Last updated: (February 2005)

Introduction

This Reference Note explains the duty of care principles and outlines the main requirements of the Duty of Care Regulations. The Reference Note is written for organisations that dispose of waste and want to make sure that they are meeting the duty of care requirements.

The Duty of Care Requirements

This section describes the main requirements of the Duty of Care Regulations and the main steps that someone disposing of waste would need to go through.

Background

When waste is disposed of it may pass through the hands of several people, including: the waste producer, waste carrier, waste disposer and also possibly an agent. Each of the people involved in the transfer of waste has a duty of care when handling the waste to ensure that:

  • Waste is not illegally disposed of or dealt with without a licence or in breach of a licence or in a way that causes pollution or harm.
  • Waste does not escape from a person's control.
  • Waste is transferred only to an ‘authorised person', such as a local authority, a registered carrier or a licensed disposer.
  • When the waste is transferred, it is accompanied by a full written description. The description needs to be sufficient for each person in the disposal chain to understand what they are disposing of.

Section 34 of the Environmental Protection Act 1990 introduced the duty of care principle, and the requirements of this section are implemented by the Duty of Care Regulations. There is also a Duty of Care Code of Practice.

Do I have waste?

In order to decide if something is a waste there are various definitions and guidance that have been given from a number of sources. The person holding the waste should ask the following questions:

  • Is it a scrap material, effluent, or other unwanted surplus substance arising from the application of any process?
  • Is it a substance or article that requires to be disposed of as being broken, worn out, contaminated or otherwise spoiled?
  • Is something intended or required to be discarded, or has it been discarded?

In addition, Schedule 2B of the Environmental Protection Act 1990 sets out a whole series of substances or objects that are waste when discarded.

Is it controlled waste?

Waste that is produced by commerce and industry is classed as controlled waste. Special waste is also controlled waste and there are additional regulations covering this waste. These controlled wastes are subject to the duty of care. Household waste is also controlled waste but is not subject to the duty of care.

There are various wastes that are not classed as controlled and these are wastes from agricultural premises, wastes from mines, quarries, explosives and most radioactive wastes. These wastes are controlled by other means.

How should I store my waste?


Waste must be properly and securely stored and prevented from escaping. Any waste that does escape and causes harm to the environment will render the holder of the waste liable to prosecution. Waste holders should ensure that waste does not escape from:

  • Corrosion or wear of waste containers. This often occurs with waste that is left outside in metal containers and exposed to the weather.
  • Accidental spilling or leaking - this occurs when waste is not properly stored.
  • Accident or weather breaking open the contained waste and allowing it to escape.
  • Waste blowing away or falling while stored or transported. This sometimes happens when waste is not properly netted on vehicles.
  • Scavenging of waste by vandals, thieves, children, trespassers or animals.

How is the waste described?

It is essential that each person involved in the waste disposal chain understands what the waste is and how it should be handled. To do this, a proper and accurate description of the waste is needed and this is set out on the waste transfer note, covering:

  • the quantity of waste and how it is packed.
  • a description of the waste
  • the type of premises or business from which the waste comes
  • the name of the substance or substances
  • the process that produced the waste
  • a chemical and physical analysis
  • any special problems of the waste.

How do I arrange for its disposal?

Waste disposal requires a person to carry the waste to a waste management facility. In some instances, the waste carrier may also manage the waste disposal facility. Any person disposing of waste must ensure that the waste carrier is registered and the waste disposal facility must have a proper waste management licence for the waste being disposed of. These checks must be carried out before the waste is sent for disposal.

How should the waste be packed for transport?

The waste must be securely packed so that it cannot escape during transport. It is the waste producer's responsibility to ensure that this takes place. If the waste is repacked in some way by the waste carrier, for example, at a waste transfer station, then it becomes their responsibility.

What checks do I make of the person taking my waste?

The person taking the waste must be a registered waste carrier. It is necessary to check the original certificate and, in some instances, the register.

What do I do with the transfer notes?

Under the Duty of Care Regulations the parties involved must keep the transfer note and description for two years. The transfer notes may be required to be inspected.

What do I do if I receive waste?

Any person receiving waste must check that the waste description is correct and matches the waste being received.

Benefits

By understanding and meeting the duty of care requirements, organisations will achieve legal compliance with the regulations. By doing so they will not be at risk of prosecution, as has happened with a number of companies. Indeed, several directors have been sentenced to prison for duty of care offences.

Over and above achieving legal compliance, organisations can achieve other benefits from using the duty of care system wisely.

  • Giving management confidence that waste produced at a site is being disposed of in a controlled manner.
  • Assurance that on large sites with multiple waste sources, all waste is being correctly handled.
  • Confidence that everyone in the organisation knows what the requirements are and works to meet these.

Legislation

The following legislation relates to waste management and the duty of care requirements:

  • The Environmental Protection Act 1990, Part II Waste on Land
  • The Environment Act 1995 -The National Waste Strategy
  • The Collection and Disposal of Waste Regulations 1988 SI No 819
  • The Controlled Waste Regulations 1992 SI No 588
  • The Environmental Protection (Duty of Care) Regulations 1991 SI No 2839
  • The Control of Pollution (Special Waste) Regulations 1980 SI No 1709
  • The Waste Management Licensing Regulations SI No
  • The Controlled Waste (Registration of Waste Carriers and Seizure of Vehicles) Regulations 1991 SI No 1624.

The Future: Civil Liability on Waste

There is a draft EC Directive on civil liability for damage caused by waste, that was published in 1989. The waste producer is to be held liable for any damage caused to people, property and impairment of the environment from their waste, until the waste is disposed of at a licensed waste disposal facility. If waste producers give false information to a disposal facility and environmental damage occurs then they may be liable.