"Duty of care" rules launched amidst doubts on enforcement

A package of measures to bring into force the "duty of care" on everyone in the waste management chain was completed by the Government on 30 December. Significant last-minute changes have been made to the new regulations and accompanying guidance, but the Government appears not to favour moves by waste regulation authorities to make enforcement of the duty itself a major priority.

The duty of care comes into force throughout Britain on 1 April. It will apply to waste producers, carriers, disposers and other parties - including brokers - in the waste management chain. The only exemption is for private householders in connection with their normal household waste. The duty will apply to all controlled waste, regardless of whether it is intended for recycling or disposal.

The four components of the duty are prescribed in section 34 of the Environmental Protection Act 1990. Waste holders will be required to take all "reasonable" steps to:

  • Prevent the commission of an offence under section 33 by any other person. Section 33 prescribes as offences the handling or disposal of waste without a waste management licence or in contravention of a licence condition, or the handling or disposal of waste in a manner likely to cause pollution or harm to human health.

  • Prevent the "escape" of waste from control.

  • Ensure that waste is transferred only to authorised persons. These will generally be carriers who are registered in accordance with regulations made last summer under the Control of Pollution (Amendment) Act 1989 (ENDS Report 198, pp 31-2). The registration process is due to be completed by 1 April or shortly thereafter. A minority of carriers are exempt from the need to register, and in addition some waste transfers are effectively exempted from the duty of care.

  • Ensure that a written description of the waste is transferred to subsequent parties in the waste management chain, and that it will be sufficient to enable them to fulfil their own obligations under the duty of care.

    Three new documents amplify on these basic legal provisions. These are a set of regulations imposing additional documentation requirements for waste transfers,1 a statutory code of practice giving practical guidance on the duty of care,2 and a circular to local authorities.3The regulations require that a "transfer note" must be transferred together with the written description of the waste mentioned above when waste is transferred. Details to be included in the transfer note include the identities of the waste and the parties concerned, and the time and place of the transfer. The note must be signed by both parties, and kept by them for at least two years.

    One point made in the circular will have brought some relief to waste producers and waste management businesses worried about the amount of paperwork which the regulations could have generated. The circular makes it clear that there is nothing to prevent the written description and the transfer note being combined in a single document.

    In addition, the circular advises that repeat consignments of the same type of waste between the same parties can be covered by a single transfer note for up to a year.

    The Government has also responded to representations from waste regulation authorities (WRAs) on one point in the regulations. This is a power for WRAs to serve a notice on waste holders requiring them to supply copies of transfer notes.

    The Government's initial thinking was that such notices could be served by a WRA only on firms to which it had granted a waste management licence or which had their principal place of business in its area - and if they wanted a copy of a transfer note from any other business then they would have to ask another WRA to use its power to serve a notice. WRAs argued that this would inhibit inquiries into suspected breaches of the duty of care, and the Government has relented. The circular says that any WRA may request documents relevant to a waste transfer where it suspects from knowledge of events in its area that an offence has been committed, even if the transfer took place outside its own area.

    The code of practice is broadly in line with a final draft issued for consultation in September (ENDS Report 200, pp 29-30). This was a marked improvement on an earlier version, and now provides a step-by-step guide to compliance with the duty of care for all parties in the waste chain.

    As previously reported, the steps which the Government now considers "reasonable" are not nearly so onerous as its initial proposals, dating back to 1986, would have been on waste producers in particular. At that time it was thinking of obliging larger producers to carry out periodic audits of their disposal sites and other demanding measures.

    The first draft of the code itself, issued in 1990, marked a comprehensive retreat from these ideas, but, as noted in September, some of the lost ground was retrieved in the final draft - and a little more has been clawed back in the finished product.

    In particular, the code will now require waste holders to inspect both the registration certificate held by a waste carrier and the licence held by the disposer - and to check these again at least once a year even if there has been no apparent change of circumstances. Holders will also be required to check with a WRA whether a registration held by a carrier who they are intending to use for the first time is still valid, even if the carrier's certificate appears to be in order.

    Beyond these specific steps, however, the code generally advises waste holders simply to be alert for evidence that the duty of care is not being observed or that illegal waste handling is occurring when transferring or accepting waste.

    The code cautions that this does not imply in, for example, the case of a waste producer that it is "possible to draw a line at the gate of the producer's premises and say that their responsibility for waste ends there," since he is responsible "according to what he knows or should have foreseen." On the other hand, it advises that "the producer would not be expected to follow the carrier," and neither would he be under any duty to audit his waste's final destination - although "undertaking such an audit and periodic site visits thereafter would be a prudent means of protecting his position."

    Overall, the guidance in this area has been drawn so broadly to cater in general terms for different kinds of waste holder, circumstances and wastes that a considerable body of case law may be needed before the various parties in the waste chain can hope to know more precisely what can "reasonably" be expected of them.

    On one important issue the code is more definitive than earlier drafts. This is where a waste holder suspects or knows that a breach of the duty of care or illegal waste handling is taking place. In these cases, the code says, the holder should refuse to transfer or accept waste to or from the party concerned "until the problem is remedied."

    The code goes on to note that "such a stop may not be practicable in all cases, for example to avoid breach of a contract to deliver or accept waste or because there is no other outlet immediately available for the waste." The draft versions of the code stopped there, but the final version goes on to advise that "steps should be taken to minimise such inflexibility. One possible measure would be for new waste contracts to provide for termination if a breach of the duty occurs and is not rectified."

    Launching the new regulations and guidance on 30 December, Environment Minister David Trippier termed the duty of care "a great advance in the legal control of waste," since "anyone who fails to take care of their waste will be guilty of a criminal offence." On the face of it this is perfectly correct, since breach of any component of the duty will be an offence in itself, even if no other offence - notably disposal of waste without or in breach of a licence - occurs.

    When what became section 34 of the Environmental Protection Act was initially debated in Parliament, the then Environment Secretary, Chris Patten, made it clear that WRAs would be expected to interpret it in this way and enforce it accordingly - breaches of the duty would be an offence and should be sought out by WRAs so as to prevent other waste management offences occurring. Ever since, however, the Government has been retreating from that position, and the new circular is certainly not consistent with Mr Patten's presentation.

    According to the circular, it is "envisaged" by the Government that WRAs are likely to pursue most detection and prosecution of breaches of the duty of care "incidentally to their enforcement of section 33." The circular goes on to emphasise that section 34 itself lays no additional enforcement duties on WRAs or anyone else, and so the duty of care - and in particular the documentation regulations - will principally "offer a more effective means for waste regulation authorities to pursue enquiries into other offences."

    The only concession offered by the Government in the crucial area of enforcement is the deletion of a statement in the draft circular that the duty of care would impose "no additional burden" on WRAs. Instead, they are invited to "consider devoting resources to implementing the duty of care in the light of their individual circumstances." The new duty is therefore being launched with some major question-marks lingering about its likely effectiveness.

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