SUMMARY OF PRINCIPAL POINTS

  Cleanaway welcomed the formation of the Environment Agency and is concerned that there are a number of areas where the necessary efficient operation of a large organisation is falling short of expectations. The serious issue of unacceptable delays in processing licence applications and modifications is not addressed here, as it is covered in depth by the waste management industry's trade association, the Environmental Services Association (ESA). This memorandum aims to highlight the other areas that are of major concern to the Technical Waste business of Cleanaway:

—  Issues surrounding lack of accountability/empowerment of Environment Agency officers—making it difficult to obtain timely decisions and being faced with ever changing requirements.

—  Lack of transparency of policy—guidance documents are kept "secret" from industry or are introduced at short notice. This makes it very difficult to supply the relevant information or comply with the changing standards.

—  Poor delivery of service—recruitment/promotion of inexperienced staff causing unacceptable delays in processing applications and in simple decision making.

—  Inconsistent Enforcement and Prosecution policy—appears to target the "soft option" and the costs claimed bear no relation to the environmental harm caused by the offence.

BACKGROUND

  Cleanaway is one of the largest waste management companies in the UK. It is involved in the management of all categories of industrial, commercial, clinical and municipal waste with the exception of radioactive waste. Cleanaway operates a number of facilities including landfill, treatment, solvent recovery, transfer, high temperature incineration and transport operations.

  Cleanaway has dealings with the Agency at all levels, from the functional Directors, through regional and area managers, to site inspectors and administrative personnel. Cleanaway operates in all of the eight Agency regions and has representations on the REPAC and AEG groups.

  Cleanaway has a total of 38 waste licences/authorisations and numerous discharge consents to controlled waters for which they pay approx £250,000 to the Agency in fees and charges each year. In addition they produce some 5,000 Special Waste Consignment Notes, Duty of Care Transfer Notes and other waste transport documentation.

  Cleanaway welcomed the formation of the single regulatory body as an organisation, able to bring consistency and a single point of contact to a highly regulated and high profile industry sector.

  It is understood that the task that confronted the management team responsible for the Agency was not an easy one. The three regulatory bodies that make up the Agency were originally three very disparate groups with widely differing areas of expertise. It was expected that integration of the three groups would cause some teething problems. However, it is now 3.5 years since the Agency was formed and many fundamental problems do not seem to have been addressed. Some of the major issues are not even acknowledged by senior managers as "problems" at all.

  During the late 1970's and the 1980's, the then waste regulation authorities and HMIP (formerly the Alkali Inspectorate) officers operated in a spirit of firm regulation but with an attitude of co-operation with industry. It was understood that the majority of waste management companies' very existence depended on complying with the legislation. Prosecutions were vigorously pursued for pollution-related offences and where people disregarded the law. But on another level officers were "industry facing" and were able to give advice and make regulatory decisions on a case by case basis without continual reference to lawyers.

  There was some criticism of the "old regime" by industry. Operators complained about the lack of consistency throughout the 83 different waste authorities and seven HMIP regions. This criticism is now being used as an excuse to justify the current problems and delays as (some of) the EA does not wish to move until everything is checked against a national uniformity. The waste industry was never looking for national uniformity as it recognised that all waste sites are different, but they sought a consistency of approach to regulation in all the regions. Cleanaway was supportive of the formation of the Agency as a national regulatory body for reasons of such consistency.

GENERAL COMMENTS

  Cleanaway's experience of dealing with the Agency has been very mixed. In areas where the experienced officers are still in post, there is generally a good working relationship and a consistency of approach to the regulatory functions. This tends to be, although not exclusively, in areas subject to Integrated Pollution Control.

  Restructuring in the Agency has resulted in the appointment of senior and middle management with little or no experience of waste regulation. This, and a complex matrix management system, has given rise to delays in decision making, inconsistency in regulatory practices and the imposition of new guidance documentation with little or no notice. At the same time, industry is being asked to pay costs, increasing way above the rate of inflation, for what appears to be a deteriorating service. As the Agency operates in a monopoly situation, industry has no option but to accommodate the poor service, even though the licensing delays are costing companies millions of pounds.

  The costs imposed on industry for officers' time appears to be arbitrary. If prosecuted for actually polluting a river or breaching a licence condition, the costs claimed by the Agency in Court vary from £16.69 to £61.45 per hour. If prosecuted for breaching an IPC Authorisation (even if no harm to the environment has occurred) industry is charged £164.19 per hour (£1,215/day). This higher cost is to be carried over for the new IPPC regime. The Environment Agency needs to be made accountable for the ever increasing charges and the variation in charging bands that are irrespective of actual case complexity or environmental harm caused.

  In Cleanaway's experience the morale of many Agency officers is very low. This has a direct impact on regulated activities, as officers are often preoccupied with, or overpowered by, paperwork, internal bureaucracy, and the matrix management structure. A number of experienced staff have left the Agency as they believe that the organisation has lost sight of the main aim of protecting the environment and is concentrating on meeting administrative targets. Younger, inexperienced staff are replacing the older, experienced officers as they leave. This gives rise to a "tick-box" mentality in regulation and regulators who are unable to make decisions.

