An opinion piece by John Crawford, Life Member CIWM
Although our numbers dwindle year on year, there are still a few Members of the Royal Environmental Health Institute of Scotland who will recall the position we took in 1992 when it emerged that the Westminster Government intended to set up a new Scotland-wide organisation to (arguably) better protect the environment.
It was asserted that the current arrangements for this essential task were too fragmented, and levels of enforcement varied widely across Scotland
The control of water quality in our rivers and watercourses was the responsibility of nine River Purification Boards (RPBs) whose jurisdiction extended over the rivers and tributaries under their control. The Board Members were nominated by the Secretary of State for Scotland and these had a healthy balance of representation from both public and private sector interests. The RPBs also had a statutory input to the licensing and regulation of waste treatment and disposal facilities (especially landfills) as well as the collection, treatment and disposal of Special Waste.
The 53 District Councils and the 3 Islands Councils had the responsibility for Licensing and Regulating all waste transfer, treatment, and disposal facilities (including sites that they themselves operated) as well as the collection, treatment and disposal of Special Waste.
They also had extensive powers for controlling environmental pollution.
On top of this we had the Hazardous Waste Inspectorate (HWI) based in Edinburgh, charged with the responsibility for assessing performance standards at the Councils’ waste treatment and disposal facilities, and Her Majesty’s Inspectorate of Pollution (HMIP) whose remit included specified industrial plants and processes.
The argument for replacing the existing arrangements was:
There was very limited liaison between the RPB staff and those of the District and Island Councils;
There was evidence that in some District Councils, the level of regulation carried out on private sector waste disposal sites was more onerous than that for the Council’s own sites (an example being that one Council Enforcement Officer, well-known for being a stickler to the legislation, wasn’t allowed near any of the sites operated by his Council);
some private sector waste disposal operators complained that a standard that might be deemed acceptable in the area of one District Council wasn’t in another’s.
It was thought that by setting up a Scotland-wide organisation (and an equivalent one was proposed for England) that would emulate the USA’s Environmental Protection Agency (EPA), these issues would be fully addressed and higher, more consistent standards of enforcement would ensue. The intention would be to transfer those District Council staff (mostly EHOs) currently allocated to pollution control duties to the new organisation, that would also take over the staff and duties of the existing RPBs as well as HWI and HMIP.
The REHIS response was:
There already was enough liaison between the Councils’ and the RPB’s staff. The existing arrangements had worked well for years in terms of the licensing and regulation of waste transfer, treatment and disposal facilities. RPB regulatory staff had appropriate powers of entry and there was plenty of evidence that if a river or stream had become polluted due to some shortcoming on the part of a waste disposal site operator, the Board had been able to take immediate action (including successful prosecutions) without having to consult with the appropriate Council staff;
it was conceded that there were one or two Councils whose enforcement staff weren’t as rigid when dealing with a Council operated site than when on one operated by a private contractor. However, the Hazardous Waste Inspectorate had been set up specifically to address this issue and also that of some Councils interpreting the legislation differently to others, he proposed new organisation would be totally different to the EPA in the USA that operated across State Borders and had different objectives and responsibilities.
REHIS also argued that:
The RPB staff had an excellent working relationship with all the local angling clubs who were quick to report pollution incidents and fish kills in watercourses. Over time this relationship might be diluted, many of the Councils’ regulatory staff had come through the ranks and had practical experience of operating in-house waste treatment and disposal sites. Over time as these Officers retired or moved on, that expertise would be diluted or lost.
There was also another dimension that wasn’t so easy to set out on paper: traditionally the Environmental Health Service had been the place of ‘last resort’, where Councillors would turn to when other Departments had been unable to deal with their problems. I’d first seen it as a Trainee at the Burgh of Saltcoats when a local worthy dumped a 40 foot boat hulk on Council-owned land, bragging that as a ratepayer, there were no laws to stop him doing so. My Boss, the late William Tulloch, Burgh Surveyor trawled through the legislation then instructed me to stick a seven day Notice to the trailer on which the hulk was placed, advising that (in terms of the Civic Amenities Act 1967) we intended to remove it for disposal. The culprit laughed at me when I stuck the notice on his trailer, little knowing that the Act included ‘trailers’ in the definition of ‘vehicles.’ He wasn’t laughing a week later when we brought in a crane and a low-loader and removed it (in fact he was arrested on the spot and spent the night in jail). Decades later, we were faced with a daily problem of a man who at 4.00pm, brought large bags of bird food up to the sheltered housing complex where his Mother lived. Hundreds of gulls and pigeons gathered awaiting his arrival, covering cars, paths and washing with their droppings and causing extensive nuisance to her neighbours. Being a classic barrack room lawyer he’d enjoyed telling our EHOs there was no legislation to stop his behaviour. When I discovered he was a Private Hire Driver (and fortuitously I was also in charge of Civic Government Licensing at the time) I told him if he didn’t stop immediately, I’d haul him up before the Committee and recommend that as I thought he wasn’t a ‘fit and proper person’ they should withdraw his licence. After some blustering, he agreed to stop feeding the birds.
