A recent prosecution by the Environment Agency, where a company was ordered to pay £327,000, has highlighted potentially difficult issues for businesses in complying with the statutory waste duty of care.

What is the Statutory Waste Duty of Care?

All businesses generate waste of some description: from paper and kitchen waste in offices, to hazardous waste in manufacturing facilities. Section 34 of the Environmental Protection Act 1990 provides, amongst other things, that it is the duty of any business that produces, carries, or disposes of waste to take all steps that are reasonable in the circumstances:

  • to prevent any other person from unlawfully depositing waste or treating, keeping or disposing of waste in a manner likely to cause pollution of the environment or harm to human health;
  • to prevent any other person from operating a waste facility without, or in breach of, an environmental permit (or, where an exemption applies, otherwise than in accordance with that exemption);
  • to prevent the escape of the waste from its control or the control of any other person; and
  • on the transfer of waste, to ensure that the person who takes the waste has the proper authorisation to do so, and that the waste is accompanied by a written description to help properly identify it.

    • It is an offence not to comply with this duty of care for which the maximum penalty is an unlimited fine. Although prosecutions for breach of the duty of care have declined from around 90 per annum in 2000, to around 10 per annum now, average fines have substantially increased in the intervening period.

    Yesterday, Susan Bodine, EPA’s Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA), issued final guidance for EPA regions regarding interactions between the Agency and the states in civil enforcement and compliance assurance matters.  Under the new guidance, EPA will generally defer to a state as having primary jurisdiction over inspections and enforcement, but it also sets out a number of important exceptions where EPA may take direct action.  The final guidance replaces previous interim guidance issued in January 2018.

    The guidance is split into three parts and expands upon the interim guidance by providing additional procedures and outlining various principles and approaches for coordination between EPA regions and states.  The changes are the result of input from EPA regional offices, states, and a workgroup on compliance assurance that EPA and the Environmental Council of States convened in September of 2017.

    Hunton Andrews Kurth’s environmental practice launches its video series, Inside Look, focusing on recent events and trends impacting regulated industries through discussions with our top attorneys and thought leaders.  Our inaugural video focuses on recent changes in the composition of the US Supreme Court and the potential impact on industry.  Partners F. William Brownell and Elbert Lin discuss the effect of the appointments of Justices Neil Gorsuch and Brett Kavanaugh on administrative law, voting patterns at the Court and the importance of originalism-type arguments in constitutional cases.…

    On June 12, 2019, the US Environmental Protection Agency (US EPA) announced its seven enforcement and compliance assurance priority areas for fiscal years 2020-2023. One of the National Compliance Initiatives includes “Stopping Aftermarket Defeat Devices for Vehicles and Engines.” Specifically, the Agency expressed that it will have a focus on reducing aftermarket defeat device manufacture,…

    The 9th Circuit Court of Appeals decision in Center for Biological Diversity v US Forest Service, 2019 WL 2293425 (May 30, 2019) raises important questions about the extent to which someone might be held liable for failing to prevent someone else from causing environmental harm. The Center for Biological Diversity alleged that the Forest…

    Businessman in energy efficiency concept.

    As investors become more interested in incorporating sustainability into investment portfolios, many project proponents find that incorporating ESG into infrastructure planning provides a “leg up” in securing investors and financing. An ESG disclosure, or an “environment,” “social,” and “governance” framework designed to disclose risk, makes it easier for investors to match projects with their own sustainability goals.

    Asbestos is in the hot seat these days and is receiving significant attention from both US EPA and Congress.  In particular, US EPA continues to evaluate asbestos risks under the Toxic Substances Control Act (TSCA) and has imposed additional regulations, while Congress is currently considering an outright ban on the substance.

    On April 25, 2019, US EPA issued a final Significant New Use Rule (SNUR) under Section 5 of TSCA to prevent certain discontinued uses of asbestos from re-entering the marketplace without a review by EPA.  The rule essentially restricts manufacturing, importing or processing of asbestos for certain target uses that are neither ongoing, nor already prohibited under TSCA.

    I am starting to prepare course materials for a course entitled “Environmental Law for Non-Environmental Lawyers.” The purpose of the course would be to dispel many of the misconceptions that people have about environmental issues. As a starting point, here are 5 easy ways to tell that the person talking about the environmental issue has…

    Robert Crespi will be speaking at the Brownfield Coalition of the Northeast’s 2019 Northeast Sustainable Communities Workshop on June 4, 2019. Rob will co-moderate the panel titled, “Getting Your Fill of Fill – A Discussion of the Issues Brownfield Developers Should be Aware of When Testing, Disposing and Reusing Building Materials, Including Concrete, Brick and…

    2018 Year in Review: Public agencies prevailed in 65% of CEQA cases analyzed.

    By James L. Arnone, Marc T. Campopiano, Christopher W. Garrett, and Lucinda Starrett

    Over the course of 2018, Latham & Watkins lawyers reviewed all 57 California Environmental Quality Act (CEQA) cases, both published and unpublished, that came before California appellate courts. These cases covered a variety of CEQA documents and other topics. Below is a compilation of information from the review and a discussion of the patterns that emerged in these cases. Latham will continue to monitor CEQA cases in 2019, posting summaries to this blog.

    The California Court of Appeal heard 55 CEQA cases, while the California Supreme Court heard one case: Sierra Club v. County of Fresno. This case concerned what constitutes sufficient detail in an environmental impact report (EIR) and has implications for the preparation of EIRs as well as judicial review of agency decisions certifying EIRs.

    In addition to the 56 state cases, one federal CEQA case, AquAlliance v. U.S. Bureau of Reclamation, was heard by the Eastern District of California.