Spring / Summer 2011 Legal Update; John Mitchell, Blake Lapthorn


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  • Regulations abolished: The Duty of Care regulations The Waste Management (Licensing) Regulations Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations SIC = Standard Industry Classification codes
  • Annex XV dossier – substances of very high concern
  • Composting prosecution brought by EA Renderer prosecuted by a local authority – one of the highest fines for an odour offence and also one of the highest fines on a local authority prosecution. The PPC permit is now an environmental permit.
  • Announcement 6 April 2011
  • Be relevant (i.e. to the environmental impacts of the product) Reflect a genuine environmental benefit (i.e. not repeat something which is required anyway by law) Be capable of being substantiated: By reference to current accepted standards By reference to publicly available information If appropriate, by independent experts The UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing (CAP code) and Code of Broadcast Advertising (BCAP). Rely on this guidance at your peril!
  • The government has announced a review of the civil sanctions regime, the new suite of powers to enforce the law without going to the courts. As a result, the Environment Agency will not be able to use these powers for offences under the environmental permitting regulations from 6 April, as had been planned. Secondary legislation enabling this was due to be laid before parliament and the National Assembly for Wales this month. “ Ministers have indicated that they now want to agree a cross government position on civil sanctions for England more generally before measures in specific sets of regulations are taken forward,” said an environment department (DEFRA) statement to stakeholders. A departmental press officer confirmed that Natural England’s planned consultation on its sanctions policy has been delayed. Sources close to the discussions suggested the move was driven by Oliver Letwin, Cabinet Office minister for government policy. As part of his drive for regulatory simplification and cutting burdens on business, he is apparently unconvinced about the need for the complex regime. But this is “the result of a misunderstanding", suggested one source in industry. Powers to issue civil sanctions will be stripped from regulators and handed to the courts, the cabinet office minister for government policy, Oliver Letwin, told ENDS. The move would radically alter the nascent civil sanctions regime.. Mr Letwin said regulators imposing sanctions directly without recourse to the courts was “intolerable”. Forcing firms who wish to appeal to face “the full weight of the Treasury solicitors” was an unacceptable prospect, he argued. But this would appear to be a misunderstanding; the central government legal service - the Treasury Solicitors - does not act on behalf of regulators, who have their own lawyers. Mr Letwin added that bypassing the judicial process would lead to “sloppy regulation”. Sanctions would be based on flimsy evidence if the current approach continues, he believes.
  • Spring / Summer 2011 Legal Update; John Mitchell, Blake Lapthorn

    1. 1. Legal Update – Spring/Summer 2011 John Mitchell Head of Environment
    2. 2. Waste (England and Wales) Regulations 2011 <ul><li>Abolish some well-known regulations </li></ul><ul><li>Introduce: </li></ul><ul><ul><li>Use of the Waste Management Hierarchy </li></ul></ul><ul><ul><li>Two-tiered system of carriers </li></ul></ul><ul><ul><li>Compulsory registration for lower tier (own business carriers) from end of 2013 </li></ul></ul><ul><ul><li>Changes to waste transfer notes from 28 September 2011: </li></ul></ul><ul><ul><ul><li>Declaration of use of waste management hierarchy </li></ul></ul></ul><ul><ul><ul><li>Use of 2007 SIC Codes </li></ul></ul></ul><ul><ul><li>Various other minor amendments </li></ul></ul>
    3. 3. Summaries of responses to consultations <ul><li>Disposal and treatment of contaminated dredged material in ports and marinas – DEFRA </li></ul><ul><ul><li>http://archive.defra.gov.uk/corporate/consult/ports-marinas/summary-responses.pdf </li></ul></ul><ul><li>Guidance for spreading waste on land - Environment Agency </li></ul><ul><ul><li>https://consult.environment-agency.gov.uk/file/1706852 </li></ul></ul><ul><li>Making monopoly water companies more accountable – OFWAT </li></ul><ul><ul><li>http://www.ofwat.gov.uk/future/accountability/compliance/res_stk_110310regcompliance.pdf </li></ul></ul>
    4. 4. REACH <ul><li>6 substances have been added to Annex XIV of REACH: </li></ul><ul><ul><li>Authorisation will be required for their continued use after their “sunset dates” </li></ul></ul><ul><li>The ECHA is consulting on 7 further substances for potential inclusion in Annex XIV </li></ul>
    5. 5. Action against smell <ul><li>Composting site operator fined £20,000 plus £13,000 costs for 282 complaints relating to: </li></ul><ul><ul><li>a strong diarrhoea foul rotting smell </li></ul></ul><ul><ul><li>strong smell of vomit </li></ul></ul><ul><ul><li>odorous dark brown liquid, smelling like dog excrement </li></ul></ul><ul><li>Renderer fined £75,000 plus £75,000 costs for breaches of its PPC permit </li></ul><ul><ul><li>“ a vile stench” and </li></ul></ul><ul><ul><li>“ a repugnant, distasteful, rancid odour… of rotten flesh” </li></ul></ul>
    6. 6. Aarhus convention - UK in the dock <ul><li>European Commission to take UK government to court over failure to comply with Aarhus Convention </li></ul><ul><li>Stated grounds: </li></ul><ul><ul><li>Lack of clarity over criteria for application of “protective costs orders” </li></ul></ul><ul><ul><li>Effect of “cross undertakings in damages” </li></ul></ul><ul><ul><li>Delay by the government in implementing proposed new legislation </li></ul></ul><ul><ul><li>€ 11m fine plus daily fine for as long as the infringement continues </li></ul></ul>
    7. 7. ASA action on photomontages <ul><li>Save Berkeley Vale </li></ul><ul><ul><li>Wind turbines </li></ul></ul><ul><li>Peel Environmental </li></ul><ul><ul><li>The chimney of an energy recovery facility </li></ul></ul><ul><li>SITA UK Ltd </li></ul><ul><ul><li>The buildings of an “eco-park” (aka multiple waste management facility) </li></ul></ul>
    8. 8. Greenwash <ul><li>DEFRA’s Green Claims Code has been finalised </li></ul><ul><li>Claims must: </li></ul><ul><ul><li>Be relevant </li></ul></ul><ul><ul><li>Reflect a genuine environmental benefit </li></ul></ul><ul><ul><li>Be clearly and accurately presented </li></ul></ul><ul><ul><li>Be capable of being substantiated </li></ul></ul><ul><li>Aims to provide “helpful interpretative guidance” on how CAP and BCAP can be applied… </li></ul>
    9. 9. Hogwash <ul><li>February 2011 – government announces review of civil sanctions regime </li></ul><ul><li>Extension of civil sanctions to the environmental permitting regime is delayed </li></ul><ul><li>April 2011 – Olive Letwin announces radical reform of the civil sanctions regime </li></ul><ul><li>Powers to be handed back to courts </li></ul>