The Duty of Care
According to section 34 of the EPA 90 and the associated Environmental Protection (Duty of Care) Regulations 1991, which came into force on 1st April 1992, imposed a ‘Duty of Care’ on all those who import, produce, carry, keep, treat or dispose of controlled waste.
T&M Recycling Yorkshire will take all reasonable and applicable measures
a) To prevent the contravention of Section 33 of the EPA 90
b) To prevent the escape of waste
c) To ensure on transfer of the waste that:
(i) Transfer only occurs to:
1. Authorised persons (i.e. a Waste Collection Authority; a holder of a waste management licence granted under Part II of the Environmental Protection Act 1990 or a permit granted under the Pollution Prevention and Control (England and Wales) Regulations 2000 or the Pollution Prevention and Control (Scotland) Regulations 2000 for waste installation; a registered carrier or exempt carrier; a Scottish Waste Disposal Authority (a Scottish local authority).
2. Any person exempt under S. 33(3) of the EPA 90
3. Authorised persons for authorised transport purposes (for example, the transport of controlled waste within the same premises between different places in those premises)
(ii) Transfer should be accompanied by a written description of the waste sufficient to prevent contravention of S.33 of the EPA 90 or the Duty of Care.
Sub-section 34(6) of the EPA 90 makes it an offence to fail to comply with the Duty of Care.
The regulations establish a mandatory system of Transfer Notes. A Transfer Note must be completed by both the transferor and transferee of the waste and should contain the following information:
1. Identification of the waste
2. Quantity of waste
3. Whether the waste is loose or in a container and, if applicable, the kind of container
4. Time and place of transfer
5. Name and address of the transferor and transferee
6. Whether the transferor is the producer or importer of the waste
7. If relevant, which authorised transport purpose applies
8. Which categories describe the transferor and transferee i.e. producer, waste carrier, waste collection authority, etc.
In addition to the Transfer Note, all waste must be accompanied by a detailed description sufficient to ensure that subsequent holder(s) of the waste are able to avoid mismanaging it.
The description should contain information about:
• The source of the waste
• What it is made up of
• How it was produced
• Details of any special problems which may be encountered when handling the waste.
The description of the waste may form part of the Transfer Note or be an attachment to it.
An Annual Transfer Note covering all transfers will suffice for multiple consignments of waste for which the details remain the same for all consignments. Copies of the written description of the waste and the Transfer Note must be kept by both parties for two years from the last date of transfer. The Environment Agency/SEPA can require the production of both Transfer Notes and waste descriptions by serving a notice on any person who is under a duty to keep that documentation.
The Duty of Care – A Code of Practice
The Duty of Care is supported by Waste Management: The Duty of Care – A Code of Practice (revised March 1996) which provides interpretation of the legislation and practical guidance on its implementation. The Code of Practice has statutory status and although the obligation is to comply with the Duty of Care rather than the Code, breach of the Code of Practice is admissible as evidence in court.
T&M Recycling Yorkshire Ltd ensures that all producers of waste take all reasonable measures to ensure that waste leaving site is dealt with correctly. If you have not taken such steps, or cannot prove that you have taken such steps, you may be found guilty of an offence if your waste is illegally tipped or not otherwise dealt with in accordance with the conditions of a waste management site licence/permit. The difficulty lies in interpreting what reasonable measures may be. The Duty of Care Code of Practice provides some guidance on this but no precise definitions. If in doubt, you should contact the Environment Agency/SEPA.
It should be noted that the Duty of Care rests with the person producing the waste. Normally it will be clear who the producer is but under certain circumstances, for example, when a contractor is undertaking work on site or where another organisation occupies part of the site, it may not be as clear. The Code of Practice offers some guidance concerning waste management responsibilities of contractors working on site. The waste producer is deemed to be the person actually doing the work which gives rise to the waste, not the person who issues instructions or establishes contracts which give rise to waste. Where you are dealing with waste from another organisation occupying your site, depending on the relationship, you may be deemed to be acting as a waste broker and would need to register with the Environment Agency/SEPA.
Note the requirement in the second edition of the Duty of Care: Code of Practice that “Employers must provide adequate equipment, training and supervision for their employees to ensure they are in a position to comply with the regulations”.