increasing costs and less frequent collections), is on the increase across the UK) being tackled by groups such as The Waste Partnership for Buckinghamshire (comprised of local district and the county council) via its successful fly-tipping initiative.
The partnership was set up in 2003 and has achieved almost 600 convictions since then, the most recent being a fine for over £1,800 for the unauthorised dumping of household waste. However, strategic initiatives like this one, are still fairly rare and there remain major instances of illegal disposal of waste which go unresolved or unpunished.
In Scotland, there is an ongoing investigation into a major incident of fly-tipping at a site in East Renfrewshire which resulted in, and arguably was uncovered as a result of, a recent fly infestation in the vicinity of the site.
Landfill tax evasion: This is an enormous issue for the industry. Recent statistics in England where the original regime is still operated have revealed huge inconsistencies between the reported amount of material received at landfill sites, according the Environment Agency’s (EA) data, and the payment of landfill tax to HMRC resulting in a tax deficit of £18m.
In Scotland, where Scottish landfill tax has been payable to Revenue Scotland since 2015, there is not yet enough information to indicate how the industry, or indeed the regulators, are performing. However, landfill tax evasion is difficult to prove and it would appear that even where the regulatory and tax agencies are working together, so far, there has been little in the way of financial recovery through criminal prosecution for this type of waste crime.
Those fines which have been imposed (usually as part of some wider tax or environmental investigation) are at a level significantly lower than the amount which would have been payable had the tax been applied and collected accurately. That is the main driver behind the recently closed consultation to bring illegal waste sites within the scope of landfill tax in England and Northern Ireland, potentially from April 2018.
Illegal sites: The vast majority of what has been reported in industry (and national) press of late relates to this ort of site on a small or large-scale basis – operating either out with or entirely without the necessary permit, licence or exemption for waste management.
This year alone (albeit often relating to offences committed over the last few years), there have been several prosecutions across England relating to illegal storage, treatment and disposal of waste with penalties ranging from recovery of costs (for the EA), fines (from £10,000 to £80,000) to actual prison sentences for individuals involved in criminal activity over a long period of time.
While the penalties in other parts of the UK are much lower in comparison, the regulators in those jurisdictions are starting to flex their enforcement muscles more than previously. If resource issues can be overcome to allow investigations to proceed then perhaps we will start to see some more serious convictions in Scotland and Northern Ireland. The Scottish Environment Protection Agency’s Life Smart Waste Project is an example of where funding and partnership over a set period of time can lead to results.
This is an ongoing project which is focused on uncovering intelligence and information about illicit waste transportation etc with the intention that investigations may eventually lead to prosecutions.
Breach of Duty of Care: This is the major issue which is becoming the focus of more prominent attention. Fundamentally, if every waste holder in the UK was complying with their legislative duty of care when transferring, treating or disposing of waste materials, then there would be no waste materials available to criminals operating in the sector.
There remains a lack of education, awareness and perhaps acceptance by many in the industry as to what their duty of care obligations are and what they need to see, check, record and do with respect to the recovery or disposal of all waste materials, in order to fulfil those obligations. I agree entirely with Mat Crocker’s message in the last issue of MRW that everyone in the industry has to become better at complying and educating others on the essentials of the Duty of Care.
The focus on waste crime has been sharpened and the penalties are becoming more serious but there is a long way to go, for all involved across the UK, before this issue stops detrimentally affecting those in the industry who are trying to operate in a compliant and business-like fashion. Education, collaboration and communication throughout the sector remain key if we are to make an impact in preventing waste crime, at an earlier stage, rather than just reacting to it once it has happened.
Laura Tainsh is Partner at Davidson Chalmers