House of Commons - Environment, Food and Rural Affairs

Select Committee on Environment, Food and Rural Affairs Fourth Report

2 Some over-riding themes

8. During our inquiry witnesses repeatedly raised four issues with us that were relevant to both aspects of our inquiry. We have also covered them in previous inquiries, as have other committees scrutinising the subject. Some of them also have a wider relevance to environmental policy-making. For that reason we have brought them together at the start of our report. They are:

The quality of data on waste
Uncertainty in the regulatory and legislative framework
Lessons to be drawn about the negotiation and implementation of European legislation
Resources available for the enforcement of environmental policy.

Quality of data

9. The paucity and unreliability of data, and the difficulty of tracking waste flows, especially as regards hazardous waste, was a recurring theme in this inquiry. The problem was put most bluntly by Mr Peter Jones of Biffa Waste Services Ltd - "no-one seems to have a clue what is going where, compositionally, geographically or by industry sector"[14] - but others made similar points. The Environmental Services Association referred to the data available as being "abysmal"[15], and the CBI and Cleanaway Ltd both noted that the quality of data relating to hazardous waste flows was unsatisfactory.[16] There has also been concern about the lack of adequately robust data on fly-tipping, although this has to a considerable extent been alleviated by the introduction of the 'Flycapture' database, established in 2004 by Defra, the Environment Agency and the Local Government Association.[17]

10. Problems with the data on hazardous waste have been acknowledged by Defra for some time, and the Strategy Unit report also identified a need for improved data on waste management.[18] Defra told the Committee in 2003 that "there are still gaps in the information we have available [on hazardous waste]". The Hazardous Waste Forum, which was set up in December 2002 to bring together "key stakeholders" to advise on the way forward on the management of hazardous waste, is intended to help "plug the gaps" in the information.[19] More recently, the Minister told us, in relation to hazardous waste:

There has been a problem in terms of reliability in the collection of data of which systems have not really been in place in the past. We are in the process of consulting on new data collection procedures that will improve this so that we have a better and more reliable grasp of the data flows in relation to the waste stream.[20]

In spite of these reservations, the Minister has been robust in his rejection of assertions that large amounts of hazardous waste remain unaccounted for following the ending of co-disposal of hazardous and other waste, an issue which we address in detail in paragraphs 34-40 below. The Minister noted that information about municipal waste flows was much more reliable than that about hazardous waste[21], although Defra also notes that "a lack of information on specific waste streams … is hampering the development of an effective waste strategy for household and other waste streams".[22]

11. Defra, together with the Chartered Institution of Wastes Management (CIWM) has established the 'WasteDataflow' project. It will provide a web-based intranet and central database for the provision of quarterly data on municipal waste.[23] In addition, Defra has consulted on a wide-ranging strategy to determine arrangements that would, across all waste streams,

provide better data to ensure a sound-evidence base for waste strategy and policy making, land-use and business planning, target setting and performance monitoring, and to meet the reporting requirements of various EU waste directives.

This strategy, one of the work streams under the Government's Waste Implementation Programme (WIP)[24], was welcomed by witnesses such as the CIWM and the Environment Agency.[25]

12. The Local Government Association (LGA) was specifically concerned about the availability of reliable data about the likely growth in the amount of waste being produced in different council areas. Without this, the LGA argued that it would not be possible to make accurate predictions about whether England was on course to meet its landfill diversion targets under the Directive. Furthermore, without more information on the growth of different elements within councils' waste streams, it would be difficult to target resources on the councils that most need them in order to meet their own recycling targets. The LGA has been seeking to develop a programme under which councils are being asked to provide projections of the amount of biological municipal waste they are likely to be sending to landfill. Defra, while agreeing this is a worthwhile exercise, has been unable to offer any funding to support it.[26]

13. The lack of high-quality data is a significant obstacle to the formulation and implementation of public policy. Lack of authoritative data has led to uncertainty among producers and processors of waste and has made it difficult to tell how effectively policies are working in practice. We are glad that Defra has recognised the problems with the existing data available about waste streams, and welcome both the 'Flycapture' database and the more recent support, through the Waste Implementation Programme, for a more comprehensive database of information about municipal waste. Defra should publish a statement setting out what it now intends to do to support work by the Hazardous Waste Forum to establish better information about hazardous waste. We look forward to the speedy implementation of the strategy for producing more comprehensive data about all waste streams, although it is regrettable that it has taken so long for this to be developed. We hope this will bring about a position where all players in the waste field can at least agree on the scale of the problem, even if they disagree over the appropriate solution.

