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Environmental Law. Waste Management II Waste Regulation Offences and Defences: Criminal Duty of Care Environmental Protection Act (EPA) 1990 Part II Environmental permitting Regulations 2010. Waste management licence / environmental permit. [Environmental Permitting (England and Wales)

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Environmental law

Environmental Law

Waste Management II

Waste Regulation

Offences and Defences: Criminal Duty of Care

Environmental Protection Act (EPA) 1990 Part II

Environmental permitting Regulations 2010


Waste management licence environmental permit
Waste management licence / environmental permit

[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
Environmental Permit

  • 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 permit1
Environmental Permit

  • 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 permit2
Environmental Permit

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
Application for Env. Permit

  • 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
Application: Env Permit

  • 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
Competent Person

  • 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
Duties of Environment Agency

Refer to Environmental Permitting Regulations 2010 for:

  • Variation of Licences/Permits

  • Licence/Permit Transfer

  • Revocation and Suspension

  • Surrender of environmental permitneeds agreement of EA

  • Maintain register of environmental permit information

  • Right of appeal to Secretary of State against EA decisions


Duties of environment agency1
Duties of Environment Agency

  • 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
Waste Offences

  • 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 offences1
Waste Offences

  • (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 offences2
Waste Offences

  • 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 offences3
Waste Offences

  • 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 offences4
Waste Offences

  • 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 offences5
Waste Offences

  • 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
Defences

  • 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)


Defences1
Defences

  • 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
The Statutory Duty of Care

  • 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
Statutory Duty of Care

  • 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


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