Section 33 of EPA 1990 creates the criminal offence of flytipping, which is the unauthorised deposit of waste on land that is not licensed for this purpose.
When to Consider Section 33
- Illegal depositing by small businesses on any site;
- Dumping on land from lorries and tippers;
- Regular illegal dumping on land resulting in a large build up of waste on land
Notices under section 33A may be given by an authorised officer of a local authority; a constable, or an authorised officer of a waste regulation authority (SEPA) to a person that the officer has reason to believe has committed an offence under section 33(1)(a) or (c) of that Act). The effect of giving the notice is that no proceedings shall be instituted for the offence before the expiration of fourteen days following the date of the notice, and that a person who pays the fixed penalty within that period shall not be convicted of the offence.
Section 34 (1) of the Environmental Protection Act 1990 imposes a duty of care on any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste. The duty requires such persons to ensure that there is no unauthorised or harmful deposit, treatment or disposal, of the waste, to prevent the escape of the waste from their control or that of any other person, and, on the transfer of the waste to ensure that the transfer is only to an authorised person, or to a person for authorised transport purposes and that a written description of the waste is also transferred. The Duty of Care – A Code of Practice which is issued by the Secretary of State for the Environment, the Secretary of State for Scotland and the Secretary of State for Wales in accordance with section 34(7) and (8) of the Environmental Protection Act 1990 is an easily accessible document that recommends a series of steps which, if taken, should be sufficient to meet the duty.
The Environmental Protection (Duty of Care) Regulations 1991 (as amended) impose requirements under section 34(5) of the 1990 Act on any person who is subject to the duty of care as respects the making and retention of documents and the furnishing of copies of them. Breach of the duty of care or of the Regulations made thereunder is a criminal offence.
Environmental Protection Act 1990 Section 33
Prohibition on unauthorised or harmful deposit, treatment or disposal etc. of waste.
It is an offence for any person to deposit controlled waste, or knowingly to cause or knowingly to permit controlled waste to be deposited, in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence (section 33(1)). The mere act of deposit, treatment, keeping or disposal is sufficient to attract criminal liability, however, a test of knowledge must also be satisfied. Where controlled waste is carried in and deposited from a motor vehicle, constructive knowledge is attributed to the person who controls the motor vehicle or is in a position to control the vehicle. In this case the person is treated as knowingly causing the waste to be deposited whether or not he gave instructions for that to be done.
It is an offence for any person to treat, keep, or dispose of controlled waste, or knowingly to cause or knowingly permit controlled waste to be treated, kept or disposed of, in or on any land or by means of any mobile plant except under or in accordance with a waste management licence (section 33(2)).
The penalties for these offences are:
- Summary conviction: to imprisonment for a term not exceeding six months or to a fine not exceeding £40,000 or both, and
- On conviction on Indictment: to imprisonment for a term not exceeding two years or a fine or both
Directors, officers and senior employees can be imprisoned, and there is the possibility of licences being revoked if the person in question is not regarded as a ‘fit and proper person’ following conviction.
There is also the effect of adverse publicity that may follow prosecution and/or conviction.
Environmental Protection Act 1990 Section 34
Duty of Care
Section 34 of the Environmental Protection Act 1990 imposes a duty of care on individuals dealing with controlled waste. The duty applies to anyone who produces, imports, carries, keeps, treats, or disposes of controlled waste, or as a broker has control of such waste.
Irresponsible waste management practices can result in waste being recovered or disposed of inappropriately and can pose a threat to the environment and to human health. The duty of care is designed to be a self regulating system which is based on good business practice. It places a duty on anyone who in any way has a responsibility for controlled waste to ensure that it is managed properly and recovered and disposed of appropriately
Businesses have certain responsibilities to ensure that waste materials from commercial activities are disposed of with due regard to the law. A Waste Holder (any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste) has a Duty of Care with regard to that waste and it is an offence if they fail to take all reasonable measures to:
- prevent another person from committing an offence under s.33 of the EPA 1990;
- prevent the escape of the waste from his or another person’s control;
- and to transfer the waste to an authorised person or to any person for authorised transport purposes and to provide that person with a written description of the waste.
Householders also have a Duty of Care to check that anyone they commission to take away and dispose of their domestic waste is registered as a carrier of waste. Householders are not required to supply documentation such as a waste transfer note but they could face a court appearance if they fail to take reasonable measures to ensure their domestic waste is handled by an authorised waste carrier. It will be for the courts to decide what these ‘reasonable measures’ will comprise on a case-by-case basis.
Registered waste carrier information is available the SEPA website.
Environmental Protection Act 1990 Section 59
This provides powers for local authorities and SEPA to require occupiers and landowners to remove waste they knowingly caused or permitted to be deposited illegally. If the landowner or occupier does not remove the waste, the authorities can enter the land, clean up the waste, and reclaim the costs for doing so. They can also enter the land to clear waste if there is no occupier; if the occupier neither knowingly caused nor permitted the deposit of the waste; or in order to prevent pollution.