  Much of the new environmental legislation now relies to some extent on self regulation. Industry is expected to make regular returns to the Environment Agency and report when any breaches have occurred. This form of self regulation depends in part upon industry co-operation and it is vital that the Agency recognises this fact otherwise some less scrupulous operators will be tempted to cover up minor incidents. This does not mean that the Agency should be seen as being too close to industry. There is a middle ground that provides firm, fair regulation and enforcement whilst recognising the need for industry co-operation.

  Cleanaway recognises that in most cases the problems being experienced are not of the making of individual officers. It is the "system" that seems to be causing the problems. We believe that the current Environment Agency management structure is cumbersome. A significant proportion of senior managers have little or no experience of the technical aspects of the areas they manage. This means that if the waste management industry cannot resolve an issue with the junior site inspector, there may be several layers of management above the inspector who do not have the technical knowledge to resolve the issue.

  In some areas, the Agency has worked well with industry to implement legislation eg The Special Waste Regulations 1996 where the Agency produced timely, clear, concise guidance to help industry comply with the law.

SPECIFIC ISSUES

  Specific problem areas still being experienced by Cleanaway with relevant examples are as follows:

Lack of accountability/empowerment of Agency officers

  Most of the Environment Agency officers who are dealing with industry on a day to day basis appear afraid to make a decision and need to refer most queries, however small, to the legal department or team leaders. This results in unacceptable delays for answers to relatively simple requests.

  The lack of individual accountability means that Agency inspectors are able to keep changing their minds as to the various pieces of information they require. The often continually moving goal posts lead to frustration and loss of business opportunities.

  Example 1: Cleanaway sought permission to accept mildly contaminated soils onto one of its landfill sites. In 1997 the Agency wrote to Cleanaway stating that the method for assessing contaminated soils as previously agreed with a former Waste Regulation Authority was not acceptable. No alternative assessment method of guidance was given. During 1998 a number of discussions took place, Cleanaway submitted more and more documentation. Each time, the Environment Agency asked for yet more details. At the end of 1998 the Agency asked for a completely new system of reporting to be put in place for soils. This was agreed. During 1999 the officer changed his mind again and said that Cleanaway must ask for specific approval for each and every contaminated soil enquiry. This has resulted in the company being unable to receive any contaminated soil on the site, and the time taken to receive Agency approval would be prohibitive for any contractor wishing to remove contamination from a development site.

  Example 2: In 1998 Cleanaway asked the Environment Agency for permission to take contaminated soil at another landfill site. Positive discussions were ongoing with a particular officer. During 1999 the proposal was suddenly taken out of the hands of the officer and given to the National Technical Assessment function who are still considering the proposal. Cleanaway have already lost a year of potential revenue from this waste source.

  Cleanaway are firmly of the opinion that a decision should have been made on both these examples within three months of application. No one in the Agency seems to have any will to make things happen. There is no sense of responsibility that things have dragged on for so long at huge expense to Cleanaway.

  Despite spending over 12 months on these issues, Cleanaway has been unable to resolve the problems. The lack of individual accountability and constant reference to advisory committees, legal departments etc means that important decisions are simply not made by anybody.

Lack of transparency of policy

  Although the Environment Agency claims to be operating transparently, the reality is somewhat different. Guidance documents are kept in "draft" form and as such they are not available to the public or industry. Whilst it is believed that this mechanism has been used to keep information out of the public domain in the past, it is disappointing that the Agency has such little faith in its own guidance documents. It is difficult for industry to comply with changing standards or supply relevant information if the guidance is kept secret and available to Agency staff only. There have been a number of occasions when Agency staff have quoted "it's Agency policy" but when asked for a copy of said policy, replied that "it's for internal use only".

  Example 1: The Special Waste Regulations came into effect in 1996 and industry had to make assessments as to which wastes were "Special" within a few weeks to comply with the law. The cement industry has failed to address these Regulations and continues to landfill cement kiln dust (CKD) in quarries without any of the safeguards and paperwork associated with Special Waste. During the two House of Commons Environment Committee hearings into the burning of hazardous waste in cement kilns the Committee concluded:

  If CKD is found to be an environmental hazard, it should be reclassified as Special Waste. (1995 Second Report)

  Evidence indicates that CKD produces an alkaline run-off which could cause serious harm to those who come in contact with it. This should be given very serious consideration when the Agency decides whether to treat the dust as Special Waste. (1997 Third Report)

  Despite these recommendations the Environment Agency has been reluctant to address the issue. First their Technical Assessment Group produced an advice document saying that CKD was, in their view, Special Waste. This document has never been published. Finally some two and a half years after the regulations were implemented, the Agency concluded that some CKD will be Special and some will not. To Cleanaway's knowledge, no CKD is being classified as Special Waste in the UK today. The reason as to why this large waste stream appears to be of little concern to the Environment Agency is surprising given the public concerns surrounding the burning of hazardous waste.

