UROC THE SKIP
Exempt or Not Exempt – That is the Question?
A Crown Court Judge has recently dismissed charges brought by the Environment Agency (“EA”) against the directors of a company in liquidation arising out of alleged breaches of Regulation 12 the Environmental Permitting (England and Wales) Regulations (as amended) 2010 (“EPR”) – operating a regulated facility otherwise in accordance with a permit - on the basis the site was an
“Exempt Facility” and did not require a permit. Accordingly, there was no breach of Regulation 12 of EPR and in those circumstances, no liability arose in respect of the directors.
The company operated a facility for the storage and treatment of waste wood destined for energy plants in Europe. The company registered an exemption for the site. The exemption allowed up to 500 tonnes of waste wood to be stored and treated over a 7 day period. By virtue of Regulation 8 of EPR, the
operation was either a regulated facility or an exempt facility. A number of site visits were made
over a period of months by the EA who witnessed alleged breaches. The breaches were said to have involved storage of wood in excess of the quantity permitted under the exemption. The prosecution contended that if the terms of the exemption are breached, the exemption ceases to be of effect. The premises, absent exemption, are regulated premises. As such a permit
Editorial contributed by Samantha Riggs
counsel at 25 Bedford Row Chambers
is required. It did not have such a permit and consequently the directors committed an offence. On behalf of the directors its was
submitted that the exemption remained effective until deregistered by the EA and accordingly the directors could not be in breach of operating without a permit. There is a mechanism in the EPR for an exemption to be removed and in fact the EA was under a duty to deregister the exemption if the operator was operating otherwise in accordance with the terms of the exemption. The EA had not taken that course and therefore the exemption remained in place and on the register. No permit was needed and therefore there was no evidence the directors had operated a regulated facility without a permit. The facility remained exempt. Following legal argument, the judge
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accepted the defence submissions. In a judgment that could have far- reaching consequences for the manner in which the EA prosecutes cases these cases in the future, it was ruled that there was no evidence of an offence and the case must be dismissed. The court recognized the need for
legal certainty as to the state of the facility. The EA police the site. They give warnings. They take action and they have the eventual sanction of deregistration. This ruling has the potential to call
into question the validity of any convictions of other exempt operators who have been charged and convicted of operating a regulated facility without a permit under the EPR. Exempt or not exempt – that is the
question? Unless and until the exemption is
removed from the register, by virtue of Regulation 8 of the EPR, a waste operation remains exempt from the permitting regime and does not require a permit – that is the answer!
Issue 121 December 2015/January 2016 SHM 9
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