Last reviewed 28 June 2016

Waste crime costs the UK economy and Treasury over £1 billion every year. It undercuts legitimate waste management businesses, blights the local environment, and can present a serious risk to health and safety, as demonstrated by the recent spate of major fires at waste sites. We are all happy to see rogue operators getting their just desserts in court — but how far are ordinary waste producers responsible for abetting these crimes? Caroline Hand reports.

The crime scene

Waste crime pays, and for many cowboy operators the proceeds of crime outweigh the occupational hazard of prosecution. Every 90 minutes the Environment Agency (EA) shuts down an illegal waste site — only for others to spring up in its place. Sometimes the sites have been open for so long that the public just presume they are legitimate. Others, on isolated farms or abandoned land, avoid detection. And even when the sites are well known to the authorities, EA inspectors may be threatened with violence when they seek to carry out their duty.

Moreover, illegal waste dumps are only the tip of the iceberg when it comes to waste crime. Unscrupulous operators can use their permits, exemptions or carriers’ registrations as a cloak for illegal activity. The Agency is currently clamping down on deliberate misdescription of waste, whereby hazardous waste is described as non-hazardous, or waste misclassified as non-waste. For example, a truck in London was found to be carrying asbestos hidden under a load of construction waste. A very common problem is the excessive stockpiling of waste at regulated and exempt sites, in breach of the conditions of authorisation, presenting a fire and pollution risk as well as disamenity to the neighbourhood. Illegal export of waste is another growing problem and a particular focus for the regulators at present.

For better or for worse?

Has the Government’s drive for better regulation actually made life easier for waste criminals? Writing in the Chartered Institution of Wastes Management (CIWM) Journal earlier this year, John Galvin — who has held senior roles in both Defra and the EA — expressed fears that the move towards risk-based regulation, coupled with reductions in the EA’s budget, has weakened the EA’s oversight of permitted facilities. Deregulatory changes such as the abolition of the “fit and proper person” test for waste operators have, in his view, been retrograde steps.

On the positive side, the Government has demonstrated genuine concern about waste crime, awarding the EA an extra £20 million over the next five years to tackle it. New legislation has come into force which strengthens the regulators’ powers to seize vehicles and close down illegal sites (see Croner-i What’s NewTougher rules to tackle waste crime ). Last month, a new £300 fixed penalty for fly-tipping was introduced. This will allow the regulators to target casual fly-tippers without incurring the costs of pursuing a case through the courts. For more serious offences, the new sentencing guidelines introduced last year allow unlimited fines to be imposed in the magistrates’ courts.

The electronic duty of care (edoc) is another innovation which should help to reduce crime by enabling more accurate tracking of waste shipments (see Croner-i Q&A edoc: a new electronic waste transfer note system. Finally, Defra has, at long last, published a readable and up-to-date Approved Code of Practice on the waste Duty of Care (see Croner-I feature article A long wait for 11 pages).

Society rightly expects the Government and regulators to combat waste crime, but many businesses fail to realise that they carry a share of responsibility for it. It may well be their waste which has just caught fire at an illegal site. Without a ready supply of waste from otherwise law-abiding waste producers, the criminals’ trade would dry up. Everyone has a statutory duty of care to ensure that their waste is being managed legally, even after it has been passed to someone else (see Duty of Care topic in Croner-i). However, there is widespread ignorance of this duty, with an estimated 56% of businesses — most of whom are SMEs — totally unaware of it.

Right waste, right place

Earlier this year, the CIWM launched its Right waste, right place campaign which seeks to publicise the duty of care and explain simply what every business must do. The website includes a video and a series of factsheets, plus case studies of businesses that have been prosecuted — such as the beautician who left black bags of waste in the street in the hope that the household waste collection would pick it up. The emphasis is on ensuring that waste goes to an authorised person: to a registered waste carrier, and subsequently to a treatment or disposal facility which holds an appropriate environmental permit. The campaign has just entered its second phase with the issue of specific guidance to key sectors including construction, farming and retail.

Many businesses could do more to ensure that their waste is not falling into the wrong hands. In particular, they could check where the carrier takes the waste after it leaves their premises. If waste is going to a transfer station where it is sorted and bulked up with other waste from elsewhere, can the waste producer still track it through to its final destination? Businesses also need to be aware that large waste companies may sub-contract their business. Waste could be passed on to a smaller, local concern which may not be operating to the same high standards as a major waste company.

The edoc system makes it easier to track waste, as long as everyone in the chain has signed up to it. When seeking a reputable waste contractor, waste producers can register with the Agency’s National Compliance Indicator site which details the extent to which regulated facilities are complying with their permit conditions.

Waste producers need to take particular care if their waste is going to an exempt site, ie one that does not have a full environmental permit. Exemptions are normally granted to small recovery operations such as composting. These sites are not subject to the same levels of scrutiny as permitted sites, and operators can easily contravene the conditions by storing or treating too much waste.

…and a word to the waste industry

The CIWM is also seeking to engage with those in the waste industry who might be tempted to bend the rules. Its new booklet Fighting Waste Crime, co-written with environmental lawyers Dentons, points out the consequences of conviction such as lasting damage to the firm’s reputation and loss of future business. Law-abiding waste companies are encouraged to keep their eyes open for local competitors who are undercutting them, reporting any suspicions of illegal activity to the Agency.

Future possibilities

Various suggestions have been put forward as to how enforcement could be strengthened, and the duty of care made more effective. Some of these are:

  • a higher-level duty of care for local authorities

  • riskier exemptions, such as that for anaerobic digestion, to be replaced by permits

  • reinstatement of the fit and proper person test for waste site operators

  • edoc to be made compulsory

  • higher permitting fees, to provide more funding for the Agency

  • businesses who breach the duty of care to undergo training, like speeding motorists.

However, carefully businesses check up on their waste contractors, there will still be breaches of the law. Powerday, a well-respected major waste contractor for the power industry, has just been fined £1.2 million for illegally depositing and storing its clients’ waste at two sites. But even so, the best way of fighting waste crime is to keep waste out of the criminals’ hands by making sure the duty of care is properly understood and complied with by all.