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The Big Interview: Nicky Cunningham

nicky

In September last year, Environment Agency (EA) chief executive James Bevan told the Guardian that waste crime was “the new narcotics”.

In the context of this dramatic declaration, Nicky Cunningham was appointed to her post in October. She is now playing a key role in stopping what many people see as a rampant problem. Illegal waste sites continue to blossom around the country at an alarming rate, so does Bevan’s statement indicate a new focus from the top?

“Absolutely, yes. James has been out to see some of these sites himself, as has the minister Therese Coffey,” she says. “A bad waste site is quite visible and it will resonate with them.”

The ‘narcotics’ analogy indicates that there is a lot of money to be made in shoddy practices. But Cunningham is quick to counter that she does not want to promote the fact that criminals can prosper.

“If you want to operate and cut cor­ners at one end or carry out downright criminality at the other end of the spec­trum, then there is a profit to be made. It’s largely done through landfill tax evasion. In terms of waste, I’ve seen that public tolerance of poor-performing waste sites has decreased, particularly in the past few years,

“That, coupled with huge changes in the waste sector – particularly during the past 10-15 years because of landfill tax – means our regulatory response has been much more robust.”

Cunningham is relatively softly spo­ken, but she betrays a quiet determina­tion. This is perhaps unsurprising because, since joining the EA in 2000, she has gained experience on sites across a range of regulatory sectors and regimes, including the water industry, chemical sector and refineries.

We speak in a Birmingham hotel where the EA is holding a regional meeting. With a background as a scien­tist in the chemicals industry, what brought her to the world of regulation?

“It may sound quite trite to say it, but regulation is a really powerful tool for improving the environment. You can make very big improvements very quickly.

“It can provide a level playing field across industry. Obviously, sometimes there is a pressing need to use regula­tion quickly and effectively to clamp down on the bad boys, but I think it can be used to drive growth and innovation as well. It’s quite an exciting place to be.”

Like narcotics, waste can be the prov­ince of organised crime, on national and international levels. I asked what pro­portion of the offences the EA deals with does Cunningham think is down to organised crime?

“It is difficult to quantify, but we are working increasingly with the regional organised crime units (ROCUs),” she says. “They are an arm of the National Crime Agency. We have a national enforcement service that deals with the ‘big, bad and nasty’ organised crime cases, and this engages with the ROCUs to share intelligence on actions which are deliberately criminal as opposed to poor performance.”

“A lot of landowners do not understand that it is their responsibility if the operator scarpers and leaves them with a big pile of waste. Some of the work the ESA has been doing and we are now doing is around permits and making sure landowners are aware of their responsibilities.”

There are 10 ROCUs across England, each at “different levels of maturity”, she says. This view backs a Government report into their effectiveness in 2015 which found that some “lack a clear pur­pose or vision”. The report called on ROCUs to assume responsibility for mapping organised crime groups and to raise their public profile.

In the battle against organised crime, the EA also partners with a range of Government agencies, including HM Revenue & Custom and the Health and Safety Executive: “We find that a poor environmental performer is often poor across the board in relation to looking after their employees, health and safety, vehicle registrations, tax evasion – so it’s vital that we share intelligence.”

Cunningham says the EA is increas­ingly carrying out multi-agency raids on sites with the police, fire service, coun­cils and trading standards, among oth­ers. And, because “waste crime does not have borders”, it co-ordinates a great deal with the other UK regulators: the Scottish Environment Protection Agency, Northern Ireland’s Department of Agriculture, Environment and Rural Affairs and Natural Resources Wales.

An issue she touches on repeatedly is landfill tax evasion; as powers over landfill tax have been devolved it is a hot topic with her counterparts as well.

“We do have different financial incen­tives between the administrations, so it’s really important that what one admin­istration chooses to do does not mean there’s a flurry of waste crime some­where else. We work with HMRC very closely on tax evasion. In fact, we have reciprocal secondment arrangements because landfill tax is a complex area and so is waste regulation. Sharing our respective knowledge base really helps.”

There are signs that such co-ordination is paying off. Jane Ellison, financial secretary to the Treasury, said recently that HMRC had issued 51 landfill tax assessments in the past five years total­ling £94.3m, including 37 civil penalties amounting to £2.2m. Since April 2015, 78 compliance interventions have been carried against landfill site operators.

Ahead of the general election call, the EA had been planning to release a report on fraud in the sector.

“We investigated misdescription of waste last year and found 63 cases that were referred to HMRC for follow-up,” says Cunningham. “These cases accounted for something like 630,000 tonnes of waste which had been misde­scribed. That’s £18m-worth of tax evaded. It is significant. We found around a one-to-10 ratio in terms of investment of our time and the benefit accrued.”

Crime grabs the headlines, but Cun­ningham is naturally keen to point out that 96% of waste sites are classed as ‘good performers’. She also exudes a positive attitude to the EA’s resources granted by Defra and its relationship with the waste sector.

“Funding for enforcement has remained fairly stable in the past few years, primarily because Defra made a case to the Treasury for Landfill Com­munity Funding, which has mean that we got an extra £20m for waste crime.