  On the same topic the Agency claimed to be undertaking a study of which wastes were unsuitable for burning in cement kilns. This study has taken over two years, has only just been published and leaves the policy decision of whether to implement it hanging in the air. Whilst Cleanaway is satisfied that there are now better controls on the trial burning of waste in kilns through the new Protocol, there is little evidence that there is any better knowledge of exactly which wastes are being blended away into the mix before delivery to the kilns. The burning of hazardous waste mixes as a fuel is anything but transparent.

Poor delivery of service

  In addition to the unacceptable delays in the processing of waste licence applications there are other areas causing concern.

  The recruitment/promotion of inexperienced staff has resulted in officers refusing reasonable requests from industry. There seems to be a view that legislation should be used to "prevent" industry from doing things rather than using the legislation to "enable" industry to operate. This is mainly caused by the increase in use of the "legal department" rather than using a common sense approach.

  Example 1: Cleanaway asked the Environment Agency for permission to use a shredding machine for a short trial to establish whether the equipment could shred car tyres. The plant is currently licensed to accept hazardous waste. The Agency refused saying that the company must modify the licence and pay an extra £2,200 fee. This could have typically taken 6-12 months from application to approval. There was no environmental justification for refusing the request and although the Waste Management Licensing Regulations do not specifically provide for trials, they do not prohibit them either. A common sense approach by the Agency would have encouraged a short trial, especially as the proposed tyres were considerably less hazardous than the materials covered in the existing licence.

  After several telephone calls, letters and wasted management time, the short trial was finally allowed.

  Example 2: The Agency's abysmal administration of the Transfrontier Shipment of Waste Regulations (TFS) cost the UK high temperature incineration industry several millions of pounds in revenue. The UK Management Plan for Import and Export of Waste came into effect on 1st June 1996. The Plan introduced the prohibition on imports of incinerable waste to be phased in over a period of three years. There were many meetings with the Environment Agency and industry was given promises of definitive guidance on how the quotas contained in the legislation were to be implemented. Months passed and no waste could be imported as the Agency was waiting to produce the guidance before approving any shipment. The Agency restructured the TFS section at least three times and on each occasion Cleanaway was told that matters would be sorted out "soon". By the time the ban on imports became total in June 1999, only a tiny proportion of the volume of imports allowed under the Plan had been imported. This was a direct result of the Agency's lack of proper administration causing delays and confusion, despite many meetings at Board level. Prior to the formation of the Environment Agency, imports were approved by the Waste Regulation Authorities who informed the local Councillors, everything was transparent and worked effectively. Once the Agency took over this legal trade virtually ground to a halt through bureaucracy and a negative attitude. The latest TFS team, appointed just before the import ban took effect, has tried to introduce guidance but it is now too late to help the UK high temperature industry compete internationally. To date less than 50 per cent of the promised guidance notes are available.

Inconsistent Enforcement and Prosecution policy

  This policy went "live" in November 1998. Copies were not available for industry for several months. The draft internal guidance explaining the details of the policy is still not available to industry despite repeated requests. This means that the regulated industries are not advised as to how the Agency is applying the Enforcement Policy giving rise to the fear that it is targeting the "soft options". The much-publicised Hall of Shame listing the Agency's successful prosecutions did not include any waste related prosecutions taken against individuals causing pollution by tipping waste illegally without a licence. Instead it listed companies prosecuted for breaching licence conditions, in some cases for relatively minor offences. Easy targets, but not much benefit to the environment.

  The Agency's annual report suggests that they are proud of the 11 per cent increase in prosecutions yet the success rate in court fell from 98 per cent to 88 per cent. This suggests that the Agency is pursuing too many minor, poorly prepared, or simply erroneous cases. The report suggests that this is particularly the case in the waste sector. The report also shows that the waste sector is the subject of 56 per cent of all the prosecutions taken by the Agency. Given the complex waste legislation, waste licence conditions, transfer notes, consignment notes etc, it is easier to take expensive legal action for minor technical breaches in this industry than elsewhere. We believe this is occurring simply to increase the number of prosecutions the Agency managers can claim.

  Example: Cleanaway were recently prosecuted for depositing one litre cartons of orange juice on a landfill site prohibited from taking "liquid waste" but licensed to accept domestic food and biodegradable wastes. The company tried to discuss the interpretation of the licence condition with officers but they seemed determined to take enforcement action. Cleanaway elected to have the case heard at Crown Court and engaged legal advice. At the preliminary hearing before the Magistrates Court, the Environment Agency withdrew all charges and Cleanaway were awarded costs. The deposit of orange juice on the landfill site had no adverse environmental consequences and the subsequent prosecution does not appear to fit with the stated Prosecution Policy.

October 1999