WASTE MANAGEMENT II WASTE REGULATION OFFENCES AND DEFENCES: CRIMINAL DUTY OF CARE ENVIRONMENTAL PROTECTION ACT (EPA) 1990 PART II ENVIRONMENTAL PERMITTING REGULATIONS Environmental Law

Waste management licence / environmental permit 2 [Environmental Permitting (England and Wales) Regulations 2007] S35 (1) EPA 1990: A waste management licence/(now environmental permit) is a permit granted by a waste regulation 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 of specified mobile plant

Environmental Permit 3 Required for waste disposal and recovery operations Controlled waste and Directive waste are same (Waste EW Regs 2011) Regulated by Environment Agency Exemptions from licensing/permitting regime Sites operating exempt activities required to register with EA (otherwise = offence) Exempt activities (except household waste) still subject to s33(1)(c) EPA 1990

Environmental Permit 4 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 Permit 5 Environmental permit, for example Standard: 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. Permit 6 In writing (standard form) to local EA + fee Where 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 Permit 7 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 Person 8 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 Agency 9 Refer to Environmental Permitting Regulations 2010 for: Variation of Licences/Permits Licence/Permit Transfer Revocation and Suspension Surrender of environmental permit needs agreement of EA Maintain register of environmental permit information Right of appeal to Secretary of State against EA decisions

Duties of Environment Agency 10 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 offence Notice to remove waste or specify steps to be taken to mitigate effects of waste deposit. Environmental Permitting (E & W) Regulations 2010

Waste Offences 11 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 Offences 12 (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 Offences 13 Knowingly Causing and Knowingly Permitting Strict; 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 be constructive knowledge of controlled waste deposit (knowledge of each individual deposit not necessary)

Waste Offences 14 S33(6) EPA1990: Offence committed by A person who contravenes subsection (1) or any condition of 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 Offences 15 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 Offences 16 Meaning of Deposit Thames Waste Management Ltd v Surrey CC [1997] Condition of waste management licence (now environmental permit) to cover the waste Waste deposited and was uncovered. Argued failure to cover occurred after deposit. Court held deposit covered continuing activities specified in Wm licence. Deposit ‘continued’ until covered over.

Defences 17 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)

Defences 18 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 Care 19 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 safety Hand waste only to an authorised person Complete waste transfer note recording consignment details for next person in waste chain Check waste is disposed of properly

Statutory Duty of Care 20 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