Select Committee on Public Accounts Twenty-Fifth Report


4. Enforcement and prosecution

19. It is a criminal offence to dispose of, or treat, waste without a licence, or to break the conditions of a waste licence. Prosecutions for waste offences have increased by over 90% since 1996, with 466 successful prosecutions in 2001-02. The Agency believed that the increase was mainly due to improvements in its enforcement and prosecution policy, and not because standards in the waste industry had fallen. Under the policy, prosecution was pursued where problems had resulted in actual or possible environmental harm, but otherwise, only where there was a history of non-compliance.[20]

20. Well run waste sites will experience minor problems from time to time but environmental groups, residents' associations and the Environment Select Committee have suggested that the Agency can be reluctant to prosecute licensed operators for poor performance. The Agency recognised that its inspectors had not generally considered an operator's previous history when deciding on enforcement action. As a result only some 30 operators a year were prosecuted for failure to comply with licence conditions, usually after an incident which had resulted in environmental harm. The Agency had, however, recently introduced a system to improve the consistency of its classification of licence breaches.[21]

21. The Agency said that it had a range of enforcement options open to it, from enforcement notices to prosecution, but that a power to levy a spot fine would be a useful addition. The Agency also saw benefits in applying spot fines to minor fly-tipping cases and abuse of exempt sites.[22]

22. The Agency could, nevertheless, do more with its existing powers. The Agency rarely revoked a licence for example, particularly for landfill sites, because of the need to provide for long-term care to minimise the risks of pollution from abandoned sites. The Agency had not considered, however, whether other waste operators might be willing to take over a profitable licensed site from an unsatisfactory company.[23]

23. Illegal waste disposal can be highly profitable, especially if the landfill tax and other taxes are also evaded, and the fines imposed by the courts are low. Each year the Agency spends £14 million of its £78 million waste budget on investigating and prosecuting alleged offences. The Agency could only begin the process of removing licences from unacceptable operators if it secured a conviction for an environmental offence. Despite some improvements in the time taken to complete prosecutions, there were still long delays in processing prosecutions.[24]

24. Since 1997, a range of sentencing guidance has been issued to magistrates but not to the Crown Court. The Home Office was currently working with the Magistrates' Association and with District Judges on revised guidance. The average fine imposed by the courts since 1997 had increased but the average fine in 2001-02 was still only £3,000. The Agency were concerned that courts did not always take into account the significant profits derived from deliberate breaching of waste legislation.[25]

25. The "polluter pays" principle underpins environmental regulation. The Environmental Protection Act 1990 requires operators to make adequate financial provision for the long-term management of waste sites. Unlike other government departments such as the Inland Revenue and the Redundancy Payments Service, the Environment Agency is not a preferred creditor following bankruptcy. The current system of financial provisions allows unscrupulous operators to avoid their statutory responsibilities by going into receivership, and the Agency has no powers to make sites safe once the licence has been disowned by the receiver, or to recover its costs. The Agency recognised the need to enter into financial provision agreements fairly and consistently with all operators, particularly as it undertook re-permitting of all landfill in the next three years. Nevertheless, the risk was that financial provision might not be available. The Department considered that this problem might need to be resolved by primary legislation if a regulatory route was not possible.[26]


20   C&AG's Report, paras 2.16-2.18, 2.23; Q 70 Back

21   6th Report from the Environment, Transport and Regional Affairs Committee, Sustainable Waste Management (HC 484, Session 1997-98) para 242; C&AG's Report, paras 2.33-2.34, 2.38, 2.42, Figures 14-15; Qq 5, 88, 122-123 Back

22   Q 6; C&AG's Report, Figure 29 Back

23   Qq 89-92 Back

24   C&AG's Report, paras 2.21, 2.28; Qq 27, 30, 36 Back

25   C&AG's Report, para 2.20; Qq 124, 144-150, 152-155, 164-165; Ev 20 Back

26   18th Report from the Committee of Public Accounts, The Department of Trade and Industry Redundancy Payments Service: The Management and Recovery of Debt (HC 426, Session 1997-98) para 7; C&AG's Report, para 3.47, Figure 25; Qq 40-41, 165 Back


 
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