Law of the land

Scotland has tightened its waste laws and formed a team of specialist environmental prosecutors. Jamie Grant of MacRoberts Solicitors warns business to be aware of the risks

Polluters beware. They may have been lulled into thinking that they are unlikely to be brought to book by what has, admittedly, been a low level of environmental prosecutions in Scotland over the years, but that may be about to change. A team of specialist prosecutors has been drafted in to help the authorities get tough on those who break the law.

It has long been unfortunate that, in spite of the sheer scale and detail of legislation designed to protect the environment and the efforts of legitimate businesses to comply, the rate of prosecutions in Scotland has been relatively low, certainly in comparison with England. In 2002/3 there were just 31 prosecutions.
No more frustration for SEPA

This has clearly been frustrating for the Scottish Environmental Protection Agency, which unlike its English counterpart the Environment Agency, cannot itself prosecute “environmental crimes”. As with all criminal prosecutions in Scotland, the decision to take a case to court rests with the Crown Office and Procurator Fiscal Service (COPFS). There is no doubt that its resources to date have been such that it has tended to concentrate on mainstream, and more straightforward types of crime than on technically complex environmental cases. Much as SEPA would like to make high-profile examples of some offenders, a shortage of expert resources has often meant that even the cases that have made it to court have resulted in modest fines – or failure.

A turning point

So the news that COPFS has formed a network of specialist environmental prosecutors may well prove a turning point. These are existing procurators fiscal who have expressed a distinct interest in this area of the law and taken additional training in it. COPFS is divided into 11 areas of Scotland and specialist prosecutors in each one will provide expert information and back-up for local fiscals and liaise with SEPA and other bodies.

This enhancing of resources isn’t before time; as far as the Scottish Executive’s environmental legislation programme is concerned. In particular, come July its Landfill (Scotland) Regulations fully kick in after a long and concerted build-up.
In implementing the European Landfill Directive, these regulations have set tough new standards for the operation of landfill sites. Generally speaking each must now restrict itself to one of three types of waste – inert, non-inert or hazardous. All waste must be treated for contaminants before landfilling. And there are additional strict technical and other specifications and limitations for site owners.

A dramatic reduction in landfill sites

The upshot has been a dramatic reduction in the number of landfill sites in Scotland. Since mid-2002, when SEPA started work to implement the regulations, of 477 sites then operating, just over 200 have put in the necessary permit applications necessary to keep open, with only a handful expected to continue to accepting hazardous waste.

The Scottish Environmental Services Association has long warned of a hazardous waste crisis from July because of the lack of facilities to treat and handle hazardous waste. But there will also be an impact on industry, particularly those involved in brownfield developments.

Contractors used to offering developers a comparatively quick and inexpensive ‘dig and dump’ service fully expect the regeneration of brownfield land to become considerably more expensive as landfill capacity is lost and gate fees and haulage distances increase.

Substantial fines

With margins on building contracts already wafer thin, there must be an increased risk of contractors resorting to the use of unlicensed landfill sites operated without regard for the threat of substantial fines and up to five years’ in prison. Increased levels of fly tipping also remain a possibility.

Two things are for sure. Construction companies and developers working on brownfield sites are going to have to look closely at their costs and prepare for more stringent handling of waste, if they haven’t already. And the specialist prosecutors are not going to be short of work to do.

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