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Duty of Care fine

Posted on 28th October, 2022

A Barnsley landowner faces a duty of care fine and penalties of over £5,000 after failing to comply with an Environment Agency notice to keep and serve Waste Transfer Notes.

Environment Agency Officers served a statutory notice on Carla Hardwick of Barnsley Road, Brierley. Following an investigation into fly-tipping in a layby at Windmill Hill on the A17 near Sleaford, Lincolnshire.

The notice required her to hand over paperwork supporting the transfer of waste from her land in Carlton, Barnsley, South Yorkshire. Officers attended the site in October 2020 and gave Ms Hardwick advice on the actions she needed to take. These included the removal of excess waste and the importance of retaining relevant Waste Transfer Notes for waste that had been removed.

When officers returned to the site in June 2021, they noted that the vast majority of the waste had gone. However, when asked to provide the Waste Transfer Notes, she failed to provide any documents in respect of the waste removed. The transfer notes were requested for between the dates of the Environment Agency visits. After 12 months she did provide a single document, but this did not match the waste on her site. It did not provide the information legally required by a transfer note. In particular it did not identify the person removing the waste.

The court heard that Ms Hardwick had no system for recording waste movements from her site. This leaves waste vulnerable to the risk of fly-tipping and made it impossible for the Environment Agency to trace its movements, once it had left her site.

Ordering Ms Hardwick to pay a fine of £729, costs of £4,579 and a victim surcharge of £72, the presiding magistrate said that she had acted “recklessly” and had “ample opportunity to comply with her obligations.”

“Waste crime undermines legitimate business, can cause harm to the environment and to local communities. This case demonstrates the importance of businesses and individuals following the rules when handling waste.

There was no suggestion that Ms Hardwick had fly-tipped any waste herself but that she had lost control of the waste leaving her site. When waste is illegally disposed of the waste transfer notes enable us to trace the waste. Where the rules aren’t followed, we cannot identify offenders, meaning that they get away with it and are likely to commit further offences.”

Environment Officer Paul Salter
Duty of Care fine
The duty of care is designed to prevent fly tipping

Duty of Care

The duty of care legislation makes provision for the safe management of waste to protect human health and the environment.

The code of practice (the Code) sets out practical guidance on how to meet your waste duty of care requirements. It is issued under section 34(7) of the Environmental Protection Act 1990 (the EPA) in relation to the duty of care set out in Section 34(1) of that Act.

The Code applies to you 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 no upper limit on the courts’ power to fine. In some instances, a fixed penalty notice may be issued for failure to comply with the duty of care in place of prosecution. The Code is admissible as evidence in legal proceedings for Section 34(1) offences and its rules must be taken into account where relevant to questions raised in the case.

The duty of care applies to anyone who imports, produces, carries, keeps, treats, disposes of, or are a dealer or broker that has control of, controlled waste (referred to below for the purpose of the Code as a ‘waste holder’).

Waste producer

Waste producers are any person whose activities produce waste. This includes:

  • private sector businesses such as shops, offices, factories and tradespersons (for example, electricians, builders, glaziers and plumbers)
  • public sector services such as schools, hospitals and prisons, as well as charities and voluntary and community groups
  • permitted operations or exempt facilities that produce waste as part of their activities

If you carry out a waste operation that changes the nature or composition of the waste, you are regarded as a producer of the waste. Waste producers play a key role under the duty of care requirements as they are in the best position to identify the nature and characteristics of the waste.

Waste carrier

A waste carrier is any person, who normally and regularly collects, carries or transports waste in the course of any business or with a view to profit, including those that produce and transport their own waste – for example, builders and landscape gardeners.

Waste dealer

A waste dealer is any person, business or organisation that buys waste with the aim of subsequently selling it, including in circumstances where the dealer does not take physical possession of the waste.

Waste broker

A waste broker is any person, business or organisation that arranges waste transportation and management of waste on behalf of another party, such as organisations contracting out waste collection services – for example, local authorities, supermarkets and producer responsibility compliance schemes.

Waste manager

A waste manager is any person involved in the collection, transport, recovery or disposal of controlled waste, including the supervision of these operations, the after-care of disposal sites and actions taken as a dealer or broker.

A separate duty of care applies to householders (occupiers of a domestic property), limited to taking all reasonable measures available to them to ensure their waste is only transferred to an authorised person.

For the purposes of this Code, occupiers of domestic property are not treated as a ‘waste holder’ as defined above, when dealing with household waste produced on that property.

Duty of Care Requirements

Those who are subject to the duty of care must take reasonable steps to:

  1. Prevent unauthorised or harmful deposit, treatment or disposal of waste.
  2. Prevent a breach (failure) by any other person to meet the requirement to have an environmental permit, or a breach of a permit condition.
  3. Prevent the escape of waste from your control.
  4. Ensure that any person you transfer the waste to has the correct authorisation.
  5. Provide an accurate description of the waste when it is transferred to another person.

Failure to comply with the duty of care requirements is a criminal offence and could lead to prosecution.

Transferring Waste

You should check whether a person or business is authorised to take waste before you transfer your waste to them. An authorised person is one of the following:

  • someone who has a valid registration as a carrier, broker or dealer of waste
  • a waste management operator who has an environmental permit or registered exemption to accept such waste

You can ask the person or business you transfer your waste to or who arranges the transfer for evidence of their authorisation, such as a copy of their permit or proof of their exemption registration.

