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Defining animal waste - it's an offal case

31 January 2012

UK transport lawyer Anton Balkitis, of law firm Rothera Dowson, is calling for VOSA to re-define the term ‘Animal Waste’ for the purposes of enforcing drivers’ hours legislation

Historically operators transporting animal waste, which is no longer fit for human consumption, have sought to rely on a derogation contained within the relevant European Regulations that exempts them from keeping tachograph records in favour of handwritten log books. This is to reflect the importance of the products’ safe disposal to ensure that the food does not re enter the human food chain and to prevent the outbreak of BSE, and other conditions related to contaminated animal by products.

As retail patterns in the UK have changed so drastically over the last decade, less waste is collected from specialised meat sources such as butchers and abattoirs in favour of supermarkets and other high street retailers, and herein lies the problem. This inevitably leads to other contaminated matter being included in the collections, such as the packaging of meat products and snacks that have passed their ‘use by’ date. As the ancillary matter has been contaminated by the animal by products, it too needs to be safely disposed of. According to Balkitis, it is questionable whether the strict interpretation of the derogation takes that into account.

Balkitis is acting for two national carriers relying on the derogation, who were carrying a bulk of animal by products, which included a small percentage of packaging materials contaminated by the products. The carriers have been charged with not using tachograph records whilst operating within the Lincolnshire/Cambridgeshire VOSA district. Nationally the practice is accepted by VOSA regions however the Chief Examiner in Lincs/Cambs takes a stricter interpretation of the derogation and enforces tachograph law.

“My clients have been charged with this allegation for their operations in Lincolnshire and Cambridge, but as far as I am aware, no other businesses have ever been charged by VOSA outside of that area,” explains Balkitis.

“It is my view that in the modern age of processed and packaged food, where it is not practicable and cost effective to remove the packaging, then the sum total of the waste products carried should come within the terms of the derogation. Even if this is not possible, there should be consistency across the UK and not just prosecutions within the one VOSA area”.

Balkitis added: “It seems that there is no clear VOSA prosecution policy in this regard and that the decision to prosecute is left to the discretion of the Chief Examining Officer of each VOSA area.

“It seems very unfair to expect operators to have to second guess the views of individual Chief Examiners and their local enforcement priorities when a National Policy is to say the least ‘inconsistent’.”

Balkitis went on to say that in previous stop and checks, his clients have never been reprimanded under the same circumstances. In his clients’ defence, he proposes to state they are entitled to rely on the benefit of the derogation and claims that the prosecutions amount to an abuse of the court process.

He concludes: “It is not alleged that in either case the drivers concerned were exceeding their permitted hours or that their employers were seeking a loophole to enable them to do so. I would hope that by bringing this subject into the public domain, other companies facing similar prosecution anomalies may come forward and join voice to help re-classify the term ‘animal waste’”.

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