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Waste duty of care: the load that is still yours after it leaves site

Producing waste does not end when the skip goes. The duty follows the load, it is owed by everybody who touches it, and the paperwork that proves you discharged it has a retention period of its own. Jump to the audit checklist.

Environmental Protection Act 1990, section 34 · Waste (England and Wales) Regulations 2011 · Hazardous Waste Regulations

Section 34 of the Environmental Protection Act 1990 puts a duty of care on anyone who imports, produces, carries, keeps, treats or disposes of controlled waste, or who acts as a broker. It is not a duty to fill in a form. It is a duty to take all reasonable measures to prevent the waste escaping, to transfer it only to an authorised person, and to make sure a written description travels with it good enough for the next holder to handle it lawfully.

Who you may give it to

An authorised person means, in practice, a registered waste carrier, or a permitted or exempt site. The registers are public and checking is free. A carrier's registration has an expiry date, and a licence that was valid when the contract was signed is not evidence about the load that went yesterday.

The duty is on the holder at the time of the transfer. Checking once at the start of a job discharges nothing about month four.

The paperwork, and how long it lives

WasteDocumentKept for
Non-hazardous controlled waste Waste transfer note, or an equivalent record Two years
Hazardous waste Consignment note Three years

A transfer note has to describe the waste, give the quantity, say how it is contained, carry the List of Waste code, name both parties with their addresses and their authorisations, and record the place, date and time of transfer. A "season ticket" can cover repeated transfers of the same waste between the same parties for up to a year.

The codes

The List of Wastes gives every waste a six-digit code. An asterisk marks an absolute hazardous entry. Some entries are mirror entries — the same material appears as both hazardous and non-hazardous, and which one applies depends on the concentration of dangerous substances in that particular load.

Construction throws up mirror entries constantly: excavated soil, for one. Deciding it is non-hazardous because the last load was is not an assessment, and the code written on the note is the thing an inspector reads first.

The hierarchy declaration

Every transfer note must carry a declaration that the transferor has applied the waste hierarchy — prevention, preparing for re-use, recycling, other recovery, and disposal last. It is a statement about what you did, not a box.

Hazardous waste has its own machinery Consignment notes are numbered, follow a prescribed sequence between producer, carrier and consignee, and the consignee returns a copy confirming what was received. A consignment with no returned copy is a load whose destination is unevidenced, and that is the gap that shows up in an audit.

Where this actually goes wrong

What the penalties are for

The duty-of-care offence is not about harm having occurred. Failing to secure the waste, failing to transfer to an authorised person, or failing to provide the written description are each offences in themselves, and the fine is unlimited on indictment. Fly-tipping by somebody you handed waste to without checking is the scenario the regime exists to prevent, and the producer's position in it depends entirely on what they can show they checked.

Waste duty of care audit checklist

Use this to audit a site or a waste stream against the duty. Each line is something an inspector can ask to see evidence of. It follows section 34 of the Environmental Protection Act 1990 and the Waste duty of care code of practice (Defra and the Environment Agency, statutory guidance for England and Wales), which a court can take into account in deciding whether the duty was met.

  1. Hierarchy applied. Waste was prevented, re-used or recycled where it could be, and every transfer note carries the waste hierarchy declaration. (Code of practice, section 3.5)
  2. Every stream classified. Each waste has a List of Waste code, and mirror entries such as excavated soil have an assessment behind the code, not a copy of the last load's. (Code, 3.5)
  3. Stored securely. Containers are suitable, clearly and correctly labelled, and stop waste leaking, blowing away or being tampered with. (Section 34(1)(b); code, 3.3)
  4. Carrier checked on the day. Each carrier, broker or dealer was checked on the public register before the transfer, and the registration was in date on the date of each load, not just at contract award. (Section 34(1)(c); code, 3.4)
  5. Destination authorised. The site receiving the waste holds an environmental permit or a registered exemption covering it, and you know where each load is going. (Code, 2.4 and 3.4)
  6. A written description with every load. A transfer note or season ticket describes the waste, quantity, container, List of Waste code and your SIC code, names both parties, gives the place, date and time of transfer, and is signed by you and the next holder. (Section 34(1)(c); code, 3.5)
  7. Hazardous loads closed out. Every hazardous waste movement has a consignment note, and the consignee's return has come back.
  8. Records kept long enough. Transfer notes for at least two years, hazardous waste consignment notes for three, counted from the transfer, and retrievable on request. (Code, 3.6)
  9. Concerns reported. Anyone who suspects waste is being mishandled knows to report it to the regulator, and has. (Code, 3.1)
  10. Someone owns it. A named person is responsible for the checks above, and the result of each audit is recorded with what was fixed.

A failed line is not a paperwork gap to tidy later: failing to comply with section 34(1) without reasonable excuse is an offence under section 34(6).

How Veystrum handles it

Veystrum holds a carrier with its registration and expiry, and a transfer against a carrier and a date. Whether the carrier was authorised on the day of that transfer is computed from the two — not from whether the carrier is authorised now, which is a different and less useful question. A transfer to a carrier whose registration had lapsed appears on the exception report, as does a registration about to lapse with transfers still expected against it, and a hazardous consignment with no consignee return.

Retention is counted from the transfer date, at two or three years according to what the load was, so a record reaching the end of its period is visible before it gets there rather than after.

Where the code recorded is a mirror entry and nothing records the assessment behind it, that is reported as unassessed rather than treated as non-hazardous. The two are not the same and only one of them is a decision somebody made.

This is a summary, not legal advice The authoritative sources are section 34 of the Environmental Protection Act 1990, the Waste (England and Wales) Regulations 2011, the Hazardous Waste Regulations, the List of Wastes, and the Waste Duty of Care Code of Practice. Scotland, Wales and Northern Ireland have their own instruments and their own regulators.

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