Duty of Care

Duty of Care

Section 34 of the Environmental Protection Act 1990 places a 'duty of care' upon persons who handle controlled waste. The Duty of Care is a code of practice for dealing with 'controlled waste'. The following sections cover the key requirements of the 'Duty' and set out how most waste producers can ensure that they comply.

What is waste?

Waste is any substance or object which the producer or person in possession of it discards, intends to discard or treats as waste.

Controlled waste is Household, Industrial or Commercial waste. Controlled waste is not naturally occurring agricultural wastes, mines and quarries waste, explosives and most radioactive waste. These are subject to their own controls.

Who is subject to the duty of care?

Any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste is subject to the Duty of Care with respect to such wastes.

What is that duty?

All persons subject to the duty must take steps:

  • Prevent any contravention by any other person of Section 33 of the Environmental Protection Act 1990.
  • Prevent the escape of waste from his control or that of any other person; and on the transfer of waste ensure:
    • That the transfer is only to an authorised person or to a person for authorised transport purposes.
    • That there is transferred such a written description of the waste as will enable other persons to avoid a contravention of that section and comply with the duty under this subsection as respects the escape of waste.
What does it mean in practice?

The Duty of Care sets out a chain of responsibilities from the person producing waste to the final disposal of waste and these responsibilities include:

  • Identifying and describing the waste.
  • Keeping the waste safe.
  • Transferring the waste to the right person.
  • Checking up
  • Enforcing the Duty of Care.
Duty of Care

Identifying and describing the waste

The Duty of Care only applies to controlled waste hence it is necessary to ascertain whether the waste is controlled waste.

  • Controlled waste includes: household, industrial and commercial waste.

As part of the description it is necessary to identify any problems presented by the waste hence the description of the waste must include:

  • What is the waste composed of? The amount of information required is usually proportionate to the hazards or difficulties associated with correctly handling the waste.
  • What will happen to it and is it likely to change during transport?
  • What type of containment is required? Prevention of escape is required.
  • Can it be safely mixed with any other waste?
  • Can the waste be crushed and transferred from one vehicle to another?

The description of the waste is incorporated into the Transfer Note, which should also include some of the following, as appropriate:

  • Type of premises from where the waste comes.
  • The name of the substance/waste material(s).

Keeping the waste safe.

The Duty of Care requires that any holders of controlled waste take measures to prevent the escape of waste from their control or that of any other person.

This means that in practice, it is necessary to keep waste safe by preventing:

  • Corrosion, wear or other damage to waste containers which may allow waste to escape.
  • Spilling, leaking or other escape of waste. Light waste in open container should be sheeted or netted to prevent loss or escape of waste during transport.
  • Scavenging of waste by people or animals

Transferring the waste to the right person.

It is the duty of any holder of controlled waste to ensure that waste is only ever transferred to an authorised person and for practical purposes this is:

  • For Collection and Transport: waste must be transferred to a Registered Waste Carrier (Carriers registrations are only valid for 3 years so must be checked carefully.
  • For Transfer, Treatment or Disposal: Waste may be transferred to a person holding a Waste Management Licence that permits them to accept the waste type you are transferring.

The obligation to check a person's authority also applies to those receiving waste, e.g. a landfill operator receiving waste from a carrier.

Checking Up.

For most waste transfers the only action necessary is to check that the details presented on the transfer note are correct and that the person to whom the waste is being transferred is a Registered Waste Carrier or holds a Waste Management Licence which permits the waste to be accepted.

Many customers wish to carry out a full audit including site visit in order to ensure that the receiver is in full compliance of the Duty of Care. Mid UK Recycling is happy to facilitate this.

When a check reveals the waste to be incorrectly described, packaged, contained or managed, the matter should be referred to the waste broker or waste manager so that appropriate action can be taken to address the matter.

Enforcing the Duty of Care.

The Duty of Care is designed to be self-regulating with all of the parties undertaking the required checks and keeping the required documentation.

The Environment Agency do not have a specific duty to enforce the Duty of Care but they have a major interest in ensuring that it is fully complied with as any breaches may constitute illegal waste management and may lead to environmental pollution or harm. They are equipped with the powers to prevent or pursue offenders.

Department for Environment, Food and Rural Affairs