Weekly Environmental Law News Update

In this latest Environmental Law News Update, Mark Davies considers director disqualifications resulting from HSE and EA investigations, a no-deal Brexit plan from Defra and the publication of a National Adaption Programme report also from Defra.

Joint HSE and EA investigation leads to director disqualifications

9 July at Stoke-on-Trent Crown Court marked the culmination of a two-year investigation into the criminal activities of Alsager Contractors. The firm, which went into liquidation in 2016, was run by George Talbot and his two sons, Anthony and Stephen.

The HSE and the EA’s investigation, which reportedly started after a complaint to Newcastle Borough Council about the burning of waste and asbestos dust at a site in 2011, concerned waste management at three sites over a period of two years. An inspection of one of the sites and the surrounding highway yielded 42 samples, 36 of which were found to contain asbestos. Present at the same site was also reportedly an open skip containing asbestos-lagged pipework.

On 10 May 2012 the HSE served Alsager with a prohibition notice preventing work being undertaken (save for decontamination using a licensed asbestos contractor) using six road-going ejector trailers that had been found to contain, or were contaminated with, asbestos.

In February of 2013, an officer from the EA reportedly found that a door had been cut into one of the trailers, breaching the prohibition notice and enabling access to the asbestos waste. In light of this discovery the environmental permit for that particular site was suspended and subsequently revoked.

At the sentencing hearing the Court was told that, “…bags containing asbestos waste were loaded into skips using a mechanical loader and then crushed down, so creating the risk that the bags would split and the potentially carcinogenic contents released as large volumes of dust.”

In sentencing, Recorder Stephen Thomas noted that there had been a ‘flagrant breach of the prohibition notice’ and that it was clear that the company had, instead of heeding earlier warnings regarding the handling of asbestos, ‘continued to create risks and deliberately disregarded [the] prohibition notice’. It was found that both George and Anthony Talbot, company directors at the time in question, knew of and had failed to prevent work contravening the prohibition notice. All three were found to have known about waste containing asbestos being treated, kept or disposed of which could cause pollution or harm to human health at another site.
After guilty pleas the Defendants were sentenced as follows:

• George Talbot was disqualified as a director for a period of seven years and fined £46,500 for five offences.
• Anthony Talbot was disqualified for a period of four years and fined £4,800 for four offences.
• Stephen Talbot was fined £6,000 for two offences.

The Recorder is reported to have been considering custodial sentences but found himself ‘constrained by the guidelines’.

Mark Harris prosecuted for the HSE and EA. Gordon Wignall appeared for the Defendants.

Defra no-deal REACH plan due in the autumn

Evidence was provided to a House of Lords select committee on 18 July that Defra’s ‘large and detailed’ draft statutory instrument is to be laid out in Parliament this autumn. The draft, which provides for chemical regulation in the UK in the event of a no-deal Brexit, will reportedly transfer the ‘responsibilities and operability’ of the European Chemicals Agency (ECHA) to a UK agency.

The select committee was told that the draft will, “essentially build the UK regulatory capacity by extending the role of the Health and Safety Executive and the Environment Agency and ensuring we put in place arrangements to ensure there is suitable transparency and a requirement to seek external advice to replace some of the work that is done in the ECHA and technical scientific committees.”

One could be forgiven for concluding that there may be some substantial difficulty in ‘transferring the responsibilities and operability of the ECHA’ to the HSE and EA.

Given that in the event of a no-deal scenario, existing REACH registrations submitted by UK entities will simply become non-existent from 30 March 2019, businesses may have been hoping to hear a little more than Defra’s offer to the select committee that it ‘would anticipate’ a mechanism for the transfer of registrations to be in place.

The message in relation to the proposed replacement IT system (replacing the ECHA one) was slightly more bullish, with Thérèse Coffey indicating that she is ‘confident’ that it will be in place by Brexit day.

As some have estimated that the base cost to the chemical industry across the UK and the EU could be as much as £450m it would seem imperative that some certainty is provided sooner rather than later.

National Adaption Programme published

On 19 July Defra published ‘The National Adaption Programme and the Third Strategy for Climate Adaptation Reporting – Making the country resilient to a changing climate’. It is the second National Adaption Programme report and is premised on the first aim of the earlier 2013 report: “A society which makes timely, far-sighted and well-informed decisions to address the risks and opportunities posed by a changing climate.”

The report responds to the second Climate Change Risk Assessment (CCRA – available here) and forms part of the five-yearly cycle set down by the Climate Change Act 2008. Key actions are to address:

• Flooding and coastal change risks to communities, businesses and infrastructure;
• Risks to health, well-being and productivity from high temperatures (as anyone who has had the misfortune to be working through the recent heatwave can attest, this is a real issue already!);
• Risks of shortages in the public water supply for agriculture, energy generation and industry;
• Risks to natural capital including terrestrial, coastal, marine and freshwater ecosystems, soils and biodiversity;
• Risks to domestic and international food production and trade; and
• New and emerging pests and diseases and invasive non-native species affecting people, plants and animals.

The CCRA identified that the first two areas (flooding and risks to health) carry a high-risk magnitude over the next five years with more action needed, whilst areas three to five are at medium to high risk over the same period with more action needed. It highlighted the final area as a ‘research priority’ with a risk magnitude of medium to high. The National Adaption Programme report draws heavily on the Government’s 25 Year Environment Plan in addressing how it will meet the challenges identified.

Keep your eyes peeled for the revised set of UK climate projections (replacing the 2009 set), which are due later this year and may impact upon these plans.

The full report may be read here.