Environment news update - 22 August

Welcome to the latest edition of our weekly Environment Law news update. As ever, we bring you developments, insights, and analysis in the world of environmental law.

NEWS ROUND UP

Combating Waste Crime: The Environment Agency’s Campaign to Educate Landowners

The Environment Agency has published a reminder to landowners of the importance of securing land against criminals who may be looking to dump illegally collected waste as part of a campaign to educate, promote behavioural change and drive action against waste criminals. 

Landowners are being urged to follow the following steps to protect their land:

1. Ensure empty land and property is secure and check it regularly. 
2. Rigorously check any prospective or new tenants. 
3. Be vigilant and report any suspected illegal waste activity. 

There is also incentive for landowners to be more vigilant. Landowners are responsible for ensuring anyone leasing their property complies with regulations and it would be an offence to allow waste to be stored on land without the relevant permissions. Likewise, even if not allowing people to use the land, it is the responsibility of the landowner to clean up any waste dumped on privately owned land, the cost of which can be significant. 

The Environment Agency are conducting site inspections and prosecuting guilty parties responsible for the dumping of illegal waste, but this campaign seeks to highlight the importance of everyone working together to tackle the issue. 

It is estimated 34 million tonnes of waste managed illegally, the equivalent of 4 million skips, is dumped each year. Last year, the National Waste Crime Survey conducted by the Environment Agency found 85% of landowners and farmers who took part had been affected by small-scale fly-tipping and 20% by large-scale fly-tipping. 

Waste crimes are estimated to cost the economy in England £1 billion a year, by way of evaded tax, environmental and social harm, and lose legitimate business.

Illustrative EPR Fees Provide Clarity, But Industry Urges Further Refinement 

The waste and resources sector has largely welcomed the UK government’s recent publication of illustrative fees under the forthcoming Extended Producer Responsibility (“EPR”) scheme for packaging though the announcement has not been without its concerns. The publication is available here.

DEFRA has responded to industry calls for greater transparency by publishing indicative fees for eight different packaging materials. The move is intended to help obligated producers prepare for the financial implications of the new regime. However, the figures provided are subject to uncertainty with DEFRA cautioning that these numbers are still provisional and will likely change as the scheme is refined.

The government’s release which includes a high-end estimate of £655 per tonne of aluminium and fibre based composite packaging has provided producers with a range to begin budgeting for 2025 when the EPR changes will be officially implemented. DEFRA’s planned fee modulation from 2026 aims to incentivise the use of packaging materials with lower environmental impacts making them less expensive for producers.

While many industry leaders have expressed support for the direction of the policy there is an underlying concern about the data and assumptions used to generate these illustrative fees. Alupro highlighted that the aluminium fee calculations which appear to be based heavily on residual waste disposal costs do not align with current industry practices. Alupro also criticised the reliance on outdated databases, some as old as 2017, to determine those fees. Alupro urged DEFRA to incorporate more recent and relevant data in the next round of figures expected in September.

A spokesperson for WRAP emphasised that while the EPR scheme is crucial for better managing the vast array of materials used in packaging it should be part of a broader, holistic strategy and encouraged businesses to not only comply with the EPR requirements but also to explore other environmentally beneficial initiatives such as refill and reuse models.

The forthcoming scheme is expected to cost the industry at least £1.4 billion in 2025 making it crucial that these funds are effectively used to enhance the UK’s recycling infrastructure. As such industry leaders are calling on DEFRA to empower producers to manage the scheme in a way that fosters innovation, creates green jobs, and supports the circular economy

The waste and resources sector are now closely watching for the next set of base fees which are due in September. These will be based on more robust data, providing producers with the longer-term certainty needed to ensure compliance and to make informed decisions about their packaging strategies.

As the EPR scheme progresses ongoing dialogue between the government and industry stakeholders will be essential. The sector is eager to support the transition towards a more sustainable and circular economy but remain vigilant in ensuring that the regulatory framework is fair, data-driven and effective in delivering the intended environmental benefits

Strategic Innovation Fund: Opportunities and Challenges in the Race to Clean Energy 

The UK’s energy sector is set to benefit from significant changes to the Strategic Innovation Fund (“SIF”) as Ofgem introduces a more flexible and responsive process for innovators seeking funding. This update developed in partnership with Innovate UK aims to support the ongoing transition to clean, homegrown energy, addressing critical issues such as high energy bills, excessive carbon emissions and energy insecurity.

The revised SIF process is designed to make funding more accessible and projects more agile. Previously innovators had just one opportunity per year to apply for each phase of the SIF process – Discovery, Alpha and Beta. Now there will be three application windows annually for all phases. This change provides innovators with more chances to secure funding and move their projects forward.

Additionally, the new process allows project teams to choose their start dates and the duration of each phase based on their progress and resources. This flexibility enables projects to advance more rapidly with the shortest route from a successful Discovery stage to the Beta phase now achievable in 23 months – saving potentially up to eight months compared to the previous process.

Ofgem’s Deputy Director for Energy Systems Management and Security Strategy emphasised the importance of innovation in the energy sector’s transformation. She noted that while the energy system has already begun adopting new technologies, more innovation is needed to meet the UK’s clean energy storage, smart devices for households and advanced digital tools to run the energy system efficiently.