14. It is not clear to us that Defra's data strategy includes the kind of information on future predictions of waste generation by local authorities, which the Local Government Association seeks to compile, as opposed to historic data on waste streams. This kind of information is important, in order to allow for effective forward planning by local and national government, and to inform investment decisions by private companies which may be contemplating building waste treatment facilities. It is especially relevant in the context of the forthcoming Landfill Allowance Trading Scheme. We therefore recommend that Defra re-consider the LGA's request for funding to support this project.

Uncertainty about the legislative and regulatory framework

15. Many witnesses complained of a lack of certainty surrounding the key areas of the legislative and regulatory framework, arising from delays in issuing guidance, ambiguity in the legislation and the terms of the associated guidance and a lack of adequate consultation with those affected. The CBI and Cleanaway referred to late guidance and legislation from Government, and the Local Government Association (LGA) referred to a lack of "certainty and clarity" arising from the late issuing of landfill allocations.[27] The ESA also complained that the legal framework for municipal waste was "unclear and imprecise".[28] The British Cement Association referred to uncertainty, confusion and delays.[29]The Environment Agency referred to "the absence of absolute clarity" on the interpretation of the Landfill Directives and other directives.[30] (These comments also echo those made in our last inquiry.[31]) On the other hand, the CBI noted that business also had a responsibility to engage earlier in discussions with Government.[32]

16. The Minister argued that Government had made great efforts to engage key stakeholders in the process of developing policy and had used various means to keep them informed. These included consultations with local authorities, regular meetings with trade bodies and associations representing the waste industry, seminars set up by Defra and the establishment of the Hazardous Waste Forum, which had provided an opportunity for Government to talk to the waste industry and for the industry to help shape the regulations governing hazardous waste.[33] The Minister also noted that one organisation which had claimed its members were not being kept informed actually sat on the Forum, so should have been passing information on to its members.[34] The CIWM acknowledged that the Forum has been helpful, but thought it had been set up too late[35], and CBI representatives told us that the Engineering Employers' Federation, representing waste producers, had not initially been allowed to join the Forum, resulting in inadequate consultation.[36] The CBI also claimed that the terms of some of the Government's consultation were not always "particularly clear".[37]

17. The 'uncertainty' referred to by witnesses is attributable both to confusion within the waste legislative framework itself, and a feeling that the Government and its agencies have not done enough to explain how it will work. We note the Government's argument that it has done a great deal to communicate with the industry and other stakeholders. We also accept that such stakeholders also have responsibilities: trade associations, for instance, should ensure that information is passed down the line, and the waste management industry could do more to communicate to waste producers. But Government has the principal responsibility to ensure that legislative proposals, information and guidance are produced early enough to be helpful, and in the clearest possible form. We are not convinced, from the evidence we received, that they have done so in respect to information about waste policy, especially for waste producers.

18. Uncertainty about the legislative and regulatory framework has a significant impact on the development of long-term strategies for investment in the necessary treatment facilities by waste producers and the waste industry, a subject which we address in more detail in paragraphs 63-66 below.

