In England and Wales, duty of care obligations mean taking all reasonable steps to ensure that waste is managed correctly on its journey to disposal or recovery. This duty applies to anyone who imports, produces, carries, keeps, treats, or disposes of certain kinds of waste – and also applies to dealers or brokers who have control of the waste. Failure to comply with duty of care obligations is a criminal offence with no upper limit on the fine that a court can apply.
In Scotland, duty of care obligations vary somewhat, as set out in its code of practice. This code includes a duty on the part of holders of waste, including producers, to take reasonable steps to increase the quantity and quality of recyclable materials.
Following duty of care obligations
Depositing controlled waste without an environmental permit or a registered waste exemption is illegal. It is also illegal to treat, keep or dispose of controlled waste in a way that is likely to cause pollution of the environment or harm to human health.
Examples of illegal waste activities include operating illegal waste sites without the correct permit or exemption; misclassifying waste as non-waste or something that does not fit the written description; and fly-tipping, which is the deliberate unlawful dumping of waste. This could be a truck-load of waste dumped at the roadside, or even a single bin bag of waste dumped on privately owned land.
Taking ‘reasonable steps’
Waste holders must take all reasonable steps to prevent the unauthorised or harmful deposit, treatment or disposal of waste. They are expected to prevent anyone else from breaching the requirement to have an environmental permit, or a permit condition. A holder must also prevent the escape of waste; ensure that the person they’re transferring the waste to has the correct authorisation; and provide an accurate description of the waste when it is transferred.
As a real-world example of taking reasonable steps, a holder might ask the next waste holder where they are going to take the waste, and check that the intended destination is authorised to accept it. They might also ask for evidence that the waste has arrived at its intended destination, and that it has been accurately described. Holders are expected to report suspicious activity to the relevant regulator, and to refuse to give or receive waste from anyone they suspect is breaching duty of care obligations.
Keeping records
For non-hazardous waste and ‘season tickets’, a copy of the description of waste that has been transferred or received needs to be kept either electronically or in paper format for 2 years. Copies of hazardous waste consignment notes need to be kept for 3 years, although different retention periods apply for consignees of hazardous waste. A landfill operator needs to keep records of non-hazardous waste for 6 years, or for the lifetime of the permit in the case of hazardous waste. The lifetime rule also applies to environmental permits, as regulators often require a history of the types of waste received.
