Environmental Protection Act 1990

Supervision and enforcement

68Functions of Secretary of State and appointment etc. of inspectors

(1)The Secretary of State shall have the function of keeping under review the discharge by waste regulation authorities of their functions under this Part.

(2)The Secretary of State may appoint as inspectors (under whatever title he may determine) such persons having suitable qualifications as he thinks necessary for assisting him in discharging his functions under this Part, and may terminate any appointment made under this subsection.

(3)Any waste regulation authority having functions under this Part may appoint as inspectors (under whatever title the authority may determine) such persons having suitable qualifications as the authority thinks necessary for carrying this Part into effect in the authority’s area, and may terminate any appointment made under this subsection.

(4)An inspector shall not be liable in any civil or criminal proceedings for anything done in the purported performance of his functions under section 69 or 70 below if the court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it.

(5)In the following provisions of this Part “inspector” means a person appointed as an inspector under subsection (2) or (3) above.

69Powers of entry etc. of inspectors

(1)An inspector may, on production (if so required) of his authority, exercise any of the powers specified in subsection (3) below for the purpose of—

(a)discharging any functions conferred or imposed by or under this Part on the Secretary of State or, as the case may be, a waste regulation authority or on the inspector;

(b)determining whether, and if so in what manner, such a function should be discharged; or

(c)determining whether any provision of this Part or of an instrument under it is being complied with.

(2)Those powers are exercisable in relation to—

(a)land in or on which, or vessels in or by means of which, controlled waste is being or has been deposited, treated, kept or disposed of;

(b)land in or on which, or vessels in or by means of which, controlled waste is (on reasonable grounds) believed to be being, or to have been, deposited, treated, kept or disposed of;

(c)land which is or is (on reasonable grounds) believed to be affected by the deposit, treatment, keeping or disposal of controlled waste on other land;

and in this section “premises” means any such land or any such vessel.

(3)The powers of an inspector referred to above are—

(a)at any reasonable time (or, in a situation in which in his opinion there is an immediate risk of serious pollution of the environment or serious harm to human health, at any time) to enter premises which he has reason to believe it is necessary for him to enter;

(b)on entering any premises by virtue of paragraph (a) above to take with him—

(i)any person duly authorised by the Secretary of State or, as the case may be, the waste regulation authority and, if the inspector has reasonable cause to apprehend any serious obstruction in the execution of his duty, a constable; and

(ii)any equipment or materials required for any purpose for which the power of entry is being exercised;

(c)to make such examination and investigation as may in any circumstances be necessary;

(d)as regards any premises which he has power to enter, to direct that those premises or any part of them, or anything in them, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under paragraph (c) above;

(e)to take such measurements and photographs and make such recordings as he considers necessary for the purpose of any examination or investigation under paragraph (c) above;

(f)to take samples of any articles or substances found on any premises which he has power to enter, and of the air, water or land in, on, or in the vicinity of, the premises;

(g)in the case of any article or substance found in any premises which he has power to enter, being an article or substance which appears to him to have caused or to be likely to cause pollution of the environment or harm to human health, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless this is necessary);

(h)in the case of any such article or substance as is mentioned in paragraph (g) above, to take possession of it and detain it for so long as is necessary for all or any of the following purposes, namely—

(i)to examine it and do to it anything which he has power to do under that paragraph;

(ii)to ensure that it is not tampered with before his examination of it is completed;

(iii)to ensure that it is available for use as evidence in any proceedings under this Part;

(i)to require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation under paragraph (c) above to answer (in the absence of persons other than a person nominated to be present and any persons whom the inspector may allow to be present) such questions as the inspector thinks fit to ask and to sign a declaration of the truth of his answers;

(j)to require the production of, or where the information is recorded in computerised form, the furnishing of extracts from, any records which are required to be kept under this Part or it is necessary for him to see for the purposes of an examination or investigation under paragraph (c) above and to inspect, and takes copies of, or of any entry in, the records;

(k)to require any person to afford him such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as are necessary to enable the inspector to exercise any of the powers conferred on him by this section.

(4)The Secretary of State may by regulations make provision as to the procedure to be followed in connection with the taking of, and the dealing with, samples under subsection (3)(f) above.

(5)Where an inspector proposes to exercise the power conferred by subsection (3)(g) above in the case of an article or substance found on any premises, he shall, if so requested by a person who at the time is present on and has responsibilities in relation to those premises, cause anything which is to be done by virtue of that power to be done in the presence of that person.

(6)Before exercising the power conferred by subsection (3)(g) above in the case of any article or substance, an inspector shall consult such persons as appear to him appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which he proposes to do under the power.

(7)Where under the power conferred by subsection (3)(h) above an inspector takes possession of any article or substance found on any premises, he shall leave there, either with a responsible person or, if that is impracticable, fixed in a conspicuous position, a notice giving particulars of that article or substance sufficient to identify it and stating that he has taken possession of it under that power; and before taking possession of any such substance under that power an inspector shall, if it is practical for him to do so, take a sample of it and give to a responsible person at the premises a portion of the sample marked in a manner sufficient to identify it.

