Waste management licensing: Benefit or burden?

Journal of Planning and Environment Law

Volumn , Issue OCT., 2000, Pages 1003-1010

  Abbot, Carolyn ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL PROTECTION; REGULATORY FRAMEWORK; WASTE MANAGEMENT;

UNITED KINGDOM;

EID: 0033775554     PISSN: 03074870     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (46)

1. House of Commons Environment Committee Sixth Report, Tlie Environment Agency (HC Session 1999-2000, 34 I-II). The Report canvassed the opinion of a broad range of witnesses representing nearly 90 different organisations, and on the Select Committee's own experience with the Agency.
2. Empirical research was carried out as part of a European Regional Development Fund (ERDF) funded Business and Ecology Demonstration Project. Questionnaires were sent to waste mangement licence holders in the Greater Manchester area who had less than 250 employees. Out of the 89 questionnaires circulated, 29 were completed and returned-a response rate of 33%.
3. According to the definition under the ERDF, Small to Medium Sized Enterprises are companies with less than 250 employees. SMEs play a central role in the nation's economy. A Statistical Press Release from the DTI (July 29,1998) found that in 1997, of the 3.7 million businesses, over 99% were SMEs. Although there are no current statistics on the breakdown of the nature of business in the waste management industry, it must, by inference, consist predominantly of SMEs. In addition, they provide a 58% share of employment. It is therefore important to ensure that the costs of regulation on SMEs are minimised, where possible.
4. See Cheyne and Purdue, "Fitting Definition to Purpose: The Search for a Satisfactory Definition of Waste" (1995) 7J.E.L. 149.
5. Section 75(2) EPA. This section, as amended, replaces the previous U.K. statutory definition of waste with the definition of " Directive" waste (Council Directive 75/442 on waste [1975] OJ. L194/39, Article 1).
6. Section 35(3) EPA.
7. The notion that there should be one environmental regulation agency was the logical corollary of the new regulatory powers introduced for the environmental media between 1989 and 1993.
8. Hawkins, Environment and Enforcement: Regulation and the Social Denition of Pollution (Oxford: Clarendon Press, 1994) at xiv.
9. See for example, Davis, Discretionary Justice: A Preliminary Inquiry (Louisiana: Louisiana State University Press, 1969)
10. and the criticisms ofthat work in Baldwin and Hawkins, "Discretionaryjustice: Davis Reconsidered" [1984] P.L. 570. Also see Galligan, Discretionary Powers-A Legal Study of Official Discretion (Oxford: Clarendon Press, 1986).
11. See for example, Bardach and Kagan, Going by the Bool.-Tlie Problem of Regulatory Unreasonableness (Philadelphia: Temple University Press, 1982).
12. Environment Agency, Enforcement and Prosecution Policy (March 1998).
13. As a legal principle in administrative law, proportionality has been defined as "the pursuit oflegitimate ends by means that are not oppressively excessive." (see Jowell and Lester, "Proportionality: Neither Novel or Dangerous" in Jowell and Oliver, New Directions in Judicial Reiieiv (London: Stevens and Sons, 1988) at 67).
14. However, it is clear that the Agency's primary duty is to prevent harm to the environment from occurring or continuing. Supra n. 12, at paragraph 11.
15. Department of the Environment, Tlie Environmental Protection Act 1990: Part II Waste Management Licensing: Tlie Frameu'ork Directive en Waste (London: HMSO, 1994).
16. It was beyond the scope of the author's research to assess the environmental risk of the respondents' activities therefore it is difficult to say whether compliance costs are proportional to the environmental risk of the company's operations. However, with only 9 of the 29 respondents who completed questionnaires handling special and/or clinical waste, there may be some grounds for arguing that compliance costs are disproportionate to the risk of environmental harm.
17. Supra n. 12.
18. ibid., at paragraph 12.
19. ibid., at paragraph 13.
20. ibid., at paragraph 14.
21. ibid., at paragraph 15.
22. ibid., at paragraph 16.
23. As demonstrated in the Select Committee report (Supra n. l at paragraphs 81-85), industry is particularly concerned with the Agency's level of charging. One criticism is that the make-up of the charge is neither clear norjustifiable-there is a need for greater transparency. Furthermore, in the light of high charges (at times in line with top-level consultancy fees), industry is not seeing a commensurate level of service from Agency staff.
24. Section 36(1) of the EPA states that an application shall be made on a form provided for that purpose by the Environment Agency, accompanied by such information as is reasonably required. See further Waste Management Licensing Regulations 1994 (S.I. 1994 No. 288) regulation 2, and Department of the Environment, Waste Management Paper !\'o. 4-Tlie Licensing of Waste Facilities (London: HMSO, 1994, 3rd ed.-chapter 2).
25. With regard to assistance from Agency officers, over 60% of survey respondents classed it as good or very good. In relation to application guidance notes, 72% of respondents thought they were average or better.
26. Memorandum relating to the inquiry submitted to the Environment Sub-Committee (HC 829), EA08 at paragraph 1.6.
27. House of Commons Select Committee on the Environment Sixth Report, Sustainable Waste Management (HC Session 1997-1998, 484-1).
28. Supra n. 1, at paragraph 40.
29. Section 36(9) EPA.
30. See for example, the comments of the Environmental Services Association. Supra n. 25, EA53 at paragraph 1.1.
31. Supra n. 1, at paragraph 78.
32. ibid., at paragraph 80.
33. This could be because simitar costs must be incurred whatever the output. Moreover, as noted by Mehta and Hawkins, small companies are generally ignorant about pollution control matters and therefore have to invest time and money into becoming more familiar with their legal obligations under the relevant legislation ("Integrated Pollution Control and its Impact: Perspectives From Industry" (1998) 10(1) J.E.L. 61 at 73).
34. The categories being unreasonable impact, burdensome, slight added cost, not significant, some benefit and significant benefit.
35. Supra n. 25, EA29 at paragraph 1.3.
36. ibid., EA16 at paragraph 32.
37. Supra n. 1, at paragraph 76.
38. Department of the Environment, Compliance Cast Assessment: Waste Management Licensing (January 1994).
39. Supra n. 11.
40. Supra n. 14.
41. Supra n. 26, EA41 at section 1.
42. Environment Agency, Corporate Plan 1999-2000: Our Look Fomurd to 2002 at 50.
43. Supra n. l, at paragraphs 48-54.
44. ibid., at paragraph 59.
45. Supra n. 42 at 47.
46. Supra n. 1, "Summary of Conclusions and Recommendations" at paragraph (\vw).