Out-Law News 2 min. read
05 Aug 2013, 12:29 pm
Simon Colvin of Pinsent Masons, the law firm behind Out-Law.com, said that it was not enough for companies to rely on existing statutory guidance around the 'waste duty of care' imposed by the Environmental Protection Act. The Government has promised to consult on new guidance later this year as the available guidance, although "of some assistance", has now become outdated, Colvin said.
"Compliance with the duty has always been very subjective, but its importance should not be underestimated," Colvin said. "In a regulatory context, it is only if the company disposing of the waste complies with their duty of care, can they be said to have transferred the ownership of the waste, irrespective of whatever the contractual agreement might be between the parties."
Under section 33 of the Environmental Protection Act, it is an offence to deposit controlled waste in or on land without an environmental permit, or in breach of a permit. Section 34 of the same act imposes a "duty of care" on anyone "who imports, produces, carries, keeps, treats or disposes of controlled waste" to take "all such measures ... as are reasonable" to comply with this duty. Last year, the High Court ruled that a company operating out of particular premises could not necessarily pass the duty of care onto a third party. The decision, which has only recently been made public, focused on the responsibility of Mountpace, a property developer, for waste generated during the renovation of one of its properties. The company had subcontracted the project to a third party, which was itself found guilty of failing to comply with the duty.
"The question the court was asked to decide was whether the duty applied equally to Mountpace," Colvin, energy and environment law expert, said. "Mountpace argued that it was not caught by the duty which only applied as far as the contractor. The court disagreed. It considered that the duty applied to Mountpace because the property belonged to it, and therefore so did the waste."
"Those undertaking activities that generate waste materials need to think carefully about the contractual arrangements in place with those they are engaging to dispose of their waste. They also need to consider the extent to which they can effectively pass responsibility for compliance with the duty to a third party. The Mountpace case indicates you cannot pass the duty to a third party and that you must instead put in place the necessary procedures to ensure you undertake proper checks of those that you and your subcontractors are contracting with," he said.
The importance and scope of the duty of care has also been highlighted by another recent case. Late last month two executives of a waste disposal company, A1 Bins and Waste, were fined by Chelmsford Crown Court for their part in running an illegal waste disposal site in Essex. The two were ordered to pay £3,000 each, as well as compensation to affected landowners, for failing in their duty of care to prevent fly-tipping after their subcontractor pleaded guilty to dumping asbestos waste at an earlier court hearing. The company had advertised itself as a specialist asbestos waste transport and disposal company, and had created false invoices and consignment notes indicating that the waste had been properly disposed of.
"If those that were contracting with A1 had undertaken spot checks to ensure the materials were being properly disposed of they would have identified the illegal activity," Colvin said. "They did not and so they were unaware of the illegal dumping."
"The case is an indicator of the fraudulent activity that is becoming more commonplace in the waste sector. It is also indicative of the need for those disposing of waste through third party contractors to do more to check the credentials of those they are contracting with as well as the ultimate destination for their waste materials," he said.