“My current understanding is that is secure until 2020. We are also making sure our enforcement officers have the up-to-date skills and knowledge. We’ve initiated a scheme with three profes­sional institutions – the CIWM, IEMA and CIWEM – called the ‘practising environmental regulator’. So we are shoring up the funding and making sure our people are skilled. I am confi­dent that our approach to enforcement is as rigorous as it has ever been.”

The EA supports trade associations for a good reason – the sector is domi­nated by SMEs which can be harder to reach than the big waste companies, which comprise only about 12% of the estate issued with EA permits. This is why it fully backs initiatives such as the Environmental Services Association’s (ESA) ‘Right Waste, Right Place’ cam­paign.

What is clearly a sensitive subject, however, is the common complaint from SMEs that the EA over-regulates and stops legitimate trade. Is there a tension here? Cunningham chooses her words carefully.

“Yes, it is fair to say they do say that. Our regulation has to be based on envi­ronmental risk, and managing a waste site – even just one – can be quite risky. I would hope that the way we regulate is proportionate to risk and is fair. I guess what we do need to publicise more is when things go wrong – for example, when sites catch fire or are abandoned.”

A criticism often levelled at the EA is the time it takes to clear up illegal or permit-busting sites that so enrage local communities. The Waste4Fuel site in Orpington, Kent, is a notorious exam­ple. Bevan himself visited the site in September to see the 15,000 tonnes of waste left there by the former owners, and the fire brigade estimates it has been called out to fires at the refuse mountain 233 times since 2012.

“That perception of illegal sites prob­ably isn’t accurate because we generally deal them quickly,” says Cunningham. “We close down more than 50% of ille­gal sites within 90 days.

“On permitted sites but have become non-compliant, what can sometimes happen is the operator does not respond to our enforcement action and con-tinues to take waste on-site. They have already taken the money up front – they clearly want to keep this going as long as possible. In those situ­ations, it’s not an easy problem to deal with. That is one of the reasons we in-stigated the T-junction conversation, to get in there quickly.”

“If you want to operate and cut corners at one end or carry out downright criminality at the other end of the spectrum, then there is a profit to be made. It’s largely done through landfill tax evasion.”

The T-Junction initiative is basically an ultimatum telling operators they cannot continue dumping waste, and it is one of Cunningham’s favourite tools of the trade. But where an operator goes missing or becomes bankrupt, the land­owner becomes responsible for the clean-up and this is where things get difficult.

“A lot of landowners do not under­stand that it is their responsibility if the operator scarpers and leaves them with a big pile of waste. Some of the work the ESA has been doing and we are now doing is around permits and making sure landowners are aware of their responsibilities.”

This is typical of Cunningham’s focus on partnership working, which includes duty of care. Attempting to stop the flow of waste to unlicensed or badly run sites has involved the ESA and hauliers asso­ciations. How does she see regulation developing in the next five years?

“Defra is issuing a second waste crime consultation in the summer,” she says. “That will be really interesting, because it will give us more powers to check at the permitting stage on the likely performance of the person apply­ing for the permit.

“It will allow us to check their competence and assess the financial model for their activity. And the third part of that consultation looks at some kind of financial provision for landfill sites to make sure that, if something does go wrong, the operator has the funds avail­able to remediate it.

“As a result, I would like the public to see fewer pollution incidents, fewer badly run sites and less of an impact from those sites.”

She also mentions that she would like to see closer working with local author­ities: “As administers of a waste service, they can have an awful lot of influence over who gets the contract. Councils do use that influence, and there is further scope in us working with them in giving the information they need to make those choices.”

In conversations with regulators it is impossible nowadays not to mention Brexit. Cunningham is not just con­cerned about the possibility of laws governing waste regulation changing – perhaps unexpectedly, she takes a wider interest in the sector’s infrastructure.

“Because the sector is dominated by markets, I think the economic impact of Brexit could be interesting and affect on what we see as a regulator,” she says. “We ship an awful lot of our waste abroad, largely for use in energy-from-waste plants in Scandinavia.

“You could say that if something changes to make that less of an option because of a fall in the pound, there are all sorts of opportunities over what we do with that waste in this country. We might want to start using waste as a resource.

“The environment secretary and Defra said they want the UK to become one of the most resource-efficient coun­tries in the world. Brexit could help us achieve that aspiration.”

CV: Nicky Cunningham

nicky cunningham

nicky cunningham

Jul 2014–Oct 2016: Deputy director, site-based regulation, Environment Agency (EA)

Jun 2013–Jun 2014: Environment and business manager, site-based regulation, EA

Oct 2009–Feb 2014: Senior associate teacher, University of Bristol

Jan 2012–May 2013: Environment and business manager, environment planning, EA

Sep 2006–Dec 2011: Environment and business senior team leader, EA

May 2004–Sep 2006: Water quality policy adviser, EA

Dec 2000–May 2004: Scientific officer, SW region tidal waters team, EA

1998–2000, Information scientist, AstraZeneca

Sep-Dec 1997: Visiting researcher, Department of Oceanography Dalhousie University

 

 

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