Despite our concerns, SEPA went ahead anyway in 1996. It was originally set up as several separate ‘Areas’, each with its own Director. In the early days, we EHOs expected them to assume prime responsibility for enforcing the Duty of Care but were immediately told in no uncertain terms that their interpretation of the legislation was that a number of participants were responsible including waste producers, carriers and disposers. This decision would prove crucial in the following decades when fly-tipping incidents were on the increase. There were also stories that if confronted by a new situation that required interpretation of the legislation, whatever decision was made was in one SEPA area was then adopted as SEPA policy for all their Areas (at least it was consistent!) SEPA had another immediate problem (nothing to do with REHIS) as it hadn’t dawned on anybody that as a Scotland-wide Agency, it would now be subject to VAT, so their new budget had to take a 15% hit (the VAT rate in those days) right away.
Within a year or two, SEPA was reorganised, the posts of Area Directors removed and it has since operated as a Scotland-wide Agency.
By the early 2000s SEPA was also handed the role to develop a National Waste Strategy, a decision that some of us felt rather odd, given that any new Waste Treatment and Disposal proposals would be subject to their Statutory Consultation, suggesting the potential for conflicts of interests in the future.
And today after nearly three decades, many of the EHOs who transferred to SEPA have now retired so there’s far less of the informal liaison between its staff and our colleagues who work for the Councils. There are anecdotal stories of landfill site visits by SEPA staff on days where the weather is so inclement, it’s an achievement to get the waste into the cells and covered, but the operator has been given warnings that the amount of windblown material is ‘unacceptable.’ One former colleague recalls being given a formal Notice that he remove all the windblown waste from a copse of (35 feet high) trees on the edge of his site within a fortnight. Clearly, many of the reservations REHIS expressed all that time ago have come to fruition.
Fly-tipping has now increased beyond all expectations and recent estimates suggest that 20% of our waste is now handled by criminal elements. Part of the problem has been attributed to the level of Landfill Tax, an instrument that makes it financially feasible to recycle household, but also creates a lucrative market for the crooks. Things are now so bad that HMRC now has powers to levy landfill tax on unlicensed sites that begs the questions: if HMRC knows where these sites are, shouldn’t SEPA and the EA know as well? So why aren’t they prosecuting the operators? And who will decide just how much the operators have to pay for the (tonnage-based) landfill tax?
It’s easy for me and my cohort to stand back and say ‘it would never have happened in our day’ but the facts are that in the days of the District Councils, members of the public would have usually alerted us to unlicensed sites very quickly (the number of skip luggers and trucks using them being a wee clue) and we’d have been right on top of it. We’d be far more attentive to the activities of those locals who are Registered Waste Carriers (Registration can now be obtained on-line in a very short time) and have had staff out regularly visiting shops and asking to see copies of their Waste Transfer Notes. We’d also have been right on to CoSLA’s Environmental Health Committee, advising them to make representations to the Scottish Government when we felt improvements to the Regulatory Regime were needed.
In short, I don’t think SEPA has lived up to the promises made on its behalf all those years ago and some thought needs to be given to re-establishing the RPB format with some of their staff being allocated to them, and transferring of the rest to the 32 Unitary Councils. A small rump could be left to monitor standards of enforcement to ensure uniformity.
The present arrangement isn’t working.
Written by John Crawford, CIWM Life Member.
(*John Crawford edited the REHIS Quarterly Journal (1985-1991); was their REHIS (1989-91) and their President (1991-92). The views expressed here are his alone).