DOMINIC McNABB, Environmental Regulator
Dominic is an experienced solicitor in private practice with MJP solicitors. He has more than 20 years of experience defending both individuals and companies, in both criminal and regulatory legal-related matters.
07733 264226 |
dominic.mcnabb@
mjpsolicitors.co.uk LAW
Why create a record system?
MY last article on landfill disposals and the potential joint approach now being adopted by both Inland Revenue (IR) and Environment Agency (EA) investigators prompted a number of enquiries, so it is clearly of concern to the industry.
My approach, as ever, has been to suggest a robust system to record and, if necessary, appeal any decisions made by EA staff with a view to getting some legal input at the earliest opportunity.
It excites me to become involved as a lawyer at
this early stage, offering assistance to the client and the environment experts before matters become litigated.
I have seen too many examples of businesses waiting to see what the regulator will do and believing this is co-operative when quite often a legal
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challenge can reinforce the system that the operator has already in place and make the regulator or local inspector think again.
That said, I was recently researching the approach to the potential disposal of certain types of material (gravel, clay, etc) with a view to approaching the EA to seek advice and guidance.
The issue should be of concern to everyone involved in the removal and subsequent reuse of such waste. While there has been some useful and apparently industry-friendly advice on offer in the past, the position is still unclear despite several authorities which have challenged the EA regime. The problem is complicated as each case turns on its own facts but, as a general rule, a system which considers the composition of the material and the purpose of the deposit should have the potential for a lucrative operation - with the EA being informed and asked to consider any available information, of course.
It excites me to become involved as a lawyer at this early stage, offering assistance to the client and the environment experts before matters become litigated. At that point, the regulator regularly becomes fixated on Waste Transfer Notes and duty of care
rather than the over-riding concern of not creating a landfill situation. Material ceases to be officially considered waste if it has been subject to acceptable recovery or disposal methods fitting with the European Waste Framework Directive and recycling for a greener environment.
Involving relevant experts in the early stages of creating your system and seeking to establish a dialogue with the authorities is always a sensible approach but have operators considered the use of a materials management plan in these areas and been rebuffed?
The authorities have always declined to determine the definition of waste and the meaning of discards but having a sensible plan in place which has been agreed beforehand (or as the work carries on) has a number of advantages providing certainty and accountability to the operator and to the EA.
However, a word of caution: any intention of immediate reuse does not provide an automatic defence to a charge brought under s33 of the Environmental Protection Act 1990.
The point here is to be pro-active and involve experts at the early stages to help guide the process.
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