Waste Watch – February 2014

This Update contains brief details of Government and EU publications, legislation, cases and other developments in England and Wales relevant to those interested in waste management, which have been published in February 2014.

28/02/2014

Nadeem Arshad

Nadeem Arshad

Partner

This Update contains brief details of Government and EU publications, legislation, cases and other developments in England and Wales relevant to those interested in waste management, which have been published in the past month.

Items are set out by subject, with a link to where the full document can be found on the internet. All links are correct at the date of publication.

If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.

The following topics are covered in this update:

   Criminal Liability    Recycling
   Energy from Waste    Regulatory Services
   Permitting and Licensing    Waste Minimisation

Criminal Liability

Sentencing Council: Environmental offences – Definitive guideline: revised guidance for judges on sentencing environmental offences. It covers a variety of offences related to the disposal of waste and rubbish mostly covered by the Environmental Protection Act 1990 and the Environmental Permitting (England and Wales) Regulations 2010, such as fly-tipping and waste handling or disposal offences. Other offences cover nuisance offenders such as those who cause noise, smoke, dust or smells, or run premises which pose a health or pollution risk, and breaches of waste permits.
There is also revised sentencing guidance for magistrates' courts. It encourages magistrates to make more use of the highest levels of fines for some of the more serious offences that come before the courts, while corporate offenders committing serious offences should get higher fines. Custody remains the starting point for the most serious individual offenders who deliberately commit a crime that causes significant or major harm. (26 February 2014)

Walker & Son (Hauliers) Ltd v Environment Agency [2014] EWCA Crim 100 (CA): this case concerned the standard of proof for the offence of "knowingly permitting the operation of a regulated facility without an environmental permit" under reg.38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2007. The Agency contended that it only need prove that the defendant knowingly permitted a particular waste operation, and that as a matter of fact the waste operation was not in accordance with an environmental permit. The defendant argued that the prosecution had to prove two things: first, that the defendant knowingly permitted the particular waste operation; and secondly, that it knew that the operation was not in accordance with an environmental permit. 
The court held, dismissing W's appeal against conviction, that the law required that W ensured that what was happening was compliant with the conditions of an environmental permit and it was no defence to say that he had been told lies. The 2007 Regulations made it clear that  that there was no longer a defence based on the exercise of due diligence to avoid the commission of this offence. If W's construction were correct, it would in effect introduce a 'due diligence defence by the backdoor', and constitute a significantly more favourable approach to environmental breaches than the 2007 Regulations otherwise appeared to envisage. (6 February 2014)

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Energy from Waste

DEFRA: Energy from waste – A guide to the debate: in the 2011 Waste Review, the Government set the goal of ensuring that recovery of energy from waste and its place in the waste hierarchy is understood and valued by households, businesses and the public sector in the same way as reuse and recycling. This guide aims to help deliver that goal by providing a credible reference document to inform discussions and decisions relating to energy from waste. It highlights key environmental, technical and economic issues, and identifies options that could be considered and some of the main points where decisions can be influenced. This revised version of the guide includes an additional chapter which considers the future policy direction for energy from waste, identifying underlying principles that are likely to continue as key considerations for both government and the sector in the future. (26 February 2014)

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Permitting and Licensing

DEFRA: Consultation on draft Materials Recovery Facility (MRF) Regulations for insertion into Environmental Permitting (England and Wales) (Amendment) (No.3) Regulations 2014 – Summary of response and Government response: in February 2013 the Government sought views on draft regulations that would require operators of MRFs to test the composition of samples of the material they put into the sorting process, the residues, and the useable output. The proposals were limited to permitted facilities handling over 1,000 tonnes pa and which sort mixed dry recyclate from household and commercial co-mingled collections. The proposed regulations are part of a wider package of proposed measures which are intended to promote high quality recycling. The Government will now proceed with making the requirements to monitor quality mandatory in order to support compliance with the rWFD objectives of promoting high quality recycling and the linked requirements relating to separate collection The MRF Regulations will be incorporated into the Environmental Permitting (England and Wales) (Amendment) Regulations 2014. (12 February 2014)

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Recycling

London Waste & Recycling Board: £1.2 million boost for London boroughs: announces grants to 17 London boroughs to be invested in a variety of recycling schemes across London, from introducing a new food waste collection service to residents in flats in Brent to a mobile recycling centre in Westminster. The grants are part of LWARB’s ‘Driving up Performance Fund’ to improve household recycling services in London. (10 February 2014)

Eunomia: Investigating the impact of recycling incentive schemes: this report, commissioned by Serco, presents the findings from research into the costs and benefits of non-DEFRA funded recycling incentive schemes and an analysis of the evidence regarding their efficacy. Based on local authority interviews and waste data flow information, the evidence suggests that impacts tend to be marginal. Whilst reward schemes in some cases appeared to be making a positive contribution to recycling performance, the results achieved were highly variable. Nearest Neighbour analysis showed that some of the apparent performance gains achieved in reward scheme areas were not attributable to the impact of the scheme but related to other factors such as potentially changing patterns of consumption and disposal. The available evidence indicates that low cost schemes offer the best prospect of demonstrating a business case with scheme costs offset by the landfill savings and recycling benefits that the scheme creates. (19 February 2014)

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Regulatory Services

Deregulation Bill: this Bill has been introduced into the Commons and received its 2nd Reading. The Bill proposes a range of measures in line with the Government’s aim to reduce burdens on businesses and public authorities. Its provisions include the repeal of a provisions relevant to municipal waste:

  • repeal of Part 11 LG&PIH Act 2007 that enables the Secretary of State to create Joint Waste Authorities at the request of the relevant local authorities;
  • replaces the current criminal sanctions under s.46 EPA 1990 for non-compliance with local authority requirements for collection of household waste, with a new fixed penalty scheme.

The Bill also removes the duty on "best value" authorities under s.3A LGA 1999 to consult on the exercise of their functions. (3 February 2014)
See also the Commons Library Research Paper that examines the provisions in the Bill and the LGA's Second reading briefing.

LGA: Scrap Metal Dealers Act 2013 – Compliance and enforcement guide: sets out the new enforcement powers and tools that will be available to councils, and in some instances the police, under the new Scrap Metal Dealers Act 2013. It forms part of a set of guides to help councils understand their responsibilities under the new Act. (4 February 2014)

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Waste Minimisation

HC Environmental Audit Committee: Plastic bags: this report examines the Government's proposals to introduce a mandatory 5p charge for single-use plastic carrier bags in England from Autumn 2015. It concludes that the charge scheme that the Government is proposing in England, with additional exemptions for small retailers and paper and biodegradable bags, would be too complex, unnecessarily confusing for shoppers, and less effective than the Welsh scheme. It recommends that the proposed 5p charge should apply to all bag types and all retailers. The Government should focus on making the scheme simple and coherent with other policies to reinforce other positive environmental behaviours. It should take steps to set a minimum price for ‘bags for life’ at a level which incentivises their reuse. (6 February 2014)

Institute of Environmental Management & Assessment: Sweating our assets – Productivity and efficiency across the UK economy: this report from the Conservatives' 2020 Productivity and Efficiency Group proposes a series of policies that could enhance the UK economy and increase its resilience, productivity and efficiency in the face of an ever changing and increasingly challenging global economy. It calls for waste to be redefined, both legally and as a business issue, by moving responsibility for waste policy to the Department for Business Innovation and Skills. (4 February 2014)

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