Negotiation and implementation of EU legislation

19. In our last report on waste issues, we concluded: "it is vital that Defra improves its approach to European Union Directives".[38] This fairly summarises the evidence we received in this inquiry from waste producers and the waste industry. We heard two particular criticisms. The first was that the Government had signed up to the Landfill Directive before the technical details of how it would operate in practice were agreed. The Directive was agreed in 1999, but it was left to a technical committee to agree the Waste Acceptance Criteria (WAC) which underpin the Directive. A Council decision on the WAC was not published until January 2003.[39] The Environment Agency agreed that it would be "in everyone's best interests" if more of the details were settled before such environmental legislation was agreed.[40] The CBI argued that the Government should not sign up to any European Directives before the details - and the implications for the UK - were determined.[41] The House of Lords European Union Committee concluded that the Government had "signed up to legislation without knowing the practical implications; while landfill operators were faced with significant uncertainty and confusion about what the law required".[42]

20. The second issue raised was the way in which the Government has implemented the Directive in the UK. We have already referred to complaints about the delays in issuing guidance on the legislation - what the Chemical Industries Association referred to as Defra's "just in time" approach.[43] The CBI were concerned about the "over-embellishment" of European legislation by the UK Government, with a more "prescriptive" approach being taken compared to some other Member States. A witness from Corus, drawing on his company's experience from the Netherlands and Germany, noted that those governments, in complying with environmental directives, identified key issues earlier and took a more "pragmatic" view about how to implement European legislation.[44] The Non-Ferrous Alliance suggested that a lack of resources in the Environment Agency was used by Defra as an excuse to "gold-plate" European legislation.[45]

21. The Minister denied these charges:

I do not think that in relation to the way that we are transposing current Directives on waste we could be accused of gold-plating them. I think that we are doing them in a pragmatic and sensible way in line with the requirements of the Directives and I do not believe that we are adding additional burdens or requirements to those Directives which would fall on UK industry.[46]

22. Problems with the way in which EU waste legislation has been implemented have added to the uncertainty we have already mentioned. The Government must in future avoid, wherever possible, agreeing to new European legislation without a full understanding of the details of how such agreements will be interpreted and implemented. The Government should also seek to learn lessons from other EU Member States on ways in which environmental directives can be implemented in a pragmatic manner, while ensuring that their requirements are met. In future, when new environmental proposals about waste emerge from the Commission, the Government must engage with practitioners at the earliest possible stage to ensure that such proposals are practicable, enforceable and capable of implementation.

Funding for enforcement

23. The waste management system is driven by regulation. Government policy will dictate how waste can be treated, and - through policies on minimisation, recycling and reuse - how much waste is produced in the first place. But regulation is only effective if is properly enforced. For instance, making it more expensive to send waste to landfill will encourage waste producers to seek more acceptable forms of treatment, but only if there is a likelihood of detection and subsequent prosecution if the waste is illegally disposed of instead. The waste management industry, which invests significant amounts of money in treatment facilities, needs certainty that Government policy will actually be implemented. A waste company will not wish to make firm decisions on, for example, new hazardous waste treatment capacity if there is no guarantee that the hazardous waste will be forthcoming, rather than being disposed of through some illegal, and thus cheaper, method. So proper enforcement of regulation is vital to ensure that the waste market is not distorted.

24. The Environment Agency has the principal enforcement role. In our last report on waste management, we expressed concern that the Agency did not have the capacity to regulate effectively, given the increasing demands placed on it.[47] This theme was raised again in our present inquiry. The CIWM told us that the Agency "needed more policemen … more money to police waste management".[48] The ESA stated that "the culture of enforcement" was not strong enough, in part because of the Agency's lack of resources, and claimed that the Agency's Grant in Aid (GiA) for 2004-05 had been cut by £4 million.[49] Beyond Waste argued that the Agency lacked the right skills to meet the challenges of the new hazardous waste regime.[50] The Environmental Audit Committee has also suggested that the Agency needs significantly more money just to combat fly-tipping.[51]

25. The Environment Agency described the work it had been doing to police the disposal of hazardous waste following the co-disposal ban, including investigation visits to producers and 30 stop and search operations of waste carriers.[52] But the Agency also told us it had "limited capacity" to deal with increases in illegal activity and that its GiA was "under pressure".[53] The Minister argued that the Agency had adequate resources, which had been increased, although he admitted that the demands placed on it had also grown.[54] Defra denied there had been a "£4 million cut" for 2004-05. In the 2002 spending settlement (SR2002), the Agency's baseline GiA for 2002-03 was increased by £6 million, "in recognition of in-year pressures". The GiA was also provisionally increased by £6 million for 2004-05 and 2005-06. In the event, the funding for 2004-05 could only be increased by £2m due to budget constraints. So this is a smaller increase than initially foreseen, rather than a cut in actual funding. Defra added that other increases in charging income for the Agency, previously offset by GiA, provided further funding.[55] In addition, the Agency has been awarded £2 million for 2005-06 from the proceeds of the Landfill Tax, specifically to support the policing of fly-tipping.[56]