The SIF launched in 2021 and expected to invest £450 million by 2026 is a critical component of this innovation drive. By aligning with other public innovation funding and tapping into both UK and international expertise the fund aims to benefit energy network users and consumers alike.

The UK government’s commitment to becoming a global leader in clean energy is closely tied to the success of initiatives like SIF. As outlined in the Labour Party’s general election manifesto the government aims to decarbonise the grid by 2030 significantly expanding offshore wind, solar and onshore wind capacity.

However, whilst the SIF introduced by Ofgem has been generally well received there have been some criticisms and concerns raised about the scheme such as:-

• The application process remains complex and burdensome making it challenging for smaller company innovators to navigate the extensive documentation and the requirements need to secure funding;
• The actual deployment of funds and the realisation of project outcomes may still be slower than needed to meet the urgent demands of the energy transition;
• The selection criterial for projects might not always align with the most pressing needs of the energy sector;
• There are concerns about how well SIF coordinates with long term national and international energy and climate goals;
• There are worries about the effectiveness of monitoring and evaluation mechanisms to ensure that the investments lead to meaningful advancements in the energy sector

In conclusion, whilst the SIF represents a significant step forward in the drive for innovation in the UK’s energy sector by providing more opportunities for funding and accelerating the pace of innovation.

Flaw in EA emissions date could lead to reopening of legal challenge against Walleys Quarry 

Back in August 2021, a Judicial Review application brought by the family of a five year old boy, Matthew Richards, was heard in the High Court. The claim was being brought against the Environment Agency’s (“EA”) enforcement of the operator Walleys Quarry Ltd following evidence that Matthew ‘s chronic lung condition was being worsened by hydrogen sulphide gas emitted from the site. 

In September 2021, the High Court ruled that the EA was not complying with its legal duty to protect the life of Matthew and other residents around the site and set a prescriptive timetable for the reduction of hydrogen sulphide emissions. However, this decision was later overruled by the Court of Appeal in December of the same year, with the Appeal judge agreeing with the EA that it was inappropriate for the Court to determine what further action needed to be taken to restore levels of landfill emissions to acceptable levels.

Following a routine audit in August 2023, the EA became aware of an issue with hydrogen sulphide emissions data being recorded by the analysers in their Mobile Monitoring Facilities. Following which, an internal investigation has been ongoing to determine the cause, address the issue and conduct adjustments in historic data. 

This week, the EA announced the finding of this investigation. Concluding that the issue was caused by a misunderstanding about the calibration procedures when the new analysers were purchased in 2016. 

The EA this week has also announced the results of their data recalculation. The results showed that hydrogen sulphide levels were under recorded at the Walleys Quarry site between the installation of the new equipment in 2016 and the discovery of the issue in August 2023, with the three closest monitoring sites regularly recording concentrations of hydrogen sulphide which exceeded guideline levels.

Since the announcement, the lawyers representing Matthew Richards have asked the Court of Appeal to reopen the case given that their decision to dismiss the case in December 2021 was guided by incorrect data. 

The EA has also since apologised for the incident and said it would host a virtual public meeting on Wednesday 28 August to answer questions from the public. 

Enforcement undertaking: West Midlands company pays 6 digit figure to Environment Agency

Following an intense but brief fire in September 2022 in Cannock, the EA has accepted £100,000 and remedial works from Axil Integrated Services Ltd as an alternative sanction to prosecution or monetary penalty, giving the waste operator a chance to avoid criminal record. As an Enforcement Undertaking (“EU”), this is a legally binding voluntary agreement proposed by the company, available under the Environmental Civil Sanctions (England) Order 2010 and the Environmental Civil Sanctions (Miscellaneous Amendments) (England) Regulations 2010. 

The fire in 2022 was put out by contaminated water, which was contained on the site and removed. The money was donated to Purple Horizons Nature Recovery Project which is part of Wildlife Trust for Birmingham and the Black Country. It is one of 12 nature recovery projects across England. This nature rich corridor between Cannock Chase Special Area of Conservation and Sutton Park National Nature Reserve covers 12,000ha. At Purple Horizons, they expressed gratitude for the funding and stated that it will make a real difference to their partners at wildlife charities and local councils, who are working to create a healthier environment for nature and people. The donation will help the area’s reptiles, birds and pollinators. 

The EA has stated that EUs allow polluters to positively address and restore the harm caused to the environment and prevent repeat incidents. It provides a better option or is at least a more proportionate way to benefit the environment, local community and those directly impacted by the offending than a criminal prosecution would.

If a company fails to comply with the EU, the EA can proceed with prosecution. In this case, however, Axile have fully cooperated; submitting a full incident report and statements admitting their failures as well as carried out repair work. The EA has therefore decided not to pursue prosecution or another sanction in relation to the offence committed.

It has been said that the instrument of enforcement will be increasingly used, and the public is urged to report any environmental issues to the Environment Agency’s incident hotline. 

Other recent occasions involving EU included Olleco in June and Truelife Limited in April this year. The first company failed to take reasonable steps to recover and recycle packaging waste. In addition to remedial works, they agreed to contribute £60,096.40 to the National Trust for Places of Historic Interest or Natural Beauty. The second, failed to comply with registration and to take reasonable steps to recover and recycle packaging waste. Similarly, they committed to remedial works and a contribution of £8,842.53 to the Sheaf and Porter Rivers Trust.