The implications for waste disposal companies that do not comply to regulatory responsibilities

David Edwards, director and head of Harrison Drury’s regulatory team, considers recent case decisions against waste disposal companies and outlines the responsibilities to businesses and implications for non-compliance with the waste disposal framework.

Whilst many local businesses have struggled during 2020 due to the impact of the pandemic, it remains vital that directors and shareholders of waste disposal businesses keep on top of their regulatory responsibilities, particularly in terms of their environmental permits, to prevent risking adverse attention from The Environment Agency.

Following on from the recent case of R (The Environment Agency) v Dean Andrew Ryder, Andrew Lawrence Green [2020] EWCA Crim 110, it is clear that unlawful waste disposal is being put firmly in the spotlight. The courts follow a strict regime with severe punishments for businesses that fail to adhere to the waste disposal framework.

In base terms, poor waste disposal gives rise to environmental offences and can stem from various acts which may be consciously or unconsciously carried out. This can include a failure to recognise new regulations, a failure to check adequate equipment is in place, miscommunication issues between teams or a complete disregard for environmental laws.

As a result, it is fundamental that waste disposal companies keep up to date on the legal framework and seek further legal advice where necessary.

In the first instance, it is vitally important to consider what amounts to ‘waste’ under the relevant regulations.

What does the Waste Disposal Framework comprise?

The UK waste disposal framework is constructed through various pieces of legislation but the key pieces which impose a Duty of Care on businesses includes the following:

• The Environmental Protection Act 1990
• The Waste (Household Waste) Duty of Care (England & Wales) Regulations 2005
• The Waste (Household Waste Duty of Care) (Wales) Regulations 2006
• The Clean Neighbourhoods and Environment Act 2005
• The Waste (England and Wales) Regulations 2011

What happens if the Environment Agency believes my company is not compliant?

Not only are severe financial penalties on the line but criminal proceedings as well – as the following cases demonstrate – so it is important that the legal framework is properly considered by any business which deals with the disposal of commercial waste.

It is essential to point out that companies and/or their directors (and other senior personnel within the company) can be investigated and prosecuted. This is particularly likely in the situation of owner managed SMEs.

This relates to circumstances where the corporate offences have been caused by the consent, connivance or neglect of directors and senior officers.

There have also been instances where the light has shone on non-executive directors, at least, through Interview Under Caution.

Given half the chance, the Environment Agency will actively go after directors.

The risk of prosecution and criminal conviction is clear with the financial and regulatory impact of that, not forgetting other regulatory implications, including the disqualification of directors in the event of a criminal conviction.

If you have been contacted by the Environment Agency (for example, by way of an Abatement Notice) we recommend you seek legal advice as soon as possible.

If the matter progresses to court by way of prosecution, and convictions follow, they will move on to consider sentence.

The correct sentencing mind of a court recognises the overall aim of punishing an offender, providing a deterrent to re-offending and removing financial gain. The Sentencing Council regularly provides guidance to any sentencing organisation.

As a result, cases of this nature are likely to have severe consequences should a successful prosecution be brought by the Environment Agency or, in some cases, by the Local Authority.

What are the recent case decisions?

I have drawn on two key cases relevant to this matter. They summarise the seriousness of this issue and highlight the severe implications that poor waste disposal practice may incur:

1. R (The Environment Agency) v Dean Andrew Ryder, Andrew Lawrence Green [2020] EWCA Crim 110

As mentioned above, this case highlights the importance of complying with an enforcement notice issued by the Environmental Agency and ensuring that an environmental permit is in place before obtaining and disposing of waste.

The managing directors of the site, Ryder and Green, were sentenced to 12 months’ imprisonment, and confiscation orders of £138,002 and £121,422.72 were made against them for continuing to act as a facility after the environmental permit had been revoked.

2. Skippy Industries Limited

Further to the above, on 29 September, 2020, the director of Skippy Industries Limited, received a criminal conviction for operating an illegal waste disposal site and was ordered to pay £22,000 for operating the site for over a year, despite repeated warnings from the Environment Agency.

Seeking legal advice early

If you or your company receive a notice from the Environment Agency, it is fundamental that it is not simply ignored. Legal advice should always be sought at this point to review your position and liaise with the Environment Agency.

Earliest advice is always best, even prior to any attention from the Environment Agency, particularly as the business risk may become personal risk for directors.

If you have any queries regarding your duty of care towards waste management, or you have been contacted by the Environment Agency in relation to the waste disposal framework, please do not hesitate to contact Harrison Drury’s regulatory team on 01772 258 321.