26. We note that the Government has given the Environment Agency increased funding, and welcome the recent announcement of additional targeted funding to tackle fly-tipping. But we remain unconvinced that the Agency has sufficient resources to match the increasing demands placed on it by new and forthcoming environmental legislation, including the implementation of the Landfill Directive and associated EU legislation relating to waste management. We regret that it has not been possible to deliver in full the planned increase in the Agency's Grant in Aid for 2004-05, and we would request that the Government re-examine with the Environment Agency the adequacy of the Agency's resources, so that a proper policing operation can be undertaken to ensure that all wastes, and in particular hazardous wastes, are properly and legally disposed of.

27. Witnesses also noted that there were ways in which the Environment Agency could do its job in a more effective way. For instance, the Waste Recycling Group suggested that the Agency tended to "gold-plate" European Directives through its guidance notes, which were not subject to any peer review or formal adoption process.[57] The CBI argued that the Agency had adopted a "prescriptive" approach on the permitting of landfill sites, in the absence of guidance from Defra.[58] In its response to our previous report on waste issues, Defra explained that the Agency's approach should be to target its regulating resources better, and to seek to ensure effective regulation with the minimum regulatory burden.[59]

28. We agree with the Government that the Environment Agency should seek to reduce bureaucracy where possible, and any additional funding should be used in a way that allows the Agency to focus on what really matters, without undue "gold plating". Defra can also help the Agency's work in enforcing environmental regulation by working closely with it in a way that avoids duplication and which allows the Agency to issue guidance on legislation promptly.

Fly-tipping

29. Recent evidence from the 'Flycapture' database has once again highlighted the scale of illegal dumping of waste and the cost of removing it. In the second half of 2004, local authorities spent some £24 million on clearing fly-tipped waste.[60] In addition to the costs to local authorities and the Environment Agency, costs can also be borne by the owners and occupiers of land on which waste is fly-tipped. This means that, for instance, a farmer may be obliged to pay for the removal of fly-tipped waste from his fields, even when he has taken steps to protect the land from fly-tipping.[61] We recommend that the Government consider introducing arrangements under which owners and occupiers of land on which waste is fly-tipped could have the waste removed by the appropriate authorities, or could be recompensed for the cost of removing the waste themselves, where it can be shown that they had taken all reasonable steps to prevent fly-tipping. This could be funded from the Landfill Tax, or from the proceeds of fines imposed on those found guilty of fly-tipping. The latter approach would help ensure the application of the 'polluter pays' principle.

14 Ev 131, section B [Biffa Waste Services Ltd] Back

15 Q 276 [Mr Hazell] Back

16 Q 107 [CBI]; Ev 107, para 3.3 [Cleanaway Ltd] Back

17 See Ninth Report from the Environmental Audit Committee, Session 200304, HC445, para 5; Joint Environment Agency and Defra press release 88/05, 2 March 2005 Back

18 Waste not, want not, para 4.23 Back

19 Ninth Special Report, Session 2003-04, The future of waste management:: Government reply to the Committee's Eighth Report, HC 1084, para 78; Ev 45, para 13 [Defra] Back

20 Q 137 Back

21 Q 140 Back

22 Defra website, http://www.defra.gov.uk/environment/waste/wip/data/index.htm Back

23 Defra website, http://www.defra.gov.uk/environment/waste/wip/data/index.htm; Ev 48, paras 31 and 34. The scheme is supported by funding from Biffaward, a programme established by Biffa Waste Services Back

24 Ibid Back

25 Ev 2, para 1.2, and Ev 5, para 4.6 [Chartered Institution of Wastes Management]; Ev 20, para 5.5 [Environment Agency] Back