You should also use the public register to check any evidence they provide. The register contains information on:

  • waste carrier, broker and dealer registrations
  • environmental permits for waste operations
  • waste exemptions

In England, you can check registration on the EA’s public register or call 03708 506 506.  In Wales you can check on the NRW’s public register or call 0300 065 3000.

The person receiving the waste must also check that the previous holder has complied with their duty of care. If you suspect that the previous waste holder has breached their duty of care (for example, misdescribing the waste or not properly storing it), do not accept the waste and report your suspicions to the EA or NRW.

Record any checks you make as you can use this as evidence that you have met your duty of care.

If you use a dealer or broker to manage your waste, they must be registered as a dealer or broker with their regulator, even if they do not take physical possession of the waste.  Where a dealer or broker is the transferor or transferee of the waste, their details (including their registration number) must be included in the waste transfer information.

Waste carriers, dealers and brokers must present evidence of registration if requested by a police constable, an authorised officer of the EA, NRW or local authority. It is an offence not to do so without reasonable excuse and you could be prosecuted under section 5 of the Control of Pollution (Amendment) Act 1989, or issued with a fixed penalty notice under section 5B of that Act.

Describing Waste

When you transfer waste to another person, you must ensure that a written description of the waste is agreed and signed by you and the next holder. The description is part of the waste information you must provide.

For non-hazardous waste you can do this by using:

  • edoc – a free national electronic duty of care system that creates, shares, signs and stores waste transfer notes and season tickets for you online
  • a paper waste transfer note– a form to fill in or you can use alternative documentation – for example, an invoice, as long as it contains all the required information
  • season ticket – a single waste transfer note that covers a series of non-hazardous waste transfers. The season ticket can last up to one year and be used for regular transfers of the same type of non-hazardous waste with the same carrier. If you have several sites serviced by the same carrier with the same types of waste collected, they can be listed in a schedule to the season ticket. You should keep a record of the collection times and the quantity of waste

A waste information note is not required for non-hazardous waste if the waste holder does not change on the transfer of waste – for example, the waste is moved to other premises belonging to the same business. However, it is best practice that the business understands who has responsibility for that waste and a record is kept of internal transfers for audit purposes.

For hazardous waste you need to use a consignment note – this applies to all movements of hazardous waste including collections from businesses by registered waste carriers, movements from one premises to another within the same business and all movements from the waste producer’s premises. The only 2 exceptions where a consignment note is not needed are where domestic hazardous waste (other than asbestos waste) is removed from a domestic household or waste is imported or exported under international waste shipment controls (which uses an equivalent note)

When you transfer waste to another person, you must ensure that the description contains a statement confirming that you have fulfilled your duty to apply the waste hierarchy as required by regulation 12 of the Waste (England and Wales) Regulations 2011.

When you transfer waste to another person, you must ensure that the description of the waste is accurate and contains all the information you are reasonably in a position to provide to ensure the lawful and safe handling, transport, treatment, recovery or disposal by subsequent holders, including:

  • classification of the waste by using the appropriate codes (referred to as the List of Wastes (LoW) or European Waste Catalogue (EWC)) – Appendix A of the Waste Classification Technical Guidance provides a list of the codes as well as advice on how to assess and classify waste
  • its quantity and nature and whether it is loose or in a container
  • if in a container, the type of container
  • the time and place of transfer
  • the SIC code of the transferor (current holder of the waste)
  • the name and address of the transferor and transferee (person receiving the waste) and their signatures (the signature can be electronic as long as an enforcement officer can view it)
  • the capacity in which the transferor and transferee are acting (for example, as a producer, importer or registered waste carrier, broker or dealer) and their relevant authorisation to act in that capacity (for example, their permit number or registration number)

You should also consider whether there are any problems associated with the waste that you need to describe so that subsequent users can handle it properly. Examples include whether the waste:

  • needs a special container
  • needs particular treatment or handling, for example batteries or waste electrical and electronic equipment (WEEE)
  • can or cannot be mixed with other wastes
  • could cause a problem during treatment or disposal – for example, dusty, smelly or otherwise offensive waste)
  • has been processed (for example, undergone treatment) or had certain materials removed from it (for example, packaging) to meet basic characterisation requirements of wastes destined for landfill
  • displays a hazardous property (for example, flammable) or presents a chemical hazard
  • has other issues (for example, risk of spillage or leakage of liquids)

If you receive waste, you must ensure the waste matches the written description and that your permit allows you to accept such waste.

If you are operating under a waste exemption, you must ensure that by accepting any waste you are not contravening the exemption criteria – for example, waste limits.

Record Keeping

You must keep a copy of the waste description for waste you have transferred or received (either electronically or on paper format) for:

  • 2 years for non-hazardous waste
  • 2 years for season tickets
  • three years for hazardous waste consignment notes (different retention periods apply for consignees (receivers) of hazardous waste; see further detail in the hazardous waste guidance)
  • six years if you are a landfill operator for non-hazardous waste (for landfill tax purposes)
  • the lifetime of your permit if you are a landfill operator for hazardous waste
  • the lifetime of an environmental permit (when the permit is surrendered, the regulator often requires a history of the types of waste received)

If an authorised officer of the EA, NRW or local authority asks you to provide the written description of waste, or a copy of it, and you fail to do so, they can issue a fixed penalty notice. Where the waste is hazardous waste, a variable monetary penalty for breach of the requirements to supply information may be issued.

A duty of care waste transfer note form is available free of charge on the Environment Agency’s website.

If you require environmental advice for your business, please contact one of the Jacksons team.

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