Unlike many areas of regulatory law, where each person is only responsible for their own small section of the chain and only need have knowledge of the person who gave them a product and the person they sold it to, waste law is different and far more onerous.
The duty of care under the waste regulations applies to every person in the chain and that duty of care requires each person in the chain to exercise all due diligence in respect of where the waste came from, who transported it, where it is to be stored, where it is to be taken to for disposal or recovery and all paperwork along the way. This includes (but is not limited to) ensuring that not only you as the holder of the waste have the relevant permit, exclusion, exemption or licence, but that everyone else in the chain does too and that all stages of the journey have a valid waste transfer note.
A breach of a waste duty of care is a criminal offence and can attract large fines and in the case of individuals, also custodial sentences. Waste crime is taken very seriously by the EA.
In order to comply with your waste duty of care, you must take all reasonable steps to:
- Prevent unauthorised or harmful deposit, treatment or disposal of waste
Doing anything with waste without the proper permit, exemption or exclusion – whether or not you knew the material was waste – is likely to be a breach.
- Prevent a breach by any other person to meet the requirements to have an environmental permit, or breach a permit condition.
If you don’t check the authorisation/permits/licenses of the other people in the waste chain and you transfer waste from or to them (or with them involved, such as an unregistered broker) this will be a breach.
- Prevent the escape of waste from your control.
If waste isn’t stored or handled properly this will be a breach.
- Ensure that any person you transfer the waste to has the correct authorisation.
Failing to check for the relevant permit, exemption, waste carrier’s licence, authorisation etc of the person you transfer waste to is a breach.
- Provide an accurate description of the waste when it is transferred to another person.
If inaccurate or incomplete information is included in a waste transfer note then this is a breach.
The EA have published guidance about the duty of care in waste law, which can be found here.
The most important thing you can do to demonstrate that you have complied with your duty of care is to do your due diligence and then keep accurate records of all checks made, all waste transfer notes, invoices and delivery tickets, records of where and how waste was stored and any information you received from others in the chain. If you have done all of that and you have the records to prove it, you will have a better chance of being able to mount a due diligence defence to any prosecution if things do go wrong.
You can check the EA’s register for all permits, registered exemptions and registered and licenced waste carriers and brokers online.
If in any doubt, don’t take waste from or give waste to someone you cannot verify. If that person is reluctant to provide all the information you need, don’t do it. We are frequently contacted by clients who had “assumed” or “been assured” that all was in order. You MUST verify all of these things yourself and have documents to prove that you have done so in order to avoid falling foul of these complex duty of care rules.
In our experience, duty of care offences are the most common issues which businesses fall foul of as most people, particularly if you don’t usually deal with waste, have no idea of how onerous the duty of care obligations are. Not understanding the rules, however, will not provide any defence. Ignorance of the law is no excuse, even where the law is as complex (and unreasonable!) as this.
If you have any concerns or queries, or are being investigated by the EA for waste issues, please contact our Regulatory Team who will be happy to help.