Waste duty of care prosecutions
Every business has a duty of care to ensure that their waste is being managed and disposed of lawfully. However, despite numerous successful convictions of those who are doing the unlawful disposal, prosecutions against those who provided that waste in the first place are relatively rare. The recent conviction of Sunderland business Thompson Waste Ltd serves as a reminder that the duty exists and that failure to comply can have serious consequences.
The case: Thompson Waste
The duty of care is contained in section 34 of the Environmental Protection Act 1990 and applies to anyone who produces, imports, stores, transports or disposes of waste. In the Thompson Waste case, an investigation by the Environment Agency between September 2015 and January 2016 revealed that 585 tonnes of waste originating from the firm had been illegally dumped in a disused factory warehouse in Pallion. The EA’s case was that the company had paid a local man below market rates to remove this waste from their site and that the ‘too good to be true’ rates should have put the company on alert.
Sentencing
At the sentencing hearing on 25 September 2017 the company was fined £3,335 and ordered to pay compensation of £5,394 and costs of £6,000. Sunderland Magistrate’s Court found that the company had acted recklessly in failing to adequately check where the waste was going. Further, the paperwork completed did not include required details such as an accurate description of the waste or its origins. It is understood that the fine may be subject to appeal.
Prosecutions of those who carried out the unlawful disposal are still pending. It is worth noting that the landlord on whose land the waste was dumped ended up with disposal costs of over £100,000. This is now a very familiar story and we have acted for numerous landlords who have been victims of unlawful waste operators and have been left bearing clean-up costs (some of which ran into millions of pounds).
The lesson for all businesses
In this case, the defendant was itself in the waste industry (and the fact it should know the regulatory regime might have been an aggravating factor in the decision to prosecute) but the principle applies to all businesses: make sure you do your due diligence, and if one pricing proposal is significantly better than the market price, make sure it’s a genuine bargain and not one that will leave you counting the cost later.
How can Burges Salmon help?
Burges Salmon’s market-leading environment practice has significant experience on all aspects of waste management compliance including EA investigations, corporate defence and claims for costs recovery from clean-up. For more details, please contact Michael Barlow or your usual Burges Salmon contact.