WASTE MANAGEMENT IIWASTE REGULATION

OFFENCES AND DEFENCES: CRIMINAL DUTY OF CAREENVIRONMENTAL PROTECTION ACT (EPA) 1990 PART II

ENVIRONMENTAL PERMITTING REGULATIONS 2010

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Environmental Law

Waste management licence / environmental permit

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[Environmental Permitting (England and Wales)Regulations 2007]S35 (1) EPA 1990: A waste management licence/(now environmental permit) is a permit granted by a wasteregulation authority authorising the treatment,keeping or disposal of any specified description of controlled waste in or on land or the treatment or disposal of any specified description of controlled waste by means ofspecified mobile plant

Environmental Permit3

Required for waste disposal and recovery operations

Controlled waste and Directive waste are same (Waste EW Regs 2011)

Regulated by Environment AgencyExemptions from licensing/permitting regimeSites operating exempt activities required to

register with EA (otherwise = offence)Exempt activities (except household waste)

still subject to s33(1)(c) EPA 1990

Environmental Permit4

Environmental Permitting (England and Wales)Regulations 2007 (wef April 2008)created single set of controls iro waste management and pollution prevention and control

Impose duty on Environment Agency to ensure compliance with, inter alia, Waste Framework Directive

Holder of environmental permit must be the operator (legal person controlling the regulated facility)

Regulated facilities include sites licensed / permitted for disposal or recovery of waste (waste operations )

Environmental Permit5

Environmental permit, for exampleStandard: one condition relates to a fixed

set of non-site specific rules. Cover low to medium environmental risk activities, eg waste transfer stations and recycling operations

Environment Agency grants/refuses permit application. Duty to review.

Application for Env. Permit6

In writing (standard form) to local EA + feeWhere applicant fails to provide waste

regulation authority (EA) with any information required, the EA may refuse to proceed with the application

For environmental permit applications ; duty of Environment Agency to refuse environmental permit; and assessment of operator’s competence please refer to Environmental Permitting (E & W) Regulations 2010 [Environmental Permitting Lecture Slides]

Application: Env Permit7

Env.Permitting (EW) Regs 2010 require EA in its decision to grant/refuse permit application to have regard to whether requirements of any relevant EU Directive will be complied with

EA is under legal duty to refuse application if it considers operator will not be able to operate regulated facility in accordance with the permit [Discretion] May take into a/c management system; technical competence; previous convictions; finance

Competent Person8

EA has discretion in deciding to grant env.permit where operator is not a competent person

Please refer to Environmental Permitting (E & W) Regulations 2010 and Environmental Permitting Lecture Slides.

Duties of Environment Agency9

Refer to Environmental Permitting Regulations 2010 for:

Variation of Licences/PermitsLicence/Permit TransferRevocation and SuspensionSurrender of environmental permit needs agreement of

EAMaintain register of environmental permit informationRight of appeal to Secretary of State against EA

decisions

Duties of Environment Agency10

Duty to Monitor and Supervise Permitted Activities so as to ensure they do not pollute, cause harm to health or serious detriment to local amenities.

Powers of inspection and entry.To request information .Failure to

provide/provision of false information is offenceNotice to remove waste or specify steps to be

taken to mitigate effects of waste deposit.Environmental Permitting (E & W) Regulations

2010

Waste Offences11

S33(1) EPA 1990 Offence to:

(a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless an environmental permit authorising the deposit is in force and the deposit is in accordance with the permit;

[applies to all deposits, temporary or permanent – including disposal/recovery operations]

Waste Offences12

(b) treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of (i) in or on land, or (ii) by means of any mobile plant, except under and in accordance with an environmental permit; [disposal/recovery operations]

(c) treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health [applies irrespective of need to have a permit – useful in cases of fly-tipping]

Waste Offences13

Knowingly Causing and Knowingly PermittingStrict; requirement of knowledge ss33(1)(a) and (b)Shanks and McEwan v EA [1997]Knowledge of deposit = sufficient to ground liability.Unnecessary for prosecution to prove defendants knew the deposit breached condition of waste management licence.Act of Operating a Landfill Site deemed to beconstructive knowledge of controlled waste deposit(knowledge of each individual deposit not necessary)

Waste Offences14

S33(6) EPA1990: Offence committed byA person who contravenes subsection (1) or any conditionof an environmental permit

Cf R v Leighton and Town and Country Refuse Collections Ltd [1997]

S33(5) Controlled waste carried in and deposited from a motor vehicle (to address fly-tipping)Environment Agency v Melland [2002]

Household waste exemption from all offences applies

Waste Offences15

S33(1)(c) Treatment, keeping or disposal likely to cause environmental pollution (flora and fauna)or harm to human health (living organisms and ecological systems)

May be operating in accordance with environmental permit and still commit offence

Waste Offences16

Meaning of DepositThames Waste Management Ltd v Surrey CC

[1997]Condition of waste management licence (nowenvironmental permit) to cover the wasteWaste deposited and was uncovered. Argued failure to cover occurred after deposit. Court held deposit covered continuing activities specified inWm licence. Deposit ‘continued’ until covered over.

Defences17

No s33(1)(a) (b) offences if deposit, treatment, keeping or disposal of controlled (Directive)waste is in accordance with environmental permit

Environmental Permitting (EW) Regulations 2007 (now 2010) introduced changes to the defences previously available

No ‘due dilgence’ defence available under Environmental Permitting Regulations (as was the case under the previous waste management licensing system)

Defences18

Environmental Permitting (EW) Regulations, 2007 (now 2010) kept one single statutory defence = the ‘emergency defence’ Action taken in breach of regulations was taken in an emergency to avoid danger to human health Particulars of emergency action must be supplied to the EA as soon as reasonably practicable

The Statutory Duty of Care19

S34 EPA 1990 Duty: to ensure that all persons in the waste chain who produce, handle, treat or dispose of waste take reasonable steps to :

Store waste properly;Package waste adequately;Describe contents properly in interests of safetyHand waste only to an authorised personComplete waste transfer note recording

consignment details for next person in waste chain

Check waste is disposed of properly

Statutory Duty of Care20

S34(6) EPA 1990 Failure to observe duty of care = offence

Supplemented by Guidance issued by Secretary of State

Requirement to take all such measures applicable to him in that capacity as are reasonable in the circumstances (element of subjectivity)

Duty to prevent any other person committing offence under s33(1) EPA 1990 – responsibility continues along the waste chain