Environmental Law
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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
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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 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
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 Required for waste disposal and recovery operations
 Controlled waste and Directive waste are same
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(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
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 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
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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
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 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
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 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
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 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
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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
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 Duty to Monitor and Supervise Permitted Activities
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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
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 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
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 (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
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 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
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 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
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 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
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 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
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 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
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 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
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 S34 EPA 1990 Duty: to ensure that all persons in the
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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
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 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