by Andrew Jackson
Almost a year after it was first introduced into Parliament by the Government in December 1989 the Environmental Protection Act received Royal Assent on November 1 1990. In the intervening period environmental issues have continued to occupy the public mind. There is a growing awareness that the legitimate search for economic growth to provide for higher standards of living for an increasing global population is depleting resources and producing waste to the serious detriment of a delicate ecological and environmental balance.
There should be few who would object in philosophical terms to the Environmental Protection Act. Superficially it would appear an attractive gift. It has 162 sections divided into nine parts with 16 schedules. The general thrust of the Act can be gleaned from reading selected extracts taken from the preamble:
An Act to make provision for the improved control of pollution arising from certain individual and other processes;…to make further provision in relation to … waste (on land); … to provide for the extension of the Clean Air Acts…;…to amend the law relating to litter …; to make provision for the control of genetically modified organisms
and so on.
Dog owners, supermarket operators, the air, rail and sea port authorities and farmers may all have particular cause to regret the powers contained within the body of the new Act. There are various provisions for the control of dogs, mechanisms for the collection and disposal of abandoned supermarket and luggage trolleys and a new centralised regulation on straw and stubble burning.
However, there are other elements of the Act which may be said to have wider implications for the commercial and industrial sectors generally.
Four of these features are perhaps worth considering particularly in this context.
Integrated pollution control (IPC)
Controlled processes and substances
The Act creates a new co-ordinated pollution control regime entitled IPC. The Government in its White Paper on the environment, The Common Inheritance, published in September this year describes the promotion of IPC as “the Act’s most important feature”. Under Part I of the Act the Secretary of State (SOS) may by regulations prescribe certain processes as processes requiring authorisation and the release of certain substances into the environment as substances whose discharge into the environment requires control. He can set targets or standards to be met in relation to both processes and environmentally damaging substances. Process authorisations can be transferred without any requirement for consent to be obtained from the regulatory authority, but notification of any such transfer must be given within 21 days. There is a statutory offence of failing to notify, which is to be punishable by fine on summary conviction or up to two years’ imprisonment on conviction on indictment.
Central or local control
Section 4 of the Act allocates responsibility for exercising control of pollution. As envisaged by the White Paper, Her Majesty’s Inspectorate of Pollution (“HMIP”) will have responsibility for controlling releases to air, water and land from the most polluting industrial processes. Local authorities will have special responsibility for air pollution. In both cases their functions are to be exercised “for the purpose of preventing or minimising pollution of the environment due to the release of substances”. Although the Government recognises the need to recruit additional staff for the implementation of IPC there must at present be serious doubts about HMIP’s abilities, despite its best efforts, to manage this role owing to a shortage of resources and difficulties in recruiting suitably qualified staff.
Operating requirements
No prescribed process or discharge to the environment may be made without an authorisation (section 6). There is to be implied as a general condition into every authorisation that “in carrying on the process to which the authorisation applies the best available techniques not entailing excessive cost will be used” to minimise and render harmless any environmentally damaging substances that are to be released by the process (section 7(4)). A new acronym is born — BATNEEC — best available techniques not entailing excessive cost. But what does it mean? Section 7(10) of the Act gives us some guidance. References to BATNEEC in relation to a process
include…references to the number, qualifications, training and supervision of persons employed in the process and the design, construction, layout and maintenance of the buildings in which it is being carried on.
“in carrying on the process to which the authorisation applies the best available techniques not entailing excessive cost will be used” to minimise developments in technology and techniques for preventing or reducing pollution” of the environment (section 4(9)). It is also worth noting at this stage that the onus of proving that the best available technique was used is expressly imposed on the defendant by section 25 of the Act.
The provisions relating to IPC are new and potentially powerful. According to the White Paper:
HMIP is now preparing some 200 guidance papers to inspectors on how to enforce the legislation controlling the most polluting industrial processes. These will cover about 5,000 industrial installations.
In dealing with alternative processes, each or any of which will result in environmental pollution, regard is to be had to the best practicable environmental option (BPEO) (section 7(7)). The weight which is to be given to cost in assessing BATNEEC and BPEO is not yet clear, but the principle of “the polluter pays” is deeply embedded not only in the environmental action programme of the European Community but also increasingly in the operation of UK legislation. As the White Paper states: “HMIP will recover the bulk of the costs of operating IPC by charging for authorisations.”
Waste
Part II of the Act deals generally with the regulation, collection and disposal of waste on land. It establishes separate waste regulation, disposal and collection authorities for those purposes. Broadly speaking, waste regulation and disposal are county or metropolitan authority responsibilities and waste collection a district council concern. A duty is imposed on county councils to separate their waste regulation and disposal functions by establishing separate waste disposal companies.
Section 32 first makes it an offence without a waste management licence to deposit, keep, treat or dispose of controlled waste, inter alia, “in a manner likely to cause pollution of the environment or harm to human health”. Section 74 defines “controlled waste” as any household, industrial and commercial waste, and “pollution of the environment” is very broadly defined in this context by section 29. It occurs as a result of the escape from any land on which controlled waste is treated, kept or deposited
of substances or articles constituting or resulting from the waste and capable (by reason of the quantity or concentration involved) of causing harm to man or any other living organisms supported by the environment.
