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Waste Duty of Care

Posted on 22nd June, 2020

Do you know you have a waste duty of care imposed by law? Like many other people I have found myself working from home more than usual during the restrictions and if you are anything like me, you will have taken the opportunity to tidy up and clear out some rubbish that accumulates.

Many people have taken the opportunity to do all those DIY jobs that they never quite got round to doing.  Businesses have also used the time to clear out unused waste and equipment in preparation for reopening when restrictions are eased.  The closure of council waste recycling centres presented a difficulty with disposing of waste and whilst many of the sites have now reopened, they are operating under reduced hours or strict booking schemes.  This has resulted in a rise in illegal fly tipping across the country with reports up by 100% according to the Countryside Alliance.  This places additional pressure on councils which are already struggling to maintain services.

There is a well-established regime in place to combat fly tipping and both businesses and householders should be aware of their duties when disposing of any waste they produce.  The waste duty of care code of practice is issued under the Environmental Protection Act 1990  and the code applies if you import, produce, carry, keep, treat, dispose of or, as a dealer or broker have control of, certain waste in England or Wales.  Failure to comply with the duty of care is an offence with potential for a fine without an upper limit.

Business

Waste producers, as well as others in the waste chain, must take all reasonable steps to ensure that when you transfer your waste to another person that the waste is managed correctly throughout its journey to recovery or disposal.  Before passing your waste onto someone else, check that they are authorised to take it.  Anyone who carries waste on a public road should be registered with the Environment Agency and you can check registrations online using the registration number or business name. The duty of care also requires you to:

  • prevent the unauthorised or harmful deposit, treatment or disposal of waste,
  • prevent a breach by any other person to meet the requirement to have an environmental permit, or a breach of a permit condition,
  • prevent the escape of waste from your control,
  • ensure that any person you transfer the waste to has the correct authorisation, and
  • provide an accurate description of the waste when it is transferred to another person.

The waste description together with other details is normally contained in a waste transfer note or on the national electronic edoc system. In specific circumstances, it is possible to have one transfer note to cover collections over a 12-month period providing the waste is similar in terms of description and quantity.  Waste transfer notes must be kept by your business for two years from the transfer date and regulatory bodies such as the Environment Agency can require production of them by serving a notice.

It is also good practice for business to audit their waste transfers regularly to ensure compliance with the code.  This can include checking a selection of waste transfer notes over a period (you will be surprised how many I see which are incomplete or do not have all the correct information) as well as checking onward waste journeys to the disposal or recovery site.

Householders

The duty imposed on householders is not as onerous as that for business.  As a householder, you must ensure you only transfer waste to an authorised person when dealing with your household waste produced on your property.  The other requirements of the code, such as the requirement for waste transfer notes does not apply to the occupier of a domestic property when they are dealing with their household waste.  If you engage a private business (e.g. skip hire, house clearance) to take away your waste rather than the local authority, in order to meet your duty of care you should check that they are an authorised carrier with up to date and valid registration. This includes a business which approaches you and offers to take your waste. Each carrier should have a registration number starting CBDU, followed by a set of numbers.  Instances where a private business handling your household waste is exempt from registering or can do so under a lower tier registration are very rare. However, charities, voluntary organisations and waste collection authorities (local council) can use lower tier registrations.  Similarly, if you take your household waste to a privately operated waste site rather than a council operated facility, you should check that they have a valid environmental permit or exemption.  These can also be checked online on the Environment Agency’s website.

Whilst there is no legal requirement to keep records when you check a carrier is registered or a site is permitted or exempt, it is good practice particularly if your waste is subsequently fly-tipped and investigated by the local authority.  In such situations the records can quickly show that you met your duty of care.  For example, you could do one of the following:

  • record any checks you make, including the operator’s registration, permit or exemption number
  • keep a receipt for the transaction which includes the business details of a registered operator
  • ask for a copy or take a photograph of the carrier’s waste registration or site’s permit
  • record details of the business or of any vehicle used (registration, make, model, colour), which can be linked back to an authorised operator

The steps above can help ensure your waste will be handled appropriately and not cause harm to others or the environment. If things do go wrong the steps will also help enforcement officers identify and prosecute those responsible if your waste is fly-tipped.

Conclusion

The waste duty of care was introduced to ensure that we all make sure that the waste we produce is handled and disposed of correctly without risk to the environment or others in the waste chain.  If the duty of care is followed by us all then the opportunity for illegal fly tipping will be significantly reduced and our countryside will not be damaged.  So, the next time a man with a van offers to take your waste away for you, think carefully about where it might end up.

Mark Stouph, Health & Safety Consultant

If you would like to speak to Mark about any of the issues above, please email him at mstouph@jacksons-law.com or call 01642 356500/0191 2322574

 

 

 

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