Set out in section 34 of the Environmental Protection Act 1990, the duty of care requires waste holders to ensure waste is only transferred to those authorised to receive it. Parties transferring waste must complete and retain a transfer note which includes a description of the waste.
Revision of statutory guidance on the regime is long overdue. With fly-tipping estimated to cost £100 million annually, DEFRA admits the current regime "can represent an opportunity for those involved in waste crime, rather than a deterrent".
Responses are requested by 6 March. A further consultation will follow including a single set of draft amending regulations covering changes needed to improve controls on waste carriers, brokers and the duty of care.
It also asks whether fines should be increased and if alternative penalties, such as fixed penalty notices or reputational sanctions, could be used. For example, councils could be given powers to issue £100 penalties to householders for duty of care offences.
New offences could be added, such as knowingly transferring waste that has been illegally imported or is to be illegally exported.
A key issue is whether the duty of care should continue to be self-regulating or whether the Environment Agency and local authorities should inspect a certain number of businesses each year. This would require funding from grant-in-aid or a new charging scheme.
Waste transfer notes could also be used to enable waste producers to record information required under the landfill regulations, such as waste characterisation and evidence of pretreatment. DEFRA says in practice the onus for ensuring waste has been characterised has fallen on landfill operators because waste is usually not inspected until it arrives at a landfill.
As a result, "it appears a lot of waste is not being properly characterised, as landfill operators may not always be able to judge the environmental suitability of the wastes that are arriving".
Draft regulations that would have required waste producers to provide more detailed information when transferring waste were issued in December 2004 (ENDS Report 360, p 37 ), but the proposals were not adopted because they would have placed the burden on waste producers irrespective of whether waste was destined for landfill.
The new paper reintroduces the idea, but makes clear that characterisation and evidence of pre-treatment would be required on transfer notes only where the waste is destined for landfill. Responsibility could lie with the person making the decision to consign a particular load to landfill.
This "should easily satisfy the basic characterisation requirements in cases where waste is simply removed from a producer’s premises and taken directly to a landfill". But it may not work as well in cases where waste is subject to subsequent handling or treatment, or is combined with other wastes.
Transfer notes could also be used to enforce the requirement on businesses to ensure electrical and electronic equipment is sent to an authorised treatment facility. Regulations implementing this and other requirements of the EU waste electrical and electronic equipment Directive were laid before Parliament in December (see pp 42 ).
The paper also suggests local authorities and the Agency be given power to request the production of transfer notes within 24 hours.
The current ‘one size fits all’ system could be replaced with a tiered approach where higher-risk carriers could be charged more for registration, be required to meet certain technical standards and be subject to more frequent or rigorous inspections.
Registrations could be merged with the waste facilities permitting regime. Operators holding a waste management licence or PPC permit - or a permit under the forthcoming environmental permitting regime - could be exempt from registering. Carrier registration could be added to the permit application to avoid the need for two separate application processes and charges.
Carriers handling tyres could be made subject to "enhanced reporting requirements". These proposals have sat on the shelf since 2004 while other parts of the duty of care consultation were finalised - a delay which led the tyre industry to warn that the government could not know if the ban on landfilling whole tyres from July 2003 and that on shredded tyres three years later were being upheld.
Any new reporting requirements are unlikely to come into force until 2008 - more than 18 months after all tyres became subject to the landfill ban.
The Agency could be required to carry out inspections at a sample of waste carrier premises in addition to the stop-and-search operations it already carries out. The costs would be recovered through charges.
DEFRA is also seeking views on whether other, more flexible penalties could be used in addition to revoking registrations. The Agency can revoke a registration if the registrant has been convicted of a prescribed offence or if the Agency thinks it is "undesirable" for the carrier to remain authorised. But only a handful of the 80,000 or so registered carriers have had their registrations revoked (ENDS Report 335, p 19 ), partly because the Agency must take into account an individual’s human rights, including the right to make a living.
New offences are proposed in relation to carriers and brokers, such as forging registration documents, failing to declare convictions and using registration inappropriately or fraudulently.
The paper suggests registration and regulatory controls for brokers and carriers should be separated and tailored to each activity. Tighter controls on brokers could be introduced, such as annual registrations or the need to keep documentation.