Environmental Weekly News Round Up – 9 February 2024
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. Also, in this occasion our Environmental Insight section addresses PFAS on development projects.
Biodiversity Net Gain comes into force from Monday 12 February. This will affect most planning applications so please be aware of the mandatory requirements. Please contact us if you want to know more.
NEWS ROUND UP
The EA’s new Economic Crime Unit
The Environment Agency (“EA”) is launching a new Economic Crime Unit that will work with partners across law enforcement to identify criminality and target threats.
The EA’s third national survey published in 2023 on the extent and nature of waste crime shows that almost one fifth of waste in England is handled illegally at some point in the waste stream. This is a serious issue as a fifth of waste amounts to 34 million tonnes across England annually.
Formed of highly skilled staff, such as accredited financial investigators and financial crime analysts, this unit will tackle serious financial offences in the waste sector. The unit will be comprised of two teams:
- Asset Denial Team
- Money Laundering Investigations Team
The Asset Denial Team will primarily focus on account freezing orders, cash seizures, pre-charge restraints and confiscations. The EA explained: “Where we suspect a bank account is being used for illegally made funds, we can freeze the money in it and the onus is on the account holder to prove the money is legitimate. If they are unable to do so the money will be forfeited”. The Money Laundering Investigations Team on the other hand, will conduct money laundering investigations targeting environmental offences. A conviction for money laundering offences can result in 14 years in prison.
EA Enforcement and Investigations Manager, Emma Viner, stated that: “Waste crime is financially motivated so we know investing our efforts in making sure it doesn’t pay will make it far less attractive to criminals.” This taskforce is a stepping stone for the Government aim of eliminating waste crime by 2043.
Jacob Hayler, executive director of the Environmental Services Association (“ESA”) also considers this is a positive step and stated that ESA members “very much welcome the EA’s new financial investigatory efforts, alongside tougher asset-denial measures to demonstrate that crime in our sector doesn’t pay.”
SEPA outlines plans to toughen up waste regulation.
The Scottish Environment Protection Agency have put forward major changes to the regulation of storing, transporting, disposal and dealing of waste. The changes have been outlined in the following consultation Environmental Authorisations (Scotland) Regulations 2018: Proposed types of authorisation for Waste, Water and Industrial activities which modernises Environmental regulation in Scotland aligned with the Integrated Authorisation Framework established by the Environmental Authorisations (Scotland) Regulations 2018 (EASR 2018).
The proposals on waste relate to all businesses in Scotland, not just those in the waste sector. In the consultation, SEPA acknowledges that waste permitting legislation has become unnecessarily complex for both the regulator and waste manager. Parts of the current system have not changed since 1994. Other changes since then have resulted in at least eight separate statutory instruments and their amendments. This has been made more complex since leaving the EU, the consultation states.
The issue with the current system is that it does not map the level of risk associated with an activity to the level of authorisation required, meaning that low risk activities can be over-regulated, whereas high risk activities are under-regulated. The current system is also not robust enough to prevent serious and organised crime becoming involved. For example, to register as a professional collector and transporter of waste is free and SEPA cannot refuse or revoke a carrier’s registration based on poor compliance histories, civil offences such as fly-tipping or links to serious or organised crime.
The proposal is for SEPA to replace this with serious authorisation processes for those who transport their own waste, and for those who transport waste produced by another person. This means that those transporting their own construction or demolition waste will no longer have to register as waste carries but will instead apply for authorisation (valid for 5 years).
Those offering waste management services such as commercial refuse collection will have to apply for registration (valid for three years).
Activities related to the recovery of waste for construction, restoration, reclamation, or improvement of land will also see changes according to the amount of waste being dealt with, and the scale of the project. For example, use of less than 250 tonnes of waste in a 12-month period in construction projects will require notification only, whilst projects involving more than 100,000 tonnes of waste will need a permit.
The consultation also outlines changes to regulation of discharges of water, such as those for discharging sewage. Under the new system, small amounts such as from fewer than ten homes would require notification only, while those from more than ten homes, or a combined sewage overflow, would require a permit.
SEPA plans to consult later this year on proposed changes to application and subsistence fees for environmental authorisations.
New collection on guidance and forms on Climate Change Levy
HMRC has published new website collecting all guidance and forms covering Climate Change Levy, which is the environmental tax charged on the energy that businesses use with the objective to encourage them to become more energy efficient in their operations.
The collection titled Climate Change Levy: detailed information includes all guidance published including registering, keeping records and reporting, rates, paying, and exemptions.
List of designated responsible bodies is published
The Department for Environment, Food & Rural Affairs has published a list of designated responsible bodies able to enter into conservation covenant agreements.
