seekingcounsel
I WAS lucky enough to attend the recent WASTE’17 conference at Old Traff ord, with my friend and colleague Dominic McNabb. There I was taken by surprise - or rather by ambush - by many of the questions I was asked by operators who were greatly concerned about waste management and duty of care.
No doubt the same line of questioning will be put to me at next year’s WASTE’18. Next time round I’ll be ready for the ambush!
Whilst I would like to say I have an answer for everything, I sadly appreciate this is not the case. This is a complex issue, which I will try and address in this month’s off ering.
Regarding waste management and waste operators, the duty of care is applicable to controlled waste and requires a waste operator to take all reasonable steps both to prevent harmful deposit, or the escape of waste.
In addition, waste operators are required to fully comply with permit requirements and in particular, provide an accurate description of waste when it is transferred to another person. In particular, always make sure your operation complies fully, and the code is fully covered.
I say this in particular because, as most operators will know, there is signifi cant impact upon their own OPRA scale (vis-à-vis permitting requirements) in the event a waste operator attempts to transfer waste under a wrong code. This defi nitely provides an avenue to prosecution.
It is worth operators reading the Environment Agency’s own code of practice about duty of care, which can be accessed from their website. It is worth examining in full, to see how the code impacts on your activities.
From the subjective position of any waste operator, the best methodology of actually ensuring compliance is to review an operators’ own EMS, so as to place a check on such things as classifi cation and containment of waste.
The diffi culty arises to operators when a third party is involved,
THE RIGHT SIDE OF THE LAW
Chain of instruction is one way of avoiding extra cost
Philip W. Jones is a member of New Bailey Chambers in Liverpool, and has been a practicing Counsel for many years. He was employed by the Environment Agency as a lawyer, and heads a practice on regulatory, environmental and planning issues.
such as another contractor engaged to say, transport waste. From my own experience this is the area where there is likely to be a breach, as an operator has less control.
Nevertheless, it is the case that responsibility for the management of waste lies with the operator, irrespective of any failure by the contractor to comply with regulations and guidance. In more cases than not, it is the operator who will carry the can.
What can an operator can do to avoid such diffi culties? First of all, make it clear (via a chain of instructions) that if any contractor or third party falls short, it’s the third party which will be responsible for any additional cost such as extra disposal costs.
Simplistically, make sure the third party has a valid registration, and has a valid permit in his own right. Hopefully the operator also complies with management systems.
Whilst this may be a simplistic approach, environment operators should be aware of the inherent hazards of failing to comply with codes and stipulations. If they do, they are extremely likely to face prosecution.
Enforcement Undertaking: an option to prevent court
ONE of the seminars at the RWM exhibition on 12th September which should be of interest to me is “Rethinking waste crime; innovative approaches to tackling the threat.”
As I previously explained in earlier articles, there are a number of possible outcomes to any EA investigation, and these are all client orientated.
By this I mean the actions, and the subsequent conduct/reaction of a company or individual, is important in gaining a positive outcome - whether that be advancing a defence, or admitting and mitigating an off ence.
However, it is important to look at surrounding circumstances, and understand what areas of the industry are being targeted (as the EA’s own fi gures suggest waste crime is costing the industry £604 million a year).
I would hope to hear from the EA on their approach to off ending and prosecuting, as they have a number of possible responses
22 SHM September, 2017
Dominic McNabb is an experienced solicitor in private practice with MJP solicitors. He has over 20 years’ experience defending individuals and companies, in both criminal and regulatory matters. YOU CAN CALL HIM DIRECTLY VIA: 0773 3264226 OR EMAIL HIM: skiphireanswers@
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