(8)No answer given by a person in pursuance of a requirement imposed under subsection (3)(i) above shall be admissible in evidence in England and Wales against that person in any proceedings or in Scotland against that person in any criminal proceedings.

(9)Any person who—

(a)fails, without reasonable excuse, to comply with any requirement imposed under this section;

(b)prevents any other person from appearing before or from answering any question to which an inspector may by virtue of subsection (3) above require an answer; or

(c)intentionally obstructs an inspector in the exercise or performance of his powers or duties;

shall be liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

(10)The powers conferred by subsection (3)(a), (c), (e) and (f) above shall also be exercisable by any person authorised for the purpose in writing by the Secretary of State.

(11)Nothing in this section shall be taken to compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the High Court or, in relation to Scotland, on an order for the production of documents in an action in the Court of Session.

70Power to deal with cause of imminent danger of serious pollution etc

(1)Where, in the case of any article or substance found by him on any premises which he has power to enter, an inspector has reasonable cause to believe that, in the circumstances in which he finds it, the article or substance is a cause of imminent danger of serious pollution of the environment or serious harm to human health, he may seize it and cause it to be rendered harmless (whether by destruction or otherwise).

(2)Before there is rendered harmless under this section—

(a)any article that forms part of a batch of similar articles; or

(b)any substance,

the inspector shall, if it is practicable for him to do so, take a sample of it and give to a responsible person at the premises where the article or substance was found by him a portion of the sample marked in a manner sufficient to identify it.

(3)As soon as may be after any article or substance has been seized and rendered harmless under this section, the inspector shall prepare and sign a written report giving particulars of the circumstances in which the article or substance was seized and so dealt with by him, and shall—

(a)give a signed copy of the report to a responsible person at the premises where the article or substance was found by him; and

(b)unless that person is the owner of the article or substance, also serve a signed copy of the report on the owner;

and if, where paragraph (b) above applies, the inspector cannot after reasonable inquiry ascertain the name or address of the owner, the copy may be served on him by giving it to the person to whom a copy was given under paragraph (a) above.

(4)Any person who intentionally obstructs an inspector in the exercise of his powers under this section shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or to both.

71Obtaining of information from persons and authorities

(1)For the purpose of the discharge of his functions under this Part, the Secretary of State may, by notice in writing served on a waste regulation authority, require the authority to furnish such information about the discharge of its functions under this Part as he may require.

(2)For the purpose of the discharge of their respective functions under this Part—

(a)the Secretary of State, and

(b)a waste regulation authority,

may, by notice in writing served on him, require any person to furnish such information specified in the notice as the Secretary of State or the authority, as the case may be, reasonably considers he or it needs, in such form and within such period following service of the notice as is so specified.

(3)A person who—

(a)fails, without reasonable excuse, to comply with a requirement imposed under subsection (2) above; or

(b)in furnishing any information in compliance with such a requirement, makes any statement which he knows to be false or misleading in a material particular, or recklessly makes a statement which is false or misleading in a material particular;

shall be liable—

(i)on summary conviction, to a fine not exceeding the statutory maximum;

(ii)on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or to both.

72Default powers of Secretary of State

(1)If the Secretary of State is satisfied that a waste regulation authority has failed, in any respect, to discharge any function under this Part which it ought to have discharged, he may make an order declaring the authority to be in default.

(2)The failure to discharge any such function may be a failure in a class of case to which the function relates or a failure in a particular case.

(3)An order made under subsection (1) above which declares an authority to be in default may, for the purpose of remedying the default, direct the authority (“the defaulting authority”) to perform any function specified in the order (whether in relation to a class of case or a particular case) and may specify the manner in which and the time or times within which the function is to be performed by the authority.

(4)If the defaulting authority fails to comply with any direction contained in such an order the Secretary of State may, instead of enforcing the order by mandamus, make an order transferring to himself any function of the authority specified in the order, whether in relation to all the classes of case to which the function relates or to such of those classes or, as the case may be, such particular case as is specified in the order.

(5)Where any function of a defaulting authority is transferred under subsection (4) above, the amount of any expenses which the Secretary of State certifies were incurred by him in performing the function shall on demand be paid to him by the defaulting authority.

(6)Any expenses required to be paid by a defaulting authority under subsection (5) above shall be defrayed by the authority in like manner, and shall be debited to the like account, as if the functions had not been transferred and the expenses had been incurred by the authority in performing them.

(7)The Secretary of State may by order vary or revoke any order previously made by him under this section.

(8)An order transferring any functions of a defaulting authority may provide for the transfer to the Secretary of State of such of the property, rights, liabilities and obligations of the authority as he considers appropriate; and where such an order is revoked the Secretary of State may, by the revoking order or a subsequent order, make such provision as he considers appropriate with respect to the property, rights, liabilities and obligations held by him for the purposes of the transferred function.

(9)Any order under this section may include such incidental, supplemental and transitional provisions as the Secretary of State considers appropriate.

(10)This section shall not apply to Scotland.