These are voluntary, private agreements to conserve the natural or heritage features of land, which are used for example to provide payments for ecosystem services and for biodiversity net gain. Only designated responsible bodies can create a conservation covenant with a landowner.
The list of designated responsible bodies is already online, but at the moment only Natural England is on that list.
New byelaw to protect valuable marine habitats and species in further 13 offshore marine protected areas
The Marine Management Organisation (“MMO”) has issued a byelaw protecting valuable marine habitats and species in a further 13 English offshore marine protected areas (“MPAs”).
From 17 January to 28 March 2023, the MMO held a formal consultation seeking views on the draft Marine Protected Areas Bottom Towed Fishing Gear Byelaw 2023, among other documents. Following the analysis of evidence and stakeholder views received, the MMO concluded that concluded that bottom towed fishing should be prohibited across the rocky and biogenic reef features of the 13 MPAs considered in Stage 2.
The byelaw prohibits the use of bottom towed fishing gear in the 13 MPAs and imposes an obligation for all vessels carrying that type of gear to keep it inboard, lashed and stowed. It also provides that the non-compliance with these prohibition and obligation constitutes an offence contrary to section 139 of the Marine and Coastal Access Act 2009.
In this byelaw, “bottom towed fishing gear” is means any trawls, seines, dredges, or similar gear, including trawls towed on or very close to the seabed, which are actively moved in the water by one or more fishing vessels or by any other mechanised system and in which any part of the gear is designed and rigged to operate on, and be in contact with, the seabed in order to take any sea fisheries resources.
Marine Minister, Lord Benyon considers that the introduction of this byelaw “is just one of many steps that we will take to ensure the right measures are in place to enhance our network of MPAs”.
The byelaw is available here and will come into force on 22 March 2024.
The figure below contains the list and location of the 13 MPAs that will be granted protection.
Source: Marine Management Organisation – Stage 2 Decision Document, September 2023
Seventeen landfills in England make toxic liquid 260 times higher than deemed safe to consume
Seventeen landfills across England are known to be producing a highly toxic liquid substance containing banned and potentially carcinogenic forever chemicals. However, the Government does not know where these landfills are.
From 2021 to 2022, consultants working for DEFRA and the EA were asked to take samples from a number of different operational and closed landfills that were developed between the 1960s and the present day. this was intended to provide an ‘overall picture’ of the chemical substances found in the landfills’ leachate. The results were published in an ENDS report investigation (available here).
In one landfill, the total sum of PFAS in the raw leachate sample was 105,910 nanograms a litre (ng/l). A further explanation on PFAS and the challenges that the development sector is facing can be found in our colleague Keith Davidson’s recent article.
Strictly, there are no restrictions on the total sum of PFAS allowed in drinking water, but the Drinking Water Inspectorate’s guidelines allow levels of PFOS and PFOA (two of the most widely used and studied types of PFAS) of up to 100ng/l. in one sample, PFOA was recorded as 260-times higher than the current guidance for safe levels in drinking water in England.
The data provided to ENDS, revealing the high levels of PFAS in the landfill leachate did not include location information, meaning it is not possible to assess their potential to contaminate drinking water sources. The EA and DEFRA both stated that they did not know the locations of these landfills because the contractors provided the Government with an anonymised dataset. They stated that the study was to “build an initial nationwide picture of substances in landfill leachate that are known to be or suspected to be harmful to the environment”. The EA’s spokesperson also stated that none of the landfills assessed “found this leachate being discharged directly into the environment.”
However, Dr Shabi, a scientific research assistant at Chem Trust stated that it is “extremely worrying that the EA claims not to know the locations of landfills where high levels of PFAS have been found in leachate”. She went on to say that residents have a right to know if their area is polluted with toxic chemicals.
Kate Spencer, a professor of environmental geochemistry at Queen Mary University has said that it is important to assess the risk of people coming into contact with these concentrations, but to do that the pathways must be identified. The EA said that most of the sites targeted by the survey were operational, with containment systems to prevent leachate escaping into the groundwater.
PFAS on development projects
PFAS are becoming a major matter of concern for developers, who are facing serious delays as they are being told to re-run site investigations to make sure to account PFAS. On top of that, the future of PFAS regulations is still uncertain.
Keith Davidson, partner in our Planning and Environmental Team, was recently interviewed by Tess Colley from The ENDS Report in relation to the challenges that the development sector is currently facing due to uncertainty over PFAS regulation. The full interview by ENDS is available here.
Keith has also recently published an article on PFAS article in the Estates Gazette, in which he discusses why despite sites with PFAS contamination having higher liability risks and costs, there is still hope for unlocking development on these sites.
Please contact Keith Davidson if you would like to discuss any PFAS concerns further.