Prepare to tighten up for Duty of Care

As the Government's initial consultation on the duty of care regime closes, Paul Rice examines what impact tighter controls may have

At the end of November 2006, Defra announced proposals for a major review and overhaul of the waste duty of care regime in England and Wales along with proposals to increase control of waste carriers and brokers.

Defra's view is that more is needed to prevent fly-tipping and to build on the powers given to local authorities in the Clean Neighbourhoods & Environment Act 2005, as well as those already contained in the Environmental Protection Act 1991 (EPA). The consultation alleges that: "Research and anecdotal evidence suggests that the current waste carrier registration system, the duty of care regime and penalties for fly-tipping, can represent an opportunity for those involved in waste crime, rather than a deterrent".

Ease of use is key
The Environmental Protection (Duty of Care) Regulations 1991 as well as the key legislation governing carriers and brokers is now over 15 years old. The consultation, which closes this month, will be followed by a further consultation on a draft set of new regulations. It aims to make the current regime "easier to use and comply with".

Section 34 of the EPA sets out the framework for the waste duty of care which essentially places a duty on all persons in the waste chain, from waste creation to final disposal, to ensure that waste is transferred and finally disposed of in accordance with the appropriate transfer and licensing procedures. Enforcement primarily lies with the Environment Agency although more often LAs are now resorting to bringing s.34 charges.

As well as finally implementing the long promised revised guidance on the waste duty of care and the requirement for construction site waste management plans, the consultation requests comments on incentives to promote compliance, envisages increased fines for failures to comply with the s.34 EPA duty as well as the ability to fine householders who work from home for waste arising related to their employment. Guidance on compliance with the duty of care was last issued in 1996.

Waste transfer notes may change
Waste transfer notes (WTNs) may change in the future to require a full characterisation and evidence of pre-treatment of wastes destined for landfill in order to satisfy Landfill Directive requirements. In a bid to improve investigations and enforcement one suggestion is that a requirement to produce WTNs within 24 hours is introduced.

This will no doubt create considerable concern among waste producers and the industry as it is not always possible within large organisations to track down documentation in such short timeframes. Questions have been raised about the level of charges levied by waste management companies and carriers for completing WTNs on their behalf or related advice and support.

The current registration and charging regime applies irrespective of the size of the carrier and the volumes of waste being moved. A tiered registration system has been mooted with a corresponding charging system. The consultation also invites comments on whether the current system could or should be revised/improved.

One suggestion is that businesses that transport waste should be inspected periodically by the Environment Agency. This is likely to lead to an increased revenue take being required from the registration system to fund the inspections.

Paul Rice heads up the environmental practice of Pinsent Masons

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