Note that actual harm does not have to occur and the threat can be to any living organism.
A statutory duty of care
A particularly significant element of the Act is the creation of a new statutory duty of care in section 33. This requires “any person who imports, produces, carries, keeps, treats or disposes of controlled waste” to take all reasonable steps to prevent any contravention of section 32; to prevent the escape of the waste from his control or that of any other person; to secure that on any transfer of any waste the transportation is properly authorised; and that sufficient detail is given about the nature of the waste to enable others to avoid pollution.
The Government clearly intended by imposing “a duty of care” on all those involved in the waste disposal chain to ensure that waste is disposed of safely. The White Paper expressly pointed out that breach of the duty would be a criminal offence. Section 32 provides for penalties of up to six months’ imprisonment or a fine of £20,000 to be imposed on offenders under summary jurisdiction in relation to controlled waste with heavier penalties in relation to waste requiring special treatment.
The truth of the matter is that every commercial or industrial organisation produces some waste. The practical implication of the provisions in this part of the Act are that every such organisation will have to devise a means of ensuring that it knows where their waste output goes and that it is being properly disposed of by a properly authorised person, within the meaning of the Act. Section 33(5) envisages the creation of a documentary control system to monitor the progress of waste through the system.
Section 33(7) requires the SOS to issue a code of practice. A draft code was issued for consultation in February. It argues that it would not be reasonable to hold a person liable for defaults by subsequent holders of waste which are outside their control. On this basis liability attaches only while anyone is actually in possession of the waste, rather like the leasehold rule about privity of estate. If the code is accepted in this form it would be a dilution of the original proposals.
Responsibility for the waste disposal process has been substantially extended. Creators of waste as well as waste disposal operators and owners and occupiers of waste disposal sites would be well advised to review their practices.
Directors’ liability
The theme of accountability is again formally enshrined within section 147 of the Act. This provides that officers of corporate entities or anyone accepting managerial responsibility can be held personally liable for an offence under the Act. This includes shareholders exercising a de facto management function.
The development of corporate law has for some time been moving towards preventing directors and other managers from hiding behind the corporate shield. Section 147 embodies that philosophy in an environmental context. Nothing is better calculated to focus the minds of management on environmental issues than the potential personal liability for a substantial fine or even the prospect of imprisonment as a result of actually or impliedly consenting to an offence under any provisions of this Act. Corporate management should accept the challenge thrown down by this section. Specific responsibility should be allocated to a senior executive at board level for environmental matters generally and discharge of the responsibilities imposed under this Act in particular. Only by these means will the issue be taken seriously.
Publication of information
“Knowledge is power” — so the saying goes and the new Act recognises this in various ways. It includes various provisions that require the disclosure via a public register of information relating to polluting processes and substances. Section 20 imposes a duty of care on each enforcing authority for IPC purposes to maintain a register containing prescribed particulars of applications for authorisations, permissions granted, appeals made and variation enforcement and prohibition notices issued, as well as revocation orders. Information obtained or provided in relation to authorisations or to the carrying on of prescribed processes is also to be recorded.
Similarly waste regulation authorities are to maintain registers relating to waste disposal licenses, their grant, refusal, variation or termination including general information relating to the treatment, keeping or disposal of waste in their area (section 63).
In both cases express qualifications are made in respect of the exclusion from the registers of information which is “commercially confidential”. Information is defined as being commercially confidential if “its being contained in the register would prejudice to an unreasonable degree the commercial interests of that individual or person” (sections 22(11) and 65(11)). However, there are potentially draconian provisions under which the SOS can direct that “the public interest” requires inclusion of information in the registers notwithstanding commercial confidentiality (sections 22(7) and 65(7)).
These provisions obviously contain the seeds of a potential difficulty for an operator who seeks to protect a position of commercial advantage in relation to a process which is damaging to the environment but otherwise meets the requirements of BATNEEC or BPEO. Perhaps the issue will arise infrequently in practical terms, but it is suggested that the public disclosure requirements of the Act should be turned so far as possible to advantage by making a virtue of necessity. If information has to be provided then an operator should do its best to ensure that it is collated and presented in as straightforward and balanced a manner as possible with the minimum possible reliance on claims to confidentiality. A public which understands the issues and sees that environmental concerns are being confronted in a positive way is far more likely to be supportive than a public which is constantly irritated and intimidated by a reluctance to communicate and a reliance on secrecy.
There are of course other provisions in the Environmental Protection Act 1990 than have been touched upon in this article. A few of the provisions of the new Act will come into force automatically within two months of enactment. These include Part III, which consolidates and enlarges existing provisions relating to statutory nuisances and the critical provisions in section 147 concerning personal liability behind the corporate veil. For the most part the SOS will have to make additional provisions and specify appointed days of commencement. Nevertheless it is a start and underlying the sympathetic rhetoric of the White Paper and the broadly attractive objectives specified in greater detail in this new Act there are within the body of this Act Trojan horses which could take the unsuspecting observer unawares.
