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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