that 23% of sites without technically competent management are also classed as ‘poorly performing’. T is could mean there are over 1,000 permitted waste sites that do not have technically competent management! T is must be galling for the majority of operators who invest time and money in training and developing technically competent staff only to see others operating in breach – this is frustrating for all involved in promoting professional standards in waste management.
It’s now over two years since the Government response to the consultation on enhanced enforcement powers and other measures to tackle waste crime was published. In its 2015 response the Government concluded that the principle of operator competence should be enshrined in legislation. It announced that it would bring forward proposals for a combination of regulatory changes and guidance to better support the regulator to ensure operator competence is assessed and maintained throughout the lifetime of a permit and is able to take appropriate enforcement action where not. So, we can only hope that the new consultation strongly signals the direction of travel and spurs the regulators to earnestly enforce operator competence at both the application stage and thereaſt er throughout the lifetime of the permit.
Some of you will be rightly saying that we had these provisions in legislation under the old ‘fi t and proper persons test’ in waste management licensing law – the answer is “we did”, however, the detailed requirements were removed from legislation, with the onset of the environmental permitting regime in 2008 and replaced by reliance on ‘operator competence’ guidance. T is was done in the name of so called ‘better regulation’ but may be acting against the interests of many waste operators.
What is important is whether the Government just requires permitted sites to be in the hands of technically competent management or makes technically competent managers more accountable in law for their acts or omissions. It is perhaps a weakness of the current arrangements that some operators have been able to “buy in” individuals with the necessary certifi cate of technical competence (“CoTC”) to satisfy the technical competence requirement. However, these individuals may, in reality, exercise little or no control over site operations or spend much time on site, and if things go horribly wrong there is little comeback on them as individuals. If held more accountable in law, the technically
competent manager(s) would have a similar liability to the operating company and its directors, for ensuring the activities are carried out in accordance with the permit and any site management plans. Such a move would overnight make operators ensure they have adequate technically competent management fully engaged with the site operations and overcome any debate about how much time those managers need to be present at the facility.
Of course, operator competence isn’t just about technical competence. T ere are other key considerations the regulator can already take into account, which include an operator’s past record of compliance, but convictions become spent aſt er a year and so do not have to be declared when making future applications. Many may deliberately fl out the law without ever being prosecuted or subject to any other formal enforcement action. So, we need mechanisms that can punish rogue operators who abandon sites so that they cannot resurface again. Getting individual directors disqualifi ed from operating a company or stripping them of assets would help here.
Companies can all too easily go into liquidation and the permit be disclaimed by a liquidator thus removing the obligation from the operator leaving the cost of clean up to the public purse. Assessing an operator’s fi nancial competence over the life of a permit is more diffi cult. One of the main objectives of checking the fi nancial health of an operator is to protect the public purse from paying for the clear up costs aſt er an operator; abandons a site, or following a waste fi re or entering into liquidation. Adequate insurance will surely be held by any well-meaning operator to cover these eventualities, so would a requirement to maintain insurance throughout the lifetime of the permit help indicate honest intent? Some argue that relying on insurance is pointless because the operator can stop paying the premium at any point and the cover falls away immediately. However, there may be ways around that by directly linking the requirement for insurance to continuation of operations under the permit or conversely its discontinuation can lead to a suspension of a permit.
While some of these measures sound tough, in my view, providing they are enforced consistently and fairly, they can help protect the vast majority of waste operators and allow them to compete without looking over their shoulder!
Written by John Galvin MBE, MSc, FCIWM
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